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[2010] ZAFSHC 28
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Voges v Vicente (A103/09) [2010] ZAFSHC 28 (4 March 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : A
103/09
In
the
matter between:
P
C VOGES
Appellant
and
T
J VICENTE
Respondent
_______________________________________________________
CORAM:
RAMPAI,
J
et
MOLEMELA,
J
_______________________________________________________
JUDGMENT
BY:
MOLEMELA,
J
_______________________________________________________
DELIVERED
ON:
4 MARCH 2010
_______________________________________________________
[1] This
is an appeal against an order of absolution from the instance
granted in favour of the respondent (defendant) by the Sasolburg
Magistrate’s court. The appellant, an attorney, sued the
respondent, (his former client) for damages he allegedly suffered as
a result of defamatory statements made by the respondent of
and
concerning the appellant. The respondent denied the allegations.
[2] It
was common cause that the appellant had in the past handled a third
party claim for the respondent and her husband. The
defamatory
statement referred to above was captured as follows in the
particulars of claim:
“
On a number
of occasions, and at Sasolburg, the Defendant stated,
inter
alia
to Mr. Aardt Jansen van Vuuren of, and concerning the Plaintiff the
following:
That the Plaintiff
failed to account to her and her husband in respect of the damages
paid by the Road Accidents Fund;
That the Plaintiff failed to account
to the Defendant and her husband in respect of the party and party
costs he recovered from
the Road Accidents Fund;
That the Plaintiff appropriated the
Defendant and her husband’s damages for himself and that he
refuses to account to them;
Plaintiff has
issued false statements of accounts, and arranged for moneys
deposited in the Defendant’s husband’s
account to be
withdrawn from that account and paid to the Plaintiff. …..The
statement was understood by the addressee
and was intended by the
Defendant to mean that the plaintiff is dishonest in the following
respects:
(i) that he is a thief;
(ii) that he is an unscrupulous
attorney;
(iii) that he is not trustworthy;
(iv) that he is not
a law-abiding citizen;
(v) that he is without moral fibre.”
[3] The
appellant did not testify but tendered the evidence of two witnesses
viz
Mr. Aardt Jansen van Vuuren (“Mr van Vuuren”), the
respondent’s son-in-law, as well as Mr. Vicente, the
respondent’s
estranged husband.
[4] At
the closure of the appellant’s case the respondent successfully
applied for an order of absolution from the instance.
The court
a
quo
,
apparently relied, inter alia, on the case of
GASCOYNE
v PAUL AND HUNTER
1917 TPD 170
at 173 where it was stated that at the closure of the
plaintiff’s case, the court
“must
consider whether there is evidence upon which a reasonable man might
find for the plaintiff...”
In
the same case it was held that questions of credibility should not
normally be investigated at this stage of the proceedings,
except
“where
the witnesses have palpably broken down, and where it is clear that
what they have stated is not true.”
[5] The
court
a
quo
criticised the evidence of both witnesses that testified on behalf of
the appellant. It alluded to the fact that whereas Mr. van
Vuuren
was, according to the particulars of claim, the person to whom
certain defamatory statements were made on a number of occasions
concerning the plaintiff, his own testimony was that the alleged
defamatory statements were not made to him at all, but he had
on one
occasion overheard an argument between his parents-in-law, during
which his mother-in-law (the respondent) stated that
“die
derde party het die geld gevat om skelms soos Mnr. Voges uit te
vang.”
The
court
a
quo
also considered the credibility of the two witnesses.
[
6] Under
cross-examination Mr. van Vuuren testified that when he over-heard
the statement, he was standing on the porch approximately
100 metres
from his parents-in-law. At some stage Mr. van Vuuren testified that
he did not even know the plaintiff at the time
that statement was
made, that he had only met him once, that one occasion being after
the defamatory statement was allegedly made
and that at no stage did
he communicate with the plaintiff regarding the statement made by the
respondent. The court a quo had
difficulty with the fact that Mr.
van Vuuren’s evidence was at variance with the particulars of
claim and, secondly, that
Mr. van Vuuren conceded that he heard only
a fraction of the argument and did not understand the context in
which the words were
uttered.
[7] The
court
a
quo
also had difficulty with the second witness for the plaintiff,
viz
Mr. Vicente. His evidence was described as
“very
poor and incoherent evidence at times.”
