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1984
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[1984] ZASCA 162
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Joubert and Others v Venter (159/84) [1984] ZASCA 162; [1985] 1 All SA 443 (A) (30 November 1984)
159/34
PHILLIPPUS PETRUS JOUBERT
1st Appellant
CAROLINA TREKKERS & IMPLEMENTS
(EDMS BPK
2nd Appellant
EMATA MOTORS (PTY) LTD
3rd Appellant
RAOUL KARL RICHARD ZEISS
4th Appellant
JACOBUS JOHANNES UYS
5th Appellant
LIONEL LAUBSCHBER
6th Appellant
and
GE
RT HENDRIK JACOBUS
VENTER
Respondent
IN THE SUPREME COURT OF"SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PH
ILLIPPUS PETRUS JOUBERT
1ST
APPELLANT
CARO
L
INA TREKKE
R
S &
IMPLEMENTS
(
E
DMS) BPK
2ND APPELLANT
EMATA M
O
TORS
(PTY) LT
D 3RD APPELLANT
RAOUL KARL RICHARD ZEISS
4TH
APPELLANT
JACOBUS JOHANNES UYS
5TH APPELLANT
LIONEL
LAUBSCHER
6TH APPELLANT
and
GERT HENDRIK JACOBUS VENTER
RESPONDENT
Coram
: KOTZÉ, HOEXTER, BOTHA,HEFER, JJ A et VIVIER, A J A
Heard
: 28 August 1984
Delivered
: 30 November 1984
J U D G M E N T KOTZÉ, J A
:
This appeal by the six appellants raises the
question /2
-2-question of the immunity conferred upon witnesses (who are
also parties to an action) advocates and attorneys with reference to
defamatory
statements made in the course of judicial proceedings. In a defamation action
tried by VAN REENEN, J in the Transvaal
Provincial Division a joint and several
award of damages in the sum of R5 000,00 with costs was made in favour of the
respondent
against the six appellants. I shall, for reasons of convenience,
refer to the respondent as Venter; and to the appellants as Joubert,
Carolina,
Emata, Zeiss, Uys and Laubscher respectively. Collectively I shall refer to the
appellants as the defendants.
It is necessary, at the outset, to provide a
chronology /3
-3-chronology of certain legal proceedings and salient
features thereof which form an essential part of the background to the appeal.
(All references to such proceedings are, except where otherwise stated,
references to proceedings in the Transvaal Provincial Division).
On the 17th May
1976 Joubert urgently applied for and obtained ( per ESSELEN, A J ) provisional
winding-up orders against Carolina
and Emata of which companies he was a
director and majority shareholder. Three days later the Master of the Supreme
Court appointed
Venter, a director of Maurice Schwartz, Venter and Associates
Ltd. and, as at that date, a professional liquidator for a period in
excess of
twenty years, as provisional liquidator of Carolina and Emata. On the 13th
August 1976
CURLEWIS /4
-4-CURLEWIS, J set aside the provisional winding-up orders on
application by Joubert. In consequence the appointments of Venter lapsed.
On the
22nd March 1977 MELAMET, J, on application of Joubert, ordered the calling of
meetings in terms of sec. 311(1) of the Companies
Act, 1973 of preferent and
concurrent creditors of Carolina and Emata by one Kotze to consider offers of
compromise proposed by Joubert.
ELOFF, J sanctioned the said offers on the 9th
August 1977. The said offers nominated Kotze as "receiver" ("ontvanger") on
behalf
of the creditors. On the 27th January 1978 HUMAN, J issued rules
nisi
on application by Kotze (hereinafter called the Kotze applications)
calling upon interested persons and upon Carolina Emata, all
creditors and
Joubert (the last four being specially referred to in the rule) to show cause
why Kotze should not be
released /5
-5-released from his offices as receiver and why M J F
Potgieter should not be appointed in his stead. A strange and totally
unexplained
feature of the Kotze applications was a purported offer of
compromise annexed thereto which nominated Kotze and Venter as joint receivers.
No such offer of compromise nominating Kotze and Venter as joint receivers had
in truth ever been made, and in what follows I shall
refer to the said document
as "the false offer of compromise". The Master of the Supreme Court (upon whom
copies of the
rules were served) filed a report dated 17th February 1978
in which he
objected to Potgieter's appointment and, being
under the mistaken impression
(induced by the false offer
of compromise) that Kotze and Venter had been
appointed
joint receivers, commented that he could not say whether
all the creditors
would support Venter as sole receiver
and recommended that
"Venter /6
-6-
"Venter gelas word om 'n byeenkoms van al die
betrokke skuldeisers te belê.... vir die verkiesing van 'n vervangende
ontvanger
en om verslag aan die Agbare Hof te doen sodat die aanstelling
bekragtig kan word. Indien nodig verklaar ek my bereid om as voor
-sitter op te
tree.
During March 1978 Venter filed affidavits in the Kotze applications (served
only on the Master and Kotze) which included the following
paragraphs:
"3.0. I have read all the papers filed in the above matter including, in
particular, the Master's Report and insofar as the
above /7
-7-
above Honourable Court sees fit to appoint me as Receiver I willingly accept
such appointment subject to such terms and.conditions
as the Honourable Court
may direct."
5.0. I became aware for the first time on the 3rd March, 1978, that I had
been
oppointed as a joint Receiver with certain Gerhardus Dawid Kotze in the above
matter pursuant to an Order of this Honourable Court.
At no stage whatever was I
requested so to act as Receiver nor did I ever consent either to my nomination
as Receiver or to my appointment
as such.
6.0. My first intimation regarding my involvement in this matter was on the
3rd March, 1978 when I called upon the Master of this
Honourable Court at his
request, when the papers filed in this matter were exhibited to me.
7.0. I would, however, respectfully point
out /8
-8-
out that I had been appointed Provisional
Liquidator of CAROLINA TREKKERS EN IMPLEMENTS (EDMS) BEPERK by the Master of
this Honourable
Court on the 29th May, 1976 which appointment terminated when
that Company was discharged from Provisional Winding-up Order by this
Honourable
Court.
7.2. I therefore respectfully submit that I am familiar to a degree with the
affairs of the Respondent."
Venter, it should be noted, failed to disclose in these affidavits that
Carolina had in the meantime instituted action against him
inter alia
for
payment of an amount in excess of R16 400,00 which had allegedly been
misappropriated from the company whilst under provisional
winding-up and that
he, therefore, had a direct interest in the matter. How this action came to be
instituted will emerge later.
On /9
-9-
On the 11th April 1978 McCREATH, J having heard
counsel for Kotze and Venter (wrongly referred to in the order as counsel for
the
creditors)
inter alia
(a) extended the rules
nisi
issued
pursuant to the Kotze applications to the 23rd May 1978; (b) discharged
Potgieters's provisional appointments; (c) ordered
Venter to convene meetings of
all known creditors of Carolina and Emata for the purpose of electing a
substitute receiver ("vervangende
ontvanger") and to report the outcome of the
meetings on the 23rd May 1978 "sodat die aanstelling bekragtig kan word."
McCREATH,
J furthermore ordered service of the orders on Carolina, Emata, Kotze,
Joubert and Potgieter. The lastmentioned orders led to the
intervention of
Joubert, Carolina and
Emata /10
-10-Emata in the Kotze applications. The said intervention took
the form of notices of motion served on the 18th May 1978 in which
was sought
(i) the setting aside of paragraph (c) of the order of McCREATH, J ; (ii)
alternatively to (i) that Venter's appointment
as receiver be not confirmed (in
the event of such an appointment having been made); (iii) that, in the event of
Venter having been
elected as substitute receiver at the meetings of creditors,
such election be declared null and void; (iv) that Abram Jacobus Meintjies
be
appointed receiver and that Venter be ordered forthwith to hand over all books,
records and documents which he may have received
to Meintjies. The defamatory
passages complained of by Venter are contained in the supporting and replying
affidavits
of /ll
-11-
of Joubert respectively dated 18th May and 29th
June 1978. These passages will be quoted later.
On the 2nd August 1978 GROSSKOPF, A J (a) confirmed that portion of the rule
of 27th January confirming the discharge of Kotze as
receiver; (b) appointed
Meintjies as receiver in the Carolina and Emata compromises and (c) reserved
judgment in regard to a prayer
for costs against the Master. On the 26th March
1979, GROSSKOPF, A J delivered his reserved judgment and awarded costs against
the
Master. On the 5th June 1981, this Court in a 3-2 majority judgment
(reported in 1981(4) S A 211) reversed the said order of costs.
Carolina's
action referred to above, was heard by ELOFF, J on 16th April 1980. Counsel
for /12
-12-for Carolina abandoned the claim for payment of the sum of R16
400,00 odd. On the 16th April 1980 ELOFF, J decreed absolution
from the instance
with costs. Carolina appealed successfully to this Court. So much for the
chronology of the lawsuits which forms
the background to the litigation which
has culminated in the present appeal.
