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[2022] ZAGPPHC 252
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Munthali v Passenger Rail Agency of South Africa (23083/2021) [2022] ZAGPPHC 252; [2022] 8 BLLR 769 (GP) (13 April 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
13
APRIL 2022
CASE NO:
23083/2021
In
the matter between:
NQOBILE
PEARL
MUNTHALI
Plaintiff
and
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
Defendant
JUDGMENT
This matter has been heard via
MS Teams and disposed of in terms of the directives of the Judge
President of this Division. The order
has been handed down via MS
Teams and the written Judgment is now distributed electronically.
RETIEF
AJ
:
INTRODUCTION
[1]
This is an opposed application in which the
Defendant has raised an
exception to the Plaintiff’s particulars of claim on the ground
that the particulars of claim lack the
necessary averments to sustain
a cause of action as against the Defendant.
[2]
The Plaintiff claims punitive damages framed
in delict alternatively
constitutional punitive damages, further in the alternative loss of
earnings arising from two published statements
which, according to
the Plaintiff are unlawful and wrongful intending to injure the
Plaintiff’s dignity and reputation.
[3]
The first statement concerns the publication
of an internal notice
dated the 12 June 2019 (“
internal notice
”) and the second
statement, the publication of a media statement dated 30 January 2021
(“
media statement
”).
[4]
The Defendant took
exception to the Plaintiff’s claim based on both the publications
stating that they were not wrongful and defamatory.
Both the parties
agreed that the Court’s enquiry
vis-à-vis
the publications is confined to the element of wrongfulness as
reiterated in
Holomisa
.
[1]
[5]
The Defendant’s Counsel however in his heads
of argument and in
argument, expanded the complaint and thus the Court’s enquiry, to
include the  publication of the internal
notice as the
Plaintiff, although referring to the internal notice in the
particulars of claim as annexure “C”, failed to attach
it. The
Defendant’s exception however failed to deal with it specifically
as a ground.
[6]
Accepting that an
exception is a pleading
[2]
and that the Defendant is free to frame the exception in any way it
chooses, the Defendant is bound by the manner in which the case
is
made out. The Defendant’s Counsel was asked to direct the Court to
the distinct cause relating to annexure “C” in its exception.
None existed. The Defendant’s Counsel did not move for an
amendment.
[7]
The Plaintiff in turn did
attach a copy of annexure “C”, being the internal notice itself
to its particulars of claim. Admittedly
it was a very unclear and
poor copy. Nonetheless, the Plaintiff too incorporated the entire
content of annexure “C” itself into
the body of the particulars.
The Defendant’s notice of exception did not attack the publication
“C” nor the terms of the internal
notice. Having regard to all
the circumstances I therefore declined to entertain a contention that
was not covered by the grounds
of the exception
[3]
and I proceed on the basis of the causes raised in the notice of
exception only.
[8]
Before dealing with the Defendant’s exception
it is important to
deal saliently with the background facts of the matter.
Background on the pleaded
facts
[9]
The Plaintiff is a high-ranking employee of
the Defendant. She
commenced her employment with the Defendant as a Chief Information
Officer with effect from  May 2009. Throughout
the tenure of the
Plaintiff’s employment with the Defendant, the Plaintiff occupied
various other senior and acting executive positions.
With effect from
August 2014, the Plaintiff assumed the position of Chief Executive
Officer at PRASA Development Foundation. This
position was declared
extant by the Labour Court of South Africa.
[10]
However, on 11 June 2019, the Plaintiff’s contract of employment
was suspended and on 12 June 2019, the Defendant announced her
suspension to approximately 15 000 of her fellow employees by
publishing the internal notice. The internal notice announced the
following:
“
The suspension is made with
immediate effect. The suspension is in line with the commitment to
good corporate governance and the eradication
of irregularities with
the organisation.
PRASA presumes innocence until
due process have been completed.”
[11]
This is the content of the internal notice being the subject
matter
referred to in the Defendant’s exception.
[12]
Subsequent to the immediate suspension in June 2019 no disciplinary
proceedings were initiated against the Plaintiff.
[13]
On 31 July 2020 the Plaintiff received notification that her
suspension had been lifted, that disciplinary charges had been
withdrawn and that she was to remain on paid leave pending a
resolution
between the parties.
[14]
The Defendant did not circulate an internal notice of withdrawal
of
suspension to inform its employees as it had done with the immediate
suspension nor was a resolution between the parties forthcoming.
[15]
Instead, and on 29 January 2021, the Plaintiff was notified
that her
employment contract was terminated with immediate effect and as a
direct result thereof and on 30 January 2021, the Defendant
now
issued the media notice.
