Foodworld Stores Distribution Centre (PTY) Ltd and Others v Akbar Allie (A 510/01) [2002] ZAWCHC 21 (26 April 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2002
>>
[2002] ZAWCHC 21
|

|

Foodworld Stores Distribution Centre (PTY) Ltd and Others v Akbar Allie (A 510/01) [2002] ZAWCHC 21; [2002] 3 All SA 200 (C) (26 April 2002)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: A 510/01
In
the matter between:
FOODWORLD
STORES DISTRIBUTION
CENTRE
(PTY) LTD
First Appellant
LIYAQAT
PARKER
Second Appellant
WAZIER
PARKER
Third Appellant
ILYAS
PARKER
Fourth Appellant
and
AKBAR ALLIE
Respondent
JUDGMENT: 26 APRIL 2002
VAN
ZYL J:
INTRODUCTION
[1] The
respondent was the plaintiff in a delictual action for damages
brought in the Goodwood Magistrates’ Court against six defendants,
including the four appellants as, respectively, the first, second,
third and sixth defendants. For the sake of convenience I shall
refer to the appellants collectively as "the appellants" or
"the Parkers" and individually as “Foodworld”,
“LA
Parker”, “W Parker” and “I Parker” respectively.
[2] The
action consisted of two claims. The first was based on
iniuria
and
the second on defamation. Both claims against the fourth and fifth
defendants (Iqbal Sayed Abdurahman and Rashied Parker) were
dismissed
with costs. The second claim against W Parker and I Parker was
likewise dismissed with costs. On the first claim, however,
judgment
was given against all the appellants, jointly and severally, in the
amount of R7 500,00. On the second claim judgment, in
the amount of
R15 000,00, was given against only Foodworld and LA Parker, once
again jointly and severally. The appellants have,
to the extent that
the aforesaid judgment and orders operate against each of them,
lodged an appeal against such judgment and orders.
No cross-appeal
has been noted.
[3] The
first claim was to the effect that, on or about 12 January 1998 (it
was in fact 13 January 1998), the appellants, together
with the
fourth and fifth defendants, acting within the course and scope of
their employment with Foodworld, wrongfully and intentionally
averred
to the respondent that he had stolen goods to the approximate value
of R86,00. This infringed upon his dignity and caused
him damages in
the amount of R20 000,00.
[4] The
second claim was that, on a subsequent date during January 1998, the
same persons, once again acting within the course and
scope of their
employment with Foodworld, wrongfully and intentionally made
defamatory allegations about the respondent. These allegations,
which
were made to certain other directors and employees of Foodworld with
a view to defaming the respondent and infringing upon
his dignity,
were to the effect that he was a thief and could not be trusted. As a
result the respondent suffered damages in the
amount of R80 000,00.
Despite being called upon to do so, they refused to tender an
apology.
[5] Foodworld
raised a special plea that the respondent was precluded from bringing
an action against it in that there had been a
settlement of the
proceedings instituted by the respondent, in the Commission for
Conciliation, Mediation and Arbitration (CCMA),
for his wrongful
dismissal by Foodworld. The agreement of settlement, concluded on 2
March 1998, was to the effect that the “allegations
of theft”
against the respondent were withdrawn and that Foodworld would pay
him the sum of R12 000,00 “in full and final settlement
of
dispute”. It was signed by the respondent and by LA Parker and W
Parker on behalf of Foodworld.
[6] In
their main plea to the first claim the appellants denied having
averred that the respondent had stolen any goods. In the alternative,
if the averment had been made, it was not wrongful in that:
it
was true, or substantially true, and in the public interest that it
be made, particularly in that it concerned the honesty of
the
respondent and his suitability for continued employment by
Foodworld; or
it
was made in the course of an enquiry into the respondent's honesty
and suitability for his continued employment by Foodworld,
was
germane to such enquiry and was made to a person or persons who had
a duty or right to hear such averment; or
it
constituted legitimate criticism of the respondent.