The defamatory passage in Joubert's supporting affidavit reads as
follows:
"(a) Applikante maak ten sterkste beswaar teen die aanstelling van GERT
HENDRIK JACOBUS VENTER (die tweede respondent) as ontvanger
in die bestaande
kompromie, omrede applikante beweer dat gemelde Venter terwyl hy provisionals
likwidateur van die tweede applikant
was, gelde en bates van die tweede
applikant verduister en ontvreem het, en voorts die bepalinge van atikel
394(1)(a) van die gemelde
Maatskappywct oortree het, deurdat hy 'n
totale /13
-13-
totale bedrag van R16 430,48 wat deur hom tydens sy provisionals
likwidateurskap ten behoewe van die tweede applikant gein is, versuim
het om dit
in 'n bank-rekening te deponeer of enigsins reken-skap te lewer vir vermelde
bedrag, en inderdaad vermelde bedrag gehou
het. (b) Vermelde eise vir betaling
van die bedrag van R16 430,48 spruit voort
uit die feit dat tweede respondent sekere gelde wat op die vermelde bedrag te
staan kom, uit die besit van Stoffberg Motors - synde
'n besigheid van tweede
applikant -ontvreem het en dit gehou het, sonder om dit volgens die bepalings
van artikel 394(1)(a) van die
vermelde Maatskappy-wet, in 'n bankrekening in te
betaal nie. Gemelde ontvreemding het geskied deur middel van ene SWERSKY, wat
ten
alle tersaaklike tye tweede respondent se behoorlike gemagtigde
verteenwoordiger was, en volledige besonderhede van so-danige ontvreemding
verskyn in die be-edigde verklaring van ANNA CATHARINA PITOUT, hierby aangeheg,
gemerk 'C 10'.
Tweede /14
-14-
Tweede respondent se versuim om die vermelde bedrag van R16 430,48 of enige
deel daarvan, in 'n bankrekening wat hy vir tweede applikant
terwyl dit in
voorlopige likwidasie was, geopen het, te deponeer, blyk uit die tersaaklike
bankstaat, 'n afskrif waarvan hierby aangeheg
word gemerk 'C 11'. Uit 'n
ontleding van gemelde bankstaat is dit duidelik dat geeneen van die bedrae soos
vermeld deur Mev. Pitout
in haar eedsverklaring - aanhangsel 'C 10' hiertoe in
die vermelde bankrekening gedeponeer is nie, en Lot die beste van my wete is
die
vermelde bankrekening die enigste bankrekening wat deur tweede respondent terwyl
tweede applikant' in voorlopige likwidasie was,
geopen is. Tweede respondent het
derhalwe tenminste 'n ernstige oortreding van artikel 394(1)(a) van die vermelde
Maatskappywet begaan,
maar ek doen met eerbied aan die hand dat die
aangeleentheid verder gaan en dat tweede respondent deur middel van vermelde
SWERSKY,
inderdaad 'n Fraudulosa
Contrectatio /15
-15-
Contrectatio van die gemelde bedrag van
R16 430, 48 gepleeg net.
(c) Uit hierdie paragrawe blyk dit dat tweede
respondent nog in staat is om te ontken dat hy die bedrae soos uiteengesit in
die be-edigde verklaring van Mev.'Pitout - aan-hangsel
'C 10' hiertoe - pntvang
net, nog in staat is om te verduidelik wat met gemelde bedrae gebeur het, wat in
my respekvolle submissie
'n skandelike
toestand is."
The following is the relevant passage from the replying affidavit:
"Toe die aansoek vir 'CAROLINA' se likwidasit geloods is, het ek geen
gegewens hoegenaamd by my gehad nie, en moes ek skat wat 'CAROLINA'
se bates
was. Die klem van die aansoek' het gelê op kommersiele insolvensie, welke
kommersiele insolvensie inderdaad bestaan
het. In die verband verwys ek u na die
be-edigde verklaring van prokureur UYS, aanhangsel 'C 19' hiertoe, en
vereen-selwig my met
die bewerings daarin bevat. Op bladsy ... erken tweede
respondent dat hy reeds in Oktober 1977
daarvan ../16
-16-
daarvan bewus was dat daar ernstige (bewerings) van wangedrag teen horn
ge-maak word. Voorts is die dagvaarding in Saak Nommer I.
1725/78 op 9 Maart
1978 op tweede respondent persoonlik bestel, soos sal blyk uit die relaas van
bestel-ling uitgereik deur die Assistant
Adjunk-Balju van Johannesburg, hierby
aangeheg gemerk 'C 35'. Uit hierdie dagvaarding blyk duidelik dat die.bewering
gemaak word
dat tweede respondent of tenminste sy behoorlike gemagtigde agent
SWERSKY, vir wie se dade tweede respondent aan-spreeklik is, 'n
bedrag van
ongeveer R16 000,00 uit die besigheid van STOFF-BERG MOTORS ontvreem net, wat
maar net 'n meer hoflike woord vir gesteel'
is. 'n Man wat vir meer as 20 jaar
vertrouens-posisies aanneem, moet weet dat op die oomblik toe so 'n bewering
teen horn gemaak
word, hetsy met hetsy sonder regverdig-ing, dit vir horn uiters
onbehoorlik sou wees om die aanstelling as ontvanger in die twee
kompromiee te
soek, maar nieteenstaande hierdie feit net tweede
respondent /17
-17-respondent aktief hierdie aanstelling gesoek, soos hierintevore meer
volledig uiteengesit, en meer besondelik in sy tersaaklike
beedigde verklaring,
geteken en beedig op 16 Maart 1978, dit wil se nadat die vermelde dagvaardiging
wat die voormelde bewerings
bevat, op hom persoonlik bestel is. Ek wil met
eer-bied aan die hand doen dat hierdie optrede van tweede respondent terwyl hy
bewus
was van die ernstige aantygings teen hom, hetsy reg, hetsy verkeerd, op
sigself onbehoorlik is, maar besonder-lik omrede hy die feit
dat daar bewerings
teen hom gemaak is, vir die Agbare Hof verberg net, terwyl hy die aanstelling
gesoek net, dat dit op sigself 'n
koste-bevel op prokureur-en klient skaal teen
hom regverdig."
(References in the aforesaid passages to (a) "applikante", (b) "tweede
applikant", (c) "tweede respondent" and (d) to "bankstaat"
and "bankrekening"
are to (a) Joubert, Carolina
and /18
-18-
and Emata, (b) Carolina, (c) Venter and (d) to a bank-statement or
bank account of Carolina (in liquidation) at the Standard Bank,
Carolina
respectively). The defamatory passages were drafted by Zeiss, an advocate
briefed by Laubscher who was the attorney for
Joubert, Carolina and Emata at the
seat of the Court and who, in turn, acted for Uys, their country attorney.
I do not propose to reproduce the copious pleadings filed in the Court
a
quo
. Suffice it to say that it was common cause between all the parties that
the passages in the affidavits complained of are
per se
defamatory of
and
concerning /19
-19-concerning Venter. It was also common cause between
Venter and Joubert, Carolina, Emata, Uys and Laubscher that publication took
place as alleged by Venter viz to Venter's attorneys of record, officials of the
staff of the Registrar, the Master of the Supreme
Court, Kotze, officials of the
Commercial Insurance Co. Ltd. and "newspaper reporters of the principal
newspapers circulating within
the Republic of South Africa,
with /20
-20-with the result that those newspapers made further widespread
publication of the matter complained of as aforementioned, which
further
publication was, or
alternatively
should have been, foreseen by the
Defendants as a probable consequence of their conduct aforesaid." The main issue
raised by the
various pleas is-the question whether the defamatory statements
were published on a privileged occasion in that they were made in
the course of
civil judicial proceedings. It should be noted that Venter delivered no
replication to the plea of privilege; it follows
that it must be taken that
there is a denial that the bounds of privilege were not exceeded. A subsidiary
issue between Venter and
Zeiss is the question whether there was publication to
the insurance company and
the /21
-21-the newspapers and, if so, whether Zeiss was a party thereto
and responsible for or accountable in respect thereof.
As pointed out above the defamatory nature of the matter complained of is not
in issue. Accordingly two presumptions arise upon its
publication: (a) that the
publication was unlawful and (b) that the statements were made an
imo
injuriandi
. See
Suid-Afrikaanse Uitsaaikor-porasie v O'Malley
,
1977(3) S A 394 (A) at 401H- 402A and
May v Udwin
, 1981(1) S A 1 (A) at
10 C-E. It will be convenient, for the present, to assume proof of publication
as against Zeiss. Pleas of privilege
having been raised, the essence of the
enquiry upon which this Court accordingly has to embark at the outset is whether
the defendants
have
established /22
-22-
established these defences and thus the lawfulness of the publication.
(
May v Udwin
,
supra
, at 10 P-G). If so, a further question arises:
whether the provisional protection afforded by the defence is defeated by
affirmative
proof (see
Young v Kemsley and others
,
1940 A D 258
at 277)
by Venter of "malice" in the sense explained by SCHREINER J A in
Basner v
Trigger
,
1946 A D 83
at 95 i e the existence of an improper or indirect
motive. (See also
May v Udwin
,
supra
, at 19 A-B).