[16]
The Defendant published a media statement to the public as
well as
its employees announcing,
inter alia
that:
“
PRASA Board of Control has
embarked on a review of contract of executives and other senior
managers. Pursuant to the review process,
it transpired upon analysis
of employment contracts of executors that some of them (executives)
ought to have left PRASA years ago.”
[17]
The Board also observed that the certain executives had been
aware at
all material times that their employment contracts were for a term
not exceeding 5 (five) years. The Board stated that the
executives
capitalised on the instability of the Board  culminating in
their extended and unlawful stay with the Defendant.
[18]
The Plaintiff’s employment was terminated with immediate
effect and the media notice stated further that:
“
Ms Pearl Munthali, Chief
executive Officer of PRASA Foundation, has been on suspension for
alleged misconduct
(own emphasis)
.
Upon perusal of records, it transpired that Ms Munthali’s
contract ought to have been terminated upon the expiry of a five year
term
.”
[19]
The media statement being the subject matter raised in the
Defendant’s exception.
[20]
Subsequent to the media statement and on 24 February 2021 the
Labour
Court ordered the Defendant to reinstate the Plaintiff’s employment
contract retrospectively from 29 January 2021.
Grounds raised in the
exception
[21]
The thrust of the
Defendant’s exception was that the Plaintiff’s particulars of
claim did not disclose a cause of action. On grounds
that no cause of
action is disclosed the Court must accept that all the averments in
the particulars of claim are correct.
[4]
[22]
Against this backdrop I now deal with the grounds raised by
the
Defendant in relation to the internal notice.
[23]
The Defendant’s complaint relating to the internal notice
was that
the internal notice was merely notifying the Defendant’s employees
that the Plaintiff had been put on “precautionary”
suspension and
to announce that the Plaintiff remained innocent until due process
had been completed.
[24]
The Defendant contends that the Defendant’s employees could
not
have understood from the content of the internal notice that the
Plaintiff was guilty of misconduct nor understood by Defendant’s
employees to defame her.
[25]
In argument, Defendant’s
Counsel, relying on the test of a reasonable reader, objectively
speaking, argued that the reasonable reader
could not have understood
the words in the internal notice in the ordinary sense or by
implication thereof, to be defamatory of the
Plaintiff, because at
the time, the Plaintiff was indeed facing unverified allegations and
had not been found guilty of misconduct
yet (i.e., at the time that
the internal notice was publicised). Therefore, the argument went,
that the reasonable reader could have
understood  that the
Plaintiff was simply placed on precautionary suspension
[5]
which might have not been understood by the Defendant’s employees
to undermine, subvert, or impair the Plaintiff’s good name,
reputation, or esteem.
[6]
[26]
Conversely, the Plaintiff in paragraph 6 of her Plaintiff’s
particulars of claim  alleges that the internal notice was
false, malicious, and defamatory in that at the time of the internal
notice the Defendant had no legal or factual foundation for the
complaint against the Plaintiff and after the fact took no further
steps of disciplinary procedures against the Defendant. In
consequence, the announcement without due process was defamatory and
wrongful.
[27]
In amplification, the Plaintiff deals with a factual foundation
and
reasons,
supra
, at paragraphs 6.2 to 6.7 of her particulars of
claim and relying on the suspension announced in the internal notice
of 12 June 2019
being lifted on 31 July 2020 without any disciplinary
steps being taken by the Defendant.
[28]
I now deal with the enquiry into whether the internal notice
is
defamatory.
[29]
It is well established
that to determine whether a publication is defamatory and therefore
prima facie
wrongful is a two-stage enquiry. The first enquiry is to determine
the meaning of the publication as a matter of interpretation and
the
second is whether the meaning is defamatory.
[7]
[30]
To answer the first
question the Court must determine the natural and ordinary meaning of
the publication:
[8]
how
might
[9]
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, i.e., what a reasonable person may
infer from it.
[31]
Of importance it may also
be accepted that the reasonable person must be contextualised and
that one is not concerned with a purely
abstract exercise.
[10]
In other words, one might have regard to the nature of the audience,
and in this case in relation to the internal notice, have regard
to
the fact that it was an internal notice in which 15 000 other
employees, some her subordinates who were informed.
[32]
Applying the first
stage, the Plaintiff relying on
Le
Roux v Dey
[11]
stated that because the test is objective and an employee is the
legal construct of the “reasonable”, “average” or “ordinary”
person, the question is whether the statement was calculated (in the
sense of likelihood) to expose a person to hatred, contempt,
or
ridicule.
