Rex v Fuleza

• Jurisdiction: South Africa
• Judge: van Den Heever JA, Hoexter JA, and Fagan JA
• Judgment Date: 27 November 1950
• Citation: 1951 (1) SA 519 (A)
• Hearing Date: 02 November 1950
• Court: Appellate Division

Van den Heever, J.A.:

At all relevant times Mr. David Greswolde Lewis was the Native Commissioner for a native district in Southern Rhodesia. By word of mouth appellant published

Van den Heever JA

defamatory statements of and concerning Mr. Lewis, stating that he was a thief and that he had stolen the cattle and money of natives in the area. In consequence thereof an indictment was preferred against the A appellant in the High Court of Southern Rhodesia charging him with criminal defamation. When the matter came before the learned CHIEF JUSTICE and assessors and before the appellant was called upon to plead an exception to the indictment was taken on the ground that 'there is no longer a common law offence of criminal defamation'. The learned CHIEF JUSTICE dismissed the exception (whereupon the trial proceeded and the B appellant was convicted and sentenced) but in terms of the provisions of sec. 10 of the Administration of Justice (Appeals) Act (Chap. 10) reserved the following question of law for the consideration of this Court: -'Is slander, or injuria verbis, a crime under the present-day law of this Colony?'

In regard to the limits of the inquiry both counsel who argued the matter before us were in agreement; save as provided in the Native Law and Courts Act, (Chap. 73), with which we are not concerned, the law to be D administered by the Courts of Southern Rhodesia

'shall be the same as the law in force in the Colony of the Cape of Good Hope on the tenth day of June, 1891, as modified by subsequent legislation having in this Colony the force of law.'

E (Southern Rhodesia Order in Council of October 20, 1898, sec. 49 (2); Revised Edition of the Statutes, Chap. 8, sec. 13). It was common cause that since 1898 no legislation having the force of law in Southern Rhodesia and touching the question before us was enacted. The question accordingly resolves itself into these two queries: -

(1)

F was slander, or injuria verbis, a crime in the Colony of the Cape of Good Hope on the 10th of June, 1891, and,

(2)

if the answer to question (1) is in the affirmative, whether the law rendering such conduct criminal has since the 10th of June, 1891, been abrogated in Southern Rhodesia by desuetude.

G Mr. Klopper, for the appellant, contended that defamation was not a criminal offence according to Roman Dutch law; that the authorities contradict each other on the question; that, unless there was a doubt on the matter, it would have been unnecessary to promulgate the Dutch placaats on the subject. (Cf. that considered in Rex v Harrison and H Dryburgh, 1922 AD 320.) I deal with the second point first.

The constitution of the Republic of the Netherlands may be said to have evinced a precarious coherence in spite of powerful centrifugal forces threatening it with disruption. The Union was virtually a federation of a number of autonomous rechtskringen each of which jealously guarded its privileges reserving to its citizens the right to be tried for criminal offences only by its own

Van den Heever JA

judges and excluding appeals. Entrenched behind this privilege a beldam of Middelburg, who had called their Lordships of the Hoge Raad a pack of scoundrels, could defy the supreme tribunal and flout its writ, until pried out of her sanctuary by the doubtful expedient (Bynkershoek A dissenting) of declaring contempt of court to be a species of laesio majestatis which was not covered by the privilege (Bynkershoek, Observ. Tumult., Vol. 1, Obs. 490). A schoolmaster with little authority over an unruly class is apt to repeat his commands in the hope that reiteration may to some extent serve as a substitute for the discipline which is B lacking. In the same manner and for the same reason the federal and provincial legislatures of the Netherlands were wont to repeat their commands with wearisome reiteration. According to Germanic law as well as according to Roman law abduction was undoubtedly a criminal offence. C Yet again and gain the estates enacted and re-enacted measures to curb the evil. Falsitas had always been regarded as a serious crime, yet on the 30th January, 1545, Charles V deemed it expedient to promulgate his placaat relating to Crijm van Volschede (G. P. B. 1, col. 385). In the same measure the Emperor enjoins his officers to take stern measures D in cases of homicide, which was becoming far too common in public houses and at fairs. Such enactments declaratory of the common law or intended to attract notice to previous statutory enactments may point to flaws in the enforcement of law, not to the absence of recognised legal rules.

