Law of Delict - notes/guide

Dear students,

The strike has taken  a toll on all of us and we are not sure for how long it will continue. Hence I have decided to give you this guide with relevant case law that support the general principles (in respect of defamation and the defences). I hope this will assist you.

However, this does not exonerate you from using your textbook to study the module.

Rergards

MC

_____________________

UNIVERSITY OF ZULULAND

Faculty of Commerce, Administration & Law

Department of Public Law

Main Campus

KwaDlangezwa

LAW OF DELICT B – LPLD 301

Course Codes: LPLD  302

Year:                   2016

Lecturer:             MC BUTHELEZI

FACULTY OF COMMERCE ADMINISTRATION AND LAW

Department:                            Public Law

STUDY/LEARNING GUIDE (LG)

YEAR: 2016

Module / Course Titles:            Law of Delict B

Module Code:                         LPLD 302

Module Credits Value:             16 Credits

National Qualifications Framework (NQF) Level: 6

Date of Approval of Module / Course by Faculty:

Name of Lecturer: MC Buthelezi

 

Prescribed Text book:      Law of Delict in South Africa by Max Loubser,

Rob Midgley et al.  Oxford University Press

9. TEXT BOOKS AND RESOURCES

9.1 Prescribed Textbook

Loubser, M and Midgley, R (eds) The Law of Delict in South Africa 2^nd ed (2012)

9.2 RECOMMENDED TEXTs

Neethling et al Law of Delict 6^TH ed (2010)

Van der Walt and Midgley Principles of Delict 3^RD ed (2005).

Neethling et al Neethling’s Law of Personality 2^ND ed (2005        

                                               

Students need not take copious notes at the lectures as all the relevant information is found in the text.  Reference to the relevant sections and rules will be made during the course of the lectures and in this document.

The following will be lectured on in this term:

ACTIO INIURIARUM

1.    INTRODUCTION

2.    Infringement of bodily integrity

a.   Infringement’s of one’s corpus

3.    Infringements of Dignity, Privacy and Identity

    i.    Introduction

   ii.    Insult

  iii.    Privacy

 iv.    Identity

4.    Infringements of reputation

Introduction

Who can sue for defamation?

4.1     Elements for defamation

·         Publication

·         Defamatory Matter

·         Reference to Plaintiff

The Presumptions

Wrongfulness

Animus Iniuriandi

4.2     Defences associated with Infringements of personality interests

General principles

·         Truth for public benefit

·         Fair Comment

·         Privileged Association

·         Defence of Reasonable Publication

5.    SPECIAL FORMS OF LIABILLITY

5.1 Strict Liability

Introduction

Why Strict liability?

a.   Liability for harm caused by animals

·         The actio de pastu for harm caused by grazing animals

·         The actio de effuses vel deiectis and the actio positis vel suspensis

·         Statutory instances of strict liability

b.   Vicarious Liability

Introduction

·         General rule and Justification for Vicarious Liability

·         Who qualifies as an employee?

·         An employment or akin-to-employment relationship must exist

·         employee of two employers

·         Independent contractors

·         The delict must be committed by the employee while acting within the course and scope of employment.

SECTION B:  ACTIO INIURIARUM

INJURIES TO REPUTATION

INTRODUCTION

1.    The Constitutional Right to Freedom of Expression / Communication

• Introduction
• Section 16(1)(a):  Right to freedom of expression
• The Scope of the Right to freedom of expression (which includes freedom of the Press)
• The Scope of the Right to freedom of expression re:  The press
• Is the institutional independence of the press guaranteed by S16?

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

The Citizen 1978 (Pty) ltd v McBride (CCT 23/10 [2011] ZACC 11 (CC)

Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) (100/06) [2007] 3 All SA 318 (SCA)

eTV (Pty) Ltd and Others v Judicial Service Commission and Others  2010 (1) SA 537 (GSJ)

______________

   Khumalo v Holomisa 2002 (5) SA 401 (CC)

Tshabalala-Msimang and Medi-Clinic Ltd v Makhanya 2008 3 BCLR 338 (W)

Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA)

The Citizen 1978 (Pty) ltd v McBride 2010 (4) SA 148 (SCA)

2.    Constitutional Limitations to Freedom of Expression/  Communication

2.1     The general limitation clause

• The meaning of the term “by law of general application” (Section 36 (1)) – the limitation clause.

