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[2013] ZAGPJHC 248
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Flusk and Another v Berg (A3021/2013) [2013] ZAGPJHC 248 (17 October 2013)
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NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: A3021/2013
DATE:17/10/2013
In the matter between
FLUSK
PATRICK
.......................................................................
FIRST
APPELLANT
EKURHULENI METROPOLITAN MUNICIPALITY
...........
SECOND
APPELLANT
and
BERG
IZAK
...........................................................................................
RESPONDENT
Coram:
WEPENER AND KUBUSHI JJ
Heard
:
10
October 2013
Delivered
:
17 October 2013
J U D G M E N T
WEPENER J:
[1] The appellant, defendant in the court a quo, appeals against the
judgment of the magistrate of Germiston, who found in favour
of the
respondent, plaintiff, in a defamation action and awarded damages in
the sum of R50,000.00 (fifty thousand) to the respondent.
I refer to
the parties herein after as they were referred to in the court below.
[2] The plaintiff instituted the action against the first defendant,
who was at all material times the second defendant’s
municipal
or city manager and who, admittedly, acted within the course and
scope of his employment with the second defendant, a
municipality.
Thus the joinder of the second defendant in the matter whose
liability is vicarious. This aspect is stated thus in
the defendant’s
plea:
‘
8.1.
The Defendants admit that at all relevant times, and when making the
statement as contended for in this plea, the First Defendant
was in
the employ of the Second Defendant and acted within the course and
scope of his employment with the Second Defendant.’
The vicarious liability of the second defendant is consequently
common cause despite the curious allegation on appeal that the
magistrate erred in the finding that the defendants admitted the
vicarious liability of the second defendant.
[3] The defamatory remarks relied upon were that the ‘plaintiff
is going to jail’ and it was pleaded, in the alternative,
that
the statement imputed and was intended to impute and was understood
by the persons to whom it was distributed to impute that
the
plaintiff was dishonest; had done something which had warranted a
jail sentence; abused his position as a counsellor to derail
an
investigation in a project in which the plaintiff owned property; was
guilty of unconscionable and dishonest conduct unworthy
of a town
councillor. The words were uttered to persons present at the first
defendant’s city manager’s co-ordination
management
committee meeting of 3 March 2008 (‘the meeting’).
[4] The matters raised in the heads of argument were not easily
discernable. As a result thereof this court, at the outset of the
hearing, invited counsel for the defendants to specifically indicate
what the points are that would be argued on behalf of the
appellants
so that there could be a clear understanding what the basis for each
contention on behalf of the appellants is.
[5] Counsel for the appellants then set out the following issues
being the matters which the appellants advance on appeal:
5.1 The failure by the magistrate to uphold the special plea taken by
the defendants in that the plaintiff had no locus standi
to sue the
first defendant and, in addition thereto, a reliance on s 176 (1) of
the Local Government: Municipal Finance Management
Act 56 of 2003
(‘Finance Management Act’) which, it was argued, affords
the first defendant protection;
5.2 The magistrate erred in allowing the witness to refresh his
memory from his diary and the minutes of the meeting;
5.3 The impermissible admission of the evidence of the witness, Mr
Leibrandt, both provisionally and finally, despite an objection
thereto;
5.4 The plaintiff failed to prove any publication of the defamatory
matter;
5.5 If publication of the defamatory matter was indeed proved, how
this was understood by the witness Mr Leibrandt and others and
in
addition, whether the publication was of and concerning the
plaintiff;
5.6 The evidence of Mr Leibrandt, seen in context, constituted an
uncertain situation as regarding the alleged publication;
5.7 The plaintiff failed to show a malicious intent on behalf of the
first defendant;
5.8 The weight to be afforded to the evidence favoured the
defendants;
5.9 Whether the plaintiff suffered any injury, and if, so what the
quantum of the damages should be.
[6] Despite some of the alternative arguments put forward by the
defendants, the main issue for determination was whether the words
were indeed published.
The first issue - the Special Plea
[7] The first defendant pleaded that ‘he is a public official,
has at all relevant times hereto been the municipal manager
of the
second defendant and is incorrectly cited herein in his personal
capacity’. The special plea was dismissed by the
magistrate on
23 August 2011.
[8] The capacity in which a person acts cannot absolve such a person
from an unlawful act performed by him or her. If such a person
acts
in some or other capacity i.e. in the course and scope of his or her
employment, the rule is that the liability may be extended
to include
the liability of that person’s employer, vicariously. It does
not absolve the person acting unlawfully from his
own actions.
