!!Экзамен зачет 2023 год / The Law of Obligations

year.166 As in Roman law, the plaintiff was required to assess the amount at which he estimated the injury, but the judge was able to reduce the sum according to what he considered bonum et aequum.167 The formula used by the plaintiff for that purpose, however, had a characteristically medieval-customary ring to it:168 "Woke lieber 1 000

Thaler verlihren alss selbige [sc: iniuria] ungeandet lassen",16У he would declare—I would rather lose a sum of 1 000 than suffer such iniuria. Whether the sum in which the defendant was ultimately condemned went to himself or to the poor was apparently up to the plaintiff to decide.170

(b) Criminal proceedings

Then there was, of course, the possibility of laying a criminal charge against the wrongdoer. Whether criminal and civil proceedings could be cumulated was disputed. Carpzov171 and Voet172 were prepared to allow cumulation, but a substantial number of authors argued against it; both actions, the latter argued, were "mere poenalis", and the wrongdoer should not be punished twice on account of one and the same crime.173

166 Prescription effectively terminated the possibility of bringing the actio iniuriarum ("Tollitur pracscriptione": Lauterbach, Collegium theoretico-praclicum. Lib. XLVII, Tit. X, XXXVII; "fC]essat . . . injuriarum pcrsecutio": Voct, Commentarius ad Pandectas, Lib. XLVII, Tic. X, XIX). Dissimulatio was another, very interesting way of putting an end to the right to sue. It dates back to Roman law (Ulp. D. 47, 10, 11, t: "Ininriarum actio ex bono et acquo est et dissimulatione aboletur. si quis enim iniuriam dereliquerit, hoc est statim passus ad animum suum non revocaverit, postea ex paenitentia rcmissam iniuriam поп potcrit recolere"; if someone at first ignores the affront, he cannot later change his mind and seek to recover) and was much discussed by the writers of the ius commune (often sub voce tacita remissio). On account of which circumstances could it be inferred that someone had not taken the insult to heart and therefore waived the matter? "fE]x. gr. cum injuriante pristina familiaritate sponte utendo, amice salutando, osculo amplectando, convcrsando"; likewise the drinking out of one cup (which the Germans of old considered to be the most effectual token of friendship: Grotius, lnleiding, III, XXXV, 3). Merely keeping up the normal proprieties ("ut communis salutatio in publico, propinatio in convivio") did not imply a remissio tacita. Nor, incidentally, did the act of going to confession to the pastor by whom one had been insulted, "quia hie tan turn considcratur ut Vicarius Dei, et principaliter agitur inter Deum et peccatorem" (all quotations from Lauterbach, Collegium theoreticopracticum. Lib. XLVII, Tit. X. XXXVI). Cf. also Ranchod, op. cit., note 90', pp. 55 sq. 89; De Villiers, op. cit., note 113, pp. 187 sqq.

1(17 For deta:k cf, for example, Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. X, XIII; Stryk, Usus L.odernus pandectamm. Lib. XLVII, Tit. X, §§ 17 sqq. (distinguishing between Saxony and other territories).

u* Kaufmann, (1%1) 78 ZSS (GA) 98 sq.

164 Lauterbach, Collegium theoretico-practiatm, Lib. XLVII, Tit. X, XXX. 17(1 Voet, Commentarius ad Pandectas, Lib. XLVII, Tit. X, XVII.

171Cf., for example, Verhandelin% der lyfstraffelyke misdaaden (trans, van Hogendorp) (Amsterdam, 1772), 87. Hoofstuk, XV sqq.

172Comm enta riu s ad Pandec tas, Lib. X LVII , Tit. X , XXI V; cf . also De Villie rs, op. cit. ,

note 113, pp. 248 sqq.

173 Cf., for example, Stryk, lisas moderttus pandectamm. Lib. XLVII, Tit. X, § 21; Laute rbach, Collegium theoretico-practicum. Lib. X LVII, Tit. X. LV.

