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[2021] ZAGPPHC 443
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de Villiers v Minister of Justice and Constitutional Development and Another (57558/2014) [2021] ZAGPPHC 443 (2 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:57558/2014
In
the matter between:
PAUL
JACOBUS DAWID DE VILLIERS
PLAINTIFF
and
THE
MINISTER OF
JUSTICE
FIRST
DEFENDANT
AND
CONSTITUTIONAL DEVELOPMENT
ZINHLE
NDLOVU
SECOND
DEFENDANT
JUDGMENT
__________________________________________________________________
RAULINGA J
1.
Plaintiff issued summons against the
defendants on or about 5 August 2014 for
iniuria
and defamation, premised on an incident at the Magistrate Court,
Paulpietersburg. On 29 September 2011, when second defendant in
the
presence of the individuals alleged in paragraph 8 of the plaintiff’s
particulars of claim, amongst others, allegedly
accused plaintiff of
stealing books belonging to the Magistrate’s Court
Paulpietersburg and also stated that she would see
him rot in jail
for a long time.
2.
The plaintiff’s action is based on
the actio
iniuria,
which grants relief for any impairment of a person, the person’s
dignity or the reputation of the person.
3.
Albeit that plaintiff instituted two
separate claims, one for
iniuria
and the other for defamation, the plaintiff abandoned his second
claim for damages premised on
iniuria.
4.
The following issues are common cause, on
the pleadings, that:
4.1
The defendants’ special plea has been
abandoned;
4.2
There was an incident on 29 September 2011
at the Magistrate’s Court Paulpietersburg;
4.3
Both plaintiff and second defendant were
present;
4.4
Amongst others, second defendant asked to
check boxes belonging to the plaintiff as he was leaving the office
which plaintiff refused
to allow; and
4.5
The second defendant, at all relevant
times, acted within the course and scope of her employment with the
first defendant and the
first defendant is therefore vicariously
liable in the event that the court finds that the words complained
about were in fact
uttered by the second defendant.
5.
When the trial commenced, the defendants
also admitted that the second defendant had said to the plaintiff in
the presence of third
parties, that she will see him rot in jail for
a long time.
6.
The disputed facts are related to whether
second defendant had uttered the words mentioned in paragraph 4 of
plaintiff’s particulars
of claim and if publication thereof had
occurred.
7.
The plaintiff bears the onus to prove on a
balance of probabilities that the second defendant had accused him of
stealing books
belonging to the Magistrate’s Court
Paulpietersburg.
8.
In total, four witnesses were called, three
by the plaintiff and one by the defendants.
9.
The plaintiff testified that he is
currently a pensioner, having retired as Chief of the Magistrate’s
Paulpietersburg on 1
April 2011. When he retired he put his books in
boxes and stored them in a store room and locked it with a padlock.
He then handed
the key to Sibongile who was at that time a cleaner at
court.
10.
On 29 September 2011, he together with Mr
Fourie went to court to collect the boxes. When he asked for the keys
from Sibongile,
she told him that the second defendant took the key.
Whilst he was waiting with his back toward the wall, he immediately
noticed
that the door to the storeroom was suddenly opened. He is not
the one who opened the door. Upon entering the storeroom, he noticed
that some of the boxes were opened. He suspects it was the second
defendant or the officials of the Court who opened the boxes.
11.
Whilst he was waiting, a policeman
approached him with a case docket and informed him that the second
defendant opened a case of
housebreaking against him.
12.
After dropping the first load to his house,
before collecting the second load, he went to the police station and
requested Constable
De Wet and Warrant Office De Wet to accompany him
to the Court because he suspected that the second defendant could
cause a commotion.
13.
Whist he was standing outside, the second
defendant came to the bakkie and told him that he was a thief and
that he would rot in
jail for a very long time. He never responded to
what the second defendant was saying because he was avoiding a
confrontation.
14.