Recent decisions of this Court describe the nature of the onus to establish
privilege as a "weerleggingslas" ("the burden of adducing
evidence in
rebuttal"). Cf
O'Malley's case
,
supra
, at 403 B;
Borgin v
De
v
illiers and another
, 1980(3) S A 556 at 571 E-F;
May v
Udwin
, s
upra
,
at /23
-23-
at 10 D-E;
Marais v Richard
, 1981(1) S A 1157 at
1166 H. Earlier decisions of this Court, however, dealt with the defence of
privilege on the footing that the
onus
to be discharged is a full onus of
proof on a preponderance of probability:
Tromp v McDonald
,
1920 AD 1
at 2
i f
("the question ... is whether that defence has been made out");
Mc
Lean v
M
urray
,
1923 A D 406
at 414 ("the
onus
is ... upon
the defendant to prove that they are privileged");
De Waal v Ziervogel
,
1938 A D 112
at 120 ("proving");
Young v
Ke
msley and others
,
supra
, at 277 ("if it is shown that the words were spoken on a privileged
occasion"); Basner v
Trigger
,
supra
, at 97 ("prove");
Nydoo en
andere v Vengtas
, 1965(1) S A 1 (A) at 13 E-F (per RUMPFF, J A , "Slaag
die
verweerder /24
-24-
verweerder daarin om te bewys dat"), at 23 B-C
(per WESSELS, J A "The defendants having failed to discharge the onus of proving
..."),
and particularly the judgment of HOLMES, J A at 20D-22A (see e g at 20 i
f - 21A, "the
onus
of proving the facts and establishing such defence is
on him");
Benson v Robinson & Co. (Pty) Ltd and another
, 1967(1) S A
420 at 432 E-G ("proof ... on a balance of probabilities"). Apparently mindful
of the incompatibility between the approaches
abovementioned. Professor J M
BURCHELL comments as follows (footnote 38 at p 178) in one of the memorial
essays to the late Mr Justice
SCHREINER in
Fiat lustitia
(1983):
"JOUBERT J A "(in May v Udwin)" specifically mentions the evidentiary
burden
or /25
-25-
or 'weerleggingslas', but unfortunately also refers to 'proving' a defence
and 'establishing' lawfulness ... The Appellate Division
in
Mabaso v
Felix
1981(3) S A 865 has recently held that, in a situation of alleged
self-defence, the defendant must normally prove facts substantiating
such
defence on a balance of probabilities. The recent Appellate Division decisions
on defamation ... indicate that the defendant
need only adduce evidence of lack
of unlawfulness or an
imus
in
juriandi
... This is not the
appropriate place to consider whether the attitude of the Appellate Division to
self-defence can be reconciled,
in logic or on grounds of public policy, with
the defamation cases. A consideration of this problem deserves comprehensive
attention
..."
I agree that the problem of reconciliation referred to by Professor Burchell
"deserves comprehensive attention".
I /26
-26-
I am of the view, furthermore, that on the facts of the present case
it is not necessary to attempt to resolve the problem, nor even
to enter upon a
discussion of it. It may not be out of place, however, to point to some aspects
of the problem that will require
attention when the need to resolve it arises.
When the notion of a "weerleggingslas", as opposed to a full
onus
, was
first raised by RUMPFF, J A in
O'Malley's
case
supra
, in relation
to a defence of privilege, it was done
obiter
, without reference to the
earlier decisions of this Court, and without any discussion of the
considerations relevant to the policy
of the law in regard to a choice between
burdening the defendant with a full
onus
or merely a "weerleggingslas".
The subsequent cases merely repeated what had been said in
O'Malley's
case, again
obiter
and
without /27
-27-without discussion of policy considerations. By contrast,
the decision in
Mabaso v Felix
,
supra
, relating to a plea of
self-defence, was founded after full argument upon a full review of
considerations of policy, practice and
fairness
inter partes
. In regard
to a plea of justification (i e absence of unlawfulness) it is difficult to see
why a defendant who has injured a plaintiff's
fama
should be in a better
position than a defendant who has injured a plaintiff's body. There are authors
who have criticised the decision
in
Mabaso v Felix
(see e g Schmidt,
Bewysreg
, 2nd ed at 44-5) and the notion that a defendant who relies on a
defence of privilege is burdened with a full
onus
(see e g Hoffman and
Zeffert,
South African Law of Evidence
, 3rd ed at 389).
However /28
-28-However, in the pursuit of justice practical
considerations may sometimes require the policy of the law to override
considerations
based on an academically orientated view of jurisprudence. If the
latter kind of considerations are to be applied consistently they
can lead to
unacceptable results. Take, for example, the case of a defence, in a defamation
action, of truth in the public interest.
If the defendant adduces evidence of
the truth of the defamatory words which falls short of proving it on a balance
of probabilities,
but is sufficient to leave the issue in balance, and the
criterion of a "weerleggingslas" is applied, the plaintiff must be non-suited.
I
cannot believe that that is the law. In my opinion, therefore, the question of
"weerleggingslas"
versus /29
-29-
versus full
onus
in relation to a plea
of qualified privilege should be regarded as being still an open question in our
law. For the purpose of the
decision in the present case it can and should be
left open, and it can be assumed, for the purposes of this appeal, that the
defendants
bear the burden of a full
onus
.
The present case relates directly to witnesses (including litigants
testifying in their own cause), counsel and attorneys. In
May v Udwin
,
supra
, JOUBERT, J A refers to the privilege which extends to such persons
but, since the learned Judge of Appeal was dealing with the position
of a
magistrate, his remarks are
obiter
in relation to other participants in
legal proceedings. It is accordingly
necessary /30
-30-necessary now to embark upon a brief analysis of the
relevant principles which emerge from the pre-
May v Udwin
authorities in
this regard.
Our law, as will appear, confers a qualified albeit a very real privilege
upon counsel, attorneys, witnesses and litigants in respect
of defamatory
statements during the course of legal proceedings and differs in this respect
from the law of England which extends
an absolute privilege. (
Halsbury
,
fourth edition, vol. 28 pars. 96 and 98). It will be convenien-before turning to
the facts, briefly to discuss the authorities relating
to witnesses and counsel
and thereafter, during the analysis of the facts, to consider the position of
the attorneys in this case
from whom the instructions to counsel emanated.
At /31
-31-At the outset it should be observed that there are a number of
questions relating to various aspects of the privilege of witnesses
and counsel
that have not been settled by any decision of this Court. Many such questions
need not be answered finally for the purposes
of deciding the present appeal.
However, lest there be any misunderstanding as to the effect of this judgment,
it will be necessary
to refer to some of these questions, in order to delineate
precisely the basis upon which this appeal can be decided and to identify
the
questions that are left open for future decision when the need for it should
arise.
No distinction should, in my view, be drawn between a witness testifying
verbally who is not a party to an action and one
who /32
-32-
who is. The latter is as much a witness as the former
and is
"as such ... entitled to the privileges and rights of a witness"
(per BRISTOWE, J in
Goldseller v Kuranda
,
1906 T H 185
at 189).
Voet 47.10.20 is the source of our common law and the decision in
Norden v
Oppenheim
3 Menzies 42
the "foundation of our case law" (cf
Rubel v
Katzenellen
-
bogen
,
1915 C P D 627
at 632) on the subject of
defamatory utterances by witnesses in the course of judicial proceedings. The
relevant portion of the passage
from Voet is to the
effect /33
-33-
effect that if a litigant makes a derogatory
imputation
against a witness of the other side in the course of
judicial
proceedings he ought not to be regarded as having done so
animo
injuriandi but rather with the object of having acted
in self-defence.
Commenting on Voet 47.10.20, Melius
de Villiers (
The Roma
n
and
Roman-Dutch Law of Injuries
)
at p 223 stresses the legal obligation of a
witness to answer
questions and elaborates that if he "answers
truthfully
to the best of his knowledge and belief, no action of
injury
will lie against him, even if it should turn out that
his
statements were incorrect and tended to prejudice the charac
ter of
another." He continues by pointing out, however,
that a witness who wilfully
introduces irrelevant and imper
tinent /34
-34-
tinent defamatory
matter,or knowingly and falsely defames
another,forfeits the protection which
he would otherwise
enjoy;and concludes by declaring that a plaintiff bears
the
burden of establishing the falsity of the evidence and that the witness
swore "to that which he knew to be false".
Norden v Oppenheim
supra
applied Voet 47.10.20. The case of
Preston v Luyt
,
1911 E D
L 298
, contains a wide-ranging review by KOTZÉ, J P of the early
authorities relative to the privilege of advocates, litigants,
judicial officers
and witnesses and proceeds to summarise the legal principles laid down in
N
orden's case
in respect of a witness as follows:
"... if a witness, in the course of a
judicial /35
-35-
judicial inquiry, makes statements injurious to the character and reputation
of others, he will be presumed to have done so innocently,
in the discharge of
his duty, for he is under legal compulsion to give evidence, and to reply to
questions put to him. The
onus
will be on the plaintiff, complaining of
what has been said by the witness, to allege and prove that the answer or
statement by the
witness was false and malicious, not pertinent to the question
put to him, and made without reasonable and probable cause." (At p
310)
Two years earlier, in
MacGregor- v Sayles
,
1909 T S 553
, INNES C J ,
also approved of
Norden's case
, and expressed very much the same view at
p 556:
"According to the authorities, it was necessary under such circumstances to
the success of the plaintiff that he shall satisfy the
court of three
things /36
-36-
things: First, that the witness was actuated by express malice; second, that
the words spoken were false; and third, that the witness
who uttered them had no
reasonable grounds for believing them to be true"... I am satisfied it is the
principle we should follow
in the present case."
The above-quoted statement as to what a plaintiff is required to prove in
order to defeat the privilege is couched in cumulative terms.
