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[2015] ZAGPPHC 266
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Mkhonza v Minister of Police (16629/12) [2015] ZAGPPHC 266 (8 May 2015)
THE
HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT - PRETORIA
CASE NO.: 16629/12
DATE: 8 MAY 2015
In the matter
between:
HENRY
MKHONZA
................................................................................................................
PLAINTIFF
And
MINISTER OF
POLICE
.......................................................................................................
DEFENDANT
JUDGEMENT
Jordaan J:
This is an action
for damages allegedly suffered by plaintiff consequent upon the
publication of defamatory words by the defendant’s
employee
(Col. Gouws) in an email communication addressed by him to Col.
Mahlahlani, and Col. Cysterand members of the administrative
staff of
the said addressees. The Defendant is cited in his capacity as the
employer of Colonel Gouws - it being alleged that the
letter acted in
the course and scope of his employment with the defendant when the
alleged wrong was committed.
Colonel Gouws,
Colonel Mahlahlani, Captain Mkhonza, and the plaintiff were members
of the South African Police Service (SAPS) in
Piet Retief in the year
2010 with Col. Gouws being the cluster commander of the area.
During March 2010
plaintiff was embroiled in a fracas at the Piet Retief police station
with fellow policemen which resulted in
charges of defeating the ends
of justice, common assault, and later the unlawful possession of
ammunition being laid against him.
Plaintiff's arrest
on these charges took place on 8 June 2010 and he appeared in court
the following day. The case was remanded
to a further date with him
being held in custody, bail having been refused.
The charges
aforesaid were subsequently withdrawn, albeit temporarily, by the
Public Prosecutor on 28 April 2011. It is a fact that
the charges
have not been reinstated since. It is now April 2015.
In the meantime
plaintiff had been charged with misconduct by the Police Ministry and
had, out of frustration at the perceived bias
on the part of police
management in the handling of his own complaints against his
accusers, resigned from the SAPS on 30 August
2010.
It is not in issue
that some time after his resignation, plaintiff was asked by Capt.
Mkhonza (his erstwhile unit commander) to
assist her in obtaining
statements from witnesses in two cases which she had been
investigating.
These cases/dockets
reached the Senior Public Prosecutors office in Piet Retief. The
prosecutor picked up that some of the statements
in the dockets were
in the plaintiffs hand writing, prosecutor compiled to Colonel Gouws
about it.
Colonel Gouws, in
response to the prosecutor’s complaint, directed the following
e-mail urging Colonel Mahlahlani to take
disciplinary measures
against Capt. Mkhonza. The email reads:
"
Subject:
STATEMENTS BY EX POLICEMAN
AND
KNOWN
CRIMINAL:
MR MIKE MKONZA
(My
underlining)
a. Lt - Col
Mahlahlani
According to a
complaint received from the Prosecutors Office an ex Police -
Official and known criminal took statements in a murder
and another
theft case investigated by Capt Mkonza from your office.
She then did the
oath on the statements and filed it in the docket.
The member must
be paraded to me for a proper explanation by her in the presence of
her Branch Commander. The dockets must be obtained
and presented
also.
b. Col Cyster
Please take note
of my instruction to the Branch Commander, if the explanation is not
satisfactory the member will be redeployed
to the station to 'work
under supervision and departmental steps will be :nii:s-i6d. Progress
will be reported. ”
Reference in the
email to plaintiff as a “known criminal” was, according
to Col. Gouws, not only reference to the charges
which plaintiff
faced but to other ongoing criminal investigations as well which the
police’s Serious and Violent Crimes
Unit had undertaken against
plaintiff.
It was correctly
pointed out by counsel on behalf of the plaintiff that these further
charges were not alleged in the defendant’s
plea, in the plea
mention was only made to the charges the plaintiff had been arrested
on, which were subsequently withdrawn.
The plaintiff in
some way or other got information of the existence of the e-mail. How
he got hold of it is a matter of dispute
between him and Capt.
Mkhonza. The latter says that plaintiff stole it from among her
papers on her desk while plaintiff claims
to have been given it by
Capt. Mkhonza herself on her own initiative.
