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[2011] ZAGPPHC 10
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Dijkhuizen v Mukhanyo Theological College (24040/2009) [2011] ZAGPPHC 10 (27 January 2011)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE NUMBER: 24040/2009
DATE
DELIVERED: 27/1/2011
In
the matter between:
PIETERNELLA
DIJKHUIZEN
...........................................................................................
Plaintiff
and
MUKHANYO
THEOLOGICAL
COLLEGE
...................................................................
Defendant
JUDGMENT
Ismail
J:
[1]
The plaintiff, an erstwhile lecturer at the defendant institution,
instituted proceedings against the defendant for damages
for
defamation.
The
essence of the plaintiffs claim is that on the 17 October 2007 she
was defamed by a member of the board of the defendant, the
Reverend
Mogale, at a meeting which he addressed.
[2]
At paragraph 4 of the particulars of claim the plaintiff avers:
"On the 17
th
October 2007 and at KwaMahlanga the defendant represented by Rev K T
Mogale stated to the students and staff and concerning the
plaintiff
that:
After thorough
investigation the Board of Control has concluded that the accusations
in Ms Petra's letter of concern are false."
[3]
It was common cause that the plaintiff was known at the defendant as
Ms Petra.
[4]
The plaintiff, at paragraph 7 of her particulars of claim, also
alleged that the statement made by the Rev. Mogale was understood
by
the assembly of staff and students that it was intended to mean that
the plaintiff was dishonest for the following reasons:
(i) That the plaintiff
made false allegations;
(ii)
That the allegations were unfounded;
(iii)
That there was no merit to the Plaintiffs allegations.
[5]
As a consequence of the defamation the plaintiff averred that her
reputation had been adversely tarnished and she therefore
sought
damages against the defendant in the sum of R200 000,00.
Background
[6]
The trial lasted for several days. Four witnesses testified before
me. For the plaintiff: Mr Phineas Kgatle [Kgatte] , a student
and
vice chairperson of the students representative council [SRC] at the
defendant, as well as the plaintiff, gave evidence. For
the
defendant: Dr Coetzee and the Rev. Mogale. At the conclusion of the
trial the matter was postponed in order for Mr Da Silva
SC and Mr
Pretorius SC to provide their respective heads of arguments. These
heads were provided to me on the last day of the final
term in 2010.
[7]
Pursuant thereto Mr Da Silva sought an amendment. The amendment
related to paragraph 4.1 of the particulars of claim which required
the following words to be inserted after the word " false",
namely
"alternatively, we
could not find proof of the things which are mentioned there".
The
plaintiff also sought to substitute the preamble to paragraph 3 of
the plaintiff's conditional replication with the following
paragraph,
in order for the preamble to paragraph 3 to read as follows:
" With referance to
paragraph 5.2 of the defendant's plea and in the event of it being
found that the statement made by Rev.
K T Mogale, who was mandated by
the defendant, and Rev Mogale acting during the course of defendant's
business and within the scope
of defendant's authority, were made by
the defendant in the discharge of a duty,
alternatively
the
exercise of a right, to persons who had a corresponding duty or right
to receive the statements, plaintiff then pleads as follows:"
[8]
The notice of amendment was served and filed similtaneously with the
plaintiff's replying heads of argument on 20 December 2010.
[9]
Mr Kgatle testified that at a devotion which was attended by staff
and students of the defendant on 17 October 2007, Rev Mogale
addressed those present and informed them that:
" After thorough
investigation the Board of Control has concluded that all the
accusations in Ms Petra's letter of concern
are false".
It should be mentioned
that Ms Petra was not present at the devotion as she was no longer
employed by the defendant at that time.
[10]
After the graduation ceremony Mr Kgatle obtained a lift from Ms Petra
and on route he informed her of the remarks which the
Rev. Mogale
made at the devotion. The contents of the report which the Rev.
Mogale gave on at the devotion set in motion the train
of events
which culminated in this action being instituted by the plaintiff.
[11]
It is salient to provide the peripheral and background events, which
resulted in the announcement made by the Reverend Mogale,
in order to
gain a proper understanding of the issues.
[12]
The plaintiff, a lecturer at the defendant, wrote a letter of concern
to the Board of Control and forwarded it to the Executive
Council of
the defendant on 19 October 2006. This letter appears at pages 65-74
of the bundle. In this letter the plaintiff refers
to certain fraud
of funds and bookkeeping irregularities by Mr Pieterse; secondly that
approved budgets were disregarded; thirdly
to the mismanagement of
trust funds, and finally to the question of the post of registrar and
Campus manager, more specifically
how she was dealt with when she
applied for the post.
