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[2013] ZAGPPHC 232
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South African National Defence Union v Minister of Defence and Others (19949/2008) [2013] ZAGPPHC 232 (1 August 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GUATENG DIVISION)
Case
No: 19949/2008
DATE:01/08/2013
In
the matter between:
SOUTH
AFRICAN NATIONAL DEFENCE
UNION
..........................................................
Plaintiff
and
THE
MINISTER OF
DEFENCE
............................................................................
First
Defendant
SECRETARY
OF
DEFENCE
.........................................................................
Second
Defendant
CHIEF
OF THE SOUTH AFRICAN NATIONAL
DEFENCE
FORCE
…..........................................................................................
Third
Defendant
MS.
T G
MANZINI
..............................................................................................
Fourth Defendant
COL.
PHILLIP
DHLAMINI
…................................................................................
Fifth
Defendant
JUDGMENT
CHETTY.
AJ:
1.
The plaintiff, a military trade union, instituted action for
defamation against the defendants for two claims of R250 000.00
each
arising from the publication of two documents which were authored by
the fifth defendant, and authorised by the fourth defendant.
The
first document, published in October 2007, featured in a military
publication called The Bulletin’. The article was entitled
“GREATEST LIES EVER TOLD BY A MILITARY TRADE UNION: COUNTERFEIT
19% SALARY INCREASE, 10% ANNUAL INCREMENT AND 5% PAY PROGRESSION
SYSTEM”
and
stated the following with reference to the plaintiff:
"On
20 July 2007, the Department of Defence (DOD) published a Bulletin
No: 44/07 that the Military Bargaining Council (MBC)
held its first
sitting on 19 July 2007 to negotiate, amongst other things, the
annual salary adjustment for levels 1 to 12 for
uniformed members for
the Financial Year 2007/2008.
In
the same bulletin, it was reported that the South African National
Defence Union (SANDU) failed to table any proposal for annual
salary
adjustment for salary levels 1 to 12 of uniformed members for the
2007/2008 FY.
Furthermore,
SANDU was represented by two groups, one led by its democratically
elected President, Maj. Hector Mosimane, Vice President
W01 N.
Leeuwendaal and Second President W01 K. Ramsamy and on the other hand
the other group was led by Mr G.J Greeff, Mr Jeff
Dubazane and Mr
Charlton Boer. DETERMINATION BY THE MINISTER OF DEFENCE
On
22 August 2007, the DOD issued a Bulletin No: 53/07 advising
uniformed personnel about the determination by the Minister of
Defence of a 7.5% annual salary increase for salary levels 1 to 12 to
be implemented with effect from 1 July 2007 and other benefits.
GREA
TEST DISINFORM A TION
The
purported agreement dated 19 July 2007 distributed by the SANDU
faction led by Mr Greef does not exist. It was never presented
by the
MBC by any of the two warring SANDU groups and further that it never
formed part of the discussion by the MBC.
The
DOD has investigated the origin and the reason as to why SANDU led by
Mr Greef is distributing those so called agreements to
soldiers and
found that SANDF are resigning in hundreds and more are fighting that
SANDU must stop the illegal deductions from
their salaries.
Any
enquiries in this regard may be forwarded to Military Labour
Relations, for the attention of Col P. Dhiamini, tel: (012) 355-5058.
2.
The second claim for defamation is based on an Administration Order
issued by the fourth and fifth defendants, acting in the
course and
scope of their employment with the Department of Defence. The
document reads as follows
ADMIN
ORDER 6/2007: NOTICE OF INTENDED PROTEST MARCH BY MILITARY TRADE
1.
Directorate Collective Mechanisms In consultation with Legai Support,
Directorate Labour & Service Relation Services and
Divisions have
been observing and investigating the illegal distribution of a
counterfeit Military Bargaining Council agreement
dated 19 July 2007
to various SANDF Units by element of un-elected SANDU officials, The
purpose of this counterfeit MBC agreement
is to create
dissatisfaction amongst members and to outmanoeuvre the elected SANDU
officials in their Court battles for the control
of the union duns.
Furthermore, these elements of un-elected SANDU officials are calling
soldiers to participate in various protest
marches planned for the
month of October and November 2007 throughout the country in
contravention of the Defence Act read with
the provisions of the
First Schedule (MBC). The first march is planned for the 12 of
October 2007 at Cape Town to hand a petition
to Parliament.
2.
Based on the above, the Directorate Collective Mechanisms will
continue observing development in this regard and take corrective
action if necessary.
AIM
3.
The aim of this order is to describe the measures to be applied in
managing protest marches, strikes/mutiny and or any labour
action by
military trade unions and their members.
SCOPE
4.
This administrative order will address the following issues:
a.
Protest march.
b.
Any other labour action short of a strike/mutiny
c.
Execution."
1.
The plaintiff contends that the content of the publications were of a
slanderous nature, untrue and intended to create the impression
that
the plaintiff was dishonest, deceitful and party to a fraud, and that
its members were resigning en masse. The defendants
admit to the
publications but deny that the contents thereof were defamatory and
plead that the articles were the truth, and published
in the public
interest.
2.
The fourth defendant, Ms Manzini, is the Director of Collective
Mechanisms, responsible for labour relations matters within the
military. The fifth defendant is Retired Colonel P Dhlamini, who in
2007 was employed by the SA National Defence Force as a Senior
Staff
Officer: Labour Relations. The fourth and fifth defendants are
currently employed by the Department of Defence in managerial
capacities and, apart from providing advice on labour matters, they
represent the Department of Defence as the employer party at
the
Military Bargaining Council (‘MBC’), which is established
in terms of the
Defence Act 42 of 2002
to facilitate matters of
collective bargaining and resolving matters of mutual interest.
BACKGROUND
TO THE CLAIM
5.
Whilst the publication of the documents which give rise to this
action for defamation took place in 2007, it is common cause
between
the parties that the relationship between them has been strained over
the years. Much of this tension is owed to the competing
interests of
the military striving to operate in a disciplined and efficient
manner, and the right of the trade union to exist
and pursue issues
on behalf of its members. The ban on the establishment of a trade
union within the military was set aside by
the Constitutional Court
in South African National Defence Union v Minister of Defence &
another
[1999] ZACC 7
;
1999 4 SA 469
(CC). As a consequence of that decision, the
Minister of Defence issued regulations to regulate labour relations
in the SANDF.
The regulations also provide that once a union has a
proven membership of 15 000 SANDF members, it may apply to the MBC to
be admitted
as a party to that body. While the MBC met for the first
occasion in 2000, followed by meetings in the next year, it soon
became
unable to resolve disputes between the parties as it had been
intended. It is this breakdown in the structures that led to a
meeting
of the MBC, followed by the distribution of the publications
giving rise to the claims for defamation.
THE
PLAINTIFF’S EVIDENCE
6.
The plaintiff called two witnesses, Advocate J Greef and Mr J
Dubazana and the defendants called Ms TG Manzini and Colonel
Dhlamini.
All of the witnesses testified whilst making extensive
reference to documents which formed part of the bundles handed in as
exhibits.
7.
