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[2012] ZAGPPHC 20
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South African National Defence Union v Minister of Defence and Others (1877/2008) [2012] ZAGPPHC 20; 2012 (4) SA 382 (GNP); (2012) 33 ILJ 1061 (GNP) (9 February 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
/ES (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 1877/2008
DATE:09/02/2012
IN
THE MATTER BETWEEN:
SOUTH
AFRICAN NATIONAL DEFENCE
UNION
....................................................
PLAINTIFF
AND
THE
MINISTER OF
DEFENCE
.......................................................................
1st
DEFENDANT
THE
SECRETARY OF
DEFENCE
..................................................................
2nd
DEFENDANT
THE
CHIEF OF THE
SANDF
..........................................................................
3
rd DEFENDANT
MR
S B
MKHWANAZI
......................................................................................
4th
DEFENDANT
MS
N
PIENAAR
...............................................................................................
5th
DEFENDANT
PRIVATE
A M
MVUBU
....................................................................................
6th DEFENDANT
COLONEL
PHILLIP
DHLAMINI
.......................................................................
7th
DEFENDANT
JUDGMENT
KOLLAPEN,
J
Introduction
and background
[1]
Trade unions play a vital role in most democratic societies. Beyond
taking up the cudgels on behalf of workers and acting in
advancing
their rights and interests trade unions play a larger role in the
political and economic discourse and debates within
society. That
this is so is understandable as workplace issues can hardly be
insulated from the issues that impact on the broader
wellbeing of the
society. It is accordingly not uncommon nor may one add undesirable
for trade unions to increasingly express themselves
forcefully and
with principle on a wide range of issues that may relate to economic
policy, foreign affairs, poverty, social inclusion
and such related
matters.
[2]
In South Africa trade unions have traditionally and historically
played such a broad and encompassing role and accordingly the
recognition in section 23 of the Bill of Rights of a right of every
worker to form and join a trade union and to participate in
its
activities and programs is duly and properly given recognition. While
section 23 is cast in broad terms the issue of the existence
and
recognition of trade unions within the Defence Force was not settled
until the decision of the Constitutional Court in South
African
National Defence Union v Minister of Defence & Another
[1999] ZACC 7
;
1999 4 SA
469
(CC) where the court held that:
"The
total ban on trade unions in the Defence Force clearly went beyond
what was reasonable and justifiable to achieve the
legitimate state
objective of a disciplined military force. Such a ban could
accordingly not be justified under section 36."
This
paved the way for trade unions to function within the Defence Force
and the plaintiff has over time organised and consolidated
itself as
the largest trade union within the Defence Force.
[3]
However implicit in the recognition of the right of trade unions to
exist within the Defence Force was also the recognition
that the
Defence Force would have to function in a disciplined and efficient
manner and therefore the existence and the activities
of any trade
union operating within the Defence Force would have to take into
account that particular context.
[4]
It would also be fair to say, both generally speaking as well as in
the context of the particular relationship between the plaintiff
and
the Defence Force, that such relationships are often characterised by
adversarial and opposing stances, robust debate and dialogue
and
considerable public posturing as the parties seek to take and
consolidate their various differing positions. Again this is
understandable in the context of differing interests that a union and
an employer would seek to advance and in a constitutional
democracy
the challenge would always remain on how to strike the appropriate
balance between such interests where they do express
themselves in a
divergent manner.
The
dispute between the parties
[5]
The plaintiff has brought this action against the defendants arising
out of the publication of an article in a publication of
the
Department of Defence titled "South African Soldier". It is
styled as the official monthly magazine of the SA Department
of
Defence and according to the defendants its broad objective is to
inform, share information, encourage dialogue and debate and
represent the developments and activities which occur within the
South African Defence Force. In'the edition of The South African
Soldier of May 2007 an article was published under the heading "DOD
resuming the management of union stops orders". It
denotes the
authors as Private A M Mvubu and Airman D J Daffue. The plaintiff
contends that the article written, published and
distributed as part
of the magazine was defamatory of the plaintiff and in particular the
plaintiff cites the following paragraphs
of the article to support
it's stance:
"In
2002 the DOD (Department of Defence) requested all military trade
unions to submit stop order forms for auditing. The biggest
registered military trade union, the South African National Defence
Union (SANDU) refused to comply while the small union, the
South
African Security Forces Union (SASFU) complied with the request.
Non-compliance
led to confrontation and litigation resulting in a court order.
Consequently SANDU instituted an urgent court application
against the
Minister of Defence, the Secretary of Defence and the Chief of the
SANDF."
[6]
The plaintiff also takes issue with the following paragraph that
appears in the same article:-
"On
behalf of the DOD the team found that SANDU had unlawfully deducted
over R4 million from its members. The DOD will therefore
have to
recover all these monies unlawfully deducted from its members and
reimburse them."
[7]
The plaintiffs stance was that the words, statements and allegations
contained in the article were calculated to cause it financial
prejudice and were wrongful and defamatory of the plaintiff in that
it would be understood by readers of the publication to mean
that:
(I)
the plaintiff was not willing to comply with the reasonable requests
from
the Department of Defence;
(ii)
the plaintiff was acting unreasonably;
(iii)
the plaintiff was not complying with the provisions of the Defence
Act and
regulations and that this led to litigation;
(iv)
the plaintiff was dishonest in that it unlawfully and illegally
appropriated
over R4 million from its members; and
(v)
the plaintiff was not conducting its affairs in an honest and lawful
manner.
The
plaintiff further contended that it had suffered damages to its
reputation and that such damages were computed in the sum of
R500
000, 00.
