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[2013] ZAGPPHC 284
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Mukhanyo Theological College v Dijkhuizen (A370/11) [2013] ZAGPPHC 284 (4 September 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO. : A370/11
DATE:04/09/2013
In
the matter between:
MUKHANYO THEOLOGICAL
COLLEGE
…........................................................
Appellant
and
PIETERNELLA
DIJKHUIZEN
.............................................................................
Respondent
JUDGMENT
PRELLER J:
This
appeal is directed against the whole of the judgment and order
awarding R 50 000 to respondent as damages for defamation, handed
down by Ismail J in this court on 27 January 2011.
The
respondent was a lecturer at the appellant college. Her claim arises
from what was said by the Rev K T Mogale at a meeting of
staff and
students on 17 October 2007. At the meeting he announced the outcome
of an investigation by a commission of inquiry into
certain
complaints made by her in a "letter of concern" dated 19
October 2006 written by her to the Board of Control
of the appellant.
In the letter she made various serious allegations of inter alia
mismanagement, fraud, power abuse and poor handling
of staff matters
against the principal of the college.
The
Students' Representative Council is also represented on the Board and
the appellant was of the view that because the respondent's
complaints had been disclosed to the students as well as the staff,
all of them had a right to be informed of the outcome of the
investigation and that the appellant had a corresponding obligation.
It was accordingly resolved by the Board that the outcome
of the
investigation should be announced to the assembled staff and students
after the weekly prayer meeting on the day in question.
Before us, as
in the court a quo, the parties were agreed that the words were
uttered at a qualifiedly privileged occasion.
According
to the respondent the Rev Mogale stated at the meeting that:
1.
After an investigation the Board of Control had concluded that all
the accusations made in her letter of concern were false;
2.
Students were no longer to make contact with the respondent, and
3.
She was no longer allowed on the campus or to have any business with
the college.
(Unless
in inverted commas, all excerpts from pleadings and other documents
have been paraphrased by me.)
The
appellant pleaded that the Board of Control had resolved to:
1.
Inform the respondent that no evidence could be found to substantiate
her allegations
2.
Inform donors that she was no longer associated with the appellant
3.
Inform the staff and students that no evidence of gross negligence
could be found and that, since she had left, there would be
no
purpose in having any further contact with her;
4.
She would in future no longer have free access to the campus.
I
shall return to the recorded minutes of the meeting of the Board
anon.
It
was further pleaded that, what had been said at the meeting was:
1.
That after an in-depth investigation the Board had unanimously
accepted the findings of the Commission;
2.
The essence of the findings of the commission was that all the
accusations of the respondent had been refuted;
3.
It would serve no purpose for anybody to discuss the matter any
further with the respondent or to have any contact with her as
she is
no longer a staff member and would have no further access to the
campus.
The
appellant relied on four grounds of appeal:
1.
The trial court erred by impliedly finding that the qualified
privilege was forfeited;
2.
The trial court erred in finding that the Rev Mogale had used the
words alleged by the respondent;
3.
That if it be found that the words alleged by the respondent had been
used, the appellant cannot be held liable since the Rev
Mogale had
been instructed to convey the summarised version of the decision of
the Board of Control to the meeting;
4.
The damages awarded to the respondent was excessive.
A
court of appeal considers an appeal in accordance with the
time-honoured approach laid down as long ago as 1948 in R. v.
Dhlumavo
& Anor.. 1948(2) SA 677 AD at 705/6: A court of appeal
will interfere with a trial court's findings of fact only where the
trial court misdirected itself. If so, the court of appeal is at
large to consider the evidence afresh and make its own findings.
It
would make more sense to deal with the second ground raised by Mr.
Pretorius SC for the appellant in his argument first. (The
respondent
appeared before us in person. At the trial she was represented by
senior counsel.) The ground concerns the court's finding
that the
version of the words used by the Rev Mogale, deposed to by one P B
Kgatle who testified for the respondent, is to be preferred
to the
version of the Rev Mogale himself.
