THE
HIGH COURT OF SWAZILAND PROFESSOR DLAMINI
Applicant
And
AFRICAN
ECHO (PTY) LTD
Defendant
Civil
Case No. 777/2004
Coram
S.B. MAPHALALA – J
For
the Applicant
MR. P. SHILUBANE
For
the Defendant
MR. P. DUNSEITH
JUDGEMENT
(06/08/2004)
By
combined summons dated 14th March 2004, Plaintiff issued summons for
defamation against the Defendant which is a newspaper. In the
Particulars of Claim the Plaintiff alleges that on 12th November 2003
at Mbabane within the jurisdiction of this court the Defendant caused
to be printed and published in the "Times of Swaziland" a
caption together with the plaintiff's photograph in which the
following was stated:
"Mbabane
Pudemo's activist Professor Dlamini (v) with lawyer Mandla Mkhwanazi
at the High Court yesterday. Dlamini is currently facing 15 counts
ranging from murder, kidnapping and robbery with five others"
2
On
the 13th November 2003 the Defendant again caused to be printed and
published a similar statement in the "Times of Swaziland" a
copy of the newspaper in which the statement was made annexed as "B".
The
Plaintiff further alleges that the said caption and statements are
false and defamatory of him because at the time he was not facing a
charge of murder or kidnapping, and the caption and statement were
intended and understood by the readers of the newspaper that he was a
murderer and a kidnapper. As a result of the defamation he has been
damaged in his reputation and fair name in the sum of E75, 000-00
made up as follows:
Reputation
- E35,000-00
Fair
name - E40,000-00
Consequently
the Plaintiff claims from the Defendant:
Payment
of the sum of E75, 000-00;
Interest
thereon at the rate of 9% per annum a tempore morae;
Costs
of suit;
Further
or alternative relief.
The
Defendant has filed a plea in which it states, inter alia the
following:
In
paragraph 4 of the plea, Defendant admits that it published a
statement, in which it states that Plaintiff was facing a charge of
murder or kidnapping but avers that the publication was a result of
a bona fide error.
In
paragraph 4.2 of the plea, the Defendant avers that it tendered an
apology to Plaintiff and a correction of the statement.
The
Plaintiff has filed a notice of exception to the Defendant's plea.
This aspect of the matter is the subject of this judgment. The
following grounds are advanced that the Defendant's plea does not
disclose a defence:
3
"The
plaintiff's claim is based on a claim for damages for defamation,
against the Defendant which is the publisher of the "Times of
Swaziland".
Defendant
admits publication but denies that the Plaintiff was defamed
thereby.
Defendant's
plea being a bare denial does not constitute a defence because a
member of the public media cannot rely on absence of animus
iniuriandi in order to escape liability for a defamatory publication
disseminated via the public media in as much as it is trite law
that the media is strictly liable for publication of defamatory
statements.
It
was contended for the Plaintiff that in defamation cases involving
the media a plea of "error" as a justification for
publishing a defamatory statement is not permissible. The case of
Pakendorf En Andere De Flamingh 1982 (3) S.A. 146 (A) was cited in
support of the plaintiff's argument. In this case it was held that
the press, radio and television are strictly liable for publishing
defamatory matter. In that case the facts were as follows: De
Flamingh, a practising Advocate, instituted actions against the
owners and editors of two newspapers for damages for defamation. The
actions arose from reports in the newspapers in which it was
mentioned that a Judge had said in his judgement in a civil case, in
which the Plaintiff had appeared, that the Plaintiff and an attorney
(according to the report in one of the newspapers) had so
"overwhelmed" one V, who did not have legal representation,
in a maintenance court case "that she did not know that she was
not obliged to have an interview with them". In fact the
Advocate referred to by the Judge was not De Flamingh but another
Advocate. De Flamingh alleged that the reports were defamatory in
that they imputed unethical and professional conduct on his part.
Kirk-Cohen
AJ who heard the matter a quo said that the publication of defamatory
matter gives rise to a presumption that the words were published
intentionally and that the publication was unlawful and thus
embracing the English law principle of strict liability.
4
The
matter went on Appeal before the Appellate Division where Rumpff C J
delivered - the unanimous judgment of the Appellate Division, The
learned Chief Justice stated that, after hearing argument in the
case, he was convinced that strict liability of the press, which is a
strand from the English law is woven into our law of defamation,
should be retained. The court held that, on grounds of authority and
the dictates of public policy, the press, radio and television are
strictly liable for the publication of defamatory matter.
Mr.
