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[2010] ZASCA 59
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Molotlegi and Another v Mokwalase (222/09) [2010] ZASCA 59; [2010] 4 All SA 258 (SCA) (1 April 2010)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
In the matter between:
Case No:
222/09
K
GOSI
LERUO MOLOTLEGI First
Appellant
ROYAL BAFOKENG
ADMINISTRATION Second Appellant
and
M
OSOKO
MOKWALASE Respondent
Neutral citation:
Molotlegi
v Mokwalase (222/09)
[2010] ZASCA 59
(1 April 2010)
Coram:
Mthiyane,
Heher, Bosielo et Shongwe JJA et Seriti AJA
Heard:
8 March 2010
Delivered:
1 April
2010
Summary:
Defamation
â action for damages for defamation based on an innuendo â
separation of issues in terms of rule 33(4) â trial court
decided
that the words are defamatory per se without reference to the
innuendo â misdirection justifying the setting aside of its
order â
matter referred back to the court below for trial.
ORDER
On appeal from:
North
West High Court, Mafikeng (Mogoeng JP sitting as court of first
instance):
1. The appeal is allowed to this
extent:
(a)
The
order of the court below is set aside.
(b)
The
appellants are ordered to pay the costs of the hearing of the issues
which were separated in terms of rule 33(4), jointly and
severally.
2.
The
matter is referred back to the court below for trial.
3.
The
appellants are ordered to pay the costs of appeal jointly and
severally.
JUDGMENT
BOSIELO
JA (Mthiyane et Shongwe JJA et Seriti AJA
concurring)
[1]
The
first appellant is Kgosi Molotlegi of the Royal Bafokeng Nation,
which is situated in the Northwest Province. The second appellant
is
a legal persona responsible for the administration of the Royal
Bafokeng Nation. The respondent was employed as a team leader
of the
VIP Protection Team of the Royal Bafokeng Nation.
[2] A protocol and security meeting
of the second appellant was held on 13 October 2006 where both first
appellant and the respondent
were present. At the meeting and in the
presence of members of the protocol and security, first appellant
uttered the following words
or words to the same effect to the
respondent:
'Mokwalase, you are fired. I
don't want to see you again on my premises. You can excuse yourself'.
Acting
thereupon,
the respondent left the meeting.
[3] Aggrieved by the first
appellant's utterances, the respondent issued summons against the two
appellants alleging that the words
uttered, given the context of the
meeting, the respondent's position at the meeting and the first
appellant's behaviour towards the
respondent, are wrongful and
defamatory.
[4
] The
appellants applied by notice of motion to the court below for a
separation of issues in terms of rule 33(4) of the Uniform Rules
in
the following terms:
'
1. that
the meaning of alleged defamatory words set out in paragraph 7 of the
Respondent's (Plaintiff's) particulars of claim be determined
separately;
2.
that
in the event that the Honourable Court determines that the words bear
a defamatory meaning, whether such meaning accords with
the meanings
pleaded by the Respondent in paragraph 9 of his particulars;
3.
That
the other issues in dispute between the parties be postponed
sine
die
and
the determination thereof be stayed pending the finalisation of the
separated issues; and
4.
that
the respondent in the event that he opposes the relief set out in
paragraph 1 and 2 above be ordered to pay the costs of this
application.'
[5]
The
respondent neither opposed the application nor appeared at court when
it was heard. As a result the application was granted by
the court
below (per Matlapeng AJ) on 25 September 2008. The part of the court
order which is relevant is the one to the effect that
the meaning of
the alleged defamatory words as set out in paragraph 7 of the
Respondent's (Plaintiff's) particulars of claim be determined
separately.
[6] On 28 November 2008, the court
below (per Mogoeng JP), without any evidence having been led about
the context in which the alleged
words were uttered, found that they
were defamatory in nature. The learned judge proceeded further and
found that the publication
of the words (which was admitted) was
wrongful and was published with the requisite
animus
iniuriandi,
ie
'with intent to defame and the knowledge of wrongfulness and it
caused the plaintiff to suffer damages. A case of defamation, has
therefore been proved'.