[8]
The defendants, while admitting that the article was authored,
written and published in The Soldier and distributed amongst
members
of the Defence Force, contended that at the stage that when the
article was published there existed no authorisation in
law for the
plaintiff to have deducted the sum of R4 million from its members and
that in the absence of such authorisation from
the congress of the
plaintiff, the allegations in the article relative to the unlawful
deductions were true and in the public interest.
It further contends
that as an employer it had a duty to publish such allegations in the
interests of all the members of the Defence
Force and that the
article was in the public interest, was true and was executed in the
discharge of a duty that the defendants
owed to members of the
Defence Force including members of the plaintiff.
[9]
The defendants further contended that with regard to the allegations
relating to the refusal by the plaintiff to submit copies
of stop
order forms that the plaintiff did in fact refuse to provide
defendants with the necessary letters of authorisation and/or
the
stop order forms requested by the defendant and that the contents of
the article in this regard was true and the publication
thereof in
the public interest.
The
law of defamation with regard to non-trading entities
[10]
The origins of the action* for defamation is to be found in the actio
injuriarum which was premised on providing compensation
for outraged
feelings. In this regard the focus of the action appeared to have
been directed to dealing with the intentional and
unjustified hurting
of another's feelings as opposed to damage to reputation. In Die
Spoorbond & Another v South African Railways;
Van Heerden &
Others v South African Railways
1946 AD 999
SCHREINER, JA dealt with
the history as well as the development and changes to this aspect of
the law of delict as follows (at
pplOl 0-1011): "Our action for
defamation is derived ultimately from the Roman actio injuriarum
which 'rested on outraged
feelings, not economic loss'............
The particular delict now known as defamation has lost a good deal of
its original character
since it is no longer regarded primarily as an
insulting incident occurring between the plaintiff and the defendant
personally,
with publicity only an element of aggravation by reason
of the additional pain caused to the plaintiff. Although the remnant
of
the old delict of injuria still covers insults administered
privately by the defendant to the plaintiff, the delict of defamation
has come to be limited to the harming of the plaintiff by statements
which damage his good name. ... It is because of this development
in
the character of actions for defamation, so it seems to me, that some
logical justification can be found for the recognition,
even in our
law, of such actions at the suit of corporations, although the latter
have no feelings to outrage or offend."
In
the Spoorbond matter the specific question of whether the right to
sue for defamation was to be limited to trading corporations
or ought
to be extended to other corporations which rely on their reputation
to win them public support for the conduct of their
affairs was left
open.
[11]
The matter came before the Appellate Division (as it then was) in
Dhlomo NO v Natal Newspapers (Pty) Ltd & Another
1989 (1) SA 945.
In the judgment of RABIE, ACJ he sketched the history with regard to
the changing developments in the law of defamation in so far
as it
affected non-natural persons going back to the decision in GA
Fichardt Ltd v The Friend Newspapers Ltd
1916 AD 1
where INNES, CJ
expressed the view-
"That
the remedy by way of action for libel is open to a trading company
admits of no doubt. Such a body is a juridical persona,
a distinct
and separate legal entity duly constituted for trading purposes. It
has a business status and reputation to maintain.
And if defamatory
statements are made reflecting upon that status or reputation, an
action for the injuria will lie." RABIE,
ACJ then proceeded to
deal with the developments following on the Fichardt matter and which
included the dicta of SCHREINER, JA
in the Spoorbond case, supra, to
which reference has already been made.
[12]
In the Dhlomo case the question for determination was accordingly
whether the right to sue for defamation should be restricted
to
trading corporations or whether such a right should also be extended
to non-trading corporations. The court then concluded that
there
should be no reason why a non-trading corporation should in
appropriate circumstances not be accorded the right to sue for
an
injury to its reputation and in this regard the following appears at
p954A-D of the judgment:
"It
seems to me, however, that once one accepts - as one must, in my view
— that a trading corporation can sue for an
injury to its
business reputation, there is little justification for saying that a
non-trading corporation should not in appropriate
circumstances, be
accorded the right to sue for an injury to its reputation if the
defamatory matter is calculated to cause financial
prejudice (whether
or not actual financial prejudice results). It is conceivable that in
the case of a non-trading corporation
such as a benevolent society or
a religious organisation - these are but examples - which is
dependent upon voluntary financial
support from the public, a
defamatory statement about the way in which it conducts its affairs
would be calculated to cause it
financial prejudice in the
aforementioned sense. It would in my view be illogical and unfair to
deny such a corporation the right
to sue for an injury to its
reputation, but to grant it to a trading corporation when it suffers
an injury to its business reputation.
In my opinion we should hold,
and I so hold, that a non-trading corporation can sue for defamation
if a defamatory statement concerning
the way it conducts its affairs
is calculated to cause it financial prejudice."
[13]
In the context of the dicta that a non-trading corporation could sue
for an injury to its reputation if the defamatory matter
was
calculated to cause financial prejudice, the court did not have to
consider the further question namely whether a non-trading
corporation can sue for defamation if the defamatory matter of which
it complains relates to the conduct of its affairs but is
not
calculated to cause it financial prejudice.
[14]
The distinction is a fine one and it may well be argued that even if
a defamatory statement is not calculated to cause financial
prejudice
but relates to the conduct of the affairs of a non-trading
corporation that such an action should lie if ultimately the
reputation of a non-trading corporation is impaired.
While
Dhlomo (supra) is authority for the broad proposition that a
non-trading corporation can sue for defamation if a defamatory
statement concerning the way it conducts its affairs is calculated to
cause it financial prejudice the court also expressed the
caveat that
there may well be instances where non-trading corporations on the
grounds of considerations of public or legal policy
were to be denied
the right to sue. Thus not all non-trading corporations may have the
right to sue but in the context of that
particular case it recognised
the right of a political party to sue for defamation.
