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[2019] ZAECPEHC 65
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Gwe v De Lange and Another (3532/09) [2019] ZAECPEHC 65; [2020] 1 BLLR 92 (ECP) ; (2020) 41 ILJ 341 (ECP) (17 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 3532/09
RICHARD MALIBONGWE
GWE
Plaintiff
v
HENRIËTTA DE
LANGE
First
Defendant
MEMBER OF THE
EXECUTIVE COUNCIL
FOR HEALTH, PROVINCE
OF THE EASTERN CAPE
Second Defendant
Neutral citation
:
Coram
:
Swanepoel AJ
Heard
:
2,
3 and 4 September 2019
Judgment
delivered
: 17
September 2019
JUDGMENT
[1]
Mortuaries are for dead people where dissections on bodies are
performed
by pathologists. Not so at the Mount Road mortuary in Port
Elizabeth, where a plot unravelled involving alleged sexual
undercurrents,
perceived preferential treatment and a conspiracy
theory, flavoured with that everyday South African spice of racism.
The matter
involves neither a health contravention nor malpractice on
the part of any dissecting pathologist. The roleplayers involved are
also not the walking dead. Even more unlikely is the cause of action
which finds itself on the dissecting table of a court of law.
It is
that Roman fossil, the
actio iniuriarum
.
[2]
The
plaintiff, one Gwe, is a 53 year old senior forensic pathology
officer employed by the Department of Health of the Eastern Cape
Province (hereinafter referred to as “
the
Department
”).
He was employed as a senior forensic pathology officer at the
Gelvandale mortuary in Port Elizabeth. However, the incident
occurred
at the Mount Road mortuary in Port Elizabeth. At some stage, the
Gelvandale mortuary was gutted by fire. Autopsies were
then performed
at the Mount Road mortuary where an alleged salacious incident
occurred as long ago as 3 April 2009. The alleged
incident gave rise
to an enduring action, commencing many years ago and only meeting its
final fate
[1]
in this year of
2019.
[3]
The first defendant, one De Lange, is the regional manageress
responsible
for forensic pathology services in the Port Elizabeth
region. The second defendant is the Member of the Executive Council
responsible
for Health of the Eastern Cape Province. He is cited in a
capacity not disclosed in the pleading embroiling him, presumably in
his official representative capacity, in this suit.
[4]
Plaintiff’s amended particulars of claim which contains various
errors, challenging the dispassionate reader’s interpretive
skills, in its actual, unedited format, reads as follows:
“
1.
The Plaintiff is Malibongwe Richard Gwe, adult married male having
born on the 11 December
1965, employed as a Forensic Pathology
Officer by the Department of Health, Province of the Eastern Cape,
New Brighton Mortuary,
Mati Road, New Brighton, Port Elizabeth. The
plaintiff is a member of National Health and Allied Workers Union,
and was its shop
steward at the Galvandale Mortuary, at all material
times herein;
2.
On the 25
th
of March 2009 the Plaintiff received a letter
from the first defendant, and was unlawfully suspended from his
employment with the
second defendant. On the 3
rd
April
2009, the plaintiff received a further letter from Mr Vincent Chetty,
an employee of the second defendant, of the Galvandale
(sic)
Mortuary. The further letter contained an allegation that the
plaintiff had been involved in unbecoming behavior (sic) of
a sexual
nature, it stated that the complaint of sexual harassment has been
filed by Ms M Vermaak “Vermaak”, who was
also an employee
of the second defendant, regarding an incident that occurred at Mount
Road Mortuary on the 4
th
of March 2009 in the ladies
bathroom.
3.
The said incident as pleaded in paragraph 5 hereof (sic,
this
being an obvious error
) followed a meeting in which the plaintiff
together with one Lelethu, who is a colleague of the plaintiff, had
arranged a meeting
to discuss on the reason, Vermaak was allowed was
allowed to remain in Galvandale Mortuary (when it was closed for
renovation and
when the rest of the staff of Galvandale Mortuary had
been instructed to report for duty at Mount Road Mortuary upon the
Galvandale
Mortuary being closed for renovations) upon it being
butted (sic) by fire.
4.
The suspension, unlawful transfer and/or allegations contained in the
said letters
(of the 25
th
of March 2009 and 3
rd
April 2019) were made in public, as the said letters in which they
were contained and the suspension and unlawful transfer was
witnessed
by other employees of the second defendant, the allegations further
were brought to the attention of the union representative
representing the plaintiff and also to (sic) attention of the
attention of the plaintiff’s wife, who was employed within
the
same premises in which the alleged incident took place (Mount Road
Mortuary situated at Mount Road Police Station, where plaintiff
was
employed)
5.
The said allegations, unlawful transfer and suspension were made by
the employees
of the second defendant, who were duty bound to first
confidentially investigate the allegations that had allegedly been
made against
the plaintiff by Vermaak before taking action to suspend
and unlawfully transfer and institute disciplinary proceedings
against
the plaintiff as pleaded in paragraphs 4 to 5 hereof;
(this
is again an erroneous paragraph reference)
6.
the said employees of the plaintiff failed, and/or neglected to
properly investigate
the said complaint, that had been laid against
the plaintiff by Vermaak, and suspended the plaintiff on the basis of
unsubstantiated
allegations that had been made by Vermaak against
him, especially in view of the fact that;
6.1
Vermaak was stationed at the Galvandale Motuary (sic) at the date of
the incident,
and was not at Mount Road Police Station on the day of
the alleged incident on the 4
th
of March 2009, which is
the date in (sic) which the alleged incident took place
6.2
no post mortems were conducted at Mount Road Mortuary on the 4
th
of March 2009, Galvandale Mortuary was closed because it was burnt
down and was under renovation, and accordingly there was no
reason
for any of the employees of the second defendant including the
plaintiff and Vermaak to be in the changing rooms of Mount
Road
Mortuary / alternatively Galvandale Mortuary to prepare for an
autopsy as alleged by Ms Vermaak;
7.
Had the employees of the second defendant conducted proper
investigations of
the allegations made by Vermaak as pleaded in
paragraph 9 above (sic) before publishing the allegations against the
plaintiff they
would have realised that there was no basis for the
allegations made by Vermaak against the Plaintiff for the reasons
inter alia,
pleaded in 9.1 and 9.2 above (sic) and were only made in
order to victimize and/or intimidate the plaintiff from conducting
its
(sic) union duties as pleaded in paragraph 6 above (sic, again
the reference to paragraph 6 is clearly incorrect).
8.
On the 2
nd
of April 2009 the suspension was lifted by the
first defendant and despite the upliftment of the suspension on the
2
nd
April 2009, on the 5
th
of April 2009 the
Plaintiff was unlawfully transferred from Galvandale Mortuary to New
Brighton Mortuary by the Second Defendant.
9.
On the 30
th
of June 2010 a Disciplinary Enquiry was held
by the Second Defendant against the Plaintiff, and the Plaintiff was
found not guilty
of the charge of sexual harassment, and despite the
said finding, plaintiff decided from that date to remain in (sic) New
Brighton
Mortuary as he did not trust any of his colleagues in
Galvandale Mortuary as a result of the incident
10.