[13]
The Board agreed to look into the matters raised by Ms Petra and a
Commission of Enquiry was appointed to investigate the complaints
raised. The commission comprised of the following members:
Br
Ben Holthaused (convener); the Rev. Mbethe; the Rev. H H Shoole, the
Rev. Tebogo Mogale and Br. C J (Poen) Coetzee.
[14]
The commission of enquiry completed its investigation after it
interviewed the relevant persons. It compiled a report which
can be
seen at pages 136-144 of the bundle.
[15]
The report was forwarded to the Board of Control who held a general
meeting on 13 October 2007. At the general meeting it was
agreed
that:
" 9.6 Rev. T Mogale,
the Vice Chairperson of the Board should convey the summarized
version of this decision to the staff and
students of MTC after
devotion on Wednesday, 17 October 2007. It should also be stressed
that it would serve no purpose for anybody
to discuss the matter
further with Sr. Dijkhuizen or have contact with her and that Sr.
Dijkhuizen will in future not have free
access to the campus." -
Page 150 of bundle.
[16]
What needs to be determined by me are the following issues:
(i) what words were
uttered by the Reverend Mogale when he addresssed the staff and
students at the devotion on 17 October 2007;
In this regard the
version of the Reverend
Mogale and that of Mr Kgatle needs to be
examined;
(ii) whether the
occasion when the gathering was addressed was a
privileged
occasion;
(iii)
whether the words were defamatory; and
(iv)
if so, what damages should be awarded.
[17]
Consequently the evidence of the witnesses, being Mr Kgatle and the
Reverend Mogale is pivotal to the determination of this
matter.
Neither Sr Petra nor Dr Coetzee were present at the devotion when the
Rev. Mogale addressed the congregation.
Stated
differently, the court would have to determine what was actually said
by the Reverend Mogale at the devotion, since the protagonists
diametrically differ in their accounts of what was said on that day.
On this score the court is confronted with two mutually opposed
versions.
[18]
In this regard the court would have to follow the approach as laid
down in SFW Group Ltd & Another v Marteli et Cie &Others
2003(1) SA 11 at 141-15E at para [5].
" On the central
issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too on a number
of peripheral areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving
factual disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court
must make a finding on (a)
the credibility of the
various
factual witnesses; (b) their reliability; and (c) the
probabilities......
The
hard case, which will doubtless be the rare one, occurs when a
court's credibility findings compel it in one direction and its
evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter. But
when all factors are equipoised probabilities prevail"
[19]
For this reason the court is duty bound to evaluate the evidence
tendered by the various witnesses; in this case the evidence
of the
Rev. Mogale and Mr Kgatle is crucial to the determination of this
matter. Both Mr Da Silva and Mr Pretorius' submitted that
the
evidence of Dr Coetzee was honest and should be accepted. I agree
with their submission in this regard. Dr Coetzee impresssed
the court
as an honest witness who merely came to tell the court what happened
without taking sides one way or the other. His evidence
is thus
accepted by the court. Dr Coetzee was however not present at the
devotion on the 17 October when the Rev. Mogale addressed
the
students and staff of the defendant.
[20]
The plaintiff gave evidence. She was cross-examined at length. Her
evidence must be placed under the microscope since she has
a direct
interest in the outcome of this matter. Mr Pretorius in his heads of
argument levelled several criticisms against the
plaintiff's
evidence. He inter alia alluded to the plaintiff's personal attack on
Dr Buys and her evidence that the Rev. Mbethe
allegedly stated that
the committee was biased. Mr Pretorius submitted that the referance
to what the Rev. Mbethe apparently stated
should be rejected in the
light of Dr Coetzee's unchallenged evidence.
[21]
Mr Pretorius criticised the plaintiff's version on the question of
payment of monies to Ms Moshiba and her evidence that the
latter was
underpaid. The version of the plaintiff on this score was clearly
wrong.
[22]
Whilst it is true that the plaintiff drew certain conclusions
regarding the operation of the college that were not entirely
correct, I do not believe that her motive for writing the letter of
concern was motivated by anything other than the best interests
of
the defendant. There is no doubt in my mind that there was some
tension between her and Dr Buys, the principal of the college.
This
tension between them caused the plaintiff to write the letter of
concern to the Board. At the time she was also on the management
committee of the defendant, whilst Mr Buys was the principal.
[23]
I must state that my assessment of the plaintiff was that she was
emotional at times during her evidence. She was subjected
to crafty
and lengthy cross-examination and my final impression of her was that
she was a dedicated and diligent staff member of
the defendant, who
was motivated and concerned and believed that she acted in the best
interest of the defendant at ail times.
Unfortunately she did not get
along with the principal, which ultimately resulted in her leaving
the defendant, albeit because
she did not get the position of
registrar of the college.
[24]
Her evidence does not help me in determining the issues, which I have
to determine as set out in paragraph 16 supra.
