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[2016] ZAKZDHC 33
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S.K.J v P.J and Another (4918/2012) [2016] ZAKZDHC 33 (22 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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OFFICE OF THE
CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO:
4918/2012
DATE:
22 JULY 2016
In
the matter between:
S
K
J
.......................................................................................................................................
PLAINTIFF
And
P
J
...........................................................................................................................
FIRST
DEFENDANT
DR
PRAVESH
HEMRAJH
............................................................................
SECOND
DEFENDANT
JUDGMENT
Date
delivered: 22 July 2016
MASIPA
J:
Introduction
[1]
The plaintiff instituted divorce proceedings against the first
defendant and sued the second defendant for damages stemming
from an
alleged adulterous relationship with the first defendant. The
plaintiff tendered to withdraw the claim against the second
defendant
pursuant to a Constitutional Court decision in the matter of
DE
v RH
2015(5) SA (CC) where the court
found that as a result of a change in norms and standards of society,
adultery was no longer an
offence. Divorce proceedings between the
plaintiff and the first defendant were finalised on 1 February 2016
following an agreement
between the parties. However, the case between
the plaintiff and the second defendant could not be resolved.
[2]
The plaintiff’s tender to withdraw the claim against the second
defendant was accepted. A notice of withdrawal by consent
was filed
on 28 January 2016. There was however no tender for costs and the
parties sought for this to be determined by the court
together with a
counter claim for defamation filed by the second defendant against
the plaintiff.
The
Evidence
[3]
The plaintiff’s evidence was that he was married to the first
defendant on 13 May 2000 which marriage was dissolved on
1 February
2016. They had a child who was 8 years at the time of their divorce.
The second defendant was the plaintiff’s
general practitioner
from when he was 16 years old and also treated members of the
plaintiff’s family and extended family.
[4]
The plaintiff and the second defendant established a close friendship
and lived in the same neighbourhood. The plaintiff helped
the second
defendant’s children with their school projects and with his
house and work computer repairs. The plaintiff respected,
trusted and
looked up to the second defendant who was older than him.
[5]
The second defendant’s medical practice is in the old Moss
Street, now George Sewpersadh Street, in Verulam, north of
Durban.
The first defendant used to answer phone calls received on her
cellular phone in the plaintiff’s presence. This changed
in
2009 where she would answer her phone and walk away from the
plaintiff. The plaintiff found this behaviour suspicious especially
when she started coming home late. He was of the view that she was
hiding something from him.
[6]
The first defendant was employed in Smith Street, Durban and her
working hours were from 08h00 to 17h00. She usually returned
home
before 18h00, but this changed towards the end of 2009. At that
stage, their child was 3 years old. The first defendant’s
explanation for the change was that she was working until late.
[7]
Towards the end of 2009, while the plaintiff was in his workshop at
his home, he overheard the first defendant talking to someone
on her
cellular phone in the nanny’s bedroom in a very affectionate
manner like a boyfriend and girlfriend would.
[8]
The plaintiff stated that the first and second defendants were
friends at the time although there existed a doctor-patient
relationship. He inspected the first defendant’s phone for
messages and calls made or received but found them deleted. He
also
went through her handbag on 2 February 2011, and he found two
Valentine’s Day cards but only one was given to him.
[9]
On 15 February 2010 he again went
through her handbag and found a female ring wrapped in a tissue
hidden inside the bag but did
not say anything to the plaintiff. The
next day, she told the plaintiff that she had seen a ring which she
wanted to buy. A
day later, she
showed him the ring he
had seen in her bag and said she had just purchased it. She took off
her wedding band and replaced it with
the new ring.
[10]
As a result of this suspicion,
the plaintiff installed a tracker on the first defendant’s
motor vehicle without informing
her. The vehicle tracking report
covers the period from 23 February 2010 to 11 August 2010 and show
that the first defendant travelled
from Durban to Verulam and parked
at or near Moss Street, where the second defendant’s surgery is
located.