Cf Section 205 of Criminal Procedure Act 51 of 1977

2.2     Internal (Constitutional) Limitations

• S 16(2)(a) – propaganda for war
• S 16(2)(b) – incitement of imminent violence
• S 16 (2)(c ) – hate speech

3.    The Law of Defamation

3.1          Introduction

• The Right to Reputation
• The Definition of defamation

3.2          THE ELEMENTS OF LIABILITY FOR DEFAMATION

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

3.2.1     Publication

Moolman v Slovo 1964 (1) SA 760 (W)

Vermaak v Van Der Merwe 1981 (3) SA 78 (N)

           

3.2.2     Defamatory matter

Proof of Defamatory Matter:

     

• A two stage inquiry can be used:

o   What is the meaning of the words or conduct?

o   Is the meaning defamatory?

A)      The meaning of words or conduct

o   Words or conduct may have a primary or ordinary (per se) meaning or a secondary meaning or innuendo.

i).       Ordinary meaning

o   If words are alleged to be a prima facie defamatory the court must determine the ordinary meaning of the words.

o   The ordinary meaning of the words is not necessarily the dictionary meaning.

Cf: Ciliza v Minister of Police 1976 (4) SA 243 (N) 247

o   The ordinary meaning is the meaning an ordinary or reasonable reader or listener would give to the words.

o   The court must take into account not only what the words expressly say but also what they imply.

Argus Printing & Publishing Company v Esselen’s Estate 1994 (2) SA 1 (A) 20

                        Sindani v van der Merwe 2000 (3) SA 494 (W) 497

o   Ordinary readers are not perfect – they may skim articles or jump to conclusions.

Demmers v Wyllie 1980 (1) SA 835 (A) 848

o   Reasonable listeners (eg on the radio or tv) should be treated differently from reasonable readers because the printed or written words can be re-read again and again.

SAUK v O’Malley 1977 (3) SA 394 (A) 408

o   The ordinary meaning of words must be decided by the court –unless there is an innuendo – without evidence from listeners or readers.

Sindani v van der Merwe 2000 (3) SA 494 (W) 497

o   However, evidence of facts relevant to the trial is admissible (eg how a reasonable reader would probably understand the words).

Mangope v Asmal 1997 (4) SA 286 (T) 286

o   The fact that South Africa has 11 official languages means that judges will sometimes need evidence to explain what defamatory words in different languages mean.

o   Where words or conduct are capable of more than one meaning the test is:  On a balance of probabilities would the ordinary reader give the words a defamatory meaning?

o   The plaintiff will succeed even if there could be a non-defamatory meaning.

Demmers v Wylie supra 842-3

ii).        Secondary meaning of words (innuendo) 

• A secondary meaning or innuendo is an unusual meaning which can only be given to the words by a hearer or reader who has knowledge or special circumstances.

National Union of Distributive Workers v Cleghorn & Harris 1946 AD 984, 997

• Where words are prima facie innocent the plaintiff must allege and prove the defamatory innuendo.

Cf Jackson v NICRO 1976 (3) SA 1 (A) 4-5

• The plaintiff must expressly set out the innuendo attached to the words and must prove that it was understood in that way.

Sutter v Brown 1926 AD 155, 164

• Where a plaintiff alleges a particular innuendo he or she is bound by it and cannot lead evidence to establish a different one.

           

National Union of Distributive Workers v Cleghorn and Harris supra 987

• Where words are prima facie defamatory but the plaintiff wishes to prove an additional sting to them the latter must be alleged and proved (quasi-innuendo).

                                    Sutter v Brown supra 162-3

• If the plaintiff alleges an innuendo to point to the sting of words that are prima facie defamatory he or she cannot fall back on their primary meaning if the innuendo is not proved – unless it is pleaded in the alternative.

B. Are the Words or Conduct Defamatory?

·         The test for determining whether words or conduct are defamatory is whether the imputation lowers the plaintiff in the estimation of right–thinking persons, generally.

                        Botha v Marais 1974 (1) SA 44 (A) 49

• The test has been criticized as inappropriate for South Africa’s multi- cultural society.

                        Burchell (1974) 91 SALJ 178

• It has been suggested that a better test is to consider the view of a substantial and respectable sections of South African society provided their views are not contrary to good morals (applied in some cases).

                        Omarjee v Post Newspapers LTD 1962 (2) PH J 33 (D)

                   (Muslim girls criticized for wearing mini-skirts)

            Mahomed v Jassiem 1996 (1) SA 693 (A)

(Right thinking members of society would not regard calling a Muslim person an Ahmadi sympatiser as defamatory, but Muslims would).