Mr Greef, the national secretary for the union, was the first to
testify and set out much of the historical relationship between
the
union and the defence department. Much of the tension between the
parties was attributed to the MBC having become largely
dysfunctional. As a result of the inability of the MBC to meet, the
plaintiff brought an application contending that the Minister
of
Defence’s failure to engage in collective bargaining was
unlawful. This ultimately led to the decision in South African
National Defence Union v Minister of Defence 2007 (5) 400 (CC), where
the court ruled in favour of the union. Following this decision,
the
Secretary of the MBC issued an invitation to the plaintiff and
employer to attend a meeting of the council on 19 July 2007,
although
the plaintiff contends that the meeting was called at their behest.
The agenda set out three (3) items for discussion
- the status of
parties to the MBC; the MBC constitutional amendments; and general
salary negotiations for the financial year 2007/2008.
It is not in
dispute that the plaintiff was the only recognised trade union
admitted as a party to the MBC, and among those invited
by the
Secretary were Messrs Mosimane, Leeuwendaal and Ramsamy in their
capacity as ‘elected’ SANDU president, vice-
president
and second vice-president respectively. At the same time, an
invitation was issued to Messrs Greef and Van Niekerk representing
another ‘faction’ of SANDU. It is this 'faction’
that has launched the present action.
8.
It is necessary to set out the background resulting in two factions
emerging within the plaintiff, and the basis for them both
attending
the MBC meeting. It has been the plaintiff’s contention
throughout these proceedings that the defendants have firmly
aligned
themselves with the faction led by Maj. Mosimane as a countervailing
force to the faction led by Mr Greef. As far as the
plaintiff is
concerned, the Mosimane faction do not represent the plaintiff and
they were surprised to see that an invitation had
been issued to them
to attend the meeting. The defendants adopted the view that if there
were two factions within the SANDU, both
factions should be invited
and it should be left to the disputing sides to decide which among
them is the mandated representative
of their members.
9.
The Minutes of the MBC meeting reflect that the issue of which
faction was duly mandated to represent SANDU emerged at the outset
of
the meeting. The MBC, however, declined to deal with this matter. Mr
Greef testified that like any large organisation, splinter
groups
emerge, as did the faction led by Maj. Mosimane. According to Greef,
Maj. Mosimane and his colleagues were at one time duly
elected to
leadership positions in SANDU. They attempted, however, to convene a
national congress where they intended to pass certain
amendments to
the union’s constitution. This led to Maj. Mosimane and his
colleagues being suspended, and eventually a decision
was taken to
terminate their membership.
10.
Greef was questioned as to whether he, in his capacity as national
secretary and chief executive officer of the plaintiff, wrote
to the
defendants informing them that the Mosimane faction were no longer
members of SANDU. In response, Greef referred to a letter
addressed
by the plaintiff’s attorneys to the State Attorney, dated 3
July 2008 in which it was pointed out that he (Advocate
J G Greef)
was appointed as Acting National Secretary during October 2005, and
that Mr Mosimane and the two other vice presidents
of SANDU had been
suspended pending a disciplinary process. The letter further pointed
out that Mr D Peter (who was also invited
to the MBC meeting) was not
elected as the new National Secretary, and that this position was
being taken over by Mr Greef in an
acting capacity. In conclusion,
the plaintiff’s attorney cautioned the State Attorney to obtain
its client’s confirmation
that “they will not negotiate
with Mr D Peter, Mr MAH Mosimane or other suspended vice-presidents
of SANDU in any matter
of mutual interests between the Department of
Defence and SANDU'.
11.
In light of the above, the plaintiff’s representatives treated
the presence of the Mosimane led faction at the MBC with
some
suspicion, especially as the defendants’ attorneys had already
been cautioned not to bargain with them on matters of
mutual
interest. Even if the letter from the plaintiff's attorney had not
reached the Secretary of the MBC before the meeting on
19 July 2007,
the defendants were well aware that the mandate of the Mosimane led
faction had been terminated by SANDU. Notwithstanding,
the Department
of Defence was content with the presence of the Mosimane led faction
at the MBC, and were insistent on referring
to them throughout as the
“elected leadership” of the plaintiff.
The
manner in which the Defendants sought to grant special status to the
Mosimane led faction lends support to the plaintiff’s
contention that the MBC and the defendants were partial towards one
faction to the detriment of the delegation led by Greef. Moreover,
Greef testified that Mosimane aligned himself with the defendants who
challenged SANDU’s authority to institute proceedings
in this
Court under case number 67118/07, in which Mynhardt J granted an
order on 11 October 2007 against the first three of the
defendants
cited in this action to immediately stop distribution of a
publication titled the Bulletin featuring an article entitled
“Greatest lies ever told by a Military Trade Union” It is
this article that forms the basis of the defamation action
against
the defendants.
12.
Mr Greef testified that he drafted a covering letter dated 19 July
2007 which accompanied a draft proposal that the plaintiff
intended
to submit to the MBC on the day of the meeting, in which they
demanded a salary adjustment of 19% for the financial year
2007/2008.
He issued instructions to his staff that the letter and the proposal
be transmitted by facsimile to all the addresses
on the covering
letter as well as being sent to all units of the military. He
conceded that he did not personally oversee the distribution
of the
document. However, Mr Jeff Dubazane, the plaintiff’s second
witness and its chief negotiator at the MBC, testified
that he had
been ‘heavily’ involved in the drafting of the salary
increase proposal and was responsible for researching
the pay
structures of police services personnel in order to bench-mark what
the military personnel should be paid. He confirmed
that the salary
proposal was transmitted by facsimile to various units so that
soldiers throughout would be aware of the plaintiff’s
demand on
their behalf. In addition to the document being sent to party members
at the MBC, Dubazane also testified that he took
copies of the
proposal to hand to the representatives at the MBC meeting on 19 July
2007.
13.
The covering letter which accompanied the proposal for salary
increases was addressed to the national structures of the plaintiff,
the Chairperson of the MBC, as well as the Chief Negotiator of the
employer in the MBC. The letter dated 19 July 2007 reads as
follows :
"RE:
SANDU PROPOSED AGREEMENT: NEW SALARY STRUCTURE AND ANNUAL INCREMENT
FOR DEFENCE ACT PERSONNEL (DAP) IN THE SANDF
Attached
find SANDU's proposed agreement which applies to all employees
appointed in terms of the provisions of the Defence Act,
1995 and who
fall within the registered scope of the MBC.
It
is again confirmed that the delegation of Mr JC Greef, Mr C A Boer
and Mr J Dubazana are the only legitimate representatives
to
represent and negotiate in the MBC on behalf of SANDU and its members
as per resolutions of the CEC and as per the Constitution
of SANDU.
The
delegation is further mandated to explore the salary offer of the
employer and then report back to the SANDU structures, to
obtain a
further mandate on the employee’s offer.
SANDU
remains the union of choice among soldiers and we must live up to the
faith that soldiers have in and their commitment to
SDANDU. We
realise that this places on us a heavy responsibility to meet the
needs of our members”.
The
proposal, which accompanied the covering letter, contained the
heading “Agreement” and its subject line read “Agreement:
New salary structure and annua! increment for Defence Act personnel
in the SANDF’. The document contained a reference to
an
"agreement number”, listed as “1/2007” and is
dated 19 July 2007. It is not necessary to set out the
further
contents of the document as they are not relevant to the
determination of this action.
