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[2016] ZAGPPHC 1060
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Maesela v Madisha and Others (A121/2014) [2016] ZAGPPHC 1060 (19 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A121/2014
19/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MOLEFE
RALEIGH
MAESELA APPELLANT
(Plaintiff
in Court
a
quo
)
And
LESIBA
JOHANNES
MADISHA FIRST
RESPONDENT
(Defendant
in Court a
quo)
SOUTH
AFRICAN BLACK TECHNICAL SECOND
RESPONDENT
AND
ALLIED CAREERS ORGANIZATION (Third
Party in Court a
quo)
JUDGMENT
TLHAPIJ
INTRODUCTION
[1]
This is an appeal against the whole of the judgment of Legodi J which
dismissed with costs the appellant's claim for damages
suffered as a
result of the first respondent's alleged defamatory statements. The
application for condonation for the late filing
of the respondent's
heads of argument was not opposed. Condonation is therefore granted.
[2]
The following issues were dealt with by the court a
quo:
"3.1 Whether the
statement(s) are defamatory?
3.2 Whether the contents
of the statement(s) is/are true?
3.3 And if so, whether
the publication thereof were in the public interest." and
further as prompted by counsel for the defendant
during the hearing,
and couched as follows:
"Is
the plaintiff's cause of action based on the defamatory statement(s)
per se or on innuendo statement distinguishable from
statement(s)
having defamatory meaning in the ordinary sense?"
BACKGROUND
[3]
The appellant and first respondent were members of the South African
Black Technical and Allied Careers Organization("SABTACO")
and they served in its National Executive Committee, the appellant as
National President and the first respondent as National Treasurer.
The second respondentwas joined as third party by the first
respondenton grounds that he was entitled to indemnity as set out in
clause 20 of the SABTACO Constitution which reads:
"The office
bearers, employees and committee members of SABTACO are
indemnified by SABTACO against all proceedings, whether civil
or
criminal and
costs
and expenses incurred by reason of any
act
or
omission, done in good faith and in accordance with
this constitution in performance of their duties on behalf of SABTACO
and they
are not personally liable to any of the debts of SABTACO"
[4]
The following facts are common cause:
4.1. the alleged
defamatory statements werecontained in the two documents annexed to
the particulars of claim as "A" and
"B", dated 20
September 2011 and 30 September 2011;
4.2. annexure "A"
was delivered to the 'addressees in their official capacities as
specified',
4.3. the first respondent
as the author of both documents
4.4. annexure "B"
was tabled at a meeting of the National Executive Committee on 30
September 2011and the document was
distributed to all who attended;
4.5. publication was not
in dispute;
[5]
Mr Griessel for the appellant in his Heads of Argument addresses the
following excerpts from Annexure A and 8 to the particulars
of claim
as constituting the defamatory nature of the statements published by
the first respondent which read as follows:
Annexure A
(a)
Appointment of
Kedi
as
CEO for 6 months
(v)
The Treasurer clearly advised that the financial situation at SABTACO
cannot afford such ill advised process
as
pushed by the
President and
Paul which has been hatched outside SABTACO and
rammed through NEXCO despite the wise advice of the Treasurer against
such a financial
bankrupt move.
(vii)
The above advice given by the Treasurer
is
the real financial
situation of SABTACO that
is
to be implemented and the
treasurer will not allow any other activity of ill advised
maladministration of the SABTACO
finances. The Treasurer will
stop any decision that
is
of corrupt nature and
maladministration of the SABTACO funds
as
long
as
having
elected in that position and to be the custodian of the SABTACO
finance.
(viii)
It
is a/so
worthwhile to mentioned that I have advised the
President accordingly, but the President said that with his group he
is going to
make sure that Kedi is appointed regardless. I have
advised him that he must be careful with some people's money to
ma/administrate
like
that because some people are not pawns to
allow peoples money spent recklessly and thus kill SABTACO.
