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[2010] ZAFSHC 104
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Dlamini v Sesele (A250/2009) [2010] ZAFSHC 104 (23 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A250/2009
In the matter between:-
MOTSAMAI CHARLES
DLAMINI
..........................….....
Appellant
and
MOEKETSI BASIL
SESELE
….......................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
VAN
ZYL, J
_____________________________________________________
HEARD
ON:
23 AUGUST 2010
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
23 SEPTEMBER 2010
_____________________________________________________
[1] These are appeal
proceedings. The appellant is a school teacher and the respondent a
school management developer. In what follows
I shall refer to the
respondent as the plaintiff and the appellant as the defendant. In
the Kroonstad District Court the plaintiff
sued the defendant for
damages in the sum of R40 000,00. The defendant resisted the action.
[2] In the end the
plaintiff succeeded in his action against the defendant. The trial
magistrate (Mr. I. Redelinghuys) ordered the
defendant to pay damages
in the sum of R40 000,00 interest thereon and costs. It was against
this order the defendant came on appeal
to this court.
[3] The evidence adduced
at the trial is not explored at some length in the judgment. A
summary of the material facts of the case
will be helpful for the
appeal purposes. The hearing was on 25 August 2003. Mr. Swanepoel, a
local attorney, represented the plaintiff
and Mr. Kruger, a local
attorney, represented the defendant.
[4] First, the undisputed
facts. Here I include facts which, though not admitted, were
nonetheless not seriously disputed. The plaintiff
was in the employ
of the Department of Education and Training. He was a school
management developer attached to the Kroonstad District
Office. His
post matric academic qualifications included a three year diploma
training course – a bachelor’s degree
and honours degree
(B.A. Hon.). At the time of the trial he was busy with a master’s
degree. His wife was a teacher by profession.
He was a father of two
minor children.
[5] The plaintiff was
responsible for the managerial development of a number of schools in
the Northern Free State. Among them was
a school known as Makhetha
Secondary School at Phomolong in Kroonstad. The defendant was one of
the teachers at that particular
school. He was also the
representative of the South African Democratic Teachers Union (SADTU)
at the school. He preferred Mr. Mojaki
to Mr. Maloka as the
principal.
[6] For sometime the
school did not have a principal. The vacant post was advertised,
applications from interested teachers were
received, short-listing
was done and interviews were held. Among the applicants were teachers
at the same school. Some of them
were even shortlisted. Whether Mr.
Mojaki was one of them does not appear from the record, but probably
was.
[7] Apparently the
interviews were held in August 2001. The interviews of the candidates
on the shortlist were conducted by a selection
panel delegated by the
school governing body (SGB). The SGB consisted of a certain number of
teachers, parents and learners who
represented such interest groups
at a particular school. The selection panel submitted its selection
report to the SGB after the
interviews. The SGB recommended the name
of three candidates to the departmental head office in Bloemfontein
via
the district office at Kroonstad.
[8] The director-general
of the department made the final appointment of a certain Mr. Philip
Maloka from the three recommended
finalists, as the principal of the
school. The appointment was done during September 2001. The plaintiff
was not involved in the
short-listing or the interview of the
candidate or the selection of the finalists or the final appointment
of the principal. At
that time he was not yet attached to the school
as its school management developer. About a month later, during
October 2001, the
plaintiff became the school management developer of
the same school. There were already problems there.
[9] The SGB, which was
responsible for the recommendation of Mr. Maloka as the principal,
was replaced by the new SGB. The latter
had problems with Mr. Maloka.
A number of grievances by the parents, the learners and teachers were
sent to the department about
the principal. On 17 January 2002 the
plaintiff received an undated letter from 13 school teachers –
exhibit “A”.
They advised him that, pending the outcome
of the dispute, which they did not specify, they had resolved to obey
the instructions
of a certain Mr. Mojaki, the deputy principal, only.