[11]
The second defendant had two motor vehicle collisions. During this
period the tracking device correctly reflected the status
of the
vehicle and its location. The plaintiff summarised the first
defendant’s trips to Verulam to be 12 trips spending
between 47
minutes to 1 hour 2 minutes.
[12]
The plaintiff and the first defendant visited the second defendant’s
home. During the visits the second defendant never
mentioned that the
first defendant assisted his children with their projects.
[13]
It was agreed by counsel for the plaintiff and the second defendant
that the cellular phone numbers appearing on the cellular
phone
account forming part of the bundle of documents correctly reflected
the first and second defendant’s cellular phone
numbers. The
plaintiff also compiled a schedule of the phone calls between the
first and second defendants. The number of calls
made by the first
defendant to the second defendant between 1 May 2011 and April 2014
constituted 58,32 per cent of her phone calls.
The plaintiff stated
that the first defendant occupied a senior position at work and was
able to use her cellular phone during
working hours. He could not
think of any conceivable reason for the regular contact.
[14]
During April / May 2010, there was a disagreement between the
plaintiff and the first defendant and out of anger he told the
first
defendant that he was going to tell her parents about her affair with
the second defendant. The first defendant walked away.
The plaintiff
then reported the incident to her family whom he regarded as their
support structure and asked for their help.
[15]
He told the first defendant that he was prepared to work on their
marriage for the sake of their child. The first defendant
initially
challenged him and then became remorseful. During the conversation he
undertook not to take the child away.
[16]
After the discussion with the first defendant during 2010, the
atmosphere improved for a few months. The second defendant’s
wife phoned the plaintiff on two occasions. In response to the second
defendant’s wife’s questions, he said that he
did not
think that the first and second defendants had an affair. This was
not true and he did this as he regarded the second defendant
as
family.
[17]
After four months the first defendant returned to her strange and
suspicious behaviour. There was another confrontation on
9 February
2011 about her returning home late. She lost consciousness during
this confrontation and he had to get assistance from
emergency
service to resuscitate her.
[18]
When he took the decision to institute divorce proceedings he
informed the second defendant’s wife because of their
relationship and also because the second defendant was going to be a
party to the proceedings. After this the plaintiff continued
to live
with the first defendant for a year and a half and moved out as their
relationship became acrimonious.
[19]
In an email sent to the first defendant dated 24 October 2011 he
communicated that there was no possible reconciliation. He
sent
another email on that day as he was amazed that she had confessed to
and then denied the affair.
[20]
It was quicker for the Plaintiff to drive home using the M4 as
opposed to driving to Verulam and then to her home. Driving
to
Verulam first added approximately 15 kilometres to her trip which was
unnecessary.
[21]
In respect of the publication of the alleged affair, the plaintiff
said that he had only spoken to his mother S B J and S H,
the second
defendant’s wife. He had not spoken to the nursing assistants,
Linah Nchamphalala and Sylvia Mtshali.
[22]
After the breakdown of the relationship between him and the first
defendant, he went to the second defendant’s surgery
once with
his parents to clarify certain accusations made by the two nursing
assistants.
[23]
The plaintiff could not recall any house calls by the second
defendant to his family members while the plaintiff and the defendant
lived together.
His father had a heart condition
during the period of their visit to the second defendant’s
surgery. He had no comment to
the suggestion that the nurse
assistants did not say anything out of concern for his father. He was
unaware that the nurse assistants
had prior to his visit reported
their communication with his mother to the police which resulted in
statements being made.
[24]
He conceded during cross – examination that he had not
witnessed any adultery committed by the first and second defendants.
He also admitted that he was untruthful in his evidence that he had
an engineering degree since he had an engineering diploma.
He said
this was a mistake. He denied the suggestion that he left his
employment with Cell C due to allegations of fraud and theft.
He
agreed that he lied to the second defendant’s wife on two
occasions.
[25]
The plaintiff was aware that there was a U-Save supermarket on Moss
Street frequented by members of the public. There were
several
destinations that people could go to on Moss Street. While he was
married to the first defendant, he never saw the second
defendant
giving her a present.
[26]
Precious
Manqele (‘Manqele’)
testified that she worked for the plaintiff and the second defendant
from 2009 to 2011 as a cleaner.