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(c) Amende honorable

But the latest, and most interesting, addition to the arsenal of remedies was what came to be referred to (particularly in Roman-Dutch law) as amende honorable.174 Essentially, it constituted an amalgam of three originally distinct institutions. First of all, there was the declaratio honoris: a formal declaration, on the part of the offender, that he had made his allegation in heat and without any intention to defame the other. It had its roots in Germanic customary law.175 Furthermore, there was the notion of recantatio, revocatio or palinodia: the retraction of the defamatory words as being untrue. It had the effect of repairing the injured person's honour and derived from medieval canon law.176 The Church, of course, had jurisdiction over defamation matters ratione peccati, and one of the fundamental prerequisites for the remission of sins in general was restitution: "peccatum non dimittitur, nisi restituatur ablatum."177 It was the famous Dominican scholar Albertus Magnus who applied this principle to the sin of defamation, since he argued that restitution of fama was possible:

"[I]d quod possidetur, invitissime amittitur: fama autem carius possidetur, quam aurum et argentum, ergo invitissime amittitur; ergo videtur quod maxime debet restitui."178

Based, ultimately, on fundamental precepts of iustitia distributiva,179 the idea of a remedy concerned with restitutio laesae famae commended itself to secular courts and writers and was generally recognized as being moribus recepta.180

Finally, we encounter the concept of a deprecatio Christiana: an acknowledgement by the person who had committed the iniuria that he had done wrong, combined with a prayer that he may be forgiven. It is obvious that this institution, too, had its origin in the teachings of the Christian Church. As God forgives us, so we are bound to forgive

174An "extraordinarium remedium", in the terminology of Lauterbach. The challenge to a duel was another "extraordinary" remedy recognized at least by some {"Aliud extraordinarium remedium re vincendae injuriae quidam ponunt in provocatione ad duellum ex proverb. Auf eine Luge gehort eine Maultasche oder Dolch"). Lauterbach's comment

{Collegium theoretico-practicum, Lib. XLV1I, Tit. X, LXV): "Verum abominandum hoc et omni jure prohibitum esse nemo Christianorum inftcias ibis, cum provocantes gravissime peccent in Deum Magistratum, cui ultionis munus demandandum est, et proximum, cujus corpori et animae struere conantur, et dum putativam temporalem ignominiam evitare satagunt, periculum aeternae infamiae atque exitii incurrunt, sive vincant, sive vincantur."

175For details, see C. von Wallenrodt, "Die Injurienklage auf Abbitte, Widerruf und Ehrenerklarung in ihrer Fntstehung, Fortbildung und ihrem Verfall", (1864) 3 Zeitschrift fur Rechtsgeschkhte 243 sqq.

176For details, see Wallenrodt, (1864) 3 Zeitschrift fur Rechtsgeschkhte 255 sqq.; Udo Wolter, Das Prinzip der Naturalrestitution in § 249 BGB (1985), pp. 72 sq. Interesting historical examples

of recantationes are provided by Leyser, Meditatioties ad Pandectas, Spec. DXLIII, I.

177Cf. supra, pp. 824 sq., note 283.

178Cf. Wallenrodt, (1864) 3 Zeitschrift Jur Rechtsgeschkhte 261.

179Cf. supra, p. 824, note 283.

180por a detailed list of the ways in which reparatio iniuriarum could be effected, see Van Damhouder, Praxis rerum criminalium, Cap. CXXXVI, 11.

