term 2 revision

Question 1

It is likely that, if a harm-doer is found to have legally caused the harm upon application of the foreseeability test, he also would be found to have legally caused the harm upon application of the direct consequences test.

Answer 1

true

Question 2

In the case of Demmers v Wyllie and others 1980 (1) 835 (A), the disagreement between Muller JA (for the majority) and Diemont JA (dissenting) centred, not on the test whereby the meaning of the publication in question was to be determined, nor on the meaning of that publication, but rather on the meaning which the publication was alleged to have by the plaintiff in his particulars of claim.

Answer 2

True

Question 3

In the case of Argus Printing & Publishing Co v Esselen’s Estate 1994 (2) SA 1 (A), Corbett CJ held that the ordinary meaning of a publication is not restricted to its literal meaning, but includes also its implied meaning. It followed, for Corbett CJ, that the ordinary meaning of a publication includes a meaning which can be attributed to a publication only by a reader or hearer who has knowledge of special circumstances.

Answer 3

False

Question 4

The outcome in the case of Johnson v Rand Daily Mails 1928 AD 190 would have been the same, even if the plaintiff had managed to prove that the following allegation, appearing in the defendant’s newspaper, was false: ‘[O]ne had to turn back the greasy table cloths to save one’s clothes from contact with it [sic]’.

Answer 4

true

Question 5

In the case of Dhlomo NO v Natal Newspapers (Pty) Ltd and another 1989 (1) SA 945 (A), Rabie ACJ held that a trading corporation could sue for defamation if a defamatory statement concerning the way it conducts its affairs was calculated to cause it financial prejudice. However, he added that it was conceivable that a non-trading corporation may, in certain circumstances, also be granted the right to sue on the ground of considerations of public or legal policy.

Answer 5

False

Question 6

It could be true that A performed a wrongful and culpable act, and be true that B suffered harm or loss, yet be false that A committed a delict vis-à-vis B.

Answer 6

True. All the requirements of delict have to be proven. In the above example they have failed to link the harm suffered to A’s wrongful and culpable act.

Question 7

According to the case of K v Minister of Safety and Security 2005 (6) SA 419 (CC), an employer may be held liable for harm caused by his employee’s act, even if the employee’s intention in performing the act was only to promote an interest of his own, and not in any way to promote the interests of his employer.

Answer 7

True

Question 8

Where A injures B, and C – because she relies on a service provided by B which is consequently interrupted – suffers a loss, A will be held liable for C’s loss provided only that A’s injuring of B was both culpable and wrongful.

Answer 8

False

Question 9

The question whether x legally caused y can be answered by asking the question: ‘Had x not occurred, would y have occurred?’ If the answer to that question is ‘no, y would not have occurred’, x legally caused y. However, if the answer to the question is ‘yes, y would in any event have occurred’, x did not legally cause y.

Answer 9

False

Question 10

Prior to the introduction of the ‘flexible test’ for legal causation, foreseeability had no role to play in determining legal causation.

Answer 10

False

Question 11

Prior to the case of National Media Ltd and others v Bogoshi 1998 (4) SA 1196 (SCA), a press defendant in a defamation case could raise only three defences to rebut the inference that it had acted wrongfully: truth and public benefit, fair comment, and privileged occasion.

Answer 11

True

Question 12

According to the direct consequences test, harm was legally caused by conduct only if the harm was reasonably foreseeable. According to the foreseeability test, harm was legally caused by conduct if the events preceding the harm were reasonably foreseeable. A harm-doer is thus less likely to be held liable if legal causation is determined by the direct consequences test than if it is determined by the foreseeability test.

Answer 12

False

Question 13

The defence of fair comment will succeed if the following three conditions are satisfied: the defamatory statement is a comment, it is fair, and it relates to a matter of public interest.

Answer 13

False

Question 14

A plaintiff in a defamation case bears the onus of proving wrongfulness. Thus, if the court in a defamation case is unable to determine whether the defamatory statement is, on a balance of probabilities, true or false, the defendant necessarily wins.

Answer 14

False

Question 15

A person who has maliciously defamed another cannot escape liability on the basis of absolute privilege.

Answer 15

False

Question 16

In the case of Minister of Police v Skosana 1977 (1) SA 31 (A), Corbett JA (for the majority) and Viljoen AJA (dissenting) disagreed as to whether the requirement of factual causation had been satisfied because they disagreed as to whether factual causation was to be determined by applying the conditio sine qua non test.

Answer 16

False

Question 17

Where A says: ‘B told me that C is a thief’, A can escape liability for defaming C by raising the defence of truth and public interest even if it is false that C is a thief, provided it is true that B told A that C is a thief.

Answer 17

False

Question 18

In the case of Smit v Abrahams 1994 (4) SA 1 (A), Botha JA held that the plaintiff’s loss (the cost of hiring a vehicle to replace the one which had been irreparably damaged by the defendant) had been legally caused by the defendant, notwithstanding that it had been jointly caused by the plaintiff’s impecuniosity.

Answer 18

False

Question 19

Whereas the state lacks locus standi to sue for defamation, individual cabinet ministers do have locus standi to sue for defamation.

Answer 19

True

Question 20

There are only three defences available to a defendant in a defamation case: truth and public benefit, fair comment, and privileged occasion.

