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[2012] ZAFSHC 79
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Masiu v Ramos (A217/11) [2012] ZAFSHC 79 (26 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A217/11
In the matter between:-
ISAAC VUSI MASIU
…..............................................................
Appellant
and
FATIMA DOS RAMOS
…......................................................
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
C.J.
MUSI, J
et
CLAASEN,
AJ
_____________________________________________________
HEARD
ON:
6 FEBRUARY 2012
_____________________________________________________
JUDGMENT
BY:
CLAASEN, AJ
_____________________________________________________
DELIVERED
ON:
26 APRIL 2012
_____________________________________________________
[1] This is an appeal
against the judgment by Magistrate Erasmus in the Magistrate’s
Court for the district of Winburg at
Winburg. The magistrate granted
“ontslag” (discharge) at the end of appellant’s
case and ordered each party to
pay his or her own costs. There is
also a cross-appeal, based on the ground that the magistrate erred in
his costs order and that
he should have ordered the appellant to pay
the respondent’s costs.
[2] Only the appellant
testified. The facts, extrapolated from his evidence and the
pleadings, were the following:
2.1 Appellant Isaac Vusi
Masiu, is employed as a maintenance officer at the Winburg
Magistrate’s Court, Free State Province.
2.2 Respondent is Fatima
Dos Ramos, residing at Winburg, Free State Province.
2.3 Respondent’s
husband was ordered to pay monthly maintenance to the respondent. Her
husband failed to pay the maintenance
punctually and later paid only
half of the monthly maintenance. These maintenance amounts were
seemingly paid at the magistrate’s
court (maintenance section).
2.4 Every month the
appellant prepared a schedule of all maintenance payments received,
faxed it to Pretoria from where electronic
payments are made to the
separate accounts of all the relevant beneficiaries. Respondent was
one of the beneficiaries of this process.
2.5 Respondent phoned a
lady by the name of Gloria and the appellant more than once, to
complain about the irregular and diminished
maintenance she received
from her husband.
2.6 Gloria is the person
who handled the files of persons whose payments are in arrear.
Appellant advised the respondent, telephonically,
to visit the office
and lay a charge against her husband.
2.7 Respondent wrote a
letter, dated 14 September 2010, to the regional manager, Department
of Justice, Welkom.
2.8 I quote the contents
of the letter:
“
I have a
court order against my ex husband. He should pay the maintenance by
the 1
st
of every month. I am struggling every month in that I have make (sic)
phone calls to the clerk (Vussie) of Winburg Magistrate Court
to
remind him about my maintenance.
I assumed that once a court order is
issued, that means that the court will assist me in obtaining the
maintenance. But I was proven
wrong. My ex, has been
late
every month and out of the blue started to pay only
half
of
the maintenance due for 3 months in a row.
Nothing
was done by
the court about this. Can the clerk of the court allow this?
My ex is well known to the people of
Winburg. Money is no problem to him, he has several properties,
luxury cars, and 4 businesses.
He is well known to be able to put him
self out of trouble by ‘paying off’ people to keep quiet
or to follow his instructions.
He is also a man with children of
several women (whom I only found out after marring (sic) him). He is
the type that every thing
should be his way; nothing or no one should
tell him what is right or wrong.
I can’t help but think that the
clerk is being paid by my ex to allow him to pay late every month and
allow him to only pay
half of what he is liable to pay.
I am working every day, have 2 small
boys (3yrs & 5yrs) to look after and they rely on me for their
wellbeing incl. their schooling
and medical.
I am asking for assistance from you,
not only for my sake but for my children’s and all the other
mothers who struggle every
month to get their money from the court.
I hope to hear from you soon.
Yours Sincerely
Fatima”
2.9 The clerk, Vussie,
referred to in the letter, is the appellant.
The appellant, who is
married with two children, was at that stage employed by the
Department of Justice for one and a half
years and was previously
employed as a clerk at the law firm Wessels & Smith, Welkom.
It is common cause and
admitted, that the letter was written by respondent and forwarded
to the regional manager of the Department
of Justice, Welkom. The
name of the regional manager is Mr. Hlatshwayo and he was
identified in the uncontested evidence of
the appellant.