(ix)
The bottom line
is
that the process to employ Kedi
as
CEO
for six months and paid by SABTACO existing money
is
not
viable the situation can be saved if KEO/
is
employed
as
CEO to raise money for
SABTACO and used the money raised by
KEO/ to pay his salary and also his commission; but please let us not
embezzle SABTACO
people's money.
(c) Serious concerns
regarding SABTACO President: Mr Raleigh Maesela.
(v)
Using SABTACO for self gain which is
a
matter need to be
opened which happened in the past.
(vii)
Why
as
blacks and black organisation not only allow this
unprofessional conducts but allow ourselves to be dictated that we
should misappropriate
SABTACO funds against the advice of the
Treasurer.
Annexure B
SERIOUS CONCERNS
REGARDING SABTACO PRESIDENT, MR RALEIGH MAESELA
COMPREHENSIVE REPORT
BY THE SENIOR FOUNDING MEMBER, NEXCO MEMBER,NATIONAL TREASURER AND
GAUTENG CHAIRPERSON OF SABTACO MR L.JOEMADISHA
DATED SEPTEMBER 2011
1.
MR MAESELA
INACTIVE AS THE PRESIDENT AND NON COMPLIANT WITH SABTACO
CONSTITUTION
1.1
The President became not active on SABTACO issues about two(2)
after elected President in 2007 until advised by Joe Madisha to visit
the Head Office and be compliant with the SABTACO Constitution. After
heeding the
advice, the President instead adopted a
destructive attitude on SABTACO and a fighting style towards Joe
Madisha which is regretted.
2.
NON
COMPLIANT OF LIMPOPO SABTACO BRANCH AT THE DOOR STEP OF THE PRESIDENT
2.4
The Past President Mr Paul Kgole ran away from Gauteng SABTACO Branch
to Limpopo SABTACO branch to reinforced Non-Compliant
Paul
as
Past President ran away from Gauteng branch after the usual
persistent questions by Joe Madisha
as
to why SABTACO is not
compliant in terms of administration and financial managements.
Paul is now teaming up with the President and Limpopo to reinforce
the process of non-compliance.
3.
THE PRESIDENT
FAILURE TO FACILITATE RECRUITMENT OF THE CEO ABOUT TW0 (2) YEARS AGO
3.2
Attempt to Employ
Mr Paul Kgole proposed by the CEO Limpopo at what was called SABTACO
Council
In
what was called Council meeting which per Constitution, the President
could have not permitted Kedi to participate in the discussion,
Kedi
proposed that Paul be appointed CEO of SABTACO. The President
promoted this illegal suggested until Joe Madisha warned and
advised about the fact that the process is not only illegal, but
fraudulent
and should
be abandoned. With disgrace the
President and his Friends abandoned such
a
fraudulent activity
.
7.
USING
SABTACO TO GET OWN PERSONAL PROJECT WITH COLLEAGUES
7.1.
Work marketed and acquired through and on SABTACO name with three
other colleagues (one has passed away) and one such project
was
in Mpumalanga
7.2.
The matter got discussed by Limpopo Branch and the four or so
shared the spoils.
7.3.
Joe was told that the matter was resolved, but Joe was not happy.
[6]
In
the particulars of claim the appellant pleaded:
4.
On or about 20
September 2011 the defendant, in an email stated of and concerning
the plaintiff that:
4.1
The plaintiff "rammed" an "ill-advised"
process that was "hatched
outside" SABTACO through
the National Executive Committee
.....
which process
constituted
a
''financial bankrupt move"
4.2
The plaintiff used SABTACO for self gain;
4.3
The plaintiff is guilty of unprofessional conduct and
misappropriation of SABTACO funds.
6.
The statements by the
defendant detailed in par 4 above were wrongful and defamatory of the
plaintiff;
7.
The aforesaid
statements were made by the defendant with the intention to defame
the plaintiff and to injure his reputation.
8.