The appellant
s
are appealing against this finding with the leave of the court below.
[
7] The
appellants have launched a three-pronged attack against the judgment
of the court below. This appears clearly from the appellant's
Notice
of Appeal where the three grounds of appeal are set out as follows:
'
1. The
Learned Judge, with respect, erred in finding that the statement was
wrongful, published with
animus
iniuriandi,
and
caused the Plaintiff damages and that a case of defamation had been
proved, in that the only issue before the Learned Judge, separated
in
terms of Rule 33(4), was to determine whether or not the words used
by the First Defendant were defamatory of the Plaintiff.
2.
The
Learned Judge, with respect, erred further in finding that the words
used by the First Defendant of and concerning the Plaintiff
were
defamatory of the Plaintiff in thatâ
2.1
It
was common cause that the words used by the First Defendant were:
"Mokwalase, you are fired.
I don't want to see you again on my premises. You can excuse
yourself."
2.2
The
Plaintiff limited the meaning of these words to three stings, namely
that the words meant that he was:
"unable to perform his
duties in a professional manner; and
although being a member of the
ROYAL BAFOKENG NATION, was deemed an undesired person on the
premises of the ROYAL BAFOKENG NATION;
and\
not even worthy of proper
disciplinary action and/or the rules of natural justice."
2.3
And
the learned Judge ought, with respect, to have found that the words
uttered by the First Defendant were not defamatory of the
Plaintiff
in the senses pleaded and relied upon by the Plaintiff.'
[
8] Before
us counsel for the appellants confined his submissions to the first
ground which he argued was dispositive of the whole
appeal. The
contention was that the court below erred in finding that the words
uttered were defamatory without having heard evidence
of the special
circumstances surrounding the utterances. He submitted further that
the court below erred in going beyond the terms
of the court order of
25 September 2008, by, in addition to finding the words uttered to be
defamatory
per se,
continuing to find
that 'it is wrongful and was published with
animus
iniuriandi,
ie with
the intent to defame and the knowledge of the wrongfulness and it
caused the plaintiff to suffer damages. A case of defamation
has,
therefore, been proved.'
[
9] The
respondent had raised the issue of the appealability of the finding
by the court below in his heads of argument. The contention
is that
as the parties still had to return to court to lead evidence on other
issues which had been deferred for later determination,
it could not
be said that the order by the court below had the effect of finally
disposing of the issues between the parties. However,
counsel for the
respondent conceded that the learned Judge President erred in
deciding that the words uttered were defamatory without
any evidence
of the special circumstances under which the words were uttered. He
argued further that, given the fact that the respondent
relied on the
secondary as opposed to the primary meaning of the words uttered, the
court below erred in granting separation of the
issues in the manner
it did as this failed to take account of the averments regarding the
special circumstances and the
innuendo
pleaded by the
respondent in para 9 of the particulars of claim.
[10] Notwithstanding the fact that
the issue of appealability was not vigorously argued before us, I
deem it appropriate to deal with
it upfront as it might be
dispositive of this appeal. It is clear from the judgment of the
court below that it had pronounced itself
unequivocally and
definitely on the issues of the defamatory nature of the utterances
as well as whether the utterances were wrongful
and made with the
requisite
animus
iniuriandi.
It
follows that once the court below had so pronounced itself on these
issues, it would not be possible for it to correct, alter or
set
aside its own order. It is only a court of appeal which would be
competent to correct, alter or set aside such an order.
Self-evidently
the order made by the court below finally disposed of
a substantial portion of the relief sought by the plaintiff in the
main action.
Dealing with a similar situation in
Marsay
v Dilley
[1992] ZASCA 114
;
1992 (3)
SA 944
(AD) Corbett CJ stated the following at 962C-D:
'
The
law relating to the appealability of decisions of a Court of a
Provincial or Local Division was re-examined relatively recently
by
this Court in the case of
Van
Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration
1987
(4) SA 569
(A). As this judgment shows, this Court has over the years
adopted an increasingly flexible approach to the question of
appealability.
