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2023
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[2023] ZAECMHC 5
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Maliza v G4S Cash Solutions (Pty) Ltd (4086/2019) [2023] ZAECMHC 5; [2023] 4 BLLR 377 (ECM) (2 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO: 4086/2019
In
the matter between:
BONGANI
MALIZA
Plaintiff
and
G4S
CASH SOLUTIONS (PTY) LTD
First Defendant
KEVIN
GOVENDER
Second Defendant
JUDGMENT
Rugunanan
J
[1]
The plaintiff instituted action against the
defendants claiming damages jointly and severally for defamation and
consequent reputational
harm in the sum of R2 million. His claim
arose in the circumstances set out hereunder.
[2]
The plaintiff is a resident of Mthatha and
a former employee of the first defendant. In circumstances unrelated
to the merits of
this matter he ceased being employed by the first
defendant on 23 April 2019.
[3]
The first defendant, G4S is a private
company in Mthatha (hereinafter referred to either as ‘G4S’
or the first defendant,
depending on the appropriate context). It has
a footprint in the greater area for providing cash-in-transit
services. The second
defendant, Mr Kevin Govender, is an employee of
the first defendant and discharges duties in the capacity of its
regional director.
[4]
During the period March 2018 to November
2018 the first defendant experienced a sudden spate of robberies
and/or attempted robberies
involving its cash-in-transit vehicles.
[5]
The case for defamation that is alleged by
the plaintiff occurred during a conference call on 14 November 2018
during which the
plaintiff alleges that the second defendant
wrongfully defamed him by making the following factual statement:
‘
You
are a robber and every staff member is afraid of you.’
[6]
Among those present on the conference call,
plaintiff alleges were staff members and members of the public. The
conference call
took place in the local office of the first defendant
attended by a manager, Mr Clint Dippenaar together with the plaintiff
and
two employees of the first defendant, namely Mr Bangile Ndila and
Mr Benedict Shange. The conference call was hosted remotely
from
another province by the second defendant Mr Kevin Anand Govender.
[7]
It is not disputed by the defendants that
the conference call took place among those aforementioned in
attendance.
[8]
It is denied however that the statement
alleged by the plaintiff was uttered by the second defendant. In
amplification of the denial
the defendants plead that it had come to
their attention that the plaintiff could possibly have been involved
in or associated
with robberies. Regard being had to the nature of
the business conducted by the first defendant, the information
concerning the
plaintiff was viewed in a serious light and required
investigation.
The
legal position and the issue to be decided
[9]
I propose to deal with the stages of
enquiry in a claim based on defamation before identifying the issue
in terms of which the matter
falls to be decided.
[10]
Defamation
consists of the wrongful and intentional publication of a defamatory
statement concerning the plaintiff.
[1]
[11]
There is a two-stage enquiry for
determining whether the statement is defamatory.
[12]
In
the first stage, the ordinary meaning of the words used must be
established. In determining the meaning of the statement complained
of, the court is not concerned with the meaning which the maker of
the statement intended to convey, nor is it concerned with the
meaning given thereto by the person to whom it was published. It is
irrelevant whether the person believed the statement to be
true or
whether they thought less of the plaintiff.
[2]
The meaning of the statement is determined objectively by the legal
construct of the reasonable reader and is not a matter on which
evidence may be led.
[13]
In
the second stage, one asks whether that meaning was defamatory in
that it was likely to injure the good esteem in which the plaintiff
was held by the reasonable or average person to whom the statement
was published.
[3]
Once
publication of the defamatory statement has been proved, it is then
presumed that the publication was wrongful and published
with the
intention to injure (
animo
iniuriandi
).
A defendant seeking to avoid liability must raise a defence that
excludes, and must adduce admissible evidence rebutting, either
wrongfulness or intention.
[4]
Stated differently the onus rests on the defendant to establish
either that the publication was not wrongful or that it was not
published with the requisite intention.
[14]
The defendants deny that the alleged
statement was made. What this entails is that the issue that falls to
be decided at the outset
is whether the statement was made. For
reasons that follow the finding on this issue renders it unnecessary
to delve into the two-stage
enquiry.
[15]
A total of six witnesses testified during
trial. The plaintiff testified on his own behalf and called three
witnesses namely; Mr
Bangile Ndila, Mr Luxolo Sangqu, and Mr
Siphosake Vuso. Testifying for both defendants were Mr Kevin Anand
Govender (who also did
so in his capacity as second defendant) and Mr
Benedict Shange. Logically, the scope of the evidence of the
witnesses is confined
to the issue identified for determination.
