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[2021] ZAKZDHC 2
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Featherby v Zulu (D2963/2016) [2021] ZAKZDHC 2 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO. D2963/2016
In the
matter between:
GARY
FEATHERBY
PLAINTIFF
and
THOKOZANE ZULU
DEFENDANT
ORDER
The following order
shall issue:
1.
The plaintiff’s claim succeeds with costs.
2.
The defendant is ordered to pay the plaintiff an amount of R100 000
(One Hundred
Thousand Rand).
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Steyn
J:
[1]
The plaintiff instituted action against the defendant, claiming
payment of the sum
of R750 000 (Seven Hundred and Fifty Thousand
Rand) based on the fact that the defendant had defamed him in two
publications, which
were electronically distributed to the Chief
Director of the Department of Labour; the Director of the Commission
for Conciliation,
Mediation and Arbitration (CCMA); the Executive
Committee of the Bargaining Council for the Contract Cleaning
Industry (BCCCI);
the Secretary of the BCCCI; the Provincial
Secretary of the South African Transport and Allied Workers Union
(SATAWU), and the
Chairperson of the National Contract Cleaners
Association (NCCA). The second publication was published on 7
December 2015 and sent
to the recipients listed in annexure B,
attached to the particulars of claim.
[2]
Copies of the published statements were attached to the particulars
of claim. The
relevant parts of ‘A’ read as follows:
‘
5.
This Bargaining Council is run like somebody’s general dealer
I
believe that the nature and the composition of Bargaining Council
suggest that it must be run on democratic principle (sic), however
in
this Council (sic) it seem Mr Featherby believe that he can do as he
pleases, going out of his way to protect the dishonest
(and God knows
what else) people in return that they do whatever he instruct them to
do, which enable him to control the Council.
On the other hand he
resent those who does their work with integrity and honesty, whom he
cannot manipulating and control. His
obsession with controlling and
manipulating of everything negatively affect the functioning of the
Council. A question needs to
be asked is this Bargaining Council
benefitting employers and employees in the industry or only certain
delegates who believe that
they must personally benefit from every
opportunity that arises in the Council. When there is a tender or
employment opportunity
they think about their relatives first and
have to be told that they must follow proper processes, which in many
cases will be
reluctantly followed but the original decision before
the process never changes. The investigation needs to determine
whether the
EEA and its Amendments and B-BBEEA are considered when
awarding tenders and employing people.
6.
Investigation of withdrawal of arbitration awards for a certain
company represented
by the delegate of the Council
On
Monday 19 October 2015 there was a decision to withdraw awards of
certain company represented by the delegate of the Council,
investigation to determine the following:
-
Is
the Secretary empowered to withdraw the arbitration awards, one of
the award had been a subject of an unsuccessful rescissions
application?
-
Is
it fair that other companies attend their cases and when they have
awards against them they abide and pay but this company which
does
not respect the Council process is allowed to get away by not
complying with awards?
-
Does
this not give the company concerned a competitive advantage against
its competitors?
-
Is
it fair that this company which had not been complying for some time
be given special treatment because it is represented by
the delegate
of the Council?
-
Is
it fair to the agents that the person responsible for cases not going
forward, is (according to him) empowered to withdraw the
awards
issued by the Commissioner?
-
Is
there any awards in the past that was withdrawn by the Secretary?
Hard
working colleagues are so negatively affected by what is happening in
this Council, including the sabotaging of their cases
to such that
one of them has been referred for anger management therapy and I
appeal to the DOL to conduct an investigation on
this and other
matters before something very bad happen to this Council.
Furthermore
should anyone believe that there is anything that should be
investigated against MYSELF I invite that person to provide
information so that it could be part of the investigation. My
motivation for writing this memo to the Department is my quest for
JUSTICE to the cleaning employees and FAIR competition among cleaning
employers.’
[1]
[3]
When the matter was heard, it was not disputed that the statements
were authored and
distributed to the recipients via email by the
defendant. What remained to be determined was whether the content of
the statemen
ts
was defamatory in nature
and made with the intention to defame the plaintiff as claimed. The
defendant, in his plea, denied that
the statements were defamatory of
the plaintiff. He claimed to have acted in terms of his duties as a
member of the council and
that his conduct was justified since it was
protected by qualified privilege. The matter proceeded on both merits
and quantum.