[9] The first defendant does not
cease to be delictually liable because of the second defendant’s
vicarious liability. In
Harnischfeger
Corporation and Another v Appleton and Another
1993
(4) SA 479
(W) Flemming DJP said at 487B-E as follows:
‘
It was
argued that the application against first respondent should be
dismissed because he at all times acted only in the course
of his
employment with second respondent and in the furthering of the
interests of second respondent. Similar reasoning has been
seriously
advanced before me on several occasions in the past year or three.
The argument adopts the settled yardsticks for vicarious
liability.
It then seeks to make inverted use thereof. If first respondent
intentionally or negligently causes pecuniary loss while
driving a
motor vehicle, he is personally liable. That is so even if the
relationship between his driving and his employer renders
the
employer liable. He does not cease to be liable because the employer
is liable. The employer is also liable; he is not exclusively
liable.
The relationship between employer and the activity of his employee is
a basis for holding an additional party liable and
not a ground for
absolving the person who actually committed the delict. Clearly, if
applicants' copyright was infringed, it is
the hand and the heart of
first respondent who perpetrated the wrong to the first applicant. He
can be interdicted even if his
behaviour took place in circumstances
rendering it permissible also to interdict the second respondent.’
I am of the view, that the special plea, as pleaded, had no merit and
was rightly dismissed by the magistrate.
[10] However, the defendant’s counsel has, in argument, said
that the first defendant relies on the protection afforded by
s 176
of the Local Government: Municipal Finance Management Act 56 of 2003
(‘Finance Management Act’).
[11] The reliance on the privilege afforded by the section is, of
course, something quite different from saying that one is not
liable
because you acted in a particular capacity – the latter which
cannot absolve the actor from the consequences of his
or her actions.
Although the protection contained in s 176 (1) of the Finance
Management Act was not pertinently raised in the
pleadings, a party
may rely on a point of law, even if only on appeal, if it does not
require the leading of further evidence and
the issue is apparent
from the record.
[12] The fact that a legal issue may be determined on appeal despite
the absence of particular reference thereto in the trial court
has
been said to be subject to the fact that it is a legal issue which
requires no decision to be made on the facts.
Van Rensburg v
Fouriesburg Hotel (Edms) Bpk
1980 (2) SA 26
(O) at 29G.
[13] Section 176 (1) of the Finance Management Act reads:
‘
176.
Liability of functionaries exercising powers and functions in terms
of this Act.—
(1) No municipality or any of
its political structures, political office-bearers or officials, no
municipal entity or its board
of directors or any of its directors or
officials, and no other organ of state or person exercising a power
or performing a function
in terms of this Act, is liable in respect
of any loss or damage resulting from the exercise of that power or
the performance of
that function in good faith.
’
The first requirement is that the defence can be raised by (a)
‘person exercising a power or performing a function in terms
of
this act…’ All that can be said in this matter is that
the words complained of were uttered during a city manager’s
co-ordination management committee meeting. I can find no indication
in the act itself or in the pleadings that the meeting was
held
whilst the first defendant was exercising a power or performing a
function in terms of the Finance Management Act. It would
have been
incumbent upon the defendant to show that the particular meeting
afforded the first defendant the protection contained
in s 176 (1) of
the Finance Management Act, it being a form of qualified privilege.
Neethling v Du Preez and Others; Neethling v The Weekly Mail and
Others
[1993] ZASCA 203
;
1994 (1) SA 708
(A) at 769H. No evidence was led to place
the meeting within the ambit of the section as the special plea was
dealt with separately,
in initio, and I can find no reason to
approach the special plea on appeal other than in the absence of any
evidence which would
justify a reliance on s 176 (1) of the Finance
Management Act.
[14] The section further requires that the official, who relies
thereon, should have acted in good faith. This aspect, in my view,
would entail the official to admit his actions but explain why he
acted in good faith. In the matter under consideration the first
defendant pleaded a denial that he uttered the words. No attempt was
made prior to the determination of the special plea to show
that the
first defendant acted in good faith. In the circumstances the first
defendant’s reliance on s 176 (1) of the Finance
Management Act
is doomed to failure.
[15] In addition, the dismissal of the special plea was final in
effect and disposed of as a self-contained defence. See
Ndlovu v
Santam Ltd
2006 (2) SA 239
(SCA) at p245B-247B. The defendants
did not prosecute an appeal timeously in terms of Magistrates’
Court Rule 51(1) and 51(3)
and there is no application for
condonation for the late filing of the appeal on this point, with the
result that no appeal lies
against the dismissal of the special plea.
The appeal based on this ground is consequently also bad for want of
compliance with
the rules of the Magistrates’ Court.