During that period, she lived in a
caravan outside their house. She used an outside toilet attached to
the house. Her working hours
were from Monday to Friday 07:30 to
14:30 and 19:00 to 20:00 and Saturday from 07:30 to the afternoon.
She left the premises over
the weekend. The first defendant allocated
her tasks. She confirmed the first defendant’s working hours
but said that three
times a week she would return home late.
[27]
There was a nanny living in the property by the name of Anitha Singh
(‘Singh’). Singh arrived for work on Sunday
evening and
left on Friday evening. During Manqele’s employment by the
plaintiff and the first defendant, the only grocery
item purchased by
the first defendant was bread. All other items were purchased by the
plaintiff.
[28]
Manqele knew the second defendant as a family doctor and had also
consulted him numerous times. During February 2010, on the
birthday
of the plaintiff and first defendant’s child, Manqele was in
the house around 7 a.m. in the kitchen. The first defendant
was in
the house with the child. Manqele heard the sound of a door
suggesting that someone was entering the sitting room. She continued
working.
[29]
To clean the bathroom, she had to walk through the passage. When she
entered the passage, she saw the first and second defendant
in the
middle of the passage in a close embrace kissing each other like
lovers. Manqele had been in a relationship before and knew
how lovers
kissed. She could not say for how long they were kissing. She insured
that the first defendant saw her and then went
out of the house in
shock. The first defendant acted like nothing happened and did not
say anything, neither did Manqele. Their
relationship which had been
cordial up to then changed.
[30]
She told Singh about the kissing incident and only told the plaintiff
about this in 2011. She was dismissed before she could
tell him about
the second incident. She only told his attorneys about it.
[31]
During her employment by the plaintiff and the first defendant, Singh
never worked on weekends. They discussed everything and
she would
have known if Singh worked on Sundays. The birthday party was on a
Saturday since Singh was not there. She accepted that
the 19th
February 2010 was a Friday. She could not recall how old the child
was turning. Manqele ordinarily worked until 2 pm on
Saturdays but
was asked to work overtime on the day of the birthday party.
[32]
That day, the plaintiff had left early in the morning to repair an
aerial and joined the party on his return. She had not seen
him
leave. When she heard the door opening it was 7:30 a.m. She had been
in the house from 7:00. She did not see the second defendant
arrive.
She did not wear a watch and used her cellular phone to determine the
time.
[33]
When she returned to the house after the kissing incident, the second
defendant had left. She did not know how long he had
stayed for. She
did not say anything after witnessing the kiss because she was afraid
of being dismissed. She only told the plaintiff
about the incident
when he asked her about it. If the plaintiff and first defendant were
not divorcing, she would not have told
him about it.
[34]
There was a second incident a few weeks after the first one. She did
not know the date for the second incident but said that
it was 5 a.m.
and she was going to the toilet when she heard the sound of a motor
vehicle. The plaintiff had travelled to Johannesburg
for work and the
first defendant was alone with her child in the house. After hearing
the sound, she went around the house to the
side of the garage and
saw the second defendant’s motor vehicle which was turning to
the road. She recognised the motor vehicle
as that of the second
defendant because she had collected medicine from him on previous
occasions. There was no sick person in
the house when she went in at
7 a.m. that morning.
[35]
The second defendant drove a small dark grey motor vehicle and not a
4 x 4. She said the second defendant bought the big motor
vehicle
later. She could not say how long the motor vehicle was there for
that morning. Whenever she collected medication from
the second
defendant, she had to reach out to the car window. She would
not have known if someone had arrived in the house
the night before.
She conceded that the incident occurred during or about the beginning
of May. Although the sun was not out at
5 a.m., there was light and
the lights outside the house were lit. Despite not recalling the date
for the second incident, she
said that it had occurred and that her
evidence in respect of both incidents was true.
[36]
When she was employed by the plaintiff and the second defendant she
was in a relationship with Dan, a gardener from Mozambique.