[10] Implicitly the
teachers concerned informed the department
via
the school
developer that they no longer recognised the authority of Mr. Maloka
as the principal. Seemingly three other teachers,
including the
principal, did not sign the grievance. The defendant’s name was
on the list (exhibit “A”) as the
second signatory.
[11] The very next day,
on 18 January 2002, the plaintiff went to the school to defuse the
volatile situation. He went over there
in response to the grievance
of the teachers – exhibit “A”. He invited three
members of the SGB to attend the
meeting with him. They were Ms Noge,
Mr. Rapulungoana and Mr. Maloka. There were several teachers at the
meeting. Besides the plaintiff,
there were about 18 to 20 people all
in all. Among the teachers, who spoke at the meeting, were Mr. T.J.
Chere and Mr. M.C. Dlamini,
the defendant. The meeting came to an
abrupt end after the appellant and the respondent had exchanged some
words. The proceedings
at the meeting were not minuted. Mr. Mojaki
was a deputy principal at the time.
[12] Subsequent to the
meeting, the school was plagued by endless problems. The situation
worsened and rapidly deteriorated. It
was that deepening crisis at
the school which eventually forced the department to shut it down and
to transfer its teachers to
different other schools. Amid all that
turmoil, the plaintiff gave up his 15 year career in the field of
education on 30 April
2002. He subsequently became the mayor of
Sasolburg. Similarly he was still holding that position at the time
of the trial.
[13] There were a few
disputed factual allegations as well; the role, if any, played by the
plaintiff in the appointment of Mr.
Maloka as the principal; the
words used or the statement made by the defendant at a meeting; the
impact of such words on the plaintiff’s
reputation and dignity;
the damages, if any, the plaintiff suffered as a result of the
alleged words; the defendant’s intention
and the relationship
between the plaintiff and the principal, Mr. Maloka.
[14] The plaintiff’s
case was that, the manner in which he was treated by the defendant at
the meeting, invoked an aggression
upon his person and that, the
stated remarks publicly attributed to him, constituted a wrongful and
actionable infraction of his
fundamental personality rights. He
asserted that the alleged statement allegedly uttered by the
defendant portrayed him as an official
with a foul reputation, who
lacked the necessary integrity to properly develop the management of
the school.
[15] The magistrate found
for the plaintiff that, the defendant did utter the alleged words;
that he uttered them concerning the
plaintiff; that such words were
untrue and that they were not only defamatory to the plaintiff’s
good name, but also insulting
to the plaintiff’s dignity.
[16] On appeal before us
and also at the trial, it was never contended that a remark to the
effect that an individual has corrupt
tendencies was not, in itself,
defamatory and contumelious. The court
a quo
was not concerned
with the broad enquiry as to meaning and effect of the alleged words.
The issue in the case, as regards the merits,
was really whether the
alleged words were ever uttered by the appellant concerning the
respondent. From now on I shall refer to
the parties as such.
[17] To that issue I now
turn. The appellant put up a defence that, although he engaged the
plaintiff in a discussion during the
course of the meeting, he made
no defamatory or contumelious remarks, which impaired the plaintiff’s
right to reputation,
the esteem in which he was held by others in
society. He also denied that he made any contumelious remarks, which
impaired the
dignity and self esteem of the plaintiff. He maintained
that he merely asked the plaintiff the question, which was not
injurious
in the dual sense of the word.
[18] During the course of
the appellant’s cross-examination the following exchange
between him and Mr. Swanepoel took place:
“
Goed, kom
ons hoor nou vandag vir die heel eerste keer, sê vir die agbare
hof wat het u vir mnr Sesele gesê, want tot
op hede is dit nog
nie bekend nie? --- Ek het net vir mnr Sesele gevra:
mnr
Sesele noudat jy nou die inspekteur is van die skool en ons nou die
werknemers by die skool is en ons het nou alreeds ‘n
grief
ingesit, sê vir ons nou hoe verder
(sic)
dit.
Dit is al? --- Ja.”