The aforesaid
statements were understood by the addressees and were intended by the
defendant to mean that the plaintiff is dishonest
and incompetent and
does not act in the best interests of SABTACO in the following
respects:
8.1.
The plaintiff abuses his position
as
National
President....to force decisions on SABATACO which decisions form part
of
a
clandestinely plotted, undisclosed agenda and which would
ruin SABTACO financially;
8.2.
The plaintiff abuses his position within SABTACO for personal
financial gain;
8.3.
The plaintiff unlawfully misappropriates funds of SABTACO;
8.4.
The plaintiff's conduct in managing the affairs of SABTACO is
unprofessional;
9.
The content of the
email referred to in par 4 above...as a whole and more specifically
para (a) (vii) and (viii) thereof are false
and defamatory of the
plaintiff in that itimputes, was intended by the defendant to impute,
and was understood by the persons to
whom it was distributed to
impute, that the plaintiff:
9.1
was guilty of maladministration of SABTACO's finances;
9.2
was guilty of corruption;
9.3
dealt recklessly with SABTACO's funds; and
9.4
embezzled SABTACO's money;
10.
On or
about 30
September 2011, in
a
document tabled at
a
meeting of
the National Executive Committee of SABTACO, the defendant stated to
the members of the National Executive Committee
of SABTACO of and
concerning the plaintiff that:
10.1.
The plaintiff adopts
a
destructive attitude towards
SABTACO;
10.2.
The plaintiff, in his capacity as Chairperson of the Finance
Committee of SABTACO, on two occasions misused the Finance Committee
meeting;
10.3.
The plaintiff, in collusion with Mr Paul Kgole, is involved in
a
"process of non-compliance" with the norms of
administration and financial
management;
10.4.
The plaintiff frustrated and manipulated the process of appointing
a
Chief Executive Officer for SABTACO;
10.5.
The plaintiff promoted an illegal and fraudulent process;
10.6.
The plaintiff "and his friends abandoned such
fraudulent activity" (referring to the process mentioned in par
10.5
above) disgracefully after being warned and advised "that
the process is not only illegal, but is fraudulent and should be
abandoned"
10.7.
The plaintiff, in collusion with other colleagues, acquired work
through
SABTACO and the plaintiff and his aforesaid colleagues
shared the "spoils" thereof.
A copy of the
aforesaid document is attached as annexure "B".
13.
The statements
referred to in par 10 above were understood by the addressees and
were intended by the defendant to mean that the
plaintiff is
dishonest, acted improperly in his capacity as National
President...and breached his fiduciary duty to SABTACO in
the
following respects:
13.1.
The plaintiff intends to destroy SABTACO;
13.2.
The plaintiff abuses his position as National President ....and as
Chairperson of the Finance Committee;
13.3.
The plaintiff, in his capacity as National President......does not
comply
with the prescribed, alternatively acceptable,
norms of administration and financial management
13.4.
The plaintiff acted improperly and unprofessionally by unduly
manipulating and frustrating the process of appointing
a
Chief
Executive Officer
13.5.
The plaintiff was involved in an illegal and fraudulent scheme
which had to be abandoned after the scheme was exposed;
13.6.
The plaintiff acted improperly by securing contracts.....for his
own personal benefit and gain;"
[7]
The first respondent denied the allegations and contended that the
statements contained in Annexures A and B "were true
and in the
public interest or benefit"
ISSUES
ON APPEAL
[8]
The following are the issues on appeal as dealt with by Mr Griessel
and I shall deal with them as addressed in the judgement
of the court
a
quo:
7.1 Whether statements
the appellant relied upon were defamatory
per se,
or whether
the appellant relied on
innuendo;
7.2 Whether the
statements in annexures A and B to the particulars of claim are
defamatory
per se,
more particularly the statements in:
Annexure A: paras (a)(v); (a)(vii); (a)(viii); (a)(ix);
(c)(vii); Annexure
B: paras 1.1; 2.4; 3.2 and 7.1 to 7.3
7.3 Whether the aforesaid
statements were true and in the public interest.
