REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

			JUDGMENT : 24 MARCH 2011

TRAVERSO, DJP:

Die Spoorbond & Another v.  South African Railways; Van

"... The Crown's main function is that of Government and its reputation or good name is not a frail thing connected with or attached to the actions of the individuals who temporarily direct or manage some particular one of the many activities in which the Government engages, such as the railways or the Post Office; it is not something which can suffer injury by reason of the publication in the Union of defamatory statements as to the manner in which one of its activities is carried on. Its reputation is a far more robust and universal thing which seems to me to be invulnerable to attacks of this nature. No one who reads the alleged defamatory statements would regard the reputation or good name of the Crown (regarded as a perennially existing legal persona whose function is that of carrying on all the multifarious activities of Government in the Union) as having been lowered or injured by these publications. He knows that, though the railways are vested in the Crown, the Crown is only a legal conception and takes no part in the management of the railways. He might regard the noxious words as reflecting upon the individuals or group of individuals temporarily responsible for the direction or management of the railways on behalf of the Crown but he would not regard them as reflecting upon the good name of the Crown itself."

Reference was also made to the separate concurring judgment of Schreiner JA at page 1012-1013, who said:

[8] The first question to decide is whether a municipality is part of the State or government for purposes of the common law of defamation.

9.1. Whether the functions of the corporation are government functions.
9.2. Whether, if a body is not a statutory trading corporation, it performs governmental functions either at a local or national level.
In my view it is self-evident that a municipality falls squarely within these criteria.

can sue for defamation was raised but not decided by Schreiner,
JA. He said at 1014:

"It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism."

case at 1011-1012:
"For the above reasons it seems to me to be clear that great care should be exercised in arguing the analogy from the rights of one person to the rights of another whose qualities are not identical with those of the first It is no doubt convenient for certain purposes to treat the Crown as a corporation or artificial person. But it is obviously a very different kind of person from the rest of the persons, natural and artificial, that make up the community. In many respects its relationship to those other persons is unique and there is no reason in common sense or logic for concluding that wherever a subject would have a right of action there the Crown must have one too. That the law employs analogy to extend the scope of remedies is, of course, true, and when judiciously used the method produces beneficent results. But it would be dangerous to proceed upon the assumption that wherever a substantial measure of similarity between persons is discoverable the rights of those persons must be the same. While the law does at times generalise it does so with caution; as frequently, it prefers to act selectively according to the requirements of the particular situation."

"6. Whether, if the body concerned is, at least largely or effectively, a monopoly, providing what are generally regarded as essential services traditionally provided by government, it would be contrary to public policy to muzzle criticism of it"

251	The exception in respect of the plaintiffs' claim against the first defendant is upheld with costs:
252	The first plaintiff is ordered to pay such costs as the second defendant had incurred in respect of the exception prior to its withdrawal.
J H M TRAVERSO
								Deputy Judge President