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[2021] ZAWCHC 57
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Mulaudzi v Powell (494/2020) [2021] ZAWCHC 57 (26 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case Number: 494 / 2020
In the matter between:
MAMODUPI MOHLALA MULAUDZI
Plaintiff
and
EMMA LOUISE
POWELL
Defendant
Coram: Wille, J
Heard: 18
th
of March 2021
Delivered: 26
th
of March 2021
JUDGMENT
WILLE,
J
:
INTRODUCTION
[1] Before me for
determination are two opposed applications to compel further
discovery.
Both these applications are at the instance of the
defendant. The two applications are interlocutory to a
defamation action
that the plaintiff has instituted against the
defendant. The parties shall, for the purposes of clarity and
convenience,
be referred to as the plaintiff and the defendant.
[2]
The plaintiff has sued the defendant for defamation in that it is
alleged that the
defendant posted a ‘tweet’ to the effect
that the plaintiff had gone rogue. The plaintiff was at the
time the
Chief Executive Officer
[1]
,
of the Estate Agency Affairs Board.
[2]
The defendant at that time was a parliamentary member. The
claim is for damages in the sum of R1,5 million. The
defendant
admits to posting the tweet but avers that same is not defamatory of
the plaintiff.
[3] In the alternative, it
is pleaded that the content of the tweet was in the public
benefit,
was true, was fair and pertained to a matter of public interest.
In the further alternative, it is pleaded that
the tweet was not
published with malice and is the subject of quasi-privilege because
it was published as part of the defendant’s
duty to alert
members of the public in connection with an alleged abuse of power.
As a final alternative, a shield is put
up to the effect that the
tweet was reasonable because the defendant made reasonable enquiries
as to the veracity of the content
of the tweet and its publication
was accordingly equitable in the circumstances.
[4]
The defendant in the first application to compel
[3]
,
seeks an order requiring the discovery of the documents specified in
the defendant’s first discovery notice dated the 30
th
of July 2020.
[4]
Whilst, in the second application to compel
[5]
,
the defendant seeks an order requiring the discovery of the documents
specified in the defendant’s second notice in terms
of rule
35(3)
[6]
,
together with compliance of the defendant’s notice in terms of
rule 35(12) dated the 13
th
of October 2020.
THE FACTUAL MATRIX
[5] The plaintiff’s
case in the action proceedings is that the following tweet
is
defamatory of the plaintiff:
‘
Today,
a meeting between EAAB management and NEHAWU shop stewards was
terminated when increasingly rogue CEO Mohlala-Mulaudzi’s
husband / partner allegedly walked onto state-entity’s premises
and produced a firearm’
[6] It is common cause that
the defendant published the tweet. It is also common
cause that
the reference to the ‘
rogue CEO Mohlala-Mulaudzi’
is a reference to the plaintiff. The essence of the defendant’s
defence is that the tweet was not wrongful because
there was nothing
unlawful about the tweet, this because the tweet was the truth and
was in the public benefit.
THE PLAINTIFF’S INITIAL
DISCOVERY
[7]
The plaintiff’s initial discovery consisted mostly of the
documents that she
had annexed to her particulars of claim which
consisted of the following: a copy of the tweet: an
investigation report
into the allegations made in the tweet: a
letter of demand and a series of tweets made in response to the
tweet. She
also discovered a retraction in a newspaper
[7]
,
regarding the events described in the tweet.
THE FIRST APPLICATION TO
COMPEL
[8]
The alleged lack of proper initial discovery by the plaintiff, no
doubt triggered
the defendant to serve a notice in terms of rule
35(3) requiring further and better discovery.
[8]
The plaintiff refused to discover any of the documents
requested in this first notice. An application to compel
accordingly
followed.