The actions of the Defendants as aforesaid, and the words contained
in the said letter were,
in the above context, wrongful and
defamatory of the Plaintiff, in that they were intended and were
understood by the readers and
persons who had witnessed them (sic)
that the Plaintiff was without moral fiber (sic), and is not a law
abiding citizen and was
promiscuous.
11.
As a result of the action of the defendant’s (sic) employees as
pleaded above, plaintiff’s
reputation has been damaged, and he
has suffered damages amounting to R500 000.00.
12.
At all relevant times the defendants (sic) acted within their scope
of their employment
with the second defendant who is the executing
authority in charge of the Department of Health in the Province of
the Eastern Cape
13.
The plaintiff has complied with the provisions of section 3 of the
Institution of Legal
Proceedings Against Certain Organs of State,
2002 (Act No. 40 of 2002), to the extent that there has been
non-compliance with the
provisions of the said Act, such compliance
has since been condoned).
WHEREFORE the
Plaintiff claims against the defendants jointly and severally the one
paying the one paying (sic) the other to be
absolved for:
1.
the payment of the amount of R500 000.00;
2.
Costs of suit;
3.
Further and/or alternative relief
”.
[5]
Quite a mouthful. No exception was taken to these “
amended
”
particulars of claim. Consequently, the Court was confronted with the
difficulty of attempting to fathom which specific
act or conduct
purportedly constituted the defamatory act which was being sued upon.
It was a daunting pursuit.
[6]
During plaintiff’s counsel’s opening argument, he
emphasised
that the plaintiff relied on one
collective
act of
defamation, made up of three separate components, comprising the two
letters; the subsequent suspension and the so-called
“
unlawful
transfer
”.
[7]
That these letters were written, and that the subsequent suspension
and
transfer occurred on different dates and over a period of time,
was of no moment, the court was assured. That the very nature of
the
acts differed markedly, also posed no stumbling block according to
plaintiff’s counsel. According to counsel, one defamatory
act
had occurred, of a collective nature.
[8]
As challenging as it was to responsibly and judicially reflect on
this
clarification of the plaintiff’s case, it was then
conveyed, during opening address, that the letter of 25 March 2009
was
not
defamatory. However, “
some aspects
”
of the later letter of 3 April 2009 were apparently defamatory. But
the defamatory passages were not pointed out. It was
asserted that
the act of suspension and the act of the plaintiff’s transfer,
pending the investigation of the complaint received,
were further
defamatory events or behaviour.
[9]
Upon requesting the plaintiff’s counsel whether the plaintiff
nonetheless
assumed the
onus
and the duty to begin,
plaintiff’s counsel recorded that he had agreed with
defendant’s counsel, that the substantive
onus
and the
duty to begin rested on the plaintiff, having regard to the content
of the pleadings.
[10]
Despite the errors in the amended particulars of claim, such as the
absence of a description
of the defendants and the capacities in
which they were being sued; the incorrect reference to paragraph
numbers; the lack of particularity
regarding the alleged instances of
publication or acts of defamation (save for the sweeping reference to
“
the suspension, unlawful transfer and/or allegations
contained in the said letters
(
of the 25
th
March 2009 and 3
rd
April 2019
)”),
the defendants did not except to the particulars of claim. It appears
that they were seeking to euthanise the plaintiff’s
persistent
claim at all costs.
[11]
The
plaintiff did not attach the two letters of 25 March 2009 and 3 April
2009 or specifically plead the particular passages of
relevance. As a
matter of pleading, it was the duty of the plaintiff to have pleaded
with specificity the particular passage or
content of the letter or
statement relied upon which purportedly embodied the defamatory act
or acts. Although it is not necessary
to plead the actual words used
insofar as a reference is made to a statement which is not published,
the plaintiff may allege that
the words set out were “
more
or less the words used
”.
[2]
[12]
As a matter of pleading, it would be the duty of the court to then
decide upon the effect
and meaning of such words, but the plaintiff
must still
prove
the publication which is supposedly
defamatory.
International Tobacco Co of SA Ltd v Wollheim
1953 (2)
SA 603
(A)
at page 613 to 614.
[13]
Instead,
the defendants pleaded in broad terms to the plaintiff’s
amended particulars of claim, responding to the allegation
of an
“
unlawful”
transfer and denying that the content of the correspondence had been
conveyed to the plaintiff’s spouse.
[3]
In response to paragraph 4 of the particulars, defendant further
pleaded that the allegations were indeed brought to the attention
of
the National Education, Health and Allied Workers Union to which the
plaintiff belonged and in which the plaintiff served as
a shop
steward.
[14]
With respect to the vague content of paragraph 5 relating to
“
employees of the Second Defendant
” who, according
to the plaintiff, “
were duty-bound to first confidentially
investigate the allegations”,
the defendants pleaded that
“
the Plaintiff was placed on precautionary suspension as
evidenced from the correspondence in such circumstances as the
Defendant(s)
were entitled to whereas there was a reciprocal right
and duty for the Defendant(s) to issue same and the Plaintiff to
receive
the correspondence
”.
[15]
Plaintiff could presumably have incorporated the letters of 25 March
2009 and 3 April 2009,
without specifying the defamatory passages.
The question would then have been whether the relevant letters (as a
whole) were defamatory
or not. This would have been a matter of
interpretation. Compare:
Sindani v Van der Merwe
2002 (2) SA 32
(SCA)
at paragraphs [14] to [15];
Times Media Ltd v Niselow
[2005] 1 All SA 567
(SCA)
at paragraph [18].
[16]
It appears that the reference to the complaint from Vermaak which
related to “
unbecoming behaviour of a sexual nature
”,
was the relevant portion of the letter of 3 April 2009 which the
plaintiff regarded as having been defamatory. But this
passage of the
letter of 3 April 2009 was not specifically identified and pleaded,
but just formed art of an imprecise, overbroad
claim.
[17]
That the failure to specify defamatory passages may render a pleading
vague and embarrassing,
is uncontentious - compare:
Deedat v
Muslim Digest
1980 (2) SA 922
(D&CLD)
at page 928;
Kruger
v Johnnic Publishing (Pty) Ltd
2004 (4) SA 306
(T)
at 309 F to J.
[18]
Effectively, the parties had disregarded the very purpose of
pleadings in the first place,
which are especially important in a
defamation action. The object of pleading is to define the issues so
as to enable not only
the other party, but also the court, to know
what case has to be met (
vide
:
Imprefed (Pty) Ltd v
National Transport Commission
1993 (3) SA 94
(A)
at 107 C to
E;
Minister of Agriculture and Land Affairs v De Klerk
2014 (1)
SA 212
(SCA)
at 223 G to H). It enables or allows a
crystallisation of the actual issues. Storytelling is certainly not
the aim. But a story
about sexual misconduct in a mortuary giving
rise to a complaint of one kind by the victim, and of another kind by
the alleged
culprit-turned victim, was before me.
[19]
The plaintiff’s attempt to lump the letters together with
subsequent events such
as the suspension and the alleged “
unlawful
transfer
”, ought to have elicited an exception, at the very
least on the basis that the pleading was vague and embarrassing.