The office manager at
the magistrate’s court of Winburg, is Mr. Mafereka, who gave
the letter to appellant and asked him
to read it. He was also
identified in the uncontested evidence of the appellant.
An investigation was
held because of the contents of this letter, but no disciplinary
steps followed.
The appellant testified
that he felt very unhappy about the letter. He felt very hurt.
During all the years that he worked at
Wessels & Smith and the
magistrate’s court, his reputation and honesty were never
questioned. He is claiming R50
000,00 for defamation, the
infringement of his good name and reputation and the infringement
of his subjective feeling of dignity
and self-respect.
The respondent denied
that the statements in the letter
are wrongful and/or
defamatory;
were made intentionally;
and that the letter
injured the appellant in his good name and reputation or dignity.
It was never specifically
pleaded or put in issue that respondent denied the publication of the
letter.
The sting of the
averments in this letter, according to appellant, was that
appellant willfully neglected his duties as clerk
of the court, in
that he allowed the respondent’s husband to disobey a court
order; allowed the respondent’s husband
to bribe him and that
he was a dishonest and corrupt employee, receiving bribes from the
public to allow them to transgress
lawful court orders. All this is
denied by the respondent.
[3] The magistrate, under
a heading “REDES VIR ONTSLAG” gave reasons for the
“ontslag” (discharge) on 10
June 2011. He deviated from
his reasons after receipt of the notice of appeal, in terms of Rule
51(4), by providing a second set
of reasons. I quote firstly the
reasons dated 10 June 2011:
“
Eiser het
getuig hoe dit onder sy aandag gekom het dat daar gelaster was teen
hom deur die verweerderes.
Nooit het hy getuig dat dit onder
aandag van ander gekom het. Die brief is gerig aan Streekbestuurder
en sy Kantoor Bestuurder het
dit aan hom oorhandig. Nooit is daar
getuig of hulle kennis van dit geneem het nie.
Die brief as sulks het sy net ‘n
vraag gevra en nie ‘n stelling gemaak dat hy geld ontvang het
nie. Die toets is nie
subjektief nie. Nie wat eiser dink nie. Toets
objektief, was dit laster.
Volgens hof het hy nie daarin geslaag
om die hof te oortuig dat dit laster was nie.
Die quantum is ook nie bewys hoe hy by
die bedrag kom. Hoe het hy by die waarde van skade gekom wat berokken
is aan hom.
Hof staan ontslag toe. Eiser nie
daarin geslaag het om sy eie te bewys nie.
Elke party sy eie koste dra.”
[4] The reasons after the
notice of appeal was filed, dated 3 August 2011, read as follows:
“
Heel eerste
moet hof sê dat die redes vir appèl eers op 29 Julie
2011 ontvang is waar dit hele tyd was, weet hof nie.
Daar was ‘n aansoek om absolusie
en nie om die eis van die hand te wys nie.
Dit is mos in elk geval geeikte (sic)
reg dat die ander party ook aangehoor moet word voor hof finale
bevinding maak. Wat hof gedoen
het is om die aansoek toe te staan.
Absolusie van instansie.
Die brief is nie onderteken deur die
respondent. Enige iemand kan dit geskryf het om mee te begin.
Daar word van hof verwag om afleiding
te maak, dat die brief tot ander se kennis gekom het. Daar kan baie
redes wees hoekom daar
ondersoek gehou was.
Hie hof volstaan by feit dat sy het
nooit gesê dat hy betaal word nie, maar sy wonder of dit nie so
is nie. Rede wat sy aanvoer
is dat haar man tot sulke optrede in
staat is of doen en dat sy nie gehelp word by Landdroskantoor.
In die brief is dit duidelik dat sy
probleme ondervind om haar onderhoud te ontvang, waarop sy geregtig
is. As sy nie gehelp word,
mag sy seker dink en oplossings vind. Sy
het nooit gesê dat eiser geld ontvang van haar man. Wat feit is
sy word nie bevredig
met die ontvang van onderhoud nie.
As die woorde onregmatig is, moet hof
oortuig word dat dit is. Sy het nooit gesê hy het geld ontvang
nie, maar sy het gewonder.