[19] Nobody in his sound
and sober senses would feel offended by such a question. Bearing in
mind the circumstances which were prevailing
at the school prior to
the meeting, such a question, if ever it was asked by the appellant,
would have been perfectly understandable
and legitimate. It seems
highly unlikely though that such an innocent question would have
prompted any objective person in those
circumstances to feel
humiliated or insulted and unceremoniously to declare closed an
otherwise orderly meeting and take legal
steps afterwards. This is
the strongest improbability in the entire case. It substantively
weakens the appellant’s case even
before the force of the
respondent’s case is examined.
[20] The evidence of the
respondent was that such a question was earlier asked by a certain
Mr. Chere –
vide
signatory
12 exhibit “A”. It was never suggested to the respondent
that his evidence on that particular point was untrue.
In his
testimony the appellant did not refute such evidence. It is
improbable that the appellant, a teacher, would have repeated
the
same question that had already been politely asked and probably
answered. This raises the important question: What caused the
respondent to abruptly end the meeting immediately after the
appellant had spoken and asked the question, whereas he did not do
so
earlier immediately after another teacher had asked precisely the
same question?
[21] The exercise of
common sense suggested that the appellant probably said something
different from what Mr. Chere had already
said. As a result of what
he said, the respondent left the meeting a broken hearted man. He
felt insulted and offended. He felt
humiliated and degraded in the
eyes of those members of the public present at the meeting. The
probabilities of matter are telling
against the appellant’s
alleged innocent question. It was put to him that his evidence to the
effect that such innocent and
polite words chaotically ruined the
meeting, was false. He evaded dealing with the true reason or
insinuation relating to the chaos
which abruptly brought an end to
the meeting. Instead he concentrated on the reason for the subsequent
closure of the school. In
my view, the sudden reaction of the
respondent was naturally consistent with that of a humiliated person.
[22] Objectively
considered, it is unthinkable to even suggest that such words could
have had such a disruptive impact on the proceedings
at the meeting.
The most probable reason for the disruption is that the appellant
must have uttered some belittling, nasty and
abusive words so
offensive to the respondent’s dignity and slanderous to his
reputation that he felt he could not carry on
with the meeting. I
have painstakingly considered the appellant’s version, but I
could find no sound and probable explanation
for the unexpected
closing of the meeting and the respondent’s spontaneous remark
that he was not going to let the matter
end there. We now know what
he meant by that.
[23] The court
a quo
rejected the appellant’s version. It was not at all
impressed with the strange and unorthodox manner in which his case
was
pleaded. About this aspect Mr. Benade, counsel for the
respondent, had this to say:
“
In die
Verweerskrif word ontken dat die woorde gebesig is, maar in die
alternatief word noodweer en noodtoestand geopper.
Dié wyse van pleit stel eintlik
‘n tipe erkenning daar. Want dit is reëlreg teenstrydig.
Die Appellant kon dit
nie glad nooit gesê het, maar
alternatiewelik dit wel gesê het, maar onder
noodweer/noodtoestand nie.
Die wyse van pleit ondergrawe in
essensie die geloofwaardigheid van die gepoogde ontkenning.”
[24] About the
appellant’s plea the magistrate commented as follows:
“
Sy
verweerskrif strook ook hoegenaamd nie met die verweerder se lyn van
kruisverhoor aan die eiser nie.”
The critique was valid.
The appellant’s plea was not a model of elegant draftsmanship.
That was the first thing.
[25] In the second place
the court
a quo
was not impressed by some of the suggestions
put to the respondent by the appellant’s attorney during the
course of cross-examination.
“
Ter aanvang
van die kruisverhoor is aan hom gestel dat die verweerder ontken dat
hy die woorde geuiter het, maar net daarna was
die hele verloop van
die ondervraging en stellings dat die gewraakte woorde teenoor die
Departement bedoel was en nie teenoor die
eiser nie, dat die eiser
alles te persoonlik opneem – hy was die verteenwoordiger van
die Departement.