Plaintiff’s
counsel was requested whether this overbroad attack
was indeed the basis on which the plaintiff sought to present his
case. The
court was promised that there was authority for such an
approach. During argument, after the evidential process, and when the
dissection
began during argument, no such authority could be provided
to the court. This came as no surprise.
[20]
As a result of the state of the pleadings and the failure on the part
of the defendants
to have procedurally challenged the adequacy of the
averments made by the plaintiff and the material facts on which the
averments
purportedly rested, the essential components which must be
established in order to succeed with the
actio iniuriarum
,
were not properly examined prior to the trial. The need for the
plaintiff to have alleged and then to prove, publication of a
specific defamatory statement received inadequate attention. But, as
it turned out, the events at the mortuary would evidentially
and
legally lead the plaintiff to a dead end in any event.
[21]
This matter was the first matter on the roll in this court, scheduled
to commence on Monday,
2 September 2019. Even
after
trial
readiness had been certified and as late as 26 August 2019, the
plaintiff purported to provide more particulars of the alleged
acts
of defamation in a belated “”
Reply to issues raised in
the Minute of 23
rd
August 2019
”.
This was a novel way of identifying acts of defamation by way of a
reply in a pre-trial minute delivered three court days
before a High
Court action was due to commence. Nonetheless, defendants’
counsel intimated that the defendants were intent
on proceeding to
trial and had no objection to this belated clarification of the
alleged acts of defamation. That the matter relates
to events which
occurred in 2009, ten years ago, presumably played a role in the
adoption of this overly benevolent approach.
[22]
These belated pre-trial responses, in broad terms, purported to
clarify the circumstances
surrounding the unlawful suspension and
temporary transfer. The plaintiff contended in this belated pre-trial
response, that the
circumstances under which he was informed of his
suspension had resulted in defamation, or constituted the publication
of defamatory
conduct or behaviour. One of the reasons given, is that
he had to return a cellphone when he was placed on precautionary
suspension,
belonging to the State, which “
obviously
occasioned curiosity on the part of the colleagues, and the Plaintiff
had to inform the colleagues that he had been suspended
”.
The plaintiff further complained, after an initial letter of
suspension had been withdrawn, that he was called in by one
Mr
Chetty, the manager of the Gelvandale Mortuary, at the time that he
was handed the second letter of 3 April 2009. This letter
was never
incorporated into the plaintiff’s particulars, as mentioned
previously, but was identified in the pre-trial response
as the
“
second act of defamation
”.
[23]
According to the plaintiff, he was informed by Mr Chetty that “
the
second suspension letter was coming from Bhisho (Mr Badiwe) which
contained the allegations that had been made by Ms Vermaak
against
the Plaintiff and the Plaintiff was afforded an opportunity to make
written representation (sic) why he should not be suspended
by 15h00
on the same day. Such representations were made by Plaintiff’s
union and instead of being transferred, the Plaintiff
was suspended
”.
As perplexing as these explanations already were, particularly in the
context of a defamation action, more was to follow.
[24]
In paragraph 4 of the aforementioned reply, which, according to the
parties “
clarify
” the plaintiff’s
particulars of claim, it was stated as follows:
“
4.
The Defendant’s employees communicated both suspensions to the
Plaintiff’s
union representatives, as the Plaintiff was a shop
steward and both the transfer of the 25
th
,
as pointed out above, and the subsequent transfer on the 4
th
were done in the presence of Plaintiff’s colleagues. The
transfer of the 4
th
was done in front of
Plaintiff’s colleagues at Gelvandale Police Station
”.
[25]
The court was accordingly called upon to adjudicate on a defamation
claim premised on such
pleadings, purportedly supplemented by a last
minute reply to a pre-trial minute. This is a situation which shall
hopefully not
befall others.
[26]
As part of an agreed bundle, the status of which was subsequently
explained on the basis
that the court was entitled to have regard to
the documents contained therein as “
being what they purport
to be
”, was a letter from one Monique Vermaak (“
Vermaak
”)
addressed to the “
Regional Manager, Ms H De Lange, Forensic
Pathology Services, Port Elizabeth
”. This letter from
Vermaak, the complainant, had been addressed to the first defendant,
the responsible regional manageress.
Unsurprisingly, the first
defendant, who was a sound, to-the-point witness, was alarmed by the
nature of the complaint, and contacted
her departmental superiors at
the provincial head office.
[27]
The complaint letter dated 23 March 2009 reflecting the residential
address of the said
Vermaak, reads as follows:
“
REPORT OF
INCIDENT:
As I recall on the 4
th
of March 2009 around 09h00 I went to Mount Road Mortuary to assist a
Medical Officer. I was alone in the ladies bath room (sic)
where I
changed into my work clothes. I was standing with my back towards the
door, busy undressing and heard the door open. As
I turned around to
tell the person to leave since I was standing without my clothes,
only in my underwear on, I saw Mr Gwe standing
by the door. I thought
that he would leave since I did ask him to leave, but he did not.
He came into the room,
walked towards me and took hold of my shoulder with his hand. When he
put his hand on my shoulder I told
him to please remove his hand and
leave. I pulled away and at that time it sounded like a door opening
or closing in the passage
and he turned around and left immediately.
I was in the state of
shock, but continued to carry out the duties that were allocated to
me, but I could not wait to leave that
mortuary. After the Post
Mortems, I left Mount Road to go to Gelvandale Mortuary. And I went
straight into the toilet as I became
scared and felt sick and also
not knowing how to deal with this situation. As I was crying I spent
most of the time in the toilet
as I did not want anyone to see my
face.
When I eventually came
out, the Mortuary Manager, Mr Chetty asked me what is wrong and why I
have been crying. I did not answer
and just kept quiet. I tried to
put this behind me, but I became sick emotionally. On 2009-03-09 I
went to see my doctor, Cilliers
Swart, who booked me off sick for
depression and prescribed anti-depressants. I did not confide in Dr
Swart as to the reason of
my emotional state. I did tell him that I
was under stress at work.
Dr Swart phoned my
mother as he was worried about my depressed state. Upon the
questioning by my mother on why I was depressed I
broke down and
confided in her on what took place at Mount Road at that date and
time.
Mr Gwe is a colleague
of mine that works with me at Gelvandale Mortuary. He is also a
higher level FPO than me and a union assistant
shop steward. I did
not give anyone permission to touch me and I feel violated. I have
always maintained a professional working
relationship with all my
colleagues and did not give anyone the impression that I am open for
anything but a professional working
relationship. I request this
matter be investigated and all departmental steps to be taken to
resolve the matter as soon as possible.
I am very uncomfortable at
work and cannot bear to be in the same building as Mr Gwe”.
[28]
That this
complaint letter was received, became common cause, but only on the
second day of the hearing. This enlightening moment
only arose after
extensive, but largely irrelevant, cross-examination about the layout
of the Mount Road mortuary. Interjections
by the court about
relevance, left both parties undaunted in their strive to somehow
explain or deny in which particular room at
the mortuary the incident
did or might have occurred. Its bathrooms, nooks and crannies were
explored, but the relevance of such
evidence and cross-examination
[4]
still escapes me.