The e-mail
communication, obtained by the plaintiff, has led to this action.
On behalf of the
plaintiff it was pointed out that right to presumed innocent is
entrenched in the Bill of Rights, in Section 35(3)(h)
of the
Constitution of the Republic of South Africa 1996.
It was correctly
argued that the adoption of the principle of constitutional supremacy
and the entrenchment of the presumption of
innocence in Section
35(3)(h) of the Constitution now require that any infringement of the
presumption of innocence be justified
in terms of the limitations
clause of the Constitution.
It was argued that
only those persons who have been convicted of crimess qualify to be
labelled as as criminals. Before conviction
one can refer to him or
her only as a suspected criminal. Only in a court of law can it be
impartially and satisfactorily determined
whether the accused
satisfies ail the requirements of the alleged crime. The accused can
adequately defend him- or herself in the
process of the determination
of his or her status as a criminal.
Defamation is the
wrongful, intentional publication of words or behaviour concerning
another person which has the effect of injuring
his status, good name
or reputation.
The elements of this
iniuria are the act (the publication of words or behaviour), an
injury to personality (the defamatory effect
of the words or
behaviour), wrongfulness (the infringement of the personality right
to a good name) and the intent (animus iniuriandi).
It is not an element
of defamation that the defamatory allegation must be false. True
defamatory words can also be actionable.
With reference to
Law of Delict, Neethling, Potgieter and Visser, Sixth Edition it was
argued on behalf of the plaintiff that wrongfulness
with regard to
defamation lies in the infringement of a person’s right to his
good name. When determining wrongfulness, the
question of whether the
good name of the person involved has in fact (factually) been
infringed is irrelevant. The only relevant
question is whether, in
the opinion of the reasonable person with normal intelligence and
development, the reputation of the person
concerned has been injured
(thus an objective approach). If so, the words of behaviour are
defamatory to, and in principle (prima
facie) wrongful as against
that person.
On behalf of the
plaintiff it was correctly argued that the publication of a
defamatory statement is prima facie wrongful. The onus
rests on the
defendant to dispel this prima facie case. This is a full onus and
requires the defendant to allege and prove facts
that dispel
wrongfulness, such as truth and public interest.
The plaintiff must
allege and prove publication and that the defamatory words were
published of and concerning the plaintiff. That
publication took
place and that it concerned the plaintiff was not in issue.
It was further
argued that although the plaintiff must allege and that the statement
was defamatory, it is a question of law whether
the words complained
of are reasonably capable of conveying to the reasonable reader a
meaning which defames the plaintiff.
Animus Iniuriandi
has two elements, namely the intent to defame and knowledge of
wrongfulness. Although the plaintiff must allege
animus iniuriandi,
there is presumption that the publication of a defamatory statement
was animo iniuriandi. The defendant bears
the onus of alleging and
proving the absence of animo iniuriandi.
In this matter the
defendant relied on two defences. Fair Comment and privilege.
FAIR COMMENT:
It was conceded that
publication of defamatory material which is fair comment upon true
facts and which is shown to be in the public
interest is justified
and therefore lawful. In such instances public policy deems the
invasion of the interest to be in accordance
with the general
criterion of reasonableness.
The requirements for
the defence are:
The statement must
amount to comment or opinion and not be a statement of fact. This is
ascertained by applying the test of the
reasonable reader.
The comment must be
fair. See Crawford v Albu
1917 AD 102
at 113 - 114. It must be a
genuine expression of opinion, relevant, free from maiice and
exaggeration, and a reasonable inference
from the facts. It was
submitted that the values expressed in the Constitution are
particularly relevant in determining whether
comment is fair. Free
speech is emphasised more than before, especially in the public
domain, and society is similarly far more
tolerant of criticism. It
was submitted that when considering the question of fairness, this
value must be one cf the factors to
be considered.
The facts upon which
the comment is based must be substantially true. False statements are
not protected.
The facts upon which
the comment is based must expressly be stated in the material
containing the comment, or clearly indicated
or incorporated by
reference: Courts have held that a reference may be implied where the
facts are well known or easily ascertainable,
but the better view
would be to acknowledge that the criterion is also satisfied where
the facts are known to the audience.