Dunseith arguing for the Defendant in the present case contended that
the plaintiff's exception is ill-conceived because the doctrine of
strict liability has been soundly rejected. For this proposition the
court's attention was drawn to the case of National Media vs Bogoshi
1998 (4) S.A, 1195 (SCA). The argument here is that the Pakendorf
case (supra) was wrongly decided.
However,
Mr. Shilubane for the Plaintiff retorted that the Bogoshi case
(supra) was decided within the ambit of the recent constitutional
dispensation in South Africa where a Bill of Rights has been
enshrined in the Constitution of that country. Therefore, so the
argument goes, the common law in Swaziland is as enunciated in
Pakendorf (supra).
The
vexed issue for determination in casu therefore is whether the common
law of this country is stepped in the tradition of "strict
liability" as enunciated in the Pakensdorf case or whether the
court is to follow the more flexible approach adopted in the case of
Bogoshi (supra).
Before
attempting to address the question it is imperative that I sketch the
facts in the Bogoshi case. In that case, the Appellants, being the
owner and publisher, editor, distributor and printer respectively of
a newspaper, had been sued by the Respondent for damages arising from
the publication of a series of allegedly defamatory articles
published in the newspaper between 17 November 1991 and 29 May 1994.
The Appellants had applied to amend their plea by the introduction of
three additional defences. In essence, the third of the proposed
additional defences was (a) the Appellants had been unaware of the
falsity of any averment in any of the articles; (b) had not published
recklessly, i.e. not caring whether the contents of the articles had
5
been
true or not; (c) had not been negligent in publishing any of the
articles; (d) by - virtue of the averments and supporting facts in
(a), (b) and (c) publication had therefore objectively been published
without animus iniuriandi. It was submitted, therefore, that the
publication had been lawful. A Provisional Division relied on
Pakerndorf and upheld the Respondent's exception to the proposed
plea, holding that, since the Appellants could escape liability, were
the articles to be found defamatory, only if they could at least
establish that they had published was true, their proposed plea was
bad in law.
Both
in the court a quo and on appeal it was argued for the Appellants
that the Pakerndorf case - The effect of which was that, unlike
ordinary members of the community (and newspaper distributors),
newspaper owners, publishers, editors and printers were liable
without fault and, in particular, were not entitled to rely upon
their lack of knowledge of defamatory material in their publications
or upon an erroneous belief in the lawfulness of the publication of
defamatory material had wrongly been decided and that the proposed
defence was valid under the common law. In the alternative it was
argued that strict liability of members of the press was
unconstitutional because (i) it impinged upon the right to freedom of
speech and of expression, which included freedom of the press and of
the media, conferred by Section 15 (1) of the Constitution of the
Republic of South Africa Act No. 20 of 1993; and (ii) it was not in
accordance with the spirit purported and object of Chapter 3 as
required by Section 35 (3) of the interim constitution.
On
appeal the Supreme Court of Appeal (per Hefer JA, Hoexter JA, Harms
JA, Plewman JA and Farlam AJA) held, inter alia, as follows at pages
1210 to 1211 (paragraph F in fin C): and I quote:
"In
endorsing this view I should add that it makes no difference that
South Africa has only recently acquired the status of a truly
democratic country. Freedom of expression, albeit not entrenched, did
exist in the society that we knew at the time when Pakendorf was
decided (Hix Networking Technologies v System Publishers (Pty) Ltd
and another 1997 () S.A. 391 (A) at 400 D - G) although its full
import, and particularly the role and importance of the press, might
not always have been acknowledged.
6
If
we recognise, as we must, the democratic imperative that the common
good is best served by the free flow of information and the task of
the media in the process, it must be clear that strict liability
cannot be defended and should have been rejected in Pakendorf. Much
has been written about the "chilling" effect of defamation
actions but nothing can be more chilling than the prospect of being
mulcted in damages for even the slightest error. I say this despite
the fact that some eminent writers such as Prof FC Van der Wait (op
cit) and Neething, Potgieter and Visser Law of Delict 2nd ed at 351 -
2 hold a different view. Others like Prof Burchell (op cit at 189),
Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse
Reg 6th ed at 440 and Prof PJ Visser (1982 THRHR 340) have criticised
the decision in Pakendorf. Strict liability has moreover been
rejected by the Supreme Court of the United States of America (Gertz
v Robert Welch Inc (supra at 525), the German Federal Constitutional
Court (12 BverfGe 113), the European Court of Human Rights (Lingens v
Austria (1986) 8 EHRR 407), the Courts in the Netherlands (as appears
from Asser's work to which I will refer later), the English Court of
Appeal, the High Court of Australia (in decisions to which I will
also refer) and the High Court of New Zealand (Lange v Atkinson and
Australian Consolidated Press Nz Ltd 1997 (2) NZLR 22 - the decision
was confirmed on appeal in a judgment not available to me but part of
which is quoted in the unreported judgment of the Court of Appeal
referred to earlier).