[9]
Some of the documents as sought by the defendant were
subsequently obtained. The defendant nevertheless persists in
seeking the following documentation for production namely:
certain minutes of the board meetings of the EAAB since the
plaintiff’s
appointment as its CEO: copies of all written
complaints directed against the plaintiff relating to her performance
and conduct
as the CEO and copies of her salary slips exhibiting
proof of all board fees paid to her by the SABC.
[10]
This, while she was the CEO of the EAAB.
THE SECOND APPLICATION TO
COMPEL
[9]
When the plaintiff opposed the application in connection with the
first rule 35(3)
notice, she filed as an annexure exhibiting portion
of a pleading in a defamation action she had instituted against Ms
Kula-Ameyaw.
[11]
This, for the latter’s alleged complaint to the Minister of
Human Settlements, Water and Sanitation, regarding the
plaintiff.
The defendant contends for relevancy in this connection on the basis
,
inter alia
, that the leader of an
organisation should be amenable to tolerate criticism from other
members of her organisation and not drag
them to court for it.
[10]
Subsequently, the defendant served a notice in terms of rule
35(3)
[12]
,
demanding discovery of all the relevant court papers in the
Kula-Ameyaw action including: the summons and particulars of
claim: the plea and any further pleadings in that action.
Besides, the defendant served a notice in terms of rule 35(12)
[13]
,
requiring the plaintiff to produce for inspection a copy of the
complete particulars of claim in the Kula-Ameyaw action.
This
on the basis that the filing of the annexure by the plaintiff now
constituted a document
[14]
,
as referred to in the plaintiff’s affidavit opposing the
initial rule 35(3) notice. The plaintiff did not comply with
these notices.
[11]
Finally, the defendant then served a second application to compel, in
which she seeks compliance
both with the second rule 35(3)
notice
[15]
,
as well as compliance with the rule 35(12) notice. This, also
in terms of rule 30A.
[16]
DISCUSSION
[12]
The defendant submits that in order to understand why the documents
sought in the first application
to compel are relevant to the
defendant’s defence, it is necessary to understand that there
was a considerable amount of
coverage
[17]
,
about the plaintiff’s tenure as the CEO of the EAAB, which was
allegedly beset with controversy, discord and mismanagement.
[13]
Some of this coverage included: that it was reported that the
plaintiff was receiving board
fees for sitting on the board of the
SABC, whilst she was a paid employee of the government and she was
accordingly precluded from
receiving these additional board fees. In
effect, it was alleged that she was receiving (2) salaries from (2)
organs of state
and was doing so, unlawfully: that it was
reported that certain of her staff had accused her of bullying and
arbitrarily
cutting their benefits: that it had been reported
that Eugenia Kula-Ameyaw, a fellow board member, had written to
Lindiwe
Sisulu
[18]
,
complaining about the plaintiff’s alleged governance
violations.
[
14]
Finally, it was reported that certain of the SABC’s senior
executives had threatened to
resign over the alleged interference on
their own board, solely attributed to the actions of the plaintiff.
This was specifically
in connection with an alleged demand for an
interview on one of the SABC’s flagship news programmes. The
defendant
understands that this demand was made by the CEO of the
EAAB and would possibly violate corporate governance protocols.
[15]
The
plaintiff
contends that the minutes of the board meetings
sought by the defendant are irrelevant. In contrast, the
defendant takes the
position that the board minutes would reflect on
the plaintiff’s conduct in connection with the position that
she holds and
thus whether she was truthfully and fairly described in
the tweet. In my view, the requested board minutes are
certainly
most likely to contain information relevant to any
allegations of misconduct and mismanagement which had surfaced
against the plaintiff.
Thus, these are very relevant to the
defences raised by the defendant.
[16] As far as the complaint
documentation is concerned, the following: the plaintiff
refused
to discover any of these documents but significantly has not
denied that they exist: the plaintiff concedes that the
complaint
by Ms Kula-Ameyaw exists, buts claims that she is not
required to produce the documents requested because these documents
relate
to pending litigation. It is trite that this does not
excuse discovery as these documents are not
per se
privileged. In relation to the complaint by Mr Motsepe, the
plaintiff refers the defendant to the EAAB. This in turn,
as a
matter of logic, must mean that the plaintiff is in possession of the
complaint as the CEO of the EAAB.