[29]
Plaintiff testified first. The first defendant was also called after
the plaintiff closed
his case. Prior to the first defendant being
called to the witness box, it had become clear to all, at last, that
the trial was
being unduly delayed by cross-examination on irrelevant
or collateral issues. But then, the court had implored counsel to
seek
agreement on common cause facts, which ought to have occurred at
properly held pre-trial conferences.
[30]
On the second day of the hearing, the court was furnished with the
following written admissions,
signed by attorneys:
“
1.
The Plaintiff is an employee of the Second Defendant and at all
material times herein
was employed as a Senior Forensic Pathologist
at Gelvandale Mortuary. The Plaintiff was also a shop steward of
Nehawu.
2.
The First Defendant is also an employee of the Second Defendant,
employed as
a Regional Manager at Second Defendant’s regional
offices situated at Newton Park, Port Elizabeth at all material times
relevant
hereto.
3.
The Second Defendant is vicariously liable for the actions of the
First Defendant.
4.
The direct supervisor of the Plaintiff and Monique Vermaak were Mr
Vincent Chetty
at all material times.
5.
All the Forensic Pathology Officers, including the Plaintiff, were
employed at
the Gelvandale Mortuary including Monique Vermaak, who
was also a Forensic Pathology Officer (sic) were seconded to Mount
Road
Mortuary when Gelvandale Mortuary was under renovation.
6.
The Plaintiff does not dispute that a complaint was lodged to the
First Defendant
by Vermaak in terms of the letter appearing on page 2
of the Supplementary Trial Bundle
”.
[31]
With respect to the concluding “
admission
” in
paragraph 6 above, this paragraph referred to the complaint letter of
Vermaak dated 23 March 2009 quoted above.
[32]
The trial bundle also contained the two letters of 25 March 2009 and
3 April 2009, referred
to in the pleadings, but not annexed thereto.
By reason of the obvious relevance of these letters, their content is
quoted below.
The letter of 25 March 2009, which was addressed to the
plaintiff (describing him as the “
Chief
” instead
of “
Senior
” Forensic Pathology Officer) and
containing his incorrect PERSAL number, reads as follows:
“
Dear Mr R M Gwe
PRECAUTIONARY
SUSPENSION FROM DUTY
I am presently
conducting an investigating / having an investigation conducted with
regard to allegations of misconduct involving
you. Due to the
seriousness of the allegations, I am implementing a precautionary
suspension. You were hereby relieved from performing
your duties
until further notice. You are hereby requested not to contact any of
your colleagues, except for your direct Acting
Manager, Esbach, and
your Regional Manager, Mrs De Lange. No other contact will be
allowed. You also have to refrain from visiting
any of the mortuaries
and offices of FPS until requested to do so. You will be informed of
the outcome of the investigation as
soon as it is available
”.
The
first defendant signed this letter in her capacity as a regional
manageress. Plaintiff’s counsel disavowed reliance on
this
letter as having been defamatory.
[33]
When this letter was handed to the plaintiff - according to the first
defendant in confidential
circumstances - the plaintiff refused to
acknowledge receipt by signing the letter.
[34]
At the trial, the unchallenged evidence of the first defendant was
that she had contacted
her superiors in Bhisho before delivering the
abovementioned letter, as well as the Human Relations Manager (one
Van der Merwe)
at her provincial head office of the Department. A
pro
forma
letter, or draft, was then e-mailed to her from Bhisho,
which she then printed and adapted before handing same to plaintiff.
She
admitted that the said letter of 25 March 2009 was not on an
official letterhead of the Department. This was evidently important
to the plaintiff, when he testified. She also emphasised during her
oral testimony, that she was “
following instructions
”
to provide a letter in such format to the plaintiff.
[35]
As
previously mentioned, the plaintiff’s counsel disavowed any
reliance on this first letter of 25 March 2009 as having constituted
a defamatory publication in itself. During the plaintiff’s
testimony, his main complaints regarding this particular letter
centered around the fact that it was not on an official letterhead
from the Department; that his position was incorrectly described
therein;
[5]
that his PERSAL
number was incorrect, and lastly, that he had not been given an
opportunity to make representations regarding the
envisaged
implementation of his precautionary suspension.
[36]
The
plaintiff testified that he personally took the letter to his union,
NEHAWU. NEHAWU promptly formulated a response on his behalf
on 25
March 2009.
[6]
This NEHAWU
response, formulated on his behalf, was addressed to the first
defendant in her capacity as Regional Manageress: Forensic
Pathology
Services. This letter is also relevant to an assessment of the facts.
Its content reads as follows:
“
IRREGULAR
SUSPENSION MR GWE / UNION SHOP STEWARD
This serves to inform
your office that the above mentioned (sic) Trade Union Organisation
has been approached by the above mentioned
(sic) employee in relation
to the above mentioned (sic) subject matter. Firstly we would like to
draw your attention to the letter
received from your office on the
23
rd
March 2009 indicating that you intend to investigate
an alleged misconduct against the above mentioned (sic) employee who
is a
Union Shop Steward. Our understanding of your letter date
(sic) 23
rd
March 2009 was that you were informing the
Union as directed by the terms of Schedule 8 of the (Code of Good
Practice) as amended
by section 57 of Act Nr 42 of 1996 and section
56 of Act Nr 12 which requires that a discipline against a Trade
Union representative
or an employee who is an officer bearer or
official of a recognised Trade Union should not be instituted before
informing and consulting
with the Trade Union concerned.
In
your letter dated 23
rd
March 2009 you indicated that an
incident of an alleged misconduct against Mr Gwe was made to you on
the 22
nd
March 2009. You did not indicate the nature of
the alleged misconduct you are referring to. You further in your
letter to the Union
dated 23
rd
March 2009 did not indicate
weather (sic) you were informing that Union as directed by the above
stated legislation. As a surprise
you served Mr Gwe with a suspension
letter on the 25
th
March 2009 and the Union established
the following reservation in the content o (sic) your letter of
suspension:
1.
That your letter is not in (sic) the letter heads of the Department
of Health
and therefore its authenticity is questionable;
2.
That the suspension letter does not indicate weather (sic) or not Mr
Gwe is suspended
with or without pay;
3.
You further denied Mr Gwe an opportunity to understand the nature of
allegations
levelled against him and an opportunity to make
representations as to why he can not be suspended including the
seriousness of
the alleged defence.
4.
As far as the Union understands that as a Regional Manager at Level
10 you do
not have a delegated authority to suspend the employees, if
you do the Union requests that you furnish the Union with such
written
delegations. In view of all the above the Union views the
suspension of Mr Gwe as both irregular and unprocedural. Be further
informed
that the Union has serious reservation in your way of
handling HR matters as a Manager. We therefore propose that you lift
the
suspension as a matter of urgency and apply your mind in all the
legal and procedural aspects indicated in this communique. We hope
that you will treat this letter with both the sensitivity and urgency
it deserves. We further hope that you will find the above
as in
order. Hoping to hear from you soon.
