Tweedie v Eksteen

• Jurisdiction: South Africa
• Citation: 1942 AD 221

Tweedie Appellant v Eksteen Respondent
1942 AD 221

1942 AD p221

Citation	1942 AD 221
Court	Appellate Division
Judge	De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
Heard	March 25, 1942; March 26, 1942
Judgment	May 5, 1942

Flynote : Sleutelwoorde

Defamation — Allegation that witness had misled the Court — Context showing that statement not defamatory.

Headnote : Kopnota

In an action for defamation arising out of a statement made by the defendant to the effect that a magistrate had been misled by certain statements made under oath by the plaintiff in the course of a criminal trial, it appeared that the statement complained of had been made in the course of a verbal report by the defendant, who was presiding at a meeting of a Divisional Council, to such Council upon the criminal trial in which the Secretary of the Council and one of its members had been convicted of an offence. A trial Judge having given judgment for the defendant on the ground that in the context in which the words were used they were not defamatory.

Held, dismissing an appeal (WATERMEYER, J.A., and TINDALL, J.A., dissenting), that in its context the statement complained of meant that plaintiff was blameworthy in that not having taken the precaution of reading the minutes of the Council before he gave evidence, he gave incorrect evidence and thus misled the magistrate and that though on the facts the charge was unjustified, it was not defamatory.

The decision of the Griqualand West Local Division in Tweedie v Eksteen (1941, G.W.L. 28), confirmed.

Case Information

Appeal from a decision of the Griqualand West Local Division (BOK, J.).

The facts appear from the judgment of CENTLIVRES, J.A.

1942 AD p222

H. J. B. Vieyra, for the appellant: This Court is in the same position as the Court below to judge the facts. See I. Pieters & Co v Salomon (1911 AD 121 at p. 135); William Palmer & Son v Wakefield (1912 AD 299 at p. 308); Rex v Dube (1929 AD 46 at p. 49); Rex v Tshelembe (1933 AD 323 at p. 325).

The test as to whether the innuendo claimed is applicable is that which would be placed on the words by a reasonable, not a hypercritical, man. The criterion is arbitrium boni. See Johnson v Rand Daily Mails (1928 AD 190 at p. 204) and Byrne v Deane (1937, 1 K.B. 818 at p. 833).

The onus is on the defendant to prove a duty or interest to make statements to persons who have a duty or interest to hear them before privilege can be established. Sec. Adam v Ward (1917, A.C. 309 at p. 334); de Waal v Ziervogel (1938 AD 112 at pp. 120-1).

A mere belief in the existence of a duty is insufficient. See Gatley, Libel and Slander (3rd ed., pp. 269-70, specially note 28 on p. 270); de Waal v Ziervogel (supra at p. 123); Spencer Bower, Actionable Defamation (2nd ed., p. 111, first proviso).

Defendant's comment on Tweedie's evidence in the criminal case was entirely irrelevant to any duty he may have had or to the criminal's functions. See Gatley (ibid., pp. 307-8); Adam v Ward (supra at pp. 320-1 327) adopted in King v Neale (1936, E.D.L. 236 at p. 251) and de Waal v Ziervogel (supra at P. 122 at foot).

Even if it was within the functions of the council, and the question was regularly before the meeting, to discuss the correctness of the magistrate's decision, defendant had still to satisfy the Court that there were reasonable grounds for using the words (as complained of or as found by the Court below) in the sense that any reasonable person with knowledge of all the facts would have conceived it his duty to use them. See King v Neale (supra at pp. 240, 248-9); Stuart v Bell (1891, 2 Q.B. 341); Hofmeyer v Stigant (1879, Buch. 95) and Maberley v Cunningham (1910, C. P.D. 141).

C. P. Brink, K.C. (with him Gladys Steyn), for respondent: As to when an Appeal Court will interfere with a Judge's finding of fact, see Bitcon v Rosenberg (1936 AD 380 at p. 395); van der Schijf v Loots (1938 AD 137 at pp. 141-3, 145).

No reasonable person present could have understood the words as having the meaning placed on them by the innuendo. See Gluckmann v Holford (1940 TPD 336 at p. 338); Johnson v.

1942 AD p223

Rand Daily Mails (supra); Welgemoed v Cohen (1937 TPD 134); Haupt v Elster (3 M. 39 at p. 42); Young v Kemsley and Others (1940 AD 258 at p. 282); Sutter v Brown (1926 AD 155 at pp. 163, 168, 169); Kleinhans v Cronjé (1879, K. 129); Voet (47.10.20); de Villiers, Injuries (p. 189); Gatley, Libel and Slander (p. 595, chapt. 27).

If the words are defamatory, they were spoken on a privileged occasion with the honest belief that they were true, the Council having a corresponding interest and duty in the matter, as the prosecution was instituted as a result of a resolution of this council. See Young v Kemsley and Others (supra at pp. 275 f.); de Waal v Ziervogel (supra at pp. 120 f.); Celliers v Fagan (24 S.C. 372 at p. 389); McLean v Murray (1923 AD 406).