The comment must
relate to a matter of public interest. Policy considerations
determine what is in the public interest, and this
may change
according to changing norms in society: The public has a legitimate
interest in knowing the extent to which political
leaders adhere to
their professed standards of morality.
The onus is on the
defendant to prove ths defence on a balance of probabilities. Msiice
or improper motive will lead to the forfeiture
of the defence, but
the onus to show that the defendant was activated by malice lies with
the plaintiff.
I will now come to
the evidence regarding the defence of fair comment.
Col Gouws testified
that he, apart from the charges on which the plaintiff was arrested,
knew of alleged investigation in respect
of armed robbery. It is
clear that the other recipients of the e-mail did not.
The
further charges were not relied upon in the defendan's pleadings. It
must therefor be accepted that Col Gouws wrote the e-mail
with regard
to the charges which were withdrawn at the stage he sent the e-mail.
It was submitted, and I agree, that this has a
bearing on the
credibility of Col Gouws when he alleged that he
wrote
the
e-mail as far as privilege is concerned mindful of alleged further
charges to be instituted against the plaintiff, which was
until date
not instituted.
It was submitted,
and I agree, that there was no basis detailed in the e-mail for the
insult. The recipients of the e-mail had no
duty to receive the
information that the Plaintiff was a “known criminal”.
Col Gouws did not
share the information he allegedly had with the recipients of the
email. I agree that objectively viewed he went
to far by calling the
Plaintiff a known criminal which was gratuitously and an uncalled
insult of the Plaintiff.
The uncalled for
insult of the plaintiff as a “known criminal” was not a
comment but appears to be a statement of fact.
Even if it considered
to be comment, it was not fair, genuine expression of opinion,
relevant or free from malice.
The comment should
have been based on facts that are substantially true which in view of
the circumstances relating to the charges
could not have been
regarded as facts that are substantially true. In fact, as said,
these charges were withdrawn when the e-mail
was sent.
Gouws testified that
he, when using the words “known criminal” wanted to
emphasise the seriousness of Captain Mkhonza’s
behaviour and
that it warranted disciplinary steps. There were clearly other means
by which he could have underlined the seriousness
of the matter. In
fact I fail to understand how the words “known criminal”
was used at all. The fact that a ex policeman
was allowed to take
statements would have sufficed.
PRIVILEGE:
In KENNEL UNION OF
SOUTHERN AFRICA AND OTHERS v PARK
1981 (1) SA 714
(C) it was held
that defendants cannot shelter behind the privilege unless it is
shown that the report was a truthful, accurate
and honest report,
published bona fide without malice.
This defence is
available if the defamatory words were published in the discharge of
a duty or exercise of a right to a person who
had a duty or right to
receive the statement.
It was correctly
submitted that privilege is present where a person has a Segal, moral
or social duty or a legitimate interest in
making defamatory
assertions to another person who has a corresponding duty or interest
to learn of the assertions. The question
of whether such a duty or
interest exists causes no problems in the case of a legal duty. The
existence of a social or moral duty
or interest must, however, be
ascertained objectively, by means of the reasonable person test.
It was further
correctly submitted that If it is proved that both parties had a
corresponding duty or interest (that a privileged
occasion existed),
the defendant must further prove that he acted within the scope or
limits of the privilege. To do this, he must
prove that the
defamatory assertions were relevant to, or reasonably connected with
the discharge of the duty or the furtherance
of the interest. Even
when the defendant has proved this, he stili only enjoys provisional,
in contrast to complete, protection.
The plaintiff may still show
that the defendant exceeded the limits of the privilege because he
acted with an improper motive (malice).
I now turn to the
evidence before me regarding privilege.
It was submitted
that no privileged occasion existed alternatively it was forfeited in
that the recipients of the e-mail was not
only Lt Col Mahlahlani and
Col Cyster but Included also administrative clerks (civilian
individuals employed in terms of the Public
Service Act). That the
e-mail was also directed to these clerks was explained by Col Gouws
that he wanted to make sure that Lt
Col Mahlahlani and Col Cyster
received his message.
