1 Some may challenge the assertion that South Africa is “Western,“ either in the traditions of the majority of its citizens or in the policies of its government. However, there can be no doubt that its leaders and press perceive it to be squarely in the Western political, economic, and social tradition, and thus that an analysis of the extent to which it really adheres to that tradition is not inapt.

2 See Brookes, and Macaulay, , Civil Liberty in South Africa, Oxford University Press, Capetown, 1958 (reprinted by Greenwood Press, Connecticut, 1973), Chapter VIGoogle Scholar.

3 Freedom of speech “means that any person may write or say what he pleases, so long as he does not infringe the law relating to libel or slander…” Halsbury's Laws of England, 3rd ed.. Constitutional Law, Vol.7, s 418.

4 “Prosecutions for libel on government have (no) place in the American system of jurisprudence.” City of Chicago v. Tribune Co., 307 111.595,601, 139 N.E. 86, 88 (1923).

5 See Harper, and James, , The Law of Torts, Little, Brown & Co., Boston, 1956, § 5.26-5.28.Google Scholar

6 “(W)e are writing upon a clean slate,” wrote Mr. Justice Goldberg, concurring in New York Times Co. v. Sullivan, 376 U.S. 254, 299, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).

7 One wonders to what extent there remains in the modern world the sublime confidence in the indestructible strength of democracy reflected in Thomas Jefferson's remark that “ I f there be any among us who wish to dissolve this union or change its republican form of government, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat i t . “ (Cited in Gem v. Robert Welch, Inc., U.S. Supreme Court, 25 June 1974, 42 LW 5123, 5128.) Presumably, the erosion of such confidence in the power of reason in the minds of many prompted the actions of some that in turn have led the Court to its vigorous protection of free speech generally in recent years.

8 Supra, note 6.

9 Id. 376, U.S. at 279, 280.

10 / d . , 376, U.S. at 270. 11 Hertzog v. Ward, 1912 A.D. 62-70.

12 This is particularly so in comparison with other African countries, even after independence, and this is a source of great pride for South Africans.

13 South Africa does have a Constitution, but apart from a preamble recognizing a need to stand united to “safeguard the integrity and freedom of our country,” freedoms are not explicitly covered. See Republic of South Africa Constitution Act, No. 32 of 1961.

14 An example of judicial refusal to consider even implicit modification of statutory directives, in aid of maintaining constitutional freedoms, is nicely presented by State v. van Niekerk, 1972(2) S.A. 279(D), described infra, at note 17.

15 Case No. 1,962 (1973), N.P.D. (August 1974).

16 777e Sunday Times of South Africa.

17 On the first occasion, the charge derived from Professor van Niekerk's article, “ …Hanged by the Neck Until You Are Dead,“ South African Law Journal, 86, p. 457 (1969) and 87, p. 60 (1970). The article is a scholarly attempt to analyze the consequences of the death penalty in South Africa. It includes a report on a survey of South African and Rhodesian attorneys which revealed that about half of them felt that there was some degree of racial bias in the imposition of the death sentence by the courts in some kinds of cases, and that about a f i f th thought this was deliberate. The State's case for contempt of court against van Niekerk for publishing this failed. However, it failed only on the narrow ground that he had not actually intended disrespect for the courts, as evidenced by other statements and his apology, so that although he was perhaps “pompous” and “foolish,” the necessary state of mind for contempt was missing. Otherwise, said the Court, the article might have been criminally contemptuous. See State v. van Niekerk, 1970(3) S.A. 655(T). The second case arose from a speech in which van Niekerk, on grounds of constitutional traditions, urged the courts to frustrate provisions of legislation which permit solitary confinement and interrogation without trial, by discrediting any evidence procured under such circumstances. The courts sustained a conviction for contempt of court, not because the speech was itself insulting, (although it was “singularly misguided“) but because it might, even if unintentionally, influence a case then pending (although the case was not mentioned in the speech). Van Niekerk was fined 100 Rand (about 150 U.S. dollars). See State v. van Niekerk, supra. Note 14.

18 “The result is to leave academics and legal authors, editors and researchers with a most disquieting sense of insecurity. There is every prospect that in future no one will be prepared to discuss even tangentially or indirectly, and without personal agreement, the possibility that the actions of the judiciary might imply bias, albeit unconsciously, against certain races, classes or groups, for fear of a prosecution for contempt of court.” From a statement of the Council of the Society of University Teachers of Law, 87 South African Law Journal 467-8 (1970) and 33 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 323-4 (1970).

