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2023
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[2023] ZAFSHC 288
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K.A.B v National Union of Metal Workers of South Africa (NUMSA) and Others (1438/2021) [2023] ZAFSHC 288; [2023] 10 BLLR 1098 (FB); (2023) 44 ILJ 2554 (FSB) (21 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
CIVIL
LAW – Defamation –
HIV
status
–
Parties
attended a grievance meeting – Fourteen people who are
colleagues of plaintiff were present – Plaintiff
confirmed
that she confided her HIV positive status to Molatlhoe –
Zitho allegedly uttered in the meeting that Molatlhoe
informed him
that the plaintiff is HIV positive – Whether defendants’
disclosure of plaintiff’s HIV status
constitutes defamation
– Whether plaintiff’s subjective feelings have been
violated and her dignity has been
impaired – Disclosure of
her status negatively impacted her work – Disclosure
constituted a wrongful act and
defamed plaintiff’s dignity
and reputation – Further violated her right to privacy of
personal information –
Determination of quantum –
Seriousness of defamation – R100,000 in damages awarded
.
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 1438/2021
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
K[…]
A[…] B[…]
PLAINTIFF
and
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA (NUMSA)
1
ST
DEFENDANT
ANDILE
WISEMAN ZITHO
2
ND
DEFENDANT
MAMOJABENG
CONSTANCE MOLATLHOE
3
RD
DEFENDANT
HEARD
ON
:
24 JANUARY, 25 JANUARY & 3 MARCH
2023
JUDGMENT
BY:
CHESIWE,
J
DELIVERED
ON:
This
judgment was delivered electronically by circulation to the parties’
representatives by email. The date and time for
delivery is deemed to
be at 14h00 on 21 July 2023.
BACKGROUND
[1]
The Plaintiff instituted a defamation action
against the Defendants, claiming damages totalling R1 000 000,
00. The Plaintiff
allegedly suffered as a result of the Second
Defendant who uttered in a meeting that the Plaintiff is human
immunodeficiency virus
(HIV) positive.
[2]
The summons was duly served on all three
Defendants and the Defendants had filed a notice to defend the action
on 14 April 2021.
The Plaintiff is an employee of the First
Defendant.
PLAINTIFF’S CASE
[3]
The Plaintiff’s case was narrated by the
Plaintiff herself and one witness. The Defendant’s case was
narrated by the
First and Second Defendants on whether Defendants’
disclosure of the Plaintiff’s HIV status constitutes
defamation.
[4]
The Plaintiff took the stand and testified that On
27 February 2021, there was a grievance meeting which was directed
towards Mr.
Andile Wiseman Zitho (herein after referred to as the
Second Defendant). In the meeting there were 14 people who are
colleagues
of the Plaintiff and the Defendants while some were from
management.
[5]
Before the meeting could commence, the Second
Defendant inquired in the meeting as to who the author of the
grievances that were
lodged with the Chairperson, Mr. Andrew Chirwa
was. It followed that Mr. Chirwa, responded that it was not necessary
to ask for
the author of the grievances.
[6]
The Second Defendant proceeded to voice in the
meeting as they sat there that, “some of them will not be
getting along after
the meeting as they could only guess what he was
about to say to them.” And this is where the Second Defendant
immediately
proceeded to utter in that very grievance meeting that
the Third Defendant informed him that the Plaintiff is HIV positive.
[7]
The Plaintiff stated that she did confide in the
Third Defendant in 2007 regarding her HIV status. She regarded the
Third Defendant
as a friend and sister and had no reason to believe
that the Third Defendant would repeat it to anyone. She further
denied that
she disclosed her HIV status to other people in the
office. The Plaintiff alleges that immediately after the disclosure
of her
HIV status in the meeting, she was no longer well. She was
admitted at a hospital and had to consult a psychologist for therapy
session. The Plaintiff further stated that the Second Defendant came
to comfort her, but did not apologise for the utterances made
in the
grievance meeting.
[8]
The Plaintiff testified that these utterances made
her to have suicidal thoughts. It disturbed her at work and she as a
result thereof
made a lot of mistakes. Further that the Second
Defendant became very harsh towards her when she made mistakes.
[9]
Under cross-examination, the Plaintiff stated that
she did not lodge a complaint with the Commission for Conciliation,
Mediation
and Arbitration (CCMA) nor with the employer. She said, the
Second Defendant did not respect the employees’ confidentiality
and that on the day of the meeting, the Second Defendant made her
status known, and walked out of the meeting laughing. The Plaintiff
denied that she disclosed her HIV status to other employees.