It
was hence denied that the appellants had caused the respondent any
injury to his dignity.
[7] In
regard to the second claim the appellants raised virtually the same
plea as in respect of the first claim. In addition they
admitted
having refused to apologise to the respondent. They denied, however,
that they were under any obligation to do so. For the
rest they
denied having defamed the respondent.
THE
EVIDENCE
[8] At
the commencement of the trial the court was requested to consider the
special plea relating to the settlement of the respondent’s
claim
for wrongful dismissal before the CCMA. Only LA Parker was called to
testify in this regard. After considering his evidence
and counsel’s
arguments, the learned magistrate dismissed the special plea.
Although the appellants have questioned the correctness
of this
ruling, it is not necessary, for present purposes, to give it further
consideration. Of some relevance, however, is LA Parker’s
evidence
on the merits of the respondent’s claims, particularly as elicited
during cross-examination. I shall return to it below.
[9] The
respondent’s brother, Dr Yusuf Allie, was not present on either of
the occasions founding the claims of the respondent.
He was hence
unable to testify as to the alleged
iniuria
or defamation. He
did testify, however, that LA Parker had told him, during a private
meeting, that the respondent had stolen certain
goods from the Elsies
River branch of Foodworld, which had been under his management at the
time. He had also marked down the prices
of goods bought by him. He
had admitted doing so and had asked for forgiveness. To make matters
worse, he had previously committed
theft while in the employ of the
Wynberg branch of Foodworld. Consequently Foodworld no longer wished
to retain him in its employ.
At a later stage, after the respondent
had been dismissed, W Parker confirmed to Dr Allie that the
respondent had stolen goods to
the value of R70,00 or R80,00. When Dr
Allie subsequently discussed these allegations with the respondent,
he denied that he had
stolen or marked down any goods and likewise
denied that he had admitted doing so or that he had asked for
forgiveness.
[10] The respondent testified that he was
permitted, as manager of the Elsies River branch of Foodworld, to
purchase goods on credit.
The procedure was that the items purchased
by him were to be recorded under his name in a credit book. This was
to be done by another
employee, and not by himself. Thereafter the
items would be checked by security on his departure from the
premises.
[11] On Sunday 4 January 1998 the respondent
wished to purchase goods to the value of between R60,00 and R80,00.
When he sought to
have his personal purchases recorded, the credit
book was missing. He therefore recorded them on a loose sheet of
paper that he gave
to the perishables manager, Mr Naseeb Gafoor, to
check and sign. On leaving the store the goods were checked by
security. A similar
situation arose a few days later, on 10 January
1998. In this case one Mr Hishamudien Sauied, the assistant store
manager, stapled
the sheet of paper recording the respondent’s
purchases into the credit book. He thereupon rewrote the record of
purchases into
the book. At no stage was it suggested to the
respondent that he had under-marked or under-priced any items.
[12] On Monday 12 January 1998 the said Sauied
informed the respondent that there was “something wrong” with his
book. He chose
not to disclose the problem, saying that one of the
directors would be in touch with him. Subsequently I Parker requested
him to
attend at LA Parker’s office the next morning. LA Parker, W
Parker and I Parker were present. The scene was set for the alleged
iniuria
when LA Parker said to him:
Mr
AK, you have been called in because certain allegations has [sic]
been made against you that you have taken goods without paying.
When the respondent asked what he had taken, I
Parker said it was “the stuff that was taken on the 4
th
of January … the stuff that Naseeb checked”. The respondent
admitted having taken the goods, pointing out that he had given the
paper to Naseeb to give to Sauied, who had to enter it in the
respondent’s book. When he asked who had made the allegations, they
did not disclose their source but requested him to return to the
store. They would let him know what was to happen.
[13] At this juncture the respondent’s counsel
asked him: “Did they raise the possibility of anything else that
you might have
stolen?” His reply was that they had asked him
about milk. His response had been that he had paid cash for milk for
his brother.