19 South Africa accounts for perhaps as many as 40% of all the criminal executions in the Western world; there have been well over 2,000 of them since 1911. The vast majority of these were of non- Whites. In the last 53 years, there have been two executions of Whites for rapes, in each instance of a young girl of same race. There have been no executions of Whites for rape of a Black. In the same period, there have been about 150 executions of Blacks for rape, in most instances the victim being white. (Whites comprise about a fifth of the population.) It should be noted that in the last few years the rate of executions in South Africa has declined by nearly 50%, possibly due in no small part to the efforts of Professor van Niekerk and others similarly minded.

20 Nominally, appeals for reprieve are directed to the State President, but he in turn follows the advice of the Executive Council in acting on them.

21 Sunday Times of South Africa, 15 April 1973.

22 He has since retired as Minister and from government.

23 The Natal Mercury, 3 May 1973. The Afrikaans expression used and translated as “ f ix him,” was “vas vat,” said to be particularly strong language.

24 The police indicated that they were investigating in connection with a criminal prosecution. However, none was ever commenced.

25 About $45,000. General damages may be awarded for injury to reputation, without proof of special loss. See Halsbury's Laws of England, 3rd ed., vol. 24, Libel and Slander, % 207-227.

26 See, inter alia. Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966); 77me, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967); Beckley Newspapers Corp. v. Hanks, 389 U.S. 8 1 , 88 S. Ct. 197, 19 L. Ed. 2d 248 (1967); St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968); Greenbelt Cooperative Publishing Assn. v. Bressler, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970); Time, Inc. v. Pape, 401 U.S. 279, 91 S. Ct. 633, 28 L. Ed. 2d 45 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S. Ct. 628, 28 L. Ed. 2d 57 (1971); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 296 (1971); Gertz v. Robert Welsh, Inc., supra, note 7; Goldwater v. Ginzburg, 414 F 2d 324 (2nd Cir. 1969), Cert. Den. 396 U.S. 1049, 90 S. Ct. 701, 24 L. Ed. 2d 695 (1970); Bon Air Hotel v. Time, Inc., 426 F 2d 858 (5th Cir. 1970); Donovan v. Reinbold, 433 F 2d 738 (9th Cir. 1970); Gospel Spreading Church v. Johnson Publishing Co., 454 F 2d 1050 (D.C. Cir. 1971); Firestone v. Time, Inc., 460 F 2d 712 (5th Cir. 1972); Casano v. WDSU-TV. Inc., 464 F 2d 3 (5th Cir. 1972); Cervantes v. Time, Inc., 464 F 2d 986 (8th Cir. 1972); Mistrot v. True Detective Publishing Corp., 467 F 2d 122 (5th Cir. 1972); Guam Federation of Teachers Local 1581, A.F.T. v. Ysrael, 492 F 2d 438 (9th Cir. 1974); Kinloch v. News and Observer Publishing Co., 314 F Supp. 602 (E.D.N.C. 1969); Air Lie Foundation, Inc. v. Evening Star Newspaper Co., 337 F Supp. 421 (D.D.C. 1972); Buckley v. Esquire, Inc., 344 F Supp 1113 (S.D.N.Y. 1972); Adey v. United Action for Animals, Inc., 361 F Supp. 457 (S.D.N.Y. 1973).

27 Garrison v. Louisiana; Monitor Patriot Corp. v. Hanks; Ocala Star- Banner Co. v. Damron, all supra, note 26.

28 Curtis Publishing Co. v. Butts, supra, note 26.

29 Rosenbloom v. Metromedia, Inc.; Firestone v. Time, Inc., both supra, note 26. The outer limits of progression on this point now appear to have been set by Gertz v. Robert Welsh, Inc, supra, note 7, in which the Supreme Court states that defamation “unrelated to an issue of public or general interest” is not constitutionally protected. (42 LW at 5130.)

30 Plaintiff argued that the article referred to the “Executive Council,“ even though it mentioned only the “Government” and the “executive“ (uncapitalized, and prima facie thus referring to the whole executive branch of government). His brief (heads of argument) unfortunately contained a typographical error, the capitalization of “Executive” in referring to the article—an error that was carried over into the opinion of the Court as well (at page 12 of the decision). It should be noted that in Sullivan, the U.S. Supreme Court made the requirement of ready identification of an individual within a group a constitutional issue, not just a factual one.

31 Mistrot v. True Detective Publishing Corp., supra, note 26. See also Prosser, Law of Torts, 4th ed. (West, St. Paul, 1971), p. 821.