Verdermeer is egter ook aan die eiser
gestel dat dit die gemeenskaplike gevoel van die onderwysers was dat
die eiser vir ene Maloka
in sy kwaad kom steek het.”
These comments are also
fair and correct.
[26] In the third place
the court
a quo
was
not impressed by the testimony of the appellant himself.
“
En dan kom
getuig die verweerder lynreg hierteen dat hy nie sterk oor die saak
gevoel het nie en dat hy hoegenaamd geen van die
gewraakte woorde
geuiter het nie – selfs nie eers teen die Departement nie.”
No critique can be
levelled against the magistrate. The observations he made about the
appellant were consistent with the evidence
led.
[27] In evaluating the
evidence, and this is the fourth aspect of the critique, the trial
court made the following comment about
the appellant:
“
Dit is nie
regtig duidelik wat die verweerder se saak is nie.”
That accurately summed it
all up. The court
a quo
then
implicitly found, on a balance of probabilities, that the version of
the appellant was untrue. On the appellant’s version,
the issue
was, in my view, correctly decided against him. On appeal, I cannot
disturb such a finding. Therefore, the appellant’s
contention
that he uttered the innocent words, he claimed to have uttered,
cannot be upheld on appeal.
[28] The following
exchange took place between the respondent and his attorney, Mr.
Swanepoel, during the course of direct examination:
“
Hoekom voel
u hy het nie reggemaak nie, wat het mnr Dlamini gedoen wat u voel nie
reg is nie? --- Tydens die voorlê van die
vergadering en ek is
so besig om die onderwyser te praat, dit is toe dat mnr Dlamini gesê
het ek is daar sodat hulle met
my korrupsie moet nou kom saamstem
sodat ons broer kan nou aangestel word, ek en mnr Phillip.”
[29] The respondent
testified that such utterances were untrue. However, he reckoned that
the other persons present at the meeting
heard and accepted the
words. I understood him to mean that they too regarded him as a
corrupt official and that he got what he
deserved from the unionist,
the appellant. The argument that such remarks, if they were at all
ever uttered, were directed at the
department and not the respondent,
was ridiculous, to put it mildly. It is simply absurd to suggest that
a department, an unnatural
person, could have a brother or that such
a juristic person could be labelled as corrupt. Any contention along
those lines was
simply absurd and unpersuasive.
[30] The aforesaid words
were originally uttered in Sesotho. The gist of the statement was
that the appointment of Mr. Philip Maloka,
as the principal, was not
done on merits, but that the selection process was unfairly
manipulated by corrupt practices and that
the respondent was there to
sell his corruption to the teachers so that they (the respondent and
his corrupt colleagues) could
have their brother, Mr. Maloka,
permanently accepted as the principal. It must be kept in mind that
Mr. Maloka had already been
appointed and that there was a grievance
still pending against his appointment. The unwanted gentleman, Mr.
Maloka, and the respondent
had a common friend, a certain Mr.
Khambule. He was also a school developer and the respondent’s
predecessor at the school
in question.
[31] The trial court
implicitly accepted the version of the respondent, that those were
the true words which the appellant had uttered
at the meeting; that
those words were defamatory and contumelious; that the defendant
uttered such words concerning the plaintiff
and that the words
impaired the plaintiff’s reputation as well as his dignity.
[32] Mr. Pienaar
submitted that the court
a quo
erred in making such findings.
The thrust of his contention was that, as he argued, because the
court
a quo
made no credibility findings, the issue as to
precisely what the defendant said, should have been resolved by
having regard to
the probabilities and improbabilities inherent in
the two irreconcilable versions. On the strength of that argument,
counsel then
submitted:
“
7.4 Dit word
met eerbied aan die hand gedoen dat, uit die omringende
waarskynlikhede dit duidelik daarop dui dat die appellant nie
die
woorde geuiter het nie, en wel op grond van die volgende:
7.4.1 beide die appellant en die
respondent getuig dat die respondent nie betrokke was in die aanstel
of voer van onderhoude met
betrekking tot die aanstel van die hoof,
wat tot die grief aanleiding gegee het nie.
