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[2019] ZALMPPHC 21
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Mukkhwantheli v Phaswana and Others (HCAA13/2018) [2019] ZALMPPHC 21 (10 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case
No: HCAA13/2018
10/5/2019
SHONISANI
RALSON MUKKHWANTHELI
APPELLANT
AND
DR.
NTAVHANYENI PHASWANA
FIRST RESPONDENT
MEMBER
OF EXECUTIVE COUNCIL
EDUCATION
LIMPOPO PROVINCE
SECOND RESPONDENT
HEAD
OF DEPARTMENT
DEPARTMENT
OF EDUCATION LIMPOPO
THIRD RESPONDENT
JUDGMENT
MULLER
J:
[1] The
appellant instituted action for defamation against the respondents in
the
Limpopo Local Division Thohoyandou. The action was dismissed with
costs. The court held that the first respondent lacked the intention
to injure the good name of the appellant and also held that the
appellant has failed to establish wrongfulness.
[2]
Leave to appeal was granted to the Full Bench by the court a
quo.
[3] Both
the appellant and the first respondent are employees of the second
respondent.
[1]
The appellant is a teacher and the first respondent is the Circuit
Manager: Soutpansberg North Circuit of the department. The second
respondent is Member of the Executive Council of the Education
Department in Limpopo. The liability of the second respondent is
based upon the principles of vicarious liability.
[4] On
19 February 2015 the first respondent addressed a letter to the
District Senior
Manager of the department in which alleged misconduct
of the appellant was reported with a request that such conduct be
investigated.
The contents of the letter formed the basis of the
action instituted by the appellant.
[5] The
relevant portion of the letter which the appellant claimed was
defamatory
of and concerning him is quoted in his particulars of
claim. It reads:
"Kindly note that Liphakha
Primary School learners did not affiliate or take part in sports this
year. This is having a direct
link with all the allegations against
Mr. Mukhwatheli S.R. Learners at Liphakha Primary School could be
disadvantaged simply because
there is a Sports Organizer coordinator
with a personality disorder.
Decisive action should be taken
against anybody who undermines authority lest we find ourselves in
all lawlessness situations."
[6] The
respondents in their plea denied that the letter was published or
that the
contents is wrongful and defamatory of the appellant. In
addition to the aforementioned it was also pleaded that the letter
was
written as an internal measure to solve issues at school. The
defences were that there was no publication of the letter and absence
animus iniuriandi
and
also qualified privilege.
[2]
[7] There
are, therefore, four issues to be considered.
1.
Whether the letter was published
unlawfully;
2.
Whether
the statement in the letter is reasonably capable of conveying to the
reasonable reader a meaning which defamed the appellant;
3.
Whether
the first respondent was under a duty or has a legitimate interest in
publishing the letter and whether the person to whom
the letter was
published has a similar duty or interest to receive it.
4.
Whether
animus iniurandi
has
been established.
[8] It
was, despite the plea, common cause at the trial that the letter
reached the
addressee. It was not disputed that the letter came to
the attention of the appellant when the letter was handed to him when
he
requested and was given a copy of same from two ladies attached to
the office of the addressee who was charged with the investigation
of
the alleged misconduct.
[9] The
words in the context used conveyed to the reader that the learners of
Liphakha
Primary School did not affiliate or take part in sports due
to the sports organizer who suffered from a personality disorder.
[3]
There is no doubt that the letter referred to the appellant who was
the sport organizer of that school.
[4]
The reference to the appellant in the letter as being a teacher with
a personality disorder is
prima facie
defamatory of and concerning the
appellant. The statement, in my view, would 'tend to lower the
appellant in the estimation of right-thinking
members of society
generally'.
[5]
[10] Two
presumptions arise with proof of the defamatory words. The first is
that that the publication is
unlawful and the second is that the
statement was made with the intention to defame.
[6]
These presumptions create a
full onus which must be discharged on a balance of probabilities.
