Norris v Attorney-General

[2015] BLR 290 (HC)

Citation [2015] BLR 290 (HC)

Court High Court (Gaborone)
Case No Civ Case No 2276 of 2014
Judge Sechele J
Judgment May 7, 2015
Counsel Attorney Rankoro for the plaintiff.
Attorney Mabophiwa for the defendant.

Flynote
Defamation — Defamatory matter — Newspaper article — Whether defamatory — Publication of name of person
convicted of drunken driving — Person convicted having same name as plaintiff — Reasonable, right thinking person
reading article would think that it was plaintiff — However, no intention shown on part of the defendant to injure
plaintiff. C

Headnote
The plaintiff instituted action for damages for defamation arising from the publication by the Ministry of Defence, Justice and
Security in a daily newspaper of his name in a list of names of persons convicted of drunken driving offences in the
month of April 2014. The plaintiff happened to share the same name as the person convicted, a Canadian national. The
parties D formulated a question of law, many of the facts being common cause, questioning whether in the
circumstances the ordinary reasonable person reading the article would have understood it to refer to and or apply to
the plaintiff. The defendants contended further that the statement complained of was not made animo iniuriandi.
Held:
(1) A reasonable, right thinking person of average education and E normal intelligence would not embark on an inquiry
to find out if indeed the Daniel Norris referred to in the publication was the plaintiff but would rather draw his
conclusions purely on the basis of the publication, not needing to know whether or not the plaintiff ever attended
court on such a charge, and would understand the statement as referring to the plaintiff.
(2) The defendant had rebutted the unlawfulness of the publication by F giving a detailed outline of the criminal trial
that culminated in the conviction of Daniel Norris, the Canadian person, and ultimately the publication. This rebuttal
was not a bare denial but a candid and well-documented rebuttal of any imputation of wrongdoing on the
defendant's part. There was neither an intention on the part of the defendant to inflict injury on the plaintiff nor
had she acted unlawfully in publishing the list in G which the name appeared. The action was dismissed.

Cases referred to:

Hardaker v Phillips 2005 (4) SA 515 (SCA)
Hulton (E) & Co v Jones 1910 AC 20; [1908 – 10] All ER Rep 29 H
National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA); 1999 (1) BCLR 1; [1998] 4 All SA 347; [1998]
ZASCA 94
Newstead v London Express Newspaper Ltd [1939] 4 All ER 319; [1940] 1 KB 377
Young v Kemsley and Others 1940 AD 258

Case Information
Action for damages for defamation. The facts are sufficiently stated in the judgment.
[2015] BLR p291

Attorney A Rankoro for the plaintiff.

Attorney Mabophiwa for the defendant.