She told
them that she was also from Mozambique and only told them the truth
after Dan assaulted her. This was the only untruth
she told. She left
the employment of the plaintiff and first defendant during December
2011 when they told her that they were separating
and were going to
their respective homes. She went to work for the plaintiff’s
brother but left due to the heavy workload.
She
accepted that she had an issue with the first defendant as she
believed she was going to dismiss her.
[37]
She attended court as she was asked to and was not promised any
payment in return for her evidence. She was to be paid for
her lost
days of work and for lunch. The plaintiff previously paid for her
transport costs from Johannesburg. She attended court
on three
separate occasions and on the second occasion was given R200 for her
lost a day of work.
[38]
When she lived with the Jugernarths, there were lights in front of
the garage, next to the gate and an electric pole. These
lights were
switched on during the night and turned off in the morning. When the
second incident occurred the lights were still
on. She did not know
the number of people who were at the birthday party.
[39]
Ravi Moodley (‘Moodley’) testified that he is employed by
C Track Fleet Management in Durban North as a technical
manager and
has been in the company for 18 years. He had been living in Durban
for 43 years and was familiar with the M4 highway
from Durban to La
Mercy.
[40]
From Durban to La Mercy there are many shopping centres alongside the
M4 highway. He mentioned that those close to the highway
included
Hyper–by–the–Sea, La Lucia Mall, Gateway and
Umhlanga Shopping Centre. Gateway is on the left away from
the sea.
One could purchase groceries from any of these shopping centres.
[41]
In his position, he has access to software and access to all
hardware. He accesses and produces current reports upon request
by
attorneys. Old reports are requested from Pretoria where the data is
kept. He received a request for information on a motor
vehicle with
registration letters and numbers NJ 33127 during August 2014.
Pursuant to that he obtained the information from Pretoria.
[42]
The report which formed part of a bundle is for the period 23
February 2010 to 11 September 2010. The tracking device installed
on
the motor vehicle provided real time live tracking if anyone wanted
to know where the vehicle was. They monitored the vehicle
at the
client’s instance, which in this instance was the plaintiff.
[43]
The device operated with GPS which communicates with a satellite. The
device collects the motor vehicle information and communicates
it
electronically through GPS to a central data base in Pretoria. There
were recent developments to the system.
[44]
Moodley received the exhibits as attachments to an email from their
support centre which he forwarded to the plaintiff’s
attorneys.
He dealt with client requests on a daily basis. The system was
accurate and if there was a query, he investigated it.
In respect of
live system, if anything suspicious was observed, they called the
client and enquired about the cause of the problem.
If it was a
recovery of a motor vehicle they sent someone.
[46]
The location, date, time, status and position of vehicles fitted with
the device are identified through satellite connection
with the
device. Status identifies whether the motor vehicle engine is on or
off. Where the report recorded at or near a specific
location, his
evidence was that it provided the actual location of the vehicle.
[47]
Where the report stated ‘near West Street’, he could not
say how many metres away from West Street the vehicle
was parked. The
system identified the closest road to the location of the vehicle.
The information is stored in the hub and the
system is reliable. They
never lost information and retained records, saved and stored them.
He certified the information on the
report as reliable and correct
and was gathered and stored as part of his employers business.
[48]
During cross–examination, he said that the accuracy of the
vehicle tracking system never changed. In respect of
the ‘near
West Street’ location, he accepted that the phrase placed the
vehicle anywhere near West Street and conceded
that when the report
placed the first defendant’s motor vehicle at or near Moss
Street, it could have been anywhere near
Moss Street.
[49]
In respect of shopping centres between Durban and La Mercy along the
M4 highway, he said that he only mentioned those he could
recall.
Verulam is located north of Durban. He however disagreed when it was
put to him that in so far as the report referred to
south of Durban
it was incorrect. He said the report derived from the map and was
correct. He accepted that reference to Durban
was in fact eThekwini.
In order to fully understand the location, the map had to be used. He
said that the machine cannot lie.
[50]
The data collected through the system is archived and extracted on
request. He conceded that he did not extract the information
and said it came from the actual system. He did not install the
device on the first defendant’s motor vehicle and said it
was
done by their workshop after the plaintiff signed a contract. They
did not know who the owner of the vehicle was but knew their
client.