Regards,
MM Gobana
Regional Organiser
cc:
Mrs M Mekuto: Acting Director Specialised Services
Mr
Badiwe ASD
”.
[37]
This NEHAWU response was copied by the regional organiser of NEHAWU,
Mr Gobana, to Mrs
Mekuto and Mr Badiwe, who were both based at the
provincial head office of the Department in Bhisho.
[38]
Obviously valid points were made on behalf of the plaintiff therein.
Schedule 8
(Code of Good Practice: Dismissal) to the Labour
Relations Act 66 of 1995 (“
the LRA
”), item 4,
makes it clear that any dismissal should be preceded by an
investigation, which does not require a formal enquiry.
However, the
employer
should
notify
the employee of the allegations
using a form and language that the employee can reasonably
understand. The employee
should
be allowed the opportunity to
state a case in response to the allegations. The employee is entitled
to a reasonable time to prepare
his or her response, and is entitled
to the assistance of a trade union representative or fellow employee.
After the inquiry, the
employer should communicate the decision taken
and preferably furnish the employee with written notification of that
decision.
[39]
Item 4(2) of Schedule 8 of the LRA further provides:
“
Discipline
against a trade union representative or an employee who is an
officer-bearer or official of a trade
union
should not be instituted without first informing and consulting the
trade union
”.
[7]
These
provisions are clear and are relevant, and I shall revert thereto
below.
[40]
Some of these points made in the letter on behalf of the plaintiff by
NEHAWU were accordingly
valid. The complaints regarding the failure
to indicate whether Mr Gwe was being suspended with or without pay
and the absence
of any particulars of the nature of the charge which
was being investigated against him, were all deserving of
consideration, especially
from a labour law perspective. The first
defendant’s superiors, in particular the human relations
manager, Van der Merwe,
seemingly agreed that there was merit in
NEHAWU’s contentions.
[41]
On the 2
nd
of April 2009, the plaintiff’s
“
precautionary suspension
” was lifted. He was
requested to report to the Gelvandale mortuary on the 2
nd
of April 2009. The evidence established that the plaintiff did not
report back for duty on that day, as he had booked off sick
for that
day. Another notification was looming, hence an enquiry about his
whereabouts. Same was to be delivered when the plaintiff
did report
for duty on the 3
rd
of April 2009.
[42]
He then received the letter of 3 April 2009, which reads as follows:
“
INTENDED
SUSPENSION FROM SERVICE AS A PRECAUTIONARY MEASURE
It has been brought
under management’s attention that you have allegedly been
involved in unbecoming behaviour of a sexual
nature. A complaint of
sexual harassment has been filled (sic) by Ms M Vermaak regarding an
incident that occurred at Mount Road
Mortuary on 2009-03-04 in the
Ladies bathroom.
Consideration will be
given into enforcing a precautionary suspension in terms of clause
7.2 of the Disciplinary Code and Procedure
with immediate effect.
This precautionary measure will be with full pay.
You are hereby
afforded an opportunity to submit written reasons before 15:00 of
today, 2009-04-03 if you are of the opinion that
you should no9t be
suspended from duty. You are reminded of your right to the assistance
of a co-employee, trade union official
or union representative.
Please be also aware that your response is to the intended suspension
and not to the allegation that was
made.
If
you fail to respond within the time limit provided, the matter will
continue to be considered in the absence of your response.
Your
response can be handed into this office. It will be forwarded to the
appropriate delegated person for consideration.
You
are requested to immediately acknowledge receipt of this letter
”.
[43]
As mentioned previously, it had become common cause that the incident
referred in Vermaak’s
complaint of 23 March 2009, related to an
incident which had allegedly occurred on 4 March 2009.
[44]
It should
be mentioned at this stage, that Vermaak, the alleged victim of the
“
unbecoming
behaviour of a sexual nature
”
but the plaintiff’s accuser, who by way of her complaint had
initiated the investigation against him, was never sued
by the
plaintiff. She was also not a party to the proceedings before
court.
[8]
[45]
The relevance of employer / employee relationship, as well as the
potential applicability
of the LRA, was taken up with the legal
representatives of the parties during argument. The parties were
requested to address the
court during argument on the relevance of
the Public Service Disciplinary Code (“
the Disciplinary
Code
”) which was expressly referred to in the letter of 3
April 2009 and also with regard to the applicable provisions of the
LRA and its Schedules.
[46]
The plaintiff, through his legal representative, scuffed at these
potential legal hurdles,
suggesting that such statutory provisions
“
did not have to be followed
” and were not really
relevant to the plaintiff’s claim(s). It was confidently
contended that these statutory provisions
do not constitute any legal
obstacles whatsoever to the plaintiff’s
composite
claim
of defamation.
[47]
However, both the Disciplinary Code applicable to State employees,
which was pertinently
referred to in the letter of 3 April 2009, as
well as Schedule 8 of the LRA, were evidently relevant to the issues
before court,
both from a factual and legal perspective.
[48]
Clause 7.2 of the Disciplinary Code provides as follows:
“
7.2
Precautionary suspension
a.
The employer may suspend an employee on full pay or transfer the
employee if
i.
the employee is
alleged
to have committed a
serious
offence
; and
ii.
the employer believes that the presence of an employee at the
workplace might
jeopardise any investigation into the alleged
misconduct, or endanger the well being of any person or state
property.
b.
A suspension of this kind is a precautionary measure that does not
constitute
a judgment, and must be on full pay.
c.
If an employee is suspended or transferred as a precautionary
measure, the employer
must hold a disciplinary hearing within a month
or 60 days, depending on the complexity of the matter and the length
of the investigation.
The chair of the hearing must then decide on
any further postponement
”.
[49]
That the complaint amounted to an
alleged
serious offence
,
was reticently, but eventually responsibly conceded, but only during
argument.
[50]
Furthermore, item 4.2 of Schedule 8 to the LRA provides that no
disciplinary action may
be instituted against a member of a union,
specifically against an official such as a shop steward (which was
the plaintiff’s
position) before NEHAWU was notified by the
relevant employer. These facts and circumstances must now be analysed
against the legal
principles.
[51]
Defamation is the wrongful, intentional publication of words or
behaviour concerning another
person which has the effect of injuring
his status, good name or reputation:
Le Roux v Dey
2011 (3) SA 274
(CC)
at 304.
[52]
The following passages from the judgment of Froneman J and Cameron J
in
Le Roux
are enlightening:
“
[168]
The conventional test for determining whether a statement is
defamatory is if it would probably lower the plaintiff
in the
estimation of right-thinking members of society generally. This test
has been widely applied in our courts, subject to the
qualification
that the reference to “right-thinking persons” is no more
than a convenient description of a reasonable
person of normal
understanding and development, and that the reference to the views of
society “generally” includes
views held by a substantial
section of the community.
[169]
This test is useful and practically expedient if it is understood
properly as an objective test to determine
whether the reputation of
a person has been objectively infringed, on a balance of
probabilities. The Supreme Court of Appeal appears
to have taken this
test to mean that likelihood is not a requirement, but that it is
sufficient if a statement merely has the “tendency”
to
undermine the status, good name or reputation of a person, to qualify
as defamatory.
