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[2019] ZAGPPHC 474
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Van Wyk v Pretorius (55369/2016) [2019] ZAGPPHC 474 (19 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No: 55369/2016
19/2/2019
In the matter between:
M
VAN WYK
Plaintiff
and
M
PRETORIUS
Defendant
JUDGMENT
D S FOURIE, J:
[1]
The plaintiff instituted action against
the defendant for payment of damage in the amount of R1,5 million
pursuant to an alleged
defamation. The alleged defamation stems from
an email sent by the defendant on 18 November 2015 to certain
selected recipients.
The defendant has pleaded qualified privilege as
a defence and in the alternative, should the defence of qualified
privilege be
dismissed, it is pleaded that the alleged defamation is
the truth, constitutes fair comment, and was of public interest.
BACKGROUND
[2]
During November 2015 the Silverlakes
Homeowners Association (“HOA”) was involved in an
election process for the appointment
of a new chairman and a director
for the environmental portfolio. Dr Stephen Pretorius and Mr Manie
Swart competed for the chairman
position whilst Ms Cornelia Matthews
and Ms Marna Pretorius (the defendant) competed for the environmental
portfolio.
[3]
Dr Pretorius and Ms Matthews were the
incumbent directors who stood for re-election, and Mr Swart and the
defendant were the new
candidates challenging their positions. New
directors for the abovementioned positions would be elected at the
HOA's Annual General
Meeting (AGM) to be held on 16 November 2015. Ms
Van Wyk (the plaintiff) was the chairperson of the Independent
Electoral Commission
(IEC), together with three other members, namely
Mr Derek Wiegand, Ms Laurie Clifton and Mr Donald Gilroy.
[4]
Before the commencement of the trial the parties agreed on certain
common cause facts.
The facts, relevant to the issues, are the
following:
(a)
The
IEC was tasked,
inter alia,
with
overseeing the election process in order to ensure that the election
of directors of the HOA was free and fair;
(b)
The
contents and authenticity of an email dated 18 November 2015 which
contains the alleged defamatory statements;
(c)
The
publication of the said email by the defendant to the recipients
thereof;
(d)
The
recipients of the said email were all involved,
alternatively
had a vested interest in the
election process,
alternatively
were
directors of the HOA,
alternatively
the corporate governance committee
of the HOA at the time of delivery of the said email.
[5]
The parties also agreed on a formulation
of the issues. They are the following:
(a)
Whether the email was unlawfully
published by the defendant;
(b)
The stings alleged by the plaintiff;
(c)
The defences raised by the defendant,
i.e. qualified privilege and truth and fair comment; and
(d)
The quantum of the plaintiff's claim.
[6]
The impugned email reads as follows:
"Subject: Re Meetings
Good day all,
I would like to express my deep
disappointment with the unprofessional behaviour
of
the current Chairman of the HOA and
Ms M van Wyk the chosen IEC member.
I
am
standing
as
a
candidate for the environmental
portfolio and want to share my experience regarding the process
followed by these individuals.
Ms
Van Wyk made use of HOA facilities to
communicate false allegations regarding canvassing by candidates.
Due to the fact that I did not solicit any
proxies from any
of
the
residents at Silverlakes I went to the HOA office to find out what
the situation was and how it concerned me. I telephoned Ms
Van Wyk,
and was told by her that Mr Visser du Plessis and Mr Manie Swart had
been canvassing in contravention of the estate rules
and regulations,
to secure votes for Mr Swart and for me. I said to Ms Van Wyk that if
I were implicated in wrongdoing I would
distance myself and retract
my candidacy. I also said to her that I would contact Mr Du Plessis
before I made any decision.
I contacted Mr Du Plessis regarding the
matter as I left the HOA office. After explaining the situation and
conversation I had with
Ms Van Wyk, Mr Du Plessis assured me that it
was 100% within the right of any resident to canvass privately and to
obtain support,
and it is only stipulated that
a
candidate is not allowed to canvass
publicly. (Mr Du Plessis quoted the rule from the official
Si/ver/akes documents.)
