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[2015] ZAGPJHC 51
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Van Der Westhuizen v Ntshabele (2014/27063) [2015] ZAGPJHC 51 (20 March 2015)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: 2014/27063
DATE: 20 MARCH 2015
In the matter between
NADIA VAN DER
WESTHUIZEN
.....................................................................................
PLAINTIFF
And
MORGAN MOTLOGELWA
NTSHABELE
..................................................................
DEFENDANT
JUDGMENT
BORUCHOWITZ J:
[1] This is an unopposed action in
which the plaintiff claims damages for defamation. The relevant
facts emerge from the plaintiff’s
oral testimony and a damages
affidavit filed on her behalf.
[2] The plaintiff, Nadia van der
Westhuizen, is a human resources manager employed by a company, Blue
Turtle Technologies, which
carries on the business of the delivery of
specialised IT software solutions. The defendant is Mr Morgan
Motlogelwe Ntshabele,
who was employed by the company as a business
analyst, but was retrenched on 24 June 2013.
[3] In her capacity as the human
resources manager of the company, the plaintiff’s
responsibilities include the training and
development of employees
and investigating and resolving workplace issues. And it was also
her responsibility to preserve employer/employee
relationships
through implementing an effective employee relations strategy. To
properly perform this function it was necessary
for the plaintiff to
create trusting relationships between herself and staff members. To
this end she would interact with them
on a daily basis and they in
turn would approach her in order to discuss any problems that they
experienced in the workplace.
[4] After the defendant was retrenched
on 24 June 2013, the plaintiff was required to assist with his
retrenchment procedure and
had the duty to obtain various company
assets from him which included a laptop and an internet and access
card which he still had
in his possession.
[5] On 25 June 2013 the plaintiff and a
co-employee, Mr Dintle Matshikane, approached the defendant at the
premises of the company
and requested that he sign the necessary
documents pertaining to the retrenchment and also that he return the
company assets which
were still in his possession.
[6] The defendant blamed the plaintiff
and made accusations that it was her fault that he was retrenched.
He called her “a
liar” and refused to hand over the
company assets. The defendant stood up and approached the plaintiff
in a threatening
manner. At this point, Mr Matsikane pushed the
defendant away from the plaintiff and explained that the company had
the right
to retrieve its assets. This incident occurred in an
open-plan office and was witnessed by various people, including
members of
the public and a number of co-employees.
[7] Later in the day, when the
defendant started leaving the company premises, the plaintiff again
approached him in the company
of a Miss Talent Machaka. The
defendant thereupon called the plaintiff “a racist” and
“a liar” and suggested
that his retrenchment was her
fault. As the plaintiff did not want Ms Machaka to hear what the
defendant was saying, she requested
her to return to the company
premises. Whilst Ms Machaka was walking away the defendant continued
to insult the plaintiff by calling
her an “unintelligent white
girl”. All of this was overheard by Ms Machaka. After
vilifying the plaintiff in this
manner, the defendant continued his
attacks and stated: “You think you’re clever”, and
this was followed by a
threat that he would “teach [the
plaintiff] a lesson”.
[8] As a consequence, the plaintiff was
humiliated and scared and immediately went to the boardroom, closed
the door in order that
no-one could see her and burst into tears.
She had to retain her full composure in order to face her
fellow-employees after the
incident. What the plaintiff found to be
particularly disturbing were the defendant’s statements to the
effect that she
was racist, dishonest and an unintelligent white
woman.
[9] In the summons the plaintiff
alleges that in consequence of the aforegoing, she has “endured
pain and suffering and has
been damaged in her reputation”.
[10] The relevant legal principles are
well established. In Khumalo & Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para [18], it was held that a plaintiff suing for defamation
must establish a wrongful, intentional publication of a defamatory
statement concerning the plaintiff. Once a plaintiff has established
that the defendant has published a defamatory statement concerning
the plaintiff, it is presumed that the publication was both unlawful
and intentional. The defendant wishing to avoid liability
for
defamation must then raise a defence which rebuts unlawfulness or
intention (see, also, in this regard, Le Roux & Others
v Dey
(Freedom of Expression Institute and Restorative Justice Centre as
Amici Curiae)
2011 (3) SA 274
(CC) para [85]).
[11] A statement is defamatory of a
plaintiff if it is likely to injure the good esteem in which he or
she is held by the reasonable
average person to whom it has been
published. It includes not only statements that expose a person to
hatred, contempt or ridicule,
but also statements that are likely to
humiliate or belittle the plaintiff; which tend to make him or her
look foolish, ridiculous
or absurd or which render the plaintiff less
worthy of respect by his or her peers (Le Roux v Dey, para [91] and
cases there cited).