In
my judgment the decision in Pakendorf must be overruled. I am, with
respect, convinced that it was clearly wrong. That does not mean that
its conclusion on the facts of the case is assailable. The defamatory
statement was the result of unreasonable conduct in obtaining the
facts by incompetent journalists (at 154H)". (my emphasis).
The
author Jonathan M. Burchell in his textbook titled, Personality
Rights and Freedom of Expression The Modern Action Injuriarum) at
page 223 has this to say on the subject; thus:
"Sixteen
years before Bogoshi was decided in the Supreme Court of Appeal the
terse judgment of Rumpff CJ in Pakendorf v De Flamingh had epitomized
the court's dismissive attitude to free speech in a unanimous
decision imposing strict (or no fault) liability on the mass media, a
judgment which contained not even passing reference to strict
liability's potentially detrimental impact on media freedom.
The
Appellate Division in Neething v Du Preez; Neething v The Weekly
Mail, by imposing an onus on the Defendant of proving a defence
excluding unlawfulness, ensured that it would run the risk of
relinquishing its inherent authority to develop the common law in
accordance with constitutional norms to the Constitutional Court.
Fortunately for the intergrity of the common law, the Supreme Court
of Appeal in Bogoshi has reaffirmed its commitment to
7
freedom
of expression, and in particular media freedom, by holding
unanimously that the approach in Pakendorf was clearly wrong and had
to be overruled".
Further
on at page 224 the learned author continues:
"The
policy decision to impose strict (or no - fault) liability on the
mass media under the common law in Pakendorf paid no attention to the
demands of freedom of expression and is clearly wrong for this
reason".
At
page 225 of the same work the author states the following:
"The
judgment in Bogoshi is based on the common law rather than an
evaluation of the constitutional emphasis on freedom of expression".
The
same author in his work titled The Law of Defamation in South Africa,
1985 commenting on the case of Pakendorf states the following at page
184:
"In
dealing with the argument that strict liability can only be
introduced by statute, Rumpff CJ cited certain South African
authority to substantiate the view that common law precedent exists
for such a principle. No English case authority was cited, but the
Chief Justice stated that the English law favours strict liability of
the press, although he did not acknowledge that the common law
position in England has been alleviated by a statute enacted in 1952
which deals with "unintentional defamation" and which would
cover the press. In passing, the Chief Justice mentioned that a
similar provision might, if necessary, be considered by our
legislature".
It
would appear to me on reading the authorities on this subject that
the case of. Pakendorf (supra) was soundly overruled by Bogoshi as
having been wrongly decided in its application of the common law.
Further the argument by Mr. Shilubane that we should be wary of the
Bogoshi judgment as it was decided within the realm of the South
African Constitution is answered by what Hefer JA at page 1210 F in
fin G stated; and I quote:
"In
endorsing this view I should add that it makes no difference that
South Africa has only recently acquired the status of a truly
democratic country. Freedom of expression, albeit not entrenched, did
exist in the society that we knew at the time when Pakendorf was
decided (Hix Networking Technologies vs System Publishers (Pty) Ltd
and another 1997 (1) S.A,
8
391
(A) at 400D - G) although its full import, and particularly the role
and importance of the press, might not always have been acknowledged.
If
we recognise, as we must, the democratic imperative that the common
good is best served by the free flow of information and the task of
the media in the process, it must be clear that strict liability
cannot be defended and should have been in Pakendorf.
It
would appear to me that the ethos embodied in the Draft Constitution
of this country were a Bill of Rights is to be enshrined demand that
the common good will be best served by the free flow of information
and the task of the media in the process, strict liability therefore
cannot be defended in these circumstances. Strict liability for the
media as established by the judgment in Pakendorf eliminated any role
for fault (including knowledge of unlawfulness) of whatever nature,
in the proceedings against the mass media. Therefore a mistake by the
mass media, or ignorance on their part as regards one of the elements
necessary to establish a prima facie case of defamation, that is the
publication of defamatory matter referring to the Plaintiff, would
not excuse, even if it were bona fide, genuine and reasonable.
I
am further of the considered view that the Bogoshi judgment reflects
the position of our common law in this regard.
In
the result, I rule that the Defendant's plea discloses a defence,
namely denial of animus inuriandi and unlawfulness, and the exception
is dismissed and costs to be costs in the cause.
S.B.MAPHALALA
JUDGE