Under cross-examination, he confirmed that
he knew the process known as handover, which is done when a person
retires or resigns
from the Court. That process is supposed to be
conducted by the second defendant every six months, but she did not
do so. He refused
the second defendant to check the boxes. He
confirmed that the door of the store-room was locked when he arrived.
After the second
load he bought a new lock, locked the room and gave
the keys to Sibongile. He said all the books were in the store-room.
He denied
that he broke the padlock with a bolt cutter or a pair of
pliers. He thought one of Mr Fourie’s labourers broke the lock.
He denied that Constable De Wet saw him breaking the padlock.
15.
The second witness called by the plaintiff
was Constable De Wet, who testified that on that day, plaintiff asked
him to assist him
at Court, to witness when he was removing some of
his personal belongings from the store-room. He requested Warrant
Officer De
wet, (who is his wife) to accompany him to Court.
16.
When he arrived at Court, the store room
was already opened. The second defendant at that stage was extremely
upset. She insisted
that she wanted to inspect the boxes in order to
check the books which were missing. She said that the plaintiff was
stealing the
books and further, that he will die and rot in jail.
Thereafter the second defendant left for the police station. Mr
Fourie and
Mr Lington (who has since passed on) were present when the
second defendant uttered those words.
17.
Under cross-examination, he confirmed that
he made a statement appearing on page 23 of the bundle. Further, that
what he testified
was the truth. In the statement he said; “
Mr
De Villiers then took a bolt cutter and clipped the padlock he also
used a key which was handed to by the cleaner Sibongile on
which Mr
De Villiers opened the store room and gained entrance”
In reply, Constable De
Wet said that he might have said this as conveyed to him by Mr
Fourie. Further, that everybody was upset.
It was Fourie who saw the
plaintiff break the padlock- he didn’t see him, himself. He
said that it was a misprint. However,
he could not explain how the
“misprint” came about.
18.
The third witness to testify was W/O De
Wet. That upon her arrival there were many people in the court
premises. She could see that
the second defendant was upset. The
second defendant said that the plaintiff will rot in jail. The boxes
were properly sealed.
After that, all boxes were loaded in the
bakkie. Plaintiff used a new padlock to lock and hand keys to the
cleaner.
19.
Under cross-examination, she confirmed that
all the boxes were sealed. Further, that the second defendant said
that the plaintiff
was stealing the books.
20.
The second defendant testified on behalf of
the defendants. She testified that she was the Court Manager and her
duties amongst
others entailed that when people leave the Court she
checks all the properties belonging to the Court. That this did not
happen
when the plaintiff left because when she asked him, he denied
and told her that the same process was not followed when he assumed
his duties.
21.
That on 29 September 2011, she arrived at
work in the morning. At about 10H00 Sibongile, who was a cleaner came
to her office and
said she had been sent by the plaintiff, who wanted
keys to take out his personal belongings. She went outside and saw a
van loading
boxes and asked him what the boxes were for and asked to
check them. The plaintiff told her that the boxes were his. He asked
for
a key to open a strong room to collect other boxes. She told him
that in the event he wants to take the boxes, she would like to
check
them. The plaintiff refused her to check or inspect the boxes. The
boxes were loaded in the van of Mr Loudorf who was the
sheriff.
22.
Later at about 10H40, the plaintiff came
back in the company of Constable De Wet and W/O De Wet. Constable De
Wet asked her why
she was refusing to open the strong room, and she
explained to him that she wanted to check the boxes first. She
thereafter asked
the plaintiff to open the boxes and told him she
would not open if he did not give her permission to search. When
plaintiff refused
to open the boxes she phoned her supervisor who
advised her that the plaintiff must do a handover. When she advised
the plaintiff
about the handover, he still refused, she then noticed
that the plaintiff had a big bolt cutter in his possession,
apparently ready
to cut off the padlock. She then proceeded to the
police station and opened a charge of housebreaking against him.
23.