THE
LAW
[9]
The common law elements of defamation are:
(a) The wrongful,
and
(b) Intentional
(c) Publication of
(d) A defamatory
statement
(e) Concerning the
plaintiff
[10]
It is trite that the court utilises the objective test in order to
establish whether a statement so published is defamatory
per
se.
The court relies on the meaning of the words so published as accorded
to the statement by the reasonable reader. Where the plaintiff
relies
solely on the contention that the statement is defamatory
per
se,
then the objective test has to satisfy a two stage enquiry. The
first, is to establish the ordinary meaning of the statements
and
secondly whether they are defamatory
per
se. In establishing
the ordinary meaning the court is not interested in the meaning the
writer wished to convey to the readers or
the meaning given by the
individuals to whom it was published. The test is purely an objective
one and evidence on the meaning
of the words is inadmissible. The
defendant who wishes to escape liability must raise a defence which
excludes wrongfulness or
intent.
Le Roux and Others v Dey (Freedom
of Expression Institute and Restorative Justice Centre
as
Amici
Curiae)
2011 (3) SA274{CC) para 85, 89 and 90.
[11]
Consequently what followsis the presumption that such statements were
published with
animus iniuriandi; Khumalo and Others v
Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at 414 A-B. The first respondent in
his plea denied liability and raised defences that the statements
were true and in the
public interest or benefit.
[12]
The reasonable reader is the standard utilised by our courts to
establish the meaning of words published. The Court a
quo
having
examined the content of the statements mentioned in paragraph 5 above
concluded that the objective tests had been satisfied
, in that the
"statements and words complained of are defamatory per se and
are capable of conveying to the reasonable reader
a
meaning
which defames the plaintiff in the ordinary sense".
DEFAMATORY
STATEMENTS
PER SE
OR INNUENDO STATEMENTS
[13]
Mr Griessel for the appellant submitted that a cause of action which
is based on words which are defamatory per se, does not
cease to
exist or disappear where 'the allegation in the particulars of claim
meant something more'. Mr Mpofu on the other hand
submitted that the
question to be answered was whether the appellant had pleaded the
words uttered which were defamatory per
se
or whether he had
pleaded
innuendo.
He argued that the appellant had not pleaded
the objective meaning of the words relied upon as being defamatory
per se,
but that what was pleaded was "the subjective
interpretation of the of the actual recipients' of annexures A and 8,
it being
innuendo;
this was ' the only basis upon which the
court should determine whether the statements were defamatory or not.
[14]
Mr Griessel relied on the finding of the court in
New Age Press
Limited and Another v O'Keefe
1947 (1) (SA) 311 0/'J) at page
317. In response to a request for further particulars for purposes of
pleading a copy of the whole
article so complained about was
furnished to the defendant. The whole article was looked at
"as if it formed
part of the declaration" and
the court was also dealing with
an exception where the defendant had excepted to the declaration
as(a)disclosing no cause of action in that then 'it was not
alleged that the words were defamatory per se';(b) that the words in
their ordinary sense were incapable of bearing
a
defamatory
meaning;(c) in that the words were incapable of bearing the meaning
assigned to them in the innuendo contained in para
9".
[15]
The above subject is dealt with in paragraphs 11 to 24 of the
judgement where the trite principles of pleadings were detailed.
My
understanding of the judgement in New Age Press
supra
was that
it was decided during the era where further particulars for pleading
were permissible and where such particulars when given
formed part of
pleadings. In that matter they formed part of the declaration. Hence,
it was from such declaration which contained
innuendo,
supplemented with the particulars so provided that the court
determined that a cause of action had been disclosed.