I realised that Ms Van Wyk had in fact been
canvassing publicly by making use of the Silverlakes network,
influencing residents
to view the new candidates in
a
negative way. She made false and
unsubstantiated a/legations stipulated as facts and forwarded
numerous emails and
SMS's
making
use of HOA funds
to
canvass
for the current sitting candidates.
I have been living in Silverlakes since
1996
and am aware that it is standing
operating procedure for residents to hand proxies in to secure their
votes instead of attending
the HOA AGM and CGM.
We already have communication problems in
the estate and acquiring proxies from residents is
a
way to ensure involvement regarding
estate matters. I do not think it is prudent for any one person to
underestimate the choices
residents make regarding free will.
When Dr Pretorius cancelled the meeting on
Monday 16 November 2015 it was clear to me that Ms Van Wyk
was
biased and it seemed like she was
conspiring with Dr Pretorius
to
sabotage the voting process. It is
highly irregular
to
preside
over a meeting in which the person leading the discussion is
a/so
a candidate?
I
am
willing to attend
a
meeting to discuss the situation."
THE PLEADINGS
[7]
The plaintiff has pleaded that four
statements in this email are defamatory of her. They are listed in
the particulars of claim
from paragraphs 4.1 to 4.4. The plaintiff,
after closing her case, abandoned paragraphs 4.1 and 4.4. The
remaining statements are
the following:
(a)
"4.2 Ms
Van Wyk made use of HOA facilities to canvassing by communicate false
allegations regarding
candidates."
(b)
“
4.3
I realised that
Ms
Van
Wyk had in fact canvassing publicly by making use of the Silverlakes
network, influencing residents
to
view the new candidates in a negative
way. She made false and unsubstantiated allegations stipulated as
facts and forwarded numerous
emails and
SMS's
making use of HOA funds to canvass
for the current sitting candidates.
"
[8]
The plaintiff has
also pleaded that the statements in paragraphs 4.2 and 4.3 of the
particulars of claim convey certain meanings.
The plaintiff relied on
the following implied meanings:
(a)
Paragraph
4.2: The plaintiff abused her position as member of the Electoral
Committee to make use of HOA facilities contrary to
the rules of the
HOA and in the process utilised the HOA facilities to communicate
false allegations regarding other candidates
for election as
directors of the HOA;
(b)
Paragraph
4.3: She jeopardized the integrity of the election process by
canvassing for the current directors of the HOA and in the
process
utilising funds and resources of the HOA contrary to the provisions
of the rules. She had forsaken her duties as IEC member
and was
conspiring with the current chairman in order to unfairly influence
the election and that she is dishonest.
[9]
The defences pleaded by the defendant
amount to the following:
(a)
The impugned statements were made at a
privileged occasion and the defendant is therefore protected by a
qualified privilege. The
content of this email was pertinent and/or
germane to the specific issue pertaining to the election process. It
was delivered in
the discharge of a duty or exercise of a right of a
person who had a duty or right to deliver it to the addressees. The
addressees
were all involved,
alternatively
had a vested interest in the
election process,
alternatively
were
directors of the HOA or the corporate governance committee at the
time of the delivery of the email;
(b)
In the alternative
to
the above, the impugned statements are true, constitutes fair
comment, were not statements of fact, were fair in the circumstances
and the publication thereof was for the benefit of the public and was
of public interest.
[10]
No reply was filed to the defendant's
plea. The parties agreed, pursuant to the contents of the email being
prima facie
defamatory,
that the defendant has the duty to begin.
THE
EVIDENCE
[11]
Two witnesses
testified for the defendant, namely the defendant herself and Mr
Wiegand. The plaintiff also testified without calling
any witnesses.
THE
DEFENDANT (MS PRETORIUS)
[12]
The defendant confirmed that the
impugned email dated 18 November 2015 was sent by her because the
plaintiffs conduct was unprofessional.
She intended to lodge a
complaint openly and for that purpose she needed a forum to lodge the
complaint. According to her the practice
was to obtain proxies as the
meetings in the past had always been long and drawn out. Voting is
conducted in two ways, by proxy
where you may instruct another person
to vote for you or by attending the meeting personally and then vote
by the show of hands.