The second issue - Impermissible evidence: Refreshing of memory
[16] The second issue argued on
appeal was that the evidence of the witness Leibrandt was
impermissible as he refreshed his memory
from his diary as well as
from the minutes of the meeting. Reliance was placed on a passage in
Schwikkard and Van Der Merwe
Principles
of Evidence
2
nd
ed, at 409:
‘
The
law of evidence assigns a great importance to the principle of
morality in the adjudication of disputes. Witnesses are as a
rule
required to give independent oral testimony in the sense that they
are generally not permitted to rely on, or refer to, a
statement,
note or document whilst testifying. This general rule creates the
impression that preference is given to memory over
writing as a means
of “preserving evidence”. This preference can hardly be
reconciled with the simple truth embodied
in the saying “Ink
does not loose its hold on paper, as facts do on the memory”.
Be this as it may, the preference
for oral evidence is a corner-stone
of the common-law evidential system, where cross-examination plays a
pivotal role: greater
weight is attached to viva voce statements of
witnesses than to their earlier recorded statements.’
[17] Whether the evidence of the witness who refers to documents is
wholly impermissible or whether the probative value of the
evidence
is affected, need not be decided.
[18] It is common cause that the witness refreshed his memory from
entries in his diary prior to giving evidence and also consulted
the
minutes of the meeting during his evidence. The prior refreshing of
his memory from a diary cannot be in issue. There is no
rule which
precludes a witness from reading his own statement or notes before
giving evidence. See
R v Richardson
[1971] 2 ALL ER 773.
In
R
v Varacia and Another
1947 (4) SA 267
(T) it was said at 270:
‘
As
a rule, when the Crown calls a witness who wishes to avail himself of
the right to refresh his memory from notes which have been
made, it
is usual, and in my opinion correct, that the Crown should first of
all satisfy the court that the notes in question had
been made either
by the witness or by somebody acting on his behalf, or that the
person giving evidence had seen the notes shortly
after they had been
made at a time when his recollection of the incidents to which the
notes refer were still fresh in his mind.
I was not aware that it was
necessary for the witness to state that the notes correctly reflected
the incidents to which he was
testifying; personally, I should have
imagined that the fact that the witness wished to refer to them would
be a sufficient intimation
that he considered that the notes to which
he is referring set out the true facts’.
There was no suggestion that the notes in the diary were not made at
the time of the meeting by the witness himself.
The thrust of the argument was that the conditions required by the
common-law to be met before the tendering of evidence, whilst
refreshing his memory, by a witness to be permissible were not shown
to be present regarding his reference to the minutes. These
requirements are six-fold: firstly, the witness must have personal
knowledge of the event. It was common cause that Mr Leibrandt
was
present at the meeting and this requirement has been satisfied.
Secondly, the witness must be unable to recollect fully a matter
on
which he is being examined. The learned authors, Schwikkard and Van
Der Merwe state at 451 that the mere ipse dixit of the witness
may be
sufficient – in the matter under consideration Mr Leibrandt’s
assertion that all he did was to make certain
that the issues were
discussed on that date, was not challenged. What was challenged was
his use of the minutes. Thirdly, the document
upon which the witness
relied must be verified. Insofar as he relied upon the minutes of the
meeting, these were accepted by all
the parties as the correct
minutes and later so proved by Mr Mokoena, called on behalf of the
defendants. It is quite permissible
to utilise documents and to
thereafter prove its authenticity. See
Carpede v Choene NO and
Another
1986 (3) SA 445
(O) at 454I - 455A. Mr Leibrandt
consequently relied on documents properly verified. Fourthly, the
matters had to be fresh in the
memory of the scribe when recorded.
There is no dispute that the minutes were written up shortly after
the meeting. Fifthly, a
use of the original document is required –
this aspect was not challenged or referred to during appeal. Sixthly,
the document
relied upon must be made available to the other parties.
As far as the minutes are concerned the defendants did have access
thereto.
In the circumstances, all the common-law requirements for
the admission of evidence by a witness who was refreshing his memory
from the minutes were indeed present. Further, it is not clear that
the witness indeed refreshed his memory from the minutes. All
he did
was to look at the minutes to see whether they contained certain
entries in order to satisfy himself that the minutes were
indeed the
minutes of the meeting to which he was referring to.
[19] This ground of appeal was, in my view, faintly raised. The
reason may be that it is not contained in the notice of appeal.
[20] In
Kilian v Geregsbode, Uitenhage
1980 (1) SA 808
(A) at
815C-E Rabie J (as he then was) said that a notice of appeal requires
to precisely set out the issues upon which an appellant
relies so
that the respondent can know on which points he must prepare an
answer so that the court can know which issues require
adjudication.
