SOUTH AFRICAN LAW REPORTS (1977) (3) (Translation)

Transcription

1 SOUTH AFRICAN LAW REPORTS (1977) (3) creating confusion, plaintiff quite clearly stated that the goods sold (V the carpets) were delivered by installation thereof or laying, as it^ called in para. 2 of the particulars. But in para. 3 of the particulars i t S stated clearly that both the purchase price and installation cost arose out of one quotation which defendant s spouse accepted on his behalf. We are therefore dealing here with a single claim consisting of different components, but which arose from a single agreement and the following words of O g ilv ie T h om pson, J. (as he then was), in Beaufort Furniture & Joinery Manufacturing Co. (Pty.) Ltd. v. De Vos, 1950 (1) S.A. 112 (C) at p. 114 are in my opinion directly applicable: E The.case of DuPlessis v. Pioneer Garage, 1951 (4) S.A. 129 (O), on which the court a quo apparently relied very strongly, is (if the decision was correct, in connection with which I would rather not air an opinion) clearly distinguishable, because in that case, as stated in the head note there was nothing to indicate that the claim was confined to one contractual subject-matter. I therefore think that the magistrate should have dismissed the exceptions with costs. The appeal succeeds with costs. The magistrate s judgment is altered to read: ' Exceptions dismissed with costs. Va n d e n H eever, J., concurred. Appellant s Attorneys: Duncan & Rothman. Respondent s Attorneys: Elliott, Maris, Wilmans & Hay. 394 F SOUTH AFRICAN BROADCASTING CORPORATION v. O MALLEY. (A ppellate D ivisio n.) March 7; May 5. R u m pff, C.J., Ja n se n, J.A., D e Y illiers, J.A., M iller, J.A., and Jo ubert, A.J.A. Defamation. By a broadcasting corporation of a newspaper editor. What constitutes. Distinction between news reports over the radio and written reports. Approach of Court. Quaere: Whether strict liability for defamation by the press and radio is acceptable in our law. In regard to the question of what the listener to news reports (news reports over the 606

2 SOUTH AFRICAN LAW REPORTS (1977) (3) radio upon which a defamation action was grounded) would have thought, the standard is the fictional, normal, level-headed, orthodox and reasonable man. Such a person is obviously not hypercritical or oversensitive. There is, however, a distinction between the reader of a report and the listener to a report over the radio. Where something appears to be uncertain, the reader can cast his eyes for a second time over what he has read or what he thought he read, but the listener to a news report cannot ask the announcer to read the news once again.,the result, is that a first impression will, for many, be the last impression, although the impression, for some, may later be changed in one way or another. Quaere: Whether, by reason of the fact that undoubtedly the particular position of the press and radio, which are powerful media, can place a defenceless citizen in a difficult position, the view that strict liability of the press exists in our law should be acceptable. Respondent had successfully sued appellant for.damages for defamation in a.local Division. Respondent had alleged that a news report broadcast over the appellant s English service had defamed him. The news report had stated that respondent, the editor of a daily newspaper, has been arrested in terms of the Riotous Assemblies Act and that 13 other people were arrested earlier yesterday evening after several hundreds non-whites, and a number of White students, attended an illegal meeting. Respondent hid alleged that the new report meant, knd 'was understood to - have meant, that he had attended the illegal gathering and had been arrested bn a charge of having attended the illegal gathering. In truth- respondent hald been arrested at a wine tasting contest at an hotel in connection with an advertisement of the illegal gathering which had appeared in his newspaper. In an appeal the appellant contended that the report was true and correct in every respect.and that it had been published without any animus irijuriandi towards the respondent in the interests of the general1public. It was further contended that the report was ambiguous and that such ambiguity,was in itself proof of the abseiice of animus injuriandi. 396 Held', that appellant s contention would perhaps have been justified if it had been based upon a fine analysis of the written report, but the case had turned on the unique impression which the listener received. Held, further, that the evocative impact of the title of the Riotous Assemblies Act, which was referred to in the reports, itself suggested that a meeting was implied and, if the reports then also referred to a specific meeting, a listener would indeed have gained the impression, after hearing the report in its entirety, that respondent had attended an illegal meeting. Held, further, that it did not help to rely on an ambiguous wording of the report in order to rebut the presumption of animus injuriandi: if it was. found that the reports would have been regarded as defamatory by the listener, there had to be evidence to rebut the existence of animus injuriandi. Held, further, that the presumption of animus injuriandi had not been rebutted. The decision in the Witwatersrand Local Division in O'Malley v. South African Broadcasting Corporation, 1976 (3) S.A. 125, confirmed. Appeal against a decision in the Witwatersrand Local Division (Irv in g Steyn, J.). The facts appear from the judgment of R um pff, CJ. R. Kruger, S.C. (with him F.S. Sutton), for the appellant: tf«55 607