[13]
She testified that in the week leading
up to the AGM she received various SMS1s and emails from the
plaintiff, stating that the
IEC had received complaints concerning
door to door canvassing and that such behaviour must stop
immediately. Pursuant thereto,
she phoned the plaintiff to enquire
about this problem. The plaintiff indicated to the defendant that,
although her name was on
certain of the proxies obtained by Manie
Swart and Visser du Plessis, she was not yet implicated. According to
her the plaintiff
then stated that she could not understand why the
defendant was standing for this portfolio as it is hard work and that
Corlia
Matthews has been doing it for a long time. The defendant
understood the plaintiffs comment to convey a suggestion that she
should
step down as a candidate for this portfolio.
[14]
The defendant then telephonically
contacted Mr Visser du Plessis. He confirmed that private door to
door canvassing for proxies
was not prohibited by the rules. She also
read the rules and came to the conclusion that there was no such
rule.
[15]
On 16 November 2015 the defendant and
all of the other members of the HOA received a newsletter. The
subject was
"URGENT NOTIFICATION
FROM THE INDEPENDENT ELECTORAL COMMITTEE".
It
was sent via the Silverlakes community network to all members. The
defendant cited the following issues regarding this letter:
(a)
the email was sent by the plaintiff on
behalf of the IEC utilising the HOA community network which is paid
for by the members of
the HOA;
(b)
the letter refers to the rules as
provided for in the Memorandum of Incorporation
("MOI")
and states that door to door and
other mass canvassing for proxies are for obvious reasons strictly
prohibited;
(c)
it urges those who may have unwittingly
given proxies in contravention of the rules to urgently revoke such
proxies and rather attend
meetings in person.
[16]
The defendant pointed out that this
letter was circulated on the same day the election was scheduled to
take place. It came as a
surprise to her and she was taken aback by
the contents thereof. According to her the newsletter contains false
information about
rules regarding door to door canvassing for proxies
and that new candidates were cast in a bad light as it was suggested
that they
were involved in wrongdoing resulting in possible serious
irregularities.
[17]
During the evening of 16 November 2015
the defendant attended the AGM of the HOA. She thought the election
would still take place.
When she arrived at the meeting she noticed
that the chairperson was Dr Pretorius, who also was a candidate. By
agreement between
the parties a transcript of a recording of the
proceedings was provided to the Court. The defendant pointed out that
in terms of
the rules Dr Pretorius was not supposed to chair the
meeting and that the plaintiff should have been aware thereof.
According to
the defendant Mr Du Plessis was interrupted by the
plaintiff who shouted at him by saying
"Visser,
sit seun".
She pointed out that
according to the record of proceedings there is a seven second
interruption and in the background a female
voice can be heard in the
recording.
[18] She further
testified that it was obvious to her that the plaintiff and Dr
Pretorius had a discussion
beforehand as he knew how many proxies
were collected by individuals. According to her the plaintiff was
allowed to count the proxies,
but not to divulge any information
about the proxies. She was also unhappy about the fact that the
plaintiff mentioned that three
of the four candidates had complaints
about the proxies and that she was not prepared to take advice from
the Corporate Governance
Committee to continue the meeting by
allowing a voting with the show of hands. According to her any
possible irregularities could
have been investigated afterwards. It
was clear to her that the plaintiff had sided with Dr Pretorius to
postpone the meeting.
[19]
She also testified that the homeowners
who attended the meeting were flabbergasted after the meeting was
postponed unilaterally
by Dr Pretorius. The next day she distributed
the impugned statement to communicate her feelings about Dr Pretorius
and the plaintiff.
She wanted to complain about the conduct of the
electoral commission and she also explained the contents of the
impugned letter.
She believes that her allegations are fair and true.
[20]
In cross-examination the contents of
Rule 11.1.4 (campaigning by candidates) was debated with the
defendant. The defendant indicated
that one must differentiate
between private and public campaigning. According to her only public
campaigning is addressed by the
rules and there is no rule
prohibiting a person from going door to door and campaigning for
proxies.
WIEGAND
[21]
Mr Wiegand was a member of the IEC.