In
paragraph [36] of the judgment the court started by reiterating its
finding that the appellant had been entitled to report the
outcome of
the enquiry to the staff and students. It then continued:
"What
must be examined is what the message was that was conveyed to the
staff and students at the devotion. Mr. Pretorius submitted
in his
heads of argument that the defendant had not mandated the Rev Mogale
to use the alleged words which Mr. Kgatle testified
to. It was
submitted that the Rev Mogale may have been remiss. He was however
not a party to the dispute. This argument has substance;
however the
plaintiff sought an amendment........... The plaintiff thereby sought
damages based on vicarious liability."
It
seems with respect that the court had started to deal with the
question of what words exactly had been used in conveying the
message, but then changed horses to deal with vicarious liability,
which I shall consider later in this judgment.
In his written heads and also in oral
argument, Mr. Pretorius submitted that the trial court had stated in
paragraph [36] of the
judgment that there was substance in the
argument that Mogale had not been mandated to use the words as
testified by Kgatle, and
then continued to deal with the respondent's
abortive attempt to amend her replication in order to rely on
vicarious liability,
without knowing that the amendment had been
withdrawn. It seems that this is intended as an example of a
misdirection by the trial
court.
Mr.
Pretorius relied on five other alleged misdirections by the court a
quo. The first one was that Kgatle, despite his alleged
shock at
hearing what the Rev Mogale had to say, only reported it to the
respondent some five months later. This, he submitted,
is inherently
improbable. That, however, is no more than an improbability that the
court should have considered and is not the
kind of misdirection that
was contemplated in the case of Dhlumayo referred to above. There is
no need to deal in any detail with
the other four instances, which
are likewise no more than improbabilities that the court should have
considered and do not remotely
amount to misdirections.
The
court a quo weighed the version of events deposed to by the Rev
Mogale against that of Kgatle and preferred the latter. It considered
the probabilities and the merits of the two witnesses, remarking on
the fact that the Rev Mogale was only called upon to recall
what he
had said at the meeting three years after the time, while he had no
reason to particularly remember the words that he had
used. It is not
surprising that the witness had a very limited recollection of
virtually every other incident at the meeting, apart
from the words
that he had, according to him, used to convey the message. The
learned judge was alert to the fallibility of memory,
quoting the
well-known statement that "memory, like a mistress, is often
unfaithful." Apart from respectfully pointing
out that in these
days of political correctness it might be wise to insert the words
"or a lover" after "mistress"
in the quotation, I
can find no fault with his reasoning and I respectfully agree with
the conclusion at which he arrived. I can
find no reason to interfere
with this factual finding by the court a quo.
I
may also point out in passing that after considering the report and
recommendation of the commission of inquiry, the General Meeting
of
the Board of Control noted certain unanimous conclusions on 13
October 2007. The first relevant one is in paragraph 9.2 of the
minutes according to which it was resolved that the respondent be
informed by letter that the
"....
investigation has been completed and that no evidence could be found
of gross negligence." (My underlining). Secondly
paragraph 9.6
records that it was unanimously agreed that the Rev Mogale "should
convey the summarised version of this decision
to the staff and
students" after the devotion at the next meeting. The words
"false" and "refuted" that
were used in the
pleadings and hotly debated in cross-examination do not occur
anywhere in the said unanimous conclusions. Whether
he said that the
allegations had been refuted or were found to be false is of little
practical consequence - both clearly imply
that the respondent had
been dishonest in her complaint. There is, however, a difference in
principle between either of the two
expressions on the one hand and
the words from the unanimous conclusions that I have underlined
above. I may add that the allegations
in paragraph 4.3 of the Plea do
not correctly reflect the resolution of the Board, in that it was not
resolved that no evidence
could be found to substantiate her
allegations, nothing was resolved about further contact with her and
no resolution was passed
to prevent her from having free access to
the campus.