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those who trespass against us; but the trespasser, in turn, must repent before a true reconciliation can take place:

"Si quis rixam faciat dc clericis aut ministris Dei, hebdomadam dierum poenitcat. . .

ct pctat vcniam a Deo et proximo suo plena confessione et humilitate, et sic potest Deo rcconciliare et proximo suo."IM1

Of these three constituent elements of the amende honorable, the

actio ad palinodiam emerged as the dominant ingredient in the course of the late ius commune.182 How exactly it related to the other two was

unclear. According to Stryk,183 the declaratio honoris was applicable "quando dubium est, an verba sit injuriosa, et contumeliosa, nee in profercnte animus injuriandi liquido apparet", the deprecatio Christiana, by and large, in cases of slighter injuries ("quando alter alteri aliquid imputavit quod crimen magnum non importat, aut si eo modo fit improperatio, ut adsit quaedam injuriantis excusatio, vel levior honoris laesio, vel etiam, si injuriae quidem leves non sunt, injurians tamen et injuriatus ejusdem est conditionis, status atque dignitatis"), and the palinodia "quando injuria illata admodum atrox, quae famam honesti viri gravissime violat".

(d)The relation between amende honorable and amende profitable

Controversial, too, was the question whether amende honorable and actio iniuriarum aestimatoria (or, as it was often called, amende profitable) could be cumulated. Since it was obvious that the amende profitable was mere poenalis,184 the answer depended, in the first place, on the proper qualification of the amende honorable. If it was mere reipersecutoria, the two remedies could be cumulated, but if it also had a penal character, a regime of elective concurrence was bound to be the consequence. In view of the fact that palinodia originally aimed at reparation of the injured party's honour, it is not surprising that the first alternative was favoured by many; particularly in Holland the custom appears to have prevailed to institute an action for honourable and profitable amends at one and the same time.185 But the second alternative also found its champions. Thus it was argued that the main

1M1 Poenitentiale Viviani, as quoted by Wallenrodt, (1864) 3 Zeitschrift for Rechtsqeschichte

265.

1Я2 Cf., for example, the discussion by Lauterbach. Collegium theoretico-practkum, Lib. XLVII, Tit. X, XLVII sqq.

IK3 Vsus modmuts pandectantm. Lib. XLVII, Tit. X, § 30; cf. also Wolter, op. cit., note 176, p. 73. Leyser, Meditationes ad Pandectas, Spec. DXLIII, I states that there arc no rules specifying which remedy is available when, "sed ex arbitrio judicis pendet".

1H4Cf. supra, p. 1070 (note 162).

185 Voet, Commentarius ad Pandectas, Lib. LXVII, Tit. X, XVII; cf. also Ranchod, op. cit., note 90. p. 66; De Villicrs, op. cit., note 113, p. 179.

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function of insisting on recantation was to hurt one's opponent186—an opinion that found some support in the fact that the circumstances under which the latter was made to repent were often of a somewhat humiliating nature: he had to fall on his knees, appear bare-footed, slap himself on his mouth, or even suffer the sombre presence of a hangman.187

IV. DEFAMATION IN ENGLISH LAW

1. Technicalities beyond belief

It may be apparent by now that the history of the delict of iniuria is a rather complex matter—according to one modern commentator, one of the most complex in the history of private law.188 In South Africa, the issue has been further confounded by a partial, though in some respects only temporary, reception of English law, that occurred in a particularly prominent province within the broad field of iniuria—the law of defamation, which aims, specifically at the protection of a person's reputation or good name.18y The English law of defamation, in turn, can hardly be credited with the virtues of clarity and simplicity either. It is, in fact, an exceptionally messy branch of the common law, full of curious niceties, of artificial and irrational distinctions, and of "technicalities beyond belief".140 Thus, for instance, a person defamed in a letter which only one other person (the addressee) ever reads may claim damages without proof of loss of any kind; yet, if someone is insulted in front of a huge audience (though "merely" orally), he can bring an action only if either a serious crime or a contagious disease has been imputed to him, or if he can prove that he has suffered pecuniary damages.1У1 This is due to the fact that English law draws a fundamental distinction between libel and slander as two different forms of defamation.