Legal
position
[4]
In
Lawsa
,
[2]
the delict of defamation is defined as the ‘unlawful
publication,
animo iniuriandi
,
of a defamatory statement concerning the plaintiff’. It is
trite that once a plaintiff establishes that a defendant has
published a defamatory statement concerning him, that it is presumed
that the publication was both unlawful and intentional.
[5]
Further, at para 114 of
Lawsa
supra, the author FDJ Brand
states that ‘[d]efamatory statements include statements which
injure the reputation of the person
concerned in his or her
character, trade, business profession or office or which expose the
person to enmity, ridicule or contempt’.
[6]
In
Tsedu & others v Lekota &
another
,
[3]
Nugent JA found a judgment of an English court helpful in
understanding defamatory statements:
‘“
The
court should give the article the natural and ordinary meaning which
it would have conveyed to the ordinary reasonable reader
reading the
article once. Hypothetical reasonable readers should not be treated
as either naïve or unduly suspicious. They
should be treated as
capable of reading between the lines and engaging in some
loose-thinking, but not as being avid for scandal.
The court should
avoid an over-elaborate analysis of the article, because an ordinary
reader would not analyse the article as a
lawyer or an accountant
would analyse documents or accounts.
Judges
should have regard to the impression the article has made upon them
themselves in considering what impact it would have made
upon the
hypothetical reasonable reader. The court should certainly not take a
too literal approach to its task.”
’
[4]
(My
emphasis.)
[7]
In determining whether the statements are defamatory, I am guided by
the approach
of the Supreme Court of Appeal (SCA) in
Smalle
v Southern Palace Investments 440 (Pty) Ltd (121/2016)
[5]
stating:
‘
A
statement is defamatory if, on an ordinary reading by a reasonable
person,
it
has the effect of injuring a person’s reputation
.
Statements
can have a primary and a secondary meaning. The primary meaning
is the ordinary meaning and the test is an objective
one, requiring
no evidence. A two stage inquiry is required to establish
whether a primary statement is defamatory. The first
is whether the
words are reasonably capable of referring to the plaintiff and the
second is whether the reasonable person would
regard the words as
referring to the plaintiff.
’
[6]
(Original
footnotes omitted, my emphasis.)
[8]
Corbett JA, in
Borgin v De Villiers &
another
,
[7]
observed:
‘
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. .
. .’
[9]
The SCA, in
Le Roux & others v
Dey
,
[8]
held that the following approaches be followed in determining
wrongfulness:
‘
[6]
To answer the first question a court has to determine the natural and
ordinary meaning of the publication:
how
would a reasonable person of ordinary
intelligence have understood it? The test is objective
.
In determining its meaning the court must take account not only of
what the publication expressly conveys, but also of
what
it implies, ie what a reasonable person may infer from it.
The implied meaning is not the same as innuendo, which relates to a
secondary or unusual defamatory meaning that flows from knowledge
of
special circumstances. Meaning is usually conveyed by words, but a
picture may also convey a message, sometimes even stronger
than
words.
[7] It may
be accepted that the reasonable person must be contextualised and
that one is not concerned with a purely abstract exercise. One
must have regard to the nature of the audience. In this case the main
target was the school children at the particular school,
but it also
included at least teachers.
[8] A
publication is defamatory if it has the “tendency” or is
calculated to undermine the status, good name or reputation
of the
plaintiff. It is necessary to emphasise this because it is an
aspect that is neglected in textbook definitions of defamation
because it is usually said that something can only be defamatory if
it causes the plaintiff’s reputation to be impaired. That
is not the case, as Neethling explains with reference to authority:
“
It
is notable that the question of a factual injury to personality, that
is, whether the good name of the person concerned was actually
injured, is almost completely ignored in the evaluation of
wrongfulness of defamation. In fact, generally a witness may not
even be asked how he understood the words or behaviour. In addition,
it is required only that the words or behaviour
was
calculated
or
had
the tendency or propensity
to
defame, and not that the defamation actually occurred. In
short,
probability
of injury
rather
than actual injury is at issue.