The
first and third grounds of appeal are closely linked and I find it
convenient to deal with the third ground first, being the
authority
of the Rev Mogale to make the statement complained of. The ground is
that if it were to be found that the words had indeed
been used, the
Rev Mogale did so without the authority of the Board and was, as it
were, on a frolic of his own. In my view a court
should consider the
situation with care before finding that a tortfeasor acted without
the authority of his principal, because
it is unlikely that the
latter will ever admit having authorised the agent to commit the deed
complained of. In this case there
can be no doubt that when making
the announcement, the Rev Mogale was, as the respondent put it in her
written heads, "acting
within the sphere of responsibility
assigned to him and in the furtherance of the affairs" of the
appellant. He was speaking
at a function of the appellant and was
there for no reason other than to further the affairs of the
appellant. In paragraph 9.6
of the minutes of the meeting, the Board
had agreed that the responsibility of making a summary of the
decision and conveying it
to the assembly be left to the discretion
of the Rev Mogale.
Apart
from the facts, it was common cause on the pleadings that it had been
the appellant (i.e. the college) that was acting and
not the Rev
Mogale in his personal capacity: in paragraph 4 of the Particulars of
Claim it is stated that on the day in question
"....the
Defendant represented by the Rev K T Mogale stated to the students
and staff............ ". The answer in paragraph
4.4 of
the
Plea reads: "......... the defendant, represented by Reverend T
Mogale, and pursuant to the decision of the Board of Control,
made an
announcement to all the staff and students concerning the report of
the Investigating Committee and the Board's decision."
In
paragraph 4.5 the appellant then pleads its version of the words
used.
I
am satisfied that the appellant, being a legal persona, was acting
through the Rev Mogale and is vicariously, if not directly,
liable
for his actions.
The
first ground of appeal is concerned with the defence of qualified
privilege and the forfeiture thereof. The legal position as
set out
in the cases referred to by Mr. Pretorius in his heads1
1
is
clear enough. Because it was common cause that the utterance had been
made at a privileged occasion, I am only required to decide
whether
the respondent has shown malice on the part of the appellant, either
in the form of an improper motive or that the words
complained of did
not have some foundation in the evidence and were not germane to the
issue.
Unfortunately
there was a long history of antagonism between the respondent and in
particular the principal of the college, Dr.
Buys, and which probably
has a bearing on the treatment that she received from the college.
The history starts with an Enquiry
Report from 2004 which was
included at page 32a of the trial bundle. I should mention that in
terms of paragraph 13.3 of the pre-trial
minutes, the documents in
the trial bundle were accepted as being what they purport to be,
unless challenged on prior notice. Although
not dealt with in any
detail in evidence, it appears from the report that the respondent
had on 26 February 2004 at a meeting of
the Management Committee
proposed a motion of no confidence in the principal. That resulted in
the appointment of a committee of
inquiry into her motion. The
conclusion to which the committee came included a recommendation to
both protagonists to commit themselves
in writing to an attitude of
forgiveness and co-operation with the other within the management
structures of the college. If the
recommendation had the desired
effect, it did not last very long, because a little more than two
years later the respondent wrote
her "Letter of Concern"
which resulted in the appointment of the present commission of
inquiry.
Although
probably motivated by genuine concern about the best interests of the
institution where she worked and probably driven
by her frustration
about what she perceived to be wrong, she certainly did not pull her
punches with the terms in which she couched
her concerns in the
letter. Not unexpectedly, that rose the hackles of the objects of her
criticism and probably also of the members
of the Commission. That is
apparent from the sometimes exaggerated language of the report. The
following are but a few examples:
•
At
paragraph 6.3.1 it is reported that the respondent "....falsely
implies/states that Mr. Pieterse by himself entered into
a contract
with me Moshaba." A
more
neutral observer might have realised that she simply did not have all
the facts at her disposal and might have described her
statement as
mistaken or incorrect;
•
The
same applies to the statement in the next paragraph that "It is
a lie to state...."