In
our view this approach does not take sufficient account of
constitutional values and norms, nor the practice in our courts even
before the advent of the Constitution
.
[9]
[170]
The suggestion that a person may be defamed without probable
impairment of his right to reputation is inconsistent
with the
decisions in Botha v Marais and Demmers v Wyllie.
These
state that the determination of impairment of the right to reputation
should be done objectively and should be proven on a
balance of
probabilities
.
[10]
It is also inconsistent with the requirement of publication of a
defamatory statement and the concomitant requirement that the
ordinary or reasonable reader of the published statement must have
understood the statement as defamatory.
[171]
Defamation law involves the consideration and weighing up of
competing fundamental constitutional rights
against each other,
normally those of freedom of expression against those of dignity and
privacy. Once a defamatory statement is
proven to have been published
our law presumes that its publication was unlawful and done
intentionally, and the onus is then on
a defendant to prove
otherwise. The normal constitutional practice and requirement is that
the onus is on a plaintiff to prove
the infringement of a fundamental
right and for the defendant to justify that infringement
”.
[53]
In casu
, the plaintiff avers that his
reputation
has
been harmed. The plaintiff has to prove all the elements to succeed
with the
actio iniuriarum
(in which regard, see
Neethling,
Potgieter & Erasmus: Law of Delict
,
Seventh Edition
,
page 352), namely:
1.
the publication of words or behaviour, constituting the defamatory
act;
2.
an injury to personality, i.e. the defamatory effect of the words or
behaviour;
3.
wrongfulness;
4.
animus
iniuriandi
.
[54]
As a shop steward of NEHAWU, plaintiff acknowledged during
cross-examination that the first
defendant in her position as
regional manageress, had a
duty
to inform the plaintiff’s
union of the complaint of alleged sexual misconduct made against him
by Vermaak. In fact,
this was one of the reasons proferred
during plaintiff’s oral testimony for his dissatisfaction with
the content of the first
letter. He was satisfied that he was given
an opportunity in the second letter to consult his union in order to
make representations.
[55]
The second
letter of the 3
rd
of April 2009, in which the plaintiff was informed of “
his
precautionary suspension in terms of clause 7.2 of the Disciplinary
Code and Procedure
”,
was regarded as correct or acceptable by the plaintiff himself. No
evidence was given by the plaintiff himself during his
oral testimony
that the mere fact that he was notified of the investigation,
per
se
undermined his reputation. To the contrary, he confirmed that such
notification complied with procedures which he, as a shop steward
had
expected
to be complied with.
[11]
[56]
He also took the letter of 3 April 2009 to his union himself, which
had requested an extension
of the period within which to respond,
which was then granted until the 7
th
of April 2009.
Despite the emphasis in the letter that a response was invited in
respect of the contemplated “
precautionary
”
suspension only, NEHAWU submitted a lengthy undated response on
behalf of the plaintiff in which the alleged “
sexual
misconduct
” incident also received some attention.
[57]
Unfortunately, the perception on the part of the plaintiff, and
seemingly of the NEHAWU
official responsible for drafting the letter,
that the complainant Vermaak had been receiving preferential
treatment by reason
of her skin colour, because she had been allowed
to continue to perform her work at the administrative section of the
Gelvandale
mortuary (which had apparently not been burnt down in its
entirety) contributed to an intemperate written response.
[58]
The NEHAWU response was permeated with race-laden accusations. The
supposed representation
was nothing but an aggressive rebuke, instead
of a representation in respect of the contemplated precautionary
suspension in terms
of the applicable Disciplinary Code.
[59]
The investigation should have centered around racism, according to
the plaintiff and his
union representative, and should not have
concerned the alleged incident of sexual misconduct of the plaintiff.
Deflection was
the obvious but misplaced strategy. The plaintiff’s
military experience, his virtues and his character were emphasised.
It
was further suggested that the complaint formed part of nothing
other than a racist conspiracy against the plaintiff. According
to
him, he was the victim, not Vermaak. He was simply being targeted by
reason of his role as a shop steward in having aired a
complaint of
perceived favouritism of Vermaak, who was allowed to still report at
the Gelvandale mortuary, whilst the other pathologists
had to report
at the Mount Road mortuary. This emotive document glaringly failed to
address the real issue concerning plaintiff’s
contemplated
suspension.
[60]
During his
evidence, the plaintiff himself revealed that Vermaak had
de
facto
been employed as “
a
scribe
”
by her line manager, Mr Chetty. According to him, she did indeed
continue to fulfil administrative work for Chetty, who
was
responsible for over-arching administrative duties. The plaintiff
himself testified that when Vermaak did arrive at the Mount
Road
mortuary where autopsies were being carried out, she would primarily
keep notes for the pathologist performing the autopsy.
This evidently
plausible explanation for Vermaak’s continued employment at the
administrative wing at Gelvandale mortuary,
did not stand in the way
of the unbridled salvo that was fired off in the written NEHAWU
representation
[12]
formulated
by the plaintiff and his trade union representative.
[61]
Instead of giving evidence that the second letter of 3 April 2009 had
humiliated him, the
plaintiff gave evidence with the exact opposite
effect. According to him this letter was an improvement or
“
correction
” of the first letter. He gave no
evidence whatsoever that he had felt insulted by its content, or by
the format of the second
letter itself. He therefore did not feel
subjectively insulted, on his own testimony. But his own subjective
feelings are in any
event not decisive. The alleged insulting or
defamatory act must also be objectively assessed. The wrongfulness
criterion incorporates
the objective criterion of reasonableness, and
renders the norms of society relevant.
[62]
That a disciplinary code applied in respect of the plaintiff’s
alleged precautionary
suspension, was conceded by the plaintiff
during cross-examination. Not only was there a pertinent reference to
clause 7.2 of the
Disciplinary Code and Procedure in the letter
itself, but the plaintiff’s union representative had correctly
alluded to the
applicability of Schedule 8 of the LRA, albeit
somewhat inaccurately, in the “
representation
”
preceding the plaintiff’s precautionary suspension.
[63]
Unsurprisingly,
defendants’ counsel specifically cross-examined the plaintiff
about the content of paragraph 8 of the plaintiff’s
NEHAWU-formulated “
representation
”.
This paragraph
[13]
reads:
“
8.
As far as Mr Gwe can remember finding himself in close contact with
Ms Vermaak, was
one of the mornings which he is not sure of the date,
he was on duty, run about 09:00 he arrived a little bit late at the
dissecting
room. While other FPO’s were undressing the corpses
about six bodies, he asked Mr Swanepoel,
[14]
where can he get the gown and he told him to get it at the laundry
room. He proceeded to the laundry room where the gowns are usually
there together with other equipments. The door was half closed and he
pushed the door. He saw Ms Vermaak and because he was not
in speaking
terms with Ms Vermaak for obvious reasons he decided not to enter and
looked for an alternative gown. He got the used
gown hanging at the
dissecting room. All the FPO’s present on that day in question
can bare testimony to the above. The FPO’s
referred to are as
follows
.”
