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[2019] ZAECMHC 33
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Ngwadle and Another v Water Sisulu University and Another (4229/2016) [2019] ZAECMHC 33 (25 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO.4229/2016
In
the matter between
NCEDIWE
NGWADLE
First Plaintiff
NOKUTHULA
MTHWA
Second Plaintiff
And
WALTER
SISULU UNIVERSITY
First Defendant
BRIGID
MOSOLA
Second Defendant
JUDGMENT
NQUMSE
AJ
[1]
This is an action based on defamation in which the plaintiffs claim
the sum of three
million rand (R3 000 000. 00) each for damages
suffered.
[2]
The plaintiffs pleaded that on or about 8 October 2015, the
second defendant
whilst acting within the course and scope of
her employment, wrote and published a letter to the plaintiffs, of
and concerning
them that they were unlawfully issuing clearance
certificates for students who were indebted to the first defendant in
return for
a bribe. The copy of the letter was annexed to the
summons and marked Annexure A.
[3]
The plaintiffs pleaded further that the second defendant unlawfully
caused the copy
of the said letter to be published to the plaintiffs’
colleagues who are employees of the first defendant, amongst whom
were
Maggie Chirwa, Mlamli Adonis, Nkululeko Mjamba, Nyaniso
Bunguza and other employees of the first defendant having similar
responsibilities as the plaintiffs.
[4]
The defendants entered an appearance to defend, service and filing of
a plea being
done, there was no appearance from both defendants
despite having been served with the notice of set down. The
election by
the defendants not to appear is unfortunate and thus
leaving the court at a disadvantage of knowing if there is any
defence such
as fair comment or justification that there may be, for
the publication of the impugned email.
Background
Facts
[5]
The first plaintiff testified that she is employed by the first
defendant. During
2015 and at the time of this incident she was
working in the student debt section of the university but has since
pursuant to the
incident been removed and placed in a different
section.
[6]
On 8 October 2015 she and the second plaintiff received an email from
the Chief Financial
Officer, Ms Brigid Mosola in which she mentioned
that the plaintiffs were giving students clearance certificates in
order for the
students to receive their qualifications in return for
bribes.
[7]
The first plaintiff denies the truthfulness of the allegations
against them. She instead
stated that a certain student was caught
with a fraudulent certificate that bore her signature. The said
student was subsequently
charged for fraud. She also referred
to the expert findings that were annexed in the pleadings as D1- D5
wherein the
expert showed how her signature had been copied from
original clearance certificates that she had issued lawfully on
previous occasions.
[8]
According to the first plaintiff, the defamatory email of the second
defendant which
was published to all and sundry has changed her life.
She has stopped attending church since she is perceived by
other church
congregants as a fraudster. She has also withdrawn
herself from mixing with colleagues for the same reason. She
also
testified that the publication of the email was distributed to
her colleagues who are at the Butterworth and East London
campuses
of the university; to the examination staff at the main
campus; and to other staff members to whom Mr Mjamba may have
distributed
the email since he was instructed to do so by the second
defendant. She further referred to other recipients to whom the
email was copied which included Thobeka Tongo, Zongezile Tulethu and
others whose names could not be displayed owing to the limitations
of
the computer from which the email was retrieved. She avers that
the email by the second defendant was intended to mean
or
alternatively to impute an innuendo that plaintiffs are dishonest
persons in the following respects:
“
8.1
They defraud the accounts of the first defendant, their employer,
8.2
They are dishonest persons who unlawfully enrich themselves at the
expense of the
first defendant by accepting bribes from
students in return for clearing their indebtedness to the first
defendant,
8.3
They are unscrupulous persons who engage themselves in criminal
activities and are not law abiding
citizens,
8.4
They lack moral fibre and should not be trusted by the first
defendant, and
8.5
That plaintiffs were acting in common purpose in the furtherance of
some or all of the above with the
intention to defraud the first
Defendant.”
[9]
According to the first plaintiff, the impugned publication has
injured her good name
and reputation. She further stated that
not only did the second defendant issue the defamatory
publication, she has
also demoted her from being a debt administrator
to a ledger officer. Concomitantly, her salary was reduced by
an amount
of R 1 900, 00 per month. The defamatory
publication against her has also jeopardised her opportunities of
promotion.
According to her, she has not succeeded in five
interviews at the university, in positions she was eligible to be
appointed for
but for the publication.
[10]
Subsequently on 3 March 2017 both she and the second plaintiff were
served with disciplinary
charges in which it was alleged that they
are being charged for issuing of clearance certificates as per the
findings of an internal
audit. However, no allegations of fraud
or bribery were levelled against them as it was alleged in the email
by the second
defendant.
