Raw v Botha and Another

• Jurisdiction: South Africa
• Judge: Henning J
• Judgment Date: 09 June 1965
• Citation: 1965 (3) SA 630 (D)
• Hearing Date: 21 May 1965
• Court: Durban and Coast Local Division

B Henning, J.:

On the 19th March, 1965, the applicant, a member of the C United South African National Party (hereinafter referred to as the United Party) and a member of Parliament, obtained ex parte from a Judge in Chambers an order against the two respondents in the following terms:

'1.

That a rule nisi be and it is hereby granted, calling upon C. J. Botha, and Drakensberg Press Ltd., both of 305, Umbilo Road, Durban, to show cause (if any) before this Court on Friday, the D 9th day of April, 1965, at 10 o'clock in the forenoon, or so soon thereafter as counsel may be heard why an order shall not be made in the following terms:

(a)

Each of the respondents be interdicted and restrained from distributing, using or causing or permitting to be used, any copies of the pamphlet of which a copy is annexure 'A' of the affidavit made by the applicant on the 19th day of March, 1965, and filed in support of this application;

(b)

Should the respondents oppose this application, then they shall E pay the costs occasioned by such opposition;

(c)

The respondents do jointly and severally pay the remaining costs of this application.

2.

That, pending determination of this application, each of the respondents is hereby interdicted from distributing, using or causing or permitting to be used, any copies of the said pamphlet.'

F The first respondent is the provincial secretary of the National Party and was that Party's candidate for the constituency of Newcastle in the Provincial general election which was held on the 24th March, 1965. The second respondent carries on a printing business in Durban. Both respondents filed opposing affidavits to which the applicant in turn G replied. Eventually the matter came before me when the applicant asked for a permanent interdict by way of confirmation of the rule, whilst the respondents contended that the rule should be discharged with costs.

The pamphlet containing the matter alleged to be defamatory of the applicant was admittedly compiled and issued by the first respondent and was printed by the second respondent. Thirty-eight thousand copies were H printed, some of which only had been distributed when the rule was obtained. The second respondent, in an opposing affidavit made by its managing director, alleged that the printing was done in the ordinary course of its business and that, after execution of the order, all the copies were delivered to the first respondent; there was therefore no basis upon which any interdict could have been granted against it. The applicant in his replying affidavit admitted the statements of fact made by the managing director, but still persisted in asking for the relief

Henning J

claimed in the rule against the second respondent. Mr. Mitchell, who appeared on behalf of the applicant before me, conceded that, as far as the second respondent was concerned, the rule should be discharged with costs. In my view this concession was rightly made.

A The pamphlet in question consists of ten printed pages, one half being in Afrikaans and the other in English. I shall confine myself to the English text. In bold letters it is entitled on the cover page 'U.P. Race Federation means eventual Black Domination', and lower down 'Dr. B Verwoerd guarantees a White Parliament for the White Man'. On the third page there appears the following:

'Opposition criticism

Fragmentation of Republic?

We are Balkanising South Africa - we are giving ground bought with Voortrekker blood to the Bantu.

Answer: This is maliciously untrue.

We are not giving these areas to the Bantu. They have been Bantu areas ever since and this Government has time and again given the assurance.

C This Government will honour the undertaking given in the 1936 Act to add a certain quota of land in every province to the Bantu areas but not an inch more than that.

In this connection certain maps have time and again been published by a hostile Press and the U.P., giving almost the entire Natal to the Zulu people. This is absolutely untrue.

Almost all the additional land required under the 1936 quota can be D allocated out of vacant State ground.'

The case for the applicant is that the statement 'this is maliciously untrue' is defamatory of him. In his launching affidavit he said that he, both in Parliament and outside it, and in particular in addressing several public meetings in the Newcastle constituency, made speeches to E the effect that the Government was balkanising South Africa and was giving ground bought with Voortrekker blood to the Bantu. To his knowledge, other members of the opposition, namely, the United Party, had made similar statements. He said the statements were made by him in good faith, without malice, and in the honest belief of their truth, that they were true and in the public interest for the public benefit. F He contended that the words 'this is maliciously untrue' were therefore false. In elaboration of this he said that the land referred to in the statements, which he claimed he had made, was land in the Province of Natal upon which Voortrekkers fought and shed blood and that such land

'therefore passed into the ownership of the white man in Natal, and has G been acquired by the Government, and in terms of its policy is being awarded and given to the Bantu'.

He submitted that, in the circumstances in which it was made, the statement 'this is maliciously untrue' was defamatory 'to those persons who made the preceding statement including inter alia (alios was no doubt intended) myself'.

H It is common cause that the pamphlet was compiled and published for distribution to voters in the Provincial general election in accordance with the normal practice of political candidates and parties, that there were four constituencies within the jurisdiction of this Court where candidates of the National Party and the United Party were in opposition to one another, and that it was the intention of the first respondent to distribute the pamphlet to the voters in the four constituencies.

To continue with the allegations in the launching affidavits, the applicant

Henning J

stated that he verily believed that, if the pamphlet were further distributed, he would suffer damage because its effect was to discredit what he had said in addressing public meetings in the election campaign. Because of the imminence of the election, there would be no time for him A to take any action, other than that which he embarked upon, in order to prevent him from suffering harm which would be irreparable. The concluding paragraph of the launching affidavit reads as follows:

'I have had many years of experience in the conduct of election campaigns, and I aver that there is insufficient time for me and those associated with me in the said election in the Province of Natal, on behalf of the said United Party in any way adequately to refute the said pamphlet.'

B The applicant annexed to his founding affidavit an affidavit by Mr. D. M. Carpendale, a member of the United Party, who was the sole candidate for the constituency of Greyville. He said he read the pamphlet on 19th March, 1965, and at once recollected that the applicant was one of the persons whom he, the deponent, had heard make statements C ...