[10]
The Plaintiff’s first witness was Mathapelo
Galada. She testified that on 27 February 2021, she was also in the
grievance
meeting. The meeting was meant to address the grievances
that employees lodged against the Second Defendant as their immediate
supervisor. Instead, the Second Defendant told them in the meeting
that “what he was about to say will cause confusion amongst
them.” The Second Defendant told them they talk about
confidentiality, whereas the Third Defendant told him that the
Plaintiff
is HIV positive.
[11]
Mathapelo further testified that she was not aware
of the Plaintiff’s HIV status. She was shocked and hurt as she
never thought
the Plaintiff’s HIV status would be mentioned in
a meeting which was supposed to resolve the grievances employees had
against
the Second Defendant and that it was wrong for the Second
Defendant to utter in a meeting about the Plaintiff’s HIV
status.
[12]
Under cross-examination, Mathapelo said she had no
interest in this case and maintained that the Second Defendant did
not address
the issues that were raised, but instead mentioned the
Plaintiff’s HIV status which was not necessary for the Second
Defendant
to mention in the meeting.
[13]
No further witnesses were called. The Plaintiff
closed her case.
APPLICATION FOR
ABSOLUTION FROM THE INSTANCE
[14]
The Plaintiff had instituted an action for
defamation damages against the First, Second and Third Defendants. At
the close of the
Plaintiff’s case, Counsel for all three (3)
Defendants brought an application for absolution from the instance,
from the
bar. Counsel on behalf of the Plaintiff opposed the
application. As per the background of this matter, the Plaintiff is
suing for
damages based on an incident that took place on 27 February
2021, in which the Second Defendant allegedly uttered words to the
effect that the Plaintiff is HIV positive. Counsel for the Defendants
in the application for absolution from the instance submitted
in oral
argument submitted that based on the allegations as stated in the
particulars of claim, the Plaintiff has not raised allegations
of
animus iniunriandi.
The
Plaintiff has not proven or furnished any evidence of intent to
defame by the Defendants. Furthermore, it was submitted that
there
was no publication on the part of the Second and Third Defendants.
Instead, the co-workers were supportive to the Plaintiff
on the day
in question. Counsel submitted that if no evidence against the Second
and Third Defendant exists, it therefore follows
that absolution must
follow. Counsel for the Plaintiff in opposing the application,
submitted that the application for absolution
from the instance on
behalf of the Defendants in that the Plaintiff could not prove
publication if incorrect as the Second and
Third Defendants in their
papers by disclosure and utterance had proved publication. Further
that the Third Defendant was correctly
cited and jurisdiction was
established and the Plaintiff merely pleaded wrongfulness.
[15]
It is
trite that the test to be applied by Court when absolution is sought
at the end of the Plaintiff’s case is whether there
is evidence
upon which a reasonable person might find for the Plaintiff. In
Gordon
Lloyd Page & Associates v Rivera and Another
[1]
,
the Court held that:
“
The
test for absolution to be applied by the trial court at the end of
the plaintiff’s case was formulated in Claude Neon
Lights SA
Ltd v Daniel
1976 (4) SA 403
(A).
[16]
Furthermore, Rule 39(b) of the Uniform Rules of
Court Provides that at the close of the Plaintiff’s case, the
Defendants may
apply for absolution from the instance. This implies
that the Plaintiff has to make out a
prima
facie
case in the sense that there is
evidence relating to all the elements of the claim to survive
absolution.
[17]
As far as inference from the evidence is
concerned, the inference relied upon by the Plaintiff must be
reasonable, especially where
the Court has to consider whether there
is evidence upon which a reasonable person might find for the
Plaintiff. In the case of
doubt as to what a reasonable Court might
do, the Court should lean on the side of allowing the Plaintiff not
to be lightly deprived
of her remedy without the evidence of the
Defendant being heard. A Defendant who might be afraid to go into the
witness box should
not be permitted to shelter behind the procedure
of absolution from the instance.
[18]
In
this regard, reference is made to
Supreme
Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd
[2]
.
One cannot turn a blind eye to the Plaintiff’s evidence. If
absolution is granted, the Defendant is not called upon to answer
to
the Plaintiff’s claim which result in an unfair result to the
Plaintiff. If also granted, Counsel will have put a version
before
court during cross-examination on the basis that the witness of the
Defendant will come and testify, with the consequence
that the
Defendants’ version is not tested. Absolution should not be
granted lightly.
[19]
In circumstances where the Plaintiff’s case
is so weak, that no reasonable court can find in favour of the
Plaintiff, absolution
may be granted. However, in the ordinary course
of events, it will nevertheless be granted sparingly, but when the
occasion arises.