[15]
While political parties may invariably be shaped and defined by
personalities and their policies, it is also so that they invariably
rely on their reputation for the support that they wish to gamer from
voters and prospective voters and in this regard rely both
on dues
that may arise out of membership fees as well as voluntary donations
made by members of the public. Accordingly the integrity
of the
operations of a political party, the conduct of it's office bearers
as well as the integrity of its internal systems of
functioning are
all matters that impact on its reputation and it would accordingly
follow that if a defamatory statement about
the way in which it
conducts its affairs would be calculated to cause it financial
prejudice it should not be barred from bringing
an action for
defamation.
[16]
In this action the plaintiff is a trade union, which is a voluntary
association whose members are invariably employees who
both have the
right to associate as well 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 work place and their activities
may often
relate to the economic and social policies of the day and important
events that impact on the well-being 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 organization
is structured and organizes 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 inform
the reputation of a trade
union and its very existence and sustainability.
[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
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.
[18]
Regard being had to the caution in Dhlomo NO, supra, that
considerations of public and legal policy may exclude certain
non-trading
entities from being able to sue for defamation, one
cannot conceive of any considerations of public or legal policy in
the context
of a trade union that should operate to restrict such a
right. On the contrary the architecture of the Constitution and it's
specific
recognition of the rights of workers including the right to
join a trade union may make recognition of such a right by a trade
union to sue for defamation not only constitutionally permissible but
also constitutionally desirable.
[19]
Our law has developed to such a stage where considerations of legal
and public policy must mean that a trade union should have
the right
to sue for defamation and in my view this would be consistent with
the spirit of the judgment of the Constitutional Court
in South
African National Defence Union v Minister of Defence & Another,
supra, where the court found that the total ban on
trade unions in
the Defence Force went beyond what was reasonable and justifiable.
If
such an action would be available to a trade union in the widest
sense of the term there can be no reason why a trade union that
operates within the context of the Defence Force should on account of
any policy or legal considerations be excluded from being
the
recipient of such a right and on this aspect one must conclude that
having regard to the incremental development in our law
of defamation
as well as regard to the constitutional values which underpin our
constitutional order there can be no reason why
a trade union and in
particular a trade union such as the plaintiff which operates within
the Defence Force should not have the
right to sue for defamation
under appropriate circumstances.The background, the facts and the
evidence
[20]
The plaintiff called a single witness Mr Johannes George Greeff who
is the National Secretary of the plaintiff union while
the defendant
also called a single witness Colonel Phillip Dhlamini, now retired
but who during his employ in the Department of
Defence worked in the
personnel services division and was principally responsible for'
dealing with the relationship between the
Department of Defence and
trade unions.
[21]
Following the judgment of the Constitutional Court which provided for
the recognition and the functioning of trade unions within
the
Defence Force it was necessary as far back as 2000 to put in place a
system that would allow for the deduction of union membership
fees by
the defendants in respect of members of the plaintiff union.
[22]
It appears from the evidence of Mr Greeff, and this was not in issue,
that the system that was then put in place largely on
account of the
lack of capacity experienced by the defendants to deal with the issue
of membership fees administratively was that
the parties agreed on a
mag-tape system to facilitate membership deductions. This would
operate on the basis that every month the
plaintiff would submit a
mag-tape to the defendants which would contain the details of all
members of the plaintiff union as well
as the amounts to be deducted
in respect of membership fees. The defendant would, acting on such a
mag-tape instruction, effect
the necessary deductions from the
salaries of the plaintiffs members and remit such monies to the
plaintiff. The system seemed
to work reasonably well for a while but
it became apparent that a new and more efficient system had to be put
in place and in particular
a system that would comply with the letter
and the spirit of regulations issued in terms of the Defence Act 44
of 1907 which regulations
in the main deal with military trade unions
and their relationship with the Department of Defence.
In
particular the regulations promulgated in terms of the Defence Act
and relevant to the issue of deductions of subscriptions and
levies
contained certain specific requirements and prescriptions. They
provide as follows:
"Regulation
28 - Authorised deductions from wages or salaries
Any
member who is a member of a military trade union may authorise the
employer in writing to deduct subscriptions or levies payable
to that
military trade union from the member's wages or salary.
Regulation
29 - Deductions by employer.
On
receiving the authorisation contemplated in regulation 28 the
employer shall make the authorised deduction within thirty days
and
shall remit the amount deducted to the military trade union by not
later than the 15th day of the month following the date
when each
deduction was made."
[23]
It was evident that the mag-tape system that was agreed upon between
the parties was done so on account of the defendants not
having the
necessary capacity to put in place any other system. It also is
apparent that that system would fall short of compliance
with the
peremptory requirements of regulation 28 and 29 to the extent that
the regulations referred to an authorisation in writing
by a member
to justify a deduction of subscriptions or levies and further that
the obligation on the part of the employer to deduct
and pay over the
authorisation was in turn dependant upon it receiving the necessary
authorisation in writing.
None
of the parties sought to argue that the mag-tape system that was in
place would constitute an authorisation in writing that
was conceived
by the regulations.
[24]
On 9 May 2002 the Directorate of Human resources and Policy
Management in the Department of Defence forwarded a letter to the
plaintiff requesting them to provide copies of all stop order forms
signed by members of the plaintiff for audit purposes by the
Department of Defence. In that letter the plaintiffs attention was
drawn to the necessary regulations in particular regulation
28 (the
letter refers to section 28 which is obviously an error and should
have been regulation 28). The letter further gives notice
that future
deductions would only be made in respect of members whose stop order
forms have been audited by the Directorate Human
Resource Policy
Management. Further letters were forwarded by the Directorate Human
Resource Policy Management to the plaintiff
on 10 May 2002 and 15 May
2002 which sought additional information relating to the plaintiff
including minutes of annual general
meetings, names and the addresses
of office-bearers, list of paid-up membership as well as audited
financial statements.