3 SOUTH AFRICAN LAW REPORTS (1977) (3) 398 A S. Kentridge, <&'.C. (with him R. J. Golds tone), for the respondent: 399 H Kruger, S.C., in reply.. Cur. adv. vult.. Postea (May 5), 400 R um pff, C.J.: In this case the appellant has noted an appeal against an order of a Court in the Witwatersrand Local Division, according to which appellant must pay an amount of R2 000 to respondent as damages for defamation. A portion of the judgment of the Court a quo appears in O'Malley v-. South African Broadcasting Corporation, 1976 (3) S.A. 125 (W). Respondent is the editor of The Daily News, a newspaper which is pointed.,and distributed in Natal. Appellant was formed by Act 22 of 1936 and its. address is given as Broadcast House, Johannesburg. In his particulars of claim, respondent (plaintiff) averred in para. 4 (a) that appellant (defendant) had broadcasted news reports, on 26 September 1976 at different times of the morning, inter alia, on the English service, which were heard over the whole Republic and elsewhere. In the news reports the following was reported inter alia: C In the eight o clock news on the English, service, this report was followed by the following: D The particulars of claim aver the following in para. 4 (c): E And in para. 5: F In the plea of the appellant it was admitted that the news report which appeared in the particulars of claim was read on the radio, but the follow 608

4 SOUTH AFRICAN LAW REPORTS (1977) (3) ing defences were then raised: 3. (b) The defendant denies that the news reports could mean, or could be understood to mean that the plaintiff had attended ah illegal meeting, or that he had been arrested on the grounds thereof. (t) The defendant says that the afore-mentioned news reports are true and correct in every respect and are based on information received from the sources stated in the afore-mentioned news reports. (d) Said sources are extremely reliable and the defendant broadcasted the said news reports without any animus injuriandi against the plaintiff and in the interests of the general public of the Republic of South Africa. From evidence led on respondent s behalf, it appears that when the news report concerned was read, appellant s staff were in possession of, inter alia, a report from the South African Press Association (called in 401 brief SAPA), which was sent to appellant in Johannesburg at on 25 September. This report reads as f o l l o w s B Another report from SAPA, which was received by appellant injohannesburg at 1.13 on 26 September, contained the following about respondent : ) 401 E Three people gave evidence on respondent s behalf and said that they had heard the report in question. One was Dawid Edward James, news editor of The Daily News. He said that respondent was one of the senior newspaper editors in the country and enjoyed a high reputation in the newspaper world. He heard an Afrikaans version of the- news report on Radio Port Natal, which broadcasted a report at 6.30, which was essentially the same as that mentioned above, except that it was specifically mentioned therein that the illegal meeting was held at Curries Fountain in Durban. James said that he had immediately thought that respondent was at Curries Fountain. A certain Milne from Johannesburg, overseas editor of the Argus Group of newspapers, to which the Daily News belongs, and an architect, Reeves, from Durban, stated that after hearing the report they thought that respondent was at the banned meeting. From the evidence led on the respondent s behalf, it can be concluded that newspapers, which appeared later on 26 September, contained the tiue version of respondent s arrest. 609