Interest and duty should not be narrowly construed. See Rex v Rule (1937, 2 A.E.R. 772 at p. 777).

Vieyra, in reply: As to the innuendo, see McKerron, Delicts (2nd ed., p. 172); Helps v Natal Witness Ltd and Another (1937 AD 45); Gatley (ibid., p. 614, Ch. 28).

If plaintiff failed to prove the innuendo, the words were prima facie defamatory in their ordinary meaning and were not prima facie capable of an innocent meaning.

Cur. adv. vult.

Postea (May 5th).

Judgment

Centlivres, J.A.:

The appellant sued the respondent in the Griqualand West Local Division for the sum of £1,000 damages said to have been sustained by him by reason of certain defamatory statements alleged to have been made by the defendant at a meeting in committee of the Divisional Council of Herbert in May, 1940.

Before referring to the pleadings it will be convenient to set out certain undisputed facts. Appellant was a member of the Council until November, 1939, and the respondent, who was the magistrate of the district of Herbert, was Chairman from February, 1937, to June, 1939, and from December, 1939, to June, 1940 de Wet, Kuhn, Engelbrecht, Uys, Cilliers and Scholtz were also members of the Council. From time to time the Council discussed certain alleged irregularities which were brought to its notice. On April 13th, 1939, the Council appointed a commission to

1942 AD p224

Centlivres, J.A.

enquire, inter alia, "omtrent pype wat ingesit is op privaat paaie". On May 11th, 1939, the Commission reported that it "keur ten strengste af die gebruik van Raadspype oor die waterkanaal om toegang te gee na privaat lande". It appeared that it was alleged that these pipes had been given to Councillor Cilliers by Smit, the Secretary. At a meeting of the Council on June 8th, 1939, at which the appellant was present, Councillor de Wet moved "dat die stukkende pype wat die Sekretaris aan lid Cilliers gegee het wat op Atherton (a farm belonging to Cilliers) gebruik is uitgehaal word onder toesig van die poliesie". To this an amendment was moved and carried by the casting vote of the appellant as Chairman "dat die Sekretaris die pype moet terugbring. Die Sekretaris die koste van die terugbring van die pype te dra." At a meeting of the Council on July 13th, 1939, the Secretary reported that he caused the broken pipes (stukkende pype) to be brought back "behalwe die klein pypies daar hulle so gebars is dat hul verder breek wanneer dit uitgehaal moet word uit die modder, waarop lid Eksteen wie teenwoordig was met die uithaal gesê het dat by dit maar moet laat staan." The Council approved of the Secretary's action.

In the meantime another alleged irregularity was discussed by the Council. At a meeting of the Council on June 8th, 1939, the appellant asked a question about the travelling allowance which had been paid to Councillor Cilliers, who was the owner of two farms - Duikersvlei, which was sixteen miles from Douglas where the Council met, and Atherton, which was three miles from that town. Sec. 81 (c) of Ordinance 13 of 1917 (Cape) provides that a councillor is entitled to a travelling allowance of 6d. per mile for every mile actually and necessarily covered in journeys to and from a meeting. Apparently Councillor Cilliers spent most of his time at Atherton but from 1935, when he acquired Atherton, until February, 1939, he continued to claim travelling allowances from Duikersvlei instead of from Atherton. At the meeting of the Council on June 8th, 1939, appellant proposed that "lid Cilliers krimineel vervolg moet word omdat hy geld van die Raad ontvang het onder valse voorwendsels." There was no seconder to this proposal and the Council decided that the Chairman approach Councillor Cilliers "omtrent sekere beweerde onreelmagtighede betreffende sy reistoelae". At a meeting of the Council on July 13th, 1939, respondent, who was the Chairman at the previous

1942 AD p225

Centlivres, J.A.

meeting, made a report about his interview with Councillor Cilliers and announced that the Audit Department were investigating the matter.

At a meeting of the Council on September 14th, 1939, both the alleged irregularities again came up for discussion. After a confidential letter from the Provincial Secretary to de Wet, as Chairman, was read, appellant moved that "die beweerde onreelmatighede aan die Poliesie oorhandig word om te ondersoek". Respondent moved that "die Raad definitiewe bevindings inbring omtrent die onreelmatighede as volg:-

1.

Die Sekretaris het buite sy magte sekere stukkende pype aan Mnr. Cilliers gegee om vir sy privaat doeleindes te gebruik. Die Sekretaris het op las van die Raad die stukkende pype teruggebring en die Raad is nie geneë om verder met die saak te gaan nie.

2.

Alhoewel die Raad voel dat Mnr. Cilliers meer reistoelae ontvang as wat by op geregtig is, meen die Raad dat sy verduideliking hieromtrent nie onbillik is nie en die Raad sal graag die sienswyse van die Provinsiale Ouditeur op die punt verneem."

The voting on...