7.4.2 die respondent se besoek aan die
skool was uitsluitlik na aanleiding van die onderwysers se grief ten
aansien van die aanstelling
van die skoolhoof.
7.4.3 daar was dus geen rede waarom
die appellant enige korrupsie sou toedig aan die respondent se
optrede, in besonder met betrekking
tot die aanstelling van die hoof,
alwaar die respondent nie daarby betrokke was nie.”
[33] I
do not, with respect, agree with the submission. It is indeed so that
in evaluating the evidence the court is required to
make findings as
regards the credibility and the reliability of witnesses and to take
into account the probabilities and improbabilities
inherent in the
case as well. Where the scale is evenly poised, then the
probabilities must prevail.
STELLENBOSCH FARMERS' WINERY
GROUP LTD AND ANOTHER v MARTELL ET CIE A
ND
OTHERS
2003 (1) SA 11
(SCA) on p.
14 and 15 par. [5]
[34]
Although the court
a quo
did
not expressly made findings as to whose testimony it accepted as
credible and reliable and whose testimony it rejected as incredible
and unreliable evidence, its incisive critique of the appellant, on
the one hand, quite clearly showed that it was not impressed
by the
him as a witness. On the other hand, it levelled no critique at the
respondent. It follows therefore, as a matter of logic,
that the
court
a quo
was
implicitly satisfied that the evidence given by the respondent was
credible and reliable. However, the same could not be said
about the
appellant.
[35] Between the
appellant’s version and the prevailing circumstances, there was
no connective force. Between the respondent’s
version and the
prevailing circumstances, however, there was a connective tissue. It
was that natural force which, in a compelling
sort of way, moved me
to prefer the version of the respondent to that of the appellant.
In my view, this is not
the case where the scale was evenly balanced as far as the weight on
aspects of credibility and reliability
was concerned. On the
contrary, the scale was clearly tipped in favour of the respondent on
those aspects.
[36] I deem it necessary
to explore the probabilities and improbabilities a little deeper.
Counsel was at pains to contend that
the version of the appellant was
more probable than that of the respondent. The basis of the
contention was that it was highly
improbable that the appellant could
have called the respondent a corrupt official, because the respondent
was not involved in the
appointment of the principal. The contention
failed to persuade me. The appellant did not plead that since he was
aware that the
respondent did not have anything to do with the
appointment of the unwanted principal; he had no reason to humiliate
him, as alleged.
It must be borne in mind that at the trial it was
suggested to the respondent that, although he was not involved, he
indirectly
influenced the decision to have the principal appointed as
a show of loyalty to his friend, Mr. Khambule.
[37] On three or so
occasions it was sarcastically insinuated that the “department”
did not care about the grievance
of the teachers. One can safely read
the “respondent” for the word department.
“
..... ek
stel net belang in Maloka, my vriend wie ek aangestel het.”
So said the appellant’s
attorney to the respondent.
Now, the pronoun “ek”
in this quotation was, according to the appellant’s trial
attorney, supposed to mean the
department and not the plaintiff. I
have already mentioned that such a suggestion was fallacious.
[38] The following
suggestion was like a rising tide in the ocean against the
respondent.
“
..... maar
jy luister nie na my griewe nie, wat sê u?"
So continued the
appellant’s attorney accusatively. The pronouns “jy”
and “u” were connected. They
referred to the respondent
personally.
The next suggestion was
highly incriminating. It rocket and shattered the very foundation of
the appellant’s version or reliance
on probabilities.
“
MNR
KRUGER:
Soos die hof behaag.
My
instruksies is meneer dat jy indirek ‘n rol gespeel het by die
finale aanstelling van Maloka deur middel van Khambule.
”
The emphasis is mine.