32 Adey v. United Action for Animals, Inc., supra, note 26.

33 See, e.g., Gertz v. Robert Welsh, Inc., supra, note 7.

34 New York Times Co. v. Sullivan, supra, note 6; Curtis Publishing Co. v. Butts, supra, note 26.

35 See Goldwater v. Ginzburg; Buckley v. Esquire, Inc., both supra, note 26.

36 In which respect the statement would appear to merit even higher protection than that afforded in Sullivan, where the statement was published as a paid advertisement—although such a distinction is rejected in Sullivan. See Pittsburgh Press Co. v. Human Rel. Comm'n., 413 U.S. 376, 93 S. Ct. 2553, 37 L. Ed. 2d 669, respecting commercial advertisements, however.

37 New York Times Co. v. Sullivan, supra, note 6, 376 U.S. at 292.

38 Rosenblatt v. Baer, supra, note 26.

39 See Prosser, Law of Torts, supra, note 31 at 771-72.

40 i\/ew York Times Co. v. Sullivan, supra, note 6.

41 St. Amant v. Thompson, supra, note 26, 390 U.S. at 731.

42 Firestone v. Time, Inc.; Air Lie Foundation, Inc. v. Evening Star Newspaper Co., both supra note 26.

43 As, for example, where the plaintiff has sought in vain to have the defendant check the truth of a statement before it has been published. See Buckley v. Esquire, Inc., supra, note 26.

44 Page 10 of the decision. South Africa, as noted, has no written bill of rights, but it does have a long tradition of judicially protected civil liberties, the strength of which was precisely at issue in the case.

45 There is strong South African precedent on this point. Die Spoorbond and Another v. South African Railways, 1946 A.D. 999. The point was not contested by plaintiff.

46 The Court cited the South African embodiment of the ordinary common law rule, Kleinhaus v. Usmar, 1929 A.D. 121; and Nasionale Pens, Bkpt. v. Long, 1930 A.D. 87. See also Halsbury's Laws of England, 3rd ed., vol. 24, Libel and Slander, § 15.

47 Quoting Pienaar and Another v. Argus Printing and Publishing Co., Ltd., 1956(4) S.A.E.R. 310, 318.

48 Page 9 of the decision.

49 Id.

50 “I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the State, derived from the State's subjects, could be used to launch these subjects’ actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.” Die Spoorbond and Another v. South African Railways, supra, note 45, at P. 1013 (Opinion by Justice Shreiner).

51 Compare New York Times Co. v. Sullivan, supra.note 6, at 376 U.S. at page 277.

52 Although he did not have to, the plaintiff in van Niekerk did reveal the grounds for the Executive Council's decision to reprieve the white man but not Makinitha. These included that Makinitha stabbed the victim while his accomplice merely held him and that Makinitha cheated his accomplice in a minor way with respect to the profits of the theft. More persuasively, there also was evidence that the white man may have been mentally retarded, an alcoholic and mentally unbalanced. None of these grounds, however, was published by the Executive Council (or the State President) simultaneously with the announcement of the reprieve.

53 Page 13 of the decision. Both attorneys were senior counsel.

54 The basis for such a suit would lie in the need to punish, and hence discourage, official tampering with free speech. Where a legislature is similarly concerned, it may pass remedial legislation, such as the American Civil Rights Act, 42 U.S.C. 1983. American courts appear to be increasingly willing themselves, however, to utilize the common law action for malicious persecution to discourage all vexatious litigation, even civil litigation, as long as the elements traditionally required (the bringing of an action, without expectation of success but with an aim to harass or an otherwise malicious motive, which action fails in the courts) are present. See Prosser, Law of Torts, supra, note 31, § 120. Thus malicious prosecution would not be an inconceivable option there for persons confronted with the dilemma offered in van Niekerk. Given South African policy preferences, however, it would not be likely to succeed, even if it were allowed generally in civil cases—a proposition less clear in English jurisprudence than American. See Halsbury's Laws of England, 3rd ed., vol. 25, Malicious Prosecution, § § 71 7-722.

55 It is possible, of course, that the plaintiff might also obtain a personal benefit from the action, if damages were to be awarded. The anomaly of this where the public must pay for the suit was not lost on the press in its coverage of the case.

56 As this article goes to press the uniortunate news has come that Mr. Pelser, the plaintiff in the van Niekerk case, has died. This may of course affect further litigation. Although, as noted, the case appears to transcend the normal limits of defamation, it is certainly possible that those responsible for it will simply now drop the action. It is also possible, as the pleadings are not yet closed, that the defendants may be able to force dismissal, because a defamation action does not survive the death of the plaintiff. Either of these results would, perhaps regrettably, foreclose any chance of review of the constitutional implications of the Provincial Division decision. However, the most difficult point to resolve may be the matter of attorney's fees. Thus the suit may continue to be litigated on the merits after all—if only to decide this issue.