[16]
The court a
quo
endorsed the principle in New Age Press
supraas
confirmed In
Rogaly v General Imports (Pty) Limited
1948 (1) SA 1216(C)
at page1218. At paragraph 16 the court a
quo
had the following to say:
"If the words
complained of are capable of having
a
defamatory meaning in
their ordinary sense,
a
cause of action is disclosed even when
the pleader in paraphrasing the words, adds something in excess of
their ordinary meaning."
[17]
Concerning the pleadings the court a
quo
found that the
appellant had introduced elements of
innuendo
in
paragraphs 8, 9 and 13, (mentioned in paragraph 6 above), without
having pleaded in the alternative such words as setting out
the
ordinary defamatory meaning as attributed to them.
[18]
In Le Roux
supra
Brand AJ stated at paragraph [87]:
"Statements may
have primary and secondary meanings. The primary meaning is the
ordinary meaning given to the statement
in its context by a
reasonable person. The secondary meaning is a meaning other
than the ordinary meaning, also referred
to as an innuendo, derived
from special circumstances which can be attributed to the statement
only by someone having knowledge
of the special circumstances.
A
plaintiff seeking to rely on an innuendo must plead the special
circumstances from which the statement derives its secondary meaning.
But an innuendo must not be confused with implied meaning of the
statement which is regarded as part of its primary or ordinary
meaning"
at
paragraph [88]
"To add to the
confusion that sometimes arises from all this, plaintiffs often wish
to point out the sting of a statement which
is alleged to be
defamatory per se. The particular defamatory meaning contended for is
then emphasised
by a paraphrase of the statement which is
referred to as a "quasi innuendo". "Quasi"
because it is not a proper
innuendo or secondary meaning.
Background circumstances need not be pleaded.
The
disadvantage of relving on a quasi-innuendo as opposed to the
contention that the publication is defamatorv per se. is that
the
plaintiff is bound bv the selection of meanings pleaded. In this
regard reference was made with
approval in Demmers v Wylie
and Others (1980(1) SA 835 (A) at 845 E-G in HRH King Zwelithini of
Kwa Zulu v Mervis and Another
(1978 (2) SA 521
(W) at
5
24G)
"Once a
plaintiff has selected the meanings of the offending words upon which
he relies. he is bound by that selection and.
if he should fail to
establish that the words bore or bear such meaning. he cannot then
fall back on any other defamatory meaning
or meanings which he
contends that the words bear per se. unless he has pleaded the
selected meaning as an alternative to
a general allegation that the
words are defamatory per se"(
my underlining)
[19]
In paragraph 21.1 of his heads of argument Mr Driessel does concede
that the meaning of the statements as contained in paragraphs
8, 9
and 13 of the particulars of claim were merely a paraphrase of the
statements, however he argued that the court a
quo
had erred
in finding that innuendo had been pleaded and in not finding that the
appellant had in the content of paragraphs 6,
" The
statements by the defendant detailed in paragraph 4 above were
wrongful and defamatory of the plaintiff'
and 11 "
"
The statements by the defendant in para 10 above were wrongful and
defamatory of the plaintiff ;
pleaded that the statements were
defamatory
per
se.
Mr Mpofu argued that "not even
the most strenuous reading of these paragraphs can avoid the
conclusion that reference was to
the addressees. The court a
quo
stated in paragraph 23:
".......The fact
that in
a
defamatory statement per se, the test is objective,
that is, whether the words complained of are reasonably capable of
conveying
to the reasonable reader
a
meaning which defames the
plaintiff, cannot be
a
justification to plead innuendo, unless
the latter is intended to be relied upon.
It is inadmissible
to call witnesses to prove the test. Therefore, it should not be
pleaded where the cause of action is based on
defamatory statement
per
se. "
[20]
Mr Griessel's argument cannot be sustained because paragraphs 8, 9
and 13 cannot be disregarded, or read in isolation, neither
can
paragraphs 6 and 11 stand alone in view of what is said in 8, 9 and
13. The first respondent was entitled to be told in the
particulars
off claim what constituted the defamatory statements per se, hence
the finding that these had not been pleaded in the
alternative in the
paragraphs identified as those where only
innuendo
was
pleaded.
