R v Macdonald

• Jurisdiction: South Africa
• Judge: Dowling J and Steyn J
• Judgment Date: 17 November 1952
• Court: Transvaal Provincial Division
• Hearing Date: 03 November 1952
• Citation: 1953 (1) SA 107 (T)

H Dowling, J.:

The appellant was convicted by a magistrate at Germiston of publishing a defamatory libel. The defamation took the form of a circular letter addressed to some 600 voters in the course of an electioneering campaign carried on by appellant in an effort to secure his election as a town councillor. An extract from the defamatory statement complained of is set out in the charge in the following terms:

Dowling J

'I am very sorry to state that the present candidate, Mr. F, has done absolute nothing for Ward 6. I challenge him to a public meeting to come on the same platform as me and show me what he has done except working his whole family into the municipal service as traffic inspectors, etc.

Now, people of Germiston, what chance has your sons and daughters of getting a job on the municipality when these unscrupulous town A councillors work their families and friends into these jobs? I believe one traffic cop was brought from Standerton to fill a vacancy. What a disgrace! I thank God that the law is fast closing up on these unscrupulous town councillors.'

This extract is followed by the following innuendo:

'meaning thereby that the said F is an unscrupulous man not suited for election as a city councillor, that he had made misuse of his position B in the past by doing nothing for the public benefit and by unfairly securing appointments in the municipal service for all members of his family at a time when he was serving as a councillor.'

Appellant was sentenced to a fine of £10 or imprisonment with hard labour for 10 weeks.

C The publication was clearly proved and in my opinion the statement is defamatory.

The main point argued on appeal was that the defamation in this case was not of an aggravated nature and so should not be treated as a crime. Reliance was placed on the remark made by DE VILLIERS, C.J., in Le Sueur D v. Geary, 1877 B. 115, that libels of an aggravated nature are crimes by the law of the colony (the italics are mine). I think it may be said that this defamation is not an aggravated one. The gravamen of the charge against F. does not exceed one of nepotism, and the innuendo of E 'unscrupulousness' laid is in effect no more than a submission that nepotism is a thing that only an unscrupulous man would lend himself to.

There are in the authorities statements or suggestions that defamation is only a crime when it is (a) aggravated, gross or serious, or (b) F calculated to lead to a breach of the peace, or (c) likely to affect the common weal, or (d) directed against a State official.

This Court was invited by Mr. Dison, who appeared for the appellant, to declare that cases of defamation not falling in one of these categories G are not crimes, and that, so far as the authorities show that in the past all defamatory statements were crime, such law has fallen into desuetude.

No evidence germane to this issue was adduced in the court below, e.g. as to the...