[25]
From the evidence tendered I am of the view that the board had a duty
to inform the staff and students of the outcome of its
enquiry. For
that reason what was stated at the devotion was stated in a setting
of qualified priviled. The plaintiff submitted
her letter of concern
to the board and to the chairman and vice chairman of the SRC. She
brought her concern to those persons she
felt had an interest in the
subject matter of the letter. Similarly when the investigation was
completed the board was duty bound
to reveal the findings of the
commission of enquiry to the staff and students. I am therefore of
the view that the announcement
of that day falls within the defence
of qualified privilege.
The
devotion of 17 October 2007.
[26]
What was actually said by the Rev. Mogale at the devotion on 17
October 2007 falls to be determined by the opposing evidence
of the
Rev. Mogale and that of Mr Kgatle. In this regard the evidence
presented of their respective versions becomes of pivotal
importance.
[27]
The Rev. Mogale was the vice Chairman of the board at that stage. He
was entrusted with the task to convey the board's mandate
referred to
in para [15] supra. His evidence was that he, together with Mr De
Beer sat down and formulated what he was going to
say to those
assembled at the devotion. He wrote down what he intended to say and
noted it down in three points, namely:
(i)
that the commission could not find any evidence to prove Sr
Petra's
claims;
(ii)
that it would serve no purpose for the staff or students to
discuss
the matter any further with Sr Petra or to have contact
with her;
(iii)
that the Board found that Sr Petra would no longer have access to
the College.
During
cross-examination the Rev. Mogale denied that he ever used the word
'refuted' as suggested in paragraph 4.5.3 of the plea,
to the effect
that:
" 4.5.3 The essence
of the findings of the commission is that all the accusations of the
plaintiff were refuted."
The plea was dated 15
June 2009. The Reverend Mogale testified that he only spoke to
defendant's counsel for the first time about
a month prior to the
trial.
[28]
During cross-examination the Rev. Mogale repeatedly stated words to
the effect: " that I cannot remember". These
words are
hardly surprising considering that he had to testify about something
he said more then 3 years prior to testifying. In
this regard I am
alerted to what Nienaber JA in the Mattel matter, which is referred
to supra, stated at para [1],
" Recollection can
be fallible. And in business the failure to confirm an event promptly
and on paper can be fatal..."
Or as was stated in
another matter: " memory like a mistress is often unfaithful".
The
Rev. Mogale was asked during cross-examination whether he ever used
the word " substantiate" during the devotion.
He responded
by saying: "I don't remember using that word".
Notwithstanding the aforesaid it was put to him by opposing
counsel
that when Mr Kgatle gave evidence he (being the Rev. Mogale) had told
them that " that there was no evidence to substantiate
Sr.
Petra's complaint".
[29]
Mr Kgatle testified that he was the vice-chairman of the SRC. He
graduated at the college and did not receive any books when
he
graduated; the relevance hereof being that a donor had given the
college monies in order to purchase books. These books should
have
been given to the graduates. One of the complaints in the letter of
concern which the plaintiff addressed to the board was
the
unauthorised utilisation of trust funds in respect of the running of
college. This complaint was conceded as being valid by
both Dr
Coetzee and the Rev. Mogale.
[30]
Mr Kgatle stated that the letter of complaint was sent to the SRC. He
gave evidence regarding what the Rev. Mogale said at
the devotion-
see para [9] above. He stated that there were between 25 and 30
people at the devotion which consisted of students
and staff. He
stated that he was shocked to hear that Sr Petra's accusations were
false and wrong.
[31]
Mr Kgatle reported what was said at the devotion to Sr Petra
subsequent to the graduation held during March 2008. He was requested
to depose to an affidavit regarding the devotion and what was said,
which he did on the 22 May 2008, seven months after the devotion.
This must be contrasted to when the Rev Mogale was requested to
revisit the issue; some 3 years later.
[32]
Mr Kgatle impressed me as a witness; he was adamant and categorical
regarding what was said at the devotion and he gave a clear
account
of what happened prior to the devotion. The Rev. Mogale on the other
hand could not remember many things. Thus, regarding
what had been
said at the devotion must be examined on the probabilities. In my
view the probabilities favour the view presented
by Mr Kgatle, as
opposed to the view presented by the Rev Mogale. Having said that I
must emphasize that I am not suggesting that
the Rev. Mogale was not
being truthful with the court. In my view it is hardly surprising for
a person to recollect with absolute
accuracy what he or she said
after a three year interval. In my view the Rev. Mogale was
paraphrasing what he said when he testified
under oath. He did not
have the notes that he used at the devotion. Furthermore what was
stated in the plea did not accord with
his oral evidence.
[33]
This raises the question whether the Rev. Mogale deliberately used
the words which Mr Kgatle said he used at the devotion.
I do not
believe that this was done with maiice aforethought.