The general principle which, I think, may be extracted
from the judgment is the following: where a trial Court has under
some competent
procedure (such as an application under Rule 33(4))
made an order which has the effect of being a final decision (ie one
which cannot
be corrected or altered or set aside by the trial Judge
at a later stage of the trial) and the decision is definitive of the
rights
of the parties and has the effect of disposing of a
substantial portion of the relief claimed by the plaintiff in the
main action,
then this order is a judgment (as understood in s 20(1)
of the Supreme Court Act 59 of 1959) and is appealable, despite the
fact
that the main action has not been concluded.'
Based on the above exposition, I am
satisfied that the decision of the court below is appealable. I
proceed to deal with the merits
of the appeal.
[
11] In
order to resolve this conundrum, I deem it necessary to quote the
relevant parts of the pleadings which reads:
7.
'During the
said meeting, the FIRST DEFENDANT, in the presence of members of the
said protocol and security meeting, uttered the
following and/or
words with the same effect and meaning, to PLAINTIFF:
"Mokwalase,
you are fired. I don't want to see you again on my pre
mises.
You can excuse yourself".'
8.
As a result of the above,
PLAINTIFF had to withdraw from the said meeting with immediate
effect.
9.
The said
words,
-
in
the context of the meeting; and
-
in
the context of PLAINTIFF'S position in the meeting; and
-
in
the context of FIRST DEFENDANT'S behaviour towards PLAINTIFF,
are wrongful and defamatory of
PLAINTIFF,
in that the
y
were intended and were understood by PLAINTIFF and members of the
said meeting, to mean that PLAINTIFF was:
-
unable
to perform his duties in a professional manner; and
-
although
being a member of the ROYAL BAFOKENG NATION, was deemed an undesired
person on the premises of the ROYAL BAFOKENG NATION;
and
-
not
even worthy of proper disciplinary action and/or the rules of natural
justice.'
[
12] In
responding to these allegations, the appellants pleaded as follows:
'
Save
to admit that the First Defendant uttered the following words to the
plaintiff:
"Mokwalase
you are fired. I don't want to see you again on my premises. You can
excuse yourself."
These allegations are
denied.'
[
13] It
is common cause that this matter proceeded to trial on the issue as
separated in terms of rule 33(4). No evidence was led at
the trial.
Notwithstanding the fact that no evidence regarding the context and
the special circumstances surrounding the utterance
of these words
was led, the court below
found the alleged
words to be defamatory of the respondent. Furthermore, the court
below found the words to be wrongful and to have
been uttered with
animus iniuriandi.
[1
4] It
is necessary to recall that the respondent did not rely on the
alleged words as being defamatory
per
se
. The respondent
averred in paragraph 9 of the particulars of claim that these words
were defamatory because of the context of the
meeting, his position
at the meeting and the manner in which they were uttered. In other
words the respondent pleaded special circumstances
giving rise to an
innuendo. Based on this context, the respondent averred that the
alleged words were intended to mean and were understood
by him and
the members at that meeting to mean that he was:
unable to perform his duties in a professional manner;
and
although a member of the Royal Bafokeng Nation, was
deemed an
undesired person on the premises of the Royal Bafokeng
Nation; and
not even worthy of proper disciplinary action and/or
the rules of natural justice.