5 SOUTH AFRICAN LAW REPORTS (1977) (3) No evidence was adduced on behalf of the appellant. In the particu of claim the respondent expressly avers that appellant.! meant and was -understood to mean that the plaintiff had attem an unlawful meeting and had been arrested on a charge of having dc so and in its plea.appellant expressly avers that it had;broadcasted the ne reports,,, r. without any animus injuriandi against the plaintiff and in the interej of the general public of the Republic of South Africa.. 402,. It must be accepted that in our law the publication of defamatory word gives.rise to a presumption that the words were intentionally publishet and. that, the publication was unlawful. Owing to the adoption of th< Engiish-terminology in our law of defamation, the two essential, element} of defamation as a delict, namely unlawfulness and fault, did not always come clearly to the fore and considerable confusion arose. Before the word privilege made its appearance in the English law, lawfulness was apparently accepted as a defence in that law. In his work, On Actionable Defamation,-2nd ed., Spencer,Bower explain^ at.p. 318 that the word privilege, with a few exceptions, made its appearance in the law of defamation in the first half of the 19th century and in support of his view that the word privilege should be replaced by immunity he states following at pp ;...^, V 402 E At. p. 325 he refers to a number of decisions from 1796 to 1868 as examples wherein the term lawful is used when there would be no liability owing to. lawfulness and. he also refers to a number of decisions from 1796 to 1873 in which the word justified or justification is used to indicate forms of a defence based on lawfulness and not merely, the limited form of justification. 'Also; the importation of the words malice and express malice from'.english' law, as. far as fault is concerned,'frequently veiled the true principle regarding fault in our law. In Whittaker and Moerant v. Roos and Bateman, 1912 A.D. 92, wherein an intentionally unlawful act was involved and reference was made to the act as a wrongful and intentional interference with those absolute rights relating to personality, Innes, J.A.; at p. 131 clearly set out the principle which ought to apply: > 402 H f 99,, It must be accepted that intention in ;this sense involves dolus directus as well as dolus eventualis in our law. The presumption of unlawfulness 610

6 SOUTH AFRICAN LAW REPORTS (1977) (3) can be rebutted in our law by evidence which indicates that the defamatory words were used in circumstances which, excluded unlawfulness and when the question arises whether the publication of the defamatory words was 403 lawful or unlawful, it is the Court s task to establish, in so far as the common law is concerned, if public policy requires that the publication be considered justified and therefore must be held to be lawful. The standing English privileges are considered to be just privileges, because the publication of the defamatory words in the particular circumstances are considered to be in the interest of public policy. Cyi Eraser, On Libel and Slander, 7th ed., p The circumstances which give rise to the so-called privileges in English law, also apply as examples of circumstances which exclude unlawfulness. The presumption of animus injuriandi which arises by reason of the publication of the defamatory words, places an onus of rebuttal on the defendant who can rebut the presumption by adducing evidence that he did not have such an intention. A mere denial of the animus injuriandi would be insufficient to enable a plaintiff to know what facts the defendant is going to submit to the Court and therefore the defendant^ in its plea, or further particulars* should, set out the facts on the grounds whereof it avers that it did not.have the animus injuriandi. At this stage it can be accepted that the animus injuriandi is the state of mind of intending the particular result, in the sense already mentioned, with the knowledge that the intended result will be unlawful. Cf. Maiselv. Van Naeren, 1960 (4) S.A. 836 (C); Nydoo and Others v. Vengtas, 1965 (1) S.A. 1 (A.D.); Wentzel v. S.A. Yster en Staal Vereniging en Andere; Wentzel v. Blanke Motor Werkersvereniging en n Ander, 1967 (3) S.A. 91,(T). In the present case the matter concerns the South African Broadcasting Corporation which was established in terms of Act 22 of 1936 and which, for the purposes of the law regarding defamation, can be placed mutatis mutandis on the same footing as the owner or publisher of a newspaper. In the first half of the previous century already, the point of view was held in our law that when an editor of a newspaper is sued for defamation, the absence of animus injuriandi cannot serve as a defence, see e.g. Hill v. Curlewis and Brand, (1844) 3 Menz In Hartley v. Palmer; Hartley v. Central News Agency, (1907) 24 S.C. 288, the second defendant was the owner of a weekly paper. The defendant s plea is summarised as follows at p. 2 3 : G A small amount of damages is also offered with costs. Concerning this defence, the view of the Court is summed up as follows at. p. 236: <«403 H In African Life Assurance Society Ltd. v. Phelan and Others, (1908) 611