[16]
The
denial by the defendants occasioned conflicting versions between the
parties. The following
dictum
in
National
Employers’ General Insurance Co Ltd v Jagers
[5]
lays down the proper approach for determining the facts in a civil
trial:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case the
onus
can ordinarily only be discharged by adducing credible evidence to
support the case of the party on whom the onus rests. In a civil
case
the
onus
is obviously not as heavy as in a criminal case, but nevertheless
where the
onus
rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he
satisfies
the Court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that
the other
version advanced by the Defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence
is true or
not the Court will weigh up and test the Plaintiff’s
allegations against the general probabilities. The estimate
of the
credibility of a witness will therefore be inextricably bound up with
the consideration of the probabilities of the case
and, if the
balance of probabilities favours the plaintiff, then the Court will
accept his version as being probably true. If however
the
probabilities are evenly balanced in the sense that they do not
favour the Plaintiff’s case any more than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is
true
and that the defendant’s version is false.”
The
evidence
[17]
To begin with, though maintaining that he
is proficient in English the plaintiff elected to testify in
IsiXhosa. He testified at
the outset that the second defendant who
chaired the conference call stated that it came to his ear that the
plaintiff is a robber
and causing people to be killed in the company.
The evidence even though given in translation is discordant with the
factual statement
as pleaded and quoted earlier in this judgment. At
no stage of his examination-in-chief did the plaintiff’s
testimony come
anywhere close to repeating verbatim what the second
defendant is alleged to have said, neither did he confirm what is set
out
in the particulars of claim.
[18]
In cross-examination, and as the
plaintiff’s testimony progressed, his evidence about what was
said to him by the second defendant,
excluded the imputation that he
is a robber and morphed somewhat into an obscure assertion that the
second defendant said that
he caused people to be killed. When it was
put to him directly that the version of the second defendant would be
that the utterance
or statement (as factually pleaded) was not made
at all, the plaintiff denied that version. I interpose to state that
it is somewhat
of a curious anomaly for the plaintiff to proffer a
denial when indications are that he could not clearly and accurately
recollect
the factual statement on which his case was pleaded and in
the same breath maintain that he understood what was said to him
during
the conference call.
[19]
In addition, the plaintiff conceded that at
the time of the conference call he knew that it was the first
defendant’s protocol
to act on information and investigate
matters involving cash in transit robberies and that the police would
also be solicited for
investigative assistance. He conceded that the
first defendant ‘must do something’ where the interests
of its employees
rendered it necessary to do so – suggesting by
implication that the first defendant could not adopt a supine
approach on
matters of safety. He conceded further that he had known
that a shop steward had raised concern with the first defendant about
his alleged involvement in the robberies. In this regard he took no
issue with it being put to him that it could have been employees
within the ranks of the shop stewards who may have made allegations
about his involvement in the alleged robberies.
[20]
When testifying, the second defendant Mr
Govender maintained in evidence-in-chief and during cross-examination
that he never made
the statement or utterance as pleaded by the
plaintiff. He testified that he brought it to the attention of the
plaintiff that
concerns were raised by shop stewards that the
plaintiff, and certain other individuals may possibly be involved,
that employees
were scared of the plaintiff and that the plaintiff
should be aware that the concerns were being investigated.
[21]
This version of the second defendant is
supported by the plaintiff’s own witness Mr Ndila’s whose
evidence was unequivocal.
He narrated that at the conference call the
second defendant laid it bare that the plaintiff was ‘suspected’
of the
robberies at the company and that the company was
‘investigating’.
[22]
Mr Shange who testified for the defendants
recounted that what was conveyed on the conference call was that the
second defendant
received information from sources, among them shop
stewards, to the effect that the plaintiff might be involved in
criminal activities.
He fairly agreed that it might be upsetting for
somebody to be investigated for possible involvement in criminal
activity but that
did not amount to the subject being labelled a
criminal.
[23]
Mention must be made of a further aspect of
the evidence. It pertains to a document contained in the defendants’
trial bundle.
Its heading is styled Subject – Suspicious
Activity of Staff Member’. The document is dated 14 November
2018 and bears
the plaintiff’s signature of receipt. Consistent
with the version of the second defendant, it states:
‘
The
purpose of the meeting was to discuss the following with Mr Bongani
Maliza
It
has come to the attention of the G4S SID Intelligence Department that
you could possibly be involved or associated with criminal
elements.
That
in the light of the business conducted by G4S, such activities are
regarded as suspicious.
That
the employee Mr Bongani Maliza is going to be monitored closely …’
[24]
The plaintiff alleged that the document was
signed at a later stage under duress and that it does not correctly
reflect what was
discussed. No evidential foundation was introduced
to support this rebuttal. It is moreover improbable that incorrect
facts would
have been recorded in the document in contemplation of
defending a defamation action instituted almost a year later. While
accepting
that the document is not a word- for- word transcript of
what was discussed during the conference call it is unmistakable in
its
recordial of an investigation or monitoring of the plaintiff.