It
can be concluded, therefore, that the courts are not at all
interested in whether others’ esteem for the person concerned
was in fact lowered, but only, seen
objectively
,
in whether, in the opinion of the reasonable person, the esteem which
the person enjoyed was adversely affected. If so, it is
simply
accepted that those to whom it is addressed, being persons of
ordinary
intelligence
and experience, will have understood the statement in its proper
sense.”’
(Original footnotes omitted, my emphasis.)
Evidence
[10]
I shall now turn to the evidence that was adduced at trial. The
plaintiff, Mr Featherby, the
managing director of Proline Services
for over 40 years, testified that the company is contracted in
cleaning services and also
provides care to the elderly. He confirmed
that the alleged defamatory statements were sent to the BCCCI, as
well as to the recipients
per the address list on the email, attached
as annexure A. Personally, he received a copy of the publication in
his capacity as
chairman of the BCCCI. An executive committee
consisting of a chairman, a vice-chairman and four delegates manages
the BCCCI. The
BCCCI takes care of the interests of 17 000 cleaners
that fall within its jurisdiction. The chairman and vice-chairman are
appointed
in terms of the BCCCI Constitution at the annual general
meeting every year. The chairmanship alternates between the employee
party
and employer party every second year. The chairman of the BCCCI
exercises his powers in conjunction with the vice-chairman, who
at
the time of the publications was Mr E Bina. The content of annexure
A, paras 5 and 6, were read into the record as well as the
content of
annexure B. According to the plaintiff, when the defendant published
the statements, he did not produce any proof of
any of the
allegations.
[11] The plaintiff explained that he
understood the statements to convey that he was corrupt to the
core
and unethical. He confirmed that council resolutions and decisions
are not taken in isolation but in consultation with the
BCCCI
executive committee and that, decisions made by the BCCCI are
minuted. Personally, he never had control over tenders and
employment
opportunities. No proof was ever submitted in relation to the alleged
tenders or employment opportunities. He confirmed
that annexure B was
sent to the KZN NCCA members.
[12]
It was his evidence that, PricewaterhouseCoopers (PwC) was instructed
by the executive committee
to investigate all of the allegations that
were made by the defendant. PwC finalised their investigation in
2016. He has seen the
findings and the report issued by PwC. There
was no proof of the allegations that were made by the defendant. The
defendant lodged
a complaint regarding the investigation and the
report issued. His complaint was submitted to the director of PwC and
the investigator
of the allegations. The findings were not changed
after the defendant’s complaint. In relation to both of the
defamatory
statements, the plaintiff felt that he was personally
under attack as the defendant alleged that he was corrupt.
[13]
According to him, the defendant was the compliance manager and his
job was to attend to the compliance
duties of the BCCCI. He was aware
of the fact that the defendant was concerned about a company, Khayisa
Cleaning (Khayisa), which
was not issued a certificate of compliance.
The chair, vice-chair and secretary of the council were of the view
that the company
was not compliant with all of the requirements. At a
subsequent meeting, the defendant tried to persuade the council to
give Khayisa
a certificate of compliance. Despite the defendant’s
attempts to see to it that Khayisa received a certificate, the
council
terminated the contract with Khayisa since it was not
compliant. It failed to provide sufficient provident funds to its
employees
and assure that there were sufficient funds for the annual
bonuses of its employees.
[14] The plaintiff explained that the
publications certainly had the effect that some people perceived
him
to be corrupt and that the statements affected his relationship with
the Department of Labour and those representing the department.
He
felt hurt by the statements that were made by the defendant since he
was of the view that they had had a good relationship in
the past.
[15] In cross-examination, the
plaintiff was asked how PwC became involved in the forensic
investigation.
