Tuch and Others v Myerson and Others (447/08) [2009] ZASCA 132; 2010 (2) SA 462 (SCA) ; [2010] 2 All SA 48 (SCA) (30 September 2009)

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[2009] ZASCA 132
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Tuch and Others v Myerson and Others (447/08) [2009] ZASCA 132; 2010 (2) SA 462 (SCA) ; [2010] 2 All SA 48 (SCA) (30 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 447/08
MICHAEL TUCH,
HEATHER BRENDA EISER
HILTON MYERSON,
JONATHAN TUCH NNO
Appellants
and
MYERSON, JEFFREY
HAROLD First Respondent
MYERSON, JEFFREY
HAROLD ROPER,
ALASTAIR BRIAN
NNO Second Respondent
MASUREIK, DION
BARRY Third Respondent
Neutral
citation:
Tuch
v Myerson
(447/09)
[2009] ZASCA 132
(30 September 2009)
Coram: STREICHER,
MHLANTLA JJA and GRIESEL AJA
Heard: 8 SEPTEMBER
2009
Delivered:
30
SEPTEMBER 2009
Summary: Defamation
– defamatory allegations made in civil judicial proceedings –
qualified privilege – allegations devoid
of merit – ulterior
purpose inferred – malice.
ORDER
On appeal from: High Court,
Johannesburg (Malan J sitting as court of first instance)
The following order is made:
1 The appeal, in so far as the
first and third respondents are concerned, is partially upheld with
costs.
2 The appeal, in so far as the
second respondent is concerned is dismissed.
3 The order of the court below is
set aside and replaced with the following order:
‘(a) The first and the third
defendants, jointly and severally, are ordered to pay to the
plaintiff an amount of R30 000.
(b) The plaintiff’s claim
against the second defendant is dismissed.
(c) The first and third
defendants, jointly and severally, are ordered to pay the plaintiff’s
costs.’
JUDGMENT
STREICHER JA (MHLANTLA JA and
GRIESEL AJA
concurring)
[1] The appellants are the
executors in the deceased estate of Nathan Myerson (‘the deceased’)
who died on 4 March 2008 after
an action for defamation instituted by
him against the respondents had been dismissed by the Johannesburg
High Court. Thereafter
that court granted leave to the appellants to
appeal to this court.
[2] The alleged defamatory
statements were made in an affidavit deposed to by the first
respondent (Jeffrey Harold Myerson) in application
proceedings
instituted by the deceased against, amongst others, the first
respondent and the third respondent (Dion Barry Masureik).
The second
respondent, namely Jeffrey Harold Myerson and Alistair Brian Roper,
in their capacities as trustees of the Jefferson
Business Trust, were
subsequently joined as respondents in the application proceedings.
[3] In the application
proceedings the deceased claimed from each of the first and third
respondents delivery of share certificates
reflecting him as the
holder of two and a half per cent of the share capital in a company
Jazz Spirit 46 (Pty) Ltd (‘Jazz Spirit’).
In this regard the
deceased relied on a written undertaking dated 23 April 2004 and
signed by the first and the third respondents,
which reads as
follows:
‘
This letter
confirms that we (Mr JH Myerson and Mr DB Masureik) are holding in
trust 2,5% each of the shares of Jazz Spirit 46 (Proprietary)

Limited. You can acquire these shares at no cost, whenever you wish
to have these shares transferred into your name, subject to
the
following conditions: -
1 the shares will be
available at any time after the transfer of the land into our name
has been finalized;
2 we require 3
working days’ verbal notice by you to transfer these shares;
3 these shares are
being held specifically for yourself only and may not be sold,
pledged or transferred to any other person or
entity except to
ourselves in which case these shares will be transferred back to
ourselves or our nominee at par value to be determined
by the
auditors of Jazz Spirit 46 (Proprietary) Limited.’
The parties are agreed that the
phrase ‘into our name’ in the first condition should read ‘into
the name of Jazz Spirit 46
(Pty) Ltd’. The land in question was
transferred to Jazz Spirit in July 2004 and in March 2006 the
deceased called upon the first
and third respondents to transfer the
shares referred to in the written undertaking to him. On 30 March
2006 the first and third
respondents’ attorneys wrote to the
deceased’s attorneys:
‘
It is sufficient
to state that your client has no right or entitlement whatsoever to
the shares nor the financial statements of
Jazz Spirit 46 (Pty) Ltd,
you refer to.’
They did not disclose the basis
upon which it was alleged that the deceased had no entitlement to the
shares.
[4] The deceased thereupon
launched an application against the first and third respondents for
the transfer of the shares. In his
answering affidavit the first
respondent stated that in so far as the aforesaid undertaking was
binding on the third respondent
and on him it constituted a donation
‘motivated by nothing other than pure liberality and generosity’.
Being a donation he
stated that it was not valid as, according to
him, there had not been compliance with s 5 of the General Law
Amendment Act 50 of
1956. He did not say why not. He stated,
furthermore, that the document contained no more than an offer and
that the offer had
not been accepted within a reasonable time. Later
in the same answering affidavit he alleged that the undertaking
contained in
the document was furnished under duress. But still later
he again alleged that the transaction was that of a donation and that
the third respondent and he ‘were entitled to revoke the donation
by virtue of inter alia [the deceased’s] ingratitude’. The

