"Animus iniuriandi" and Artemus Jones

The Paris correspondent of the Sunday Chronicle had written an article in which he commented on the miraculous change of behaviour of the average English holiday-maker when going abroad.

Mention was made of a certain Artemus Jones whom, "by his goings on", one would never have expected to be a churchwarden at Peckham:

"No one, indeed, would assume that Jones in the atmosphere of London would take on so austere a job.... Here, in the atmosphere of Dieppe, on the French side of the Channel, he is the life and soul of a gay little band that haunts the Casino and turns night into day, besides betraying a most unholy delight in the society of female butterflies."

Of course, the correspondent had used Artemus Jones as a purely fictitious character and he had no intention of referring to a specific person of that name. A real Artemus Jones happened to exist, however. He spent his life as a barrister on the North Wales Circuit—"rarely going to London and never to Peckham".²¹¹ But since he could show that his acquaintances had identified him with the hero of the article, he was allowed to claim no less than ? 1 750 in damages.

Thus, under the English common law, a person may well be liable for defamation, even if no blame attaches to him. He can escape liability

whereas in Roman law it was on outraged feelings (cf. also Buckland/McNair, p. 380). Not convincing, in this respect, is Burchell, op. cit., note 105, pp. 71 sq.

j⁰⁷ Cf., for instance, Potter, op. cit., note 194, p. 437.

²⁽¹⁸ Bromage v. Prosser (1825), in: Fifoot, op. cit., note 196, pp. 151 sqq.; Holdsworth, History, vol. VIII, pp. 374 sq.

~^w Ё. Hulton & Co. v. Jones [1910] AC 20 at 23 (per Lord Lorebum).

^{21is also at least one very obvious structural similarity. In both systems, a (prima facie) defamatory imputation (no matter whether verbis or litteris) may give rise to a cause of action unless the person who has made the imputation is able to invoke one of a certain number of "defences" or "privileges".}

This basic similarity enabled South African courts and writers to graft many of the English rules of defamation onto the Roman-Dutch actio imuriam that had originally been transplanted to the Cape.^[5626] The development followed the general pattern of South African legal history: in the course of the 19th century an ever-increasing tendency to find one's law in an English textbook or in English case reports rather than "to wade through a sea of Latin or to puzzle [one's] head over old Dutch writers and black letter consultations",^[5627] then, from about the 1920s onwards, a strong backlash culminating in judicial attempts to return the oak tree of the specifically South African usus modernus to the Roman-Dutch acorn whence it sprang,^[5628] until ultimately some form of pragmatic compromise was reached and the hybrid nature of contemporary South African common law accepted.

In the case of defamation it was particularly the requirement of animus iniuriandi that became one of the major battlefields of the famous helium iuridicum raging between the so-called pollutionists on the one side and the purists and antiquarians on the other.^[5629] Without animus iniuriandi no iniuria: this was the Roman-Dutch principle adopted at the Cape and taken for granted in leading decisions such as Mackay v. Philip."^[5630] Gradually, though, English terminology crept into the decisions of the courts and, most notably, the term "malice" began to be used by Lord De Villiers^[5631] and others in place of animus iniuriandi.^[5632] Sooner or later, the "contagion"^[5633] was bound to spread, the new terminological germ bound to infect the thinking on substantive law. Thus it was held, in a variety of decisions, that the defendant in a defamation suit is confined to pleading certain set defences. The mere absence of any intention to insult was no longer of avail to him.^[5634] Animus iniuriandi thus having been reduced to a hollow fiction,^[5635] ^{^[5636] it had ceased to be an essential element of defamation.}

Only in 1960 was it reinstated in its former splendour. The decisive turning point was Maisel v. Van Naeren, where De Villiers AJ reaffirmed that

"(i]n Roman-Dutch law defamation is a species of injuria, and a claim for genera) damages for defamation is merely an instance of amende profitable being claimed under the actio injuriarum. Inasmuch as dolus, or animus injuriandi as it is called in relation to injuriac, is an essential for liability under the actio injuriarum, it is likewise an essential for liability for defamation".²²"

This view has been repeatedly endorsed by the Appellate Division of the Supreme Court,²²⁴ and as a result, the defendant is, once again, free today to rebut the presumption of animus injuriandi in whatever way he chooses. Of course, he can avail himself of any of the "stereotyped defences", but they have lost their status of exclusiveness.^[5637] ^{^[5638] ^[5639] ^[5640]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

"Animus iniuriandi" and Artemus Jones

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