[25]
The stance of the plaintiff evidenced from a letter dated 16 May 2002
forwarded by the plaintiff to the Head of Policy and
Planning in the
Department of Defence was that the defendant had no basis for
requesting the information sought and the motives
of the drafters of
the defendants' letters were questioned. There was a further exchange
of correspondence between the parties
which did not resolve the issue
and it appears from the correspondence that the stance of the
defendant continued to remain that
it was entitled and in law obliged
to receive the information it requested particularly in respect of
written authorisations (stop
orders) while the stance of the
plaintiff was that such a request was not one sanctioned by the
regulations and that if there was
to be any positive response to the
request of the defendants then such would have to be the subject of
an agreement which should
be preceded by negotiations and discussion.
[26]
The testimony of Colonel Dhlamini was that the issue of subscriptions
to be deducted from members for union dues had created
a problem
within the Defence Force as there were numerous complaints from
members with regard to deductions that were not authorised
or were
excessive and that the rationale of the Department of Defence in
requiring the submission of stop order forms was both
to ensure
compliance with the regulations as well as to minimise the complaints
that members submitted relevant to the validity
of deductions as well
as the amounts in respect of such deductions which were being made.
It
appears that the status quo continued for some time without it being
resolved.
[27]
From the evidence of Colonel Dlamini it appears that while the matter
was not pursued for a while, the Department of Defence
had not
abandoned its desire to ensure compliance with the regulations and in
2006 the matter was so to speak resuscitated when
the Department
reactivated the request for the stop order forms that it had sought
in 2002 and the stance of the plaintiff continued
to remain that the
department was not entitled to the information that it sought in
terms of the regulations.
The
department in consequence terminated making deductions which then led
to the plaintiff bringing an urgent court application
in terms of
which relief was ultimately granted.
[28]
On the evidence before me and notwithstanding that an ad hoc
arrangement had come into place between the parties with regard
to
the mag-tape deductions, the assertion of the Defendants that it was
entitled to be placed in possession of written authorisations
before
making any deductions is supported by the provisions of Regulation 28
and 29 which are clear and which hardly require any
explanation.
Under those circumstances it must follow that if the plaintiffs
wished to be the recipients of such deductions they
were obliged to
place the defendants in possession of the relevant written
authorisations. There is in my view hardly any merit
in the
plaintiffs stance that the defendant was not entitled to call for the
written authorisations as it did so and to that extent
it must
therefore follow that the allegations contained in the article which
is the subject-matter of this dispute that the Department
of Defence
in 2002 requested all military trade unions to submit all the forms
for auditing is correct and is indeed borne out
by the uncontested
evidence of both Mr Greeff and Colonel Dhlamini. In addition it is
evident and it is not in dispute that the
plaintiff refused to comply
with the order. The plaintiffs stance is that it's refusal was
justified in law as the regulations
relied upon by the defendant did
not create an obligation on the part of the plaintiff to submit such
stop order forms.
[29]
I have considerable difficulty with this stance of the plaintiff as
it is evident from a reading of regulation 28 and 29 that
the
obligation on the part of the employer to make the authorised
deductions is based upon on it receiving the authorisations and
accordingly it can hardly be contended that the plaintiff was under
no duty to submit those authorisations. My conclusion on this
matter
accordingly is that the request by the Department of Defence for
submission of stop order forms was valid in law and indeed
justified
by the legal framework within which the department was operating. In
addition I conclude that the refusal to comply was
ill advised and
the justification offered for the non-compliance was not tenable in
the light of the clear wording of regulations
28 and 29.
[30]
It is also clear that the impasse which resulted in the plainitff s
refusal to comply was what ultimately led to the litigation
which
resulted in a court order. The fact that the request was made in 2002
and the litigation occurred in 2007 is hardly material
in my view.
The fact that there may well have been a period of inaction on the
part of the defendants in pursuing these requests
between the period
2003 onward and that it was resuscitated in 2006 does not affect the
validity of such requests. I am of the
view that the defendant was
not only entitled to make the request it did in 2002 and thereafter
again in 2006 but was obliged in
law to do so and further that the
plaintiff if it wished to be the recipient of the subscriptions
deducted by the defendant was
under a duty to place the defendant in
possession of the necessary authorisations. In my view the
publication in relation to this
aspect could hardly be said to be
defamatory. If anything the evidence demonstrates compellingly that
it was both true and that
indeed it was in the interests of the
members of the Defence Force and in particular the members of the
plaintiff union to be informed
of the sequence of events and the
details of what transpired relevant to that request and what
ultimately led to confrontation
and litigation.
[31]
I am mindful of the difficult relationship the parties found
themselves in and that other factors may well have contributed
to the
acrimony and the souring of relationships. That, however, is not
relevant for the purposes of this judgment. What is relevant
and what
I have already alluded to is that there was a valid request made in
law and there was an unreasonable and I may add unlawful
refusal to
comply with such request.
That
disposes of the first leg of the plaintiffs case.
The
allegation that deductions were made unlawfully
[32]
The defendants' stance is that at the time the article was written
and submitted to the printers the defendant was of the view,
following it's own enquiries and research that it had conducted as
well as an audit, that deductions of over R4 million made by
the
plaintiff from it's members was unlawful.