14.
When they arrived at the MBC meeting, both Greef and Dubazana
testified
that
they handed a copy of the proposal (including the covering letter) to
the
employer
representatives. Mr Dubazana testified that he handed a copy of the
document
to the Chair of the MBC and to Ms Manzini. According to him, Ms
Manzini
then passed the document to Col. Dhlamini, who in turn passed it on
to
the
faction led by Mosimane. The fourth and fifth defendants denied
receiving a
copy
of the covering letter or the proposal for the salary increase. Greef
testified
that
he handed the proposal to the employer delegation, and that he could
have
possibly
given the document to Col. Dhlamini. Under cross-examination Greef
was
referred to an affidavit he deposed to in case number 67118/07, in
which he
stated
the following :
“
10.
It was the intention of the First Applicant to present this proposed
agreement at the MBC meeting, which was scheduled for the
20th of
July 2007. However, when I attempted to hand up the said proposed
agreement at the said MBC sitting the very same Colonel
Dhlamini, the
draftsman of this bulletin, advised me that he cannot consider or
accept same as two sets of union representatives
are present and he
therefore does not know who represents whom and, as a result, is not
willing to accept our proposal at the time
or discuss any proposals
we might have.”
On
this basis, the defendants contended that Greefs testimony is
inconsistent with the contents of an affidavit he made relating
to
the same facts, and accordingly his version that he handed a copy of
the union’s proposal in respect of salary increases,
cannot be
accepted as being true.
15.
It is common cause that the MBC meeting never proceeded further than
the first item on the agenda as both Greef and Dubazana
confirmed
that the employer’s delegation presented the plaintiff with a
computer generated print reflecting that the plaintiff’s
membership had dropped below the threshold of 15 000. The implication
of this averment is that a union must have a membership of
15 000
members or
more
in order to secure standing in the MBC. Greef disputed the employer's
figures, and regarded them with suspicion, particularly
as the union
had been locked in litigation with the defendants over a refusal to
effect deductions, which had a direct bearing
on membership figures.
The plaintiff litigated against the Defence Department over the
refusal to effect deductions for membership
fees. In all of these
cases, Greef stated that the plaintiff had been successful. The
eventual outcome of the litigation was that
the SANDF was ordered by
Court to pay R999 000, representing arrear membership fees to the
plaintiffs.
16.
Eventually the MBC meeting was adjourned to enable the parties to
resolve the discrepancy related to the issue of the threshold,
as
well as which of the two factions was entitled to represent the
plaintiff. Greef further testified that even after the meeting,
the
proposal for the salary increment was distributed to various units
through approximately 450 different facsimile contact numbers.
The
purpose of the wide distribution was to ensure greater transparency
in relation to the plaintiff’s demands.
17.
Following the MBC meeting in July 2007 and its failure to arrive at
an agreed salary increment for the year 2007/8, the Minister
of
Defence made a determination of a 7,5% increase, pursuant to a
submission made by Col. Dhlamini.
18.
According to Col. Dhlamini, towards the end of September 2007 or
early October 2007 he received numerous telephone calls from
soldiers
complaining that they were receiving only a 7,5% increase, whereas an
agreement that they had seen referred to a 19% increase.
He was
subsequently visited by a group of disgruntled soldiers, who voiced
the same concerns to him regarding their salary increase.
After
conducting certain investigations, including a visit to the unit at
Thaba Tshwane, Dhlamini stated that he was obliged to
write the
article entitled “Greatest Lies ever told by a Military Trade
Union" in the Bulletin.
19.
Shortly after the publication of the Bulletin, Col. Dhlamini authored
another document on 8 October 2007, on which the plaintiff’s
second claim is founded. This document, entitled “Notice of
Protest March by Military Trade Unions", took the form of
an
Administration Order, No. 6/2007 signed by the Chief of Staff of the
SANDF as well as the Secretary for Defence. The Administration
Order
addressed the issues of a planned protest march called by the
plaintiff for 12 October 2007 in Cape Town, as well as what
is
described as "labour action short of mutiny and execution”.
It is not disputed that the Administration Order was
distributed
within the military, although the defendants submitted that it was
only intended for ‘top- management’.
The plaintiff
received the document via one of their members based in the Cape. As
set out earlier, the Administration Order was
the subject of
litigation under case number 67118/2007 wherein Mynhardt J issued an
order interdicting the Minister of Defence
from refusing to grant
leave to the plaintiff’s members for the purpose of engaging in
a march on 12 October 2007. The plaintiff
contends that the content
of part of the Administration Order is wrongful and defamatory. The
parts of the article which the plaintiff
considers actionable are
confined to the first of three pages of the Administration Order, the
relevant portions of which read
as follows:
RESTRICTED
8
October 2007
ADMIN
ORDER 6/2007: NOTICE OF INTENDED PROTEST MARCH BY MILITARY TRADE
1.
Directorate Collective Mechanisms In consultation with Legal Support,
Directorate Labour & Service Relation Services and
Divisions have
been observing and investigating the illegal distribution of a
counterfeit Military Bargaining Council agreement
dated 19 July 2007
to various SANDF Units by elements of un-elected SANDU officials. The
purpose of this counterfeit MBC agreement
is to create
dissatisfaction amongst members and to outmanoeuvre the elected SANDU
officials in their Court battles for the control
of the union funds.
Furthermore, these elements of un-elected SANDU officials are calling
soldiers to participate in various protest
marches planned for the
month of October and November 2007 throughout the country in
contravention of the Defence Act read with
the provisions of the
First Schedule (MBC). The first march is planned for the 12 of
October 2007 at Cape Town to hand a petition
to Parliament.
2.
Based on the above, the Directorate Collective Mechanisms will
continue observing development in this regard and take corrective
action if necessary.
AIM
3.
The aim of this order is to describe the measures to be applied in
managing protest marches, strikes/mutiny and or any labour
action by
military trade unions and their members.
SCOPE
4.
This administrative order will address the following issues:
d.
Protest march.
e.
Any other labour action short of a strike/mutiny
f.
Execution.”
(my
underlining)
EVIDENCE
REGARDING THE PUBLICATIONS
20.
In his testimony, Mr Greef described the Bulletin as an ad hoc
communication tool used by management to communicate with members
of
the defence force. If a member received a copy of this publication,
they would consider it to be an official communication from
management of information or instructions to be followed. This
evidence was not disputed by the defendants. Particularly
objectionable,
according to Greef, was the statement contained in the
publication that a “purported agreement dated 19 July 2007
distributed
by the SANDU faction led by Mr Greef does not exist’.
In another part of the publication, reference is made to “SANDU
led by Mr Greef is distributing those so-called agreements to
soldiers”. The publication concluded with the statement that
members affiliated with the plaintiff are “resigning in
hundreds and more are fighting that SANDU must stop the illegal
deductions from their salaries
21.