They were apparently satisfied with this explanation.
His counsel then asked: “Did they suggest that you had stolen the
milk as
well?” To this he responded: “Exactly”.
[14] The respondent denied having broken down and
admitting the allegations made against him. He had, however, been
“emotional”.
He could not say whether the Parkers had accepted
his explanation. At this stage his counsel posed the question: “How
did you feel
in the meeting being accused of theft?” His response
was that he had been “very upset and disturbed”, but only for a
short
while, because, on his return to the store, LA Parker had
called him by telephone and asked him not to mention their
discussion.
This gave him “some assurance that they must have
believed my story”.
[15] The respondent was not present at the meeting
at which the alleged defamation against him was committed. He was,
however, aware
of the meeting, which was followed up by a request, on
the following day, that he terminate his employment. He then realised
that
they had not believed his story, causing him to feel bitter.
This prompted him to institute proceedings before the CCMA. He agreed
there to settle his claim against Foodworld for wrongful dismissal on
the basis,
inter alia
, that the “allegations of theft”
against him be withdrawn. When he overheard LA Parker say, however,
that “ ’n skelm bly
‘n skelm en die wat saam met hom staan is
ook skelms”, he decided to institute the present action.
[16] The respondent’s case was closed without
further evidence being led on either the
iniuria
or
defamation. It would appear that the respondent’s counsel set great
store in this regard on the evidence elicited from LA Parker
in the
course of cross-examination, rendering further evidence unnecessary.
I now turn to his evidence.
[17] On the alleged
iniuria
LA Parker
testified that the respondent admitted, at the meeting with the
Parkers on 13 January 1998, having stolen goods from the
store, after
which he started crying and asking for forgiveness (he used the
Islamic term
mauf
). They were shocked at this, but wished to
keep the matter as quiet as possible and to resolve it amicably,
because the respondent
was a family member.
[18] At the
subsequent managers’ meeting where the alleged defamation took
place, LA Parker testified that he had asked the meeting
whether he
could “raise an issue that is a family matter” and test “the
feeling of how the managers felt at that time”. He
referred in this
regard to the “incident” at Elsies River, without mentioning the
respondent by name and without referring to
the alleged theft of
goods. None of the managers asked for any details and he assumed that
they already knew what had happened. The
main purpose of his raising
the issue was to establish whether they would object to his retaining
the respondent in the employ of
Foodworld until he could find
suitable employment elsewhere. Their response was that he should be
treated no differently from any
of them should they be in the same
position. The decision was hence taken to retrench the respondent.
[19] LA Parker was subjected to intensive
cross-examination by counsel for the respondent. He made it clear,
however, that the purpose
of the meeting on 13 January 1998 was to
establish the truth and to hear the respondent’s version relating
to the allegations of
theft made against him. He reiterated that the
meeting commenced with his saying to the respondent that there were
allegations that
he had taken goods without paying for them. No value
(R86,00 or otherwise) was attached to the goods in question. He then
testified:
We didn’t exert any
pressure on him, nothing like that, because he’s family and we
wanted to deal with this matter. My biggest
shock was if he had to
tell me listen, here’s the proof and he would have felt I accused
him falsely, and that pain to call my
uncle in the office to tell him
this was very traumatic for all of us. Nothing was said, we were all
quiet and he started crying
and he said I’m sorry, I mauf. Mauf
means I apologise for what I did. I didn’t pay for those goods.
[20] According to LA Parker, I Parker then asked
the respondent how long he had been engaged in this kind of conduct.
He replied that
it had been since December (1997). I Parker responded
that he thought he was lying, and that he had in fact been doing it
for a long
time. This prompted the following exchange between the
respondent’s counsel and LA Parker:
Well,
you will agree with me Mr Parker that it’s a shocking experience to
be accused of theft. - - - Yes.