[33]
The defendant's stance is that the authority to increase membership
fees within the structure of the plaintiff is vested in
the National
Congress of the plaintiff alternatively it's National Executive
Committee or it's Central Executive Committee. The
relevant congress
of the plaintiff in the context of the time line of this application
was it's National Congress held in November
2004 at the Absa
Conference Centre. Montana, Pretoria. From the documents that emerged
from that conference including the minutes
of the Congress as well as
the resolutions that were effected at that Congress it appears that
Congress in terms of Resolution
5 of Resolution 1/2004 resolved to
increase membership fees as follows:
(a)
a R4,00 increment per member per month effective as from 1 February
2005;
(b)
a further increment of R3,00 per month per member effective as from 1
January 2006 and yearly thereafter until the National
Congress of
SANDU decides otherwise at it's next meeting during 2007.
[34]
The evidence of Colonel Dhlamini was that prior to this Congress the
membership fees of the plaintiffs members was fixed at
R18,00 and the
effect of Resolution 5 of Resolution 1/2004 was to increase it from
R18,00 to R22,00 with effect from 1 February
2005. SANDU's stance was
that the membership fees had increased from R18,00 to R47,00 and in
support of this SANDU referred to
the resolutions of the very same
Congress of November 2002 and relied on as justification for the
increase from R18.00 to R47,00
the following:
(a)
the increase of R4500 was expressly provided for in terms of
Resolution 5(a) which would bring the subscription from R18,00
to
R22,00.
(b)
The further increase of R25.00 was according to Mr Greeff provided
for in terms of Resolution 6(a). Resolution 6(a) in broad
terms
acknowledges the need for members of SANDU to enjoy certain
membership benefits and goes on to provide as follows:
"The
extension of the Soldiers Legal Guard (SLG) (legal benefit) as a
membership benefit to all members of SANDU and the implementation
thereof by the National Secretary at the cost, terms and conditions
involved against the members' salaries, with effect from the
month in
which the members' annual SANDF salary increment during 2005 is
effected."
[35]
It was the submission of Mr Greeff that Congress had authorised
certain membership benefits and in particular the Soldiers
Legal
Guard and accordingly such an authorisation served as a basis to
increase the membership fees to the extent that it would
bear
comparison to the cost of the membership in respect of the Soldiers
Legal Guard. He conceded that the resolution on which
SANDU purported
to rely had no reference to the amount of R25,00 but his evidence was
that at the date of Congress this amount
had been determined, was
fixed and was known to all within SANDU.
[36]
The stance of the defendant was that the only resolution at Congress
that effected an increase in membership fees was Resolution
5 which
was clear and unambiguous in that it purported to increase the
membership fees by R4,00 for the following year and that
to the
extent that there is no clear resolution that provides the authority
for a further increase in membership fees of R25,00
the defendants'
stance was that any attempt to deduct any amount from members in
addition to the R22,00 would be unlawful. The
defendants' stance
accordingly was that when it prepared the article for The Soldier it
was justified in drawing the conclusion
that indeed the deduction of
R4 million (which roughly represented the R25.00 per month deduction
for the Soldier's Legal Guard
for 16 000 members for one year) was an
unlawful deduction.
[37]
It was clear from the testimony of Mr Greeff as well as the various
documents filed in this matter in particular the flyer
which informed
all members of SANDU of the increase in membership fees to R47,00,
was that the plaintiff sought to in law justify
such increase and
locate the authority for such increase in Resolution 1/2004. I do not
understand the plaintiffs case to be that
the authority for the
increase was a subsequent resolution of the NEC or the CEC and indeed
Mr Greeff s evidence in this regard
confirms that post the Congress
of 2004 there was no need for any further resolution and all that was
required of him as National
Secretary was to implement the resolution
of the 2004 Congress which in his view provided a sufficient basis
for the R25,00 deduction.
[38]
I have difficulty with this proposition. The affairs of SANDU are
clearly regulated by it's constitution and it's constitution
clearly
provides the locus for any decision to increase membership fees. That
authority is vested in the National Congress as well
as in the NEC
and the CEC. For the reasons I have already given the NEC and CEC
deliberations, if there may have been any, are
irrelevant for the
purposes of this hearing as the plaintiff relied exclusively on the
deliberations of the National Congress of
2004.
If
one has to have regard to the two relevant resolutions namely
Resolution 5(a) and Resolution 6(a) then it is evident that while
Resolution 5(a) was clear and unambiguous in increasing the
membership fees by R4,00 Resolution 6(b) could hardly be said to be
clear and unambiguous in respect of increasing membership fees. All
the resolution purported to do is to authorise the extension
of
benefits to members and to some extent to ensure that members pay for
such benefits. There is no figure provided for such benefits
and the
consequence of this would be that the National Secretary then would
be entitled to recover from members the amount associated
with such
benefit. If such an amount was reckoned at R60.00 then on the basis
of the evidence before me and on the basis of the
authority that the
plaintiff seeks to derive from Resolution 6(a) the consequence of
this would be that the National Secretary
would then be empowered to
effectively recover such amounts from members in respect of their
membership fees.
[39]
Such a situation would be untenable as it would effectively delegate
the power of Congress to fix membership fees to the discretion
of the
National Secretary. That would not accord with the architecture of
SANDU's constitution nor would it accord with the authority
that is
vested in Congress and nor would it accord with the powers that the
constitution grants to the National Secretary. It is
hardly in
dispute that the National
Secretary
would not have the power to increase membership fees and the argument
of the plaintiff would have the court to accept
that the effect of
such a resolution would ultimately mean that the power to increase
membership fees would be vested in the functions
of the National
Secretary.