[17] The plaintiff avers that the
complaints against her are not relevant. In contrast, the
defendant contends for relevance on the basis that the complaints
against the plaintiff, by virtue of the position that she holds,
are
relevant as to whether she was truthfully and fairly described in the
tweet.
[18] Furthermore, the defendant seeks,
by way of the discovery process, copies of the salary slips,
or the
proof of payment slips of board fees paid to the plaintiff by the
SABC, whilst she was the CEO of the EAAB.
[19] Similarly, the defendant refused
to produce these documents. Again, she has not denied
that they
exist or that they are not in her possession but, asserts instead
that they are not relevant. The defendant contends
for
relevance on the basis that the tweet may very well be described as
true and fair in the event that the plaintiff did receive
(2) salary
payments from (2) governmental enterprises at the same time.
[20] The plaintiff puts up some further
shields to the defendant’s applications which may be
dealt with
swiftly. The plaintiff asserts that the documents pertaining to
her conduct in the position that she holds are
irrelevant to her
action because she has instituted the action in her personal
capacity. I disagree, because at issue is
not the capacity in
which the plaintiff is suing the defendant, but rather, the enquiry
is whether the tweet is true or fair comment
taking into account the
context of the tweet, together with the factual position that the
plaintiff was the CEO of the EAAB.
[21] Further, the plaintiff claims that
the documents sought are not relevant because the defendant
only
became aware of these documents subsequent to the institution of
proceedings. Thus, it is argued that this information
would not
have been in her knowledge at the time of making the defamatory
comments and therefore cannot assist the defendant in
her defences.
Again, I disagree because in relation to the defence of truth, all
that matters is whether the tweet was objectively
substantially true
and published to the benefit of the public.
[22]
If the two requirements are met, the defence is established, and the
publication is not wrongful.
[19]
It must be so that the publication of true material to the
benefit of the public is a competent defence in a defamation action.
What the defendant may or may not have known at the time of
publication is accordingly irrelevant.
[23] The position in our law on this
score was clearly set out in
Modiri
, as follows:
‘
In
their plea the media respondents relied on a number of recognised
grounds of justification, including truth and public benefit…The
one that found favour with the court a quo was that of truth and
public benefit. If that finding were to be upheld, it would be
the
end of the matter. I therefore turn to that enquiry. In this regard
the appellant's contentions as to why the court a quo erred
in
upholding the defence of truth and public benefit were essentially
threefold. First, that the media respondents did not lead
any
evidence in rebuttal of the presumption of wrongfulness…Third,
that the media respondents could not rely on the information
of the
appellant’s alleged criminal activities testified to by the
police witnesses, because it had not been demonstrated
that the
article was based on that information’
[20]
[24] The documents sought by the
defendant largely pertain to the plaintiff’s alleged conduct
that occurred prior to the posting of the tweet, namely: the
unlawful payments she allegedly received are recorded to have
ended
in September 2019: the article in which the plaintiff was
accused of misconduct was published on the 10
th
of
December 2019: the Kula-Ameyaw complaint was made in October
2019 and the incident in which the plaintiff allegedly meddled
with
the SABC’s board was reported on, as early as September 2019.
All this information is relevant in establishing
as to whether the
tweet was objectively substantially true and published to the benefit
of the public.