2. Libel and slander

Libel, essentially, is defamation Htteris, the English equivalent of the civilian libellus famosus: any publication of defamatory matter in permanent form. Slander (deriving etymologically from the word

IHfl Cf. Wailenrodt, (1864) 3 Zeitschrift fiir Rechtsgeschkhte 297; cf. also the discussion by Stryk, Usus modernus pandectarutn. Lib. XLVII, Tit. X, § 28; Van Damhouder, Praxis rerum criminatium. Cap. CXXXVI, 11, who, when referring to r^paratio iniuriarum, remarks "qua iniuriantes puniendos esse diximus".

187 Wallenrodt, (1864) 3 Zeitschrift fur Rechtsgeschichte 296; Dc Villiers, op. cit.. note 113,

p.178.

1KK R. Licbcrwirth, in: HRG, vol. I, col. 358.

IHy Cf., for instance, Martens v. Short (1919) 40 NLR 193 at 194: "There is no branch of the

law so uncertain, and therefore so unscientific, as that of defamation" (per Tatham J).

190Cf. the chapter title in Lord Denning, What Next in the Law (1982), p. 179.

191Zweigert/Kotz, p. 454.

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"scandalum")192 is a form of iniuria re aut verbis; an attack on somebody else's reputation that is communicated by word of mouth or in some other transitory form—such as insulting noises or derisory gestures.193 The common-law delict of slander originated in the early 16th century, and it evolved around an action "on the case". Averment of damages was therefore essential.194 Thus, it was not actionable to call an unmarried woman a whore if she was not engaged in trade or could not show loss of a marriage.195 The tort of libel was younger.196 With the invention of printing, the production of libelli famosi had taken on a new dimension and was considered to entail dangers for the King's Peace.197 Thus, the notorious Star

192A.K.R. Krralfy. The Action on the Case (1951), p. 118.

193The distinction between libel and slander ("the result, less of conscious policy than of a series of historical accidents": John G. Fleming, Torts, p. 517; cf alsoj.M. Kaye, "Libel and Slander—Two Torts or One?", (1975) 91 LQR 539: "Lassitude, not policy or reason, brought the distinction between libel and slander to its finished state") is generally severely criticized; cf, for instance, Fleming, Torts, p. 517 (". . . absurd in theory and very often mischievous in its practical operation"); Gatley on Libel and Slander (8th ed., 1981), nn. 141, 143For satirical comments ct\ the fictitious case reports of Chicken v. Ham and Temper v. Hume and Haddock, in: A.P. Herbert, Uncommon Law (1%9), pp. 71 sqq.; idem, Codd's Las!

Case and Other Misleading Cases (1952), pp. 125 sqq.

144 Holdsworth, History, vol. VIII, pp. 363, 367; Potter's Historical Introduction to English Law

(4th ed., 1958), p. 436. On the relation between damage and action on the case, cf. also Simpson, History, pp. 580 sqq. One type of slander was, however, held to be actionable without proof of damage: the imputation of a crime triable at common-law ("slander per se"). This was the hrst inroad the common law courts were able to break into the comprehensive jurisdiction of the ecclesiastical courts (ratione peccati) over defamation matters. In all other cases, it was the averment of (temporal) damages that became the decisive factor in justifying a temporal remedy and that therefore allowed the common-law courts to assert their jurisdiction against their ecclesiastical rivals. The first case appears to have been Davis v. Gardiner (1593) 4 Co Rep 16 b (the imputation being that a woman had a

bastard child; as a result of this scandalous (slanderous) statement, the woman suffered special damage in the form of loss of marriage; Plucknett, History, p. 494). |1;5 Cf. Potter,

op. at., note 194. p. 435.