She came back, and on her
arrival the plaintiff had already broken the padlock and was in the
process of opening the shooter of
the door. The plaintiff loaded the
boxes in a van and left. He later came back with a new padlock and
threw the keys to the second
defendant. The second defendant then
told him that she was going to the police station to open a case
against him. The plaintiff
said that, that case won’t fly since
he knew the personnel working there. At the police station she opened
a housebreaking
case.
24.
She confirmed that indeed she told the
plaintiff that he would rot in jail as in the past he used to tell
her that people who commit
housebreaking would rot in jail. She does
not know what happened to the case. Constable De Wet told her that he
was busy taking
the finger prints.
25.
Under cross- examination, she said
that she didn’t open a case of theft, but only of
housebreaking. When she was referred
to page 16 of the trial bundle
in which it appears that she opened a case of housebreaking and
theft, she said that the statement
was taking down by the
police-officer- It was not her handwriting. The police-office
attended to the docket.
26.
She was referred to paragraph 3 of a plea,
an answer to paragraphs 4 to 7 of the particulars of claim wherein
the contents of the
particulars of claim were denied and asked to
explain the discrepancy as during her testimony she admitted that she
told the plaintiff
that he would rot in jail. She said she had no
answer to it.
27.
She denied that when Constable De Wet and
W/O De Wet and plaintiff arrived, the strong-room was opened. She
denied that she said
that the plaintiff stole the books in the
presence of W/O De Wet.
28.
It was submitted on behalf of the plaintiff
that the second defendant had uttered the words mentioned in
paragraph 4 of the plaintiff’s
particulars of claim and that
publication thereof had occurred, in that the second defendant has
admitted that she told the plaintiff
that he would rot in jail for a
long time. As such publication has occurred in the presence of third
parties resulting in the defamation
of the plaintiff.
29.
On the contrary, the defendants argue that
the second defendant denies having told the plaintiff that he is a
thief and that he
stole books from the Magistrate’s Court,
Paupietersburg.
30.
As stated above in this judgment, the
plaintiff bears the onus to prove that the violation occurred and,
the defendant will have
to prove that the publication was not
unlawful and intentional.
31.
In
South
African Associated Newspaper Ltd and Another V Yufar
[1]
,
the Court stated that the test for determining whether a statement is
defamatory is well-known, it is whether, in the opinion
of the
reasonable person, the words have the tendency to undermine, subvert,
or impair a person’s good name, reputation or
esteem in the
community.
32.
In
Khumalo
V Holomisa
[2]
,
the Court stated the elements of defamation are; wrongfulness and
intentional publication of a defamatory statement concerning
the
plaintiff. Once a plaintiff establishes that a defendant has
published a defamatory concerning the plaintiff, it is presumed
that
the publication was both unlawful and intentional. A defendant
wishing to avoid liability for defamation must then raise a
defence
which rebuts unlawfulness or intention.
33.
The second defendant has since
admitted that she told the plaintiff that he would rot in jail for a
long time. This she said…was
a repetition of what the
plaintiff in the past, used to tell her that people who commit
housebreaking would rot in jail. Put, differently,
she didn’t
mean that the plaintiff is a thief.
34.
The
words “you will rot in jail for a long time”, should be
interpreted in the context of paragraph 6 of the decision
in
Le
Roux and Others V Dey
[3]
, in that …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 what it implies, i.e. what a reasonable person may infer from
it. I agree with
the submission that the words “you will rot in
jail for a long time” are just a threat to emphasis the
displeasure
by the second defendant of the negative treatment she
received from the plaintiff when he refused to do a handover. In my
view
these words are not defamatory to the person of the plaintiff.
35.
There is a dispute whether, the second
defendant told plaintiff that he is a thief. She also denies that she
opened a case of housebreaking
and theft at the police station. Her
testimony is that, she opened a case of housebreaking, however it was
the police officer to
whom the matter was reported who entered the
word “theft”
36.
In practice when one opens a case on a
charge of housebreaking the offence normally presumed is
housebreaking and theft. It is therefore
not unusual that the police
officer opened a charge of housebreaking and theft.
37.