[25]
In
Swissborough
[21]
,
the court made the following findings
in connection with the relevance in dealing with the issue relating
to the discovery of documents:
‘
It
seems to me that every document relates to the matter in question in
the action which, it is reasonable to suppose, contains
information
which may — not which must — either directly or
indirectly enable the party requiring the affidavit either
to advance
his own case or to damage the case of his adversary. I have put in
the words either directly or indirectly because,
as it seems to me, a
document can properly be said to contain information which may enable
the party requiring the affidavit either
to advance his own case or
to damage the case of his adversary, if it is a document which may
fairly lead him to a train of enquiry
which may have either of these
two consequences’
[22]
[26]
Disputed
discovery issues in connection with relevance in matters involving
actions for defamation have recently received more scrutiny
and
attention in the
Mkhwebane
[23]
matter. Writing for the full court, Navsa ADP went on to make
the following penchant observations:
In
the present case we are dealing with defamatory statements and
defences such as truth and public interest or fair comment that
might
be raised. The question to be addressed is whether the documents
sought might have evidentiary value and might assist the
appellants
in their defence to the relief claimed in the main case’
[24]
[27] In my view, the documents sought
in the first application to compel are clearly relevant and
the
plaintiff has no lawful reason to withhold them. The documents
sought in terms of the second application are also relevant
and
accordingly fall to be discovered in terms of the rule 35(3) notice.
Accordingly, there is no need for me to deal with
any issues
surrounding the rule 35 (12) notice.
IN PASSING AND OBITER
[28] Another reason why, in any event,
the rule 35(12) notice needs to be complied with is because
the
documents requested are specifically referred to by way of an
annexure to the plaintiff’s affidavit opposing the first
rule
35(3) notice. It is so that the plaintiff avers that this was
in error. In my view this makes no difference to
the enquiry.
[29] The test for ‘relevancy’
in this connection must be at a very low threshold. I
say this
because this document was specifically referred to by the plaintiff.
How it now lies in the mouth of the plaintiff
to say the documents
are not relevant, escapes me. Thankfully, for the reasons set
out in this judgment, I am relieved of
making a definitive finding in
this connection.
[30]
It is so that when an attorney signs a pleading, not as an
individual, but on behalf of a firm
representing a litigant, it is
incumbent upon that attorney to sign the pleading twice. The
attorney must sign once in his
capacity as the certified attorney and
then once again on behalf of the firm of attorneys. The
reference to section 4(2)
[25]
,
should also now be read with reference to section 25(3) of the Legal
Practice Act.
[26]
[31]
I accept that I may attract some criticism for raising the issue of
the potential defect in the
plaintiff’s particulars of claim
which was not an issue before me for adjudication.
The
position on this score has recently been eloquently formulated by
Schippers JA, in the
Gun
Owners
[27]
case,
as follows:
‘…
in
our adversarial system of litigation, a court is required to
determine a dispute as set out in the affidavits (or oral evidence)
of the parties to the litigation. It is a core principle of this
system that the judge remains neutral and aloof to the fray. This
court, has on more
than
one
occasion emphasised that the adjudication of a case is confined to
the issues before court’
[28]
[32]
This is undoubtedly the correct legal position and that is precisely
why my remarks in this connection
are obiter.
The
particulars of claim as filed by the plaintiff are signed only by an
attorney. The particulars of claim are clearly a
pleading and
therefore fall to be signed by both an advocate and an attorney or by
an attorney enjoying the requisite certified
rights of appearance.
The particulars of claim in this matter are not signed by an
attorney who exhibits that he or she has
the necessary certified
rights of appearance, nor are they signed by an advocate.
[33] The particulars of claim may very
well be fatally defective. This issue has not been addressed
by
either party and I again emphasize that this is not an issue before
me for my adjudication. The parties submit that no
objection
has been taken in this connection and the defendant has in any event
taken further steps in the process by, inter alia,
the filing of a
plea.
[34]
I was also belatedly referred to the decision in
Fortune
[29]
,
which is cited as ostensible authority
for the fact that this defect may be subject to condonation. No
such application has
been made by either party. In any event,
the particulars of claim in this matter have only been signed once,
seemingly on
behalf of the firm of attorneys representing the
plaintiff. I am not by any means persuaded that this is
satisfactory in
the circumstances. Put in another way, you
cannot ‘hang something’ on nothing.
