Smith, NO and Lardner-Burke, NO v Wonesayi

• Jurisdiction: South Africa
• Judgment Date: 21 April 1972
• Citation: 1972 (3) SA 289 (RA)

Smith, NO and Lardner-Burke, NO v Wonesayi
1972 (3) SA 289 (RA)

1972 (3) SA p289

Citation	1972 (3) SA 289 (RA)
Court	Rhodesia, Appellate Division
Judge	Beadle CJ, Macdonald JP and Lewis AJA
Heard	February 1, 1972
Judgment	April 21, 1972

Flynote : Sleutelwoorde

D Land — Land Apportionment Act, Chap. 257 (R) — Proc. 4 of 1969 issued under sec. 86 (1) — Words 'living with' — Meaning of — Delict — Damages for an unlawful act claimed under the actio injuriandum — Defendant pleading bona fide belief that law entitled E him to do what he did — Invalidity of such plea — Exception rightly upheld — Defamation — Animus injuriandi — Presumption of — Rebuttal of — What defendant must prove.

Headnote : Kopnota

In Proclamation 4 of 1969, issued under section 86 (1) of the Land Apportionment Act, Chapter 257 (R), which provides that certain squatters (named therein) 'together with every person who is a member of the families of or lives with the said squatters... shall permanently F depart with all their property' from the Gaeresi Ranch, the widest possible meaning consistent with the purpose of the Act must be given to the words 'living with'. The words quite obviously cover squatters who are not living in the same house or household as the named squatter. They are not void for vagueness, as every squatter to whom they applied should be able to understand with reasonable certainty whether, in accordance with his tribal customs, he can fairly be regarded as living G together with a named squatter in the same kraal, which kraal by the customs of the tribe is regarded as a tribal or family unit.

In an action under the actio injuriarum for damages resulting from an unlawful act, the defendant is not relieved of liability for the resultant damage because, acting under a mistaken view of the law, he bona fide believes the law entitled him to do what he did: if the law definitely prohibits what the defendant did, no bona fide belief by him H that the law sanctioned what he did can alter the situation.

As to the meaning of animus injuriandi in Roman-Dutch law, there is, in principle, little distinction between real and verbal injuries. In a defamation case, the defendant is presumed to have had the animus injuriandi and he can only discharge the onus of rebutting this presumption by showing objectively that the circumstances under which the words were uttered were approved by law. This principle applies to all claims for damages under the actio injuriarum.

The plaintiff (respondent) had sued the defendants (appellants), both Ministers of State, inter alios, for damages, being the value of certain huts removed and destroyed by the defendants. The defendants had pleaded as a main

1972 (3) SA p290

defence that they were entitled to do so by virtue of Proclamation 4 of 1969; alternatively, even if they were wrong in this and the Proclamation did not permit them to do so, the officials who had performed these acts had performed them bona fide in the course of their duty, believing that they were lawfully authorised under the Land Apportionment Act, Chapter 257 (R), to do what they had done and they A denied that their 'officers had any animus injuriandi towards the plaintiff'. The plaintiff excepted to these defences. The exception to the main defence was dismissed but that to the alternative defence was upheld. In an appeal and a cross-appeal,

Held, as to the cross-appeal, as the facts given in the defendants' particulars might well be capable of being sufficiently elaborated by evidence to show that, as a matter of fact, the plaintiff was 'living with' T in the sense in which those words were used in the Proclamation, B that the exception to the main defence had been rightly dismissed.

Held, as to the appeal, that what the officials did if not sanctioned by the Proclamation was prohibited by law and this being so the bona fide belief by the defendants that the Proclamation did sanction their actions was irrelevant. Accordingly the exception had rightly been upheld.

The decision in the General Division in Wonesayi v Smith, N.O. and C Lardner-Burke, N.O., confirmed.

Case Information

Appeal from a decision in the General Division (GOLDIN, J.). The facts appear from the judgment of BEADLE, C.J.