I agree
with that finding. Mr Vicente contradicted himself and eventually
conceded to suffering from
”amnesia”
or
some
“mental
block”
to such an extent that he could not even recall what he had eaten the
previous day. Critically Mr. Vicente could not even remember
the
conversations with his estranged wife and apparently stated that he
considered himself to be mad.
[8] It
was argued on behalf of the appellant that even though Mr. van Vuuren
had conceded to not having heard the entire conversation
or argument
between his parents-in-law, he had testified that he had heard the
respondent stating that the Road Accident Fund had
taken money to
catch out crooks like Mr. Voges, who stole money. It was argued that
the words he had heard were in their ordinary
sense defamatory and
therefore the appellant did not have to prove the element of
animus
iniuriandi
prior
to closure of its case. It was further argued that the fact that
there was no evidence as to how the alleged defamatory words
came to
the plaintiff’s knowledge was inconsequential, under the
circumstances.
[9] The
test for absolution from the instance applicable at the closure of a
plaintiff’s case was laid out as follows in the
case
GORDON
LLOYD PAGE & ASSOCIATES v RIVERA AND ANOTHER
2001 (1) SA 88
(SCA) at 92 E – 92 G:
“
The test for
absolution to be applied by a trial court at the end of a plaintiff's
case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G - H in these terms:
'. . . (W)hen
absolution from the instance is sought at the close of plaintiff's
case, the test to be applied is not whether the
evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173;
Ruto
Flour Mills (Pty) Ltd v Adelson
(2)
1958 (4) SA 307
(T).)'
This implies that a
plaintiff has to make out a
prima
facie
case - in the sense that there is evidence relating to all the
elements of the claim - to survive absolution because without such
evidence no court could find for the plaintiff....”
This
test was reiterated in the case of
DE
KLERK v ABSA BANK LTD AND OTHERS
2003 (4) SA 315
(SCA).
[10 In
the case of
RUTO
FLOUR MILLS (PTY) LTD v ADELSON
(2)
1958 (4) SA 307
(T) at 309 the court stated as follows:
“
If the
evidence tendered by the Plaintiff is not only not convincing ...
or,
if it be a fact that it is too vague and contradictory to serve as
proof of the question in issue ... then it would be evidence
on which
a reasonable man would not find, and the Court would be perfectly
justified in granting absolution from the instance at
the close of
the case of the Plaintiff.”
[1
1] Mr.
Snellenburg, on behalf of the appellant, conceded that Mr Vicente’s
evidence did not take the appellant’s case
any further. He
submitted that his evidence ought to be disregarded on account of his
mental impairment. He contended that on
Mr. van Vuuren’s
evidence alone, the appellant had exceeded the minimum threshold of
evidence that is required to establish
a
prima
facie
case.
[
12] I
deem it apt to refer to certain extracts of Mr. van Vuuren’s
evidence under cross-examination:
”
Verstaan ek u getuienis reg dat
u self niks vir Mnr Voges vertel het van die argument tussen u
skoonpa en u skoonma gedurende drie
weke na Maart 2007 nie?
Dit is doodreg daar meneer.
So u het niks vir hom vertel nie?
Dit is doodreg.
Nou u kind is gebore 21 Maart 2007 en
u sê ongeveer drie weke daarna is u buite by die woning, u rook
‘n sigaret en
u hoor daar is ‘n gestryery?
Oor die geld.
Oor die geld, u hoor nie mooi presies
waaroor dit gaan nie?
Nee.
Hoe ver was u van hulle af gewees?
Ek dink 100 meter.
100 meter toe hulle nou so gestry het?
Ja.
En volgens u getuienis u hoor net ‘n
stukkie, hulle gaan aan maar u hoor nie eers wat hulle sê in
verband, in watter
konteks dit gesê word nie, is dit korrek?
Ja.
U kan nie vandag vir die Hof sê
wat u weet van Mnr Voges nie u het hom vir ‘n uur ontmoet en u
het net tolk werk gedoen
met u skoonpa?
Ja.
U weet nie watse tipe mens is hy of hy
beledig sal voel of nie, u kan nie rerig vir die Hof enigiets sê
nie, nie waar nie.
Ja.
Stem u saam?
Ja.
Hoekom het u net ‘n fraksie van
daardie argument gehoor, Mnr van Vuuren?
Ek het net die fraksie gehoor, want ek
was bang met die gerasery gaan my vrou weer wakker word end my vrou
het daardie tyd depressie
gehad na haar swangerskap.