A Court should order in the interest of justice. As
a general rule where absolution at the close of the case is refused,
avoid
unnecessary discussion of the evidence. In reaching a
conclusion, whether absolution should be granted, it is not required
of the
Court to evidently look at the evidence as would be required
at the end of the trial. The onus on the Court is less stringent as
there should only be evidence on which a Court can or may find in
favour of the Plaintiff.
[20]
This Court in applying its mind reasonably to the
Defendants’ application, cannot simply ignore the issues as
raised by the
Plaintiff and its witnesses, as these have to be
answered. Based on the above application for absolution from the
instance, it
therefore ought to be dismissed.
DEFENDANTS’ CASE
[21]
The Second and Third Defendants took to the stand.
The Second Defendant testified that he learned of the Plaintiff’s
HIV status
out of concern as the Plaintiff was always off sick. He
was informed by the Third Defendant in 2010 about the Plaintiff’s
HIV status. The Second Defendant conceded that there was a meeting,
which was called to deal with the grievances of the employees.
[22]
The Second Defendant explained that there was a
first seating which was around April 2021. This meeting was for
purposes of the
staff members to explain their grievances. This
meeting was followed up by the meeting of 27 February 2021 in which
the Second
Defendant had to answer questions from the meeting of the
first seating. The Second Defendant indicated in the meeting of 27
February
2021, he needed to explain that the people who lodged the
grievances were not confidential about each other’s private
matters
and proceeded to make an example that he knew since 2010 that
the Plaintiff was HIV positive as he was told by the Third Defendant.
He said, after mentioning that the Plaintiff was HIV positive, the
Plaintiff started to cry. The meeting was adjourned to give
the
Plaintiff time to calm down. The meeting resumed and when it ended,
he then apologised in the presence of all present at the
meeting and
to the Plaintiff further proceeded to comfort her and said that he
was sorry.
[23]
The Second Defendant denied that there was
confusion in the meeting nor was there any reaction from the people
who were in the meeting.
The Second Defendant further indicated that
since this incident, the working relationship between himself and the
Plaintiff has
been professional as the Plaintiff is his subordinate,
neither has there been tension as he is the one that got the
Plaintiff to
be promoted from being a cleaner to receptionist. The
Second Defendant further submitted that on 23 January 2023, he gave
the Plaintiff
instructions to perform some work for him and that the
Plaintiff diligently followed these instructions.
[24]
The Third Defendant, Mamojabeng Constance
Molatlhoe testified that in 2007, the Plaintiff confided in her that
she was HIV positive.
Further that the Third Defendant and the
Plaintiff were good friends to the extent that they shared personal
issues. In 2010, the
Plaintiff disclosed that she is HIV positive as
the Second Defendant had raised a concern about the Plaintiff having
not been at
work for a long period. The Third Defendant explained
that she communicated the Plaintiff’s status to the Second
Defendant
in confidence.
[25]
The Third Defendant mentioned that on 27 February
2021, she was present in the meeting when the Second Defendant made
the example
on the issue of confidentiality which was on the agenda
that he knew about the Plaintiff’s HIV status and had never
divulged
this information to anyone. The Third Defendant stated that
it was tense in the meeting after the disclosure of the Plaintiff’s
HIV status. The Third Defendant mentioned that the Second Defendant
apologised immediately in the meeting. The Third Defendant
explained
that before the Second Defendant could divulge the Plaintiff’s
HIV status, he cautioned all present in the meeting
that what he was
about to say, may shock all in the meeting. That was the Defendants’
case.
[26]
It is trite that a duty rests on a litigant to
give evidence that is sufficient to persuade the Court at the end of
a trial that
his or her claim or defence succeeds. The rule being
that the party who claims something has to satisfy the Court that he
or she
is entitled to the relief sought.
[27]
The
elements of defamation as stated in
Le
Roux and Others v Dey
[3]
,
are
“
The
wrongful and intentional publication of a defamatory statement
concerning the Plaintiff.”
[28]
The
Court in determining whether a statement is defamatory, has to
establish the ordinary meaning of the words and whether that
meaning
is defamatory in that it has the likelihood to injure the Plaintiff’s
reputation or good name as defamation laws
are generally aimed at
protecting a person’s right to an unimpaired reputation and
good name.
[4]
[29]
The Plaintiff in order to succeed, is further
required to show she suffered an impairment to her dignity. This will
involve whether
the Plaintiff’s subjective feelings have been
violated and her dignity has been impaired.