[21]
In distinguishing between implied meaning and
innuendo,
the
implied meaning refers to the primary
I
ordinary
per
se
meaning and not an
innuendo.
The implied meaning must in my
view be subjected to the same objective test, that of the reasonable
reader.
Innuendo
on the other hand refers to a secondary
meaning which gives an explanation to the words complained about and
is tested subjectively.
As I see it only
innuendo
is pleaded
in that it is the subjective element that comes to the fore, the
meaning which the appellant states in the particulars
of claim that
the defendant intended to convey and the meaning of those statements
as was understood by the addressees or as was
meant to be understood
by them:
paragraphs
8
:"
The aforesaid statements were understood by the
addressees and were intended by the defendant to mean .........;"
paragraph
9:
" The content of the email referred to in para 4 above
(annexure A hereto) as
a
whole and more specifically para
(a)(vii) and (viii) are false and defamatory in that it impute, was
intended by the defendant to
impute and was understood by the persons
to impute ......."
"
Paragraph
13
of the particulars of claim refers to how the 'addressees'
understood the meaning of the content in paragraph 10 of the
particulars
of claim and what was intended by the respondent.
[22]
I am in agreement with the court a
quo
that the first
respondent should have alleged and pleaded the facts he relied upon
as being defamatory
per
se in the alternative or probably
excepted to the pleadings.
Le Roux supra
which cited with
approval the decision in Oemmers, states that where the plaintiff has
pleaded an innuendo to point to the sting
of the statements that are
prima facie
defamatory, the plaintiff cannot revert to the
primary meaning if he fails to prove the innuendo unless it is
pleaded in the alternative.
In my view the finding that the appellant
had pleaded innuendo cannot be faulted.
WERE
THE STATEMENTS IN ANNEXURES A AND B DEFAMATORY PER SE: UNLAWFULNESS
AND INTENTION (ANIMUS INIURIANDI)
[23]
Mr Griessel submitted that the respondent's plea was a bare denial,
that he had failed to prove the facts to show that he had
no animus
iniuriandi.
Further that no defence was raised in the
pleadings, or in his version that was put to the appellant during
cross-examination. I
am not certain what the version of the first
respondent was supposed to be because he did not deny being the
author of the statement,
so that was his version and the questions
put in cross examination sought answers to the allegations in the
statement which the
first respondent maintained were true and in the
public interest.
[24]
In pleading to paragraphs 6, 7, 8, and 9 (Annexure A) and 11,12 13
and 14 (Annexure B) the first respondent denies the allegations
in
the particulars of claim. He does not end there, he admits to
publishing, however he raised a defence to avoid liability where
he
states in his plea that
'in amplification of the denial the
defendant avers that the statements contained in annexure A and B to
the particulars of claim
were true and in the public interest".
[25]
The court a
quo
had already pronounced that in its view the
statements were
prima facie
defamatory. It is for the
court in my view to determine the meaning of the words complained
about, by having regard to the
evidence as a whole. The appellant in
his plea had extracted from the statement certain words and in some
selected particular paragraphs
to which the alleged defamatory
meaning was attributed. In dealing with annexure A the court a
quo
took into consideration the entire document under headings
described as (a) to (c). The entire document related to one Mr Kedi
Mabotja
and his 'appointment as CEO of SABTACO National' and the
court stated that the statement had to be read in context.
[26]
In his evidence in chief the appellant testified that he had
knowledge of the intention to appoint Mr Mabotja, and that at
the
time, despite the first respondent's objection, the finances of
SABTACO were healthy, however he had never insisted on the
appointment and Mr Mabotja was not appointed in such position because
there was an agreement to await the first respondent's input
on the
matter and not because the proposition was abandoned. During cross
examination he denied the calculations which were given
to show that
it was not viable to appoint Mr Mabotja. According to him when the
executive committee of which he was a member had
taken a decision,
such decision could not be overruled by any one holding a position in
NESCO. He was taken through the statements
complained about in
Annexures A and B, he testified that he did not know what they
meant.' He denied being involved in unprofessional
conduct, and he
had never dictated what resolutions should be taken by the executive
committee. He testified that he was not privy
to any activities that
were of a corrupt nature. In essence he denied all the allegations
made against him in the statements.