[11]
The second plaintiff, Ms Nokuthula Mtwa confirmed and aligned herself
with the testimony of first
plaintiff and further stated that she is
suing both the defendants for defamation due to the actions of the
second defendant. According
to her, she and first plaintiff
were performing the same duties of issuing clearance certificates.
She further stated that
she is a single mother of an 11 year
old son to whom she was unable to relate what had happened to her.
Neither could she
relate it to her parents. She also
testified that her mother has since fallen ill as a result of this
publication.
She has stopped attending church owing to the
stigma attached to her as a result of the publication of the
defamatory material
against her.
[12]
She also referred to the clearance certificates appearing in
paragraph 6.3 of the expert findings as copies of clearance
certificates
that were copied fraudulently from clearance
certificates that bear her signature and which were lawfully issued
by her. She
explained that certificates of clearance are issued
based on information from the list of students that they receive from
the National Student
Financial Aid Scheme (NSFAS) as well as
from the deposit slips from the banks. This practise has been
followed by the university
for 9 years and was never queried by its
internal auditors.
[13]
As a result of the wide publication of the offensive and defamatory
email, she is claiming damages
to the amount of R3 million. She
further stated that since the incident, the stamps that she uses in
performing her duties
had been taken away and she regards that
decision as a demotion.
The
Law
[14]
In order to succeed on a claim for damages based on defamation
(
actio iniuriarum
)
the elements to be satisfied were stated in
Khumalo
and Others v Holomisa
[1]
as the following:
“
(a)
the wrongful and
(b)
intentional
(c)
publication of
(d)
a defamatory statement
(e)
concerning the plaintiff.”
[15]
According to the authors
Francois
du Bois
et
al
[2]
“[u]nlike an action for damages under the Aquilian law, where
all the elements have to be established prima facie, the plaintiff
in
an action for damages for defamation need establish only conduct in
the form of a publication of matter which, objectively speaking,
is
injurious to the plaintiff’s reputation (generally termed
‘defamatory matter’). Once the plaintiff has
accomplished this, the other elements of liability are (rebuttably)
presumed to exist: that is to say, it is presumed that the
publication was both wrongful and intentional”.
[16]
Turning to the words contained in the publication. I find it
necessary to reproduce the
contents of the email which reads as
follows:
“
Dear
Ncediwe, Nokuthula, I received an anonymous call yesterday that
informed me that at the N[elson] M[andela] D[rive] Campus (your
offices), students who have graduated but did not receive their
certificates due to their debts are receiving clearance from you
two
in return for (bribe) in other words, they pay you and in return you
put your clearance stamps on their documents. As
a result, some
of these graduates have received their certificates while W[alter]
S[isulu] U[niversity] sits with their debt. As
C[hief]
F[inancial] O[fficer] of this institution, I make presentation to
various council subcommittees and D[epartment of] H[igher]
E[ducation
and] T[raining] as well as N[ational] S[tudent] F[inancial]A[id]
S[cheme] on how we are dealing with the student debt
issue, what
actions we are making to resolve it. Your actions (allegations
above), if true, are in direct contradiction of what
the C[hief]
F[inancial] O[fficer]’s office is trying to achieve as through
these alleged actions, you are ensuring that the
debt issue will
never be resolved and thus this institution will never be financially
visible. In other words, you are contributing
to the financial
problems of this institution.
An
investigation into these allegations is currently underway and should
you be found guilty of taking bribes in return for your
issuing
clearances that have resulted in the certificates being issued when
they should not have been issued, you will not be suspended
but you
will be fired as this constitutes a fraudulent act. If you are
really guilty, you can take this email of mine as
your first and
final warning (the only other disciplinary activity that will take
place is your dismissal from the University).
What is going to
happen from today is the following:
“
Mr
Adonis (as the person holding an acting position of overseeing the
student debt section which covers your areas) will take the
clearance
stamps from you from today onwards he is the only person who will be
clearing students.
·
You will be moving to his section (in the other building) so that you
can work together properly and share the work.
·
I’ve already said before that no more files to be s[ent] to the
external lawyers so I hope this activity has since ceased,
you will
therefore be allocated other responsibilities as Ms Adonis deems
fit”.
The
email concludes with the words:
“
Mr
Mjamba: please forward this email to other staff members having a
similar responsibility as the two ladies above so that they
are aware
of what will happen should they be engaging in such fraudulent
activities.