[30]
According to the Plaintiff in her oral testimony
she did not expect that the Second Defendant would utter in a meeting
of 14 people
her HIV status. As a result, her feelings were hurt, she
cried immediately after hearing of her HIV status in a meeting. She
thereafter
made a lot of mistakes in her work and that the Second
Defendant was very harsh towards her when she made these mistakes.
What
hurt the Plaintiff most is that the Second Defendant laughed
when he walked out of the meeting.
[31]
The Plaintiff’s evidence is corroborated by
Mathapelo Galada (Plaintiff’s second witness) that she was
shocked when
the Second Defendant made mention of the Plaintiff’s
HIV status as she had no knowledge of this.
[32]
The Second Defendant’s contention that he
apologised to the Plaintiff as he did not mean to hurt the Plaintiff
and that the
utterances were an example to bring to the employees’
attention how confidentiality works as he had kept the knowledge of
the Plaintiff’s HIV status. The Second Defendant’s
defence that it was an example is questionable. Of all the examples
that could have been made particularly in a meeting, he instead chose
to use the Plaintiff’s HIV status as an example. The
Plaintiff
could have not imagined her HIV status been cited as an example.
[33]
Though the Second Defendant indicated that he
apologised to the Plaintiff, and conceded that it was wrong on his
part to cite the
Plaintiff’s HIV status as an example, whereas
the Plaintiff denied that the Second Defendant apologies to her.
[34]
In
NM
and Others v Smith and Others
[5]
,
the Court held as follows:
“
There
is nothing shameful about suffering from HIV/AIDS. HIV is a
disease like any other; however, the social construction
and stigma
associated with the disease make fear, ignorance and discrimination
the key pillars that continue to hinder progress
in its prevention
and treatment. These pessimistic perceptions persist to fuel
prejudice towards people living with HIV/AIDS”
[35]
The Second Defendant to disclose in a meeting of
14 people, the HIV status of the Plaintiff should be regarded as
public defaming
of one’s privacy, dignity and reputation of her
name. It is indeed not the Second Defendant’s place to disclose
the
HIV status of the Plaintiff or to disclose such sensitive detail
about one’s health in a meeting which meeting had nothing
to do
with the Plaintiff’s state of health. The Plaintiff’s HIV
status is her private medical information which was
shared without
her consent. Even if the Plaintiff had confided in the Third
Defendant, it was clarified that the Third Defendant
was known to the
Plaintiff like a sister and consent was not given to divulge the
Plaintiff’s HIV status.
[36]
The Second Defendant’s apology came after
the harm had already been done. One can take into consideration the
apology which
can be a sign of remorse, but it is however seen as
been delayed as all present in the meeting had already learnt of the
Plaintiff’s
HIV status.
[37]
The
Plaintiff testified in a forth right manner and even cried during her
testimony and court had to adjourn. This clearly informs
that the
Plaintiff sustained injuries to her reputation and dignity. Further
that the aspect of privacy is significant and protected
by our
Constitution. The more sensitive the information of a person, the
more it is important to protect such.
[6]
[38]
I am therefore persuaded that the Second Defendant
in mentioning the Plaintiff’s HIV status in a meeting,
constituted a wrongful
act on his part and has thus defamed the
Plaintiff’s dignity, reputation and further violated her right
to privacy of personal
information.
DAMAGES
[39]
The Plaintiff claimed an amount of R1 000 000-00
from all three (3) Defendants. Counsel on behalf of the Defendant
submitted
that the Court is to take into consideration that on the
Plaintiff’s version, the Second Defendant showed remorse by
apologising.
In determining quantum in respect of defamation, the
Court has to take into consideration the seriousness of the
defamation, the
extent of publication, the reputation, character and
conduct of the Plaintiff and the motives and conduct of the
Defendant.
(See
Muller
v SA Associated Newspapers Ltd
1972
(2) SA 589
at 595)
[40]
In
Esso
Standard SA (Pty) Ltd v Katz
[7]
,
the Court said the following:
“
It
has long been accepted that in some types of cases damages are
difficult to estimate and the fact that they cannot be assessed
with
certainty or precision will not relieve the wrongdoer of the
necessity of paying damages for his breach of duty.”
[41]
In
determining quantum, the Court must have regard in respect of
defamation, the seriousness of the defamation, the nature and extent
of the publication, the reputation of the character and conduct of
the Plaintiff, further the motive and conduct of the Defendant.