[35] In the result, the following order
is granted:
1.
That the plaintiff shall within (10) court
days of date of this order discover and make available for inspection
in accordance with
rule 35(6)
the following
documentation:
1.1
the minutes of every meeting of the board
of directors of the Estate Agency Affairs Board of South Africa since
the plaintiff’s
appointment as Chief Executive Officer of the
Estate Agency Affairs Board of South Africa.
1.2
all written complaints from: members
of the board of directors of the Estate Agency Affairs Board of South
Africa: employees
of the Estate Agency Affairs Board of South
Africa: or any other person affiliated with the board of
directors: - relating
to the plaintiff’s performance or conduct
as the Chief Executive Officer, including without limitation the
following documents:
1.2.1
the complaint, written by Eugenia
Kula-Ameyaw in October, to Minister Lindiwe Sisulu; and
1.2.2
the complaint written by Tumisho Motsepe;
and
1.2.3
all letters of complaint directed at the
plaintiff.
1.3
all salary slips or proof of payment of
board fees or any other fees or emoluments paid to the plaintiff by
the South African Broadcasting
Corporation while she has been the
Chief Executive Officer of the Estate Agency Affairs Board of South
Africa.
1.4
all court papers pertaining to the
plaintiff’s action against Ms Eugenia Kula-Ameyaw for
defamation arising from a letter
Ms Kula-Ameyaw wrote to the Minister
of Human Settlements, Water and Sanitation in October 2019, including
without any limitation
the following documentation:
1.4.1
the summons and particulars of claim
1.4.2
the plea, and
1.4.3
any further pleadings.
2.
That in the event that the plaintiff fails
to comply with any of the orders contained in paragraphs 1
to
1.4.3
above (inclusive), then in that
event, the defendant is authorised to apply on these papers, duly
supplemented as may be necessary,
for an order dismissing the
plaintiff’s claim against the defendant, together with the
appropriate order for costs.
3.
That the plaintiff is hereby ordered to pay
the costs of an incidental to the
applications
to compel, on the scale as between
party and party, as taxed or agreed.
E. D. WILLE
(Judge of the High Court)
[1]
The
‘CEO’
[2]
The
‘EAAB’
[3]
In terms of
rule 35(7) of the ‘Uniform’ rules of court
[4]
The
first discovery notice filed
in
terms of rule 35(3)
[5]
This, brought
in terms of both rules 35(7) and rule 30A
[6]
Dated the
26
th
of August 2020
[7]
The
‘
Rapport’
[8]
The
first rule 35 (3) notice
[9]
The
first application to compel
[10]
The
‘South African Broadcasting Corporation’
[11]
A
fellow board member
[12]
The
second rule 35(3) notice
[13]
The
rule 35 (12) notice
[14]
This,
in accordance with the specific reference to ‘document’
in rule 35 (12).
[15]
In terms of
rule 35(7)
[16]
For
‘non-compliance’ with the court rules
[17]
In the
public domain
[18]
The
Minister of Human Settlements, Water and Sanitation
[19]
Modiri
v Minister of Safety and Security
2011 (6) SA 370 (SCA)
[20]
Modiri
para
11
[21]
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
1999 (2) SA 279 (T) 316
[22]
Swissborough
at 316 F - H
[23]
Democratic
Alliance and Others v Mkhwebane and Another
(1370/2019)
[2021] ZASCA 18
(11 March 2021)
[24]
Mkhwebane
at 23 para 41
[25]
Right
of Appearance in Courts Act, 1995 (Act No. 62 of 1995)
[26]
Section 119
(3) of Act 28 of 2014
[27]
National
Commissioner of Police and Another v Gun Owners of South Africa
[2020]
ZASCA 88
(23 July 2020)
[28]
Gun
Owners
at
16 para 26
[29]
Fortune
v Fortune
1996
(2) SA 550
(C) – It was held: - ‘That the basis for
condonation ought no longer to prevail’