This principle was broadened in
Leeuw v First National Bank
Ltd
2010 (3) SA 410
(SCA) at 413 where Snyders JA said:
‘
In
1987 the Uniform Rules of the High Court were amended to provide, for
the first time, for the delivery, prior to the hearing,
of 'a concise
and succinct statement of the main points . . . which [a party]
intends to argue on appeal' - so-called heads of
argument…It
can be said that since then the object of the notice of appeal to
inform the respondent and the court was also
achieved by the heads of
argument…’
Even by applying this approach, the issue is nowhere referred to in
the comprehensive heads of appeal filed on behalf of the defendants.
[21] In the circumstances the
issue raised during argument, not being covered either by the notice
of appeal or the extensive heads
of argument, should not be
considered on appeal (
Kilian
at 815E) and counsel for the plaintiff objected to it being dealt
with. I have, nevertheless, indicated that there is no merit
in the
point.
The third issue - Provisional and final admission of evidence
[22] The third issue argued before us was that the court a quo
allowed the evidence of Mr Leibrandt despite an objection thereto,
both provisionally and finally and coupled with this that the court a
quo failed to finally rule on the evidence at the end of
the
plaintiff’s case but only gave her final ruling that the
evidence was indeed admissible in her final judgment.
[23] The argument regarding the provisional admission of Mr
Leibrandt’s evidence was premised on the fact that he could not
give evidence regarding the contents of a confidential meeting
because it was a city managers co-ordination management committee
meeting. Because it was such a meeting, so it was argued, and because
of the confidentiality clause contained in the code of conduct
which
was binding on the witness, he could not divulge the contents of the
meeting. However, counsel for the defendant readily
conceded that Mr
Leibrandt could divulge the contents of the meeting to a court and
that, whatever the confidential nature of the
meeting was, his
evidence could be received by a court. This being so the argument
that the evidence should not have been provisionally
admitted, fails.
No proper basis existed to exclude the evidence.
[24] The objection of the calling of Mr Leibrandt as a witness is not
contained in the record of proceedings, however, in heads
of argument
the defendants’ counsel advanced that such evidence was
inadmissible hearsay evidence and that the words were
uttered at a
closed and confidential meeting resulting in the evidence being
inadmissible. The hearsay allegation was not persisted
with in
argument on appeal. The fact that words were uttered at a closed
confidential meeting and thus inadmissible was persisted
with. I am
of the view that the argument cannot be sustained. The fact that a
meeting is closed and confidential may or may not
attract a privilege
for the person who speaks thereat but the proof that the occasion was
privileged lies with the speaker. See
Neethling
at 769 to 780.
The issue is not whether the evidence was permissible but whether
there was indeed a qualified privilege attached
to the occasion. I
have dealt with the plea regarding the qualified privilege issue. The
result is that the admission of the evidence
of what was said by the
first defendant at the meeting cannot be faulted.
[25] Reliance was also placed on s 6 of the second schedule of the
Local Government: Municipal Systems Act 32 of 2000 (‘Municipal
Systems Act’) which reads:
‘
6.
Unauthorised disclosure of information.—
(1) A staff member of a
municipality may not without permission disclose any privileged or
confidential information obtained as
a staff member of the
municipality to an unauthorised person.
(2) For the purpose of this item
“privileged or confidential information” includes any
information—
(a) determined by the municipal
council or any structure or functionary of the municipality to be
privileged or confidential;
(b) discussed in closed session
by the council or a committee of the council;
(c) disclosure of which would
violate a person’s right to privacy; or
(d) declared to be privileged,
confidential or secret in terms of any law.
(3) This item does not derogate
from a person’s right of access to information in terms of
national legislation.
’
This was raised in the argument on the special plea in the court a
quo and only in reply in this court. The section prohibits
unauthorised disclosure of information. Mr Leibrandt’s evidence
in a court of law can, in my view, not be categorised as an
unauthorised disclosure of information. Counsel for the defendants
conceded as much.
[26] Secondly, it has not been shown how the words uttered and not
contained in any report which the committee dealt with can be
said to
be privileged and confidential information. The Municipal Systems Act
does not forbid disclosure – it forbids disclosure
of
privileged and confidential information only. The result is that
reliance on the section of the Municipal Systems Act is misplaced.
[27] Counsel for the defendants broadened the objection and relied
upon
S v Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC) where it was held that
the timeous and unambiguous ruling on the admissibility of evidence
in criminal proceedings is a proper
procedural safeguard in a trial.