He explained that the BCCCI was given the names of
three forensic investigators and that the council decided on PwC as
the preferred
investigator. In his view, there was no factual basis
for the allegations made by the defendant. He confirmed that Mr
Patrick Mkhize
(Mr Mkhize) had also made a defamatory statement about
him and that he had instituted a defamation suit against Mr Mkhize as
well.
Mr Mkhize however apologised and he withdrew the case against
Mr Mkhize.
[16] The defendant testified in his own
defence. He has known the plaintiff since 2005, when he still
employed by another company that was represented on the BCCCI. In
2011, he applied for and was appointed as senior agent with the
council. According to him, he was promoted and served as the deputy
secretary of the BCCCI. He stood in for the secretary whenever
the
secretary was not available. During his work as an inspector, he had
to inspect companies who failed to comply with the basic
conditions
and regulations of the industry. If they were not compliant, a case
was opened against them. He was in charge of opening
the case and
taking it to the stage of conciliation whereafter, the secretary of
the BCCCI, Mr Venter, would take it further. In
his view, cases would
disappear after the conciliation process. He discussed the
disappearance of the cases with Mr Venter but
the discussion bore no
fruit. He then requested a meeting with the chair and vice-chair in
2012. In attendance at the meeting were
the plaintiff, Mr Paul
Judkins (Mr Judkins), Mr Colin Mshe and the secretary, Mr Venter. The
plaintiff, as chair, resolved the
issue by suggesting that the
communication at the BCCCI should be improved. He was not satisfied
with the outcome of the meeting.
In 2014, he confided in Mr Judkins
and informed him that cases were still disappearing.
[17] In March 2015, Mr Mbina undertook
to attend to the issue and he ensured them that cases disappearing
would no longer take place. The defendant explained that he felt that
the plaintiff was making decisions that were not all his
to make.
According to him, Khayisa was successful in complying with all of the
industry’s requirements but the BCCCI decided
not to give the
company a certificate. His explanation for distributing the first
memorandum (‘A’) was because he wanted
the BCCCI to be
investigated. It was not his intension to attack the plaintiff. He
believed in what he had stated in the memorandum.
[18]
In cross-examination, he was asked to explain certain allegations,
especially since he said he
did not intend to defame the plaintiff.
When asked to explain the statement that the BCCCI was run like
someone’s general
dealer, he could not give an explanation. He
also had great difficulty in answering how his beliefs resulted in
conclusions without
any factual foundation for those beliefs. He
conceded that PwC concluded that there was no wrongdoing at the
BCCCI. He stated in
his evidence-in-chief that the second memorandum
was distributed to the recipients to show and explain that he was not
working
with the unions. Again, he was taken through an analysis of
the entire memorandum (annexure B), paragraph by paragraph, which did
not correspond with his contention that the document was sent to
clarify his position viz-a-vis the unions. He conceded, albeit
reluctantly, that the document did not reflect what he had claimed
earlier. He however persisted in his contention that the statements
were not a vicious attack on the plaintiff’s reputation or his
integrity. The defendant did not call any witnesses to testify.
Evaluation
[19]
Based on the evidence in totality, it has been shown on a balance of
probabilities that the statements
were made by the defendant and
distributed to the individuals on the address lists. In a
consideration of the content of the statements,
it is clear that the
words used in the statements are not difficult; they are
understandable to the ordinary person and written
in plain English.
[20] In my view, to say that the
plaintiff is ‘going out of his way to protect the dishonest’
and that he resents those who do their work with honesty and
integrity, had to tarnish the plaintiff’s reputation and
discredit
him in his professional standing. Given the content of both
memorandums, I am of the view that words published are defamatory in
nature and most certainly caused the plaintiff to be defamed.
[21] Having so
found, it is necessary to consider whether the statements published
by the defendant
were protected by qualified privilege as pleaded by
the defendant. The SCA, in
National
Education, Health and Allied Workers Union & another v Tsatsi
,
[9]
recognised that one of the ‘occasions that enjoys the benefit
of the defence [qualified privilege] is an occasion where the
statements were published in the discharge of a duty or exercise of a
right’.
[10]
Whether a statement was relevant to the occasion will be determined
by reason and common sense.