Nie omdat sy kwaadwilliglik die eiser wil
te na kom, maar omdat sy nie sukses het om haar onderhoud te ontvang.
Sy soek ‘n
rede hoekom ontvang sy nie haar onderhoud. As sy
verkeerd was, kon eiser mos bewys gelewer het dat onderhoud gereeld
en op tyd
inbetaal word en so het klaagster dan die gewraakte woorde
kwaadwilliglik geuiter en dit het tot kennis van ‘n ander
gekom.
Maar as dit so is dat sy nie die
onderhoud op datum kry of gereeld kry, sou sy geregtig wees om te kla
wat moet sy doen om remedie
vir haar probleem te kry.
Daar is geen getuienis in die saak,
hoe is op die bedrag gekom. Hoe is die skade bepaal nie. Hoe is sy
skade berokken om op die
eisbedrag te kom. Daar moet sekerlik
getuienis wees wat hy meen sy waarde is en wat was die skade wat aan
hom berokken het. Hoe
het hy op dit gekom. Kan mos nie net sê
dat dit is my skade nie. Hoe het hy by dit gekom.
Hof staan weer dat die eis is nie van
hand gewys met koste nie. Die aansoek om absolusie was toegestaan.
Dit is hoekom hof so kostebevel
gemaak het dat elke party sy eie
koste betaal. Rede was uit en uit omdat die eiser nie nou daarin kon
slaag om hof te oortuig dat
dit laster was nie. Hy dit nog steeds op
latere geleentheid kan doen.
As die eis van hand gewys was, sou hof
totale kostebevel teen die eiser gemaak het, want dan was dit finaal
en dit is nie wat hof
gemaak het nie.”
[5]
Some
fundamental errors, contrary to the pleadings, the law and evidence,
are reflected in these reasons, such as:
5.1 Evidence was lacking
in regard to the publication of the letter in that its contents never
came to the knowledge of others.
That the investigation could have
been for any other reason.
5.2 Respondent only asked
a question and did not make any statement.
5.3 No evidence regarding
the quantum was given.
5.4 Anybody could have
written the letter as it was not signed by the respondent.
5.5 Respondent was only
thinking, wondering, whether appellant was corrupt. Appellant could
have proven that maintenance was indeed
paid and only then was the
letter written with the necessary
animus iniuriandi
, and that
it then would have come to the knowledge of others.
5.6 Only if the claim was
dismissed, could the court have granted costs to the respondent.
[6] The main issues
raised by the appeal and cross appeal concerned:
6.1 Whether appellant
proved
prima facie
all the elements necessary for the
actio
iniuriarum
relating to defamation and/or insult to avoid
absolution from the instance; the central issues being whether the
letter was defamatory
and whether publication occurred.
6.2 The appropriate costs
order.
[7] In
KHUMALO AND OTHERS v HOLOMISA
[2002] ZACC 12
;
2002 (5) SA 401
(CC)
at par.
[17]
, O’Regan J stated that the
elements of defamation are:
“
(a
)
the
wrongful and
(b)
intentional
(c)
publication
of
(d)
a
defamatory statement
(e)
concerning
the plaintiff.”
Notable is the absence of
damages. The law presumes that a plaintiff has suffered injury once
publication of defamatory matter,
concerning plaintiff, has been
established.
[8] The following dictum
of the Appeal Court, crisply sets out the principles applicable to
the law of impairment of dignity.
“
I
now turn to consider the law which is applicable to the facts of the
present matter. Melius de Villiers
The
Roman and Roman-Dutch Law of Injuries
at
27 notes three essential requisites to establish an action for
injuria
.
They are:
'I. An intention on the part of the
offender to produce the effect of his act;
II. An overt act which the person
doing it is not legally competent to do; and which at the same time
is
III. An aggression upon the right of
another, by which aggression the other is aggrieved and which
constitutes an impairment of
the person, dignity or reputation of the
other.'