• The expression lowering a person in the estimation of others usually means that the statement either:

o   Reflects upon the plaintiff’s moral character; or

o   Subjects the plaintiff to hatred, contempt or ridicule.

 i).      Reflections on Moral Character

• Imputing criminal conduct

SAUK v O’Malley 1977 (3) SA 394 (A) (Attending an illegal meeting)

• Imputing dishonest conduct

Penn v Fiddel 1954 (4) SA 498 (C) (saying: you’re the biggest liar I know!)

           

• Immorality

Tothill v Foster 1925 TPD 857 (saying a person suffers from venereal disease).

• Police Informer?

Prinsloo v SAAN 1959 (2) SA 693 (W) (Student accused of being a blond spy)

• Morality changes with the times

Sokhulu  v New Africa Publications LTD 2001 (4) SA 1357 (W) 1359 (Not defamatory or an impairment of dignity to say that a woman had a child out of wedlock and lived with the child’s father for two years without marrying him)     

         

ii).      Arousing hatred, contempt or ridicule:

• Hatred

                       

Pont v Geyser 1968 (2) SA 545 (A) 558 (calling a person heretic or traitor)

          NB: Hate speech is not protected in the Constitution.

• Contempt

Gayre v SAAN 1963 (3) SA 376 (T) (calling a scientist a fascist geneticist)

• Ridicule

Rutland v Jordan 1953 (3) SA 806 (C) 814 (calling a person insane)

Muller v SAAN 1972 (2) SA 589 (C) 591 (minister using un-ministerial language)

Mangope v Asmal 1997 (4) SA 277 (T) (calling a politician a baboon)

iii).     Words or conduct damaging trade, business or official position:     

• Defamatory words that damage a person’s trade, business or official position are also actionable.

Examples of defamatory matter:

• Derogatory remarks regarding a person’s physical /mental disposition.

           

Pitout v Rosenstein 1930 OPD 112

• Allegations placing a person’s moral character or lifestyle in a bad light.

           

Sutter V Brown 1926 AD 155

Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W)

• Contemptuous remarks regarding a person’s race / racial views

Botha v Mthiyane 2002 (1) SA 289 (W)

Sindani v VD Merwe 2000 (3) SA 494 (W)

Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 (2) SA (1)(A)

• Words/behavour reflecting negatively on a person’s character and public life as a politician.

      Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA)

• statements casting suspicion on a person’s vocational or professional capabilities or competence

      Johnson v Beckett 1992 (1) SA 762 (A)

      Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 (5) SA 39 (W)

o   Business person

                        Borkum v Cline 1959 (2) SA 670 (N) 674

o   Attorney-general or director of public prosecutions

                        SAAN Ltd & another v Yutar 1969 (2) SA 442 (A) 458

o   Clergyman

                        Buthelezi v Poorter 1975 (4) SA 608 (W) 614

o   Dishonouring a cheque

NB. It has been held not to be defamatory to say that a person:

• Is a member of a particular political party religious group or nationality?

            SAAN v Schoeman 1962 (2) SA 613 (A) 617

• Lives in a slum or has not been properly educated;

            Jonker v Davis 1953 (2) SA 726 (GW) 731

• Simply because a person has been shunned or avoided does not mean that the statement is defamatory.

            SAAN v Schoeman supra 616-7

• Where the defamatory statement forms part of an article or book the whole article or book must be examined.

            Chesteron v Gill 1970 (2) SA 242 (T) 246

• Recently, to say that a person committed adultery

J v J and another (4918/2012) [2016] ZAKZDHC 33 (22 July 2016)

________

·         Where the statement is part of a series of articles each individual article must be considered.

            Geyser v Pont 1968 (4) SA 67 (W) 69

• A newspaper poster is read separately from the newspaper it advertises.

SAAN v Yutar 1969 (2) SA 442 (A) 453 (poster reading how Dr. Yutar misled the court)

• Evidence in mitigation may be led to show that plaintiff is of general bad character or reputation.

            Sutter v Brown supra 172

• Mere meaningless abuse is not defamatory, but may be an iniuria

Wood NO v Branson 1952 (3) SA 369 (T) 371

(Court messenger calling a ‘woman cheap South Hills cows’)

3.2.3     Reference to the plaintiff

• The plaintiff must prove that the defamatory words or conduct referred to him or her.

            SAAN v Estate Pelser 1975 (4) SA 797 (A) 810

• The test is whether the ordinary reasonable reader would have understood the words complained of as referring to the plaintiff.