7 SOUTH AFRICAN LAW REPORTS (1977) (3) 25 S.C. 743, the Court dealt with a defence of fair comment, rejected j and thereafter at p. 759 said: H / The element of fault is therefore not considered, but the unlawfulnes, of the publication in fact. In Wilson v. Halle and Others, 1903 T.H. 178 the defendant was the owner, publisher and editor of a newspaper. 404 At pp. 200 and 201 the Court said the following, inter alia: A And further: B In Dunning v. Cape Times Ltd., 1905 T.S. 231, the Court said at p. 233 in respect of the printers of the newspaper in which defamatory matter appeared, and in respect of a defence that the printers would not be liable because they did not know of the d e f a m a t i o n C In Dunning v. Thomson & Co. Ltd., 1905 T.S. 313, it was confirmed that a printer and a distributor are liable. In respect of a newsvendor, an opinion is expressed that in certain cases there can only be liability by reason of negligence. This 'principle is accepted in, inter alia, Trimble v. Central News Agency Ltd., 1934 A.D. 43. In Robinson v. Kingswell; Argus Printing and Publishing Co. Ltd. v. Kingswell, 1913 A.D. 513, this Court, in connection with a certain criminal law provision regarding defamation in Ord. 49 of 1902 (T), said the following at p. 526: 404 G The decisions in our law, to which reference was made supra, are clearly in agreement with the English common law, according to which liability by reason of defamation is based on the publication thereof and not on a particular intention, and according to which the owner, printer, publisher and editor of a newspaper are held liable on account of defamation, even if these persons did not know of the defamation. The acceptance in our law of this principle creates a state of affairs whereby strict liability in respect of certain persons is admitted and criticism that this principle of strict liability would be in conflict with our presently accepted concept of animus injuriandi in the law of defamation, would in fact be justified. 612

8 SOUTH AFRICAN LAW REPORTS (1977) (3) In my opinion there would, however, be good reasons existing as to why this class of persons should be strictly liable, by way of exception. The 405 exception could be essentially based on protection of the ordinary citizen against a class of persons who are involved in a medium, which is of such a nature that in the event of defamation committed in the medium, it is difficult to pinpoint the intention of a particular person. That strict liability is acknowledged in Roman law and in our own law in certain cases of delictual damage, appears, inter alia, from the actio de effusis vel deiectis, which is awarded to a passer-by who is injured by things thrown or dumped out of a building. The occupier of the building is held liable for the particular act performed by a resident person and, in my opinion, this is a beneficial protection of innocent passers-by, who might find it extremely difficult to prove which particular resident committed the act. In Craig v. Voortrekkerpers Ltd., 1963 (1) S.A. 149 (A.D.), the defendant in the trial Court was the owner and publisher of a daily paper. In the plea against a claim on account of defamation it was contended that the publication challenged took place in a bona fide manner, without the intention to injure^ and in the normal course of the defendant s business. Apart from a denial that the publication was defamatory, it was also contended that the allegations in the report were true and in the public interest. The trial Court held that a fair report of the proceedings of a responsible body was protected if it is, inter alia, of public interest. On appeal to this Court, this Court accepted that the finding of the trial Court amounted to a finding that there was a so-called privileged occasion. Apparently the question of the defendant s strict liability was not raised in the trial Court, notwithstanding the wording of the plea and in this Court no argument was directed based on such liability. On the contrary, according to the heads of argument it was contended that: The position of the press in our law of defamation is nothing stronger or weaker than the position of any other individual or entity; cf. Marks v. Conservative Newspaper Co. Ltd., (1886) 3 T.L.R That English case concerned the defence of an owner of a newspaper who relied on a bona fide and fair version of an ex parte legal suit. The report was inaccurate and false, and the defence did not succeed. All that is actually dealt with in the judgment of the Craig case is the question whether a privileged occasion was proved by defendant or not and the judgment in the Craig case therefore does not affect the judgment of this Court in the Kingswell case of 1913 at all. It must in my opinion also be accepted that where reference is made in the Craig case to the animus injuriandi as intent, which comprises of the intention and knowledge, coupled with the aim of injuring, the concept must be so interpretated that intention means the intention of defaming with the knowledge of unlawfulness, and that in this regard motive is something different to intent. In a later case, Hassen v. Post Newspapers (Pty.) Ltd. and Others, 613