[64]
That an incident had occurred as between Vermaak and the plaintiff,
was therefore clear,
on the plaintiff’s own version. His
attempt, through his counsel, to suggest that this version as
recorded in the NEHAWU
“
representation
” was not an
interpretation of his actual instructions, was opportunistic and
reckless. That the Department, as the employer,
had justifiably
regarded the complaint of Vermaak, who allegedly required
professional support after the incident, as constituting
a complaint
concerning an alleged “
serious offence
”, was
understandable.
[65]
It therefore became evident that the plaintiff had to establish the
elements required for
the
actio iniuriarum
in a factual
setting influenced by an employer / employee relationship and by the
applicable statutory framework.
[66]
The applicable legal framework, including the Code of Conduct
specifically referred to
in the letter of 3 April 2009, as well as
the LRA (in particular Schedule 8 thereof) required the Department
and its responsible
officials to inform the plaintiff and his chosen
union of the nature of the complaint against him prior to his
precautionary suspension
and of his right to make representations
prior to such suspension.
[67]
This was required in the light of the agreed, common cause fact that
a formal complaint
had been received by the Department from a
co-employee, the said Vermaak, relating to an incident of
alleged
sexual misconduct. Even if the reference in a formal letter, to a
charge of
alleged
sexual misconduct might have been defamatory
(such as the relevant paragraph contained in the second letter of 3
April 2009), it
is evident that such a reference to an
alleged
charge in the formal departmental letter was legally justified. The
applicable Code of Conduct further required the Department,
in its
interaction with employees, to indiscriminately apply the provisions
of the Code.
[68]
Insofar as publication of the alleged sexual misconduct charged
occurred, in particular
by way of the letter of 3 April 2009, such
publication of a clearly circumscribed nature, was in any event
protected by qualified
privilege. NEHAWU was informed of the
discharge by first defendant (and the Department for that matter) in
the discharge of a duty,
or in the exercise of a right. Compare:
NEHAWU v Tsatsi
2006 (6) SA 327
(SCA)
at 331 to 332.
[69]
The letter(s) or notification(s) were relevant to the occasion. The
Department and the
responsible regional manageress (the first
defendant) had a
right
to record the complaint of Vermaak and
to
inform
the plaintiff, as well as his union NEHAWU, of the
complaint that had been received from Vermaak, which had to be
investigated.
[70]
The
complaint
did
amount to a complaint of
alleged
sexual misconduct. The plaintiff had a
right
to receive such information. Section 23
[15]
of the Constitution of the Republic of South Africa Act 108 of 1996
(“
the
Constitution
”)
underlines and underscores this. See:
NEHAWU
v Tsatsi,
supra
,
at 332 E to 333 A.
[71]
From a contractual and employer/employee relationship perspective, an
employee against
whom such a grievance or complaint was lodged,
tacitly consented to the applicability of the Code and its
provisions. Unfortunately,
the plaintiff’s letter of employment
was not placed before Court. It may well have been relevant to see
whether the plaintiff’s
letter of appointment did not also
expressly refer to the applicability of the Disciplinary Code
applicable to State employees,
or to the LRA. In any event, it cannot
be disputed and was conceded, that the Disciplinary Code does apply
to State servants such
as the plaintiff.
[72]
Plaintiff’s
counsel further conceded that the LRA was legally relevant to the
relationship between the plaintiff and the Department.
[16]
Formally conveying the nature of the complaint to the plaintiff
officially, did not in my view constitute a defamatory act. Even
if
it did, neither the notification, nor the contemporaneous explanation
of the contemplated procedural step of precautionary suspension,
were
wrongful.
[17]
[73]
Viewed from a different perspective, there are other examples in our
law where legislative
provisions limit an individual’s rights
to privacy, dignity and related personal rights: see inter alia
Neethling’s Law of Personality
, Butterworths, Chapter 3,
paragraph 3.2.4 and also
Jonathan Burchell
:
Principles of
Delict
,
First Publication
, page 198.
[74]
That an individual’s rights to privacy, dignity, a good name
and reputation are protected
in sections 9, 10, 11, 12 of the
Constitution, as well as his or her right to freedom of trade,
occupation and profession (section
22), are well-established. But an
Act such as the LRA is a law of general application which does limit
such fundamental rights
in a reasonable, justifiable and lawful
manner, as contemplated by section 36 of the Constitution. Moreover,
the LRA is legislation
as contemplated by section 23 of the
Constitution.
[75]
The court further finds that that the required intent which must be
established, namely
the
animus iniuriandi
, was not established
and was absent, for the reasons already outlined above. Neither of
the letters were published or written with
injurious intent by either
the first or second defendants.
[76]
For the plaintiff to have arrived at all sorts of conspiracy theories
was not only unfortunate,
but in any event irrelevant, especially in
the absence of a pertinent allegation of malice on the pleadings,
whether in the particulars
of claim or in a replication. No such
replication was delivered on behalf of the plaintiff in which
ulterior motive or malicious
intent were pertinently raised in a
rebuttal to the defendants’ plea. In any event, no malice
whatsoever was proved on the
part of either the defendants. To the
contrary, De Lange’s demeanour, testimony and version cannot be
faulted. She simply
did her job and clearly had no ulterior motive or
malicious intentions whatsoever. I accept her evidence without
hesitation.
[77]
With respect to the fact that Mr Gobane of NEHAWU had been informed
of the complaint and
its nature, it should be mentioned that not only
did the Department and its officials
have
to do so in terms of
the applicable Code and in terms of the applicable legislative
framework, but the plaintiff also did so himself.
His communication
of the alleged complaint to NEHAWU did not constitute an act of
defamation published in the legally required
sense, nor was it
wrongful. The evidence moreover established that the plaintiff
himself had taken the letters of 25 March 2009
and 3 April 2009 to
NEHAWU, his union, in his capacity as a shop steward. During his
evidence in this court, the plaintiff testfied
that he had to do so
and had no qualms with such form of “
publication
”.
He was correct, but his court action nonetheless misguided.
[78]
The
plaintiff further testified that he personally informed his wife
about Vermaak’s complaint against him. This also did
not
constitute publication in the sense envisaged by the
actio
iniuriarum
.
[18]
Such a communication also did not amount to a defamatory publication
in the legal sense. He was merely informing his spouse that
a
complaint against him was being investigated. The defendants are
simply not liable to the plaintiff for such re-publication (assuming
that it was) by the plaintiff himself to his wife.
[19]
[79]
The plaintiff’s attempt to hold the political head of the
Department liable for damages
allegedly derived from the
actio
iniuriarum
having to be applied on the basis of vicarious
liability in
such
circumstances, was doomed to failure from
the outset.
[80]
The facts in
Byrne v Masters Squash Promotions CC and Another
2010
(1) SA 124
(GSJ)
are informative, and related to a matter in
which the employer had informed an employee by way of a letter that
he (Byrne) was
dismissed. Byrne also sought to claim damages by way
of a defamation action. The action failed, the court holding that
publication
of the content of the dismissal letter to a typist was in
the circumstances privileged. Similar sentiments apply to this
matter.