It was submitted
that the issue at hand was the disciplinary action of the plaintiff
which in itself cannot be a privileged occasion,
it was not the
investigation about a person who allegedly committed an offence.
I agree that
ordinary personnel had no duty to receive Information that the
plaintiff is a known criminal.
Even if it
privileged indeed existed, the defendant rnu’st also prove that
Cel Gouws acted within the scope or limits of the
privilege. That it
is reasonably connected with the discharge of a duty or furtherance
of an interest.
The issues at hand
was as alleged by Col Gouws were the following:
- that Capt. Mkhonza
needed the assistance of somebody else (a member of the public) to
assist her with her duties. Clearly reference
to the plaintiff or
that he is regarded as a “know criminal” was irrelevant
to the issue at hand;
- that Capt. Mkhonza
received assistance from a “known criminal” and the
impact that would have on the image of SAPS.
Col Gouws testified that
he made up his mind that the plaintiff is a “known criminal”
and still holds that opinion,
even four years after the charges were
withdrawn against the plaintiff. The plaintiff ’was not a
“known criminal”.
The charges were withdrawn (after a
period of 11 months).
As
stated above Col Gouws testified that the use of the words
“
Ex
Policeman and Known Criminal: Mr Mike Mkhonza”
was
used to emphasise the importance of the matter. Lt Col Mahlahlani
however testified that he didn’t even take note of the
reference to the plaintiff as a “known criminal”, the
emphasis that Col Gouws wanted to achieve was without any effect.
Neither Col Gouws, Lt Col Mahlahlani nor Capt Mkhonza could inform
the Court what the charge in the disciplinary action against
her was
and whether it related to a member of the public assisting her with
her duties.
As stated above Col
Gouws couid have achieved the same result other means. He could have
marked the e-mail as urgent or using the
words “urgent”
or only referred to the plaintiff by name or an ex policeman.
It was submitted
that Col Gouws referred to the plaintiff as a “known criminal”
without any regard to the constitutional
rights of the plaintiff,
contained in the Bill of Rights, amongst other not to be defamed and
to be presumed innocent until proven
guilty and without having regard
to the fact that a criminal in terms of the criminal law is a
convicted person. When he sent the
e-mail there were no pending
criminal charges against the plaintiff and he had no previous
convictions. As stated before the defendant,
in its pleadings, did
not rely on any other charges against the plaintiff that might have
been Investigated against him at the
time.
Col
Gouws further testified that he only used police language in the
e-mail. He explained that he referred in meetings to persons
being
investigated as criminals, it was correctly submitted that he however
referred to the plaintiff as a “known criminal”,
which is
more serious and carries an extra sting to it that there is more
certainty and veracity to the reference of the plaintiff.
It
was submitted Col Gouws exceeded the limits of privilege and an
inference should be drawn that he acted with malice. I agree.
Col
Gouws had to make absolutely sure of his facts before publishing that
the Plaintiff is a “known criminal”.
It
was submitted that if the Court sanctions the behaviour of Col Gouws
in referring to the plaintiff as a known criminal without
any
foundation therefor, despite the Bill of Rights entrenched in the
Constitution, the Court would thereby and effectively find
that the
Constitution and application thereof stops at the doors of a Police
Station. I agree. In terms of the
South African Police Service Act,
68 of 1995
, the preamble as well as
sections 3(1)
and
205
(3) every
police member is to uphold and enforce the law including
“
to
uphold and safeguard the fundamental rights of every person as
guaranteed by Chapter 3 of the Constitution”.
Every
police member is required to exercise their powers and perform their
duties
“
subject
to the Constitution and
t
vith
due regard to the fundamental rights of every person” .
See
Section 7 of the Constitution.
I agree that the
statement was not justified and amounted to an abuse of privilege, if
it existed, not deserving protection afforded
by law. The statement
was not reasonably necessary to protect the interest or discharge the
duty which is alleged to have been
the foundation of the privilege
and it was gratuitous or uncalled for insult.
The merits and
quantum were separated. I was only required to adjudicate on the
merits.
In my view the
following order should be made:
The defendant is
held liable to the plaintiff with costs for the defamatory words or
statement in question and for the plaintiff’s
agreed or proven
damages.