It was argued that the same principle should be applied in civil
cases and that the magistrate
should have given her reasons for
admitting the evidence at the end of the plaintiff’s case. The
application of the principle,
also in civil cases, has been approved
by the Supreme Court of Appeal in
Giesecke & Devrient Southern
Africa (Pty) Ltd v Minister of Safety and Security
2012 (2) SA
137
(SCA). Brandt JA said at paras 23-24:
‘
[23]
Under this heading the first question arising results from the
appellant's objection against the timing of the court a quo's
ruling
on admissibility. According to this objection, the court should have
considered this ruling only at the end of the case,
after hearing all
the evidence and not as it did at the end of the appellant's case. I
do not think the answer to the question
thus raised would make any
difference to the outcome of the appeal. Yet, as a matter of
principle, it is not entirely insignificant.
I shall therefore
venture an answer. But in the circumstances, I propose to do so
without unnecessary elaboration. In criminal
proceedings the issue
raised by the appellant's objection had been answered. That answer
appears from the following statement by
Cameron JA in
S
v Ndhlovu
2002 (2) SACR 325
(SCA) at paragraph [18]:
". . . [A]n accused cannot
be ambushed by the late or unheralded admission of hearsay evidence.
The trial court must be asked
clearly and timeously to consider and
rule on its admissibility. This cannot be done for the first time at
the end of the trial,
nor in argument, still less in the court's
judgment, nor on appeal. The prosecution, before closing its case,
must clearly signal
its intention to invoke the provisions of [s 3 of
the
Law of Evidence Amendment Act 45 of 1988
], and, before the State
closes its case, the trial Judge must rule on admissibility, so that
the accused can appreciate the full
evidentiary ambit he or she
faces" (see also
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) [also
reported at
[2008] ZACC 2
;
2008 (5) BCLR 451
(CC) – Ed] at paragraph [17]).
[24] The court a quo held that
the position should be no different in civil proceedings. The
appellant's contention was, however,
that the court had erred. The
difference between the two, so the appellant's argument went, is that
in criminal proceedings effect
must be given to the constitutional
right of an accused person to a fair trial, in particular, the
presumption of innocence and
the right to challenge evidence (in
sections 35(3)(h) and 35(3)(i) of the Constitution of the Republic of
South Africa, 1996 ("the
Constitution")). But as I see it,
the argument loses sight of section 34 of the Constitution which also
entitles both parties
to civil proceedings to a fair public hearing.
That right is given effect to, inter alia, by the Uniform Rules of
Court. In terms
of rule 39 the defendant is afforded the right, where
the plaintiff bears the onus, to apply for absolution from the
instance at
the end of the plaintiff's case or to close its own case
without leading any evidence if the plaintiff has failed to establish
a case which requires an answer. As I see it, it is essential for a
proper exercise of these rights that the defendant should know
whether the court considers the hearsay evidence relied upon by the
plaintiff, admissible or not. Stated somewhat differently,
in order
to decide whether the plaintiff has made out a case to answer, a
defendant is entitled to know the constituent elements
of that case.
It follows that rulings on the admissibility of hearsay evidence in
civil proceedings should also be made at the
end of the plaintiff's
case.
’
Having referred counsel for the
defendants to the
Giesecke
case the court enquired from counsel whether the matter should be
remitted to the magistrate to give a ruling as if at the end
of the
plaintiff’s case and then to order the matter to proceed or
whether the issue is a final death blow to the plaintiff’s
case. Having considered the defendants’ position and not being
able to advance any prejudice for the defendants, they having
elected
to give evidence despite an absence of a ruling at the end of the
plaintiff’s case, counsel for the defendants did
not persist
with the issue and indeed abandoned it.
The fourth, fifth and six issues - Publication
[28] The fourth, fifth and sixth
issues argued on behalf of the defendants were that the plaintiff
failed to prove publication of
the words complained of and if
published that it was not proved how it was understood by Mr
Leibrandt and others and thus that
such publication was not of and
concerning the plaintiff. I am of the view that the sixth issue as to
whether there was uncertainty
regarding the publication, goes hand in
hand with the two other issues referred to. I deal with these three
issues collectively
and approach it on the basis contained in the
heads of argument that the plaintiff did not prove the actual words
pleaded. In a
case such as this the plaintiff is required to set out
the words alleged to have been used by the defendant and must also
prove
that the words were used. It is, however, not necessary to
plead the actual words used although the effect and meaning of the
words
are matters for the court to decide, the plaintiff must prove
the words actually used or bearing a substantially similar meaning
–
see
International
Tobacco Co (SA) Ltd v Wollheim and Others
1953
(2) SA 603
(A) at 613 - 614. The fact that the words imputed to the
plaintiff dishonesty, as alleged in the particulars of claim, was not
in contention.
[29] The argument on behalf of the defendants can, however, not be
sustained. The plaintiff’s witness, Mr Leibrandt, unambiguously
testified that the first defendant said of and concerning the
plaintiff ‘I think I testified clearly that Mr Flusk in the
meeting referred to [the] Meyersdal investigation, the Pasco
investigation, regarding Meyersdal, indicated that Mr Berg or
councillor
will be arrested or go to jail’. Another reference
includes that ‘…he did say Berg will go to jail’.