All of these statements, it was contended, must be seen in the light
of the title of the Bulletin - "Greatest lies ever
told by a
Military Trade Union”. Following the release of the
publication, the plaintiff received calls from its members
wanting
clarity on whether SANDU had misled its members as to their salary
increase, and whether this led to confusion amongst
the ranks. As a
result, ever since the publication, the plaintiff’s membership
had reached a ceiling, the inference being
that the publication had
an impact on its growth as a union.
22.
In so far as the allegation of its members resigning in their
hundreds, Greef stated that there was no truth to this statement,
nor
was he aware of any investigation carried out by the Department of
Defence into the origin of the "’purported agreement”.
He further considered the words in the publication referring to “two
warring SANDU groups” to be suggestive of in-fighting
or strife
within the union and akin to “union bashing”, aimed at
spreading rumour and discontent amongst its members.
Moreover, the
repeated reference to the words “faction led by Mr Greef’,
was, according to him, designed to discredit
the plaintiff. In
contrast, when the defendants referred to the group led by Maj.
Mosimane, they referred to them in the publication
as “democratically
elected”. He also pointed out that the contention that this
group was “democratically elected”
was also factually
incorrect, as the MBC and the defendants’ attorney had been
informed on 3 July 2007 that this faction
had no legitimacy to
negotiate on behalf of the plaintiff, as they had been placed on
suspension. In light of all of these factors,
Greef considered that
the Department of Defence, as an employer, was acting inappropriately
by siding with one of the factions
within the union, and by entering
into terrain that should remain an area of organised labour.
23.
Three days after the publication of the Bulletin, the fifth defendant
authored and published the Administration Order on 8 October
2007.
Greef testified that this publication repeated the false allegations,
contained in the Bulletin, that the plaintiff was illegally
distributing a "counterfeit’ Military Bargaining Council
agreement. It insinuated that this was being done with the
intention
of creating “dissatisfaction among members" in an attempt
to out- manoeuvre the '‘elected SAN DU officials
in their Court
battles for control of the union's funds". It was factually
incorrect that the plaintiff, under the leadership
of Greef, had
initiated any litigation against the faction led by Mosimane over any
matter, but more so, that there was any litigation
or struggle to
control the plaintiff’s funds. Greef testified that the
statements attributed to the plaintiff adversely impacted
its
reputation and insinuated that it was engaged in the dissemination of
misinformation about a counterfeit agreement before the
MBC. These
allegations portrayed the plaintiff as acting in an unlawful and
unethical manner, particularly where there was reference
to union
finances. Such statements would have the effect of discouraging
members from joining such an organisation. By way of example,
Greef
referred to a former Commander in the defence force and member of
Sandu, commenting that members were “laughing”
at the
union as a result of this publication.
24.
The remainder of the Administration Order was aimed at members of the
military who may have considered joining the protest march
called by
the plaintiff for 12 October 2007. In essence, the Administration
Order forewarned members that no leave would be granted
to them if
this leave was intended to be used for the purpose of engaging in the
protest.
25.
Greef testified that subsequent to the publication of the Bulletin
and the Administration Order he contacted the fourth defendant
with
the intention of holding an amicable discussion regarding the untrue
statements. In what can only be attributed to mistrust
between the
parties, Greef stated that when he engaged in telephonic discussion
with the employer, he either had another person
listening to the
discussion on a speaker-phone, or he recorded the convcersation
(ostensibly with the permission of the other party).
On this
occasion, he requested his colleague and the chief negotiator for the
plaintiff at the MBC, Mr Dubazane, to listen in on
the conversation.
Greef stated he pointed out to the fourth defendant, with reference
to the publications, that it was untrue that
a “counterfeit
agreement' was being distributed by the plaintiff, and that the
document was only a proposal for a salary
increase. He then referred
her to the contents of the covering letter to the agreement, as well
part of the letter which made reference
to a “proposed
agreement”. In any event, it was common cause that no agreement
on salary increases had been reached
at the MBC. In light of this,
Greef asked the fourth defendant to retract the false allegations
attributed to the plaintiff. Despite
the fourth defendant undertaking
to revert to him, she never did. In the circumstances, the plaintiff
proceeded to launch an urgent
application to this Court, whereupon it
was granted an Order by Mynhardt J on 11 October 2007 which prevented
the Department of
Defence from refusing to grant leave to the
plaintiff's members for the purpose of attending the protest march on
12 October 2007.
In addition, the Court ordered that the respondents
immediately stop distributing the Bulletin headed “Greatest
lies told
by a Military Trade Union”. This action is a sequel
to the initial order obtained by the plaintiff.
26.
According to the plaintiff’s witness this is neither the first
nor last instance in which the defendants have made defamatory
statements toward the plaintiff. I was referred to an earlier
judgment of Kollapen J in South African National Defence Union v
Minister of Defence & others 2012 (4)SA 382 (GNP) in which the
plaintiff was awarded damages following an article which insinuated
that the plaintiff was dishonest in making unlawful deducting from
members’ salaries and that it was not conducting its affairs
in
an honest and lawful manner. Three similar actions are awaiting trial
relating to similar defamatory conduct alleged by the
plaintiff
against the defendants.
27.
The second witness for the plaintiff, Mr Dubazana, corroborated the
evidence of Greef that the plaintiff’s proposal for
the
increase in salary was handed over to the Chairperson of the MBC, as
well to the fourth defendant personally. He recalled being
present
with Greef when the latter phoned the fourth defendant asking that
she retract the false allegations against the plaintiff.
Dubazana
described the issue of the Bulletin in question as “propaganda”
being used against the plaintiff in light
of its planned protest
march to parliament on 12 October 2007. He was adamant that the
document which was presented to the MBC
on 19 July 2007, and which he
contends he handed to the fourth defendant, was an unsigned proposal
for a salary increment. At no
stage did either he or anyone else in
the union refer to it as an “agreement” - particularly as
it was unsigned by
either party. To the extent that the publication
refers to a “counterfeit agreement” Dubazana testified
that he had
never seen an ‘original’ agreement
purportedly concluded by parties to the MBC, as no such original
existed. As I understood
his evidence, it
followed
logically that there could therefore be no “counterfeit”
which would constitute a deviation or misrepresentation
when compared
to the original agreement. When commenting on the likelihood of the
plaintiff putting out false information to its
membership,
particularly on salaries, Greef described this conduct as “suicidal”.
It stands to reason that if a union
conducted itself in this manner,
its members would have no trust whatsoever in its ability to
represent their interests or to act
in good faith.
EVIDENCE
FOR THE DEFENDANTS
28.
On behalf of the defendants, only the fourth and fifth defendants
testified, raising two defences to the claims that the contents
of
the Bulletin and the Administration Order were untrue, wrongful, and
defamatory. It was contended that the content of the publications
were true, and that they were made in the public interest. The
defendants relied primarily on the evidence of retired Colonel
Dhlamini, the fifth defendant, who was a member of the employer
delegation to the MBC meeting on 19 July 2007, as well as the person
responsible for drafting the Bulletin and the Administration Order
which have given rise to the action. Their evidence is dealt
with
below.
29.