In my view that is
not a sound approach in relation to the first requirement mentioned in
MacGregor'
s case, viz that the defendant was actuated by "express
malice". No doubt proof of the other requirements will give rise to an inference
of "malice", in the sense explained in
Basner v Trigger
,
supra
,
but in principle it
would /37
-37-would seem to be possible for a plaintiff to prove malice in
that sense by means of extrinsic evidence without necessarily proving
all or
even any of the other requirements mentioned in the cases. In my view,
therefore, the door should be left open to recognise
the possibility that the
plaintiff may succeed in holding the defendant liable on proof of malice in the
sense stated, Without the
necessity of proving all or any of the other
requirements laid down in the cases. The first requirement should accordingly be
read
disjunctively in relation to the others mentioned.
The second requirement mentioned in
MacGregor's
case, viz proof that
the words spoken were false, is an exceptional one in the law of defamation, but
it follows
naturally /38
-38-
naturally and logically from the very special position in which a witness
testifying in a court of law finds himself, as explained
in the cases. In my
opinion considerations of policy dictate that proof of the falsity of the
statement complained of should be recognised
as one of the minimum requirements
to establish liability on the part of a witness. It is not, however, necessary
to express a final
view upon the point and for present purposes it may be left
open.
In regard to the third requirement mentioned
in
MacGregor's
case, viz proof that the witness had no reasonable grounds
for believing his words to be true, I have no doubt that this is indeed
a
minimum requirement in order to establish liability (i e apart from the
possibility of proving
malice /39
-39-malice as above stated), and that this Court
should hold accordingly. (The adoption of this principle will eventually provide
a sufficient basis for deciding the appeal in respect of Joubert, Carolina and
Emata, on the facts of this case.)
In connection with this requirement a further question can be posed: should
it not be required of a plaintiff, in order to defeat
the witness's privilege,
to
go even further and to satisfy the Court that the witness
in fact did not believe in the truth of what he said? In my view there is
much to be said in favour of a positive answer to this question.
It would be in
accordance with the passage in the work of
Melius de Villiers supra
,
where the learned author states that the plaintiff bears the burden
of /40
-40-of establishing,
inter alia
, that the witness swore "to
that which he knew to be false"; and, as a matter of policy, it would give due
recognition to the importance
of the fact (dealt with in the cases) that the
witness's statement is made under oath. A requirement of this nature would not
place
too heavy a burden on a plaintiff, I consider, because if he proves that
the statement is false and that the witness had no reasonable
grounds for
believing it to be true (which latter is the least that he must prove in any
event), this would call for an answer by
the defendant, failing which the
inference would be justified that the defendant did not believe in the truth of
the statement. If
an absence of belief in the truth of the statement is the true
criterion,
it /41
-41-it would follow that proof of absence of reasonable grounds for
believing it would not
per se
be enough to impose liability upon the
defendant. For present purposes, however, these questions may also be left
open.
In
MacGregor's
case no reference is made to the matter of pertinency
or germaneness, while in
Preston's
case su
pra
it was said that the
onus
is on the plaintiff to prove,
inter alia
, that the statement
of the witness was "not pertinent to the question put to him". However,
this cannot be regarded as an independent requirement for establishing
liability, for if a plaintiff were to prove, for instance,
that the statement
was false and that the defendant knew it to be false, the privilege would be
forfeited
whether /42
-42-
whether or not the statement was a pertinent
answer to the question put. On the other hand, an answer which is wholly
irrelevant to
the question asked may attract liability even if the statement is
true, as is demonstrated by the example given by COCKBURN,- C J
in
Seaman v
Netherclift
2 CPD 53
cited in
Preston's
case,
supra
at
310-311.
In so far as any question of
onus
in relation to relevance can arise
in the case of a witness who testifies orally it will be convenient now to
mention that as will
be shown presently a litigant who deposes to an affidavit
in legal proceedings carries the burden of proving that a defamatory statement
made therein was relevant to an issue in the proceedings. In regard to a witness
who testifies orally
two........./43
-43-two possible approaches concerning the
onus
in
respect of relevance suggest themselves: (a) that the extent of the privilege
ought not to vary in accordance with the procedure
followed or the manner in
which testimony is adduced; (b) it may be contrary to the interests of the due
administration of justice
to whittle away the wide protection afforded in the
cases to a witness giving evidence
viva voce
by requiring him to prove
that his answer was relevant to the question asked; provisional protection ought
to be extended to such
a witness solely on the ground that he was testifying
under oath when he made the statement in issue. Since it is not necessary to
decide the point, however, it also may be left open.
The /44
-44-The view of the law expressed in the cases mentioned above has
been consistently followed in various former colonies and the latter
provincial
and local divisions. (Vide, e g
Lumley v Owen
,
1882 NLR 185
;
Dippenaar
v Hauman
, 1878 Buch 135;
Goldseller v Kuranda
,
supra
;
MacGregor v Sayles
,
supra
at 556;
Rubel v Katzenellenbogen
,
supra,
Van Rensburg v Snyman
,
1927 0 P D 123
;
Rutland v
Jordan
, 1953(3) S A 806 (C) at 814-5). The above cases with the exception of
Lumley v Owen
,
Rubel v Katzenellenbogen
and
Rutland v
Jordan
all deal with or discuss the case of
viva voc
e evidence. The
three excepted cases, like the instant case, are concerned with witnesses who
swore affidavits for use in legal proceedings.
In
Rubel v Katzer
ellenbogen
/45
-45-
ellenbogen
,
supra,
KOTZÉ,
J pointed out at p 633 that a difference may exist between the case of a witness
"who appears under a subpoena and
is compelled to answer questions put to him"
and that of "a party who swears an affidavit containing defamatory matter". The
possible
difference arises by reason of the fact that in the latter case there
can be no question of compulsion. The learned Judge, having
raised the question,
passed it over and did not decide whether the law affords a stronger shield of
protection to the witness who
testifies in court in answer to questions put to
him than to the one who has an opportunity to reflect before submitting an
affidavit
in less tense circumstances The learned Judge nevertheless concluded
(at p 633) that:
"Whatever difference there may be between
the /46
-46-
the two cases supposed, in both the qualified privilege exists. A person who
gives oral testimony on oath as a witness, and one who
gives written testimony
by means of an affidavit, both enjoy a qualified or conditional
privilege."
The privilege of a witness, as KOTZÉ, J P points out in
Preston v
Luyt
,
supra
, at p 310, is a fairly wide one necessary for the due and
proper administration of justice. It was pointed out in
Norden's case
,
supra
, at p 57 that statements by a witness are given
"as pertinent answers to questions which the Court put, or suffered to be
put, to him, and which he was compelled to answer both by
the obligation of his
oath and by the fear of being punished for contempt if he refused to answer
them"
In /47
-47-In regard to a litigant who deposes to an affidavit to be used
in legal proceedings the question must now be considered where
the o
nus
lies in respect of relevance. As has been pointed out, the evidence contained in
such an affidavit is not given under compulsion
and by way of answers to
questions where there is little opportunity for reflection. Moreover, such an
affidavit is not only evidence
as such but also partakes of the nature of a
pleading in which the litigant's case is formulated. If a defamatory statement
is made
therein I do not think that provisional protection should be afforded to
a defendant on the ground merely that the affidavit was
sworn to in the course
of and for the purposes of legal proceedings. It would not hamper
the /48
-48-the administration of justice to require proof from a
defendant that the defamatory statement was relevant and germane to the
issues,
or an issue, in the case, and it would be sound policy to require such proof in
order to establish provisional protection,
in accordance with the rule stated in
general terms in this connection in
Basner v Trigger
,
supra
, and
followed in
Penn v Piddel
, 1954(4) S A 498(C). It is accordingly laid
down that such proof is required from a defendant in such a case in order to
establish
a plea of privilege. Apart from the question of
onus
in respect
of relevance I am of the view that the due and proper administration of justice
requires that to the extent that KOTZÉ,
J left
the /49
-49-
the question unresolved in
Rubel's case
supra
, it should now be resolved by holding that no difference should be
drawn between the extent of the privilege enjoyed by the two classes
of witness.
Such difference as there may be,
might manifest itself at the stage which is
reached after a defendant establishes the existence of the qualified privilege
and the
plaintiff undertakes the
onus
of endeavouring to overcome the
provisional protection which the defendant has achieved. In most cases it will
probably be less burdensome
to prove malice in the sense of an improper or
indirect motive in the case of a witness who had time to reflect on the contents
of
his affidavit than in the case of the witness who is confronted with an oral
question
which /50
-50-
which he has to answer on the spur of the
moment.
To summarise, with regard to Joubert, Carolina and Emata: they must prove
that the statements complained of were relevant and germane
to an issue in the
case; in order to defeat the provisional protection of the qualified privilege
thus established, it would be open
to Venter to prove that Joubert, when he made
the statements, was actuated by malice in the sense of an improper or indirect
motive,
as explained in
Basner v Trigger supra
; failing such proof Venter
could succeed in his claim only if he proved, at the very least, that Joubert
had no reasonable grounds
for believing in the truth of the statements. Whether
it should be required that Venter must go further and prove
that /5l
-51-that the statements were false and that Joubert did not as a
matter of fact believe in their truth, before he could succeed in
his claim,
need not here be decided.