These
requisites are firmly entrenched in our law - see eg
R
v Umfaan
1908
TS 62
at 66;
Whittaker
v Roos and Bateman; Morant v Roos and Bateman
1912
AD 92
at 130 - 1;
R
v Chipo and Others
1953
(4) SA 573 (A)
at
576A. (In the present instance we are concerned with the impairment
of dignity - as to the meaning of which see
Melius
de Villiers (op cit
at
24 - 5) and
Minister
of Police v Mbilini
1983
(3) SA 705 (A)
at
715F - 716A.)
Logically
in an action for
injuria
one
should commence by enquiring into the existence of the second of
these requisites, viz whether there has been a wrongful overt
act.
(It is more common, and probably juristically more correct, to speak
of a 'wrongful' rather than an 'unlawful' act.) A wrongful
act, in
relation to a verbal or written communication, would be one of an
offensive or insulting nature. Once the wrongfulness
of such act has
been determined
animus
injuriandi
will
be presumed (
Whittaker
v Roos and Bateman (supra
at
124);
Walker
v Van
Wezel
1940
WLD 66
at 67). It would be open to the defendant to rebut such
presumption by establishing one of the recognised grounds of
justification.
If the defendant fails to do so the plaintiff, in
order to succeed, would have to establish the further requirement
that he suffered
an impairment of his dignity. This involves a
consideration of whether the plaintiff's subjective feelings have
been violated,
for the very essence of an
injuria
is
that the aggrieved person's dignity must actually have been impaired.
It is not sufficient to show that the wrongful act was
such that it
would have impaired the dignity of a person of ordinary
sensitivities. Once all three requisites have been established
the
aggrieved person would be entitled to succeed in an action for
damages, subject to the principle
de
minimis non curat lex
.”
1
[9]
9.1 A decree of absolution from the instance is granted only if, at
the end of plaintiff’s case, there is not sufficient
evidence
upon which a reasonable court could find for the plaintiff.
2
9.2
The courts have frequently emphasised that absolution should not be
granted except in very clear cases. When inferences are
applicable it
is not necessarily the only inference nor the readiest inference that
need to be made.
3
9.3
This court has also decided that where the onus on some issues is on
the plaintiff and on others on the defendant, no room for
absolution
exists.
4
9.4
There are two presumptions in the law of
iniuria
regarding
impairment of a person’s
fama
or
dignitas
.
Firstly, when a defendant causes a publication that is defamatory or
causes insulting matter regarding the plaintiff, a presumption
of
wrongfulness arises which places a full onus on the defendant to
rebut it.
5
9.5
Secondly, a full onus or at least evidentiary burden
(weerleggingslas) rests on the defendant to rebut
animus
iniuriandi
once
the publication relating to plaintiff is either defamatory or
insulting.
6
9.6 I
can see no reason why the principle enunciated in
SCHOEMAN
v MOLLER
,
supra
,
is not applicable when sufficient evidence is presented by plaintiff
to trigger the two presumptions.
[10] Mr. Groenewald
argued, and the same thought process is echoed in the magistrate’s
reasons, that the letter could not
be defamatory as the respondent
only thought or presumed that appellant is corrupt and did not
explicitly state that he is corrupt.
This line of thinking,
seemingly, is based on the principle that thoughts are not punishable
in the criminal law or do not attract
delictual liability, in the
civil law. Certainly, mere thoughts or mere thinking that a person is
corrupt, are irrelevant. This
is stated in the Digesta text
D48.19.18:
Cogitationis poenam nemo patitur
, or the Dutch
adagium in Huber’s Heedendaegse Rechtsgeleertheyt 6.1.4:
“
want van de
gedachten is men alleen aan God reekenschap schuldig.”
[11] But it is quite
different if a person converts his/her thoughts into action, like the
respondent, writing these remarks in
a letter to the superiors of the
appellant. It went beyond a mere idea or thought. It became a human
act, human conduct, with resultant
consequences. In any event the
belief in the factual correctness of defamatory words is not a
requisite for liability in our law.
[12] The words “cannot
help” in the objectionable sentence is a further indication of
a thought process and a conclusion.
The meaning of the words “cannot
help”, in its present context is defined in The New Shorter
Oxford English Dictionary
(1993) as meaning “there is no way of
avoiding it”. The respondent is not “thinking”
anymore, she came
to a firm conclusion that Vussie is corrupt.