Col. Dhlamini stated that the meeting before the MBC did not make
much progress with the issues on the agenda, and most certainly
did
not discuss the salary proposal of the plaintiff. This was because
the employer party to the MBC raised a preliminary issue
of standing
of the union and whether it was properly represented - either by
Greef or Maj. Mosimane. No sooner had this issue been
raised, when
another matter pertaining to whether the plaintiff had met the
required threshold of 15 000 signed up members, to
be recognised and
admitted as a party to the MBC, arose.
30.
It is not in dispute from the evidence that no definitive ruling was
issued on these matters by the Chairman of the MBC. The
meeting was
adjourned to allow the competing factions to resolve their disputes
among themselves. After the meeting, Dhlamini drafted
an issue of the
Bulletin on 20 July 2007 in which he apprised the soldiers of what
had transpired at the MBC meeting the day before.
Dhlamini denied
having ever received a copy of the covering letter or the
accompanying salary proposal from the plaintiff's offices,
either
from Greef or Dubazana. According to him, after the MBC meeting had
failed to achieve anything substantial, he was being
approached by
soldiers who complained of becoming impatient waiting for a decision
on salary increments. He then drafted a submission
to the Minister of
Defence, in which he motivated for a 7,5% increase. This was
subsequently implemented.
31.
Towards the end of September or early October 2007 he received a call
from soldiers enquiring why the military was not implementing
the 19%
salary increase in terms of an MBC agreement. Dhlamini testified that
he informed the soldiers that no agreement had been
reached at the
MBC. Following a report that copies of a salary agreement were being
distributed among various units of the military,
Dhlamini visited the
Thaba Tshwane base where he saw a member of the plaintiff’s
executive committee, Mr Charlton Boer, using
a loud hailer to
distribute a flyer calling on troops to attend a protest march
planned for 12 October 2007. Mr Boer also distributed
copies of the
salary proposal drafted by the plaintiff to members. Dhlamini stated
that he was then approached by a group of five
soldiers who raised
the query as to why they were not being paid in accordance with an
agreement supposedly concluded at the MBC.
32.
In light of the circumstances set out above and after obtaining a
copy of the proposed agreement, he wrote the article for publication
in the Bulletin, which forms the basis of one of the defamation
claims. According to Dhlamini, he received information that soldiers
were starting to “combine”, and as they were armed (by
virtue of being military personnel), it was possible that the
situation could give rise to a mutiny. He therefore felt compelled to
bring certain matters to the attention of the soldiers and
therefore
penned the article which featured in the Bulletin.
33.
When questioned as to why he referred to the proposal as a “purported
agreement in the article, Dhlamini conceded that
no such agreement
was concluded at the MBC. He further indicated that he did not want
to attribute the agreement to “SANDU’
as he was aware
that there were different factions and for this reason he chose to
refer to those responsible for the distribution
of the purported
agreement as “the faction led by Mr Greef”.
34.
In relation to the Administration Order also written by him, which
perhaps was penned in response to the plaintiff calling on
its
members to engage in protest action on 12 October 2007, he testified
that the rationale behind the publication was to stop
members from
engaging in “unlawful action”. He was distressed that
soldiers wanted to engage strike action in the same
way as teachers
and members of the police services. He confirmed having authored the
Administration Order as an ‘advice’
to his seniors, and
that it was not intended for general distribution amongst members.
35.
Under cross examination, Colonel Dhlamini proved to be evasive when
questioned on his use or choice of particular words in both
the
Bulletin and the Administration Order. He was questioned at length on
his use of the words “purported agreement’
in the
Bulletin, particularly when he was fully aware that no such agreement
had been concluded at the MBC. His responded that
the word
“purported” connoted something which is not what it is,
essentially something untrue. The ordinary dictionary
meaning of
counterfeit refers to something which "appears to be or do
something, especially falsely”. Counsel for the
plaintiff, Mr
van der Merwe, submitted this was precisely the compliant of the
plaintiff, in that the fifth defendant knowingly
insinuated that an
“agreement” on salary increases was being distributed by
the plaintiff when Dhlamini was aware that
this was untrue, and had
no basis for believing such statement to be true. Dhlamini further
conceded that the agreement shown to
him by the soldiers was not
signed and therefore could not be an agreement. He later retracted
this concession, stating that an
agreement did not necessarily have
to be signed. Later in his evidence, he contended that he document
distributed by the plaintiff
was an agreement, as it contained a
reference to ‘Agreement number: 1/2007", suggesting that
it was an agreement that
emanated from the MBC.
36.
It was further contended that Colonel Dhlamini, who by his own
account was a seasoned adviser in labour relations matters and
always
intent on ensuring sound labour relations, acted in a contrary manner
by issuing the Bulletin the and the Administration
Order, which were
conversely intended to entice reaction rather than calm down soldiers
who, on his account, were becoming mutinous.
In regard to the
statement in the Bulletin that he had conducted an investigation into
the “origin and the reasons as to
why SAN DU led by Mr Greef is
distributing these so called agreements”, Colonel Dhlamini was
unable to indicate what the
nature of these investigations were,
other than a reference to the unit in Thaba Tshwane where he
witnessed a member of the plaintiff
distributing what he believed to
be the “purported agreement”.
37.
Colonel Dhlamini was unable to provide a coherent or rational
explanation as to why he referred to the proposed salary agreement
as
a “counterfeit” agreement, which the plaintiff argued was
used in a manner designed to create the impression that
it was
dishonest, deceitful and a party to a fraud. When questioned on how a
reasonable reader of the Bulletin and the Administration
Order would
interpret these documents, Colonel Dhlamini somewhat surprisingly
responded that he considered himself to be the “final
interpreter” of his document. This contention was later
withdrawn by Mr Matebese who appeared for the defendants. In an
attempt at damage control, Col. Dhlamini later contended that the
Administration Order was intended for distribution to ‘top
management’ and not intended for general distribution among
soldiers. He also gave lengthy account that the MBC had met from
2004
to 2007, contending that the body had met prior to a Constitutional
Court order in 2007. Nothing turns on this aspect of his
evidence in
my view. As to why, when he was approached with the document
purporting to be an MBC agreement, had not approached
Mr Greef or
Dubazana immediately to obtain their response as to why a counterfeit
or fraudulent document was being distributed
among the soldiers, he
responded that the ‘elected’ head of the plaintiff union
was Maj. Mosimane. He further indicated
that he did not contact Mr
Greef as he is not a member of the defence force, and the
Administration Order is only applicable to
employees of the defence
force.
38.
In relation to his statement that the members of SANDU were
“resigning in the hundreds”, Col. Dhlamini testified
that
he formulated this view from the access which he had to the computer
records which provided details of deductions effected
from
salaries for membership fees. He was unable to produce any
information in support of his contention that SANDU members were
resigning in large numbers. He also believed that in publishing the
two articles, he was “saving lives” of members
of the
defence force. No evidence was however tendered which would have
suggested that the members’ lives were in danger,
or what
effect these publications had in quelling any danger that did exist.
He was unable to offer any comment on the response
by both Greef and
Dubazane that it would be foolish and ‘suicidal’ of the
plaintiff, as a trade union, to claim that
an agreement at the MBC
had been reached on salary increases where there had been none. That
aspect of their evidence remained
uncontested.
39.