9 SOUTH AFRICAN LAW REPORTS (1977) (3) 1965 (3) S.A. 562 (W), what was actually concerned was an apparent dual defence. In a weekly paper a photo appeared of someone who was charged of a certain offence and the caption above the photo incorrectly indicated that the photo was that of plaintiff. Although the owner, the printer and the publisher and distributor of a weekly paper were the defendants, and although there is a reference in the judgment to the heavy responsibility which rests on a person who publishes a newspaper, there is no reference to the strict liability of the press as accepted in the above-mentioned 406 decisions of our Courts. This apparently happened owing to what was averred iii the plea, which inter alia averred that the caption above the photo was published under the bona fide mistaken belief without recklessness or negligence on their part.. that the intention... was lawful in that it was to publish in the ordinary course of the business a fair and accurate report on a matter of public interest and that in the circumstances the defendants wrote, printed, published and distributed the matter complained of without any intention of defaming the plaintiff. In the judgment the subjective nature of the animus injuriandi was enlarged upon, with reference to certain decisions of this Court, inter alia, Nasionale Pers Bpk. v. Long, 1930 A.D. 87, and also to the Craig case. In the Long case Long, the editor of a newspaper, averred that he had been insulted by an article of another newspaper, Die Burger. The defendant was the owner of Die Burger. The matter chiefly concerned the question whether, in the particular circumstances the plaintiff had been affected, either personally or as editor, on account of the allegation that a false report had appeared in his newspaper. At p. 98 the following question is posed in the judgment of this Court: D After a brief reference to certain English decisions the judgment continues at p. 99 as follows: F And further: H In the Hassen case at pp. 575 and 576 the following inference is then drawn; A Although the Hassen case dealt with the liability of an owner of a 614

10 SOUTH AFRICAN LAW REPORTS (1977) (3) 407 newspaper and the presence of an animus injuriandi was discussed and apparently accepted, the Court did not specifically consider the possibility of strict liability of the press as an exception. The facts of the Long case and what was said about our law therein, is in my opinion no justification for the inference regarding negligence which appears in the judgment in the Hassen case mentioned above. The decision in the Long case states very clearly, as premise, that there must be an intention to commit a wrong in defamation. -Concerning the facts, Die Burger alleged a false report of a speech of General Hertzog had appeared in the Cape Times and that it could not be accepted that the reporter, who only knew a little bit about his work, could have understood his words so incorrectly. In my opinion it is clear that in the Long case the actual approach was that the author of the defamation was aware; of the fact that certain persons, amongst whom the plaintiff, could be affected by the defamation and that the author stood recklessly towards the consequences, It must be confirmed that in our law no action on account of defamation can be based on negligence. That the result of the ijassen case could in fact be regarded as correct, could in fact have been possible, had the particular dispute been approached on the basis of strict liability of the press. An example of an express exception in the law of defamation where the absence of negligence is acknowledged as a defence (in accordance with English law) is found in the position of a news distributor. In his case, this.court referred in the Trimble case, supra, to an English decision which was cited by a Judge in the Transvaal Provincial Division and this Court said with approval: F. See also, in general, the article of R. McMillan in the South African Law Journal (1975) entitled: Animus Injuriandi and Privilege p An enlightening article on the problem of defamation and the press is that of Prof. J. C. van der Walt at p. 41 of the Gedenkbundel H. I. Swanepoel, entitled The Liability of the Press on the Ground of Defamation. That due to the particular position of the press and the radio, which are powerful media, a defenceless citizen can be placed in a difficult position is undoubted and the view that strict liability of the press exists in our law, shpuld, in my opinion, be acpeptable. In any event the subject was not argued' before us and it is unnecessary to discuss the subject further, for the purposes of this case. The pleadings and the facts in the case in question must be considered against this background. In the first place it is denied that the news reports can be interpreted in such a manner that they contain defamation. Although the appellant, in the second place, avers that the news reports concerned were true and correct in every respect and are based on information received from the sources stated in the aforementioned news reports, 615