[25]
In my assessment of the evidence, this is
certainly not a matter in which the probabilities are evenly
balanced. The plaintiff was
an unsatisfactory witness whose version
was not supported by Mr Ndila. As for Mr Sangqu and Mr Vuso, the
remaining witness called
by the plaintiff, they were clearly not
present on the conference call neither as employees of the first
defendant nor as members
of the public. Their evidence is therefore
irrelevant to the issue to be decided and does not warrant scrutiny.
[26]
In argument counsel for the defendants
correctly drew attention to three noteworthy aspects in evaluating
plaintiff’s credibility,
namely:
26.1
Under cross-examination he initially stated that he could not recall
being a victim during a cash-in-transit
heist whilst employed by G4S.
He later denied that he was present at any robbery involving G4S
transit vehicles. He conceded however
– after a specific
incident on 26 July 2018 at First National Bank Mthatha was put to
him – that he was present as
a G4S employee during that heist.
This would undoubtedly have been a traumatic experience and it is
improbable that he would have
plainly forgotten about it. That he was
present during the FNB incident is borne from the testimony of the
second defendant and
Mr Shange who both confirmed that he was
performing duties on behalf of G4S when that incident occurred.
26.2
The allegation is made in the particulars of claim that other members
of the public were present on the conference
call. This aspect was
not dealt with at all during the plaintiff’s evidence in chief.
Unable to explain how or what basis
this allegation had interceded in
his pleadings he conceded during cross-examination that there were no
members of the public present
and only those G4S employees mentioned
in the recordial of the aforementioned document that he had signed.
26.3
Again with reference to the particulars of claim, it is alleged that
the plaintiff was subsequently dismissed
from G4S for ‘issues
unrelated herein’. Stated otherwise he was dismissed for issues
unrelated to the disputed defamatory
statement that was made during
the conference call on 14 November 2018. A notice to attend a
disciplinary hearing and a notice
informing of the outcome of that
hearing (contained in the defendants’ trial bundle) both
confirm that the plaintiff was
dismissed for ‘gross misconduct’
– unrelated, as it were, to the issues in the particulars of
claim. Despite
confirming that he signed these documents he
maintained nonetheless in his evidence that his dismissal was related
to the conference
call.
[27]
The second defendant was an impressive
witness. He has a remarkable track record in the security industry
with years’ of accumulated
investigative acumen and experience.
He holds an elevated and responsible position within the structures
of the first defendant.
I need not traverse aspects of his evidence
relating to the first defendant’s
modus
operandi
when it investigates
security-related issues affecting its delivery of cash-in-transit
services. He answered questions skilfully
and methodically, without
hesitation, contradiction or prolixity. I have no hesitation in
concluding that he was a good witness.
[28]
On the appropriate test in
Jagers
I am unable to find that the plaintiff’s version is true and
accurate and therefore acceptable, and that the other version
advanced by the defendants is false or mistaken and falls to be
rejected. The basis of the plaintiff’s claim is founded on
the
allegation that the second defendant called him a robber and that
employees were afraid of him. That, on the probabilities
seen in the
light of the credibility of the witnesses, is not supported by the
overwhelming evidence that the second defendant
only related concerns
that had been raised with him by third parties for purposes of
investigating whether there may be any substance
to those concerns.
In the circumstances the balance of probabilities does not favour the
plaintiff – he has not discharged
the onus and I am unable to
accept his version as being probably true.
[29]
In the result, the plaintiff’s action
is dismissed with costs.
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Plaintiff:
B. Mwelase
B.Mwelase Attorneys
Mthatha
Tel: 073 370 0047 or
067 180 0045
Email:
mwelasebongile@gmail.com
(Ref: BM/R)
For
the Defendants:
G. Heroldt
Instructed
by
Eversheds Sutherland (SA) INC.
Sandton City
(Ref: H. Westman)
c/o
Smith Tabata Inc.
Tel: 047-531 2991
Email:
kara-lees@smithtabata.co.za
Mthatha
Dates
heard:
31 October, 1, 2 and 3 November 2022.
Date
delivered:
02 February 2023.
[1]
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC) para 18;
Du
Toit v Coetzee
2022 JDR 1555 (FB) paras 9-13.
[2]
Le
Roux v Dey
2011
(3) SA 274
(CC) para 89.
[3]
Economic
Freedom Fighters and Others v Manuel
2020 (3) SA 425
(SCA) para 30.
[4]
Economic
Freedom Fighters and Others v Manuel supra
para 36.
[5]
1984 (4) SA 437
(E) at 440D-G. See too
Mabona
& another v Minister of Law and Order & others
1988 (2) SA 654
(SE) at 662C-F;
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell et Cie &
others
2003 (1) SA 11
(SCA) para 5;
Dreyer
& another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) para 30.