''"' Generally on the history of libel and slander, cf the magisterial work of Holdsworth, History, vol. VIII, pp. 333'sqq.; cf. also V.V. Veedcr, "The History of the Law of Defamation", in: Select Essays in Anglo-American Legal History, vol. Ill (1909), pp. 446 sqq.; C.H.S. Fifoot, History and Sources of the Common Law (1949), pp. 126 sqq.; Plucknett, History, pp. 483 sqq.; Potter op. cit., note 194, pp. 429 sqq.; Kaye, (1975) 81 LQR 524 sqq. On the history of libel, cf also Denning, op. cit., note 19(1. pp. 163 sqq. The influence of the civilian delict of iniuria on the development of the English law of defamation and the historical interaction between civil law and common law have, to date, received hardl1' шу attention; cf, however, Heinz Hubner, "Defamation, Privacy", in: Helmut Coing, Knut Wolfgang Norr, Englische und kontinentale liechtsgeschichte: ein Forsdumgsprojekt (1985), pp. 72 sqq. The most obvious point of contact is the canon law which has, through the jurisdiction of the ecclesiastical courts, greatly influenced the development in England. As late as 1497 Fineux CJ declared defamation to be "entirely a spiritual offence" (cf. Potter, op. cit., note 194, p. 431).

147 Cf, for instance, William Blackstone. Commentaries, Book IV, Ch. XI, 13: ". . . [they] are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt and ridicule. The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed. . . .

[Blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity."

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Chamber198 assumed (an essentially criminal) jurisdiction over the matter and imposed penalties such as fines, pillory, branding or loss of ears. The Long Parliament abolished the Star Chamber in 1641, but the notion that libel constituted a grave offence tending "to the breaking of the peace and great mischief"199 lingered on. When the common-law courts therefore developed the doctrine of civil libel, they considered it to be in the nature of trespass (rather than case), and consequently not to require the averment of damages.200 This was established in the 1670 case of King v. Lake, where Sir Matthew Hale allowed the plaintiff to sue on account of certain insulting allegations which, if spoken, would not have been actionable without proof of damage; "yet here", Hale CB continued, "they were being writ and published, which contains more malice than if they had been spoken".201

3.Common elements

On the other hand, however, libel and slander have much in common.202 In both cases, a defamatory imputation is required—that is, an imputation which may tend "to lower the plaintiff in the estimation of right-thinking members of society generally"203 or "to expose him to hatred, contempt or ridicule".204 Furthermore, the element of publication is essential for both forms of defamation: the defamatory matter must have been communicated to somebody other than the person who is the subject of the defamatory imputation.205 Thus it is obvious that the interest protected is only man's estimation in the eyes of others—his reputation—and not his dignity or self-esteem. If this constitutes a significant deviation fi-..m civilian contumely iniuria,206 another feature common to libel and slander is even more

1 'H The Court of the Star Chamber was a concihar court, namely the Privy Council sitting in [he Star Chamber (camera stellata, so called from the gilded stars on the roof); on its jurisdiction in general, see Holdsworth, History, vol. V, pp. 155 sqq.

''''' Lord Coke, as quoted by Denning, op. cit., note 190, p. 163. 211(1 Holdsworth, History, vol. VIII, pp. 363 sq.

21)1 A.K.R. Kiralfy. A Source Book of English Law (1957). p. 163. For a different interpretation of this case, see Kaye, (1975) 91 LQR 53! sqq. In any event, the matter was

finally settled in Thorley v. Lord Kerry, in: Fifoot, op. cit., note 196, pp. 149 sqq.

2(<2 As appears already from the way in which the discussion of the law of defamation is arranged in books such as Fleming, Torts, pp. 500 sqq.. 518; Witifield and Jolowicz on Tort (12th cd., 1984), pp. 293 sqq. or Cathy on Libel and Slander, notc"i93.

za Sim v, Stretch (1936) 52 TLR 669 at 671 (per Lord Atkin).

2(14 Parmiter v. Coupland (1840) 6 M & W 105 at 108 (per Parke B). 2115 For all details, see Gatlcy, op. cit., note 193, nn. 221 sqq.