Ja, kan die Hof aanvaar dat u kan nie
vir die Hof ‘n akkurate weergawe van die, wat daar presies gesê
is in die argument
tussen u skoonpa en skoonma op die dag waarvan u
praat nie, want u het maar met so ‘n halwe oor gehoor, sal u
toegee?
Ja.
So, u kan glad nie vir die Hof presies
sê wat daar gesê is in watter konteks, wie het eerste
gesê en wie het daarna
gereageer of wat die geval is nie?
Ja, ek kan dit nie sê wie ek het
buite gesit.
Inteendeel dit is moontlik dat u
totaal ‘n fout kan maak presies oor wat daar gesê is, u
skud u kop sê u ja?
Ek het gehoor van, net al wat ek
gehoor het was daardie storie van die tjek is teruggevat, die derde
party het die tjek teruggevat
want hulle mense soos Mnr Voges uitvang
wat nie die geld betaal nie, dit het ek gehoor maar verder
(tussenbeide).
So, dit is al wat u gehoor het die
derde partye (tussenbeide)?
Ek weet nie wie het eerste die
bakleiery begin nie.
So, u sê u het gehoor Me Vicente
sê op ‘n stadium, u skoonma die derde party het die geld
teruggevat want hulle
wil mense vang soos Mnr Voges wat nie die geld
uitbetaal nie?
Ja.
Dit is al?
Dit is wat ek gehoor het, duidelik
gehoor het.
Niks anders nie?
Verder wil ek my nie daar ingemeng het
nie, want toe begin hy te vloek in sy Portugese manier.
Maar dit is al wat u gehoor het dit is
belangrik?
Ja.
Niks ander nie, die Hof kan dit maar
aanvaar?
Ja.
So, ek wil dit aan u stel daar kon nie
eers ‘n argument op daardie stadium gewees het nie, want hulle
het nog nie eers geweet
wat is die posisie wie moet wat kry nie en
daar is nog geen afrekening of geen betalings is gedoen nie, verstaan
u wat ek vir u
sê?
Ja.
Met ander woorde dit wat u sê
die onderwerp van die argument was kon nie plaasgevind het nie, want
daardie gebeurtenis het
nog nie gerialiseer nie en verder wil ek dit
aan u stel as u 100 meter van daardie gesprek af was het u nie ‘n
woord gehoor
wat hulle gesê het nie, want geen mens kan hoor
wat ander mense praat op ‘n afstand van 100 meter nie, sal u
dit so
aanvaar?
Ek sal dit so aanvaar.
U sal dit so aanvaar, want Me Vicente
die verweerder ontken dat sy enige bewerings hoegenaamd wat lasterlik
is geuiter het teenoor
Mnr Voges? – (Geen antwoord.)
U moet iets sê.
U antwoord?
Daar daardie dag het ek dit gehoor.
Ja, op ‘n afstand van 100 meter?
Ja, ek het dit gehoor.
Ek wil dit aan u stel dat dit totaal
en al onwaarskynlik is?
Dit is reg.
En u weet nie eers wat hulle gepraat
het nie, want u het nie gehoor nie?
Dit is reg.
So, u aanvaar dit so?
Ja.
Dankie Edelagbare, geen verdere vrae
nie.
[1
3] The
extract quoted above in my view demonstrates just how unreliable and
contradictory Mr. van Vuuren’s evidence was.
He admitted that
he could not precisely inform the court about what was stated and the
context in which it was said because he
was not paying attention
(“het met ‘n halwe oor gehoor”). When it was put
to him that the argument could not
have been in respect of the third
party money because by then no statement or account had been prepared
yet and no payments had
been made, his response was that he would
accept it like that. When it was put to him that it was impossible
for anyone to overhear
a conversation from a distance of 100 metres,
he once again conceded. Having previously stated that he did
overhear the respondent
making the defamatory statement, he
contradicted himself by conceding that he did not know what they were
talking about because
he had not heard them. (p. 47, line 20 –
22 of the transcribed record).
[14] Due
to the aforementioned contradictions I cannot agree with Mr.