There
are a few similar references in the evidence of Mr Leibrandt.
Mr Leibrandt’s evidence that he understood the words to be that
crimes were committed by the plaintiff (and others) is clearly set
out. In the circumstances the evidence, seen in its proper context,
indeed shows that the defendant used the words complained of; that he
uttered them to members of the committee and other invitees
present
at the meeting; that he said it of and concerning the plaintiff; that
Mr Lybrandt understood it to mean that the plaintiff
was guilty of
criminal conduct. In the circumstances the fourth, fifth and sixth
points raised in argument must fail.
The seventh issue – Malicious intent
[30] The seventh issue was that the plaintiff failed to prove
malicious intent on the part of the first defendant. Insofar as this
aspect is raised it was only done in general terms and not based on
either of the two elements of animus injuriandi, namely intent
to
defame and knowledge of wrongfulness. See
Suid- Afrikaanse
Uitsaaikorporasie v O’ Malley
1977 (3) SA 394
(A) at 401H –
402A. The argument before us concentrated on the first element and
not the second. However, there is a presumption
that the publication
of the defamatory statement was animo injuriandi. See Naylor and
Another v Jansen; Jansen v Naylor and Others
2006 (3) SA 546
(SCA) at
para 7:
‘
[7]
Proof that the words were uttered gives rise to two presumptions:
first, that the publication was unlawful and, second, that
the
statement was made with the intention to defame. (See eg
Joubert
and Others v Venter
1985 (1) SA 654
(A) at 696A.) It is now settled that the onus on the
defendant to rebut one or other presumption is a full onus; it must
be discharged
on a balance of probabilities (
Mohamed
and Another v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(A) at 709H - I). I might just add, at this stage,
that the second defendant's alleged liability was based upon the
principles
of vicarious responsibility and that it was common cause
that, if Naylor were liable to Jansen, so was the second defendant.’
[31] The defendant has the onus of alleging and proving the absence
of animo injuriandi. On proof of the plaintiff that the defamatory
words were used by the defendant and that they referred to the
plaintiff, a rebuttable presumption arises that they were used
wilfully and knowingly with the object of defaming the plaintiff. The
onus is then on the defendant to establish lawful justification
or
excuse for the publication or to establish the absence of the
intention to injure the plaintiff.
Marais v Groenewald
2001
(1) SA 634
(T);
National Media Ltd v Bogoshi
[1998] ZASCA 94
;
[1998] 4 ALL SA
347
(A). There are two answers to the defendants’ argument.
Firstly, no such allegation can be found in the pleadings of the
defendants. This is not surprising as the defendants’ version
is a denial that the first defendant uttered the words. The
presumption that the publication was animo injuriandi remained
undisturbed on the pleadings and evidence. In the circumstances
the
seventh point of appeal must fail. In so far as the defendants relied
on the statements having been made on a privileged occasion,
if it
was such and the plaintiff then had to prove malicious intention, it
was for the defendants to prove that the defamatory
statement was
relevant or germane and reasonably appropriate to the occasion.
Joubert and Others v Venter
1985 (1) SA 654
(A);
Herselman
NO v Botha
1994
(1) SA 28
(A) at 35. Again, the defendants’
denial that the defamatory statement was made, precluded them from
pleading such a defence
and they did not plead a defence based on the
relevance of the statement, nor was it argued on appeal that such
defence was shown
upon which the defendants could rely. Such a
defence would amount to a confession and avoidance and absent the
confession, the
defendants cannot rely on the defence of qualified
privilege and his intention to defame is presumed. See
Neethling
at 769G-H.
The eighth issue – Weight of the evidence
[32] The eighth issue is that it was argued that the weight of the
evidence favoured the defendants. This entails no more than
an
evaluation of the evidence based on the argument that the credibility
findings of the magistrate, together with the probabilities,
should
have been in favour of the defendants.
[33] Significantly, the first
defendant’s version was hardly put to Mr Leibrandt in
cross-examination in order to allow him
to react thereto. His
evidence was all but denied. Indeed he was advised during
cross-examination that it was not suggested that
he was lying to the
court. His evidence that he recalled the first defendant being very
passionate about the topic, that it was
a very forceful and emotive
statement, made during the introduction of the meeting, remained
unchallenged. In
Small
v Smith
1954 (3) SA
434
(SWA) it was held at 438E-H as follows:
‘
It is,
in my opinion, elementary and standard practice for a party to put to
each opposing witness so much of his own case or defence
as concerns
that witness and if need be to inform him, if he has not been given
notice thereof, that other witnesses will contradict
him, so as to
give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly
unfair
and improper to let a witness's evidence go unchallenged in
cross-examination and afterwards argue that he must be disbelieved.