I
am unable to agree with such a stance for the reasons given and
therefore on this aspect conclude that the authority to effect
the
deduction of R47,00 did not exist at the conclusion of the plaintiffs
National Congress in 2004 from which it must flow that
all deductions
made subsequent to 2004 which purported to rely on the resolution of
the 2004 Congress would have been unlawfully
made.
[40]
When the article was accordingly prepared in the early part of March
2007 the defendant in doing so hardly could be said to
have acted
recklessly or without having any regard to the facts which then
existed. In particular SANDU's stance was a consistent
reliance on
the 2004 resolution to justify it's membership fee of R47,00 while
the defendants' enquiries resulted in them not being
placed in
possession of any resolution that authorised such an increase in
membership fee and in particular the resolution of the
2004 Congress
was unhelpful to the extent that it did not expressly provide for the
proposed R25.00 increase in membership fees
in Resolution 5(a), nor
did it in Resolution 6(a) fix an amount that would necessarily have
resulted in an increase in membership
fees relevant to the Soldiers
Legal Guard benefit. For these reasons I must accordingly conclude
that when Colonel Dhlamini prepared
the draft of the article in March
2007 and when the article was edited and worked upon by Private Mvubu
and Airman Daffue the conclusion
drawn that SANDU had unlawfully
deducted over R4 million from it's members was a proper conclusion in
law and one supported by
the facts. That, however, would not dispose
of the matter as events subsequent to the writing of the article and
it's submission
to the printers in the late weeks of April 2007 would
ultimately have a bearing on the plaintiffs claim as well as on the
sustainability
of the defence raised by the defendants.
The
proceedings before Mynhardt J, the judgment in that matter and its
effect
[41]
The relevance of these proceedings to the current dispute lies both
in the timeline of the judgment delivered by Mynhardt J
relative to
the publication of the article in the Soldier as well as the contents
of the judgment relative to the aspect of the
authority to increase
membership fees to which reference has already been made. The nub of
the dispute in those proceedings was
whether the Defendants were
obliged to deduct the sum of R47.00 from Plaintiffs members as
membership fees. The plaintiff approached
Court on the basis that
R47.00 was what was authorized by the Congress of the Plaintiff while
the Defendants stance was that it
was only obliged to deduct R22.00
per month as membership as that appeared to be the amount authorized
by the Plaintiffs Congress
of 2004. (The difference between the
R47.00 and the R22.00 amounts to R25.00 which relates to the Soldiers
Legal Guardian benefit).
[42]
On the 4th May 2007 Mynhardt J delivered the judgment of the Court
and in effect ordered the Defendants to deduct the amount
of R47.00
per month from members of the Plaintiff in respect of whom written
authorizations existed. At that stage the article
which is the
subject of this action was already finalized and had been submitted
to the printers but was apparently not printed
and distributed by
then. The relevance of this was the submission of the Plaintiff that
post the Mynhardt judgment, the Defendants
had the opportunity of
withdrawing the article from print given the finding of Mynhardt J
that the deduction of R47.00 was in fact
authorized by the structures
of the Plainitff.
[43]
In assessing this argument one must have regard to the details of the
judgment of Mynhardt J as well as the evidence that was
placed before
him in those proceedings. In my view the stance of the respective
parties relative to the existence or otherwise
of the necessary
authority to increase membership fees to R47.00 was exclusively
located in the proceedings of the National Congress
of the Plaintiff
of 2004.
In
the founding affidavit deposed to by Mr Greef in those proceedings
and in paragraph
12.16
thereof he says :-
"The
determination in membership fees to R47.00 per member, per month,
came about as a result of a duly passed resolution taken
by the
National Congress of the first applicant in November 2004."
This
accords with his evidence in this action that the only basis for the
increase in membership fees to R47.00 was the resolution
of the 2004
Congress.
[44]
In contrast the stance of the Defendants in those proceedings was
that if regard were had to the resolutions of the 2004 Congress,
there was no resolution to increase membership to R47.00 . The only
authority for an increase in membership fees was that to be
found in
Resolution 5 which increased membership fees by R4.00 per month
bringing the membership fees to R22.00. In the absence
of a proper
resolution to justify the further increase of R25.00 per month, the
Defendants contended that there was no authority
for this additional
deduction. It denied that resolution 6(a) which dealt with the SLG
benefit constituted an authority to increase
membership fees by an
additional R25.00.
[45]
In argument however it appears that the Plaintiff also sought to rely
on resolution No 1/2006 of the Central Executive Committee
of the
Plaintiff to justify the increase in membership fees to R47.00. At
page 17 of the judgment the following appears :-
"The
argument of the applicant to counter that of Mr van den Heever, is
therefore that it has to be accepted for purposes hereof
at least,
that the entrance figure of membership fees is R18,00 per month, that
that was increased by virtue of resolution 1 of
2004 to R22,00 per
month, an increase of R4,00 per month, and because of the contents of
the annual report and resolution 1/2006
of the CEC, the membership
contribution or fee has now been increased to R47,00 per month with
effect from 1 December 2005."
In
coming to the conclusion that there was a valid authority for
membership fees to be increased to R47.00 per month Mynhardt J
appears to have relied not on the resolution of the 2004 Congress,
but on resolution 1/2006 of the Central Executive Committee
of the
Plaintiff. While the CEC does have the authority to increase
membership fees, the stance of the Plaintiff in those proceedings
as
well as in this action was that it relied on the resolutions of the
2004 Congress as being sufficient to effect the increased
membership
fees. In his evidence Mr Greef in response to a question by the Court
testified that after the 2004 Resolution there
was no need for any
additional resolution by any of the structures of the Plaintiff to
effect the membership fee increase to R47.00.