11 408 SOUTH AFRICAN LAW REPORTS (1977) (3) 408 and also avers that such sources are extremely reliable and the news reports were broadcasted without any animus injuriandi against the plaintiff in the interests of the general public, no attempt was made in the plea to otherwise rebut the presumption of animus (injuriandi. It is conceded on behalf of appellant that, as far as the plea is concerned, absence of animus injuriandi must be coupled with the fact that reliable sources were used in the compilation of the news reports and that the Court a quo was brought under the impression that the appellant was not going to try and prove the absence of animus injuriandi. There were therefore essentially a denial that the report was defamatory and, subject to what was later said, an alternative plea averring the lawfulness of the publication, based on truth and public interest, and on which appellant can in fact rely. This defence stands in connection with the defence that ' the news reports did not contain defamation, because if the news reports should be interpreted as containing defamation, it would in the present case at the same time be an interpretation eliminating the defence of truth. In regard to the question of What the listener to the news reports would have thought, the standard is the fictional, normal, level-headed, orthodox and reasonable man. Such a person is obviously not hypercritical or oversensitive. There is, however, a difference between the reader of a report and the listener to a report over the radio. Where something appears to be uncertain, the* reader can cast his eyes for a second time over what he has read or what he thought he read, but the listener to a news report cannot ask the announcer to read the news again. The result is that a first impression will, for many, be the lasting impression, althoug the impression for some, may later be changed in one way or another. The trial Court in essence applied the standard of the fictitious listener, as described above, took into account the difference between the reader of a written article and the listener to a radio report and arrived at the following conclusion: G On behalf of appellant it was contended that everything appearing in the report was essentially true, that there were actually two separate reports from Cape Town and from Durban and that it appears from the reports that the other persons arrested were arrested earlier on than the respondent and that his arrest took place later that evening. It also appears, as was argued, that respondent is not a non-white, or a student and that it would for that reason be apparent that respondent was not involved with the arrest of those people. On behalf of appellant it was argued that according to the reports a listener could only arrive at the following conclusion, viz. that the respondent was arrested in terms of the provisions of the Riotous Assemblies Act, that his arrest had something to do with the meeting and that other people were arrested earlier than the respondent 616