[39] The aforegoing
suggestions were forcefully put to the respondent on behalf of the
appellant. It is trite that in the process
of assessing and analysing
evidence in search of the probable truth, a court is entitled to take
into account the admissions or
denials contained in the suggestions
put to witnesses during the course of the presentation of the
opposing versions.
S v W
1963
(3) SA 516
(AD) at 523 D – E;
S v GOUWS
1968 (4) SA 354
(GWPA) at 357 H;
S v MJOLI
1981 (3) SA 1233
(A) at 1248 A;
ZUNGU v MINISTER OF
SAFETY & SECURITY
2003 (4) SA 87
(D) at 93 A
The appellant cannot now
be heard to say the respondent was not involved in the appointment of
the principal.
[40] All these
suggestions and more, strongly tend to fortify the contention of Mr.
Benade that, the appellant had the motive to
belittle the respondent,
because he believed the respondent had had a hand in the official
corruption, which underpinned the appointment
of his friend, the
unwanted principal, albeit it indirectly through Mr. Khambule. The
appellant desperately and evasively tried
to distance himself from
the suggestions of his attorney when it dawned upon him what adverse
impact his admission of such suggestions
was going to have. Where
else could the appellant’s attorney have got all that if not
from the appellant himself?
[41] The appellant
adopted a very ambivalence stance during the trial. He stated that he
was not really concerned about the appointment
of Mr. Maloka as the
principal of the school. On the contrary it was suggested to the
respondent that the school teachers were
“gatvol” because
their grievance was not receiving urgent and meaningful attention. It
must be borne in mind that the
appellant was a trade unionist whose
responsibility it was to take up the grievances of the members of his
trade union with the
department. It must also be remembered that it
was the responsibility of the respondent to bring such grievance to
the attention
of the department. Whenever a disagreement arose
between the school teaching personnel and the department, the union
representative
and the department representative could be expected to
be on a collision course.
[42] It was suggested
that the teachers under the stewardship or leadership of the
appellant, were frustrated and angry at the meeting.
The respondent
was also told that if the appellant had said the words, the
respondent alleged he said, he would not have been a
voice in the
wilderness, but that he would have expressed the general sentiments
of his frustrated, angry and “gatvol”
followers. An
injurious and untrue statement does not become true and uninjurious
because many other persons share the same sentiments
as the one who
expressed or publicized such an unfounded and invasive statement.
[43] It was also put to
the respondent that after the appellant had spoken, his angry
followers reacted as a unit.
“
..... hulle
het soos een man opgestaan en uitgestap by die vergadering nadat hy
daardie woord gesê het....”
From this it can be
legitimately inferred that the angry teachers, in a show of
solidarity with their likewise angry spokesperson,
left the meeting.
His anger was their anger.
[44] Those suggestions
were consistent and reconcilable with the angry mood on the part of
the teachers which was prevailing at
the meeting. The apparent anger
of the teachers and the angry note on which the meeting abruptly
ended considered against the backdrop
of the defiant letter from the
same teachers to the respondent the day before, all strongly militate
against the appellant’s
claim or denial that he was not
frustrated or angry or that he did not have strong views about the
appointment of the principal.
[45] Certainly his denial
was in sharp contrast to the suggestions which his attorney had
earlier put to the plaintiff.
Notwithstanding his
denial, the evidence as a whole shows that the appellant was in the
forefront of the turmoil at the school particularly
the events at the
meeting.
[46] He was the shop
steward, the floor representative of the trade union, SADTU, and the
recognised spokesperson of the agitated
and frustrated teachers who
confronted the school developer, the respondent, at the meeting.
There were about 20 persons at the
meeting, the majority of whom were
the angry teachers, the adherents of the appellant. On the previous
day they had notified the
respondent in no uncertain terms about
their rebellion against the principal. The urgent meeting which the
respondent convened
was precisely prompted by that protest letter –
exhibit “A”. The appellant had the last say at the
meeting. His
final remarks brought the proceedings to a sudden end.
There are overwhelming probabilities, which forcefully indicate that
the
appellant did make the remarks complained of concerning the
respondent.