He also did not make
any reference to the 2006 resolution as being necessary for such an
increase. It is of interest that while
Mynhardt J relied on the 2006
resolution if one has regard to the content of that particular
resolution it is difficult to come
to the conclusion that the
resolution could serve as authority for an increase in membership
fees to R47.00. The relevant resolution
reads as follows :-
"That
the annual report of the acting national secretary of Sandu (J.G.
Greef) and the recommendations contained therein, which
report and
recommendations have been tabled at this meeting, be hereby accepted
in so far any matter herein is not already specifically
covered in
specific resolutions of this CEC."
The
annual report to which reference is made says the following :-
"The
inclusion of the SLG membership benefit to all members of Sandu and
the subsequent increment in membership fees to R47,00
per month, as
part of the membership towards Sandu has been implemented as per
resolution of the national congress of 2004 with
effect from 1
December 2005. Included herein, is statistics showing the success
rate of the soldiers legal guard membership benefit.
Undoubtedly this
product has proven its worth to our members.1'
[46]
There does not appear any recommendation in this report with regard
to an increase in membership fees. It is in essence a report
by the
National Secretary on the implementation of the resolutions of the
2004 Congress.
Thus
even though Mynhardt J found that there was authority for the
increase in membership fees to R47.00, he did so on the basis
of a
2006 resolution of the CEC and not on the basis of the resolution of
the 2004 Congress, which the Plaintiff in this action
persists is the
only resolution relevant to and which serves as the authority for the
increase in membership fees to R47.00.
[47]
Arising out of all of this is the result, whose relevance I will
return to later, that while Mynhardt J found the additional
deduction
of R25.00 to be lawful he did so on a basis other than that contended
for by the Plaintiff and certainly did not form
the conclusion that
the 2004 resolution provided the necessary authority in this regard.
However in the view of Mynhardt J, if
one left aside resolution
1/2006 and the clauses of the Constitution that gives the CEC the
authority to increase membership fees,
he opined 'that there is room
for a difference of opinion and that that was sufficient
justification for the department to refuse
to deduct the additional
R25.00 per month as from January 2007, when it had sight of the
documentation". From this the conclusion
must follow that based
purely on the 2004 resolution, the Defendant was justified in
refusing to make the additional deduction
of R25.00 and that it was
in Mynhardt's view the 2006 resolution that in effect disposed of the
dispute.
[48]
In consequence of this the question that then arises is whether the
Defendant, once Mynhardt J had delivered his judgment on
the 4th May
2007, was under a duty to take steps to prevent the printing and
distribution of the article or whether it was entitled
to persist
with the publication on the basis that it continued to be true and in
the public interest. Colonel Dlamini in response
to a particular
question in this regard said that the matter was outside his hands
and he thus took no steps to prevent publication;
he however did not
concede that he should have taken any steps to prevent publication.
His further evidence in this regard was
that when he had sight of the
Mynhardt judgment it did not change his stance on the inadequacies of
the 2004 resolution as the
judgment did not deal with it as providing
the basis for the claim to the authority by the Plaintiff to increase
membership fees
to R47.00.
In
this regard it would appear that the remarks of Mynhardt J that the
Defendant would on the basis of the 2004 resolution have
been
justified in refusing to make the additional R25.00 deduction accords
with the stance and the reasoning of Colonel Dlamini.
[49]
The effect of the judgment of Mynhardt J was that he found that the
increase in membership fees of the Plaintiffs members from
R18.00 to
R47.00 was authorized and by necessary implication was thus lawful.
This obviously changed the context around the article
that was at
that stage awaiting print and distribution. The effect of the
judgment, whose details were known to the defendants
and in
particular Col. Dlamini, was that at the very least it questioned the
conclusion that the deductions made by the Plaintiff
were unlawful
and that notwithstanding the defendants own audit and investigations
conducted it provided a different conclusion
on the issue.
That
being the case it becomes difficult to sustain the submission that
the section of the article that relates to the 'unlawful
deduction'
was true. While Col Dlamini may well have considered it to be true
notwithstanding the judgment, objectively speaking
the judgment would
have in my view created a duty on the defendants to at the very least
make reference to its conclusion. 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.
[50]
That being the case the plaintiff has succeeded in proving the
publication of a defamatory statement. It could hardly be disputed
that a statement that a trade union has unlawfully deducted a
substantial amount of money from it's members is not defamatory.
The
statement is clear and unambiguous and the ordinary reader would
understand it to mean that the plaintiff has outside of it's
authority and outside of proper authorization deducted monies from
it's members. It certainly would have the effect of questioning
the
legality of the plaintiffs operations, it's financial operations and
the discharge of it's duty towards it's members. I am
accordingly
satisfied that the plaintiff has proved the publication of a
defamatory statement.
[51]
The central defence offered by the defendandts was that the statement
complained of was true and in the public interest. For
the reasons
already given and while this defence may have been sustainable until
the 4th May 2007, it's ongoing sustainability
became questionable
once the Mynhardt judgment was delivered. The effect of that judgment
was that the statement complained of
could no longer be said to be
true.
The
defendants have accordingly failed to rebut the presumptions of
unlawfulness or the absence of animus injuriandi. When the statement
was published it could not be said that it was at the very least
'substantially true' and from the evidence of Col Diamini, who
testified that as principal author of the statement he was aware of
the judgment of Mynhardt and elected not to do anything about
it in
so far as the content of the article was concerned, it is also clear
that the defendant has also failed to rebut the presumption
that it
acted animo injuriandi.
For
these reasons the plaintiff must succeed in respect of this aspect of
it's claim. The award
[52]
Plaintiff has claimed the sum of R500 000.00 and has in support
thereof pleaded that the article would be understood by readers
to
suggest that the plaintiff was dishonest in making unlawful
deductions and further that it was not conducting it's affairs in
an
honest and lawful manner.
