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[2009] ZAGPJHC 37
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Byrne v Masters Squash Promoters CC and Another (A3024/05) [2009] ZAGPJHC 37; 2010 (1) SA 124 (GSJ) (3 August 2009)
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IN THE SOUTH GAUTENG HIGH
COURT
(
JOHANNESBURG
)
CASE NUMBER:
A3024/05
In the matter between: -
ERROL
BYRNE
Appellant/Plaintiff
and
MASTERS
SQUASH PROMOTIONS
First
Respondent/Defendant
CC
R A MALLAC
Second
Respondent/Defendant
JUDGMENT
SATCHWELL
J:
This appeal has raised the intriguing issue
whether or not the contents of a letter from an employer advising an
employee of the
reasons for his dismissal can found an action for
defamation or
injuria.
The issue of privilege is discussed.
The appellant (Mr. Errol Byrne) was dismissed
f
rom his employment with first respondent
(Masters Squash Promotions CC) at the instance of a member thereof ,
the second respondent
(R A Mallac). He contends that the letter
dismissing him from his employment
1
is
prima facie
defamatory of himself or carries certain innuendos alternately that
he was humiliated and degraded by the contents thereof. He
further
contends that these defamatory contents were published to the
typist who produced the letter of dismissal and that the
injuria
was suffered on receipt of the letter. Appellant therefore
instituted an action against the respondents in the Randburg
Magistrates
Court for damages in the amount of fifty thousand rand
(R50 000.00). He now appeals the dismissal of his claims with costs
2
.
The appellant was concurrently employed
by the first respondent and a competitive institution, the Damelin
Squash Centre. A client of the first respondent reported
to the
second respondent that the appellant had attempted to solicit his
patronage and that of a squash team away from the
first respondent
to the Damelin Squash Centre.
Acting upon such information
,
the second respondent caused the contentious letter to be sent on
behalf of the first respondent, the relevant portions reading
as
follows;
“
Although we were aware of your involvement
with the Squash Connection at the Damelin campus at the time that the
alternative offer
of employment was made to you, we were of the
opinion that there would be no conflict of interests.
It has come to our attention, however, that
following your appointment as Manager at the centre you have been
soliciting business
from our client base which is a total violation
of the trust which we believed would be respected in our mutual
interest.
Under the circumstances we have no option but to invoke the 24 hour
notice period with immediate effect. Would you please, therefore,
ensure that all your personal belongings are removed form the
premises forthwith and keys in your possession handed to reception.
It must be clearly understood that, in terms of
what has transpired, we are not prepared to debate this issue under
any circumstances
whatsoever.”
It is common cause at the dictation to the typist
of this letter constituted publication to her. For purposes of
this judgment
it can be accepted that the contents of this letter
are
prima facie
defamatory of the appellant.
The only issue for decision at trial and in this appeal is whether
or not such publication was justified in the circumstances
in
which it was published.
Appellant has testified regarding
his shock at his dismissal, distress at his unemployment, concern at
what he perceived as an “unfair dismissal”.
However, it
was not required of the trial court nor is it necessary for this
appeal court to determine any substantive or
procedural issues
pertaining to the dismissal of the appellant. Any complaints
which the appellant may or may not have with
regard to his
dismissal are not for determination by the trial court or this
appeal court . This is an action for damages based
upon alleged
defamation or
injuria
and not the hearing of a labour dispute.
The evidence of Mr Dean Milbank is that he made
a report to second respondent that appellant had attempted to
solicit business
away from first respondent to a competitor. Second
respondent (as a member of the employer close corporation) and
first respondent
(as employer) perceived the appropriate response to
be immediate termination of the part time employment of the
appellant. This
they did in the letter of which the appellant
complains.
It is well established that where defamatory
statements are made in privileged circumstances then the
prima
facie
wrongfulness of such utterance
or publication is justified (
see
Herselman NO v Botha
1994 (1) SA 28
(A
)).
The issue of privilege is approached by considering whether or
not “the statements were relevant to the occasion
“
3
, relevance being essentially “a matter of reason and common
sense, having its foundation in the facts, circumstances
and
principles governing each particular case”
4
.
Assessment of whether a defamatory statement was relevant to the
occasion is “essentially a value judgment”
5
.
It is trite that an
employee
is entitled to know the basis upon which any disciplinary action is
taken against him and particularly the sanction of
dismissal.
6
An employee who is dismissed with no knowledge as to the reason for
such action would usually and understandably feel most
aggrieved.
An employer who fails to inform an employee of the reasons for
his dismissal could possibly expose itself to
a complaint of unfair
dismissal on that ground alone.
It is my view that appellants’ employer
and manager had both a moral and social duty as well as a legal
duty to communicate
to
the appellant
the reasons for his dismissal from their employment. (see
De
Waal v Ziervogel
1938 AD 112
).
Considerations of morality and social harmony suggest that persons
must know why actions to their prejudice are taken against
them.
Failing such courtesy and absent such information, employees would
feel unjustly treated and aggrieved and these feelings
could lead to
various forms of labour unrest. Further, failure to furnish
reasons for dismissal would prejudice a former employee
who wishes
to challenge or appeal such dismissal. Finally, the Code attached
to the Labour Relations Act
inter alia
requires such reasons to be given.
I therefore find that the publication of the contents of the letter
of dismissal to the typist by the second respondent on behalf
of
the first respondent was, in these circumstances, privileged.
I should remark that, if this were not so, every
employer who furnished such reasons in writing or through
subordinates or to
other third parties such as shop stewards or
immediate managers would expose themselves to actions for
defamation. Further,
if this were so, employees who were to
be denied reasons for their dismissal by employers who feared such
exposure to
defamation actions would rightly feel aggrieved.
I have no difficulty in accepting that
publication to
a typist of the contents
of the letter of dismissal which is to be typed is publication in
the exercise of a duty to inform the
appellant of the reasons for
termination of his employment. However, appellant now raises in
his supplementary heads of argument
that “it is common
knowledge” that the second respondent and the typist
communicated these allegations to other
persons. This was not
evidence at the trial, the second respondent has not had the
opportunity to deal with such averments,
the typist was not called
as a witness. It is trite that an appeal court is bound to the
record of the proceedings in the court
a quo. It is only in
exceptional circumstances that further evidence could be received
on appeal
7
.
No such basis has been laid for the admission of such new
information into ‘evidence’ at this appeal.
In the result this appeal is dismissed with costs.
DATED AT JOHANNEBURG 3
RD
AUGUST 2009
_____________________
Satchwell J
I agree
______________________
Beckerling AJ
Date
of hearing: 3
rd
August 2009
Date
of Judgment 3
rd
August 2009
For the Appellant: In person
For Respondent: W B Pye
Instructed by Bowes & Turner Inc
1
Annexure “A” to the summons
2
Appellant
had legal representation at the trial in the court a quo. He
represents himself at the hearing of this appeal.
3
See
National
Education Health and Allied Workers Union v Tsati
2006 (6) SA 327
(SCA)
at para 12 .
4
Van
der Berg v Coopers & Lybrrandt Trust (Pty) Ltd and Others
2001(2) SA 242 SCA at para 26.
5
Van
der Berg supra at 26.
6
See
The Code of Good Practice attached to the
Labour Relations Act 66 of
1995
, Item 4 dealing with ‘Fair Procedure’ and sub 3
“If the employee is dismissed, the employee should be given
the reasons for dismissal…”
7
S v
Marx 1989(1) SA 222 A;
see alsothe requirements for such admission in
S
v De Jager 1965(2) SA 612 A.