[11]
As was held in
Van der Berg v Coopers
& Lybrand Trust (Pty) Ltd & others
,
‘[r]elevance in the context of qualified privilege is not to be
equated to relevance in the strict evidential sense’.
[12]
[22] During the
defendant’s testimony, he conceded that he had no factual
foundation for a number
of the allegations. In fact, the allegations
went beyond his duties as compliance officer. He did not simply
request an investigation
into the affairs and conduct of the BCCCI.
He also did not explain in annexure B his position in relation to the
unions. In fact,
he made bold statements about the conduct of the
plaintiff that was not supported by any evidence. In my view, once it
is shown
that the allegations made are not relevant to the issues at
hand, then the defence of qualified privilege cannot protect the
statements.
Given the facts of this case, the defendant has failed in
his defence that the statements were protected by qualified
privileged
and hence lawful.
[23] I am
satisfied that the plaintiff succeeded on a balance of probabilities
in proving his claim.
Award
[24]
Having found in favour of the plaintiff, this court still has to
determine the quantum of the
award. This court’s discretion
should be informed by the circumstances of the case, and the
prevailing attitudes of the community.
[25]
This court has a wide discretion in determining the award of general
damages. I have already
found that the plaintiff in his position at
the BCCCI was defamed as being corrupt and not honest. The conduct of
the defendant
to make public allegations that could not be supported
by any factual foundation was wrong. I will however take into account
that
the statements were not widely circulated. There was no evidence
that members other than those recipients on the lists had received
the defamatory statements. The plaintiff also testified that he still
works at the BCCCI and in my view; the impact of the statements
had a
temporary effect on his professional standing at the council.
[26] Having
considered all of the above factors, in my view, a fair and
reasonable award in the circumstances
of this matter would be R100
000 (One Hundred Thousand Rand).
Costs
[27]
The plaintiff as the successful party is entitled to costs. In
argument, Mr
Chetty
, for the defendant, argued that costs, if
awarded should be on the magistrates’ courts scale, as the
matter should not have
been pursued in the high court. In my view, if
the defendant felt so strongly about the issue that this matter
should have been
heard in the lower court, he should have applied for
a transfer to another forum at the pre-trial stage. I am satisfied
that the
issues raised, sufficiently warranted a hearing at this
forum.
Order
[28]
In the result, the following order shall issue:
1. The plaintiff’s
claim succeeds with costs.
2.
The defendant is ordered to pay the plaintiff an amount of R100 000
(One Hundred
Thousand Rand).
Steyn J
APPEARANCES
Counsel
for the plaintiff
:
Mr M Titus
Instructed
by
:
Macgregor Erasmus Attorneys
114 Bulwe Road,
Glenwood
Durban
Ref:Mpho Titus/sb/BAR1/0012
Counsel
for the defendant
: Mr K
Chetty
Instructed
by
:
Lushen Pillay Attorneys
Suite 130, First Floor
320 Dr Pixley Kaseme Street
Durban
Ref:RM/Z325L/HC
Date of Hearing
: 16 and
17 November 2020
Date of Judgment
:
29
January 2021
[1]
See pages 11 and 12 of the
papers.
[2]
14(2)
Lawsa
3 ed para 111.
[3]
Tsedu & others v
Lekota & another
2009
(4) SA 372 (SCA).
[4]
Ibid para 13.
[5]
Smalle v Southern Palace Investments 440 (Pty) Ltd (121/2016)
[2016] ZASCA 189
(1 December 2016).
[6]
Ibid para 23.
[7]
Borgin v De Villiers &
another
1980
(3) SA 556
(A) at 578H.
[8]
Le Roux & others v
Dey
2010 (4) SA
210 (SCA).
[9]
National Education, Health and Allied Workers Union & another
v Tsatsi
[2006] 1 All SA 583 (SCA).
[10]
Ibid para 11.
[11]
See
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd &
others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) para 26.
[12]
Ibid para 25. See also
Crawford v Albu
1917 AD 102
at 124,
where fair comment was treated as analogous to a plea of qualified
privilege. At 133, the court regarded comment to be
fair whenever it
is relevant and made without malice.