[13]
The cardinal question is whether the letter contained defamatory or
insulting matter. The magistrate did not even consider
the insult
leg. The test should be the notional understanding and reaction of a
person of ordinary intelligence and sensibilities
to these
allegations. It must be such that a reasonable person would also have
felt insulted.
7
Words
may be defamatory (i.e. impair reputation) as well as constituting an
impairment of dignity. Subjecting a person to derogatory
words could
constitute an impairment of his or her dignity. The action for the
impairment of dignity does not require further publication
of the
offensive matter to a third party.
8
Mr.
Groenewald argued that the difference between defamation and
impairment of dignity is that in the last instance, respondent
must
utter the words directly to the appellant. That is not correct. A
plaintiff may become aware of such words in any manner.
[14] The magistrate lost
sight of the fact that:
“
A
publication is defamatory if it has the tendency or is calculated to
undermine the status, good name or reputation of the plaintiff.
Not
that defamation actually occurred. In short, probability of injury
rather than actual injury is at issue.”
9
[15]
It is common cause or not contested that respondent wrote the letter,
forwarded it to the appellant’s superiors, an investigation
followed regarding the contents of the letter and complaints raised
in the letter. That the complaints were directed at the appellant.
This open letter, the receipt by appellant’s superiors thereof,
the handing over of the letter to the appellant by his office
manager, the investigation which followed the letter, clearly proved,
prima
facie
,
the requisite publication of matter concerning the appellant. As a
general rule, publication is attributed to the respondent if
she was
aware or could reasonably have expected that an outsider would take
cognisance of the words.
10
She
wanted and should reasonably have expected an investigation and
hearing where others would become aware of her remarks. Generally
there is publication if the defamatory words are made known or
revealed to at least one person, other than the defamed person.
Of
importance also, is the absence of any plea relating to
justification, such as privilege or a privileged occasion. It was
neither
pleaded nor argued that respondent was not responsible for or
did not foresee the further publication.
[16] Mr. Groenewald
argued that one of the persons who read the letter, should have been
called to prove publication. There is no
rule in our law that a
plaintiff should call the person or persons to whom it was published.
The plaintiff in a defamatory action
has only to prove on a
preponderance of probabilities that there was publication of
defamatory matter relating to him.
[17] Here we have an
officer of a court, being subjected to at least suspicion of being
corrupt, accepting money from respondent’s
husband to assist
her husband to evade a court order. These words raised questions of
his integrity, work ethics, criminal propensity
and corrupt
character. Objectively any officer in the magistrate’s court,
confronted with such allegations, would be defamed
or feel insulted.
I have no doubt in my mind that such allegations are in context
defamatory and/or insulting.
[18] It has been said
that:
“
Interpretation
is an objective issue. Actual loss of reputation is not required nor
is belief in the defamation.”
11
And, may I add, nor is
the caveat that “you think”, an excuse for defamatory
remarks.
“
... a person
... without endorsing it, cannot on the ground that he passes it on
as rumour only, escape liability.”
12
[19] Non-patrimonial
damages, in the case of infringement to a person’s
fama
or
dignitas
, are not proved in the same manner as patrimonial
damages. Awards are assessed by the Courts in an endeavour of
effecting retribution
for the injury. The court determines the amount
of injury
ex aequo et bono
, taking all relevant factors and
evidence into consideration. The law presumes that a plaintiff has
suffered an injury to his or
her reputation when publication of
defamatory matter concerning a plaintiff is proved. The same
principle is applicable when a
person is insulted. The measure of
damages is in the discretion of the court, depending on the
circumstances of each case. It follows
that the plaintiff need not
prove that he or she sustained actual loss.
[20] I need not dwell on
the possible splitting of actions. If the appellant’s cause of
action for impairment of his dignity
flows from the same defamatory
publication, he has only one cause of action and claim for damages as
any defamatory matter is also
insulting.
“
... any
defamation is in the first instance an affront to a person’s
dignity which is aggravated by publication ...”
13
[21]
Human dignity is recognised as a fundamental right.