[15
] It
should be clear from the court order dated 25 September 2008 that the
issues for separation in terms of rule 33(4) were restricted
to
paragraph 7 of the particulars of claim. The appellants' first prayer
unduly limited the issue to be separated to the words as
set out in
paragraph 7 of the particulars of claim. No reference is made to
paragraph 9 which sets out the context under which the
words were
uttered and the innuendo which the respondent attributes to the words
uttered. It is clear to me that this was a mischaracterisation
of the
issues pleaded by the respondent. Given the issues as pleaded by the
respondent, it is not possible to determine if the alleged
words
uttered about the respondent are capable of bearing the meaning
attributed to them in the innuendo without any evidence of
the
background facts being led. This accords with the
dictum
by Colman J in
Hassen
v Post Newspaper (Pty) Ltd & others
1965
(3) SA 562
at 566G-H where he stated:
'
When
a secondary meaning is relied upon, evidence is necessary because the
plaintiff must prove the special circumstances by reason
whereof the
published matter would, to those aware of the special circumstances,
bear the secondary meaning relied upon. The plaintiff
must prove,
further, upon a balance of probabilities, that there were persons,
among those to whom the publication was made, who
were aware of the
special circumstances, and to whom, it can therefore be inferred, the
publication is likely to have conveyed the
imputation relied upon.'
[16
] The
logical conclusion is that the court below erred in attempting to
determine the meaning of the words used without any evidence
of the
special circumstances being led. It follows that the order of the
court below has to be set aside so that the respondent can
be
afforded the opportunity to lead the necessary evidence regarding the
special circumstances and context under which the alleged
words were
uttered in order to determine whether the meaning attributed to them
in the innuendo by the respondent is defamatory or
not.
[17
] Based
on the wording of the order of separation dated 25 September 2008,
both counsel are
ad
idem
that the
learned Judge President went beyond what he was required to decide.
Evidently he was not required to determine the issues
of wrongfulness
and
animus
iniuriandi
at that
stage. He was only required to determine if the words uttered were
defamatory
per se
or
not. I agree that the learned Judge President erred in deciding
issues which were not before him.
[1
8] What
remains for consideration is the issue of costs. The general rule is
that ordinarily costs will follow the result unless there
are
exceptional circumstances dictating otherwise. However, this rule is
not inflexible. It is equally trite that costs are discretionary.
Considerations of fairness and justice might, in appropriate
circumstances, dictate otherwise.
[19] Given the peculiar circumstances
of this case, I am of the view that it would be unfair and unjust to
award the appellants costs
in this matter. It is common cause that it
is the appellants who sought and obtained an order for separation of
issues. It is the
appellants who settled the terms of that order. The
respondent played no role in that application. I have already found
that the
respondent's case was mischaracterised in the application
for separation of issues. This led to the appellants obtaining a
wrong
order which did not take proper account of the respondent's
pleaded case. It is this order which led the court below to decide
the
matter on the narrow and incorrect basis chosen by the
appellants. I do not think that the mere fact that the respondent did
not
oppose that application is sufficient reason for him to be
mulcted with the costs. It is important not to loose sight of the
fact
that in the application for separation of issues, the appellant
had warned the respondent that in the event that he might oppose
the
application, they would ask for an order of costs against him. Why
should the respondent who exercised his option not to oppose
the
application, probably to avoid attracting a cost order, be made to
pay the costs he tried to avoid incurring. Aggrieved by the
decision
of the court below, the appellants took the matter on appeal to this
court. It is clear to me that it is the appellants
who determined the
course which this matter took culminating in the appeal before us. To
my mind justice and fairness demand that
the appellants be ordered to
pay all the costs including the costs of appeal.
[
20] A
court hearing an application for a separation of issues in terms of
rule 33(4) has a duty to satisfy itself that the issues
to be tried
are clearly circumscribed to avoid any confusion. It follows that a
court seized with such an application has a duty
to carefully
consider the application to determine whether it will facilitate the
proper, convenient and expeditious disposal of
litigation. The notion
of convenience is much broader than mere facility or ease or
expedience. Such a court should also take due
cognisance of whether
separation is appropriate and fair to all the parties. In addition
the court considering an application for
separation is also obliged,
in the interests of fairness, to consider the advantages and
disadvantages which might flow from such
separation. Where there is a
likelihood that such separation might cause the other party some
prejudice, the court may, in the exercise
of its discretion, refuse
to order separation. Crucially in deciding whether to grant the order
or not the court has a discretion
which must be exercised
judiciously. The court cannot simply grant such an application
because it is unopposed. I regret to say that
the court below failed
in this respect. See
Denel
(Edms) Bpk v Vorster
2004
(4) SA 481
(SCA) para 3.