[7]
In
May
v Udwin
[8]
it was held that:
"Once the presumption of
animus injuriandi
and unlawfulness have arisen from the
publication of the defamatory matter an onus (in the form of a
"weerleggingslas")
rests on the defendant to rebut them.
The presumption of
animus injuriandi
may be rebutted by
proving a defence (a so-called "skulduitsluitingsgrond")
which negatives the inference of
animus injuriandi...
A
defendant may rebut the presumption of unlawfulness by proving a
defence (a so-called "regverdigingsgrond" or justification
ground) which is directed at establishing that the publication of the
defamatory matter was lawful. One of the ways in which a
defendant
may rebut the presumption of unlawfulness is by proving that the
publication of the defamatory was made on an occasion
of qualified
privilege. The publication of the defamatory matter is then regarded
as being in the interest of public policy, and,
therefore, as being
lawful."
[11] In
Hardarker
v Phillips
[9]
the court dealt with unlawfulness as a defence:
"The element of unlawfulness
is more often than not sought to be rebutted by the defendant
attempting to establish one or other
of the well established
defences which either owe their origin to or bear the influence of
English law. These typically include
qualified privilege in relation
to judicial proceedings and fair comment. But the defences available
to rebut unlawfulness do not
constitute a numerous clauses. In the
final analysis, whether conduct is to be adjudged lawful or not
depends on a balancing of
the constitutionally enshrined right to
dignity, including as it does the right to reputation on the one
hand, and the right to
freedom of speech, on the other."
[12] A bare
denial by the respondents would not have been sufficient. The
respondents pleaded facts
which will justify the absence of
unlawfulness. The appellant elected not to serve a replication
despite the necessity for the
appellant to prove that the respondents
acted with malice and abused or exceeded the ambit of the qualified
privilege.
[13]
The
employment relationship of the parties within the department, viewed
objectively, is such that publication of the letter was
privileged.
The first and second respondent enjoyed the right to or legitimate
interest to make statements to and to receive statements
from the
other. The truthfulness of the statement has no bearing whether they
were germane to the occasion. However, if the statement
was made with
knowledge of its untruthfulness the inference would arise that it was
actuated by malice, in the absence of any indication
to the
contrary.
[10]
[14] The
respondents had to prove that that the statement was relevant to the
issue. For if it has
no relevance to the issue, the defence cannot
succeed. Relevance in the context of qualified privilege is not
capable of precise
definition. Phrases such as 'in some measure
relevant to the purpose of the occasion' and 'germane to the matter
dealt with' are
employed to describe what is essentially a value
judgment of which there are guiding principles but which is not
governed by hard
and fast rules.
[11]
[15] The
statement was made in the course of the existing employment
relationship. The First respondent
reported, as the circuit manager,
the conduct of a teacher attached to a school under his supervision
which in his opinion should
be investigated to District Senior
Manager of the department which is his superior.
[16] The
appellant was the chairperson of sport for the circuit. As such he
was also in charge of
arts and cultural activities and must ensure
that that the children of his school Lephaka Primary School affiliate
to participate
in sport activities. The appellant is also the
secretary of the school governing body and as such a signatory to the
cheque account
of his school governing body. He at a meeting has
indicated that he will not release money for the children to
participate in sport.
[12]
In addition the appellant as chairman of the sport committee was
unable · to account for money collected during his tenure
as
chairman.
[17] When the
sport committee of which he was the chairman was re-elected, he was
not re-elected.
The appellant indicated at the meeting that the
election of the new committee is unlawful and that he is going to
continue as chairman
of the committee.
[18] The first
respondent regarded the actions of the appellant undermining his
authority. He wrote
the letter to his superior simply to report what
he perceived as misconduct and requested an investigation. He
explained that he
made reference to the personality disorder in the
letter to indicate that:
"It is when a person's
thinking and doing of things, behaviour is not structured."
