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Present: Pereira J. and De Sampayo A.J.
CANTLAY v. VANDEBSPAAR.
146—D. G. Colombo, 37,189.
Defamation—Animus injuriandi—Legitimate joke.
Under the Human-Dutch law, injury to one's feelings, honour,dignity, or reputation is not actionable, unless the offender actedammo mjurianii. Joke or jest, if legitimate and seasonable, issufficient to exclude the idea of an intention to injure, but whenlangnage has been used which, regarded by itself and in connectionwith surrounding circumstances, constitutes ex fade an injury, theallegation that the words were used merely as a joke of a legitimatenature must be made good by the defendant by sufficiently con-vincing evidence.
XHE facts are set out in the judgment.
Elliott, for the defendant, appellant.Baton, K.C., for plaintiff, respondent.
Cur. adv. vult.
July 1, 1914. Pereira J.—
In this case the principal issue agreed to by the parties was thefirst, namely, “ Are the words set forth in paragraph 2 (b) of theplaint in themselves defamatory of the plaintiff ? ” The DistrictJudge has been at pains to discuss the question whether the wordsare per se defamatory, or whether they admit of the innuendoesreferred to in the second issue. In view of the terms in which thefirst issue is expressed, it is hardly necessary to go into thesequestions. The burden was on the plaintiff to show that the wordsreferred to above were by themselves defamatory of the plaintiff.This she has done by proving the following facts. That Mr. Creasyreferred to in the words is Mr. Creasy, a member of the firm of Messrs.Julius & Creasy, who had at one time acted as the plaintiff’s proctorin a legal proceeding; that Mr. Greasy is an elderly gentleman,married, and having children; that Mrs. Cantlay referred to in thewords is the plaintiff, and that she is a widow of the age of 54 years,with several grown-.up children. Looked at in the light of thesefacte, there is no question that the words referred to are defamatoryof both the plaintiff and Mr. Creasy. The words occur in a post-script to a letter written by the defendant addressed to the firm ofMessrs. Julius & Creasy, and they are as follows:“ Is there any
truth in the report that Mr. Creasy has turned Muhammadan andmarried Mrs. Cantlay ? We would like to send them both a present.”
J. N. B 18828 (7/52)
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I may mention that under our law it is an offence for any personhaving a wife to marry in any case in which such marriage is voidtby reason of its taking place during the life of such wife (see PenalCode, section 862b). But, however that may be, in view of thefacts established in this case relating to Mr. Creasy and the plaintiff,it is clear that the postscript attributes to them conduct unworthyof persons of their position in life. At any rate, it ia calculated toexpose them to ridicule and obloquy; and it is therefore defamatoryof'the plaintiff, and she bas made good her assertion involved inthe first issue.
The next question to be considered is whether the defendantin writing tbe postscript quoted abpve aeted ammo injuriandi.The law applicable to this case is' the Roman-Dutch law, and underthat law injury to one’s feelings, or honour, dignity, or reputation,is not actionable unless it can be shown that the offender actedanimo injuriandi, but the animus injuriandi may be refuted bythe proof of circumstances that furnish a reasonable excuse for theuse of the words complained of. Joke or jest, if legitimate andseasonable, has been held to be sufficient to exclude the idea of anintention to injure; but, as is laid down by De Villiers in his workon the Roman and Roman-Dutch Law, of Injuries (page 195), whenlanguage has been used which regarded by itself and in connectionwith surrounding circumstances appears to constitute an injury,and from which there consequently arises a presumption that therewas an intention to injure, the allegation that the words were usedmerely in a joke of a legitimate nature would have to be supportedby evidence to make it apparent that such was actually the case.“ It is not a legitimate joke when, in order to amuse himself or toshow off his wit, a person says things which considering the occasionor personal circumstances of another, he could and must have knownwould be insulting, offensive, and degrading to the person or thecharacter of the other; for whatever his motive may have been,he must be considered to have contemplated the consequencesfollowing from his own act.”
In this case the defendant was writing a letter (P 2) to Messra.Julius & Crea6y, which had no reference whatever to, the plaintiffor her affairs, and for no apparent reason he added .to it the offensivepostscript complained of. The information contained in the post-script was admittedly false; the defendant, it has been proved, wasnot in such friendly terms with Mr. Creasy as to justify him inindulging at the expense of Mr. Creasy in such a course and vulgarjoke, if joke it be, as that contained in the postscript; and theevidence shows that the relations between the defendant .and theplaintiff were decided^ strained. In these circumstances, I cannotbring myself to think that the postscript was a legitimate orseasonable joke. It was rather a venomed dart intended to hitand hurt.
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I think that the damage awarded is, in the circumstances, inno sense excessive, and I would affirm the decree appealed fromwith C09t8.