E There can be no doubt that before the reception of Roman law in the Netherlands both defamation and insult were regarded as criminal offences. In 1484 a woman who bore the appropriate name of May Vermoei had said of complainant that he was a bad thief and a murderer and that his wife was no better than she ought to be. As the accused could not F prove the truth of her allegations in Court she was condemned to make a public show of contrition and thence, having doffed her mantle and cowl, to make a circuit of the city carrying 'the stone, to the Glory of God, etc.'

Carrying the stone was a common punishment throughout western Europe. G The stone, 'stadsteen,' was displayed in a prominent place as a warning to mischiefmakers and in Germany it was called i.a. the lasterstein or klapperstein (Dr. Frh v Kunszberg, Uber die Strafe des Steintragens, p. 5). Numbers of decisions are preserved in which persons guilty of oral defamation (achterklap) were condemned to make public penance, H perform an act of humiliation and proceed on a pilgrimage to some distant shrine mentioned in the order of court (e.g. Blok, Leidsche Rechtsbronnen Uit de Middeleeuwen, p. 9, 12, 21). Special provisions were common in regard to punishment of persons

'die den anderen beclapt . . . oft overseyde enyge stucken die sen sijn eere gingen ende dat niet betuygen oft waer maecken en conde als recht is'.

(Keuren van Geervliet, Verslagen en Mededeelingen, Dl. 2, p. 96, Art. 72; Fruin, Oudste Rechten van Zuidholland, Dl. 2, p. 276, Art. 78).

Van den Heever JA

When the Roman law was received in subsidio in the Netherlands it was regarded as the ius commune and therefore complementing the local laws or obtaining where the local laws were silent. The alleged conflict between the Roman Dutch authorities to which Mr. Klopper referred A resolves itself if one keeps in mind what the protagonists really meant. Their disagreement related to procedure rather than to substantive law.

In the Roman world criminal law was not entirely a branch of public law. Mommsen's summing up of the question Röm. Strafrecht, p. 4 et seq.) may be rendered as follows: -

B 'In criminal law man's moral obligations towards the state to which he belongs as well as to other persons are grouped together as a single branch. This unity was not and could not be known to Roman jurisprudence; magisterial comitial criminal proceedings fell under public law; proceedings in delict before recuperatores (Geschworenen) fell under private law. It is impossible, nevertheless, not to group the two branches of penal law together. The two branches are closely C linked together by the fundamental consideration that contravention of the moral code calls for retribution on the part of the state. In view of this supreme consideration the distinction whether retribution is effected in public or in private proceedings appears as superficial and fortuitous. Accordingly it is impossible to let any juridical D exposition of theft depend upon the question whether the offence takes the form of peculatus or furtum or on the question whether it subsequently gives rise to the civil actio furti or to magisterial cognition. Similarly it is impossible to separate the law of injuries into two parts, one being dealt with by the Comitia or the great court of recuperatores and the other by the private court of recuperatores.'

E According to Roman law certain grave forms of injury including defamation in mala carmina were originally justiciable only as offences against public law, whereas in general injuries were justiciable in private law actions.

By a process of osmosis the line of demarcation between the two types of F injury became blurred: iniuria strox could be vindicated by private action and a slanderer who was impecunious or was infamous could be subjected to corporal punishment. The victim of defamation could therefore in all cases elect whether he wished to invoke the sanctions of the civil or of the criminal courts against the slanderer. Since both G procedures were essentially punitive the slanderer was not liable to be penalised in both on the principle: nemo ob idem admissum bis puniendus est (D. 37.10.6 in fin.: Matthaeus, de Criminib, ad Dig, 47, lit. 4, Cap. 2.10; cum omnes tendant ad vindictam).

H In Roman procedure some private individual, the accusator, prosecuted crimes: as the state developed in western Europe it became customary to appoint special officers charged with the duty of prosecuting at the public instance and the cleavage between the crime and the delict was effected. It was logical therefore that in general the victim of defamation was permitted to sue only in respect of the amenda honorabilis et profitabilis and Aquilian damages suffered, if any, leaving the prosecution of the crime to the public authority charged with that office (Holl. Cons., Vol. 1 cons. 180, quaest. 2; Voet, 47.10.18; Groenewegen ad Inst. 4.4.10 n. 5, et ad Inst. 4.18.1 n. 19; Vinnius ad...