           

Williams v Van Der Merwe 1994 (2) SA 60 (E) 63

• Where the plaintiff is not referred to by name he or she must allege and prove the facts which show reference to him or her (like innuendo).

           

• There is no group or class defamation in South African Law – individual plaintiffs must emerge and show reference to themselves e.g.

SA Associated Newspapers LTD v Estate Pelser 1975 (4) SA 797 (A) 810

o   Board of Directors

                        Bane v Colvin 1959 (1) SA 863 (C)

o   A class of business people

Neumann CC v Beauty without Cruelty International 1986 (4) SA 675 (C) (Seller of Furs)

• Dead people cannot be defamed.

            Spendiff v East London Daily Despatch 1929 EDL 113, 131

3.3          Causation

• Causation is not often raised in defamation actions because once the action is proved damage to reputation is presumed.

• It could be argued in mitigation of damages, however, that there was no loss caused to reputation because:

o   The plaintiff had a very low reputation anyway.

Cf Viviers v Kilian 1927 AD 449, 456, 459

o   The plaintiff had a very high reputation so nobody believed the statement.

Cf Dikoko v Mokhatla 2006 (6) SA 235 (CC); par 78

• A poor reputation may also be a mitigating factor.

3.4          PRESUMED (OTHER) ELEMENTS FOR LIABILITY

3.4.1    Fault

A.      Intention or animus iniuriandi

• When a defamatory statement is made it is presumed that the person publishing it had animus injuriandi.

Jackson v NICRO 1976 (3) SA (A) 12

• Animus injuriandi generally means the subjective intention to injure the reputation of the plaintiff with knowledge of the unlawfulness of the act.

SAUK v O’Malley 1977 (3) SA 394 (A) 407

• Intention may take the same form as in the criminal law, viz:

• Dolus directus:  The defendant’s aim and objective is to defame the plaintiff.

• Dolus indirectus:  The defendant’s aim and objective is not to defame the plaintiff, but he or she foresees the possibility of defaming the plaintiff as substantially certain.

• Dolus eventualis:  The defendant subjectively foresees the possibility of defaming the plaintiff but still goes ahead and publishes the defamatory matter.

• Knowledge of the unlawfulness of the act:  The defendant knew that his or her act was wrongful.

Maisel v Van Nairen 1960 (4) SA 836 (C)

(Defamatory letter sent to the chairperson of the Rent Board by mistake).

• Once a defamatory statement is published animus injuriandi is presumed.

Neethling v Preez:  Neethling v The Weekly Mail 1994 (1) SA 708 (A) 767-9

(Disclosures concerning persons to kill activists)

• However, animus injuriandi should be alleged in the pleadings.

• Moaki v Reckitt & Colman (Africa) Ltd  1968 (3) SA 98 (A) 105

• Once animus injuriandi is alleged the burden of rebutting the presumption is placed on the defendant who can lead evidence to show absence of:

• Subjective intention
• Consciousness of wrongfulness; or
• Both

SAUK v O’Malley 1977 (3) SA 394 (A) 403, 409

• Burchell points out that the onus on the defendant is only to adduce evidence rather than to prove on a balance of probabilities that there is a defence.

Burchell 182

• Malice must be distinguished from animus injuriandi.

SAUK v O’Malley 1977 (3) SA 394 (A) 405

• Motive or malice is the reason why somebody does something.

A motive is the actuating impulse preceding intentions.

Gluckman v Schneider 1936 AD 151, 159

B.       Unreasonableness or negligence (media) 

• Until 1998 the traditional approach to liability by the mass media was that strict liability was imposed on them.

Pakendorf v De Flamingh 1982 (3) SA 146 (A)

• Previous cases were decided before there was a Bill of Rights and at a time when the common law was being undermined in terms of freedom of speech.

• In 1998 the Supreme Court of Appeal rejected the concept of strict liability for the media and introduced the criterion of reasonableness as the test for liability.

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

The Bogoshi case held the following:

o   Unlawfulness should be measured by the criterion of reasonableness;

o   The test for reasonableness includes (time-manner; status or public concern; political importance; tone; reliability of source; steps to verify; opportunity for plaintiff to verify or comment;

o   The reasonableness test is wider than negligence

·         Burchell suggests that the judgment should be interpreted as follows:

o   It reaffirms the role of unlawfulness as an element of defamation;

o   It emphasizes fault in the form of negligence for the media; and

o   Reasonable lack of consciousness of wrongfulness should also be a defence.