The report did not identify the driver of the vehicle.
[51]
He said on re-examination that an expert was required to explain the
location of vehicles. He did not know what the reference
point ‘2.3
South of Durban’ meant.
[52]
The second defendant’s evidence was that he was a medical
doctor. He never had a sexual relationship with the first defendant
and never committed adultery. He denied having attended the
plaintiff’s home on the two occasions referred to by Manqele.
He never owned a small grey motor vehicle, neither did his wife.
[53]
He had close family bonds with the plaintiff’s extended family
as he was their doctor. He and the plaintiff had an excellent
relationship and a close bond beyond that of a doctor and his
patient. The plaintiff helped him with computers at his surgery and
during or about 2006 sold him a computer for his home. He had a
closer relationship with the plaintiff than the first defendant
to
the extent that the plaintiff was the listed person on his security
reaction records.
[54]
The plaintiff went to the second defendant’s house
approximately four times a month to repair the computer he had sold
to him. They also socialised at his house during the plaintiff’s
visits. The second defendant’s evidence was that he
placed a
high premise on preserving and protecting family and friendship.
[55]
He learnt from his nursing assistants on 7 November 2011 at 16:30,
that the plaintiff reported the first defendant’s
alleged
affair to her parents. The nursing assistants told him that the
plaintiff’s mother went to his surgery on 5 November
2011. He
was upset when he heard of that as the information was communicated
to him during his consultation. He waited until 17:45
to phone the
plaintiff but could not reach him. The reason for the phone call was
to discuss the plaintiff’s mother’s
medical results which
were concerning and to enquire about the issue raised with him by the
nursing assistants.
[56]
He left a message on the plaintiff’s phone saying that he
wanted to see him.
[57]
Two days later on 7 November 2011, he was confronted by the plaintiff
and his parents at the surgery. He assumed they had come
to him for
the blood test results but they said they were not. Prior to the
plaintiff’s arrival at the surgery on 10 November
2011, the two
nursing assistants went to the police station and deposed to
affidavits. The first defendant was angry and astonished
when the
second defendant phoned her on 10 November 2011. The plaintiff
confronted the nursing assistants about what was said by
his mother
about the first defendant’s sister.
[58]
The second defendant conceded that the first defendant phoned him
about nine times a day. The phone calls were premised on
three issues
being the stock market, the first defendant assisting his children
with their school projects and his activist activity
during 2001 –
2008. The plaintiff had requested him to assist the first defendant
with the stock market trading.
[59]
From 2009 he collected newspaper clippings on the government’s
failure to deliver service and corruption. He and the
first defendant
worked together to ensure that the African National Congress did not
achieve the two thirds majority which would
allow them to change the
Constitution. The first defendant disseminated information by email
to church leaders and universities
while the second defendant posted
it. The information they disseminated was factual with newspaper
summaries, date and names. While
collating the document, the first
defendant went to his surgery to collect newspaper clippings. He did
not know the number of times
she did this as he did not see her. The
clips were left with the nursing assistants to hand to her. The
project was discussed openly
during the visits by the plaintiff and
first defendant.
[60]
He informed his attorneys about the project and documents relating to
it were discovered. He said that the plaintiff was vindictive
as he
knew that there was no relationship between him and the first
defendant. He said it was for his advocate to answer why his
version
on the project, the stock market and the first defendant assisting
his children were not put to the plaintiff.
[61]
The second defendant’s working hours were from 09:30 or 08:30
to 16:30 or 18:30 when busy. Sometimes the first defendant
called him
in the evening if she needed to finish an article or required
assistance with his daughter. Both the plaintiff and first
defendant
assisted his children with their projects.
[62]
The first defendant spoke to the second defendant every day. On the
days that she managed to see him in the surgery it would
have been
16:30. He said that the phone records discovered by the plaintiff
were from 2011 while their project commenced in 2009.
The first
defendant phoned him when she knew that he was not consulting. His
wife was aware of the project since it was discussed
during visits by
the plaintiff and the first defendant.