Turning now to the qualified privilege accorded counsel in the conduct of
legal proceedings the rule of our
law /52
-52-law has been authoritatively stated in crisp terms by this
Court as follows:
"(T)he statement
(a) must be pertinent or germane to
the issue, and
(b) have some foundation in the evidence
or circumstances surrounding
the
trial."
(Per BEYERS, J A in
Pogrund v Yutar
, 1967(2) S A 564 at 570 E). The
rule, as KOTZÉ, J P pointed out in his ency-clopaedic judgment in
Preston v Luyt
, supra, derives from
the
Code
(2,6,6 sec 1)
which enjoins advocates to serve litigants without resorting to slander and
abuse beyond what the interests of the
case require and from Voet 47.10.20
referred to above. Prior to
Pogrund v Yut
ar
the /53
-53-the rule was formulated in somewhat different language viz.
that counsel is protected
"when he makes a defamatory statement in the interests of his client,
pertinent to the matter in issue, even though it be false, provided
that he can
produce
some probable (or credible) foundation for the defamatory allegation which he
has made."
(
Preston v Luyt
, supra, at 320;
Findlay v Knight
,
1935 AD 58
at
75). In the last-mentioned decision, WESSELS, C J pointed out at p 71 that
counsel's protection is not confined to the opening
address, the examination of
witnesses, cross-examination and addresses to the Court but also extends to
pleadings drafted by him
and "other documents necessary
to /54
-54-to place his client's case before the Court". The category last
referred to is clearly wide enough to include affidavits settled
or prepared for
the purpose of motion proceedings. Counsel who drafts a pleading or affidavit on
the instruc
tions of an attorney is in a stronger position than an attorney
wh
draws up a pleading on the information given to him by a client since
there
"is an inherent difference between an advocate who draws up a plea on the
instructions of an attorney and an attorney who draws up
a plea on the
information given to him by his client. The advocate does not get his
information from his client. He gets his instructions
from the attorney and
presumes that the latter has sifted the matter and that the proof will be
forthcoming.
The /55
-55-
The attorney draws his plea from the
instructions of the client." (Per WESSELS, C J in
Findlay v Knight
,
supra
, at 73).
In my view,however, the position of counsel who accepts a brief to consult
with witnesses and thereafter to draft pleadings or prepare
affidavits pursuant
thereto can, in principle, not differ from that of an attorney who acts on the
instructions of his client. But
that the privilege embraces all the stated
functions cannot be doubted.
In regard to the two matters referred to in
Pogrund's
case
supra
I consider that some further.discussion is called for. In the first
place attention must be given to the incidence of the
onus
, which was not
discussed in
Pogrund's
/56
-56-
Pogrund's
case.
As to the first requirement mentioned in
Pogrund's
case, viz that the
statement must be pertinent or germane to the issue (I would prefer to say: to
an issue in the case), I am satisfied
that the defendant must establish this in
order to be provisionally protected, in accordance with the general rule stated
in
Basner's
case
supra
(and as applied to the case of a litigant
who deposes to an affidavit).
As to the second requirement mentioned in
Pogrund's
case, viz that the
statement must have some foundation in the evidence or the surrounding
circumstances, expressions
in /57
-57-in some of the authorities tend to suggest that the
onus
in this respect is on the defendant (e g Voet 47.10.20,
Preston'
s
case
supra
at 320,
Findlay v Knight supr
a per WESSELS C J at 71
i f
72 top). It is also true that in
particular circumstances it may
be required of a defendant pleading privilege to prove that he had reasonable
grounds for making the
defamatory statement (see
Jordaan v Van Biljon
1962(1) S A 286 (A) at 296-299 and the cases discussed there), but this is
certainly not a rule of universal application (cf
McLean v Murray
1923 AD
406
at 417
i f
- 418 top). The incidence of the
onus
in the
present context falls to be determined by considerations of policy, and in this
connection I consider that what is of paramount
and decisive
importance /58
-58-
importance is the first principle of public
policy stated by WESSELS C J in
Findlay v Knig
ht
supra
at 71:
"That the welfare of society demands that an advocate or attorney who pleads
the cause of his client should have a large degree of
freedom in laying
his client's case before the Court, even though in so doing he defames the
other party or even a third party. The decided cases show
that he has this
privilege when opening a case in open Court, when examining and cross-examining
witnesses, and when addressing the
Court. For the same reasons
the pleader must enjoy this qualified privilege
when he files formal pleadings and other documents necessary to place his
client's case before the Court. To hamper his freedom in
this respect would be
to hamper the administration of justice; this would be contrary to public
policy, and therefore our
courts /59
-59-
courts accord to attorneys-and advocates a
large measure of freedom in drawing pleadings and in pleading causes."
To give due effect to these considerations it is necessary, in my opinion, to
lay down firmly that the privilege which counsel enjoys
(and thus the
provisional protection afforded thereby) is established on proof that the
statement in question was relevant or germane
to an issue in the legal
proceedings in the course of which it was made, and that it is then for the
plaintiff to prove that the
defendant abused the
occasion (and thus forfeited
the protection of the privilege). One of the ways in which the plaintiff can do
this is by proving that
the defendant did not. have "some foundation" in the
evidence or the surrounding circumstances for making
the /60
-60-
the statement in issue. It is clearly
inadvisable to attempt any circumscription of the concept of "some foundation":
each case must
be decided upon its own facts. I would, however, sound a word of
caution: in my opinion the Court should not be astute to find a
lack of "some
foundation" (or "reasonable cause") for counsel's statements, for to do so might
unduly inhibit counsel in presenting
his client's case and thus hamper the
search for the truth in the administration of justice. In saying this I am not
unmindful of
the
caveat
expressed by BEYERS J A in
Pogrund's
case
supra
against the remarks of SCKREINER J A in
Basner's
case
supra
.
I have said that proof of the absence of "some foundation" is one of the ways
in which a plaintiff can
defeat /61
-61-defeat counsel's plea of privilege. Of course there are
other ways of doing it; the statement of BEYERS J A in
Pogrund's
case
could hardly have been intended to be an exhaustive statement of the law. It is
always open to the plaintiff to prove that the
defendant was actuated by malice
in the sense of an improper or indirect motive, as explained in
Basner's
case, and this he can do, for example, by proving that the defendant knew that
his statement was false or that there was no evidence
to substantiate it (cf
Findlay v Knight supra
at 69, 72, 73-4;
Gluckman v Schneider supra
at 165-6, read with
Basner v Trigger supra
at 105-6), or that the
defendar. made the statement on his own initiative, without instructions, and on
the strength of untrustworthy
information (cf Pr
eston
v Luyt
/62
-62-
v Luyt supra
at 324-7;
Richards v
Kuranda supra
at 48-50), or that the defendant's real motive was personal
spite or ill-will (cf Fi
ndlay v Knight supra
at 69; Bri
scoe v Benson
1914 T P D 598
at 600-3).
A further matter requiring particular attention (with a view to the argument
of Venter's counsel to be referred to presently) is the
relevance or otherwise
of counsel's belief in the truth of the statement made by him. (I am not now
referring to the situation where
he knows the statement to be false; that has
been referred to above). Expressions can be found in some of the cases which,
when read
in isolation and without reference to their own facts, might suggest
that an absence of (reasonable) grounds for believing in
the /63
-63-
the truth of the statement is sufficient to
attract liability (see e g
Preston v Luyt
at 326-7);
Geere v Gladwin
& Nicolatos
1945 WLD 65
at 80;
Gluckman v Schneide
r
supra
at 161-2 per
STRATFORD J A, but contrast per BEYERS J A at 165-6 and
see
in this connection Ba
sner's
case at 106). This is not a correct
reflection of the law. In order to be afforded protection counsel need not
believe in the truth
of the statement and accordingly the absence of grounds for
such belief is,
per se
, inconclusive (see e g
Briscoe v Benson
supra
at 600;
Solomon v Van Leggelo
1938 TPD 75
at 80;
Basner v
Trigger supra
at 105-107). With regard to Zeiss the argument of Venter's
counsel was to a great extent centred upon a submission that Zeiss did
not know
that
the. /64
-64-the statements in question were true and that he made them
recklessly, not caring whether they were true or not. In my judgment,
when once
it is accepted, as it must be, that the absence of a subjective belief on the
part of counsel in the truth of the statment
does not defeat the privilege,
there is no room for giving validity to the submission mentioned. I am aware
that support for the
submission can be found in the judgment of WESSELS C J in
Findlay v Knight supra
at 69, 72-3, but on that particular score his
judgment did not form part of the
ratio decidendi
of the majority of the
Court - see per CURLEWIS J A at 73, per BEYERS J A at 73-4, and especially per
DE VILLIERS J A at 75-6, where
the question was expressly left open. In my
opinion it
should /65
-65-
should now be decided that the submission I
have mentioned is unsound in principle and must be rejected.
It is against the foregoing background that the facts must now be
considered.
The true
ratio decidendi
of the Court
a quo
in the judgment
appealed against centres on the question of pertinency as appears from the
undermentioned passages in the judgment
of VAN REENEN, J :-
"Dit /66
-66-
"Dit is dus duidelik dat op die keerdag van die bevel
nisi
daar geen
moontlikheid kon bestaan dat mnr. Venter of enigie-mand anders as ontvanger
aangestel kon word nie. Die bewerings teen
mnr. Venter, wat bloot gemaak is om
te ver-hoed dat hy as ontvanger aangestel word, was dus nie ter sake nie."