De Sampayo A. J.—
The innuendoes placed on the words complained of cannot besupported, but the question is whether the words in themselves arenot defamatory of the plaintiff. The words are, “ Is there anytruth in the report that Mr. Creasy has turned Muhammadan andmarried Mrs. Cantlay. We would like to send them both a present.”Mrs. Cantlay isi the plaintiff in this case, and Mr. Creasy is a memberof the firm of Messrs. Julius & Creasy, Proctors, who appear to haveacted for Mrs. Cantlay in connection with some litigation betweenher mid the defendant over Mipitikanda estate, of which she waspart' owner. The defendant is a merchant carrying on business asJ. J. Vanderspaar & Co., and the words complained of are containedin the postscript to a letter written by the defendant aa J. J.Vanderspaar & Co. to Messrs. Julius & Creasy on a business matterquite unconnected with the plaintiff or the litigation referred to.The plaintiff is an old widow, and Mr. Creasy is a married man,and both of them are Christians.
It is contended for the defendant that the words must be readas an entire stranger to the parties would read them, and that asso read they merely state a bit of news to the effect that a certaingentleman named Creasy has become a convert to Muhammadanismand that he has married a certain lady named Cantlay. In myopinion even a total stranger would not read the words in thatentirely innocuous sense. He would, I think, connect the two state-ments and understand that the change of religion was hypocriticallyeffected for the purpose of contracting what would otherwise be abigamous marriage. In this connection it should be borne in mindthat under the Roman-Dutch law any imputation which is offensiveand is calculated to bring a person into contempt or ridicule is aninjuria, for which an action would lie, and to my mind there is noquestion that the words complained of in. this case- are of thatcharacter. They are insulting to both Mr. Creasy and Mrs. Cantlay,and certainly expose them to ridicule.
An essential element in an action of this kind is, of course, theexistence of animus injuriandi-, but where the words in themselvesand in their proper signification convey an insult, the maliciousintent will be presumed, and it is for the defendant to displace thatpresumption by evidence (Voet 47, 10, 20). The defendant hasaccordingly pleaded, mid has given evidence to the effect, that thewords were used only by way of' a joke. That plea, if establishedto the satisfaction of the Judge, is a good defence. If, for instancean intimate friend in a private letter jestingly says something
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which he is justified in supposing would be understood and: takenin the same spirit, the law would not allow this to be a ground ofaction. For it would be what Chief Justice de Villiers in his Law'of Injuries (page 195) calls a legitimate jest. I confess I fail to Beethe point of the joke myself, but do the circumstances of this caseshow that the joke, whatever it might be, was legitimate? Thewords are found in a business letter from the defendant’s firm toa firm of proctors. The letter could not possibly be regarded asa private communication 'to Mr. Creasy alone. The question whichcontains the imputation, is, in fact, addressed to Messrs. Julius &Creasy. The letter would be preserved in the files of the office andprobably be read by the clerks and others. It appears, and theDistrict Judge finds, that Mr. Creasy, so far from being an intimatefriend of the defendant, has not been on terms with him for severalyears. Further, the relations between the plaintiff and the defendantthemselves in connection with Mipitikanda estate had for a longtime been considerably strained, and ultimately resulted in thelitigation already referred to. ^The District Judge finds upon theevidence that the plaintiff and the defendant have undoubtedlybeen on bad terms for a considerable period of time, and that thedefendant behaved towards, and wrotei to the plaintiff, rudely on.several occasions, and once turned her out of his office. In thesecircumstances, I do not think that the defendant had any reasonto believe that his joke would be appreciated by either Mr. Creasy.or Mrs. Cantlay. It seems rather to be a case where (to adopt thelanguage of De Villiers C.J.) the defendant, in order to amuse himself,or more probably to gratify his own ill-temper, has said things which,considering the occasion and the personal circumstances, he' musthave known would be insulting and offensive and calculated to causepain of mind; so that whatever his motive may have been, he mustbe considered to have intended the consequences of his act.. TheEnglish law on this subject is even severer than the Roman-Dutch,law, for there what meaning the writer intendeck-to convey is im-material. He may have had no intention of injuring the plaintiff’sreputation, but if he has in fact done so he must compensate theplaintiff. If he in jest conveys a serious imputation, he jests at hisperil. It will thus be seen that the defendant’s plea, judged whetherby the English law or by the Roman-Dutch law, has failed. TheDistrict Judge justly remarks that if the defendant really meant tomake a mere joke, his proper course would have been to expressregret as soon as he found it was taken amiss. With regard to this,it was said that .the defendant had no chance to apologize, as hereceived no letter of demand or any other communication, previousto action, and that in view of .the innuendoes he had no choice butto fight the case. But he had sufficient notice of the complaintwhen he received summons, and the innuendoes were only addedby way. of amendment some four months after the date of the
original plaint and three months alter the date of the originalanswer, and I do not see why the defendant could not deny theinnuendoes and at the same time express regret. No expressionof regret was ever made from first to last, and the defendant oannotcomplain if this omission has adversely affected his plea.
I would dismiss the appeal with costs.
CANTLAY v. VANDERSPAAR