According to him various IEC meetings were held in the weeks leading
up to the AGM. During one
such meeting the members of the IEC were
informed by the plaintiff that certain campaigning procedures for
proxies were irregular.
He was thinking how the plaintiff would know
about the alleged irregularities as proxies are supposed to be kept
in a closed box.
[22]
At one of the later meetings of the IEC
the plaintiff informed the IEC members that one of the candidates, Mr
Manie Swart had broken
the rules and allegedly had a party where many
members of the HOA were present. They discussed the issue but no
decision was taken.
[23]
During the afternoon
of Sunday, 15 November 2015, the plaintiff called an emergency
meeting of the IEC. When the witness arrived
at the plaintiff's home
he found Dr Pretorius as well as the deputy chairman, Mr Eugene
Kruger to also be present. Dr Pretorius
referred to approximately 200
proxies which were all irregular. The witness thought by himself
"how
do all these people know about this?"
as
Dr Pretorius and Mr Kruger were not members of the IEC. The plaintiff
was then asked to write a letter to members of the estate
to inform
them that the meeting will be cancelled. Dr Pretorius also indicated
that he was not going to attend the meeting
"with
all these votes against me,
so
we have to cancel
the meeting".
[24]
The witness then questioned the wisdom
of such a letter and requested the plaintiff not to go forward by
cancelling the meeting.
He was concerned about wasted costs if the
meeting was to be cancelled and then decided to leave the meeting. He
later sent an
email to the plaintiff indicating that if the board
were to cancel the meeting, they must do so themselves in which event
he will
resign as member of the IEC. He was of the view that somebody
was passing on information about proxies to the candidates.
[25]
In cross-examination it was put to the
witness that the HOA liaison officer had a book in which proxies were
recorded by members
delivering such proxies before the AGM. He
confirmed that proxies were supposed to be kept in a sealed box but
was unable to confirm
or deny the existence of such a book.
THE PLAINTIFF (MS VANWYK)
[26] During 2015
she was the chairperson of the IEC. The purpose of this committee was
to ensure compliance
with the election rules so that a free and fair
election can take place. On or about 9 November 2015 she received a
complaint from
a homeowner about door to door canvassing for proxies.
According to her this was not allowed as the rules provide that
campaigning
is limited to emailing. This emailing is done by the HOA
on behalf of all the candidates after their approval was obtained.
The
plaintiff sent an e-mail to all the candidates informing them
about a complaint concerning door to door canvassing.
[27] The
plaintiff then received a telephone call from the defendant. She
wanted to know whether she
was also implicated. The plaintiff replied
that she had to remain impartial and that the defendant should
contact Mr Swart if she
wanted to know what was going on. The
defendant indicated to the plaintiff that if she is implicated she
will step down, to which
the plaintiff replied that it was her
choice. The plaintiff admitted having said to the defendant that she
does not understand
why people would stand for the HOA as this is
hard work, but she denied having mentioned the name of Cornelia
Matthews.
[28]
The plaintiff referred to other
complaints also received regarding the campaigning by candidates.
During the weekend (Saturday)
two of the other candidates asked the
plaintiff to investigate irregularities in the process of gathering
proxies. Dr Pretorius
and Ms Matthews indicated that, according to
the homeowners, hundreds of proxies were gathered irregularly. She
referred to people
who advised her that some of the proxies were
simply written down on paper but was not on the normal printed form.
[29]
The plaintiff also referred to the
meeting which was held on the Sunday evening. She requested Dr
Pretorius and Mr Kruger to attend
the meeting to provide advice.
According to her there were problems with the proxies “
which
could have hijacked the AGM”.
Dr
Pretorius had to give advice pursuant to his knowledge of the HOA and
Mr Kruger was requested to provide legal advice. She also
explained
that so many proxies were affected that it could influence the
approval or rejection of budgets or motions at the AGM.
She confirmed
that she had not seen any of these proxies. According to her Mr
Kruger advised that they had an option to postpone
the meeting and
that would be the most logical choice. When asked whether Dr
Pretorius had complained that he did not have any
proxies, she
replied that she cannot remember. She also referred to a book which
had to be completed when proxies were delivered.