"Ek kom dus tot die besluit dat die bewerings teen mnr. Venter gemaak in die
beedigde verklaring van mnr. Joubert nie ter sake was
nie. Die uitdruklike rede
waarom die bewerings gemaak is, was om te verhoed dat mnr. Venter as ontvanger
aangestel sou word, en so
'n aanstelling was nie eers ter sprake nie.
Dit volg dus dat objektief beskou daar geen bevoorregte geleentheid was nie,
en aldus beskou, was daar geen regver-digingsgrond nie."
The conclusion that the statements in question
were /67
-67-
were not relevant can, however, not be
supported. There is no room for doubt that Venter's intervention in the Kotze
applications,
his declared willingness to act as receiver, his avowed
familiarity to a degree with the affairs of Carolina and Emata; and the ensuing
orders of McCREATH, J i
nter alia
directing Venter to convene meetings for
the election of a substitute receiver precipitated the further intervention of
Joubert,
Carolina and Emata and unleashed the defamatory utterances which lie at
the heart of these proceedings.
By relevance is meant "in some measure relevant to the purpose of the
occasion" (at p 97 of
Basner v Trigger supra
).
The /68
-68-The release of Kotze from office was, as at the date of the
Joubert, Carolina and Emata intervention, in all probability imminent.
The
matter of the election of a substitute receiver, by virtue of the orders of 11th
April 1978, fell to be determined under the
lead and direction of Venter a man
who in his affidavit of the 22nd March, to put it at the very lowest, foresaw
the possibility
of being appointed, directed the mind of the Court to such
possibility; and openly expressed his readiness to accept appointment.
Moreover
he exhibited no diffidence in advancing his qualification
for /69
-69-
for appointment by stressing his familiarity "to a degree"
with the affairs of Carolina and Emata. In the meantime the Master labouring
under the delusion, caused by the false offer of compromise,
that Venter already
held office as co-receiver, had alluded in his report to the possibility that
the creditors might desire to retain
him as the sole receiver. Venter, who had
read the Master's report, knew this and yet failed to remove the delusion. On
the contrary,
by declaring that he became aware on the 3rd March 1978
that he
"had been appointed", Venter disingenuously fortified the impression that such
was indeed the case. Regard being had to his
extensive experience in matters of
this kind, it is difficult to avoid the conclusion that Venter appreciated
full /70
-70-
full well that both the Master and the Court
had been led astray. It is difficult to resist the conclusion that Venter wished
the
wrong impression to persist and enhance his chances of appointment. In the
light of these circumstances there must, at the time of
the service of the order
on Joubert, Carolina and Emata, have existed a very real fear in Joubert's mind
that Venter might be appointed
receiver To hold,as VAN REENEN, J appears to have
done, that the holding of a meeting of creditors is a necessary pre-requisite to
the appointment of a receiver, appears to me (although it is unnecessary to make
a finding) to be legally unsound. But be that as
it may, the stage was set for
the appointment of a receiver, and the possibility that such an appointment
might /71
-71-might be bad in law does not establish an absence of
relevance. (Cf
Blumenthal v Shore
, 1948(3) S A 671 (A) at 685 top). But
for the intervention of Joubert, Carolina and Emata -the propriety of which
cannot be questioned
in view of the Court's direction that service of the order
be affected on them and, therefore, that they were entitled to be heard
-it is
highly probable that Venter's preparedness to fall in with the idea of being
appointed and the likelihood that the stray course
would be persisted in, would
de facto
have led to his appointment or his recognition as sole receiver.
Particularly noteworthy in this regard is the evidence adduced at
the trial that
in precisely the same situation which had arisen in two other kindred
applications
(Paula's /72
-72-
(Paula's Cake Shop (Edms) Bpk
and
Bartev
Investments (Edms) Bpk
) Venter was appointed by the Court in each case as
the substitute receiver without his prior election as such at any meeting of
creditors.
It follows that the intervention by Joubert, Carolina and Emata was
not only appropriate but timely and well-considered. Joubert,
moreover, had
every reason -especially in the light of Venter's non-disclosure of the pending
action - to be strongly opposed to
the appointment of Venter. His attempt to
fend off Venter's appointment accordingly rendered the attack on his character
germane
to the issue. The validity of this view is borne out by the success of
the claim for the substantial relief prayed for in the intervening
application
of the 18th May 1978 viz
the /73
-73-
the appointment of Meintjies. In advancing and substantiating that
claim it was entirely relevant to stress the demerits of Venter
vis-a-vis
Meintjies. The following
remarks by RAMSBOTTOM J in
Geere v Gladwin and
Nicolatos
,
supra
, at 75 - a case concerning an application for a
liquor licence by rival claimants - seems to be apposite:
"Mr. Rath
ous
e contended that the occasion was not
privileged because the defendant
had /74
-74-
had no interest to enquire into the truth of Geere's affidavit. The argument
was that each application was separate from all the others,
and had to be dealt
with on its own merits, and that one applicant or his representative had no
interest or duty to deny the merits
of another applicant. Since all that was
pertinent to the occasion was an address in favour of Nicolatos,. words
derogatory of Geere
were not pertinent and the occasion was not privileged for
publication of such words. I do not agree with this argument. The circumstances
were that there was only one licence to be granted, and although the several
applicants were not in the position of parties to litigation
they were rival
claimants for the licence that was to be granted. In the circumstances each
applicant, if appearing in person must, I think, have
been entitled when
presenting his own claims, to make comparison between his premises and those of
his rivals, and between his personal
qualifications and those of other
applicants.
In / 75
-75-
In comparing his premises with those of his
rivals, he must be able to criticise the latter, and draw attention to their
defects.
Similarly, in advocating his own place, he must be allowed to argue
that he is a more suitable licencee than the other applicants,
and in doing so,
to draw attention to features of unsuitability in his rival."
It is self-evident therefore, that the defamatory statements complained of by
Venter were made in the course of judicial proceedings
and were germane to the
matter in issue. Unless defeated by Venter,therefore, the defence of privilege
raised by the defendants must
prevail.
A convenient starting point in considering whether forfeiture of the
privilege has been established on the
part /76
-76-
part of the defendants is to look first at the
position of Zeiss - the author of the defamatory material. Zeiss did not testify
at
the trial but Joubert, Uys and Laubscher did. VAN REENEN, J regarded Joubert
as an unsatisfactory witness who resorted to half truths
in regard to portions
of his evidence which did not appear to be relevant ("nie geblyk ter sake te
wees nie"). Uys impressed him
as a person who posed as a passive spectator but
who did not deliberately give unreliable evidence. Laubscher he also regarded as
passive and negative and as a witness who failed to make a good impression in
portions of his evidence "(wat) nie juis ter sake (is)
nie". The above
uncomplimentary observations notwithstanding, the learned Judge concluded his
remarks
relative /77
-77-relative to the three persons mentioned as follows:
"Dit blyk egter uit die bevindings wat ek gemaak het dat ek my nie juis
verlaat het op die geloofwaardigheid al dan nie van die persons
nie, en hierdie
opmerkings word slegs gemaak indien 'n indruk van die getuies later nodig blyk
te wees."
Inasmuch as the conclusion of the Court below in no way hinges upon its
assessment of the aforementioned three witnesses, it is unnecessary
to embark
upon any close examination of the quality of their evidence in this judgment.
Considerations of fairness nevertheless impel
me to say that I do not share all
the views expressed by the learned Judge in regard to these three witnesses; and
I am constrained
to /78
-78-
to observe that in my opinion the testimony of
these witnesses in regard to the essential issues in the case is not open to any
substantial
criticism. Since the evidence of these three witnesses stands
uncontradicted it is necessary and
proper to have regard thereto in order to
adjudicate upon the merits of this appeal.
It is hardly feasible to refer in detail to the voluminous evidence led at
the trial, and in what follows
I shall examine only those portions which
appear to me to be of decisive importance. The cumulative effect of the evidence
of the
abovementioned three witnesses
inter
alia establishes
the.... /79
-79-
the undermentioned facts:
1. After his appointment as provisional
liquidator Venter, on the 25th May
1976,
appointed Swersky (who died on the 27th
April 1978 i e prior to the
trial) in
writing "to act on my behalf in conducting
the administration"
of Carolina and Emata.
Both Uys and Laubscher were under the impression that Swersky was associated
with Venter as co-director, partner or co-shareholder.
2. After Swersky assumed control of Carolina and
Emata (and in particular
of the two garages
"Phillips Toyota" at Carolina and "Stoffberg
Motors" at
Stoffberg, owned by Carolina) he
took possession of all the books of
account
(including debtors' cards) and retained the
services of Mrs
Pitout, as clerk and
bookkeeper, /80
-80-bookkeeper, at Stoffberg Motors.
3. Joubert thereafter arranged with Mrs Pitout
to keep a secret duplicate
cash book.
4. After the provisional winding-up orders were
set aside, Swersky removed
the takings of the
previous week from Stoffberg Motors.
5. The books of account and debtors' cards were
missing after termination
of the winding-up
and a registered demand, dated 6th October
1977,
addressed by Uys, on behalf of Joubert,
to Venter calling for delivery of the books
of account, records and liquidation and
distribution accounts met with no response.