Once a witness's evidence on a
point in dispute has been deliberately left unchallenged in
cross-examination and particularly by
a legal practitioner, the party
calling that witness is normally entitled to assume in the absence of
notice to the contrary that
the witness's testimony is accepted as
correct. More particularly is this the case if the witness is
corroborated by several others,
unless the testimony is so manifestly
absurd, fantastic or of so romancing a character that no reasonable
person can attach any
credence to it whatsoever.
’
This principle was approved in
President of the Republic of South
Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) at
para 61 where it was said:
‘
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it
is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness's
attention to the
fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our courts.’
[34] The magistrate, in her judgment, said:
‘
With
regard to the testimony of Mr Leibrandt, the court was satisfied that
the witness testified in a clear and straightforward
manner. There
were no inherent improbabilities or material contradictions in his
testimony…The court was satisfied that
the witness was frank
and forthright in his responses… Mr Leibrandt did not attempt
to embellish or exaggerate evidence
against the first defendant…The
court is satisfied that it was clear on all material aspects of his
testimony and accepts
his testimony as being reliable.’
[35] A court of appeal will not readily interfere with a lower
court’s finding regarding credibility of witnesses. Deference
is paid to a trial court’s findings on credibility because of
the peculiar advantage it has of seeing the witnesses. A trial
court
has the obvious and important advantage of being steeped in the
atmosphere of the trial. These advantages are not possessed
by the
court of appeal. See
Union Spinning Mills (Pty) Ltd v Paltex Dye
House (Pty) Ltd and Another
2002 (4) SA 408
(SCA) para 24. After
a thorough analysis of the evidence of each witness the magistrate
accepted the evidence led on behalf of
the plaintiff and the first
defendant was found by the magistrate to be an unreliable witness.
[36] In the circumstances, the acceptance of the evidence on behalf
of the plaintiff cannot be faulted. The criticism by the defendants
that the plaintiff failed to call witnesses to corroborate him, seen
against the back ground of the evidence of the plaintiff,
which he
could assume that, because it was not challenged, to be correct, can
be disregarded. There was no need to call witnesses
to corroborate
the version which was not materially challenged with an opposing
version.
[37] The defendants criticised the evidence of the plaintiff as being
‘subject to every possible criticism imaginable’.
I do
not agree, but even if such would be the case, the plaintiff was not
present at the meeting and could not contribute to the
evidence
regarding the uttering of the defamatory remarks. His evidence is to
a large extent irrelevant, save in so far as he testified
regarding
facts which would assist to quantify his damages.
[38] The defendants called Mr Moonsammy – Koopersammy (Mr
Koopersammy), a director in the employ of the second defendant
to
testify on behalf of the defendants. Whether so intended by the
defendants or not, Mr Koopersammy said in evidence:
‘
So, if
my memory serves me correctly it is possible that Mr Flusk said that,
if, you know, if you give councillors the wrong information
then they
would end up going to jail and in so saying he may have mentioned Mr
Berg’s name but merely as an example.’
This evidence, in my view, supplies a substantive measure of
corroboration for Mr Leibrandt that the first defendant said that
the
plaintiff will go to jail.
[39] The first defendant, on the other hand, despite his case not
having been put to the plaintiff’s witnesses, entered the
witness stand to contradict the evidence of Mr Leibrandt and that of
Mr Koopersammy.
[40] With reference to examples, the magistrate found that the first
defendant ‘did not testify in a clear manner’
and that
some of the inconsistencies and material contradictions in his
evidence detracted from his reliability. The first defendant
admitted
that he used the words ‘criminal proceedings will be
instituted’ and ‘jail’, although in a different
context. On his own version, the plaintiff was one of the councillors
implicated in a report that he had in his possession. His
explanation
as to why he supported an affidavit which said that he believed in
the truth of the utterances made at the meeting
and that they were
based on the contents of a report, was hollow and unconvincing.
Indeed he confirmed in an affidavit that:
‘
Accordingly,
it is my humble submission, that the First Applicant / Defendant had
reason to believe in the truth of any utterances
made by him during
the course of the City Manager’s Co-ordination Management
meeting as any such utterances were based on
the findings contained
in the Pasco report, which called upon the First Applicant /
Defendant in his capacity as city manager to
consider criminal
proceedings against Respondent / Plaintiff in this regard. I submit
that the first Applicant / Defendant had
a duty towards the Second
Applicant / Defendant, and the public at large, to act in accordance
with the recommendations of the
Pasco report’
.