The second witness called on behalf of the defendants was Ms TG
Manzini, the fourth defendant. She testified that she had never
received the covering letter or the proposed salary agreement from
either Greef or Dubazane at the MBC meeting, nor had she received
such document via facsimile. She further denied ever having a
telephonic discussion with Greef subsequent to the publication of
the
articles, or that she had undertaken in any manner to retract the
allegations. When questioned as to why the minutes of the
MBC meeting
refer to the possibility on the part of the plaintiff of securing a
19% increase if this proposal was never tabled
at the meeting, Ms
Manzini was unable to provide a response. Similarly, she was unable
to comment on what benefit would accrue
to the plaintiff by falsely
claiming that an agreement had been reached on a 19% increase when,
even by the plaintiff’s account,
no agreement in this regard
had been reached. That concluded the evidence on behalf of the
defendants.
ANALYSIS
OF THE EVIDENCE
40.
In South African National Defence Union v Minister of Defence and
others 2012 (4)SA 382 (GNP), in which the plaintiff sued for
damages
arising from certain defamatory statements attributed to it, Kollapen
J took note of the reasoning in the earlier decisions
of GA Fichardt
Ltd v The Friend Newspapers Ltd 1916 and Die Spoorbond v South
African Railways; Van Heerden v South African Railways
1946 AD 999
in
the context of whether a non-trading entity could sue under the actio
injuriarum for damages. The Court at paragraph [16] held
that:
“
In
this action the plaintiff is a trade union, which is a voluntary
association whose members are invariably employees who have
both the
right to associate, as weii as the right to dissociate. While their
objectives may be narrower than those of a political
party, trade
unions in the modern era involve themselves, and understandably so,
in matters beyond the workplace, and their activities
may often
relate to the economic and social policies of the day, and to
important events that impact on the wellbeing of society.
Accordingly
the existence of a trade union, its ability to recruit new members,
and to retain existing members, are in turn dependent
on a number of
factors, which include its policies and the manner in which they are
articulated, its leadership, and the manner
in which the organisation
is structured and organises its affairs. In this regard I would
imagine a commitment to openness, an
internal structure that is
transparent and democratic, integrity in the handling of its affairs,
including its financial affairs,
all reflect on the reputation of a
trade union, and its very existence and sustainability.”
The
standing of the plaintiff to claim damages for defamation in these
proceedings
was
therefore not in issue.
41.
The issue to be determined, in light of the evidence, is whether the
contents of the articles written by Col. Dhlamini and subsequently
published, were of a slanderous nature and defamatory. Both Greef and
Dubazane testified that the use of the word “counterfeit”
to describe the plaintiff's salary proposal was without foundation
and false. Greef testified that the proposal which the union
formulated for a salary increase remained simply that - it had never
been discussed nor agreed to at the MBC. The defendant, on
the other
hand, admits to the publication of the articles but relies on the
defences that they were true and in the public benefit.
Accordingly,
the defendants deny that that the statements were in any way
defamatory of the plaintiff’s reputation.
42.
There was a dispute as to whether the plaintiff’s salary
proposal was submitted at the MBC meeting on 19 July 2007. Both
Greef
and Dubazane testified that the proposal and the covering letter were
sent via facsimile to the various addressees on the
covering letter
before the meeting commenced. Both the plaintiff’s witnesses
further testified that they had personally handed
copies of the
proposal to the fourth and fifth defendants and to the secretary of
the Council. The testimony of Greef was placed
in doubt in light of
an affidavit in which stated that he attempted to hand the document
to Col. Dhlamini, who refused to accept
it.
43.
On the other hand, Dubazane testified that it would be highly
unlikely that plaintiff, having prepared for the MBC meeting on
19
March 2007 with the intention of raising the issue of the salary
increases, would not have sent out their proposal in advance
to the
secretariat of the Department of Defence, or that they would have
arrived at the meeting without their written proposal
at hand.
44.
Similarly, both Greef and Dubazane testified of the telephonic
discussion with Ms Manzini after the publication of the
administration
Order and the Bulletin. She denies that such
discussion ever took place.
45.
Counsel for the plaintiff submitted that the fourth and fifth
defendants had no alternative but to deny receipt of the proposal
and
the telephone call, as to do otherwise would be fatal to the
defendant’s case. It was contended that an admission on
their
part would imply that the defendants were unequivocally aware of the
proposal for a salary increase - and crucially that
there was no
agreement on
the
issue. The position of the defendants is that no such proposal was
brought to
their
attention at the meeting, and the only time they became aware of such
a
document
was when soldiers began complaining to Col. Dhlamini that they were
not
being
paid in accordance with an “agreement” reached at the
MBC.
46.
There is nothing from the demeanour of the witnesses of either the
plaintiff or
the
defendants to tell them apart. Both Col. Dhlamini and Mr Dubazane
proved to
be
equally argumentative when they gave their evidence. I am unable to
make any
credibility
findings based on their evidence. Where there are two diametrically
opposed
versions of the facts, the test to be employed in determining which
of the
two
versions is more probable was set out in Stellenbosch Farmers Winery
Group
limited
and Another v Martell Et Cie and Others
2003 (1) SA 11
(SCA) at 14,
para. 5
where
the Court held
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So too on a number of
peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability and (c) the probabilities/*
The
probabilities, in my view must favour the plaintiff, as it seems to
me to be entirely improbable that the defendants would not
have
received the proposal either before or at the MBC meeting. This
conclusion is fortified by the failure of the defendants’
witnesses to explain why, if the proposal had not even been tabled at
the meeting, why would it have been a matter featuring in
the minutes
of the MBC meeting. Having reached that conclusion, there would
therefore be no basis for the defendants to have been
unaware of the
proposal from the plaintiff, and their evidence to this effect must
be rejected.
47.
Turning to the two articles, the contention of the plaintiff is that
there can be no factual basis or truth in the statement
contained in
the Bulletin that a “purported agreement dated 19 July 2007
distributed by the SANDU faction led by Mr Greef
does not exist”
The evidence of both the plaintiff’s and the defendants'
witnesses is that no agreement on a salary
increase was reached at
the MBC meeting on 19 July 2007. On that basis, the plaintiff
contends that no lawful grounds exist for
the defendants to refer to
a “purported agreement” or a “counterfeit
agreement” as they did in the Bulletin
and the Administration
Order, both authored by Col. Dhlamini.
48.
The evidence of the fifth witness, Col. Dhlamini, is crucial to
determining the merits of the claim. He was present at the MBC
and
stated that no agreement on salaries was reached at the meeting. He
further confirmed that, thereafter, he drafted a submission
to the
first defendant for a 7,5% salary increase for members of the defence
force, which was subsequently granted. Taking into
account these
facts he, more than anyone else, should have known that there was no
agreement struck between the parties and there
could be no basis for
the use of the words “purported agreement” and
“counterfeit” as being either constituting
the truth, or
that it was made in the public interest. Moreover, when Col. Dhlamini
was approached by a group of misinformed or
disgruntled soldiers
complaining that they were not paid a 19% salary increase, the
obvious response in those circumstances would
have been to clarify
the position that there was no agreement for a 19% increase. Instead,
and fully aware that no agreement had
been concluded at the MBC, Col.