14
Dignity
is a separate legal object and one of the recognised personality
rights. Neethling, Potgieter and Visser describe it as
the subjective
feeling of honour or self-respect; a person’s pride in his own
moral value.
15
For
the infringement of this right is it not necessary for any
publication nor that the words need to be defamatory. The uncontested
evidence of the plaintiff is that he was severely hurt in his
feelings and self-respect. That would have been the reaction of a
person of ordinary intelligence and sensibilities. The presumptions
regarding unlawfulness and
animus
iniuriandi
kicked
in. If the defamatory action, as a separate claim, was not
prima
facie
proved,
there was in any event, no room for absolution regarding the claim
for infringement of the plaintiff’s dignity. It
follows that
the cross appeal ought to be dismissed.
[22] For the above
reasons I make the following order:
1. The appeal is upheld
with costs. The costs to include the costs of the hearing on 6
February 2012.
2. The cross appeal is
dismissed with costs.
3. The order of the court
a quo
is substituted by the following order:
“
The
application for absolution is dismissed with costs.”
________________
J.Y. CLAASEN, AJ
I
concur.
_____________
S. EBRAHIM, J
I concur.
___________
C.J. MUSI, J
On behalf of appellant:
Adv. P.W. Oberholzer Instructed by:
Wessels & Smith
BLOEMFONTEIN
On behalf of respondent:
Adv. W.J. Groenewald
Instructed by:
Symington & De Kok
BLOEMFONTEIN
/sp
1
DELANGE
v COSTA
1989 (2) SA 857
(AD) at
860 I –
861 F.
2
GASCOYNE
V PAUL AND HUNTER
1917 TPD 170
;
OOSTHUIZEN V STANDARD GENERAL
VERSEKERINGSMAATSKAPPY BPK
1981
(1) SA 1032
(A) at 1035 H – 1036 A;
BUILD-A-BRICK
BK EN 'N ANDER v ESKOM
1996 (1) SA 115
(O)
at 123 B – C.
3
GANDY
v MAKHANYA
1974 (4) SA 853
(N) at
855 – 856.
4
SCHOEMAN
v MOLLER
1949 (3) SA 949
(O) at
957.
5
NEETHLING
v THE WEEKLY MAIL AND OTHERS
[1993] ZASCA 203
;
1994 (1) SA 708
(A)
at
770;
HARDAKER v PHILLIPS
2005 (4) SA 515
(SCA) at 524; Neethling,
Potgieter and Visser:
Law of Delict
(5
th
Edition) page 310 and 316 and 321 – 322.
6
SUID-AFRIKAANSE
UITSAAIKORPORASIE v O'MALLEY
1977 (3) SA 394
(A)
at
310;
HARDAKER v PHILLIPS
,
supra
;
Neethling
et al
,
supra
.
7
JACKSON
v NICRO
1976 (3) SA 1
(A) at 10;
MINISTER OF POLICE v MBILINI
1983 (3) SA 705
(A) at 716;
DE
LANGE v COSTA
1989 (2) SA 857
(A)
at 861 – 862.
8
Burchell
J:
Personality Rights and Freedom of
Expression
(1998) p. 346.
9
LE
ROUX AND OTHERS v DEY
2010
(4) SA 210
(SCA) at 213 G – 214 D.
10
PRETORIUS
v NIEHAUS EN ‘N ANDER
1960
(3) SA 109
(O) at 112 and 113;
VAN
VLIETS COLLECTION AGENCY v SCHREUDER
1939
TPD 265
at 268 – 269.
11
LE
ROUX AND OTHERS v DEY
2010 (4) SA 210
(SCA) at 216 C.
12
AFRICAN
LIFE ASSURANCE SOCIETY LTD v ROBINSON AND CO LTD
1938
NPD 277
at 302.
13
LE
ROUX AND OTHERS v DEY
2010 (4) SA
210
(SCA) at
218 F.
14
Section
10 Constitution of the RSA.
15
Neethling,
Potgieter and Visser:
Law of Personality
(1996) p. 32;
JACKSON v NICRO
1976 (3) SA 1
(A) at 4.