They had to
investigate the allegations of irregularities with regard to the
proxies, but there was not enough time before the
meeting to do so.
[30]
The next morning (Monday) Mr Kruger
contacted her and advised that the meeting could be postponed. He
also explained to her what
procedure to follow. If the meeting was to
be postponed, she should address the meeting and make such a
proposal. Later that morning
she circulated a letter pursuant to the
meeting which they had on Sunday evening. The letter refers to
prima
facie
evidence of possible extremely
serious irregularities in the manner and number in which proxies had
been obtained. It also refers
to door to door and other mass
canvassing for proxies which are
"for
obvious reasons strictly prohibited".
It
was also requested in this letter that all members who might have
unwittingly issued proxies in contravention of the rules to
urgently
revoke such proxies by informing the association thereof and rather
attend the meetings themselves.
[31]
When questioned about the fact that Dr
Pretorius presided over the meeting whilst also being a candidate she
replied that
"this has nothing
to do with me".
The mandate of
the IEC was to ensure compliance with the campaign rules and to make
certain the election is free and fair. She also
elaborated upon her
reputation as a businesswoman and the services rendered by her to
banks and attorneys.
[32]
In cross-examination it was put to the
plaintiff that the impugned letter is a complaint directed to the
addressees. She replied
by pointing out it is
"an
invalid complaint".
Shortly
thereafter she denied that it is a complaint at all and added that it
was circulated maliciously. She also conceded, with
reference to
paragraph 5.9.5 of the memorandum of incorporation that the proxy
form, as indicated, was only
''preferred"
as it was not a requirement for a
proxy to be in a specific form. According to her the rule that no
door to door canvassing was
allowed is an old rule which they had
applied for the last three years. With reference to the
interpretation of Rule 11.1.4 (canvassing)
she argued that the IEC
had a right to impose new rules as they saw fit. When it was put to
her that the postponement of the meeting
was planned, she replied
that she was advised that if the meeting was to be postponed, she
must make a proposal to that effect.
It was also put to her that the
majority of Mr Wiegand's allegations were not challenged in
cross-examination, but she repeated
her version that she could not
recall Dr Pretorius' statement that he was not going to attend the
AGM as there were approximately
200 votes against him. She repeated
that she wanted to investigate the matter regarding the proxies and
therefore the meeting had
to be postponed. She reiterated that she
was independent.
DISCUSSION
[33]
Counsel for the defendant pertinently
referred to the plaintiff's demeanour in the witness box. He argued
that she was argumentative,
made condescending remarks to defendan'ts
counsel, became aggressive and sarcastic in certain instances and
could not remember
when it seemingly suited her. An assessment in
this regard has to take
into
account
the general context, the witness' memory and the ability to express
him- or herself properly. One should therefore distinguish
between
bona fide
errors
and an intentionaluntruth. Although there may be merit in some of the
criticism levelled against the plaintiff, I had the
opportunity to
observe the demeanour of all the witnesses and to listen carefully to
their evidence. I did not get the impression
that any of them
intentionally tried to mislead the Court or knowingly told an
untruth. I also got the impression that the manner
in which the
plaintiff testified is perhaps part of her personality and one should
therefore be careful not to draw adverse inferences
pertaining to the
credibility of her evidence. The matter should therefore be decided
on the evidence before me and the probabilities.
[34]
Counsel for the plaintiff submitted that
the only issue before Court is whether the statements pleaded in
paragraph 4.2 and 4.3
of the particulars of claim are defamatory of
the plaintiff, and whether any of the defences pleaded by the
defendant has been
proven. My impression is that that counsel for the
defendant was of a similar view.
THE TWO STATEMENTS IN ISSUE
[35] Counsel for
the plaintiff contended that the ordinary reader, who reads the
impugned statements
in context, would conclude that the plaintiff
abused her position and the funds of the HOA to campaign for the
incumbent candidates
by way of SMS1s and emails. These two impugned
statements, according to him, also suggest that the plaintiff
committed a dishonest
act by conniving in a clandestine manner to
influence members of the HOA to vote for certain people at the
election.