[8]
[42]
In
Dikoko
v Mokhatla
[9]
,
the following was stated:
“
There
is a further and deeper problem with damages awards in defamation
cases. They measure something so intrinsic to human dignity
as a
person’s reputation and honour as if these were marketplace
commodities. Unlike businesses, honour is not quoted on
the stock
exchange. The true and lasting solace of the person wrongly injured
is the vindication by the Court of his or her reputation
in the
community. The greatest price to walk away with head high, knowing
that even the traducer has acknowledged the injustice
of the slur.”
[43]
The Plaintiff in the particulars of claim contends
that damages in the amount of R1 000 000-00 would be
appropriate award.
No arithmetical calculations were advanced, nor is
there an obligation on the Plaintiff that such calculations be
advanced. However,
it is well established in comparison with other
cases that this is helpful in quantifying damages in a defamation
claim.
[44]
In
Dikoko
supra
,
the Constitutional Court granted an award of R110 000-00 for
defamation wherein the Defendant had deliberately acted to falsely
implicate the Executive Mayor of the Southern District Municipality.
[45]
In
NM and Others
supra
,
Constitutional Court granted the Applicants each an award- of
R35 000-00 wherein the Applicants’ HIV status and names
were published without their consent in a book.
[46]
In
Independent
Newspaper Holdings Ltd and Others v Suliman
[10]
,
the Plaintiff’s picture was published in the Cape Times that he
was a suspect in a Cape Town bombing. The Plaintiff claimed
R1 000 000-00, the Court granted an award of R90 000-00.
On appeal, the SCA awarded R50 000-00.
[47]
In the
matter of
Tsedu
and Others v Lekota and Another
[11]
,
the Plaintiff who was a prominent office bearer of the African
National Congress, brought an application against the City Press
wherein an article that stated that ANC Top Brass spied on one
another as apartheid agents was published, therein the Plaintiff
was
awarded R150 000-00 and R112 500-00 respectively. On
appeal, both amounts were reduced to R100 000-00.
[48]
The Second Defendant having apologised to the
Plaintiff may be regarded as a mitigating factor. Furthermore, the
Plaintiff is still
employed by the First Defendant and the Second
Defendant is still the immediate supervisor. The Second Defendant
testified that
the working relationship between himself and the
Plaintiff is very cordial and professional. Thus burdening the
Defendants with
a huge claim would be unfair.
[49]
In my view, a defamation claim should not be
embarked upon for purposes of generating an income and that such
awards generally tend
to be conservative when taking into
consideration the comparative cases. The defamation in this matter
therefore does not warrant
a huge amount as claimed by the Plaintiff.
As stated in
NM and others
supra
,
there is nothing shameful about HIV/Aids except for the negative
stigmatization perpetuated by those who persists to treat the
disease
as shameful.
[50]
Therefore, taking into consideration the
authorities cited above, and in respect of the defamation claims, I
am of the view that
an award of R100 000-00 would be fair and
reasonable in the circumstance.
[51]
In respect of costs, it is trite that costs follow
the event. The Plaintiff is therefore entitled to the costs of the
litigation.
However, a punitive cost order is not warranted in this
case.
[52]
Accordingly, the following order is made:
1.
The Plaintiff’s claim for damages is
awarded;
2.
The Defendants shall pay the Plaintiff an amount
of R100 000-00 jointly and severally;
3.
The Plaintiff is awarded interests thereon
at the permissible legal rate (as promulgated from time to time),
calculated from the
date of judgment to date of final payment;
4.
The Defendants shall be liable for the Plaintiff’s
costs of suit on a party and party scale as taxed or agreed.
S. CHESIWE, J
On
behalf of the Applicant:
Mr.
K Matee
Instructed
by:
Matee
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
HP van Nieuwwenhuizen
Instructed
by:
EG
Cooper Majied Inc.
BLOEMFONTEIN
[1]
2001
(1) SA 88
SCA at para [2]
[2]
1971
(4) SA 90 (RA)
[3]
(CCT
45/10) [2011] ZACC 4; 2011 (3) SA 274 (CC)
[4]
(See
Masetlha v President of the Republic of South Africa and Another
(CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC)
[5]
(CCT69/05)
[2007] ZACC 6; 2007 (5) SA 250 (CC)
[6]
(See
NM and others
Supra
at
para [132])
[7]
1981
(1) SA 964 (A)
[8]
(See
Muller v SA Associated Newspaper 1972 (2) SA 589)
[9]
2006
(6) SA 235
(CC) at para [109]
[10]
(49/2003)
[2004] ZASCA 57
;
[2004] 3 All SA 137
(SCA)
[11]
2009
(4) SA 372
(SCA)