Answer 20

False

Question 21

A person cannot be held liable for defaming another if he believed the defamatory statement to be true and for the public benefit

Answer 21

False

Question 22

An important difference between the iniuria of defamation and that of insult is that the former can be committed only by intentional conduct whereas the latter can be committed also by negligent conduct.

Answer 22

False

Question 23

A defendant raising a defence in a defamation case has a full onus. Thus, for example, if the court in a defamation case is unable to determine whether the defamatory statement is, on a balance of probabilities, true or false, the defence of truth and public benefit must fail.

Answer 23

true

Question 24

Even where a defendant has not factually caused a plaintiff’s harm, he/she may nonetheless be held liable on the basis that he/she legally caused it.

Answer 24

False

Question 25

In the cases of Minister of Police v Skosana 1977 (1) SA 31 (A) and Siman & Co v Barclays National Bank 1984 (2) SA 888 (A), the Appellate Division applied the conditio sine qua non test for factual causation. According to that test, the question whether x factually caused y can be answered by asking the question: ‘Would y have occurred if x had not occurred?’ If the answer to that question is ‘no, y would not have occurred’, x was not the factual cause of y. If the answer to the question is ‘yes, y would in any event have occurred’, x was the factual cause of y.

Answer 25

False

Question 26

Where A negligently and wrongfully injures B or B’s property, and C – because of his relationship with B – suffers a loss, B necessarily will be held liable for C’s loss, provided only that C’s loss is not too remote. It was on this basis that the plaintiff succeeded in the case of Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA 577 (A).

Answer 26

False

Question 27

In the case of Ntsomi v Minister of Law and Order 1990 (1) SA 512 (C), Van Deventer AJ set out (even if not exactly in this form) the following requirements for a plea of self-defence to succeed: (1) there must have been an unlawful attack or threatened attack; (2) the victim must have had reasonable grounds for believing that he was in physical danger; (3) the means of defence must have been commensurate with the danger; (4) dangerous means of defence must not have been adopted when the threatened injury could have been avoided in some other reasonable way.

Answer 27

False

Question 28

As was stated in the case of Santam Insurance Co v Vorster 1973 (4) SA 764 (A), consent may constitute a defence to a delictual claim not only when it was expressed, but also when it was implied (or was tacit).

Answer 28

True

Question 29

In the case of National Media Ltd and others v Bogoshi 1998 (4) SA 1196 (SCA), Hefer JA abolished the rule that had been introduced in the case of Pakendorf v De Flamingh 1982 (3) SA 146 (A), namely that press defendants in defamation cases were strictly liable and therefore could not escape liability on the ground of truth and public benefit, fair comment, or privileged occasion.

Answer 29

False

Question 30

In Khumalo v Holomisa the Constitutional Court rejected the applicants’ argument that, to the extent that the common law of defamation does not require a plaintiff to allege and prove the falsity of a defamatory statement, it is inconsistent with the Constitution.

Answer 30

True

Question 31

In Demmers v Wyllie the Appellate Division stated that the test to be applied to determine the ordinary (or primary) meaning of an allegedly defamatory publication is an objective one.

Answer 31

true

Question 32

In Mohamed v Jassiem the Appellate Division rejected the argument that the defamatory words in question had been uttered on a privileged occasion, on the ground that, objectively, the person uttering those words (a certain Nazim) had not been under a duty to speak as he did, nor had a legitimate interest in doing so.

Answer 32

True

Question 33

In Sauls v Hendrickse the Appellate Division concluded that the allegedly defamatory words uttered by the defendant (Hendrickse) did not refer to the plaintiffs (certain office-bearers of NAAWU) personally.

Answer 33

True

Question 34

In Johnson v Rand Daily Mails the Appellate Division held that, for a defendant to avoid liability for the publication of defamatory matter on the basis that the published matter was true and in the public interest, everything stated by the published matter (whether it fell within or without the ‘sting’ or ‘gravamen’ or ‘gist’ of the published matter) had to be true.

Answer 34

False

Question 35

In Crawford v Albu the Appellate Division held that, for a defendant to avoid liability for the publication of defamatory matter on the basis that the published matter constituted fair comment, it was sufficient that the published matter (a) constituted a comment, (b) concerned true facts, and (c) was fair.

Answer 35

False

Question 36

In May v Udwin the Appellate Division held that, for a defendant to avoid liability for the publication of defamatory matter on the basis that the published matter was privileged, it was in all cases necessary (a) that the matter was published on a privileged occasion, (b) that the published matter was germane or relevant to that occasion, and (c) that the defendant had published the matter without malice.

Answer 36

False

Question 37

1. In National Media v Bogoshi the Supreme Court of Appeal overruled the Appellate Division’s decision in the case of Pakendorf v De Flamingh, in so far as that had held that the owner, editor, publisher, and printer of a newspaper were strictly liable for any defamatory matter published therein, and thus could avoid liability only by showing that the matter had been true and in the public interest or had constituted fair comment.

Answer 37

False

Question 38

In Le Roux v Dey the Constitutional Court held that, while the manipulated photograph of the plaintiff had not been defamatory of him (because no right thinking person would have thought less of the plaintiff as a result of seeing it), it was insulting of him (because it was reasonable for the plaintiff to have felt affronted by it).

Answer 38

False