Dhlamini proceeded to draft the Administration Order referring to the
plaintiff's proposal as "a
counterfeit Military Bargaining
Council agreement”. His conduct was clearly actionable.
49.
Similarly, the article entitled “Greatest lies told by a
Military Trade Union'’ refers to a "purported agreement
dated 19 July 2007”. Col. Dhlamini was cross examined at to the
existence of an “original” MBC agreement, as
he
repeatedly used the word “counterfeit” and "purported”
in the context of the publications. The contention
of the plaintiff
is that if there is reference to a "counterfeit”
agreement, an original or true version must exist.
Col. Dhlamini was
unable to produce any such document. Moreover, if one considers the
ordinary meaning attributed to the word "purport”,
it is
that which implies or professes to be something.
50.
In the context of the articles published by the defendants, the
enquiry that must follow is what would a reasonable reader of
ordinary intelligence attribute to the words used in the
Administration Order and the Bulletin? The plaintiff contends that a
reasonable reader would not know that there was no agreement reached
at all before the MBC, but would nonetheless formulate an opinion
that the plaintiff was conducting itself in a dishonest manner, and
deliberately distributed a document which it knew was not an
agreement. The word "counterfeit” ordinarily means
something which is initiated in order to deceive someone, or to make
a fraudulent imitation of the original. A reasonable reader of
ordinary intelligence would, according to the plaintiff, interpret
the word(s) in the context of the article to mean that the plaintiff
was distributing an agreement which did not exist, and generally
acting in a dishonest manner The test to be applied was set out in
Sindani v Van der Merwe
[2002] 2 All SA 311
(SCA)| at [11] where the
Court held:
“
The
ordinary meaning of the words under consideration does not
necessarily correspond with their dictionary meaning. The test to
be
applied is an objective one: namely what meaning the reasonable
reader of ordinary intelligence would attribute to the words
read in
the context of the article as a whole. In applying this test it must
be accepted that the reasonable reader will not take
account only of
what the words expressly say but also what they imply (see e g Argus
Printing & Publishing Co v Esselen's Estate
1994 (2) SA 1
(A) 20
F-G). It must also be borne in mind that the ordinary reader has no
legal training or other special discipline and that
'if he read the
article at all would be likely to skim through it casually and not to
give it concentrated attention or a second
reading. It is no part of
his work to read this article, nor does he have to base any practical
decision on what he reads there'
(per
Lord Pearson in Morgan v Odhams Press Ltd and Another [1971] 2 AIIO
ER 1156 at 1184).
Consequently,
a court that has of necessity subjected a newspaper article under
consideration to a close analysis must guard against
the danger of
considering itself to be "the ordinary reader" of that
article (see also Ngcobo v Shembe and others 1983(4)
SA 66(D) 71
C-D).
51.
Mr Matebese for the defendants submitted, with reference to Sindani
(supra), that I should not subject the words in the Bulletin
and the
Administration Order to any closer analysis as a reasonable reader
would have probably “skimmed” through the
article without
giving concentrated attention to the meaning of the words used in the
publications. I respectfully disagree with
this contention, as my
interpretation of the decision in Sindani is that it is important to
consider the meaning of the words in
the “context of the
article as a whole”. As Lord Steyn in R v Secretary of State
for the Home Department, ex parte
Daly
[2001] UKHL 26
;
[2001] 3 ALL ER 433
(HL) at
447 stated, “in law, context is everything”.
52.
In his testimony, Mr Greef stated that soldiers receiving a copy of
an Administration Order would regard this as an instruction,
and in
some instances, would place a copy on their notice boards. It was a
means of ad hoc communication within the military. This
evidence was
not disputed by the defendants. Having regard to the obligation to
follow orders within the context of the military,
I am not persuaded
by the argument that a reasonable reader of the Administration Order
and the Bulletin - not being a member of
the public, but a reasonable
soldier - would have given the publications no more than a cursory
“skim”. This conclusion
is fortified by the evidence of
Col. Dhlamini who stated that he was extremely concerned that
soldiers who read the “counterfeit
agreement” attributed
to the plaintiff, could become mutinous and that “blood could
flow”. Although his fears,
in my view, were grossly
exaggerated, it is suggestive that those within the military would
have given closer attention to the
contents of the publication than
an ordinary reader of a newspaper article.
53.
While counsel for the defendants argued that there were no untruths
in the Administration Order or in the article in the Bulletin,
both
written by Col. Dhlamini, it was submitted in written argument that,
despite certain inaccuracies which may exit in the articles,
I ought
to have regard to the “gist” of the articles. On this
approach, the "gist” of the articles, it submitted,
was
true. In this regard, the defendants rely on the decision in Modiri v
Minister of Safety and Security and others
[2012] 1 All SA 154
(SCA)
where the Court held :
“
As
to the appellant’s second contention based on the admitted
inaccuracies in the impugned article, it is a matter of settled
law
that the defendant is not required to prove that the defamatory
statement was true in every detail. What the defence requires
is
proof that the gravamen or the sting of the statement was true.
Inaccuracies in peripheral detail do not rule out the defence
(see eg
Johnson v Rand Daily Mails
1928 AD 190
at 205-206; Independent
Newspapers Holdings Ltd v Suliman
[2004] 3 All SA 137
(SCA) paras
34-38). The underlying logic appears from the judgment of Wessels JA
in Johnson. The reason, he explained, why truth
and public benefit is
recognised as a defence, is because a plaintiff is not entitled to
recover damages in respect of an injury
to a reputation which he does
not deserve. Consequently, the defendant ‘need not justify
immaterial details or mere
expressions
of abuse which do not add to its sting and would produce no different
effect on the mind of the reader than that produced
by the
substantial part justified'. The gist or sting of a statement is
determined with reference to the legal construct of a reasonable
reader. It is the meaning that the reasonable reader of ordinary
intelligence would attribute to the statement (see eg Basner v
Trigger
1945 AD 22
at 32; Sindani v Van der Merwe
2002 (2) SA 32
(SCA) para 11). The test is thus an objective one. Evidence of how
the plaintiff, or for that matter, any actual reader of the
article
understood the statement is of no consequence.”
54.
In response to this ground of defence, the plaintiff contended that
the defendants have not laid a factual basis for proving
that the
contents of the articles are true, nor was this defence put to the
witnesses or pleaded by the defendants. The defendants
restricted
themselves to the defences of truth and the public interest as
justification for the publication of the articles. I
am not persuaded
by this argument. I am in agreement with the contention on behalf of
the plaintiff that the title of the article
in the Bulletin,
"Greatest Lies ever told by a Military Trade Union",
suggests that a reasonable reader of ordinary intelligence
would
infer that the plaintiff is guilty of spreading lies and untruths.
This directly impacts on its reputation and whether it
is an
institution that new members of the military may wish to join.
55.
It is also common cause that the plaintiff is the only union
recognised by the MBC, and any reasonable reader of the publications
would associate the plaintiff union with the spreading of untruths.
