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[2011] ZAGPPHC 81
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Kruger v Botha (A598/08) [2011] ZAGPPHC 81 (31 May 2011)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A598/08
DATE:31/05/2011
In
the matter between:
STEPHANUS
JOHANNES PAULUS
KRUGER
............................................................
Appellant
And
PIETER
M
BOTHA
..................................................................................................
Respondent
JUDGMENT
MATOJANE
J
[1]
The appellant was the unsuccessful plaintiff in a defamation action
he instituted against the Respondent. The court a quo refused
leave
to appeal and the Supreme Court of Appeal granted leave. The
plaintiff is employed as deputy director in the office of the
Compensation Commissioner. The respondent is an orthotist and
prosthetist in private practice.
[2]
On 26 January 2004 the respondent made certain remarks about
appellant during a radio interview, which was broadcasted on the
Monitor, a programme of the South African Broadcasting Corporation.
The respondent relied, during the interview, on information
he got
from an unknown agent and stated:
"Toe
se hy vir my 'Man, jy weet man, dis baie maklik, ons vat Mnr Fannie
Kruger (dis nou die Kommissaris homself) jy weet,
vir a naweek op 'n
bosberaad en ons bespreek hierdie ding' "
[3]
The appellant sued for defamation, asserting that the above statement
made during the interview was devoid of any truth and
placed him
under suspicion. He was responsible for a budget of more than Rl,2
million and his name and reputation was at stake.
He was humiliated
before his colleagues, friends and family. In paragraph 4 of the
particulars of claim he alleged that the statement
was defamatory of
him for the following reasons:
"Voormeide
woorde is deur Verweerder gebesig met die bedoeling om daardeur te
kenne te gee, en het verweerder inderdaad daardeur
te kenne gegee dat
eiser:
4.1
Korrup en/of oneerlik is deurdat hy omgekoop word om betaiings aan
sekere praktisyns te versnel;
4.2
Horn versoen met en/of deel is van 'n industrie wat van
onkonvensionele en/of onreelmatige en/of onwettige metodes gebruik
maak ten einde die betaling van vergoedingseise te versnel of afte
handel;
4.3
Vergoedingseise op die wyse in paragraaf 4.2 hierbo bedoel afhandel
ten koste van vergoedingseise wat reelmatig deur eiser afgehandel
behoort te word; alternatiewelik dat eiser vergoedingseise slegs op
die wyse in paragraaf 4.2 hierbo bedoel afhandel en weier en/of
versuim om vergoedingseise op 'n reelmatige wyse afte handel;
4.4
Horn versoen met en/of deel in die bedrog wat gepleeg word deur
personeel en/of voormalige personeel in diens van die
Vergoedingskommisaris
in die afhandeling van vergoedingseise;
4.5
Onbevoeg en/of onbekwaam is en nie sy pligte as werknemer in diens
van die Vergoedingskommissaris behoorlik nakom nie."
[4]
The respondent denied in his plea that the interview was defamatory
of the appellant, and if so, he denied that he made the
remarks with
the necessary animus iniuriandi. The respondent pleaded that the
allegations were the truth and were in public interest
to make public
the position in the office of the Compensation Commissioner.
[5]
The trial court found that the words were not defamatory of the
appellant and that no reasonable listener of ordinary intelligence
would have attributed the words heard in the context of the interview
as a whole any other meaning than that the respondent was
the victim
of ineptitude and inefficiency in a government office.
The
background
[6]
It is not in dispute that there existed serious problems in the
office of the Commissioner regarding payments of overdue fees
payable
to doctors and other service providers who rendered services to
injured workmen for which the Compensation Commissioner
was liable.
The respondent is one of the service providers who experienced
problems with the payment of claims he submitted for
payment by the
Commissioner. He took the matter up with the Commissioner and
eventually also instructed an attorney to assist him.
In desperation,
the respondent contacted the SABC and requested them to investigate
the situation. He agreed to give an interview
when he was asked if he
was prepared to have his complaint broadcast.
[7]
In the interview, respondent spoke about, inter alia, the
inefficiency in the Commissioners office where hand-delivered
documents
got lost or misfiled, measures that unpaid service
providers have to resort to in order to recover their fees, like, the
use of
consultants who were previously in the employ of the
Commissioner who interacted with their former colleagues who are
responsible
for payment of claims. The respondent explains the modus
operandi of the consultants and the risk inherent in employing some
of
them. The only reference to the appellant is what the respondent
was told that in order to expedite payment, consultants have to
take
appellant to a "bosberaad en bespreek hierdie ding"
[8]
The issue in the case is whether these words in the context of the
broadcast were defamatory of the appellant and, if so, the
quantum of
appellant's claim.
[9]
It was submitted on behalf of the appellant that the ordinary
listener's first impression would have been that the appellant
fails
or refuses to attend to the finalization of claims in the ordinary or
normal course of events; he only performs certain of
his official
duties if unconventional methods are employed; he does not perform
his official functions unless or until he is treated
to a "bosberaad"
outside normal working hours, where he is entertained at the expense
of shady characters.
[10]
The test for determining whether words published are defamatory is to
ask whether a reasonable person of ordinary intelligence
might
reasonably understand the words to convey a meaning defamatory of the
appellant. The test is an objective one. In the absence
of an
innuendo, the reasonable person of ordinary intelligence is taken to
understand the words alleged to be defamatory in their
natural and
ordinary meaning. See Mthembu-Mahanyele v Mail and Guardian Ltd and
Another
2004 (6) SA 329
at 342 G. This hypothetical reader/ listener
should be endowed with average intelligence and education (Basner v
Trigger
1945 AD 22
, at 35). It must also be accepted that an ordinary
reader will not take account only of what the words expressly say but
also what
they imply.
[11]
Applying this test, I am not persuaded that the meaning which
respondent's counsel sought to place on the vita! statement is
the
correct one. The trial court, correctly in my view, stated that the
word "bosberaad" does not have any negative,
improper, or
reprehensible or dishonest connotations. The word implies a meeting
of "leaders" where important deliberations
or consultations
take place away from the work environment without disturbance or
distractions.
[12]
The evidence indicates that the reactions of the people who heard the
broadcast and spoke to him was to enquire from him if
he was in
trouble or what was going on and one wanted to know where the
"bosberaad" was held. It is clear that none of
them
understood the statements to convey the innuendo contended by the
appellant. Most importantly, the appellant himself concedes
that what
was said by the respondent was not defamatory per se. It must also be
borne in mind that according to the reporter who
conducted the
interview, the listeners of the programme are mostly older than 35 to
40 years and fall in the category of the more
educated.
[13]
In my view, therefore, the ordinary listener understood and would
have understood the statement to mean that as a result of
an
unacceptable break-down and shambles in the functioning of the office
of the Commissioner, a "bosberaad" with a senior
official
like a deputy director, could facilitate and expedite payment of long
outstanding claims. The trial court, correctly in
my view, held that
there is nothing in the words complained about to suggest that
appellant derived any benefit from the "bosberade"
or that
there was any impropriety on his part.
[14]
Accordingly, the following order is made: The appeal is dismissed
with costs.
MATOJANE
Judge
of the high court
I
agree
MSIMEKI
JUDEGE
OF THE HIGH COURT
I
agree
FABRICIUS
JUDGE
OF THE HIGH COURT