Annexure
A
[27]
(a)(v) (a)(vii) (a)(viii)(a)(ix): the court a
quo
in dealing
with the meaning of the extracted words in paragraph 4.1 of the
particulars of claim found that the words so extracted
were not prima
facie defamatory. In as far as the meaning attributed to the words in
counsels heads of argument in paragraph 42
of the judgment is
concerned, the court a
quo
stated that the statement as a
whole had to be read in context.
The
evidence shows that there had been discussions between the appellant
and the first respondent regarding the affordability to
pay Mr
Mabotja. The attitude of the appellant was that once a decision had
been made by the executive it could not be overruled.
In cross
examination the appellant denied the ailing financial situation
despite the figures pointed out in paragraph (vi) of the
statement.
The court a
quo
accepted the explanation by the first
respondent that he had to use strong language in order to convey the
message properly of the
ailing financial difficulties of SABTACO at
the time. The discontent by the first respondent was that despite
warnings by him,
the appellant had decided to use monies allocated
for the provinces. The court a
quo
found that the appellant
failed to deal with the truthfulness of the statement.
In
as far as statement (a)(ix) was concerned the court understood the
term "embezzlement" and, having regard to the evidence
of
the first respondent, to mean there being no budget for Mr Mabotja
and that the use of funds earmarked for the Provinces amounted
'to
what the defendant referred to as embezzlement'
[28]
(c)(i) The court a
quo
found that the appellant did not deny
that he was at the 'forefront in ensuring Mr Mabotja' is appointed as
national CEO of SABTACO.
I find no fault in the conclusion that there
was nothing wrong in the first respondent communicating what he
believed to be maladministration
on the part of the appellant,
especially where the appellant was informed that there was a lack of
funds to support the appointment.
(c)(v)
This related to the alleged fraudulent conduct of the late Mr Morodu.
A company had been registered to benefit SABTACO and
the appellant
was appointed as one of the directors. The appellant in his testimony
alleged that a fraudulent bank account was
opened using his forged
signature. The issue was around how the appellant justified
personally receiving a benefit out of this
fraudulent transaction and
his alleged uncooperative attitude which the first respondent wished
to investigate. The benefit he
concluded amounted to 'self-gain'. The
appellant did not deem it necessary to disclose the negotiations and
acceptance of payment
out of these funds to SABTACO until raised by
the respondent.
Mr
Griessel argued that the first respondent adduces no factual evidence
from which the court a
quo
could determine whether the
statements were true or not. It is in the consideration of the
evidence of both witness, their cross
examination, that the court
made factual findings and one of them was that the truthfulness of
the statements in annexure A had
not been refuted, and I do not find
fault with such conclusion.
Annexure
B
[29]
The appellant testified that the meeting of 30 September 2011 was
convened by him in order to address the concerns raised by
the first
respondent in annexure A. He however left it to the first respondent
to come up with the agenda which was distributed
at the meeting in
the form of annexure B. In my view it is not as if the first
respondent on his own decided to make the statement.
A meeting was
convened by the appellant and the only reasonable conclusion is that
he was given permission to draft the agenda
as author of annexure A.
So, what transpired on this date was a sequel to the allegations in
annexure A at the instance of the
appellant and other allegations
were added. In as far as paragraph 3.2 was concerned the conduct of
the appellant, Mr Mabotja and
Mr Paul Kgole who were all members of
SABTACO in that province was considered and it related to the
'illegal' participation in
a Council meeting of him Mr Mabotja in a
process of appointing him to the position of CEO National and to seek
to use 'funds meant
for the provinces" to pay his salary.