Snellenburg that Mr. van Vuuren’s evidence cannot be
criticised. In my view, that evidence was, at best, vague. As for
Mr. Vicente’s evidence, Mr. Snellenburg conceded that
it was
unreliable. Considering that under cross-examination Mr Vicente
ended up stating that he could not remember whether the
defamatory
statement was made or not, ascribing this to his ailing mental
condition, I consider Mr Snellenburg’s concession
to have been
properly made. I am of the view that the evidence tendered on behalf
of the appellant was of such a poor quality
that no reliance can be
attached to it. In my view, the court a quo was under those
circumstances entitled to make credibility
findings at the closure of
the appellant’s case. Furthermore, I agree with Mr. Joubert
that the witnesses for the appellant
contradicted themselves and each
other especially in relation to the alleged publication relied on by
the plaintiff and that their
evidence does not constitute a
prima
facie
case in support of the relief claimed by the plaintiff. See
RUTO
FLOUR MILLS (PTY) LTD v ADELSON
,
supra
,
at 309. Indeed the appellant failed to prove all the elements of the
delict of defamation. The court
a
quo
thus correctly granted an order for absolution from the instance.
See
GORDON
LLOYD PAGE & ASSOCIATES v RIVERA AND ANOTHER
,
supra
.
The quality of the evidence of the appellant’s witnesses falls
short of crossing the low threshold of proof set out in
the case of
DE
KLERK v ABSA BANK LTD AND OTHERS
,
supra
,
at p. 320.
[1
5] With
regards to the discrepancy between the particulars of claim and the
evidence tendered by Mr. van Vuuren, Mr. Snellenburg
contended that
“it
is a policy of courts not to take a too strict view of pleadings in
the Magistrate’s Court and as a rule a stricter
view is taken
of a plea than of a summons”.
As
authority for his proposition he relied on the following cases:
GENERAL
COMMERCIAL AND INDUSTRIAL FINANCE CORP LTD v PRETORIA PORTLAND CEMENT
Co LTD
(“General Commercial case”)
1944 AD 444
;
FALCH
v WESSELS
1983 (4) SA 172
(T);
NEUGEBAUER
& CO LTD v BODIKER & CO (SA)
(“Neugebauer case)1925 AD 316 at 321.
[16]
I
do not agree with this contention for two reasons. Firstly, the
Neugebauer
case (supra) and the
General
Commercial
case
(supra)
were in relation to exceptions. Secondly, the remarks made by the
judges in those cases were quoted out of context as such
remarks were
qualified (see page 321 of the
Neugebauer
case and p 453 of the
General
Commercial
case).
I therefore do not consider the aforementioned cases to be in support
of Mr Snellenburg’s contention, as the discrepancy
between the
particulars of claim and the evidence tendered in this case was of a
material nature.
[1
7] With
regards to the case of
FALCH
v WESSELS
(supra) I need only mention that reference to the
NEUGEBAUER
-case,
supra
,
was of a cursory nature and not contextual. I therefore do not find
the case of
FALCH
v WESSELS
,
supra
,
to be of persuasive value.
[19
] Mr.
Joubert, on behalf of the respondent, argued that given Mr. van
Vuuren’s evidence, another defence available to the
respondent
was that of “marital privilege” was available. As
authority for his contention he relied on
LAWSA
,
Volume 7, p. 236 and the case of
WHITTINGTON
V BOWLES
1934 EDL
142
at 145. Mr. Snellenburg argued that such a defence could not be
considered as it was not pleaded. Indeed such a defence was neither
pleaded nor included in his heads of argument. I will therefore not
address myself to this defence in this judgment, save to mention
that
it is not inconceivable that such a plea could have been filed had
the averments in the particulars of claim matched the evidence
of Mr
van Vuuren. This constitutes another reason why the discrepancy
should not be underplayed.
[2
0] In
my view, there was simply no evidence upon which it could reasonably
be found that the respondent had uttered the defamatory
statements
that support the averments made in paragraphs 5, 6 & 7 of
appellant’s particulars of claim or that such utterances
were
made in the first place. As there is no misdirection on the part of
the court
a
quo
,
there is no reason for this court to tamper with its finding. I
would therefore dismiss the appeal.
[21] In
the result, the following order is made:
The
appeal is dismissed with costs.
_________________
M.B. MOLEMELA, J
I concur.
______________
M.H. RAMPAI, J
On
behal
f
of appellant: Adv. N. Snellenburg
Instructed by:
Rosendorff Reitz
Barry
BLOEMFONTEIN
On
behalf of respondent: Adv. D.J. Joubert
Instructed by:
Naudes
BLOEMFONTEIN
/
sp