[63]
The second defendant disputed the version that there was a romantic
and sexual relationship between him and the first defendant.
The
plaintiff’s mother told the second defendant’s nursing
assistants about the adulterous relationship. When a request
for
further particulars was received by his attorneys asking for the
identity of persons to whom the publication by the plaintiff
was
made, he handed his attorneys affidavits by the nursing assistants.
This may have been the reason their names were included
on the reply
to the request for further particulars. It was apparent that the
plaintiff communicated the allegations to his mother
who in turn told
the nursing assistants.
[64]
On Monday 7 November 2011 at about 16:30, Nchamphalala told him that
on 5 November 2011, the plaintiff’s mother arrived
at the
surgery around 08:30 a.m. She said that they should stop cleaning and
sit next to her. She called the first defendant profanities
and
said she behaved like her sister who divorced her husband as the
first defendant wanted to divorce her son for the second defendant.
She said she was not happy being there and wanted to get another
doctor.
[65]
The first defendant would also call him on the weekend and would call
him when he was with his wife to discuss the stock market.
He did not
discuss the calls with his wife but said they have an open
relationship. The first defendant was doing well with the
trading and
even used money from there to pay for her daughter’s school
fees. He had no idea where the first defendant parked
when she
visited his surgery. He had no idea that his wife phoned the
plaintiff.
[66]
He accepted that there was a pattern that the first defendant phoned
him before 18:00. He said however that they both had family
responsibilities to attend at home during the evening. The first
defendant could however phone him in the evening for advice on
the
stock market of articles relating to the project. The project was not
a secret and their spouses knew about it. If the plaintiff
did not
know, it meant that he was busy with computer repairs.
[67]
He alleged that Manqele told Mtshali that she would be rich after the
trial and Mtshali told Nchamphalala. This evidence was
challenged as
a fabrication since it was not put to Manqele. She did not inform his
attorneys of this and that Nchampalala could
be questioned about it.
[68]
He owned two motor vehicles being a Lexus SUV and a Prado. The last
time he drove a small vehicle was when he was an intern.
The other
vehicle which Manqele could have referred to as small was his C-Class
Mercedes Benz.
[69]
When Linah Hlengiwe Nchampalala’s (‘Nchampalala’)
testified, she confirmed the second defendant’s evidence.
She
also said that it was the plaintiff’s mother who spoke to the
nursing assistants.
[70]
Nchampalala corroborated the second defendant’s evidence in
respect of the events of 5 November 2011. She also testified
that she
assisted the second defendant to phone the plaintiff. She confirmed
that the plaintiff, his mother and father visited
the surgery on
Wednesday 10 November 2011. The plaintiff called her and Mtshali to
the consulting room where he was meeting with
the second defendant
since the plaintiff’s father was there and had a heart
condition. She and Mtshali did not say anything.
[71]
Nchamphalala said that she never discussed the incident regarding the
plaintiff’s mother with the second defendant and
did not tell
the second defendant’s attorneys nor made a statement relating
to this. She could not explain how they knew
what her evidence would
be. She attended court from the commencement of the trial but had
never discussed the matter with the second
defendant. He asked her
whether Mtshali had called her about issues relating to his surgery.
She denied that she wanted to please
him or that he could dismiss her
for not pledging allegiance with him. She made an affidavit after
talking to the plaintiff’s
mother and posted a copy to her and
gave a copy to the second defendant.
Analysis
[72]
It is trite that an act of defamation occurs when a person
intentionally infringes upon another’s right to good name
by
wrongfully and intentionally publishing words which have the effect
of injuring one’s status, good name or reputation.
In order for
the second defendant to succeed with his claim, he has to therefore
prove that the plaintiff published words which
were wrongful and
intended to injure his status, good name or reputation. It was common
cause that the plaintiff published the
statements regarding the
alleged adulterous relationship between the first and second
defendant to the second defendant’s
wife and to his mother.