With respect to the plaintiff’s reliance on his
precautionary suspension and transfer, his complaints in this regard
might
possibly have given rise to public law remedies, if justified,
but not to a private law remedy in the form of a claim for damages
under the ac
tio iniuriarum
. His employer, the Department,
could have been taken to task under the LRA, whether on the basis of
an unfair labour practice or
otherwise, if his claim was sound.
[81]
The plaintiff could also have followed departmental grievance
procedures, to have his grievance
(or grievances) relating to the
perceived preferential treatment of Vermaak, resolved. His
dissatisfaction with his temporary transfer
was evidently a further
matter which could and should have been resolved in terms of the
available labour-related dispute resolution
mechanisms. The Supreme
Court of Appeal lucidly nuanced the differences between public and
private law remedies in a matter concerning
a decidedly unhappy
magistrate, in
President of South Africa & Others v Reinecke
2014 (3) SA 205
(SCA)
. Reinecke did not succeed with his damages
claim, save for seemingly evoking some sympathy from the Supreme
Court of Appeal.
[82]
The implications of private law damages being awarded against a
public law employer in
such a setting, would be far-reaching. From a
policy point of view, and especially from an already heavily burdened
taxpayer’s
point of view, this ought not to be countenanced. In
this regard, the sentiments expressed by Satchell J in
Byrne v
Masters Squash Promotions CC
,
supra
, at paragraph [13] on
page 127 are sound and persuasive. This court shares such sentiments.
[83]
Plaintiff’s counsel’s contention that the first defendant
and the Department
should, seemingly in terms of some opaque
discretion,
not
have followed the Disciplinary Code and should
have ignored Schedule 8 of the LRA, are without substance. The two
decisions proferred
in support of this bold proposition, namely
Ncbawu v Masinga & Others
[2000] 2 BLLR 171
(LC)
and
Jerry’s Security Services CC v CCMA & Others
[2001] 7
BLLR 751
(LC)
offer no support to the plaintiff, given the
factual and legal setting before this court.
[84]
In the firstmentioned decision of
Ncbawu
, it was held that
departures from procedural guidelines laid down by the Code of Good
Conduct did not necessarily render a dismissal
per se
unfair.
In paragraph [15] of
Ncbawu
, the Labour Court referred with
approval to a decision in which the importance of compliance with
disciplinary codes, was emphasised.
Ncbawu
offers no
support to the plaintiff.
[85]
In
Jerry’s Security Services
,
supra
, Franklin AJ
held that “
the applicant’s initial failure to comply
with item 4(2) [of Schedule 8 to the LRA] was cured at the appeal
hearing
”.
Jerry’s Security Services
offer
support for the exact opposite of the proposition advanced on behalf
of the plaintiff. If anything, the relevance and importance
of
compliance with Schedule 8 of the LRA was emphasised by this decision
of the Labour Court.
[86]
This court’s autopsy of the merits reflects a case which
suffered from a fatal, incurable
infliction from the outset. It was
still-born, and now mercifully deserves to be buried.
[87]
The
plaintiff’s action is dismissed with costs.
[20]
________________
Swanepoel
AJ
14
September 2019
APPEARANCES
:
FOR
THE PLAINTIFF: Adv M W Nobatana,
instructed by Lulama Prince
and Assocates
FOR
THE DEFENDANTS: Adv I Dala, instructed by the State Attorneys
[1]
Hopefully,
and as deserved as it might be.
[2]
Harms
:
Amler’s
Precedents of Pleadings
,
Ninth
Edition
,
LexisNexis, page 153, and authorities cited
op
cit
.
[3]
As evidence
was given, it turned out that it was the plaintiff himself
who had
informed his wife about the complaint made against him.
[4]
Which caused
the court to repeatedly enquire about relevance and at some
stage,
had to disallow further examination.
[5]
He was
described as a “
Chief
”
instead of “
Senior
”
forensic pathology officer.
[6]
This response
is contained on pages 10 and 11 of the trial bundle.
[7]
Emphasis
added.
[8]
During
argument, the plaintiff’s counsel was asked why the plaintiff
had not sued Vermaak. A rather startling response was elicited,
namely “
what
if she says that she did not sign the letter?
”.
Upon pointing out to the plaintiff’s counsel that this was in
conflict with the formal admission that had been
made by the
plaintiff’s attorney, to the effect that such a complaint was
indeed received by the Department, the plaintiff’s
counsel did
not take this point further.
[9]
Emphasis
added.
[10]
Emphasis added.
[11]
Given a military
background, his standpoint was understandable.
[12]
More aptly
described as a rebuke.
[13]
Unedited.
[14]
Definitely not a
relative.
[15]
Which reads:
“
Labour
relations 23. (1) Everyone has the right to fair labour practices.
(2) Every worker has the right- (a) to form and join
a trade union;
(b) to participate in the activities and programmes of a trade
union; and (c) to strike. (3) Every employer has
the right- (a) to
form and join an employers' organisation; and (b) to participate in
the activities and programmes of an employers'
organisation. (4)
Every trade union and every employers' organisation has the fight-
(a) to determine its own administration,
programmes and activities;
(b) to organise; and (c) to form and join a federation. (5) Every
trade union, employers' organisation
and employer has the right to
engage in collective bargaining. National legislation may be enacted
to regulate collective bargaining.
To the extent that the
legislation may limit a right in this Chapter, the limitation must
comply with section 36(1). (6) National
legislation may recognise
union security arrangements contained in collective agreements. To
the extent that the legislation
may limit a right in this Chapter,
the limitation must comply with section 36(1)
”.
[16]
It should be added
that the court did query the citation of the second defendant
instead of the head of the Department, or the designated official
who would have been the contracting party in respect of the
letter
of employment. Either by reason of a lack of oversight or a failure
to anticipate this point, the contract of appointment
was never
produced, but, by reason of the decision this court has arrived at,
it is unnecessary to analyse this point further.
[17]
See generally on
the wrongfulness element:
Loubser
and Others
:
The Law
of Delict in South Africa
,
Oxford
University Press
,
Second
Impression 2018
,
page 382. According to
Loubser
et al
:
The Law
of Delict
,
the position is thus, (at page 382): “
[I]n
essence, not only must the feelings have been violated subjectively,
but society should consider the invasion of the interest
to be
unreasonable to such an extent that the defendant should be held
liable for assuaging the wounded feelings
”.
The authors add that “
persons
are expected to show some resilience and tolerance towards offensive
behaviour, and courts will not impose liability unless
society’s
sense of justice (boni mores) would point to the situation being
offensive, degrading and trivial
”.
[18]
See generally:
Neethling,
Potgieter & Erasmus
:
Law of
Delict
,
supra
,
paragraph 3.2.2.1 on pages 352 to 354.
[19]
See also
Burchell
:
Principles
of Delict
,
supra
,
at page 161.
[20]
Consideration was
given to only award costs of an opposed exception, but the
limitations of exception proceedings where the wrongfulness
criterion is at play, persuaded me upon reflection, not to limit
the
successful defendant’s costs.