211(1 Cf., for instance, F.G. Gardiner, "Is Publication Essential to an Action for Defamation", (1897) 14 Cape LJ 184 sqq; T.W. Price, "Animus Injuriandi in Defamation",

(1949) 66 SAL] 6; Die Spoorbond v. South African Railways, Van Heerden к. South African Railways 1946 AD 999 at 1010; African Life Assurance Society Ltd. v. Robinson & Co. Lid. and Central News Agency Ltd. 1938 NPD 277 at 295 sqq.; cf. also Voet, Cornmentarius ad Pandeclas,

Lib. XLVII, fit. X. I ("vcl dignitas") and De Villiers, op. cit., note 113, pp. 90, 132; Grotius, Inhiding, III, XXXV, 2 (". . . in 't heimehek ofte in 't openbacr"). The reason for this difference between common law and civil law lies in the fact that in England the emphasis is on reputation (which can be impaired only by publication of defamatory matter),

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startling from a continental point of view. It relates to the subjective side of the notion of defamation—or perhaps rather the lack of it.

Sir Matthew Hale's words in King v. Lake appear to suggest that the defamatory statement should have occurred with malice in order to be actionable. In fact it seems to have been necessary for the plaintiff to allege that the defendant had acted "falsely and maliciously". But this clause increasingly degenerated into a mere form of pleading, devoid of any substantive import.2117 Eventually it was laid down that actual malice was unnecessary to support an action in defamation.208 It does not even matter whether the defendant intended to injure the plaintiff's reputation:

"A person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both."2"-'

This statement is taken from the most famous (or perhaps most infamous) case in the law of libel, the landmark at which, according to Lord Denning,210 the law took a wrong turning.

4. "Animus iniuriandi" and Artemus Jones

The Paris correspondent of the Sunday Chronicle had written an article in which he commented on the miraculous change of behaviour of the average English holiday-maker when going abroad. Mention was made of a certain Artemus Jones whom, "by his goings on", one would never have expected to be a churchwarden at Peckham:

"No one, indeed, would assume that Jones in the atmosphere of London would take on so austere a job. . . . Here, in the atmosphere of Dieppe, on the French side of the Channel, he is the life and soul of a gay little band that haunts the Casino and turns night into day, besides betraying a most unholy delight in the society of female butterflies."

Of course, the correspondent had used Artemus Jones as a purely fictitious character and he had no intention of referring to a specific person of that name. A real Artemus Jones happened to exist, however. He spent his life as a barrister on the North Wales Circuit—"rarely going to London and never to Peckham".211 But since he could show that his acquaintances had identified him with the hero of the article, he was allowed to claim no less than ?1 750 in damages.

Thus, under the English common law, a person may well be liable for defamation, even if no blame attaches to him. He can escape liability

whereas in Roman law it was on outraged feelings (cf. also Buckland/McNair, p. 380). Not convincing, in this respect, is Burchell, op. cit., note 105, pp. 71 sq.

207 Cf., for instance, Potter, op. cit., note 194, p. 437.

2(18 Bromage v. Prosser (1825), in: Fifoot, op. cit., note 196, pp. 151 sqq.; Holdsworth, History, vol. VIII, pp. 374 sq.

2W E. Hulton & Co. v. Jones [1910] AC 20 at 23 (per Lord Loreburn). 21(1 Op. cit., note 190, p. 173,

~u Denning, op. cit., note 190, p. 173.

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only by proving that his allegation was true,212 that it constituted a fair comment in the public interest213 or that it was justified on account of either an "absolute" or "relative" privilege. Absolute privilege completely exempts from liability for defamation, but it covers only a very limited range of situations. The main examples are things said in court or parliament.214 The scope of qualified privilege is much more extensive; it includes, for instance, statements made in the discharge of a public or private duty or on a subject-matter in which the defendant has a legitimate interest.215 A qualified privilege is lost, however, upon proof that the defendant has abused the situation; and it is in this context that the requirement of malice becomes relevant. For while it may be in the public interest that a person should be allowed, under certain circumstances, to speak freely and to state openly whatever he knows or believes about another, the law still requires him to act honestly and without improper motive.216 Qualified privilege thus covers a variety of situations where a statement is both defamatory and in fact untrue but has been made in good faith.