[47] In my view, the
appellant had a clear motive to humiliate, degrade and insult the
respondent. He regarded the respondent as
a friend of the principal.
He believed the respondent and his equally corrupt colleague(s) had
bent the rule and cut corners to
have his or their undeserving friend
appointed at the expense of some more deserving and meritorious
teachers. His contention that
it was improbable for him to have
uttered such defamatory and contumelious words, because he knew the
respondent was not involved
in the appointment of the principal,
failed to impress me in the same way as it failed to impress the
trial magistrate.
[48] Mr. Benade correctly
made the submission that:
“
3.7 In die
lig van voormelde deurmekaarspul en konkoksie ten opsigte van die
Appellant se weergawe, kan die Landdros nie gekritiseer
word omdat hy
die Appellant se weergawe (ontkenning) verwerp het, en bevind het dat
Appellant wel die woorde geuiter het.”
There is substance in the
submission.
[49] In the
circumstances, I have come to the conclusion, and it is a conclusion
grounded on my firm conviction, that the respondent
has, on a balance
of probabilities, discharged the onus of establishing:
that the unwanted
principal was not his friend;
that he did not play a
role in his appointment as the principal;
that he was not guilty
of any proven act of corruption;
that the appellant
uttered the words complained of;
that the appellant
uttered the words concerning the respondent;
that the words so
uttered, were defamatory and contumelious;
that the appellant
uttered such words
cum animo iniuriandiI
; and
that the respondent’s
name and dignity were thereby impaired.
[50] For the reasons
advanced herein, I am not persuaded that the court
a
quo
committed any appealable misdirection,
which warrants any appellate interference with the judgment below. In
the absence of any
material misdirection, I would, therefore, uphold
the verdict on the merits.
[51] I turn now to the
quantum dimension of the appeal. Mr. Pienaar submitted that the court
a quo
erred in
awarding damages in the amount of R20 000,00 in respect of the
fama
component of the claim in addition to an award of R20
000,00 in respect of the
dignitas
component thereof. However, Mr. Benade submitted that
the court below did not err in allocating two separate awards of R20
000,00
each in respect of the
fama
,
on the one hand, and the
dignitas
,
on the other hand.
[52] Among others, the
trial court found that:
“
Die eiser
belaster
is en sy
dignitas
aangetas is.”
I do not agree with Mr.
Pienaar’s submission. The Afrikaans word “belaster”,
as used by the trial magistrate,
is defined as follows in English:
“
belaster –
slander, defame, calumniate, libel, traduce, malign
belastering – slandering,
defamation”
See
Tweetalige
Woordeboek
, Bosman Van der Merwe Hiermstra,
1984 Edition, p. 49.
[53] The
New
Shorter Oxford English Dictionary
, Vol 1,
Lesley Brown 1983 Edition on p. 615 defines the verb “to
defame” as:
“
defame/
diffamare
spread about as an evil report [
fama
fame n.]
Bring dishonour on; shame, disgrace.
Attack the good reputation of; speak
ill of; slander, libel.
Cause to be suspected of an offence.”
[54] In my view, the
finding of the trial court boiled down to the same thing as saying
that the plaintiff’s
fama
, in other words, reputation,
was impaired and that his
dignitas
, in other words, dignity,
was also inpaired.
[55] As regards the
fama
component of the claim, it must be borne in mind that the appellant
accused the respondent of corruption. In common law and in
statutory
law corruption is a crime and has always been a crime. The underlying
element of such an offence is that it is a misconduct
or a misdeed
which negatively affects the public interest, be that of the State or
the community. It is frowned upon as a disgraceful
conduct which
destroys the very core of the public morality. See Gardner and
Lansdowne,
South African Criminal Law and Procedure
, Vol 1,
1946 5
th
Edition, p. 2 & 8.
