S v Revill

• Jurisdiction: South Africa
• Judge: Munnik J
• Judgment Date: 31 March 1970
• Citation: 1970 (3) SA 611 (C)
• Court: Cape Provincial Division

D Munnik, J.:

On 5th May, 1965, the accused in this case married Joyce Martha Hancock, a divorcee with two teenage children. She left him on 31st March, 1966 and instituted an action for judicial separation, together with ancillary relief, including a claim for division of the E joint estate. It is common cause that the joint estate at the time of the marriage amounted to approximately R200,000, of which the wife had contributed about R5,000.

The matter eventually came to trial before Mr. Justice THERON on 2nd November, 1966, in the Cape of Good Hope Provincial Division, both parties being legally represented. As only one day was allocated for the F hearing of the case it could not be completed before the end of that term. The continued hearing was set down for four days in the following term, 1967 and, as the case did not finish in those four days, a new date was set, at which stage it was eventually concluded, the hearing lasting ten Court days in all, including the day for argument.

G On 28th February, 1968 Mr. Justice THERON handed down a written judgment in terms whereof, inter alia, a judicial separation and division of the joint estate was granted to the plaintiff wife.

The accused noted an appeal to the Appellate Division and prosecuted this appeal in person. I may say that one of the grounds for appeal was H that the Judge a quo was prejudiced against the accused, and that the Appellate Division, in dismissing the appeal on this ground in common with other grounds, found the allegation to be without substance. The Appellate Division judgment was handed down on 30th September, 1968.

To say that the accused was dissatisfied with the judgment of Mr. Justice THERON and of the Appellate Division would be an understatement. He said in this Court, in an unsworn statement - and there is no reason to doubt that this is, in fact, so - that he tried to prevail

Munnik J

upon the Attorney-General to prosecute his wife, and, presumably, others who testified on her behalf, for perjury. But the Attorney-General declined to do so on the basis that there was no prospect of obtaining a A conviction. The Attorney-General told the accused (according to what the accused said in his unsworn statement) that the accused could institute a private prosecution if he wished to do so. Not unnaturally, the accused felt that, if the Attorney-General saw no prospect of success in a prosecution for perjury, he had even less chance. The accused says that he also wrote letters to the State President, the B Prime Minister, Ministers of the Cabinet and other persons, but, as is fully understandable, having regard to the fact that he presumably wanted to re-open a case that had already been finally adjudicated upon, he met with no encouragement.

The accused then proceeded to disseminate two typed, or possibly C roneod - it is not certain which - documents in circumstances to which I shall allude presently, and it is this publication of these documents, being annexures 'Y' and 'Z' to the indictment, which has led to his indictment on 11 counts of publishing defamatory libel in contravention of sec. 1 of Act 46 of 1882. There is an alternative charge of committing contempt of Court, based on the same publications.

Sec. 1 of Act 46 of 1882, reads as follows:

D 'Any person who shall publish a defamatory libel shall be deemed to be guilty of a crime and shall upon conviction thereof be liable to imprisonment, with or without hard-labour, for any term not exceeding two years, or to a fine not exceeding £500 sterling, or to both such fine and imprisonment as the Court may award.'

E It is also necessary for me to set out secs. 2 and 3 of the same Act. Sec. 2 reads as follows:

'Any person charged with the crime of publishing defamatory libel may under a plea of not guilty set up any defence, save as hereinafter excepted, which might be pleaded in answer to a civil action for the same libel.

3. On the trial of any person accused of the crime of publishing such libel as aforesaid, the truth of the matter charged may be enquired into, but shall not amount to a defence unless it was for the public F benefit that the said matter should be published in the manner in which and at the time when they were published. But to entitle the defendant to give evidence of the truth of such matters it shall be necessary for him to file a special plea of justification in the manner hereinafter in the fourth section of this Act provided.'

There is a further proviso to the section which is not relevant at the moment.

G Sec. 4 of the Act which is referred to in sec. 3 has been repealed and the position in regard to this is now governed by secs. 168 and 170 of Act 56 of 1955. The accused's attention was drawn to the provisions of these sections, that is, secs. 168 and 170, and he, in fact, served on the Attorney-General a letter dated 9th February, 1970 in the following terms:

'The Attorney-General, W. M. van den Berg, Cape Town.

H Dear Sir,

Regarding the summons for me to appear in the Supreme Court, Cape Town, on Monday, 16.2.70, I plead not guilty and submit that there is no case for me to answer.

I shall defend myself on the grounds of truth and of the public interest and good. It is common ground and agreed that many copies of documents 'Y' and 'Z' have been widely circulated.

I am confident in the evidence I shall produce that I shall succeed in my plea of not guilty.

Yours faithfully

Jack Revill."

Munnik J

Annexed to this letter was a document which I do not propose to set out here in detail, but which is headed 'Main Heads of Argument' and I think it can fairly be said that the two documents read together amount to a plea of justification, with particulars, although the particulars lack A the clarity normally expected of particulars, thereby rather tending to defeat their object.

When the trial commenced before me the accused pleaded not guilty to both the main and the alternative...