V.SOUTH AFRICAN USUS MODERNUS OF THE

ACTIO INIURIARUM

1. The battle about animus iniuriandi

The English tort of defamation is thus, in many respects, distinctly different from the civilian delict of iniuria.217 Yet there is also at least one very obvious structural similarity. In both systems, a (prima facie) defamatory imputation (no matter whether verbis or litteris) may give rise to a cause of action unless the person who has made the imputation is able to invoke one of a certain number of "defences" or "privileges". This basic similarity enabled South African courts and writers to graft many of the English rules of defamation onto the Roman-Dutch actio imuriam that had originally been transplanted to the Cape.218 The development followed the general pattern of South African legal history: in the course of the 19th century an ever-increasing tendency to find one's law in an English textbook or in English case reports rather than "to wade through a sea of Latin or to puzzle [one's] head over old

212On the defence of truth, see Gatley, op. cit., note 193, nn. 351 sqq.

213For all details, see Gatley, op. cit., note 193, nn. 691 sqq.

214Generally on absolute privilege, cf. Gatley. op. cit., note 193, nn. 381 sqq.

21s For a detailed analysis, see Gatley, op. cit., note 193, nn. 441 sqq.

2"' The same applies in the case of "fair comment"; the plea is defeated if the plaintiff can

show that the comment was actuated by malice.

217 For an overview, cf. Price, (1949) 66 SALJ 4 sqq; idem, "The Basis of the South African Law of Defamation", 1960 Atta Juridica 254 sqq.; Ranchod, op. cit., note 90, pp. 133 sqq.

- I M Cf., for example, Ranchod, op. cit., note 90, pp. 135 sqq. On the interaction of English and Roman-Dutch law in Ceylon, see Lalith W. Athulathmudali, "The Law of Defamation in Ceylon", (1964) 13 International and Comparative Law Quarterly 1368 sqq.

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Dutch writers and black letter consultations",219 then, from about the 1920s onwards, a strong backlash culminating in judicial attempts to return the oak tree of the specifically South African usus modernus to the Roman-Dutch acorn whence it sprang,220 until ultimately some form of pragmatic compromise was reached and the hybrid nature of contemporary South African common law accepted.

In the case of defamation it was particularly the requirement of animus iniuriandi that became one of the major battlefields of the famous bellum iuridicum raging between the so-called pollutionists on the one side and the purists and antiquarians on the other.221 Without animus iniuriandi no iniuria: this was the Roman-Dutch principle adopted at the Cape and taken for granted in leading decisions such as Mackay v. Philip.222 Gradually, though, English terminology crept into the decisions of the courts and, most notably, the term "malice" began to be used by Lord De Villiers223 and others in place of animus iniuriandi.224 Sooner or later, the "contagion"225 was bound to spread, the new terminological germ bound to infect the thinking on substantive law. Thus it was held, in a variety of decisions, that the defendant in a defamation suit is confined to pleading certain set defences. The mere absence of any intention to insult was no longer of avail to him.226 Animus iniuriandi thus having been reduced to a hollow fiction,227 it had ceased to be an essential element of defamation. Only in 1960 was it reinstated in its former splendour. The decisive turning point was Maisel v. Van Naeren, where De Villiers AJ reaffirmed that

"(i]n Roman-Dutch law defamation is a species of injuria, and a claim for genera) damages for defamation is merely an instance of amende profitable being claimed under the actio injuriarum. Inasmuch as dolus, or animus injuriandi as it is called in relation to injuriac, is an essential for liability under the actio injuriarum, it is likewise an essential for liability for defamation".22"

219 Sirjohn Wessels, "The Future of Roman-Dutch Law in South Africa", (1920) 37 SALJ

276.