12 and after the meeting and that those people did not include the respondent. 409 SOUTH AFRICAN LAW REPORTS (1977) (3) I think that approach would possibly be justified if it was based on a fine analysis of the written report, but what is actually involved here is the first impression which the listener received. In addition there is another factor to be taken into account in the present case, the evocative impact of the title of the Act, viz. the Riotous Assemblies Act, which was referred to in the reports. In itself it suggests that a meeting was implied and, if the reports then also referred to a specific meeting, it appears to me that a listener, as described above, would indeed gain the impression, after hearing the report in its entirety, that respondent had attended a prohibited meeting and that the finding of the trial Court cannot be regarded as incorrect. On behalf of appellant it was contended that although no evidence was led regarding the absence of animus injuriandi, the ambiguity of the reports (which is not admitted) is in itself proof of the absence of the animus injuriandi. It was further argued that the reports as they appear in writing, comprised of two separate paragraphs and that from this it would appear that the compiler had not the intention of causing confusion, although the separate paragraphs would not have been capable of being heard. From this no' dolus eventualis could be inferred, so it was argued. The reports in the present case are regarded to be defamatory because the listener would have gained the impression that the respondent attended a banned meeting. In order to rebut the presumption of animus injuriandi in this case, it does not help to rely without more ado on an ambiguous wording of the report, or the existence of two paragraphs. If it is found that the reports would have been regarded as defamatory by the listener, there has to be evidence to rebut the existence of animus injuriandi. Why the compiler compiled the report in this manner without mention of the actual place of and reason for the arrest is e.g. unknown. The presumption of animus injuriandi was therefore not rebutted. In the course of his judgment the trial Judge referred to an address that the appellant had acted with recklessness by broadcasting the reports in the form in which they were seeing that the actual circumstances, viz. the place of arrest and the reason for the arrest was known to appellant. This argument was considered by the trial Judge to be valid and he took the same argument into consideration in the determination of the damages. It would appear to me that the address regarding recklessness, is in the first place an address which turns on the question whether there was indeed animus injuriandi and that reference was made to recklessness to confirm animus injuriandi. That alleged recklessness can indeed be considered is clear if, inter alia, the question arises whether there was dolus eventualis or not. In the determination of compensation reckless publication of defamation could in fact be taken into account, but then defamation has already been proved (owing to intention) and the word reckless 617

13 SOUTH AFRICAN LAW REPORTS (1977) (3) ness is used in another regard. In the present case it is ironic that if the report had contained the true reason for respondent s arrest, viz. the publication on the front page of the newspaper that a prohibition placed on a gathering in terms of the provisions of the Riotous Assemblies Act would be defied, there would in fact have been lawful publication. The prohibition is placed on a gathering in terms of the Act when a magistrate has reason to fear that the public order could be gravely endangered in 410 certain mentioned circumstances. Sec. 2 (6) {a) reads as follows: 6 (a) Any person who, after the prohibition, in terms of this section, of a gathering - (i) convenes it or encourages, promotes or by means of threats, causes the attendance thereof, or presides thereat or addresses it; (ii) prints, publishes, distributes or, in any manner whatever, circulates a notice convening it, or advertises it or in any other manner makes it known; or (iii) attends it, shall be guilty of an offence unless, if the prohibition has not been published in the Gazette he satisfies the court, that he had no knowledge of the prohibition.. A news report that respondent was arrested under the Act concerned because he had allegedly advertised in his newspaper that a prohibited gathering would be defied, could possibly have placed respondent in a more unfavourable position than when it was alleged that he had attended the meeting. Although the trial Court apparently did not consider this fact in the determination of damages, it. is unnecessary to go into this any further, because, in any event, appellant did not seriously argue in this Court that the amount awarded for damages was too high. The appeal is dismissed with costs, including that of two advocates. Jansen, J.A., D e V illiers, J.A., M iller, J.A., and Joubert, A.J.A., concurred. Appellant s Attorneys: Hofmeyr, Van der Merwe & Botha, Johannesburg; Naude & Naude, Bloemfontein. Respondent s Attorneys: Van Hulsteyn, Duthie & Saner, Johannesburg; Webber & Newdigate, Bloemfontein. 412 A Estate Dempers v. Secretary for Inland Revenue. H. J. O. van Heerden, S.C., for the appellant: Sec. 9.(5) of Ord. 10 of 1961 (S.W.A.) can only be applicable if para. 17 in addition to its empowering effect also contains a further limitation and constitutes a provision whereby the beneficiary may not receive the trust income or a part thereof before the happening of some event. It is conceded that the word event is wide enough to include also the exercise of a discretion, but it is sub-