The reference is clearly to the plaintiff but first defendant
side-stepped the issue during his evidence.
The witness’ self-contradiction regarding an example used ie
that it was used to warn others not to disclose information
to third
parties which changed to the fact that it was used to warn parties to
give their co-operation in the investigation, was
a very material
contradiction. It referred to the very circumstance under which the
first defendant alleged he uttered the words
used by him. I
consequently agree with the magistrate’s finding regarding the
unreliability of the first defendant’s
evidence.
[41] The scribe, who kept the minutes of the meeting, Mr Mokoena, had
to concede that he could not recall all that was said at
the meeting.
Having regard to the fact that the reference to the plaintiff was
during the introduction of the meeting, nothing
can be made of the
failure by Mr Mokoena to record those remarks in the minutes. Indeed,
he failed to record the example allegedly
used by the first defendant
regarding persons who were confronted with a jail term. He confirmed
that the minutes were only summaries
of some of the aspects which
were discussed and not a complete record. It appears that the full
record of the cross-examination
of this witness does not form part of
the record. However, neither plaintiff nor defendant made any issue
of this, I presume as
a result of the fact that the witness made the
concessions referred to early during his cross-examination.
[42] In essence the magistrate preferred the evidence supplied by the
plaintiff and found that the first defendant’s version
is
unreliable. She concluded, rightly in my view, that the plaintiff
succeeded in proving on a balance of probabilities that the
words
were uttered by the first defendant.
The ninth issue – Damages and quantum thereof
[43] The ninth ground of appeal is that the plaintiff failed to prove
any damages and that the quantum of the damages was incorrectly
arrived at by the magistrate.
[44] The plaintiff gave evidence regarding his reputation and
standing in the community. He testified that the offending
publication
had a huge impact pertaining to his relationship with the
people within the second defendant; he further stated that he stopped
calling public meetings to inform the public what was happening
within the second defendant; he stated that he was affected as
community police forum chairman; he further stated that he commenced
avoiding council functions and only attended the meetings;
that he
went into a depression and that he felt that he couldn’t serve
the community and perform the functions for which
he was elected. The
plaintiff also experienced that persons within the second defendant
formed the view that he was not to be trusted
and they often would
not associate with him and did not want to be seen with him,
especially behind closed doors.
[45] There can be no doubt that
the plaintiff supplied sufficient evidence to the court in order to
evaluate the injury suffered
by him. The defendants failed to offer
an apology for the first defendant’s conduct but persisted in a
denial of uttering
the defamatory words. “The successful
plaintiff in a defamation action is entitled to an award of general
damages to compensate
the plaintiff for injured feelings and for the
hurt of his or her dignity and reputation.” See LAWSA Vol. 7
2
nd
ed para 260. No specific argument was directed to show that the
quantum arrived at by the magistrate was inappropriate or wrong.
After the careful analysis of the evidence the magistrate formed the
view that the sum of R50,000.00 would be adequate compensation
for
the plaintiff. The defendants’ reliance on the fact that the
plaintiff was a politician and that the court should not
encourage
litigation involving politicians, is misplaced. The statement of and
concerning the plaintiff was not made in a political
arena. Indeed,
there was no evidence to show that the plaintiff and the first
defendant were political opponents. In
Mangope
v Asmal and Another
1997 (4) SA 277
(T) Hartzenberg J said at p 287 I – 288 A:
‘
I
understand the Chief Justice to have said that even politicians can
be defamed. They must, however, not be overhasty to complain
about
slatings against them unless it is really serious. Now it is obvious,
in my view, that a distinction must be drawn between
an attack
against the dignity and reputation of a politician, on the one hand,
and an attack upon his political views, policies
and conduct, on the
other hand. When it comes to the latter, the Courts will be slower to
come to the assistance of a politician.
But, even if, in that
context, a defendant oversteps the bounds of what is permissible, he
will be held liable. On the other hand,
if there is an unwarranted
slating which lowers him in the esteem of his fellow human beings
which is not at all necessary in commenting
upon his policy and his
conduct, a Court will be more readily inclined to protect his dignity
and reputation.’
These remarks are appropriate in this matter.
[45] In all the circumstances, I am of the view that the appeal falls
to be dismissed with costs.
WEPENER J
JUDGE OF THE SOUTH GAUTENG
HIGH COURT
I agree.
KUBUSHI J
JUDGE OF THE SOUTH GAUTENG
HIGH COURT
APPEARANCES
COUNSEL FOR APPELLANTS: P. Sieberhagen
Instructed by Chiba Torapi Attorneys
COUNSEL FOR RESPONDENT: H.P van Nieuwenhuizen
Instructed by SJ Naude Attorneys