[34]
It is incumbent on me to examine the words which Mr Kgatle stated
were used at the devotion. I repeat those words which appear
at para
[9] above, namely:
After a thorough
investigation the Board of Control has concluded that all the
allegations raised by Sr Petra were false.
The evidence of Dr
Coetzee and the Rev. Mogale was to the effect that the complaint
regarding trust funds, or "cross funding"
as it was
referred to, had some merit, as did the complaint relating to the
manner in which the registrar was appointed.
[35]
In Borgin v De Vllliers
1980 (3) SA 556
(A) at 578H - 579A CorbettJA
stated:
" The defence of
qualified privilege is, however, not concerned with the truthfulness
or otherwise of the publication, though
proof that the defendant did
not believe that the facts stated by him were true may give rise to
the inference that he was actuated
by express malice... but the
truthfulness or otherwise of the statement has no bearing on whether
they were germane to the occasion
or not."
[36]
I have found that the defendant was entitled to make a statement, as
it was duty bound to inform its staff and students of
the findings of
the board of enquiry. What must be examined is what the message was
that was conveyed to the staff and students
at the devotion. Mr
Pretorius submitted in his heads of arguments that the defendant had
not mandated the Rev. Mogale to use the
alleged words which Mr Kgatle
testified to. It was submitted that the Rev. Mogale may have been
remiss. He was however not a party
to the dispute. This argument has
substance, however the plaintiff sought an amendment after the
defendant's heads of argument
were filed. - See: para [7] above. The
plaintiff thereby sought damages based on vicarious libility.
[37]
I must examine the words that were used. In Sandani v Van derMerwe
[2002] 2 All SA 311
(SCA)| where the court stated:
" That the meaning
of the statement under consideration does not necessarily correspond
with its dictionary meaning. The test
to be applied is an objective
one. In accortdance with objective test, the question is what the
reasonable reader of ordinary intelligence
would attribute to the
statement in its context"
See : Udwin v May
1981
(1) SA 1
(AD) at 11B
The
Law of South Africa [LAWSA] vol 7 pages 237-238
The
words to both staff and students to the objective person
such
as Mr Kgatle could only mean that the allegations made
by
the plaintiff was dishonest or untruthful.
[38]
In my view those words invariably affected the plaintiff's reputation
and good name, and she was accordingly defamed.
[39]
This then brings me to the determination of the damages that the
plaintiff should be awarded. The plaintiff claimed an amount
of R200
000,00 in her particulars of claim. Mr Da Silva in his heads of
argument submitted that a proper award would be in the
sum ofR100
000,00.
Mr
Pretorius on the other hand submitted that if any damages were to be
awarded an amount of no more than R15 000,00 should be awarded.
[40]
I was referred to diverse decisions dealing with the question of
quantum. I do not propose to refer to them in this judgment,
however
this should not be construed to mean that I have not considered these
judgments. The awarding of damages in such matters
depends on several
factors, which include but are not limited to the nature of the
defamatory statement, the extent of its publication,
the reputation
of the plaintiff and the motive of the defendant.
[41]
The statement was made to no more than 30 people. It was restricted
to merely the staff and students of the defendant. It is
not as if
the publication was circulated to thousands of readers. I do not
believe that the defendant instructed the Rev. Mogale
to use the
words that were uttered. The plaintiff succeeded in its claim on the
grounds of vicarious liability as the statement
was made by the
chairman of the Board of the defendant.
[42]
The plaintiff on the other hand belonged to a theological
organization where honesty and integrity are, in my view rightly
considered to be the pillars of one's reputation. To that extent the
impression created by the statement made was that she was
dishonest
and could not be believed, to the extent that no student or staff
would henceforth associate with her or would think
twice before
associating with her and trusting her word. She was proverbially
"sent to Coventry". This is a factor I
should consider in
the determination of damages. On the other hand the defendant has to
this date failed to proffer any apology
to the plaintiff.
[43]
in my view, having considered the cases in point, I believe the
amount which Mr da Silva suggested is too high, whilst on the
flip
side of the coin the amount recommended by Mr Pretorius is rather
conservative. It is my considered opinion in the circumstances
that a
fair and appropriate award for damages would be R50 000.00.
[44]
Accordingly I make the following order:
(I)
The plaintiff's action succeeds;
(ii)
The defendant is ordered to pay the plaintiff an amount of
R50 000
as damages;
(iii)
The defendant is ordered to pay the plaintiff's cost of trial on the
magistrate's court scale.
Ismail J
Appearances:
For
the Plaintiff:
Adv Da Silva SC instructed by Scholtz
Attorneys , Hatfield
Pretoria.
For
the Defendant:
Adv Pretorius SC instructed by Jordt
Attorneys, Brooklyn,
Pretoria.
Judgment
delivered on
:
26
January 2011