•
Her
concern for and possibly genuine effort to help the said ms Moshaba
is described in paragraph 6.4.1 as "....fabricating
a lie to the
detriment of another colleague."
•
In
paragraph 7.1.2 it is reported that she "...stated this is/was a
blatant lie.." whereas the words used by her (p.485
of the
bundle) was no worse than saying that it was "...simply not
true...".
•
An
example of how counterproductive the antagonism was, is to be found
in paragraphs 5.3.3 and 5.4.1. She had complained that the
auditors'
reports had been of little value to the college because of their
failure to notice and investigate a payment of R12 000
that the
previous registrar had made to himself and which may well have been a
case of theft. According to the witness Coezee (record
p. 374) the
principal never asked him to refund the money which, according to
him, was necessary to do. Rather than to recommend
that this question
be referred back to the auditors for further investigation she was
reprimanded for making an unsubstantiated
and irresponsible statement
such as that the auditors' report was of little value to the college.
Despite the costs of a forensic
audit being prohibitive and despite
the latter reprimand, the Commission nevertheless recommends that the
Board "consider
the implications of a forensic audit".
The
parties could have saved themselves a lot of trouble, inconvenience
and costs, had they considered the wise words of King Solomon
in
Proverbs 15:1 that a soft answer turneth away wrath. Unfortunately it
seems that their strong personal feelings got the better
of them.
In
their report the commission grouped the respondent's somewhat
incoherent complaints together under five headings and dealt
separately
with each. After the report was completed the convener,
Mr. Ben Hotzhausen, drew up a condensed version thereof. He did this
on
his own and the other members did not have the opportunity to
approve it. The attitude of the commission, or at least of its
convener,
is illustrated by the following:
•
Although
"Power Abuse" was one of the five groups of complaints
identified by the Commission in its report, the report
did not deal
with the topic at all. The Condensed
Report
nevertheless stated that the Commission “refutes this
allegation", adding that they could not trace any evidence
that
the principal had abused the power of his position and that the
respondent had “merely expressed her opinion of a man
that is
firm about his beliefs."
•
The
following paragraph is contained in the Condensed Report under the
heading “Conclusion":
"It
is suspected that she is working to have Dr Buys removed from MTC
(i.e. the college) to obtain a better position for herself
at MTC.
She is not a South African citizen and her chances for permanent
residence could be improved substantially if she found
good long term
employment."
There
is nothing remotely to that effect in the report.
•
The
respondent said in her evidence that her first interview with the
Commission was conducted in a friendly atmosphere and because
it
would seem inappropriate, she preferred not to have a recording made
of what was said. The Commission made nothing of this in
its report,
but in the summary it is stated that she:
"....refused
to have the interview recorded, which made the Commission doubtful to
trust her integrity."
Again
there is no basis for that view in the report.
•
Dr.
Coetzee, who was the only member of the Commission to testify, said
in his evidence that he was not aware of the contents of
the summary
before the general meeting of the Board and, had he been given the
opportunity, he would have objected to each one
of the four
statements made in the first paragraph of the conclusion The last of
those four statements is to the effect that her
latest legal action
against the college through the CCMA demonstrates that her personal
interests were to her more important than
those of the college. I
could not find any reference to the CCMA in the report at all.
•
Although
at least two of her complaints were found by the Commission to have
been substantiated, not a word about that appears in
the summary.
•
The
summary concludes with a list of recommendations to the Board, of
which the following are relevant:
"1.)
A motion of full confidence in Dr. Buys is restored with immediate
effect
2.
) MTC and associated organisations break all ties with Ms Dijkhuizen
3.
) MTC applies its right to reserve admission to its campus and
prohibits Ms Dijkhuizen to enter the premises of MTC
4.