This issue is further marred by the
inconsistencies and contradictions in the evidence of the plaintiff’s
witnesses.
38.
The plaintiff denied that he broke the
padlock with a bolt cutter. However, he does not deny that the door
was locked. He says that
whilst he was waiting with his back towards
the wall, he immediately noticed that the door was suddenly opened.
The plaintiff does
not tell us who opened the door. It is improbable
that the plaintiff wouldn’t know who opened the door. The only
conclusion
one can reach is that the plaintiff broke the padlock with
a bolt cutter. Moreover, he was in the company of Mr Fourie whom he
could have called to refute this allegation.
39.
The plaintiff denied that the second
defendant asked him to check the boxes, whereas Constable De Wet
testified to the contrary.
40.
Although in his testimony, Constable De Wet
said that he didn’t see the plaintiff break the pad-lock with a
bolt-cutter, in
his earlier statement it was he (De Wet) who said
that he saw the plaintiff break the pad-lock with a bolt-cutter. This
confirms
the evidence of the second defendant who testified that
before she left for the police station, the plaintiff was standing
next
to the door in possession of a bolt-cutter. The correct version
is therefore that when Constable De Wet arrived, the door was still
locked and that he witnessed the plaintiff break the pad-lock with a
bolt-cutter. Indeed, Constable De Wet conceded that he deposed
to the
affidavit which was referred to above – para 3 of the
affidavit.
41.
W/O De Wet testified that she notified lots
of boxes in the store room which were properly sealed with colour
coded on them. The
plaintiff testified that he noticed that some of
the boxes were opened and does not know who opened them.
42.
In response to the discrepancies in the
evidence of the plaintiff and his witnesses, counsel for plaintiff
submits that, the mere
fact that there are slight differences in the
words which the plaintiff and his witnesses used to convey to the
Court what the
second defendant had said, is indicative of the fact
that everyone testified to the best of his or her recollection and
not discussed
the matter prior to them testifying. Counsel also
submits that these are small differences which are not material. In
my view,
this is an admission that there are contradictions and
inconsistences in the evidence of the plaintiff and his witnesses,
which
must be considered in favour of the case for the defendants.
43.
I reiterate that the evidence of the
plaintiff’s witnesses is mired in these contradictions. In the
circumstances one has
no choice but, to believe the second defendant
when she says she never told the plaintiff that he is a thief. It
seems to me that
Constable De Wet and W/O De Wet, for unknown reasons
had a change of heart and decided to change their story. In
particular, Constable
De Wet decided to deviate from the contents of
his affidavit in which he said that he saw the plaintiff brake the
padlock with
a bolt-cutter. It may therefore be true that the
plaintiff is disingenuous when he says the second defendant told him
that he is
a thief.
44.
I am therefore convinced that (as the
second defendant testified) she never had any suspicion that the
plaintiff stole the books.
As such, she went to the police station,
to open a case of housebreaking and not of housebreaking and theft.
She also testified
that when she arrived at the store-room, the door
was still locked, and it was the plaintiff who opened it after
breaking the pad-lock
with a bolt-cutter.
45.
It is therefore my considered review that
the plaintiff has not established that the defendant has published a
defamatory statement
that is both unlawful and intentional. The
defendant has raised a defence which rebuts unlawfulness and
intention.
46.
In the result the plaintiff’s claim
is dismissed with costs.
_________________________
JUDGE
T. J RAULINGA
JUDGE
OF THE HIGH COURT
Appearance:
Plaintiff’s
Counsel
: Adv. W Gibbs
Plaintiff’s
Attorneys
: Venter De Villiers Attorneys
Defendant’s
Counsel
: Adv. M Kgatla
Defendant’s
Attorney
: State Attorneys
Date of
hearing
: 28-29 October 2020
Date
of judgment
: 02 July 2021
[1]
1969
(2) SA 442
A
[2]
[2002] ZACC 12
;
2002
(5) SA 401
(CC) at para
[18]
[3]
2010
(4) SA 10
(SCA)