[
21] Based
on the conclusions made above, I make the following order:
1. The appeal is allowed to th
is
extent:
(a)
The
order of the court below is set aside.
(b)
The
appellants are ordered to pay the costs of the hearing of the issues
which were separated in terms of rule 33(4), jointly and
severally.
2. The matter is referred back to the
court below for trial.
3. The appellants are ordered to pay the costs of appeal
jointly and severally.
___________________
L O BOSIELO
JUDGE OF APPEAL
HEHER JA:
[22] In
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A) at 536A-C this Court held that, generally speaking, a
non-appealable decision (ruling) is a decision which is not final
(because
the court of first instance is entitled to alter it), nor
definitive of the rights of the parties nor has the effect of
disposing
off at least a substantial portion of the relief claimed in
the main proceedings.
[23] Because I am of the view that, at least, the second
and third legs of that dictum apply to the present matter, it follows
that
I would strike the appeal from the roll with costs. My reasons
are, in brief, as follows.
[24] The application under rule 33(4)
should neither have been made nor granted. The separation of the
issues as formulated was a
hypothetical exercise. The plaintiffâs
case was not dependent on the meaning of the alleged defamatory words
construed in isolation.
His case was that the words, in the context
in which they were spoken and heard, were intended and understood as
defamatory of him.
That was a perfectly acceptable way of pleading.
1
The defendant took no exception to it.
2
The proof of the plaintiffâs allegation depended on the evidence
which he adduced of the âcontextâ, which he identified in
his
particulars of claim as relating to âthe meetingâ, the
âplaintiffâs position in the meetingâ and âthe first
defendantâs
behaviour towards the plaintiffâ. Within those limits
the plaintiff was free to prove facts which conduced to a defamatory
intention
and understanding in the words he attributed to the first
defendant, the final decision being that of the court.
3
[25] But the rule 33(4) application attempted to have
the case decided without evidence, not as an exception taken at the
beginning
of the trial, but simply as a preliminary question to be
answered. Because of the manner of pleading of the plaintiffâs case
the
answer to
the question was an irrelevance that carried the trial
nowhere. The defendant was wholly responsible for the application and
his counselâs
submission to us that the plaintiff should have
opposed the application does not mitigate his culpability.
[26] The fact that the learned judge erred in arriving
at his conclusion by assuming that the context had been proved and
was such
as to imbue the words with a defamatory meaning, does not
mean that his final word has been expressed on the pleaded issues.
Once
such evidence as the parties may wish to place before the court
has been considered and the context, if any, established, a proper
appraisal can be undertaken of the real issues.
______________
J A Heher
Judge Of Appeal
APPEARANCES:
For appellant: J W G Campbell SC
Q R Mashabane
Instructed by:
Bell
Dewar Inc
c/o Kgomo, Mokhetle & Tlou
,
Mafikeng
Webbers, Bloemfontein
For respondent: B P Geach
Instructed by: Moloto Weiss Inc
c/o Smit Stanton
Inc, Mafikeng
Lovius-Block Inc, Bloemfontein
1
Because the plaintiff, having pleaded ambiguous language, was, in
effect relying on a context which lifted his words out of the
non-defamatory sense and tinged them with the colour of defamation;
and cf
Hassen v Post Newspapers (Pty) Ltd
1965 (3) SA 562
(W)
at 566F-H.
2
Indeed he would have been hard-pressed to argue such an exception in
the light of the authorities referred to by this Court in
Coulson
v Rapport Uitgewers (Edms) Bpk
1979 (3) SA 286
(A) at 294B-295H.
3
Sutter v Brown
1926 AD 155
at 166
in fine
â 167.