) Donors and supporting organisations are forewarned about Ms
Dijkhuizen's conduct to "badmouth" MTC and its associated
people
5.
) The B.O.C. replies to Ms Dijkhuizen's letter of concern stating the
following:
a.
) That the investigating committee could not find any evidence to
substantiate the allegations she made against the principal
b.)
To cease any discussions regarding MTC, MCDC and all associated
people with immediate effect and failing so, legal action will
be
taken
against
her
Not
a single one of these recommendations can be found in the report of
the Commission, of which this document purports to be a
condensed
version.
I
am not expressing any view on the fairness or otherwise of the
condensed version of the report as a reflection of the general
purport of the full version, but to give out that the statements to
which I have referred (and certain others) and which the convenor
simply sucked from his thumb represent the findings of the Commission
is nothing but untrue. In doing so he
was
clearly acting with actual malice and had those words been published
to the meeting, there can be no doubt that they would have
been
defamatory.
The
full meeting of the Board at its meeting on 13 October 2007 noted
some unanimous conclusions, of which the following are relevant
for
present purposes:
•
The
respondent would be informed by letter that the Commission has
completed its investigation and that no evidence of gross negligence
could be found;
•
That
all donors be informed by letter that the respondent was no longer
employed by or associated with the appellant;
•
That
the Rev. Mogale shall convey "the summarised version of this
decision" to the meeting of staff and students on 17
October.
Although
fairly innocuous, the first two points listed above bear little or no
resemblance to any of the actual findings or recommendations
of the
Commission contained in either its full or the purported condensed
version of its report.
The
only real dispute between the parties about the contents of the
message delivered to the meeting by the Rev Mogale is whether
the
respondent's allegations were merely refuted or found to be false. As
indicated above I do not think that the difference between
the two is
of any real significance, but what is clear is that the findings of
the commission (in its actual or purported condensed
version), the
unanimous conclusion of the Board and the message delivered to the
assembly are three completely different things.
The Rev Mogale had
been a member of the Commission of Inquiry and had the announcement
at the meeting been made in the same form
by a neutral outsider, it
may have been said that he was on an irrational frolic of his own. As
it is, he could only have invented
the announcement that he did make
from his recollection of the evidence that he had heard on the
Commission or from its full report.
In so far as he was off on a
frolic, it was not of his own, but a frolic of the Commission, which
was still the appellant in one
of its several guises. What was said
is still not a fair reflection of the findings of the commission and
apart from malice with
which I have dealt above, it was not true to
say that, according to the findings of the Commission, all her
accusations had been
either refuted or were false, that students are
not to make contact with her or that she would no longer be allowed
access to the
campus. To use the terminology of the written heads of
Mr. Pretorius, the words complained of “did not have some
foundation
in the evidence or circumstances and were not germane to
the issue.”
The
court a quo did not in its judgment deal at any length with the
question of forfeiture of the protection of the privileged occasion
but it is implicit from its conclusion that it did make a finding
that it had been forfeited. As motivated above, that finding
cannot
be faulted.
Mr.
Pretorius referred us in his written heads to several examples of
awards that have been made for defamation in other cases in
support
of his submission that the award made by the court a quo is
excessive. It is trite that previous awards are of very limited
use
and can be nothing more than of persuasive value. The question is not
whether this court would have made a different award
had it been the
trial court, but whether the award is wrong. I am not persuaded of
that the amount is excessive and can see no
reason to interfere.
My
conclusion is that the appeal should be dismissed with costs and that
is the order that I propose.
F
G PRELLER
JUDGE
OF THE HIGH COURT
I
agree.
W
R C PRINSLOO JUDGE OF THE HIGH COURT
I
agree.
GE
MULLER
ACTING
JUDGE OF THE HIGH COURT
It
is so ordered.
1
May v Udwin 1981(1)SA 1 (A); Joubert & Ors v.Venter, 1985(1) SA
654 (A); Basner v Trigger
1946 AD 83