Kind Regards
Brigid.
Ms Brigid Mosola CA
(SA).”
[17]
As it was also stated in
Du
Plessis v Media 24
[3]
by Tokota AJ (as he then was) that “[a]t common law it is not
an element of defamation that the statement be false because
the
defamatory nature of a statement is not dependant on its falsity.
Once a plaintiff establishes that a defendant has published
a
defamatory statement concerning him or her, it is presumed that the
publication was both unlawful and intentional. A defendant
wishing to avoid liability for defamation must then plead and prove a
defence which rebuts either the unlawfulness or intention”.
[18]
As indicated earlier, the defendant elected not to appear and to
prove a defence to rebut either
the unlawfulness or their intention
to defame the plaintiffs. In so doing they lost the opportunity
to rebut the unlawfulness
of the publication.
[19]
I am unable to disagree with the meaning and the import of the
statement that it was injurious
to the plaintiffs. This is
borne out in certain comments and remarks the author makes in the
statement such as the words
stated at the end of paragraph 2 of the
email where the following is said:
“
In other words
you are contributing to the financial problems of this institution
”
.
The impugned words
continue in the middle of paragraph 3 as follows:
“
If you are
really guilty, you can take this email of mine as your first and
final warning (the only other disciplinary activity
that will take
place is your dismissal from the University)
”
Most notably is the
instruction to Mr Mjamba which reads:
“
Mr Mjamba
please forward to other staff members having a similar responsibility
as the two ladies above so that they are aware what
will happen
should they be engaging in
such fraudulent activities
.”
(My own emphasis).
[20]
The ordinary meaning of these remarks in my view, and more
particularly the latter part of the
remarks is a clear indication
that the author had imputed on the plaintiffs that they are
fraudsters and were involved in an activity
that is plunging the
university into financial difficulties.
[21]
Taking into account all the statements referred to herein above and a
contextual reading given
to the entire contents of the publication, I
have no doubt in my mind that the publication has the effect of
impairing the plaintiffs’
right to dignity and their right to
have their dignity respected. The effect of the words in the
statement undoubtedly put
into question their probity. The
publication further presents the plaintiffs as unscrupulous persons
who cannot be trusted
and who lack moral fibre. I therefore
find that the statement or conduct complained of is capable to be
understood as being
defamatory to the ordinary reader.
[22]
A defamatory statement must be published or made known to a third
party or more
[4]
. It is
patently clear in this matter that the author of the statement
intended it to be distributed as wide as possible and
indeed, her
quest was satisfied. One needs to go no further than to begin
with the persons to which she copied the correspondence
or
publication. As if that was not enough, the strong instruction
to Mr Mjamba which was bolded, that the statement be distributed
to
other staff members is a clear demonstration and intention that the
statement must receive a wide publication within the university
community, including its branches in the various parts of the
province.
[23]
Having found that the email complained of was defamatory, what
remains is the question of quantum.
In determining quantum the
Court must have regard to:
(i)
all circumstances of the case;
(ii) the seriousness of
the defamation;
(iii)
the character and status of the plaintiff;
(iv)
the nature of the words used, the effect that they are calculated
to
have;
(v)
the extent of the publication, the motives and the subsequent
conduct
of the defendant.
[5]
[24]
Mr Matyumza, for the plaintiffs submitted that the amount of R3
million that has been claimed
by each plaintiff is excessive and it
is within the discretion of the Court to assess what is a reasonable
award that will ameliorate
the damage suffered by the plaintiffs. He
further referred me in this regard to the cases of
S.A.
Associated Newspapers
[6]
and
Buthelezi.
[7]
His main reason for referring to these cases was to invite the
Court to consider the awards that were given then and to juxtapose
them using the comparable table of damages in order for the Court to
arrive at a fair and a comparable amount in today’s
monetary
value.
[25]
The words of Innes CJ over a century ago in
Botha
v Pretoria Printing
Works
[8]
cited in
Buthelezi
are in my view still very apt when the learned judge said at 617:
““
The public
acts of public men are, of course, matters of public interest, and
criticism upon them does a great deal of good provided
corrupt
motives are not imputed. But the character of a public man is
not only a possession precious to himself, but is,
in a very real
sense, a public asset. If any person knows anything against the
character of a public man which makes him
unfit for the position
which he occupies, such person is not only justified, but bound, to
inform the public of the facts, and
to substantiate them for the
public benefit if necessary. But if he makes attacks without
verifying his facts, and is not
prepared to justify them, he incurs a
liability for substantial damages. There are elementary truths
which are apt to be
overlooked. We are entering upon a period
when there may be great public excitement, and much public criticism;
and I think
the Court should, by its attitude, impress upon all
concerned that attacks upon the private character of public men are
not to
be lightly made, and that if they are made, apart from
privilege, they must be justified.””