Paragraphs
7.1 to 7.3 were dealt with under (c)(v) above. This related to the
fraudulent activities of the late Mr Morodu, where
an amount of R1
500 000.00 was deposited into the bank account of SABTACO Limpopo and
how the appellant had personally benefited
in the amount of R49
000.00, despite SABTACO having distanced itself from the transaction.
Animus
lniuriandi
[30]
It is trite that where statements are defamatory
per se,
there
is
animus
iniuriandi
which may be rebutted by defences
raised by a defendant. The respondent therefore bore the onus to
prove absence of
animus inuriandi.
The court a
quo
found
that the statements were made by the respondent in his official
capacity as treasurer and having first interacted with the
appellant
and that the appellant had not been forthcoming in giving
information. It was from the evidence as a whole that the court
a
quo
found that he had succeeded in rebutting the intention to defame.
[31]
In my view it was reasonably justified for the first respondent as
treasurer to interrogate the conduct of members and this
included the
appellant. The members of SABTACO had a right to know especially
where the appellant failed to give his cooperation
when the issues
complained about were raised with him personally. The first
respondent testified that Annexures A and B referred
to the appellant
in his official capacity. When the respondent took over the position
as national treasurer the books of SABTACO
were in disarray and that
there was a general non compliance with good financial practices
within the organization. He had
to go to great lengths to ensure that
accounting procedures were in place and that the books were audited.
[32]
He had to deal with the preparation of the filing of outstanding
reporting to the South African Revenue Services (SARS) . Furthermore,
SABTACO as a voluntary association and member of the Engineering
Council had to be fully compliant with SARS. As a result he resolved
to heed warnings given to him personally by SARS and the engineering
council about SABTACO's non compliance. He also sat on the
project
adjudicating committee at the Department of Trade and Industry and
that his appointment was subject to him coming from
an organization
which was SARS compliant. Itherefore have no reason, given this
background to find fault with the finding that
there was
justification to use of strong words in the statements and that the
first respondent had discharged his onus.
CASE
AGAINST THE THIRD PARTY (SECOND RESPONDENT)
[33]
The SABTACO Constitution indemnifies any one of its members 'from any
civil liability in the due performance of their duties
as members of
the organization.' The court a
quo
found that the first
respondent 'would ordinarily have been entitled to be indemnified by
the second respondent in light of the
circumstances of the case, its
judgment
and
the order it was about to give, being that of
dismissing the action with costs. Not only did the court a
quo
find that the issues raised by the first respondent were within
the scope of his duties as treasurer, Annexure A which contains
emails of the 19 and 20 September 2011 pertained to issues that had
been raised with Council and Exco before Annexure A and B were
published. Annexure B was an agenda penned by the first respondent
after the appellant had convened a meeting to discuss Annexure
A.
[34]
It is common cause that the appellant did not take up the issue on
appeal and Mr Mpofu argued that the finding by the court
a
quo
had
not been challenged by the second respondent in a cross appeal, being
that the first respondent would be entitled to be indemnified
by
SABTACO and that such finding still stood. I agree with this
submission.
[34]
In the result the following order is given:
1. The appeal is
dismissed with costs.
______________
TLHLAPI
VV
(JUDGE
OF THE HIGH COURT)
I
agree,
_______________
PRINSLOO
WRC
(JUDGE
OF THE HIGH COURT)
I
agree,
_______________
VILAKAZI
T
(ACTING
JUDGE OF THE HIGH COURT)
MATTER
HEARD ON
: 14
OCTOBER 2015
JUDGMENT
RESERVED ON
: 14
OCTOBER 2015
ATTORNEYS
FOR THE APPELLANT
: CORRILE
NEL ATT.
ATTORNEYS
FOR THE RESPONDENTS
:
MALULEKE SERITI MAKUME
MATLALA
INC.