220 Cf. the eleganter dictum by Holmes J, in: Ex parte Winnaar 1959 (1) SA 837 (N) 839 ("The original sources of the Roman-Dutch law are important; but exclusive preoccupation with them is like trying to return an oak tree to its acorn"); cf. also P.Q.R. Boberg, "Oak Tree or Acorn?—Conflicting Approaches to Our Law of Delict", (1966) 83 SALJ 150 sqq.

221Cf. supra, p. 557, note 73; p. 805.

222(1830) 1 Mcnz 455.

223Chiefjustice of the Cape of Good Hope (and later of the Union of South Africa) from 1877 to 1914. The standard biography is Eric A. Walker, Lord de Viliiers and His Times (1925).

224Cf., inter alia, Botha v. Brink (1878) 8 Buch 118 at 123, 128 and 130.

225Price, (1949) 66 SALJ 17.

22hJooste v. Chassens 1916 TPD 723 at 732; Laloe Janoe v. Bronkiwrst 1918 TPD 165 at 168;

Tothill v. Foster 1925 TPD 857 at 862 sq.; Kieinhans v. Vsmar 1929 AD 121 at 126.

227McKerron, "Fact and Fiction in the Law of Defamation", (1931) 48 SALJ 154 (172).

2281960 (4) SA 836 (C) at 840C-D.

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This view has been repeatedly endorsed by the Appellate Division of the Supreme Court,224 and as a result, the defendant is, once again, free today to rebut the presumption of animus injuriandi in whatever way he chooses. Of course, he can avail himself of any of the "stereotyped defences", but they have lost their status of exclusiveness.230

2. Compromise solutions

As far as the theoretical basis of the delict of iniuria is concerned, the pendulum has therefore swung between the two extremes: from dolus to strict liability and back again to dolus. Would it not have been sensible to arrest it somewhere in the middle and base liability (as under the Aquilian action) on negligence? This suggestion has indeed been made repeatedly,231 but it has so far failed to gain decisive judicial support.232 The courts, in turn, have in the meantime settled for a different kind of compromise solution: while generally emphasizing the requirement of animus iniuriandi, they have made a very significant exception in the case of defamatory reports by the newspapers, by radio and by television. The dictates of public policy, according to Rumpff CJ,233 require the protection of the ordinary citizen against the powerful media with their potential for injuring his reputation in a situation where it may be difficult to pinpoint animus iniuriandi; and in order to provide this protection the principle of strict liability has therefore, at least partially, been retained.

3. A hybrid law of defamation

But strict liability of the press is not the only strand from the English common law that remains woven into the fabric of the modern South African law of defamation. What has emerged, over the years, is a truly hybrid system that has emancipated itself from its Roman-Dutch and English roots and has, instead, acquired a distinctive flavour of its own.

Essentially, it is still the civilian actio iniuriarum that forms the basis of the law of defamation, and the gist of it234 is, as a rule, the animus

iniuriandi. Courts and legal writers have for some time toyed with the

229See especially Jordaan v. Van Biljon 1962 (1) SA 286 (A); Crai% v. Voortrekkerpers Bpk.

1963 (1) SA 149 (A); Nydoo v. Vengtas 1965 (1) SA 1 (A).

230For an analysis and critical evaluation of the position today, see Burchell, op. at., note 105, pp. 149 sqq.

231Hassen v. Post Newspapers (Pry.) Ltd. 1965 ( 3) SA 562 ( W); Suttonmere (Ply.) Ltd. v.

Hills 1982 (2) SA 74 (N) at 79A-B; P.J. Visser, "Nalatige krenking van die reg op farm", (1982) 45 THRHR 168 sqq; Burchell, op. cit.. note 105, p. 168.

Pakendorfv. De Fiamingh 1982 (3) SA 146 (A) at 156C. For further discussion, see Burchell,

op. cit., note 105, pp. 181 sqq.

234 Cf. the phrase used by Schrciner JA in Basner v. Trigger 1946 AD 83 at 94.

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