[36] Counsel for
the defendant argued that the impugned statements were made at a
privileged occasion
and therefore the defendant is protected by a
qualified privilege. He also contended that the plaintiffs failure to
properly cross
examine the defendant and Mr Wiegand should be
taken into account when considering this defence. In this regard he
pointed out
that the plaintiffs version of what occurred at the
meeting held on the night before the AGM, was never put to Mr
Wiegand. Furthermore,
so he argued, the plaintiffs reference to
"malice”
on the part of the defendant during
cross-examination was never put to the defendant, nor pleaded in the
particulars of claim or
in replication.
[37]
Both counsel were in agreement that the
contents of the email in question, more particularly the two
statements in issue, are
prima facie
defamatory. agree with this view. In
this instance a presumption of wrongfulness then arises which places
the onus on the defendant
to rebut it (Neethling, Potgieter &
Visser,
Law of Delict,
7
th
Edition, p 357). This is a full onus of proof (and not merely an
evidentiary burden) where a defence of qualified privilege can
be
sustained by nothing less than proof on a balance of probabilities
(
Neethlinq
v Du Preez,
[1993] ZASCA 203
;
1994 (1) SA 708
(AD)
at 770H-J). The same learned authors
(supra,
p 359) provide the following
explanation of this defence (qualified privilege):
"If it is proved that both parties had
a
corresponding
duty or interest (i.e. that a privileged occasion existed), then the
defendant must further prove that he acted within
the scope or limits
of the privilege. To do this, he must prove that the defamatory
assertions were relevant to, or reasonable
connected with the
discharge of the duty or the furtherance of the interest. However,
even when the defendant has proved this,
he still only enjoys
provisional, in contrast to complete, protection. The plaintiff may
still show that the defendant in fact
exceeded the limits of the
privilege because he acted with an improper motive (malice)."
[38]
The essential elements of this defence
are twofold: First, the defamatory statement must have been published
in the discharge of
a duty or the protection of a right or legitimate
interest to someone who has a similar duty or interest to receive it.
The duty
or right to communicate or receive defamatory matter may be
legal, moral or social. The test is an objective one (
Law
of South Africa,
Defamation, Vol
14(2), 3rd Edition, par 127). Second, the defence requires prove by
the defendant that the defamatory statement
was relevant or germane
and reasonably appropriate to the occasion. It is the occasion and
not the statement that is privileged
(Law
of South Africa
,
supra,
par 127 and the authorities quoted
therein). There are various examples in decided cases where
situations were recognised by the
Courts to afford a qualified
privilege to a defendant. However, these cases are no more than
examples which may be of some guidance
to a Court. For instance,
members of public bodies may have a social duty or right to make
defamatory statements to other members
at meetings of these bodies
(
cf
L
otter
v De Villiers
1946 TPD 569
(meeting
of school board) and
Nau
d
e
v Whittle
1958 (1) SA 594
(A) where
the Court a
quo
regarded,
on the evidence before it, a farmers' association as a privileged
occasion). Each matter must be decided on its own facts,
taking into
account the context and surrounding circumstances.
[39]
Was this a privileged occasion when the
impugned email with the two defamatory statements were published? It
is common cause that
during November 2015 the HOA was involved in an
election process for the appointment of a new chairman and a director
for the environmental
portfolio. Dr Pretorius and Ms Matthews were
the incumbent directors who stood for re election and Mr Swart
and the defendant
were the new candidates challenging their
positions. New directors for the abovementioned positions would be
elected at the HOA's
Annual General Meeting to be held on 16 November
2015. The plaintiff was the chairperson of the IEC. The IEC was
tasked,
inter alia,
with
overseeing the election process in order to ensure that the election
of directors of the HOA was free and fair. The parties
have agreed
that
"the recipients of the said
email were all involved, alternatively had
a
vested interest in the election
process, alternatively were directors of the HOA, alternatively the
corporate governance committee
of the HOA at the time of delivery of
the said email".
[40] The defendant
testified that she, as one of the candidates, sent the impugned email
because she was
of the view that the plaintiff's conduct was
unprofessional. She intended to lodge a complaint and for that
purpose she needed
a forum to lodge the complaint. When it was put to
the plaintiff in cross examination that the impugned letter is a
complaint
directed to the addressees, she replied by pointing out
that it is
"an invalid complaint."