[73]
In
Suid-Afrikaanse Uitsaaikorporasie v
O’Malley
1977 (3) SA 394
(A) the
court held that in order to succeed with a claim for defamation, a
plaintiff must show
animus iniuriandi
i.e. the intention to defame and knowledge of wrongfulness.
[74]
In respect of wrongfulness what must be determined is whether in the
opinion of a reasonable person with normal intelligence,
the
reputation of a person has been injured. See
Tsedu
and others v Lekota and another
2009
(4) SA 372
(SCA). The determination of wrongfulness is an embodiment
of society’s
boni mores
.
In
Kemp and another v Republican Press
(Pty) Ltd
1994 (4) SA 261
(E), the
court held that wrongfulness will be negated if it is proved that the
defamatory statements were substantially true.
[75]
The plaintiff concluded from the information available to him that
his wife, the first defendant, was having an affair with
the second
defendant. This was informed by the fact that the first defendant had
changed her pattern around him, returning home
late, moving away from
him when she received phone calls, making countless phone calls to
the second defendant and, once he installed
a vehicle tracking device
on her vehicle, the frequent trips she made to the vicinity of the
second respondent’s surgery.
[76]
Although the pattern was placed in dispute during the plaintiff’s
evidence, it became common cause that there were excessive
interactions between the first and second defendant. The second
defendant in his evidence sought to justify these interactions
by
introducing versions which he had not put to the plaintiff. The
second defendant conveniently remembered that it was the plaintiff
who during one of their family visits requested him to teach and
assist the first defendant with trading and that the discussion
on
his other project and the first defendant’s involvement were
discussed during one such meeting. He could not explain why
these
were only raised during his own case.
[77]
It is apparent from the evidence that as a consequence of the
plaintiff’s suspicions relating to the affair between the
first
and second defendant, which were reasonable considering the
circumstances, his relationship with the first defendant
disintegrated.
He discussed his suspicions with his mother.
This was the first publication which the second defendant is
aggrieved from. Can it
be said that by discussing this issue with his
mother, the plaintiff intended to injure the second defendant’s
status or
reputation?
[78]
The second defendant was the plaintiff’s family doctor, as well
as that of his parents, for several years. Although this
was not
specified, they must have held him in high regard. The plaintiff was,
however, having a discussion with his mother about
an issue which
involved his marriage and which had the capability of bringing it to
an end. His mother would have had an interest
in the issue and
reasons thereof. It cannot be said that the alleged affair was
disclosed to injure the status or reputation of
the second defendant.
This was clearly done for the plaintiff’s mother to understand
why his marriage was disintegrating.
[79]
The evidence of Nchampalala reveals that it was the plaintiff’s
mother and not the plaintiff who informed her about the
alleged love
relationship between the first and second defendant. The plaintiff
cannot be held liable for this publication since
he had confided in
his mother. If the second defendant wished to pursue a claim based on
the publication to his staff members,
he ought to have instituted a
claim against the plaintiff’s mother or joined her as a party
to these proceeds. In the absence
of this, the evidence in respect of
the publication to the staff members is irrelevant to the plaintiff.
[80]
The second publication is that made to the second defendant’s
wife. The plaintiff’s evidence was that he informed
her of the
alleged affair when he contemplated instituting legal action against
both the first and second respondent. This was
because he intended
suing them for adultery. As mentioned earlier, the adultery claim was
initiated and then withdrawn following
the Constitutional court
judgment. When he spoke to the second defendant’s wife, the
decision of
RH
v
DE
2014
(6) SA 436
(SCA)
was
not yet determined on appeal. He believed therefore that he had a
case to pursue.
[81]
It is common cause that the plaintiff’s family and that of the
second defendant were friends who visited each other often.
The
second defendant’s own evidence was that the plaintiff was even
registered as an alternative contact person with his
security
company. The plaintiff’s explanation was that he told the
second defendant’s wife about the alleged affair
between their
respective spouses due to their close friendship. He did not want her
to be taken by surprise. Whatever the reason,
the plaintiff published
information relating to the second defendant to a third party even if
she is his wife.
[82]
In
Whittington v Bowles
1934 EDL 142
, the court found that communication of words to a spouse
of the plaintiff or defendant would not in law constitute
publication.