6. The failure of Venter to respond to the
aforesaid demand led to Uys
receiving instruc-
tions from Joubert, Carolina and Emata to
obtain /81
-81-obtain legal advice with a view to litigation.
Uys in turn instructed
his Pretoria correspondent, Laubscher, who briefed Zeiss - a man "onderleg in
syfers ... met rekenkundige kennis'
7. Laubscher and Zeiss proceeded to the
towns of
Carolina and Stoffberg on the 7th December 1977 where the secret cash book
was examined by Zeiss and consultations were held with
various witnesses.
At Carolina Joubert, his brother Jannie and one Nel instructed Zeiss that
Swersky often received payments due to Carolina by post
and issued receipts in
respect thereof
from /82
-82-
from an unofficial receipt book; that subsequent to the winding-up a
receipt book was found at Stoffberg Motors from which pages referring
to
Swersky's regime had been removed; that certain
motor vehicles and other
assets could not be traced
after the winding-up; that the turnover of Phillips Toyota and Stoffberg
Motors was considerably greater than was reflected in the
Standard
Bank
statement, the only one available and known
to them relative to the trading operations of Carolina during the winding-up
period; and that cash and assets valued at approximately
R200 000,OC had during
the same period disappeared from Carolina and Emata. Zeiss requested and
later
obtained /83
-83-
obtained written details of this loss which, he was told, was confirmed by
stocktaking figures. (Auditors present on this occasion
confirmed, according to
Laubscher, that there was a massive deficit). Later on the same day Mrs Pitout
was interviewed at Stoffberg
by Laubscher and Zeiss. She imparted the following
information which was later incorporated into an affidavit:
"4. Gedurende die bestaan van die voorlopige Likwidasie het ek gelde ge-in en
uitbetalings gemaak en het ek persoonlik 'n totale bedrag
van R16 431,49 aan
gemelde Zwersky persoonlik oorhandig, synde gelde wat beskikbaar was nadat
uitbetalings uit die bedrae wat ge-in
is gemaak is. Hierdie totale bedrag van
R16 431,49 wat ek aan Zwersky oorhandig het, het gedeeltelik uit tjeks wat ge-in
is en gedeeltelik
uit kontantgelde wat ge-in is bestaan, en besonderhede van die
datums en bedrae wat oorhandig is,
is /84
-84-.
is soos volg:
Datum
Bedrag
3 Junie 1976 R 1 000,00
11
Junie 1976 1 977,73
28 Junie 1976 520,86
30 Junie 1976 1 100,00
30 Junie 1976 213,06
8 Julie 1976 3 055,88
16 Julie 1976 4
055,31
29 Julie 1976 1 143,50
31 Julie 1976 3 365,15
R16 431,49
5. Gemelde Zwersky net nooit aan my gemeld wat hy met die gemelde bedrae
gedoen het nie en het ek geen idee wat hy inderdaad daarmee
gedoen het nie."
8. Pursuant ,/85
-85-
8. Pursuant to the consultations referred to in the preceding paragraphs and
certain calculations made by Zeiss, two summonses were
issued and served, No I
1725/78 in which Carolina and No I 1726/78 in which Emata figured as plaintiffs.
The original idea was to
proceed against Venter by way of motion but Zeiss
changed his mind and decided upon the institution of illiquid actions which were
commenced by the said summonses. He notified his change of mind in a memorandum
dated 6th February 1978 and also intimated that Carolina's
action would
incorporate a claim for repayment of the monies which, according to Mrs Pitout,
were appropriated by Swersky. Zeiss,
however, included the following warning in
the memorandum:
"Dit /86
-86-
"Dit moet daarop gelet word dat die be-wering dat die Verweerder hierdie
bedrae gevat het, nie in die bankrekening ge-stort net en
nog hou,
prima
facie
uiters lasterlik is. Ek net dit oorweeg om hierdie bede weg te laat
omrede dit in elk geval deur die algemene bede vir rekeninglewering
gedek sal
wees maar ek
het daarteen besluit omdat hierdie
pertinente bewerings die Verweerder onmiddellik in 'n groot verleentheid
stel. Aangesien hierdie bewerings egter
prima facie
lasterlik is, moet
daar voordat hierdie dagvaarding uitgereik word, eers ondersoek ingestel word om
seker te maak dat Venter of Swersky
nie die gelde miskien gebruik het om skulde
van die maatskappy in likwidasie uit die hand uit te betaal en dat die rekening
by die
Standard Bank wat geopen is ook die enigste rekening is wat vir hierdie
maatskappy in voorlopige likwidasie
geopen is. Dit wil sê in alle
omringende dorpe van Stoffberg moet alle banke wat daar takke het, by navraag
gedoen word of Verweerder dan miskien nie nog 'n bankrekening
vir die maatskappy
in likwidasie geopen het nie."
9. The /87
-87-
9. The required enquiries were duly made
and the fears shown to have been unfounded.
Uys put it thus in his evidence
"ek was heeltemal tevrede dat hierdie moontlike kwelpunte geopper in die
memorandum weggeval het."
Laubscher and Zeiss were informed accordingly.
10. Joubert was distressed at the orders made on the
11th April 1978 by
McCREATH, J and believed
that this development foreshadowed
the
re-emergence of Venter in the affairs of
Carolina and Emata. In order
to prevent
the possible appointment of Venter as receiver, further extensive
consultations were
held /88
-88-
held during May 1978 in the conference rooms
of the Agricultural Union in
the town of Carolina. These consultations extended over several days during
which Zeiss and Joubert's
auditors analysed figures. Thereafter Zeiss, in the
presence of Uys, Laubscher and Joubert, dictated to Laubscher's typist the
supporting
affidavits attached to the notices of motion of the 18th May 1978.
Uys and Laubscher were satisfied that the affidavits were in accordance
with the
information which Zeiss and the auditors had gathered. 11. When Zeiss dictated
one of the defamatory
passages /89
-89-
passages, Joubert remarked that the language was rather robust. Zeiss
countered by saying that
"hy praktiseer vreesloos en as hy nie kan vreesloos praktiseer nie dan stel
hy nie belang om te praktiseer nie."
12. Somewhat later Uys raised the matter
referred to in the preceding paragraph anew
with Zeiss and received the assurance that he
(Zeiss) was satisfied, on the available
information and evidence, that the allegations
against Venter were justified and well-founded;
and that the affidavits were properly worded.
13. Both /90
-90-
13. Both Laubscher and Uys considered that the legal and accounting knowledge
of Zeiss surpassed theirs and they were satisfied by
his assurance. Indeed they
both testified that it was mainly left to Zeiss (assisted by Carolina's
auditors) to determine whether
amounts which accrued during the winding-up could
be traced in the statements of the winding-up accounts at the Standard Bank,
Carolina.
After entry of appearance in case I 1725/78, Carolina applied for summary
judgment in respect of the claim for payment of the sum
of R16 430,48 plus
interest.
a tempore morae
. Venter opposed the application by filing
an /91
-91-an affidavit dated 26th April 1978 in which he averred that he
had a bo
na fide
defence to the action. It is necessary to refer to
portions thereof and to certain events arising out of it. Venter admitted in the
said affidavit that after discharge of the provisional winding-up order, he had
received a request to make available all the books
and records of Carolina - a
request to which he did not object. He stated further that Joseph Tshabalala of
Kotze Trust there-after
called at his office to collect the books but that he
removed the wrong set of books. After the error was discovered Tshabalala
returned
the wrong books and collected from him (Venter)
"each and every book, record and document
which /92
-92-
which I had removed from the plaintiff upon my appointment as its provisional
liquidator."
He stated further that he merely retained certain vouchers in respect of his
trading as provisional liquidator. Tshabalala, having
earlier furnished his
version to the defendants, dealt with the abovementioned allegations by Venter
in an affidavit, dated 29th
June 1978, being an annexure to Joubert's. replying
affidavit in the Kotze applications. In the said affidavit Tshabalala, the
holder
of a B A degree, affirms that during August, 1976 he fetched certain
books from Venter's offices but that they were the wrong books
and were
thereafter returned by another employee of Kotze Trust -one Prinsloo. On the 2nd
March 1978 one Van Rooyen, also
a /93
-93-
a former employee of Kotze Trust, handed him a
draft affidavit (which he annexed to his affidavit) with a request that he
should sign
it. He refused to do so as the draft incorrectly stated that he
(Tshabalala) had returned the wrong books to Venter's offices and
exchanged them
for books belonging to Carolina and Emata. On the 6th March 1978 Venter and Van
Rooyen repeatedly telephoned Tshabalala,
urged him to sign the false affidavit
and assured him that he could do so with impunity. Tshabalala however, refused
to do so. I
now revert to Venter's affidavit of 26th April 1978. He stated that
he endeavoured, but failed, to reconcile the amounts which make
up the claim of
R16 400,00 odd as only the bank statements and not the cash book were in his
possession. But, said Venter, each and
every
amount /94
-94-amount received by Carolina during the period of
winding-up
was either deposited to its banking account or used for
the
conduct of the business. He re-iterated what he had
already stated in his intervening affidavit about a month
earlier viz
"Without either my knowledge or my consent I had been appointed Receiver for
creditors and only became aware of such appointment on
the 3rd March, 1978 when
I was so advised by the Master of this Honourable Court."
