Briscoe v Benson [1914] ZATPD 115 (12 November 1914)

Defamation.-Privilege.-Judicial proceedings.-Privilege of
advocate and attorney.-Extent of.-Damages.-Amount of.

An advocate or attorney ha.s not under Roman-Dutch law the same extensive privilege as in Engla.nd. He may in cross examining a witness ask him any question which goes to his credit. He may ask him whether he has committed any crime, provided that he has instructions that his client possesses
some proof to that effect; he need not, however, satisfy himself whether the proof is accurate or even probable. If he in a moment of wild excitement makes an unjustifiable defamatory statement, he is no longer acting as the representative ,of his client, but in his own person. Preston v. Luyt (1911, E.D.L. 298) followed and applied. An attorney while cross-examining a witness in the conduct of a case said to the witness : " I have no hesitation in calling you. a thief. I have not kept quiet about it. I have published it in the highways and byeways of Johannesburg. Why have you not gone for me? Mr. - knows I am worth going for." Held, that he had exceeded his privilege and was liable in damages for defamation.