[53]
In the Law of South Africa (Joubert) Second Edition Volume 7, the
authors list the following factors to be considered in the
assessment
of an appropriate award :-
a)
The nature of the defamatory statement
b)
The nature and extent of the publication
c)
The reputation, character and conduct of the plaintiff
d)
The motives and the conduct of the defendant
In
this regard the following is of relevance :-
1)
The relationship between the parties was hardly cordial or civil. In
fact it would not be incorrect to characterize it as adversarial.
While it may generally be said that management labour relations are
destined to demonstrate an element of adversity, the evidence
and the
correspondence in this matter suggest an extremely high level of
adversity. In those circumstances the exchanges would
have been
robust and the positions adopted unyielding. Simply by way of example
the plaintiffs stance that the defendants' request
for copies of stop
order forms should become the subject of negotiation is a compelling
demonstration of such a stance.
2)
While the publication 'The Soldier' was widely distributed within the
Defence Force, it appears from the evidence of Mr Greef
of the
Plaintiff, that it was not highly regarded as a publication from a
Union perspective and was seen as largely advocating
a management
perspective. Given this characterisation of the publication it would
not be unreasonable to assume that those readers
of the publication
that belonged to the Plaintiff Union would in a sense take with pinch
of salt what was published of and concerning
the Plaintiff.
3)
The effect of the publication of the article on the activities,
membership and profile of the Union was not significant. It appears
that while the Union had to field numerous calls from members
enquiring about the article, there was no need for the Union to put
out a notice or a flyer or other form of mass communication to it's
members setting out the correct position and in particular
the
details of the Mynhardt judgment. If the level of discontent and
concern was significant, then surely such a step would have
been
warranted and the fact that it was not may point in the direction of
how the article was generally received.
4)
There was no evidence that the publication of the article negatively
impacted on the Union's membership.
5)
Up until the 4th May 2007 when the article was written and ready for
publication it's contents would have been factually and
legally
accurate. It could hardly then be contended that at the time of
writing of the article that the defendants were motivated
by a desire
to defame the Plaintiff.
6)
The article suggested that the Plaintiff acted unlawfully but did not
go so far as suggesting that the Plaintiff acted dishonestly.
[54]
In Mogale and others vs Seima 2008(5) S.A p 537 SCA , Harms JA (as he
then was) while recognizing the value placed by the Constitution
and
the common law on human dignity including reputation at the same time
pointed out that freedom of expression also enjoyed recognition
and
protection in the new Constitutional order. That being the case he
cautioned as follows:
“
life
is robust and oversensitivity does not require protection; and of
quantum: too high an award of damages may act as an unjustifiable
deterrent to exercise the freedom of expression and may
inappropriately inhibit the exercise of that right'
[55]
The court was referred to comparable cases including Buthelezi v
Poorter 1975(4) p609 (WLD). In this regard however the wisdom
in the
judgment of Smalberger J A in Van der Berg v Coopers & Lybrand
Trust (Ply) Ltd and Others 2001(2) SA 242 at 260E-H,
would appear to
be apposite "Comparisons of the kind suggested serve a very
limited purpose. In the nature of things no two
cases are likely to
be identical or sufficiently similar so that the award in one can be
used as an accurate yardstick in the other.
Nor will the simple
application of an inflationary factor necessarily lead to an
acceptable result. The award in each case must
depend upon the facts
of the particular case seen against the background of prevailing
attitudes in the community. Ultimately a
Court must, as best it can,
make a realistic assessment of what it considers just and fair in all
the circumstances. The result
represents little more than an
enlightened guess. Care must be taken not to award large sums of
damages too readily lest doing
so inhibits freedom of speech or
encourages intolerance to it and thereby fosters litigation. Having
said that does not detract
from the fact that a person whose dignity
has unlawfully been impugned deserves appropriate financial
recompense to assuage his
or her wounded feelings."
[56]
In all the circumstances and given that the award of damages is in
effect to compensate the plaintiff for the damage to it's
reputation,
which in my view was minimal and hardly had any lasting effect or
impact, an amount of R40 000.00 would constitute
fair and adequate
compensation.
Costs
[57]
The plaintiff having achieved substantial success would of course be
entitled to it's costs. However the plaintiff was unsuccessful
in
respect of the first leg of it's claim and a considerable portion of
both the documentary and oral evidence led in the trial
related to
that portion of the claim and it would not be fair to saddle the
defendants with those costs. The court has a wide discretion
with
regard to the award of costs and in my view there is a proper basis
to disallow the costs occasioned and incurred in respect
of the 1st
leg of the plaintiff claim. In my view those costs would constitute
approximately 30% of the costs incurred by the Plaintiff
in proving
it's claim and in the exercise of my discretion, I intend directing
the defendant to pay 70% of the plaintiff taxed
costs.
Order
[58]
In the circumstances I make the following order
1.
The 1st to the 6th Defendants are ordered to pay the plaintiff the
sum of R40 000.00 jointly and severally, the one paying the
other to
be absolved.
2.
The 1st to the 6th Defendants are ordered to pay 70% of the taxed
costs of the Plaintiff jointly and severally , the one paying
the
other to be absolved.
N
KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
1877-2008A
HEARD
ON: 29 AUGUST 2011 TO 2 SEPTEMBER 2011
FOR
THE PLAINTIFF: ADV B SWART SC
INSTRUCTED
BY: GRIESEL BREYTENBACH ATTORNEYS, PRETORIA FOR THE DEFENDANTS: ADV S
LEBALA SC INSTRUCTED BY: STATE ATTORNEY