[56] No doubt labelling a
person as corrupt in the presence of and within the hearing of the
thirds, is defamatory. The effect of
the word is that it degrades the
social esteem of the victim in which he is held in the community. It
undermines a person’s
reputation, in other words, good name.
There were approximately 20 persons, most of whom were teachers, the
respondent’s
subordinates, when the appellant used such a
defamatory word concerning the respondent. Most of them apparently
believed that the
accusation was true. On a balance of probability,
it was not shown to be true.
[57] I have earlier
profiled the respondent and I deem it unnecessary to repeat myself.
What is important though is that he was
a fairly senior government
official with authority not only over the teachers before whom he was
humiliated and ridiculed, but
over the appellant as well. The
appellant was an instigator of the turmoil and turbulence which
rendered the school dysfunctional
and ungovernable. Corruption is
becoming cancerous and malignant evil of greed in our society. It has
to be eradicated to stop
the decay of the societal moral fibre.
Notwithstanding that, fighting corruption must be done in a civilised
and responsible way.
In that regard, respect for authority is
critical. The appellant dismally failed to demonstrate that in
dealing with the grievance
they thought they had. The disruptive
impact of his action was disturbingly deplorable.
[58] Mr. Pienaar’s
final submission was that the awards were disproportionate to the
civil wrong committed. However, Mr. Benade
disagreed. His final
submission was that the awards were not exorbitant, but
conservatively nominal.
[59]
The basic principle, as regards the quantum dimension of the case, is
that a superior court with appellate jurisdiction has
limited power
to interfere, on appeal, with an award made by a trial court.
MOGALE
AND OTHERS v SEIMA
2008 (5) SA 637
(SCA) at 640 G
[60] I have already
mentioned the factors which, though not specifically enumerated by
the trial court, have to be taken into account
in quantifying the
respondent’s damages. At the risk of repeating myself, I want
to stress the effect of the accusation.
The respondent was portrayed
as a morally depraved person open to dishonest practices. The
accusation went much further than that.
The respondent was not only
branded as corrupt official, but he was accused of something worse
than that. He was confronted with
a grave accusation that he had come
to the school to manipulate the teachers to accept his corrupt
decision, so he and his corrupt
friend, the principal, could continue
with their further corrupt appointments of their brothers. The word
brother in this context
is scornfully used to mean their cronies. The
insinuation was that the respondent was not developing and promoting
the interests
of the school, as he should, but those of his friends.
Such a person was obviously not a fit and proper person to hold a
public
office of a school management developer.
[61] Levelled as they
were, by a junior against his senior within the hearing of many other
subordinates, the accusations were very
grave indeed. The respondent
was bitterly humiliated by such defamatory and contumelious
accusations. He was so hurt, he instantly
left the meeting before any
constructive conclusion could be reached. From that moment things
just got worse at the school. The
rest, as they say, is history.
[62] In the
circumstances, such as these, where the authority of the respondent
was so flagrantly undermined and his character so
viciously
assassinated, I am of the firm view that the first award of R20
000,00 in respect of the defamatory invasion (impairment
of one’s
reputation) and the second award of R20 000,00 in respect of the
contumelious invasion (impairment of one’s
dignity) amounted to
an equitable compensation and not at all exorbitant or
disproportionate to the wrong committed and the profile
of the
respondent. I can find no sound reason to justify any interference
with the quantum on appeal. If we were to do otherwise,
our decision
would not be compatible with the proper exercise of judicial
discretion. Therefore I am inclined to dismiss the second
leg of the
appeal as well.
[63] Accordingly, I make
the following order:
63.1
The appeal fails
in toto
.
63.2 The judgment is
upheld in respect of the merits and the quantum.
63.3 The appellant is
directed to pay the costs of the respondent relating to the appeal.
______________
M.H. RAMPAI, J
I
concur.
____________
C. VAN ZYL, J
On behalf of appellant:
Adv. C.D. Pienaar Instructed by:
Quinton Grimbeek
Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. H.J. Benade
Instructed by:
Naudes
BLOEMFONTEIN
/sp