S v Citizen Newspapers (Pty) Ltd and Another S v Perskorporasie van Suid-Afrika Bpk and Another

• Jurisdiction: South Africa
• Judge: Franklin J and Van Dyk J
• Judgment Date: 09 May 1980
• Court: Transvaal Provincial Division
• Hearing Date: 22 April 1980
• Citation: 1980 (3) SA 889 (T)

Franklin, J.:

There are two appeals before the Court by two different newspaper owners and newspaper editors. They are both appeals against a conviction of a contravention of s 154 (3) of Act 51 of 1977, in that on 6 September 1979 and without the authority of the judicial officer before whom one CH (a person under the age of 18 years) appeared as an accused person, they published information which revealed or might have revealed the identity of CH. Although there are some differences in the

Franklin J

texts of the two articles which gave rise to the prosecutions, both appeals are based on identical legal grounds, and on substantially identical factual grounds. For this reason counsel for the appellants in A both appeals, and for the State, adopted the convenient course of not filing separate detailed heads of argument in each appeal, but of relying upon the same legal arguments in each case and pointing out and dealing with such differences as there are in the texts of the two articles forming the subjectmatter of the charges.

It would be convenient for me to follow the same course, by dealing with B both appeals in one judgment. I propose to deal first with the legal position which I conceive to be applicable to both appeals, and then to apply the relevant principles separately to the two articles in question. But, before doing so, I should state that the following facts are common cause in each of the appeals:

1.

C The accused admit that CH, being a person under the age of 18 years, appeared in court No 16, Johannesburg on 31 August 1978

2.

The accused further admit that the said H was an accused person in a case.

3.

The accused further admit that the judicial officer did not authorise D the publication of information revealing the identity of the abovementioned CH.

4.

The accused admit that an article was published in the newspaper The Citizen and in the newspaper Die Vaderland on 6 September 1978.

5.

It is admitted that the accused No 2 is a servant of accused No 1 E within the meaning of s 332 of Act 51 of 1977.

6.

It is further admitted that the said articles were published by a servant of accused No 1, acting in the exercise of his powers or in the performance of his duties or in furthering the interests of the accused No 1.

F What is denied in each case is that either publication was wrongful or unlawful and that either article contains information which reveals or might reasonably reveal the identity of CH.

We are indebted to both Mr Kuschke, who appeared for the appellant, and to Mr D'Oliviera, who appeared for the State, for the able arguments which they presented to us in these appeals.

G Section 154 (3) of Act 51 of 1977, so far as relevant, reads as follows:

"No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of 18 years or of a witness at criminal proceedings who is under the age of 18 years..."

The Act was signed in Afrikaans, and the relevant portion of s 154 (3) in the Afrikaans version reads as follows:

H "Niemand mag op enige wyse hoegenaamd enige inligting publiseer wat die identiteit openbaar of kan openbaar van 'n beskuldigde onder die ouderdom van 18 jaar nie..."

The crux of the case is the proper construction of the words "inligting... wat die identiteit openbaar of kan openbaar" ("information... which reveals or may reveal") read in their context.

There appears to be no decided case in which any of our Courts have been called upon to construe the provisions of this section or of any of its predecessors (viz s 220 bis (1) (bis) of Act 31 of 1917; ss 64 (6) and

Franklin J

386 (2) of Act 56 of 1955) nor of any statutory provisions in pari materia to those under consideration (eg ss 6 (2) and 99 (1) of the Children's Act 31 of 1937; s 8 (2) of the Children's Act 33 of 1960).

A What is the class of reader who is likely to read these articles? And how is he likely to read them? In the absence of any direct authority on the section in question, the closest analogy is probably to be found in cases dealing with these two questions in relation to allegedly defamatory articles in a newspaper.

B In Geyser en 'n Ander v Pont 1968 (4) SA 67 (W) TROLLIP J, dealing with articles in a monthly journal, spoke (at 69) of "die deursnee leser" who would read each issue over a period of a year as a separate article and not the whole series at one time like a book; consequently each article had to be judged separately in order to determine whether it was C defamatory and whether it referred to the plaintiffs. At 70 TROLLIP J dealt with the question as to how the ordinary reasonable reader of the articles would understand them. As to the type of person this reader would be and how he would read ordinary newspaper articles, TROLLIP J said this (at 70B - F):

"Hy sou dus 'n leser met normale verstand, ontwikkeling en gevoelsreaksies D wees (SA Associated Newspapers Ltd v Schoeman 1962 (2) SA 613 (A) te 616G - H). Die volgende gesaghebbende, regterlike uitlatings dui aan hoe daardie hipotetiese persoon gewone koerant-berigte sou lees,

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