·         It has now been held that the principle in the Bogoshi case should be extended to all forms of defamation and lack of consciousness of wrongfulness due to negligence should not be a defence.

Marasi v Groenewald 2001 (1) SA 634 (T) 636

3.4.2     Unlawfulness or wrongfulness

• Once a defamatory statement is made it is presumed to be unlawful.

Neethling v du Prez, Neethling v The Weekly Mail 1994 (1) SA 708 (A) 767-9

• Unlawfulness in defamation is the infringement of a person’s right to reputation which cannot be legally justified.

• The criteria for unlawfulness have been described as:

• Reasonableness; 

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

OR

• Legal convictions of the community, including constitutional norms and values

Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) 396-397

• Public policy

SAUK v O’Malley 1977 (3) SA 394 (A) 402-3

• The criteria for unlawfulness are flexible and mean that the law of delict (and defamation) can be changed to meet the changing needs of society.

• Thus freedom of expression in terms of the Constitution operates horizontally and can be accommodated under the concept of unlawfulness.

National Media v Bogoshi 1998 (4) SA 1195 (SCA)

See also Khumalo v Holomisa 2002 (5) SA 401 (CC)

NB:  Hate speech is excluded in terms of s 16(2) of the Constitution.

• Once unlawfulness is presumed the onus shifts to the defendant to prove on a balance of probabilities that he or she has a defence that excludes such unlawfulness.

National Media v Bogoshi supra.

3.5          DEFENCES/ GROUNDS OF JUSTIFICATION

3.5.1  DEFENCES REBUTTING INTENTION (ANIMUS INIURIANDI)

3.5.1.1       Mistake

3.5.1.2       Jest

3.5.1.3       Negligence (non-media defendants)

3.5.2     DEFENCES REBUTTING UNLAWFULNESS

3.5.2.1       Truth for the public benefit

• It is a good defence for a defendant to show that the defamatory statement was true and for the public benefit.

NB:      The onus of proof remains on the defendant – the plaintiff is not required to plead the falsity of the defamatory statements regardless of the circumstances.

            Khumalo v Holomisa 2002 (5) SA 401 (CC)

i). Truth

The statement need not be true in all respects – provided it is substantially true (i.e. material allegations are true).

            Johnson v Rand Daily Mails 1928 AD 190, 204

o   Truth alone is not a defence, but may be used in mitigation of damages.

Geyser v Pont 1968 (4) SA 67 (W) 68

o   It has been suggested that in the area of “free and fair political activity” there must be “some protection for erroneous statement of defamatory fact”.

Holomisa v Argus Newspaper Ltd 1996 (2) SA 588 (W) 616-7

ii). Public benefit 

The publication of the truth must be for the public benefit.

o   “Public benefit” means the same as “public interest” and has been described as: “Material in which the public has an interest” – not “what the public finds interesting”.

National Media Ltd v Bogoshi 1998 (4) SA 1995 (SCA)

o   The court will look at the time manner and place of publication to determine if it is for the public benefit.

Lyon v Steyn 1931 TPD 247, 251

(Reference to incident 30 years after end of Anglo-Boer war)

o   People should be allowed to live down their past.

NB: If it is proved that the defendant was actuated by spit or malice the defence of truth for the public benefit will fail.

Coetzee v Nel 1972 (1) SA 353 (A) 374

3.5.2.2       FAIR COMMENT

• For the defence of fair comment to succeed the defendant must prove:

o   The statement must be a comment (opinion) not a statement of fact.

o   The comment must be “fair” (relevant, honest and free from malice).

o   The facts commented on must be true.

o   The comment must be on a matter of public interest.

Crawford v Albu 1917 AD 102

Marais v Richard 1981 (1) SA 1157 (A)

i) Comment

A comment is an opinion not a statement of fact.

o   The test for a comment is whether a reasonable person would regard the statement as a comment or a statement of fact.

Crawford v Albu supra 127

(“All this strife has been caused by fanatics – no they are not fanatics – they are criminals in the fullest sense of the word”).

ii) Fairness

A comment is fair if it is relevant, honest and free from malice.

Crawford v Albu supra 115

o   The fact that a comment is extravagant, exaggerated or prejudiced does not make it “unfair”.

Johnson v Beckett 1992 (1) SA 762 (A) 780, 783   

NB: If malice is shown the comment will no longer be fair.

Johnson v Beckett supra 780, 783

iii) The facts commented upon must be true

As in the case of truth for public benefit the facts commended upon need not be true in every minute detail.

Buthelezi v Poorter 1974 (2) SA 831 (W) 833

o   There can be no fair comment on facts not known to the defendant at the time of publication.