Judgment
Sechele J:
On Thursday 22 May 2014, the Ministry of Defence, Justice and Security B published in the Daily News newspaper names of
drunken driving convicts for the month of April 2014. On this list was the name Daniel Norris, a name which the plaintiff
herein happened to share with the convict, a Canadian national.
The plaintiff a lecturer at Borolong Vocational Training Centre had pursuant to the publication aforesaid instituted
proceedings claiming P2 000 000 as damages for defamation. He maintained that the inclusion of his name in the list of C
drunken driving convicts was understood by the readers to mean that:
(i) He is not a law-abiding citizen.
(ii) He is guilty of criminal conduct in that he was convicted of the offence of drunken driving.
(iii) He is a criminal.
(iv) D He is without moral fibre.
(v) He is an irresponsible adult.
Due to the narrowness of the issue that the court has to decide, it was agreed that the matter proceed by way of a stated
case. The following facts were agreed:
(a) E That the plaintiff is indeed Daniel Norris.
(b) That the Government of Botswana through the department of information and broadcasting is the owner, publisher,
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 distributor and printer of the Daily News newspaper.
(c) That on 22 May 2014, an article and/or advertisement and/or press release F from the Ministry of Defence, Justice
and Security entitled 'Names of persons convicted of drunken driving for the month of April 2014' was published in the
said newspaper.
(d) That the newspaper aforesaid is widely distributed freely in Botswana and is widely read by the general public.
(e) That the name Daniel Norris was listed in the article G and/or advertisement and/or press release aforesaid.
(f) That Daniel Norris, the plaintiff, was never convicted of a drunken driving offence in April 2014.
The parties formulated the question of law thus:
'W hether H in the circumstances of the foregoing agreed facts, and applying the test for defamation, the ordinary reasonable person
reading the article w ould have understood it to refer and/or apply to the plaintiff.'
In order to succeed, the plaintiff must prove the following:
(a) Publication.
(b) A defamatory statement concerning or referring to him.
[2015] BLR p292
Sechele J
(c) That the words had the effect of lowering his reputation in the estimation of A right thinking people.
The element of publication affords very little difficulty. On the facts, this can be taken as proved. It is with the other two
elements that a real contest arises. Mr Rankoro learned counsel for the plaintiff submitted that the advertisement was
understood by its readers to be referring to the plaintiff in that it made no B distinction between Daniel Norris, the convict,
and Daniel Norris the plaintiff. He submitted further that once the plaintiff has alleged that the words or conduct complained
of are per se defamatory then it is for the court to determine the ordinary meaning of the words or conduct complained of.
He referred the court in this regard to Burchell Principles of Delict (Juta & Co, 1993) at p 162 and further referred the court
to p 163 of the same book in which the author is quoted C as having stated as follows:
'Thus a person can be defamed even though others to w hom the matter is published do not believe the imputation against the
plaintiff. It is sufficient if the ordinary, reasonable reader or bearer w ould have believed the imputation.'
Ms Mabophiwa on the other hand submitted that in as much as there was D nothing to distinguish the convict from the
plaintiff, neither were there any distinguishing features which could have led ordinary readers to the imputation of the
conduct complained of to the plaintiff. She submitted further that a reasonable, right thinking person of average education,
normal intelligence and who is not overly critical or sensitive would not have imputed drunken driving to the plaintiff. Such
reasonable reader would have considered the following: E
(a) Whether the Daniel Norris he knew takes alcohol.
(b) Whether the Daniel Norris he knew ever attended court on a drunken driving charge.
(c) That there was a possibility of there being another person who shared the F name 'Daniel Norris' with the plaintiff. Ms
Mabophiwa relied in the regard on the English case of Hulton (E) & Co v Jones 1910 AC 20; [1908 – 10] All ER Rep 29
wherein the court stated at p 23:
'The averment that the libel w as w ritten of and concerning the plaintiff is a material averment, and unless sensible people
reading the libel could see that G it referred to the plaintiff it w ould not be a libel.'
The court was further referred to the case of Newstead v London Express Newspaper Ltd [1939] 4 All ER 31; [1940] 1 KB
377 wherein the court took the view that the fact that the words complained of were intended to refer to, and were true of
an existing person who was not the plaintiff did not afford a defence. H The court however qualified this by stating that the
question whether reasonable persons would understand the words to refer to the plaintiff was essential to the success of
the plaintiff in the action.
The name Daniel Norris appeared in a list of some 247 names. The reader with whom the court is concerned is one who is
reasonable, right thinking and of average education and normal intelligence. See Young v Kemsley 1940 AD 258 at p 281.
[2015] BLR p293
Sechele J
Such A reader will not in my view embark on an enquiry to find out if indeed the Daniel Norris referred to in the publication
was the plaintiff. He will draw his conclusions purely on the basis of the publication and need not know whether or not the
plaintiff ever attended court on a charge of drunken driving for he may reside in another corner of this vast country or
simply have been unaware of the institution of such proceedings against the plaintiff. A reasonable reader would, B in my
view, understand the statement as referring to the plaintiff.
The defendants have further contended that the statement complained of was not made aminus injuriandi. The law creates
a presumption in favour of the plaintiff that it was, and the defendant bears the burden of disproving aminus injuriandi. In
Hardaker v Phillips 2005 (4) SA 515 (SCA) Scott JA stated as C follows at p 524F – G:
'It is now firmly established that publication of a defamatory statement (or other defamatory material) gives rise to tw o presumptions:
first, that the publication w as unlaw ful, and second, that the statement w as made animo injuriandi, ie w ith a deliberate intention to
inflict injury. (See eg Joubert and Others v Venter 1985 (1) SA 654 (A) at 696A.) W hile the tw o presumptions D arise from the same
event, they are essentially different in character. The presumption of animus injuriandi relates to the defendant's subjective state of
mind; the presumption of unlaw fulness relates to objective matters of fact and law . (Neethling v Du Preez and Others; Neethling v The
Weekly Mail and Others 1994 (1) SA 708 (A) at 768I – 769A.) Until comparatively recent times, there w as doubt as to the nature of E
the onus of rebuttal. It is now settled that the onus on the defendant to rebut one or other presumption is a full onus, ie it must be
discharged on a preponderance of probabilities. (Mohamed and Another v Jassiem 1996 (1) SA 673 (A) at 709H – I.) A bare denial on
the part of the defendant w ill therefore not suffice. Facts must be pleaded by the defendant that w ill legally justify the denial of
unlaw fulness. (National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1) at 1202H (SA).)'
In F National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA); 1999 (1) BCLR 1; [1998] 4 All SA 347; [1998]
ZASCA 94 Hefer JA stated at p 1204D – E:
'But it is hardly necessary to add that the defences available to a defendant in a defamation action do not constitute a numerus
clausus. In our law the G law fulness of a harmful act or omission is determined by the application of a general criterion of
reasonableness based on considerations of fairness, morality, policy and the Court's perception of the legal convictions of the
community.'
The defendant at para 2 of her plea outlined the background to the publication H that gave rise to plaintiff's claim. In
particular the defendant admitted publishing a list in which the name 'Daniel Norris' appeared but sought to rebut the
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 unlawfulness thereof by giving a detailed outline of the criminal trial that culminated in the conviction of Daniel Norris, the
Canadian, and ultimately the publication. This in my view is not a bare denial but a candid and well documented rebuttal of
any imputation of wrongdoing on defendant's part. There was in a nutshell, neither an intention on the part of the
defendant to inflict injury on the plaintiff nor did she act unlawfully in publishing the list in which the name Daniel Norris
appeared.
[2015] BLR p294
Sechele J

The plaintiff's claim will for the above reasons fail. In conclusion, the A following order is made:
(a) The action is dismissed with costs.
The action for defamation is dismissed with costs. B

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