[26]
Whilst I am mindful of what was said by Nugent JA in
Tsedu
[9]
I have nevertheless sought guidance from previous awards which have
been made by our courts. A few examples are illustrated
in the
cases that follow.
[27]
In
De
Flamingh v Pakendorf
[10]
an advocate who was defamed by the defendant in publishing a
libellous report was awarded R2500.00 (Two Thousand Five Hundred
Rand).
[28]
In
Mthimunye
v RCP Media and Another
[11]
,
a municipal manager about whom a report was published in the City
Press about an alleged sexual harassment of a secretary in his
office
was awarded R35 000.00 (thirty five thousand rand) pursuant an
apology by City Press which the court found to be insufficient.
[29]
In
Isparta
v Richter and Another
[12]
an amount of R40 000.00 (forty thousand rand) was awarded to a
plaintiff who was alleged in a publication on Facebook that
the
plaintiff encouraged and tolerated sexual deviation, even
paedophilia.
[30]
In
casu
both plaintiffs are employees of the first defendant.
It does not appear to me that they hold senior positions or
managerial
positions. This is borne out in their administrative
duties and the fact that they are working under the suspension of Mr
Adonis who is responsible for overseeing the student debt section.
They also hold no other senior positions externally save
that
the first plaintiff is a member of a church which she has since
backslided from, and the second plaintiff is an elder
in her church.
This does not in any manner detract from the damaging effect the
publication may have had on their reputation.
[31]
However, taking into account the facts in
casu
and the
previous awards which are considered relevant to this matter and the
fact that the defendants have not apologised, I am
of the view that
an award of R50 000.00 (fifty thousand rand) would be fair and
reasonable for each of the plaintiffs. In
the result I make the
following order:
1.
Judgment is granted in favour of the plaintiffs against the
defendants jointly
and severally, the one paying the other to be
absolved, in the sum of R50 000.00 for each plaintiff.
2.
The defendants are ordered to jointly and severally, the one paying
the other
to be absolved, to pay the plaintiffs’ costs in the
appropriate magistrates’ court scale, but including the costs
of
Counsel.
V.
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
No appearance for the Defendants.
Counsel
for the Plaintiff:
Adv Matyumza
Instructed
by: Messrs
K. B. Mabanga
Attorney
for Plaintiff
137
York Road
MTHATHA
Held
On:
20 May 2019
Delivered: 25
June 2019
[1]
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para
18.
[2]
Francois du Bois
Wille’s
Principles of South African Law
9
ed.
(2007) at pages 1167-8.
[3]
Du
Plessis v Media 24 t/a Daily Sun and Another
2016 (3) SA 178
(GP) at page 184 para 18; See also
Sayed
v Editor, Cape Town and Another
2004 (1) SA 58
(C) at 61;
Borgin
v De Villiers and Another
1980 (3) SA 556
(A);
Marais
v Richard and Another
1981 (1) SA 1157
(A) at 1166 F-1167A;
Neethling
v Du Preez and Others
;
Neethling
v The Weekly Mail and Others
[1993] ZASCA 203
;
1994 (1) SA 708
(A) at
770I-J.
[4]
Rivett-Carnac
v Wiggins
1997 (3) SA 80
(C) at 88.
[5]
Muller
v S.A. Associated Newspapers Ltd and Others
1972
(2) SA 589
(CPD) at 595.
[6]
S.A.
Associated Newspapers Ltd & Another v Samuels
1980 (1) SA 24
(AD) (
S.A.
Associated Newspapers
).
[7]
Buthelezi
v Poorter & Others
1975 (4) SA 608
(W) (
Buthelezi
).
[8]
Botha v
Pretoria Printing Works Ltd.
1906
T.S. 710.
[9]
Tsedu
and Others v Lekota and Another
[2009]
ZASCA 11
;
2009 (4) SA 372
(SCA);
[2009] 3 All SA 46
(SCA) (
Tsedu
).
[10]
De
Flamingh v Pakebdorf en ń Ander, De Flamingh v Lake en ń
Ander
1979
(3) SA
676
(TPD) at 684 B-H.
[11]
Mthimunye
v RCP Media and Another
2012
(1) SA 199
(TPD) at para 29.
[12]
Isparta
v Richter and Another
2013
(6) SA 529
(GNP).