Davies v Lombard 1966 (1) SA 585 (W) 588

iv) In the public interest

The term “public interest” includes matters involving the administration of justice, public figures, public matters (govt, politics), books, films artwork etc.

• As has been mentioned the defence of fair comment can be defeated by proof of malice.

3.5.2.3       ABSOLUTE PRIVILEGE

• In the interests of democracy certain statements are accorded absolute protection against actions for defamation.

• These include statements:

o   Made during parliamentary proceedings;

Constitution s 58(1) (including parliament committees).

o   Made during provincial parliamentary proceedings.

s 117(1), the Constitution

• Provincial legislatures may grant similar immunity in respect of municipal councils

s161, the Constitution

• The privilege is absolute because it cannot be defeated by proof of malice.

·         In all cases the occasion is privileged.

Dikoko v Mokhatla 2006 (6) SA 235 (CC);

Swartbooi and others v Brink and another 2006 (1) SA 203 CC; 2003 (5) BCLR 502;

Poovalingam v Rajbansi 1992 (1) SA 283 AD  

NB: See also s 116 of the Constitution; s28 of Municipal Structures Act 117 of 1998.

3.5.2.4       QUALIFIED PRIVILEGE

• A defendant will not be liable for a defamatory statement made on a privileged occasion, where:

• The statement is made in discharge of a duty to a person who has a reciprocal interest in receiving it.
• The statement was published during judicial or quasi-judicial proceedings.
• The statement was published in a report of proceedings of courts, parliament or public bodies.
• The statement was relevant to the occasion to which it related.

Van der Berg v Coopers & Lybrandt Trust (Pty) Ltd 2001 (2) SA 242 (SCA) 252-253

                        Cf Dikoko v Mokhatla, supra par 48

A)   Discharge of a duty:

           

• The occasion will give rise to a qualified privileged where the person making the statement is discharging a moral, social or legal duty by communicating it to a person with a legitimate interest or duty to receive it.

De Waal v Ziervogel 1938 AD 112 (complaint to church elders about clergyman)

O v O 1995 (4) SA 482 (W) 492 (disclosure made to priest)

• The test is whether an ordinary, reasonable person, having regard to the relationship of the parties and surrounding circumstances would have made the disclosure.

Borgin v de Villiers 1980 (3) SA 556 (A) 577

B). Judicial and quasi-judicial proceedings:

• Judges and magistrates are presumed to have acted lawfully within the limits of their authority.

May v Udwin 1981 (1) SA 1 (A) 19

• Witnesses, litigants, advocates and attorneys are accorded a qualified privilege as long as the defamatory statement is relevant to the case and is founded on some reasonable cause.

Pogrund v Yutar 1967 (2) SA 564 (A) 570

Joubert v Venter 1985 (1) SA 654 (A) 697

C).          Reports of court proceedings, parliament and public bodies:

• The defence of qualified privilege applies to fair and substantially accurate reports of judicial or parliamentary proceedings.

Benson v Robinson & Co 1967 (1) SA 420 (A) 428

D). Reports by the mass media

It has been suggested that the mass media have a duty to inform the public of newsworthy events, characters and conduct and that the public have a corresponding interest to be so informed.

Cf National Media Ltd v Bogoshi 1998 (4) SA 1195 (4) (A) 1195 1200

• Relevance cannot be precisely defined but means that the statement was related to the occasion and not irrelevant to it.

Cf van der Berg v Coopers & Lybrandt Trust (Pty) Ltd 2001 (2) SA 242 (SCA) 253 para 22 (allegations that advocate had manipulated attorneys to withdraw their statement).

• The courts apply a more generous approach to relevant when a witness gives verbal evidence than if the statement id made in a written deposition where there is time to read and correct the document.

Cf van der Berg v Coopers & Lybrandt Trust (Pty) Ltd supra 254 par 24.

• The defendant must prove on a balance of probability that the defamatory statements were (i) made on a privileged occasion and (ii) that the communication was relevant to the matters under discussion.

Botha v Mthiyane 2002 (1) SA 289 (W) 313

NB: The defence of qualified privilege can be defeated by proof of malice (eg that the defendant did not believe in the truth of the statement). Borgin v De Villiers 1980 (3) SA 556 (A) 578-579

                       

3.5.2.5       REASONABLENESS

• The defendant can show that his or her conduct was reasonable.

         National Media Ltd v Bogoshi 1998 (4) SA 1195 (4) (A)