[12] The statements imputed to the
defendant, which were uttered in the presence of the plaintiff’s
co-workers, are per se
defamatory of the plaintiff. Applying the
two-stage inquiry postulated in Le Roux v Dey, a reasonable observer
would have understood
the plaintiff to be racist, that is to
discriminate on the basis of race and to be dishonourable and of low
intelligence. On the
basis of the evidence and probabilities, the
conduct and statements made by the defendant humiliated and belittled
the plaintiff,
rendering her less worthy of respect by her co-workers
and subordinates and are thus defamatory of the plaintiff. It must
be presumed
therefore that the statements made were both wrongful and
intentional.
[13] I turn now to the quantification
of the plaintiff’s damages.
[14] The amount to be awarded to the
plaintiff falls within the discretion of the Court. In this regard a
number of principles
have been recognised by our courts. Monetary
compensation for harm of this nature is not capable of being
determined by any empirical
measure. Awards made in other cases
might provide a measure of guidance but only in a generalised form
(Tsdedu and Others v Lekota
and Another
2009 (4) SA 372
(SCA) para
[25]).
[15] Among the factors to be taken into
account are the nature and gravity of the defamatory words,
falseness, nature and extent
of publication, malice, rank or social
status, absence of an apology, and motive and the general conduct of
the defendant (Mogale
& Others v Seima
2008 (5) SA 637
(A) paras
[2]–[17]; Lawsa (2 ed) Vol 7 para 94).
[16] Public policy also plays a role.
Our courts have not been generous in their awards in view of the
inhibiting effect of the
law of defamation on freedom of expression.
This was emphasized by Grosskopf JA in Argus Printing and Publishing
Co Ltd v Inkatha
Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 590E-F, where
the following oft-quoted statement was made:
“… An action for
defamation has been seen as the method whereby a plaintiff vindicates
his reputation and not as a
road to riches …”
[17] But, the use of racially
derogatory language is regarded by right-minded members of South
African society as reprehensible
(Sindani v Van der Merwe &
Others
2002 (2) SA 32
(SCA) para [15]). The right to freedom of
speech is not an unfettered one and excludes the use of racially
derogatory language.
The use by the defendant of hate speech, which
is constitutionally unprotected, is an aggravating circumstance which
justifies
a substantial award. However, a note of caution ought to
be sounded: Notwithstanding the prevailing attitudes in the
community,
care must be taken not to award overly large sums of
damages lest doing so might encourage or foster litigation (Van der
Berg v
Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001 (2) SA
242
(SCA) para [48]).
[18] The words used and general conduct
of the defendant were of a serious nature. The reference to the
plaintiff, in the presence
of other employees of the company that she
is dishonest, a racist and unintelligent, clearly infringed the
plaintiff’s sense
of self-worth (dignitas). The words used
were clearly intended to insult, humiliate and belittle the plaintiff
in the presence
of her co-employees. The defendant sought to create
the impression that the plaintiff was a racist, dishonest, and that
his retrenchment
was her fault.
[19] Our law draws a distinction
between claims for injury to dignity (dignitas) and reputation (fama)
(see Khumalo para [27] and
Le Roux v Dey para [154]). Although in
the summons damages are only claimed for defamation, the evidence
discloses that the words
and conduct of the defendant also infringed
the plaintiff’s dignitas and this factor must be taken into
account in assessing
an appropriate quantum.
[20] The defamatory words used in the
context of the present case had the effect of seriously infringing
the plaintiff’s reputation
(fama). As I have already
indicated, the plaintiff is employed as the human resource manager of
a company. Her duties require
her, among other things, to
investigate and resolve workplace issues and to preserve
employer/employee relationships. She works
with staff members on a
daily basis and in order to properly perform her daily functions
needs to create a trusting relationship
between herself and the
staff. How the plaintiff is perceived is very important to her and
the role that she portrays in the company.
Staff members need to
feel free to discuss any problems they may be experiencing in the
workplace. If no trusting relationship
exists or is compromised in
any way they will no longer feel free to discuss these problems with
her. As human resource manager
she most certainly cannot be
perceived as a racist, liar or someone that cannot be trusted. The
defamatory words and statements
which were uttered in the presence of
the plaintiff’s co-employees thus clearly injured the plaintiff
in her good name and
reputation.
[23] A further aggravating circumstance
is that despite service of the summons upon him, the defendant has
not sought to tender
an apology or to withdraw the allegations made
(see Le Roux v Dey paras [150] and [203]).
[24] Having regard to all of the
factors mentioned above, I am of the view that an award that would
meet the justice of this case
would be the sum of R50 000.
[25] The following order is made:
(a) The defendant is ordered to pay the
plaintiff R50 000 as compensation.
(b) The defendant is ordered to pay the
plaintiff’s costs.
P BORUCHOWITZ J
JUDGE OF THE HIGH COURT
DATE OF HEARING : 24 October 2014
DATE OF JUDGMENT : 20 March 2015
ON BEHALF OF PLAINTIFF : ADVOCATE
T COLYN
INSTRUCTED BY : VAN DER MERWE &
ASSOCIATES
Ref: M Roux/caroline/V369/001