[33]
Applying the objective
guide in
Le Roux v Dey
and on the proper interpretation of the language used in the
Sutter
[12]
matter, the Plaintiff contends as to meaning that because the
internal notice uses the word “suspended” and that the use of the
word is in line with the Defendant’s objective to eradicate
“irregularities”, the normal meaning of the words
[13]
charges the Plaintiff with dishonest and improper conduct of such a
nature as to warrant suspension.
[34]
The Plaintiff contended further the fact that because the words
“immediate effect” are used in relation to the suspension, the
Defendant by implication conveyed that the suspension was necessary
to prevent further harm.
[35]
The Defendant in argument did not deal with the meaning of
the
internal notice as a matter of interpretation by dealing with the
ordinary meaning of the words used in context, but:
35.1
rather imported a new word namely “precautionary” before the word
suspension,
thereby creating its own narrative other than what
de
facto
was published. The narrative was used to support the
argument that the reasonable person could  view the suspension
in the light
of an anticipated misconduct. However, no qualification
to describe the type of suspension is published other than to state
that
the suspension is in line with the commitment to good corporate
governance
and
the eradication of irregularities within the
organisation. The inference being that the suspension is in line with
something improper.
35.2
In argument the Defendant failed to argue that the ordinary meaning
contextually
assigned to the words “irregularity” and
“suspension” could not possess the ordinary meaning assigned to
it as argued by
the Plaintiff.
[36]
Instead, the Defendant relies on its intent when publishing
the
internal notice to dictate the meaning thereof which is misplaced, as
the ordinary meaning of the words in context as contained
in the
internal notice itself is what determines how it may be interpreted
by the reasonable person. I accept the Plaintiff’s argument
in this
regard.
[37]
I now turn to the second enquiry of defamation of the publication.
In
other words, whether it might have “the tendency” or is
calculated to undermine the status, good name, or reputation of the
Plaintiff.
[38]
Neethling explains what
this means with the reference to ‘authority’:
[14]
“
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 or defamation.
In fact, generally
[15]
the witness may not even be asked how to understand the words or
behaviour
…”. In
consequence, it is
the
probability of injury rather than actual injury
as the issue. Objectively speaking, whether in the opinion of the
reasonable man, the esteem which the person enjoyed may be (in
the
case of an exception) or may have the tendency to adversely affected
the person’s esteem.
[39]
The Defendant essentially contends that because the internal
notice
was intended to be a precautionary suspension and that the Defendant
acted on the presumption of the Plaintiff’s innocence
until due
process had been completed, the internal notice could not have been
understood by the Defendant’s employees that the
Plaintiff was
guilty of any misconduct nor understood to defame her.
[40]
The Plaintiff however contended that because the internal notice
was
not publicised in the strictest of confidence, but rather to
approximately 15 000 employees over which the Plaintiff exercised
a
position of authority for a substantial number of years, it was the
intention by the Defendant to minimise the Plaintiff’s standing
with her subordinates. I too, can’t imagine that in the
circumstances to announce the suspension of a high-ranking official
within
an organisation, without first verifying the allegations, as
contended by the Defendant’s Counsel, could serve to the advantage
of the Plaintiff.
[41]
Furthermore, that because the suspension operated with immediate
effect, it inferred that the Plaintiff’s conduct was of such a
serious nature that the suspension was necessary to prevent further
harm.
[42]
Having regard to the arguments presented, the internal notice
announces to the ordinary employees that, in line with, alternatively
in terms of its commitment to corporate governance and the
eradication of irregularities, the suspension of a high-ranking
executive with immediate effect objectively viewed might not  leave
the esteem which the Plaintiff once  enjoyed as the executive in
the eyes of the reader in a more advantageous position.
[43]
In consequence, the internal notice could possess the tendency
to
undermine the Plaintiff’s status, good name and reputation with the
organisation.
[44]
The Defendant’s exception with regard to the internal notice
not
being defamatory must fail.
[45]
I now turn to the media statement applying the exact two-stage
enquiry.
[46]
The Defendant contends that the content of the media statement
is not
defamatory and in doing so essentially relies on the three main
reasons, namely:
46.1
That the Plaintiff was aware of, drafted, and during her position as
Group
Executive: Human Capital Management in 2015, was responsible
for implementing and monitoring the recruitment and selection policy
of 2018 (“
Policy
”) adopted by the Defendant’s Board. The
Policy stated that the appointment of senior and general management
and executive positions,
was for a fixed term (a period not exceeding
5 (five) years).
46.2
The Board was under the impression that the Plaintiff’s contract
had
lapsed by the operation of law as contemplated in the Policy.
46.3
The statement that the Plaintiff has been on suspension due to
allegations
of misconduct levelled against her is factually correct.