[83]
Analogous to the publication to the plaintiff’s mother, the
question is whether in publishing the words, the plaintiff
had any
intention to injure the second defendant’s status or
reputation. No such intention was proven. The only version providing
reasons why the words were said is that which was provided by the
plaintiff. In the absence of evidence to the contrary, I have
to
accept the plaintiff’s version that he discussed the alleged
affair with the second defendant’s wife as a matter
of
courtesy. Once this is accepted, it cannot be said that there was any
intention to injure the second defendant’s status
or
reputation.
[84]
Hefer JA in
National Media Ltd and
others v Bogoshi
1998 (4) SA 1196
(SCA)
found that the general criterion of reasonableness is based on
consideration of fairness, morality, policy and the court’s
perception of the legal convictions of the community. Therefore,
courts must in each case determine whether public and legal policy
require particular publication to be regarded as lawful.
[85]
In
RH v DE
the court
held ‘that in the light of the changing mores of our society
the delictual action based on adultery . . . has become
outdated and
can no longer be sustained - that the time for its abolition has
come.’ The Constitutional Court in
DE
v
RH
found
that the act of adultery by a third party lacks wrongfulness for
purposes of a delictual claim. It is therefore not reasonable
to
attach delictual liability to such an act and that is what public
policy dictates.
[86]
The plaintiff believed that an adulterous relationship existed
between the first and second defendant. On a conspectus of the
evidence, the plaintiff’s belief was reasonably. The second
defendant denied the existence of the relationship but could
not
during the plaintiff’s case proffer an explanation of the
countless and excessive phone calls and visits between him
and the
first defendant. He only tendered an explanation during his own case
as an afterthought and an attempt to sustain his version
to refute
the relationship.
[87]
In determining the defamatory nature of a statement, the
question is whether the words complained about are reasonably
capable
of conveying to a reasonable person a meaning which defames
plaintiff. (See
Le Roux and others v Dey
2010(4) SA 210 (SCA))
[88]
Even if the plaintiff’s belief was wrong, in view of the
decision of
RH,
public
opinion no longer considers adultery a taboo. In view of this, a
statement to the effect that a person committed adultery
can no
longer convey a meaning with the propensity to defame a person. A
shift in the
boni mores
of
society in respect of adultery negates the defamation claim of the
second defendant.
[89]
The second defendant had a duty to prove that his reputation was
indeed injured as a result of the plaintiff’s conduct.
No such
evidence was led. The court cannot assume that because words or
statements were made an injury occurred. In the absence
of evidence
regarding injury to the second defendant’s good name,
reputation and status, there is no case made out to prove
defamation.
In any event, society no longer views such conduct with disdain. It
can therefore not be said that a statement that
someone committed
adultery has the effect to injure the reputation, status and good
name of the second defendant.
[90]
In respect of costs, when the Plaintiff withdrew his adultery claim,
the second defendant ought to have foreseen that the foundation
on
which his case was based ceased. Therefore, he should not have
pursued his defamation claim. In any event, the norm is that
costs
follow the result. The second defendant must as a consequence bear
the costs. On the other hand, the plaintiff’s
decision to
withdraw his adultery claim was as a result of the change in the law
relating to such claims. Had there not been this
change, it was
submitted that he would have pursued his claim and had a prima facie
case. Indeed on the evidence led I am of the
view that he presented
prima facie evidence in support of this. I see no reason why he
should be held liable for any costs.
[91]
In the result, the following order is made:
1.
The plaintiff claim against the second
defendant is withdrawn with no order as to costs.
2.
The second defendant’s counterclaim
is dismissed with costs.
MASIPA
J
APPEARANCES
:
For
the Plaintiff: Adv P Haasbroek
Instructed
by: Richard Evans & Associates
For
the First Defendant: Adv Dayal
Instructed
by: B E S Agar & Associates.
For
the Second Defendant: Adv JBG Wolmarans
Instructed
by: Jeff Fobb.
Matter
heard on: 1 – 5 February 2016
Judgment
delivered on: 22 July 2016