Shortly
thereafter she denied that it is a complaint at all and added that it
was circulated maliciously. In the email the defendant
stated that
she wanted
"to share my experience regarding the process
followed"
by the plaintiff and Dr Pretorius. She also
indicated, at the end thereof, that she was willing to attend a
meeting to discuss the
situation. It is not in dispute that the
impugned email was not circulated to all members of the HOA or
ordinary residents, but
only to those individuals who had a vested
interest in the election process, alternatively who were directors of
the HOA, alternatively
the corporate governance committee of the HOA.
The impugned letter was addressed to these individuals two days after
the election
had been postponed.
[41]
In short, during November 2015 the HOA was involved in an election
process. It is common cause that the recipients of the impugned
email
all had a vested interest in the election process. The defendant was
a candidate who participated in the election process.
She therefore
at least had a legitimate interest in the election process and the
outcome thereof. The IEC was tasked with overseeing
the election
process in order to ensure that the election of directors of the HOA
was free and fair. The plaintiff was the chairperson
of the IEC. The
defamatory statements relate to the conduct of the plaintiff during
the election process. Taking into account the
evidence, the
surrounding circumstances and these facts I have to conclude that the
defendant was exercising a right or protecting
a legitimate interest
when the impugned email was published to the recipients thereof and
that the recipients had a similar right
or interest to receive it.
The defamatory statements were therefore published at a privileged
occasion.
[42]
The next question is whether the defamatory statements were relevant
and reasonably appropriate to
the occasion? In
R v Matthews
1960 (1) SA 752
(A} at 758A-B Schreiner JA pointed out that
relevancy "is
based upon
a
blend of logic and
experience lying outside the law".
Put differently, is there
a nexus or link between the defamatory statement and the occasion, to
such an extent that it can be regarded
as reasonably appropriate?
This should not be confused with the truthfulness or otherwise of the
publication. The defence of qualified
privilege is not concerned with
the truthfulness of the publication. However, proof that the
defendant did not believe that the
facts stated were true, may give
rise to the inference that she was actuated by malice or an improper
motive
(
Borqin v De Villiers
1980 (3) SA 556
(A)
at 578H).
[43]
The two defamatory statements are set out in paragraph 7 above.
They
are essentially that the plaintiff made use of HOA facilities to
communicate false allegations regarding canvassing by candidates
and
that she had made false and unsubstantiated allegations, stipulated
as facts, to canvass for the current sitting candidates.
[44]
It is not in dispute that two new directors would be elected at the
HOA's Annual General Meeting to
be held on 16 November 2015. Dr
Pretorius and Ms Matthews were the incumbent directors who stood for
the election, and Mr Swart
and the defendant were the new candidates
challenging their positions. It is common cause that during the
afternoon of 15 November
2015 the plaintiff called an emergency
meeting of the IEC. Dr Pretorius, one of the candidates, attended
this meeting although
he was not a member of the IEC. The other
candidates were not present. According to the undisputed evidence of
Mr Wiegand, Dr Pretorius
referred to approximately 200 proxies which
were all irregular. He also indicated that he was not going to attend
the general meeting
"with all these votes against me, so we
have to cancel the meeting".
No doubt, Mr Wiegand was
concerned about this as Dr Pretorius was not a member of the IEC, yet
he was invited to attend this meeting
and he already had prior
knowledge about votes by proxies which were against him. The obvious
question is who informed him about
this and why?
[45]
The next day, 16 November 2015 (before the general meeting that
evening) the plaintiff circulated a
newsletter to the defendant and
other members of the HOA. The subject was
"Urgent
Notification from the Independent Electoral Committee".
It
is stated in this newsletter that the IEC has received
''prima
facie evidence of possible extremely serious irregularities in the
manner and number in which proxies for the various proposed
resolutions have been obtained by certain candidate(s) for both CGM
and AGM
of
later today".
It has also been pointed out
that door to door and other mass canvassing for proxies by any
candidate or someone on his/her behalf
"are for obvious
reasons strictly prohibited".