[47]
The first two reasons relied upon by the Defendant in no way
advances
the Defendant’s complaint as the media statement refers to the
Board of Control of the Defendant ascertaining knowledge
via
a
review of executive and other senior manager’s contracts. The media
statement makes no reference to the Policy relied upon by
the
Defendant in its exception. In any event, absent the reference to the
Policy, knowledge of a set of facts by the Plaintiff in
not the test,
but the meaning and/or inferred meaning of media statement and
whether the publication might have the tendency to is
calculated to
undermine the status, good name, or reputation of the Plaintiff.
[48]
In dealing with what was published and the ordinary meaning
it is
imperative to deal with the media statement as a whole. Of
significance is that it is headed  “PRASA Terminates Contracts
of Executives”. The heading immediately creates the impression that
the media statement deals with the reasons ‘why’ and ‘which’
executives’ contracts were terminated.
[49]
The content of the media statement does not disappoint and
contains
the ‘why’ and which’ facts. The content deals with the factual
position, namely: that all executives of the Defendant
are employed
for a period not exceeding 5 (five) years. It then deals with the
Board’s observations as applied to the executives
under contract of
employment. The Board’s observations are recorded, namely: certain
executives “unlawfully’ overstayed their
welcome by “capitalising
on the instability of the Board” and inferred that
as a direct
result thereof the “following executives” employment contracts
were terminated with immediate effect (as at 29 January 2021).
Following the statement aforesaid, and with the use of a semi colon,
as to commence with the a list, three names of executives were
named,
including the Plaintiff.
[50]
The ordinary meaning of the words and the structure of the
content of
the media statement includes the Plaintiff as one of the executives
who knowingly and unlawfully overstayed her welcome.
The meaning
under the circumstances of and including the reference to her
suspension due to alleged misconduct may leave the reasonable
reader
with a unfavourable view of the Plaintiff. As a consequence it is
defamatory.
[51]
In the premises the Defendant’s second ground of exception
must
fail.
[52]
The inescapable consequence is that the Defendant’s exception
must
fail with costs and I therefore make the following order:
1.
The Defendant’s exception is dismissed
with costs.
L.A. RETIEF
Acting Judge, High Court
Pretoria
Appearances
:
Plaintiff’s
Counsel:
Advocate A.
Foster
Email: law@afoster.co.za
Mobile: 084 471 6686
Plaintiff’s
Attorney:
Eliott Attorneys
Plaintiff’s
Ref:
Alex Eliott
Defendant’s
Counsel:
Advocate J. Hlongwane
Email:
jhlongwane@duma.nokwe.co.za
Mobile: 066 455 8411
Defendant’s
Attorney:
De Swart Myambo Hlahla Attorneys
Defendant’s
Ref:
Mt T HLAHLA/QS/P1023
Date
of Hearing:
22 February 2022
Date
of Judgment:
25 February
2022
Date
of Written Judgment:     13 April 2022
[1]
Khumalo
and Others v Holomisa
2002 (5) SA 1
(CC) at 413G.
[2]
Haarhoff
v Wakefield
1955 (2)
SA 425E.
[3]
Inkin
v Borehole Drillers
1994 (2) SA 366
at 373;
Jowell
v Bramwell-Jones and Others
1988 (1) SA 836 (W).
[4]
Makgae
v Sentraboer Kooperatief (Bpk)
1981 (4) SA 239
(T) at 244H-245C.
[5]
Reason 2.2 of First Ground of
Exception, Notice of Exception, Caselines 003-4.
[6]
Reason 2.7 of First Ground of
Exception, Notice of Exception, Caselines 003-4.
[7]
FDJ Brandt “Defamation” in
7
Lawsa
2Ed,
par 237, although on exception – “may be” .
[8]
Argus
Printing and Publishers Company Limited v Esselen’s Estate
[1993] ZSA 205: [194]
2 All SA 160
(SCA);
1994 (2) SA 1
(A) at
20E-21B.
[9]
The word ‘might’ is used
because we are dealing with an exception. At the trial stage
the
test is different.
[10]
Mthembi-Mahanyele
v Mail & Guardian Limited
[2004] ZASCA 64.
[11]
2011 (3) SA 274
(CC) at para 90-91
(A).
[12]
Sutter
v Brown
1926 AD 155
at 163.
[13]
Definitions
as defined by Merriam-Webster: “Irregularity” meaning “something
that is irregular (such as improper or dishonest”),
“suspension”
meaning temporarily withhold, as of belief or decision, remove as
from office or privileges or suspend.
[14]
J Burchell ‘
The
Law of Defamation in South Africa’
(1985), pg 136.
[15]
Unlike an innuendo.