deceased’s gross ingratitude was, according to him, evidenced by
the following:
’
30.3.1 [The
deceased] and my father who died in September 2003 were brothers and
partners in mainly immovable property.
30.3.2 During about
July 2004, I found out that the [deceased] had misappropriated
something in the order of R5 to R6 million of
my father’s portion
of the partnership. I took this up with the auditors, namely Kessel
Feinstein, who confirmed that this had
indeed occurred. I further
established that the [deceased] had transferred all or most of these
funds to Ireland via his wife who
was Irish. This information was
extremely disturbing.’
[5] Yet another defence raised by
the first respondent in the answering affidavit was that the third
and fourth respondents in the
application proceedings were
shareholders in Jazz Spirit and that they would not vote in favour of
the transfer of the shares to
the deceased. He stated that the third
and fourth respondents ‘are of the view that should [the deceased]
become a shareholder
in [Jazz Spirit] he would devote his time and
energy to creating as much trouble, unpleasantness and problems as
possible’.
[6] The third respondent filed a
confirmatory affidavit in which he asked that the first respondent’s
affidavit be read as if
incorporated into his affidavit.
[7] The statement that the
deceased had misappropriated something in the order of R5 to R6
million of the first respondent’s father’s
portion of the
partnership and the statement that should the deceased become a
shareholder in Jazz Spirit, he would devote his
time and energy to
creating as much trouble, unpleasantness and problems as possible,
gave rise to the defamation action which
is the subject matter of
this appeal.
[8] The respondents in their plea
denied that the publication of these statements was wrongful and
pleaded that the statements were
published in the course of judicial
proceedings ie on a privileged occasion. The deceased replicated that
the statements were made
maliciously.
[9] The court below held that
both the aforesaid statements were
per
se
defamatory. In
respect of the first statement it said that ‘any reasonable reader
of ordinary intelligence would conclude that
the word
“misappropriated” means that the [deceased] is called a thief who
stole some R5 to R6 million from the [first respondent’s]
father’.
In respect of the second statement it said:
‘
The ordinary
reader would conclude that the plaintiff is a troublemaker, ie a
person who would, as a shareholder, not devote his
time and energy
for the benefit of the company but would disrupt it. The clear
implication is that the plaintiff is unfit to have
as a (minority)
shareholder. This reflects on his reputation as a businessman.’
I am in full agreement with these
findings of the court below.
[10] The publication of the
defamatory statements gave rise to a presumption of unlawfulness and
animus injuriandi
on the part of the first and third respondents.
1
The presumption of unlawfulness could be rebutted by proving that the
publication took place on an occasion of qualified privilege
such as
during the course of civil judicial proceedings provided the
requirements for relevance were satisfied.
2
The court below held that the defamatory statements were indeed
relevant to the issues in the application proceedings. It added
that
the deceased could in the circumstances only succeed if he could show
that the respondents acted maliciously and thereby exceeded
the
bounds of qualified privilege. It concluded that the deceased failed
to do so and for that reason dismissed the action.
[11] The court below correctly
held that the protection afforded by the qualified privilege afforded
to a litigant is forfeited
if the defamatory statement is published
maliciously.
3
In
Basner v Trigger
1946 AD 83
at 95
Schreiner JA said:
‘
Privileged
occasions are recognised in order to enable persons to achieve
certain purposes and when they use the occasion for other
purposes
they are actuated by improper or indirect motives, that is, by
“malice”.’
[12] I agree that the defamatory
statement that the deceased would cause trouble, unpleasantness and
problems, should he become
a shareholder in Jazz Spirit was relevant
to the deceased’s claim in the application proceedings. I also
agree that no malice
has been shown on the part of the respondents in
respect of that statement. I do however not agree that no malice on
the part of
the first and third respondents had been shown in respect
of the allegation that the deceased stole R5 to R6 million from the
first
respondent’s father.
[13] The onus was on the deceased
to prove the alleged malice on the part of the respondents. No direct
evidence of such malice
was adduced by the deceased but, malice being
a state of mind, that is hardly surprising. Being subjective in
nature malice will
often have to be inferred from intrinsic or
extrinsic facts.
4
[14] The respondents claimed that
the alleged theft of R5 to R6m by the deceased from the partnership
between the deceased and the
first respondent’s father constituted
ingratitude which entitled them to revoke the alleged donation.
However, the first respondent’s
father died in 2003 whereas the
alleged donation was made on 23 April 2004. It is hard to believe
that anybody, let alone the first
and the third respondents who are
property developers, could possibly have thought that something done
to a third party before
a donation was made could constitute evidence
of gross ingratitude on the part of the donee in respect of the
donation subsequently
made. The allegation is so devoid of any merit
that, in the absence of any evidence to the contrary, the inference
must be drawn
that the first and third respondents used the occasion
not to advance their case but for an ulterior purpose namely to
besmirch
the name and reputation of the deceased. In the
circumstances the deceased succeeded in proving malice on the part of
the first
and the third respondents.
[15] It follows that the appeal
in so far as the first and third respondents are concerned should
succeed in respect of the allegation
that the deceased
misappropriated R5 to R6m. The second respondent was joined as a
party to the application proceedings because
the first respondent had
alleged in his answering affidavit that the second respondent was a
shareholder of Jazz Spirit and that
it should for that reason have
been joined as a party. There is no evidence that the second
respondent made common cause with the
first and third respondents and
counsel for the appellant conceded that the action against it could
not succeed ie that the appeal
in so far as the second respondent is
concerned, should be dismissed.
[16] The parties were agreed that
in the event of the appeal succeeding the matter should not be
referred back to the court below
for the determination of the amount
of damages to be awarded but that such amount should be determined by
this court. In my view
the request should be acceded to. The deceased
as well as the respondents closed their cases without leading any
evidence in regard
to the quantum of damages with the result that
this court is in as good a position as the trial court to determine
the amount.
To refer the matter back to the court below will involve
the parties in additional costs which they obviously wish to avoid.
Moreover,
the trial judge is no longer a judge of the court below and
the administration of the courts will unnecessarily be disrupted by