Members who have
"unwittingly
issued proxies"
in contravention of the rules were then
called upon to
"revoke such proxies"
by informing
the association thereof and to attend the meeting themselves. Does
this mean that a decision about the validity of
these proxies had
already been taken?
[46]
During the evening of 16 November 2015
the HOA's Annual General Meeting took place. It is not in dispute
that Dr Pretorius presided
over the meeting as chairman whilst also
being a candidate who stood for re-election as chairman. According to
the transcript of
this meeting Dr Pretorius requested the plaintiff
to address the members. The defendant also attended this meeting. The
plaintiff
then indicated,
inter alia,
that
"voting
on all proposed resolutions might have already been predetermined by
these proxies".
She then, as
chairperson of the IEC, advised the chairman, Dr Pretorius, that the
meeting should be postponed until the IEC has
been afforded the
opportunity to fully investigate the numerous complaints regarding
the validity of proxies. A debate then followed
whereafter the
chairman, Dr Pretorius, ruled that both meetings should be postponed
until further notice.
[47]
When questioned about the fact that Dr
Pretorius presided over the meeting whilst also being a candidate,
the plaintiff replied
that
"this
has nothing to do with me".
Chairman
and candidate for the same position, already knowing the result of
the proxy votes against him, all to the knowledge of
the plaintiff,
what inference would in all probability have been drawn by the
residents, had they known about this? Does this question
not have a
bearing on the task of the IEC? These questions are not aimed at Dr
Pretorius, but relate to the issues before me. It
is not intended to
be a finding against Dr Pretorius. He is not even a party to these
proceedings. He had no opportunity to testify
or to defend himself.
It only concerns the question, with regard to the plaintiff and the
defendant, whether the defamatory statements
about the plaintiff were
relevant and reasonably appropriate to the occasion, without deciding
whether or not they are true, and
nothing more.
[48]
Outstanding features of the two
statements in dispute, as alleged by the defendant, are false
allegations regarding canvassing by
candidates, influencing residents
to view the new candidates in a negative way and false and
unsubstantiated allegations stipulated
as facts to canvass for the
current sitting candidates. Having regard to the objective facts
referred to above, it appears to me
that the impugned allegations all
relate to the election process for the appointment of a new chairman
and a director for the environmental
portfolio. This process includes
what transpired prior to and during the Annual General Meeting as
well as the fact that it had
been postponed until further notice.
There is a direct link between these allegations and that process.
They all concern the same
subject-matter, i.e. the issue about
proxies and the election that was supposed to take place. These
allegations also relate to
the alleged conduct of the plaintiff
during this election process with regard to,
inter
alia,
the contents of the
notification that was circulated on the morning of 16 November 2015
and the perceived support for Dr Pretorius
by the plaintiff. Having
considered all the facts and circumstances, I conclude that the
defamatory statements, whether true or
not, are all relevant and
reasonably appropriate to the occasion.
[49]
Finally, I have to consider the
plaintiff's evidence in cross-examination that the impugned email was
circulated maliciously. Save
for this allegation, there is no other
evidence to indicate, for instance, that the defendant did not
believe that the facts stated
by her were not true or that these
statements were made recklessly, regardless of whether they are true
or not. The defendant testified
that she wanted to complain about the
conduct of Dr Pretorius and the plaintiff and that she believes her
allegations about them
to be true. A plaintiff may rebut the defence
of qualified privilege by alleging and proving malice, i.e. an
indirect or improper
motive
(Naylor
v Jansen
2006 (3) SA 546
(SCA)
at 555 par 12). As was pointed out by counsel for the defendant the
plaintiffs reference to
"malice"
on the part of the defendant during
cross-examination was never put to the defendant, nor pleaded in the
particulars of claim or
in replication. This is an isolated
allegation in cross-examination, which came as a surprise, and which
appear to be without any
substance. The defence of a qualified
privilege is therefore upheld. In view of this finding it is not
necessary to also consider
the defence pleaded in the alternative.
ORDER
In the result I grant the following
order:
The plaintiffs claim is dismissed with costs.
D S FOURIE
JUDGE OF THE HIGH COURT
PRETORIA