However, when one considers the evidence of Col. Dhlamini and
the
particular words used in the two publications, it is apparent that
the defendants sided with a faction led by Major Mosimane,
who were
not office bearers of SANDU and who had no legitimacy as a party to
the MBC. This conclusion is readily apparent if one
has regard to the
repeated references in the articles to “the group led by Mr
Greet". On the other hand, the article
refers to the group led
by Maj. Mosimane as being "democratically elected” as well
as Dhlamini’s evidence that
he considered Maj. Mosimane as the
“elected leader” ot SANDU. A reasonable reader would
interpret these statements
to mean that the plaintiff's present
leadership under Greet has come about by an “undemocratic”
process.
56.
There is a presumption that a defamatory allegation is false or
untrue, and accordingly it is not necessary for the plaintiff
to
provide any evidence to prove this. In this case, however, the
plaintiff has provided evidence to prove that no agreement on
salaries was reached at the MBC. On the other hand, the defendants
have not been able to provide any evidence that the plaintiff
was
“distributing a counterfeit Military Bargaining Council
agreement”. Even more damning is the reference to a court
battle "for the control of union funds”. No evidence was
tendered by the defendants to establish the truth or public
interest
of this statement, and the onus is on the defendant to rebut the
presumption.
57.
Col. Dhlamini was unable to explain what investigation the Department
of Defence carried out into the distribution of a “purported
agreement” by the plaintiff, other than reference to Mr
Charlton Boer, distributing flyers supposedly notifying soldiers
of a
proposed protest march, as well as of the proposal on salaries which
the union hoped to have concluded at the MBC. There is
nothing in the
proposal prepared by Greet and Dubazane which can be inferred to
suggest that the document constitutes an agreement.
That the document
bears a reference number for an MBC agreement is of no consequence.
Even if Col. Dhlamini was approached by angry
soldiers during his
visit to Thaba Tshwane, who queried the existence of the document
being distributed by Mr Boer, he (Dhlamini)
was in an ideal position
to explain to them that no such agreement existed. He had an
obligation to promote transparency and provide
members of the defence
force with accurate information. On the contrary, the words published
by the defendants, as contained in
the article entitled “Greatest
Lies told by a Military Trade Union" and the Administration
Order, authored by Col. Dhlamini,
dated 5 and 8 October 2007
respectively, cannot be said to have been either true or in the
public interest.
58.
I am accordingly satisfied that the plaintiff has established that
the words and statements attributed to it in the Bulletin
and the
Administration Order were defamatory, and calculated to harm the
plaintiff’s reputation as a trade union within the
defence
force. As Kollapen J stated in SANDU v Minister of Defence and others
{supra):
“
[17]
There is the added reality that in many of the labour sectors that
exist in our society there exists more than one trade union
and so
potential members have a choice in which trade union they will seek
and retain their membership. The reputation of a trade
union thus
becomes important in the choices that members and potential members
may make and that reputation ultimately impacts
on the ability of a
trade union to sustain itself and continue its activities. It must
accordingly follow that a trade union has
indeed a reputation which
it is entitled to protect, and that conduct which unlawfully impairs
such reputation should be actionable.”
I
accordingly find in favour of the plaintiff in respect of both claims
1 and 2 that the aforementioned articles were defamatory.
59.
I now turn to deal with the quantum in respect of both counts, in
respect of which the plaintiff claims R250 000 each. Mr Greef
testified that after publication of the article in the Bulletin and
the Administration Order its membership figures have never
increased,
hinting at the reputational damage of false statements attributing
lies and counterfeit documents to the plaintiff’s
leadership.
This is worsened where reference is made to the union effecting
“illegal deductions from their salaries”,
as mentioned in
the article published in the Bulletin.
60.
The plaintiff claimed R250 000 in respect of each claim as set out in
the summons. Mr Greef testified that it is impossible
to verify
quantum claimed in a case of defamation to a trade union, although
counsel for the plaintiff submitted that the award
made by Kollapen J
in the amount of R40 000 was both fair and reasonable yardstick. It
was further contended that I should regard
the previous judgment as
an aggravating factor, and make a higher award. Counsel for the
defendants, on the other hand, contended
that if I were to make any
award, I should not consider Kollapen J’s judgment as an
aggravating factor, as both incidents
giving rise to the defamation
actions occurred in 2007. In that case, the SANDU succeeded in
proving that the publication of a
statement claiming that the union
had unlawfully deducted a substantial amount of money from its
members was defamatory. Col. Dhlamini
played a pivotal role in the
publication of the defamatory statements in the matter before
Kollapen J, where the learned judge
said the following at paragraph
[49] of him :
"To
continue with the publication of the article in its original form and
disregarding the judgment of Mynhardt J was not justified
and the
defendants’ reliance on the defence of truth is in my view not
sustainable.”
63.
In determining the amount to be awarded following the publication of
a defamatory statement, the authorities suggest that one
must have
regard to the nature of the statement, the nature and extent of its
publication, and the character or reputation of the
plaintiff. The
evidence of the witnesses suggests that the arena in which labour and
management engage with each other is fraught
with tension and
distrust. Litigation appears to be the preferred method to resolve
disputes, as opposed to conciliation and negotiation.
This hardly
bodes weil for constructive dialogue between the parties, especially
in an institution like the military. The unfounded
allegations that
the defendants made against the plaintiff must f e assessed against
this backdrop. The defendants charged that
the plaintiff wes
untrustworthy, dishonest, and had acted illegally in distributing a
fraudulent or counterfeit agreement on salaries,
when it knew that no
such agreement was reached at the military bargaining council As Mr
Greef testified, for a trade union to
falsely proclaim to its members
that it had concluded a salary agreement along higher percentages
than agreed on, would be ‘suicidal".
Given the acrimony
between the two parties, the publication of such a statement by the
defendants could only serve to undermine
the confidence in which the
plaintiff is held by its members, and deter potential or future
members from joining. The first publication
in the Bulletin, which
was described by the defendants in their pleadings as a means of
communication or a tool to share views
and information within the
defence force. The article “Greatest lies ever told by a
Military Trade Union' was therefore widely
disseminated throughout
the defence forces and its distribution only halted upon the issuing
of a Court order. Although the Administration
Order, published a few
days later on 8 October 2007 was, according to Dhlamini intended for
distribution only amongst ‘top
management’, the
allegations of a counterfeit agreement distributed by the plaintiff
would have been read by those occupying
positions of authority within
the defence force. Such statements, in the minds of those occupying
senior positions in the defence
force, could be just as damaging to
the way the plaintiff is regarded among the rank and file members.
64.
In my view, taking into account all of the above factors, I am of
the view that an award of R40 000 in respect of each count
is fair
and just compensation to the plaintiff for the defamatory articles
published by the defendants. I also see no reason why
costs should
not follow the result.
I
accordingly make the following order:
1.
The first to the fifth defendants are ordered to pay the plaintiff
the sum of R80 000 jointly and severally, the one paying the
other to
he absolved;
2.
The first to the fifth defendants are ordered to pay the plaintiff’s
costs of suit on a party and party scale.
M
R CHETTY,
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
Dates
of hearing: 30 April; 2-3 May; 13 May 2013
of
judgment: July 2013
For
the Plaintiff: Adv. L K van der Merwe
Instructed
by : Griesel & Breytenbach Attorneys
For
the Defendants: Adv. Z Z Matebese
Instructed
by: State Attorney (Pretoria)