H. G. Squires, for appellants: I. (a) The issues in the Court below as D to the validity of the defence raised by para. 4 (d) of the plea, were whether the existence of a bona fide and honest belief in the lawfulness of what is done is relevant to the existence of animus iniuriandi in the actio iniuriarum, and/or whether a bona fide and reasonable belief by defendants' officers that they were lawfully authorised to remove plaintiff's belongings and subsequently demolish his huts, could be a E defence to a claim based on the actio iniuriarum for impairment of dignitas. The Court a quo misdirected itself as to the true meaning of animus iniuriandi in the actio iniuriarum as the basis of the present claim, and did not take into account the element of conscious wrongdoing which is an essential part of dolus in our law. Further, the authorities F relied on by the Court a quo do not provide support for the conclusion reached by it, and the Court erred in not taking into account and giving effect to the true Roman-Dutch law approach to the question of animus iniuriandi and its rebuttal in the actio iniuriarum but showing an absence of conscious wrongdoing. (a) The Court a quo correctly held that G the animus iniuriandi is an essential element of liability under the actio injuriarum. (b ) It went on to hold that the meaning and concept of animus iniuriandi did not connote any form of dolus, and that whether or not the intent is wrongful or unlawful is irrelevant to the question of whether the intent to injure, animus iniuriandi, has been proved or disproved. (c) The Court's conclusion is not in accordance with H Roman-Dutch law, which does recognise that a necessary feature of injuria under the actio iniuriarum is the existence of dolus or intent. (d) (i) In Roman law, dolus or wrongful intent, was basic to animus iniuriandi. Indeed animus iniuriandi was regarded simply as a species of dolus, and the term was used to describe the intention in committing an iniuria. If a person committed a wrong belonging to that class of wrongs called iniuriae with a consciously wrongful intent, the dolus of the wrongdoer was called animus iniuriandi. If he committed a theft it was called animus furandi, and so on. (ii) Underlying the concept

1972 (3) SA p291

of animus iniuriandi is the principle stated by Ulpian in the Digest 47.10.3.12, injuriam nemo facit nisi qui scit se injuriam facere. (e) (i) In the Roman-Dutch law of Holland this requirement was preserved. A Voet, Comm. ad. Pand., 47.10.20, (Gane's translation); (ii) Mattheus, De Criminibus, 7.4.7. (f) (i) In the modern Roman-Dutch law this mental element is just as necessary a requirement as it was, in actions under the actio iniuriarum. See Whittaker v Roos and Bateman, 1912 AD at p. 124; Moaki v Reckitt and Colman (Africa) Ltd. and Another, 1968 (3) SA at p. 104B. If dolus in this broad sense is a necessary ingredient B of liability under the actio iniuriarum, then there must be not only an intention to produce the consequences of the act, but also an accompanying wrongful state of mind. See 48 S.A.L.J., pp. 168 - 9. On the basis that: (i) dolus requires a conscious knowledge of wrongdoing, and (ii) is an essential requirement of the animus iniurandi, and (iii) the animus iniurandi is essential to liability under the actio iniuriarum, C if a defendant can establish an absence of such conscious knowledge of wrongdoing, he can defeat a claim brought on this basis. Another way of achieving this would be by establishing, from all the circumstances, a belief - albeit objectively mistaken - that the act in question was permitted by law. See Maisel v van Naeren, 1960 (4) SA at pp. 850, D 851; Jordaan v van Biljon, 1962 (1) SA at p. 300H; Craig v Voortrekker Pers Bpk., 1963 (1) SA at p. 156; Vengtas v Nydoo and Others, 1963 (4) SA at p. 382B - C; Nydoo en Andere v Vengtas, 1965 (1) SA at pp. 14G - H to 15A; Schoeman v Fourie, 1941 AD 175. These decisions only emphasise the existence in and requirement of our law, of E a guilty intent in actions under the actio iniuriarum, and the possibility of being able to rebut that intent, even if prima facie established - as it sometimes is, e.g., in defamation by the publication of words that are defamatory per se - by showing they were published or the act was done with another intention than to injure the F dignitas of the plaintiff. This is the correct interpretation of our law in this respect since it takes into proper account the element of dolus. The Court a quo recognised this but relied on other authorities for coming to the conclusion that a defence of an object other than to injure the plaintiff could not succeed. The authorities relied on by the Court a quo do not provide support for its conclusions, viz., Whittaker G v. Roos and Bateman, 1912 AD 92; Tsose v Minister of Justice and Others, 1951 (3) SA at p. 25; Shahmahommed v Hendriks and Others, 1920 AD 151; Bhika v Minister of Justice and Another, 1965 (4) SA 399; Norton and Others v Ginsberg, 1953 (4) SA at pp. 550 - 551.

H II. The defence raised in para. 3 (c) of the plea as read with the further particulars was whether the words 'lives with' could cover plaintiff as a person whose removal, on the facts pleaded, was authorised by Proc. 4 of 1969. The Court a quo was correct in its conclusion on this aspect of the case. On the language used in Proc. 4 of 1969, Government Notice 143 of 1969 has a wider spread than mere family of a named squatter. (i) The ordinary meaning of the words is not so limited: 'Lives' - the normal meaning is 'to abide or reside with some degree

...