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[2013] ZAGPJHC 389
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First and Another v Izak (A3021/2013) [2013] ZAGPJHC 389 (17 October 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH
GAUTENG HIGH COURT JOHANNESBURG
CASE
NO: A3021/2013
DATE:
17 OCTOBER 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 2nd 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 2nd 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