[19]
The
first respondent denied that he had the intention to defame the
appellant. He stated under cross-examination that he came to
that
conclusion due to the behaviour of the appellant at the meeting with
the governing body the purpose of which was to discuss
the learners
being disadvantaged. During that meeting the appellant alleged that
the department declared him additional to the
post establishment of
the school. He swore at the first respondent at that occasion and
stormed out of the meeting despite being
informed that he was not
declared to be in excess.
[13]
[20] The First
respondent was also asked what he meant by 'decisive action should be
taken against
anybody'. He replied that decisive action is action
which is in line with the law and policies of the department.
[21] The first
respondent, in the letter to his superior, referred to previous
correspondence and
the allegations levelled at the appellant in that
letter. He stated that the matter is escalated for investigation and
decisive
action to be taken against anyone who undermines authority,
The unacceptable behaviour of the appellant at the meeting where he
flatly refused to make funds available to affiliate the learners from
his school without saying that it was a decision of the governing
body caused first respondent to conclude that the appellant suffered
from a personality disorder.
[14]
[22] Freedom of
expression in labour relations allows for such allegation in a
statement in a labour matter
such as this where the First respondent
has the right and the duty to report misconduct to his superior. A
defamatory statement
under circumstances such as this is protected as
long as it is relevant or germane to the occasion and reasonably
appropriate.
[15]
The
letter was intended to report a teacher which
prima
facie
committed misconduct to a
higher authority to investigate. The statement was relevant or
germane and reasonably appropriate to the
purpose of the occasion and
is, in my view, worthy of protection afforded by the law. There is no
evidence to suggest that the
First respondent acted with an improper
motive or with malice. The appeal must fail.
[23] Mr Ravele
who appeared on behalf of the appellant urged us not make a costs
order against the
appellant. He contended that the claim was
instituted to vindicate his constitutional rights. It is a claim
ex
delicto
based on the
actio
iniuriarum
where different
constitutional rights were at play. Be that as it may, this action is
no different from other delictual claims that
are before courts on a
daily basis in which costs orders are granted. This court has a wide
discretion to award costs. There is
no reason why, in this case, the
costs should not follow the result.
ORDER
The
appeal is dismissed with costs.
G.C
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
agree
E.M MAKGOBA
JUDGE PRESIDENT OF THE HIGHCOURT
LIMPOPO DIVISION: POLOKWANE
I
agree
L.G.P LEDWABA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
[1]
Hereinafter "the department".
[2]
The plea of qualified privilege could have been better formulated.
[3]
In
Rutland v Jordan
1953 (3) SA 806
(C) 814 E-F it was held
that a statement in an affidavit that there was a possibility that
that the plaintiff might found to
be mentally diseased is
defamatory.
[4]
The heading of the letter in any event referred to alleged
misconduct against the appellant.
[5]
Mohamed and Another v Jassiem
[1995] ZASCA 115
;
1996 (1) SA 673
(A) at 7031.
[6]
Joubert and Others v Venter
1985 (1) SA 654
(A) 696A.
[7]
Mohamed and Another v Jassiem supra
709H-I.
[8]
1981 (1) SA 1 (A) 10 E-G.
[9]
2005 (4) SA 515
(SCA) par 15.
[10]
Borgin v De Villiers and Another
1980 (3) SA 556
(A) 578H.
[11]
Van den Berg v Coopers
&
Lybrand Trust (Pty) Ltd and
Others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) par 26.
[12]
It was put to the first respondent that the governing body has
decided that the funds will be used for the development of the
school and nothing else. He conceded that such a decision could have
been reached but that he was unaware of it. He considered
participation in sport as cardinal and equal to academic
participation in schools.
[13]
The first respondent was criticized during cross-examination for
failing to plead the facts upon which he relied to have come
to the
conclusion that the appellant suffered from a personality disorder.
[14]
It was not put to the respondent in cross-examination that the
appellant informed the meeting of the decision of the governing
body
not to make funds available for sport
[15]
NEHAWU v Tsatsi
2006 (6) SA 327
(SCA).