06 Oct Burchell the Law of Defamation in South Africa
See J. Neethling (loc. cit.), 81–85, 207, 242, 305, 316; J. Neethling/J.M. Potgieter/P.J. Visser (loc. cit., 1), 5, 328. For the distinction between actio iniuriarum and actio legis Aquiliae in the field of defamation, see Gelb v. Hawkins 1959 2 PH J20 (W); Moaki v. Reckitt and Colman (Africa) Ltd 1968 1 SA 702 (W) 704. See, however, Caxton Ltd v. Reeva Forman (Pty) Ltd 1990 3 SA 547 (A) 560-561, the Court of Appeal refraining from ruling on whether a claim for pecuniary damage suffered by a capital company for defamation falls within the scope of the actio iniuriarum or is more likely to be classified as Aquilian (see H.J.O. van Heerden v.
J. Neethling, (loc. cit. footnote 156), 55, 288, 294–295). In Skinner v. Shapiro (1) 1924 WLD 157, 167, the court stated: “The amount of damages is entirely at the discretion of the court. However, this discretion is exercised in accordance with reasonable and not arbitrary principles. One has the right to take into account the character of the defamatory remarks, their lies and the wickedness of the accused; the rank and position of the parties in society, the special relationship between them, the persons to whom the defamatory statements were published, and the place, time and type of publication; the continued dissemination of defamatory remarks; delay, insufficiency or total absence of excuses. The court is also empowered to review the general conduct of the defendant from the time of the defamation; and the events that led to it, up to his conduct in the trial and the manner in which he was defended. See also, for example, Iyman v Natal Witness Printing and Publishing Co (Pty) Ltd 1991 4 SA 677 (N) 686–687; Couldridge v.
Eskom 1994 1 SA 94 (SOK) 105; Smith v Die Republikein (Edms) Bpk 1989 3 SA 872 (SWA) 875–881; see also J. Neethling (a. o.a.: 205-207; P.J. Visser/J.M. Potgieter/L. Steynberg/T.B. Floyd, Visser and Potgieter`s Law of Damages (2nd ed. 2003), 449 et seq.; J. Neethling/J.M.
Potgieter/P.J. Visser (loc. cit. 1), pp. 256-257; J. Neethling in G.E. van Maanen (ed.) (loc. cit. 1), 176–178; J.M. Burchell, Human Rights (loc.
cit.), 435-436. The courts should attach great importance to the protection of personality rights, an approach that should be reflected in the level of solatium. In Ramakulukusha v Commander, Venda National Force 1989 2 SA 813 (VSC) 847, the court stated: “In reviewing the case law on the amount of damages, I noted with some surprise the relatively weak and sometimes almost insignificant sentences awarded in the courts of southern Africa for violations of personal security, dignity, honour, self-respect and reputation. I respectfully believe that the courts are charged with the task, if not the duty, of preserving the freedom, security and dignity of the individual, particularly in group-oriented societies where there appears to be an almost imperceptible but unstoppable decline in individual norms and values. This approach is also supported by the anchoring of human rights in the Bill of Rights (cf. Afrika v Metzler 1997 4 SA 531 (NHC) 539; J. Neethling/J.M. Potgieter/P.J. Visser (loc.
cit.), 23; J.M. Burchell, Human Rights (loc. cit.), 436). See, however, Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 3 SA 579 (A) 590, where the court held that the defamation lawsuit should not be seen as a pathway to wealth. See, in general, J. Neethling/J.M. Potgieter/P.J. Visser (loc. cit. 1), 255-256; J.
Neethling (loc. cit., 1), 74-75; J. Neethling in G.E. van Maanen (Ed.) (loc. cit. 1), 175–176. In Marais v. Groenewald 2001 1 SA 634 (T) 646, the Court held that liability for negligence should not only apply to the media, but should be a general condition of any defamation that can be accused. This is already the case for resellers or their employees (e.g. newspaper vendors) who play a role in the distribution of a newspaper (see, for example, Trimble v Central News Agency Ltd 1933 WLD 88, 91–92 (1934 AD 43, 48); Masters vs Central News Agency 1936 CPD 388, 394-395).
See point 16 of this Opinion. The other grounds of justification that may be invoked in a defamation action against the media are not relevant in the present case.