On the day before his death (i e 26th April 1978) Swersky filed a very brief
affidavit in support of Venter's affidavit in which he
stated that he had read
Carolina's particulars of claim in action I 1725/78.
in /95
-95-In his said affidavit, and save for the sentence quoted
hereunder, Swersky made no attempt to account for the amounts of money
which,
according to Mrs Pitout, were handed over to him:
"I state affirmatively that all monies handled by me received by the
Plaintiff whilst under Provisional Winding-up Order were either
deposited to the
banking account opened for such purpose, or alternatively legitimately expended
on necessary stocks and expenses
of the Plaintiff."
At the pre-trial conference, it might be noted, Zeiss enquired whether Venter
was prepared to admit that Swersky took possession of
the amounts referred to in
Mrs Pitout's affidavit. On Venter's behalf it was recorded that he was unable to
make any such admission
"as /96
-96-
"as Swersky is now deceased."
At the
commencement of the trial, however, Venter's counsel
made the desired
concession by stating
"... on consideration, because ... this trial really turns on that issue, on
these figures, I can say at this stage that the plaintiff
received the amounts
in question and ... accounted for it."
Venter did not testify at the trial. Accordingly no evidence was tendered to
account for the amounts received by Swersky. It will
be seen from the aforegoing
summary of the salient facts that Uys and Laubscher relied heavily on the advice
of Zeiss who, to a large
extent, performed the functions which they would
ordinarily have performed viz. of gathering the relevant information, sifting
it,
examining and analysing the books of account and the relevant transactions.
They were guided by Zeiss and unquestionably
accepted .... / 97
— 97-accepted his advice
and assurances in good faith. If, therefore, the plea of privilege succeeds in
the case of Zeiss, then
a fortiori
it will succeed in their cases.
In essence the charges levelled against Venter
in
the affidavits complained of were that he had
stolen the property of Carolina and Emata and that his conduct rendered him
unfit to
be appointed receiver in terms of the proposed compromises which
appointment he was improperly soliciting. When Zeiss dictated the
affidavits
dated the 18th May and 29th June 1978 he knew that Swersky acted on behalf of
Venter in conducting the administration
of Carolina and Emata and that Venter
maintained close contact with Swersky. He was given this information by Joubert
and that such
information was correct appears from Venter's affidavit (dated
13th June 1978) in the Kotze applications:
"I ... left the day to day administration
of /98
-98-
of the businesses to Swersky, leaving it to him
to make inventories of the assets of the two companies as I was entitled to do,
and
he went to live in Carolina to carry out his duties. During the time that he
ran the businesses and from the 4th June, 1976, when
he went down to take up his
duties, he maintained regular telephonic communication with me and gave me brief
reports that all was
under control in regard to the operation of the
businesses."
Zeiss knew also that Swersky took possession of all relevant books of account
and records, that they were missing after termination
of the winding-up, that a
demand for their return by Uys brought forth no response, that Venter alleged on
oath in the summary judgment
proceedings that Tshabalala had removed the books
and records from him, and this Tshabalala disputed
on / 99
-99-
on oath and alleged further that Venter tried to persuade him to
swear falsely that he had indeed removed them.. Zeiss received instructions
on
the 7th December 1977 that the turnover of the businesses of Carolina during
winding-up far exceeded the amount of business reflected
in the bank statements
revealed and that auditorial confirmation existed of a theft of the order of
R200,000,00. In a face to face
discussion with Mrs Pitout on the same date Zeiss
learnt that she claimed to have handed Swersky nine separate amounts, the
property
of Carolina and totalling a sum in excess of R16 000,00 and Zeiss
established that the nine amounts in question did not figure in
the bank
deposits. Zeiss furthermore knew that, in the summary judgment proceedings,
Venter declared himself
unable /100
-100-unable to "reconcile" the amounts referred to by Mrs
Pitout and that Swersky, in a supporting affidavit, made no endeavour at
all to
deal with any one of the nine amounts or even to admit or deny that he received
the said amounts or any of them. Very much
later, i e at the trial before
VAN
REENEN, j,it was established that the third, seventh and eighth items listed by
Mrs Pitout coincide respectively with the totals
of three, two and four deposits
made at the Standard Bank, Carolina on or about the dates mentioned by Mrs
Pitout. Thus, at best,
about a third of the total amount could possibly be
accounted for by a searching. analysis of deposit slips. Zeiss did not detect
this prior to dictating the affidavits and did not consider the
possibility /101
-101-
possibility that any of the items mentioned by Mrs Pitout might have been
divided into separate deposits. Nor did this possibility
occur to the auditors.
And neither Venter nor Swersky could suggest a possible reconciliation during
April 1978. I consider that
Zeiss cannot be faulted on this account and that
the
undermentioned submission in the written heads
submitted to this Court on his behalf, is fairly made:
" ... an examination of the said Bank accounts carried out with ordinary
diligence ... would not necessarily
reveal the aforesaid arithmetical coincidences."
Other alleged misconduct by Swersky which was conveyed to Zeiss included the
following: the removal of the proceeds
of /102
-102-of the last week of the winding-up period; the issue
of receipts from an unofficial receipt book in respect of monies forwarded
to
Phillips Toyota by post; that pages were cut out of an official receipt book;
that assets were missing. Zeiss foresaw the possibility
that portion of
the
monies allegedly stolen by Swersky might have been used to pay some of
Carolina's debts or that deposits might have been made
to banks other than the
Standard Bank at
Carolina. In his memorandum of 6th February 1978 he
called for and received an assurance (before the issue of summons I 1725/78)
that this was not the case. The circumstances set out
above fully justify the
conclusion that a distinct factual foundation existed for the inference
that /103
-102-of the last week of the winding-up period; the issue of
receipts from an unofficial receipt book in respect of monies forwarded
to
Phillips Toyota by post; that pages were cut out of an official receipt book;
that assets were missing. Zeiss foresaw the possibility"that
portion of the
monies allegedly stolen by Swersky might have been used to pay some of
Carolina's debts or that deposits might have
been made to banks other than the
Standard Bank at Carolina. In his memorandum of 6th February 1978 he called for
and received an
assurance (before the issue of summons I 1725/78) that this was
not the case. The circumstances set out above fully justify the conclusion
that
a distinct factual foundation existed for the inference
that /103
-103-that Swersky had stolen an amount in excess of R16 000,00
from Carolina. The question remains: was there also some foundation
in the
evidence or circumstances surrounding the trial to attribute responsibility to
Venter for the defalcations of Swersky and
to link him thereto? The
answer, in my view, is in the affirmative for the reasons that follow.
Swersky was Venter's fully authorised representative at the
scene of Carolina's
trading operations, maintained regular telephonic communication with him and
submitted reports to him. Venter
failed to dissociate himself from any part of
Swersky's conduct and indeed relied on the statement of Swersky that
"all monies handled by me ... were either
deposited /104
-104-
deposited to the banking account ... or alternatively legitimately expended
on necessary stocks and expenses"
to resist the grant of summary judgment. On the strength of Tshabalala's
affidavit, Zeiss had every reason to conclude that Venter
dishonestly attempted
to induce Tshabalala to swear falsely that he had received Carolina's books of
account intact. Such conduct
coupled with the disappearance of the books
provided some foundation for the notion that Venter endeavoured to conceal
Swersky's
wrongdoing and thus condoned it. Taken in conjunction with all the
other abovementioned circumstances and the fact that Venter failed
to disclose
to the Court in the course of the Kotze applications that a claim for payment of
R16 400,00 odd
in .../105
-105-
in respect of monies allegedly
misappropriated from Stoffberg
Motors was pending against him, the foundation
for the
belief that Venter was indeed linked with Swersky's misconduct
is further fortified. The circumstances abovementioned represent only part of
the vast body of evidence relevant
to this issue in the record on appeal but
suffice, in my view, to justify the conclusion that forfeiture of the privilege
enjoyed
by Zeiss has not been established by proof that there was any lack of
"some foundation" for the statements complained of. Nor is
there any basis for
finding that malice in the special sense envisaged at p 95 in
Basner v
Trigger
,
supra
, has been established against Zeiss. In view of this
conclusion I need not deal with the subsidiary issue relating
to. /106
-107-
proceedings apply equally to them. The assurances which their legal advisers
and auditors gave . them effectively dispel any suggestion
that the defamatory
matter contained in Joubert's affidavits was published with an improper or
indirect motive. Certainly there can
be no question that Joubert swore "to that
which he knew to be false". On the contrary he had received from Zeiss the
assurance that
the allegations against Venter were justified and well-founded.
In all the circumstances it is impossible to find that Joubert made
the
statements complained of without having reasonable grounds for believing them to
be true. It follows that the appeals of Joubert,
Carolina and Emata should also
be upheld.
The /108
-108-
The appeals are allowed with costs, including in
the
case of the first, second, third, fifth and sixth
appellants, the costs of
two counsel. The judgment of the
trial Court is altered to one of judgment
for the defendants with costs, including in the case of first, second, third,
fifth and
sixth defendants, the costs of two counsel.
JUDGE Of APPEAL
HOEXTER, J A )
BOTHA, J A )
concur HEFER, J A )
VIVIER, A J A )