referring the matter back to the court below. I shall therefore
proceed to determine the amount of damages to which the deceased
was
entitled.
[17] Counsel for the respondents
submitted that because no evidence as to the reputation of the
deceased had been tendered at the
trial, only nominal damages could
be awarded. This is tantamount to arguing that a court should assume
that a person has a bad
reputation or no reputation that can be
injured. That is not correct. Every person has a reputation that can
be injured. There
may of course be aggravating or mitigating
circumstances relating to a person’s reputation. A plaintiff may
therefore adduce
evidence of his good reputation and standing in the
community
5
and a defendant may adduce evidence of the plaintiff’s bad
reputation.
6
Should a plaintiff allege that there are aggravating circumstances
the onus would be on him to prove such aggravating circumstances.

Conversely should the defendant allege that there are mitigating
circumstances the onus would be on him to prove such mitigating

circumstances.
[18] The allegation that the
deceased stole R5 to R6 million from his brother is obviously
seriously defamatory of the deceased.
The extent of the damage caused
thereby would, however, have been restricted by the limited
publication thereof to a restricted
class of people. The allegation
is nevertheless so serious that substantial damages should be
awarded. The appellant, referring
to the award made in
Naylor
and another v Jansen; Jansen v Naylor and others
2006 (3) SA 546
(SCA) at paras 15 – 17, submitted that R30 000
should be awarded as damages. In that matter it had been alleged that
Jansen
had stolen money from his employer whereas he had not stolen
money but had made himself guilty of misconduct involving dishonesty

which misconduct the trial court erroneously did not take into
account when determining the quantum of damages. Consequently an

award of R30 000 by the trial court was reduced on appeal to
R15 000. As was said by Smalberger JA in the
Van
der Berg
-case at para
48 comparisons can of course serve a very limited purpose.
[19] A court has a wide
discretion to determine an award of general damages which is fair and
reasonable having regard to all the
circumstances of the case and the
prevailing attitudes of the community.
7
Having regard to all the circumstances of the present case it would
in my view be fair and reasonable to award damages in an amount
of
R30 000. The appeal of the appellants should therefore be upheld
in so far as the first and the third respondents are concerned.
The
appellants conceded that no case has been proved against the second
appellant and that the appeal in so far as the second appellant
is
concerned should be dismissed. Counsel for the respondents conceded
that the fact that the second respondent was cited as a
respondent in
the action and also in the appeal had no real effect on the costs. In
the circumstances no costs order will be made
in respect of the
second respondent.
[20] The following order is made:
1 The appeal, in so far as the
first and third respondents are concerned, is partially upheld with
costs.
2 The appeal, in so far as the
second respondent is concerned, is dismissed.
3 The order of the court below is
set aside and replaced with the following order:
‘(a) The first and the third
defendants, jointly and severally, are ordered to pay to the
plaintiff an amount of R30 000.
(b) The plaintiff’s claim
against the second defendant is dismissed.
(c) The first and third
defendants, jointly and severally, are ordered to pay the plaintiff’s
costs.’
________________
P E STREICHER
JUDGE OF APPEAL
APPEARANCES:
For appellant: H S Eiser
Instructed by:
Eiser & Kantor, Riviera
Matsepes, Bloemfontein
For respondent: M Basslian
Instructed by:
Myers Inc, Greenside, Gauteng
Naudes Inc, Bloemfontein
1
Suid-Afrikaanse Uitsaaikorporasie v O’Malley
1977 (3) SA
394
(A) at 401
in fine
– 402A.
2
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) par 21.
3
Joubert and others v Venter
1985 (1) SA 654
(A) at 704D-G;
and
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and
others supra
at para 17.
4
See Neethling Potgieter and Visser
Neethling’s Law of
Personality
2ed (2005) p 149 and the authorities referred to in
footnote 201.
5
See eg
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and
others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) at para 45.
6
See eg
Black and others v Joseph
1931 AD 132
at 146.
7
See 7
Lawsa
2ed para 260 and the cases therein referred to.