And that’s really what you were doing? - - -
Yes, also the fact is, if he had to tell me listen, this is where I
wrote it down,
the book is at the office, it would have been cleared
up. We wouldn’t have been here today.
[21] A similar exchange took place in regard to
the subsequent meeting of managers. After telling them that he had a
family problem
he would like to deal with “but without setting a
precedent”, LA Parker asked for their support for a proposal that
he had. The
evidence then reads:
Yes?
- - - And I said to them, all of them know what happened at Elsies
River.
By that you were alluding to Mr Allie’s conduct
as you saw it? - - - Yes, not … (intervention)
And the way you saw it was theft? - - - The way I
saw it what he told me was theft.
Yes, all right. Carry on and every one would have
known that, everyone at that meeting? - - - None of them asked me
what it was, what
it’s about and I assumed they knew about
everything.
In other words you told everyone in that meeting
that you have a problem arising from Akbar Allie’s theft. - - - I
didn’t use
his name. I said I had a problem.
But that’s what they
would have understood? - - - Yes.
[22] A further exchange on the same theme appears
a little later in the record:
Now can I suggest to
you Mr Parker that once you said that to the 20 people assembled
there, the story would spread like wild fire.
- - - By their silence
to me, they knew already what had happened, because you know in a
company, in a family business like this
you know there are 50 people
working in that store. There’s a grapevine that these things could
possibly leak out.
Mr Parker, but it’s a little different, rumour
mongering, here is the chief executive officer of the Foodworld Group
saying, conveying
quite clearly to those present that I have an
employee, manager of Elsies River who is a thief. - - - I didn’t
say that.
I know, but they knew it, that’s how they
understood it. - - - I don’t know what they understood by that.
They never told me
what they understood.
I thought we had already covered that one Mr
Parker. You said that it … (intervention) - - - I assumed …
I assume it as well. Now you will agree with me
that it’s a very different category. This was normal rumour
mongering which happened
at a store, have you heard, have you heard.
To a meeting formally called by the chief executive officer where
unequivocal allegations
of theft are made. - - - It wasn’t called
for, for that, it was a normal manager’s meeting where it was
raised.
The question is very different Mr Parker isn’t
it? You seem reluctant to concede that. - - - I, I presumed that the
fact that they
didn’t ask me any questions they knew about it
beforehand.
It’s very different, isn’t it? - - - What is
different?
It’s very different having the chief executive
officer address the assembled store managers on the issue from your
normal rumour
mongering and gossiping which happens at store level?
Everyone would have left that meeting with the impression that you,
the chief
executive officer, had concluded that Akbar Allie was
guilty of theft and that you had a problem arising from that. - - - I
don’t
know what they would have concluded from there. Each one made
up their own mind most probably.
[23] W Parker testified that he had had a close
relationship with the respondent, his second cousin. He had in fact
arranged for him
to be employed by Foodworld. He had first became
aware of the allegations against the respondent when LA Parker told
him that "certain
irregularities" were taking place at the
Elsies River branch. This involved the failure to record or pay for
goods purchased
by the respondent at the branch. LA Parker asked W
Parker, because of his close relationship with the respondent, to
inform him that
he would be called in the next day to explain what
had happened. When W Parker raised the matter with him privately in
his office
at the Elsies River branch, the respondent had said in
Afrikaans: " Ek weet ek was verkeerd gewees". The situation
was
upsetting and awkward for W Parker, who then left the premises.
[24] At the meeting with LA, W and I Parker the
next day, the respondent had suggested that he had written up the
goods in question
in another book. He did not, however, have the
book. W Parker could not remember that under-pricing had also been
discussed, but
he confirmed LA Parker's evidence that the respondent,
who had become "visibly upset and emotional", appeared to
break
down and cry. He had admitted being involved in the alleged
conduct since the previous month, at which juncture I Parker had said
that he was lying, having done so since being previously employed at
the Wynberg branch of Foodworld. He then asked for forgiveness,
significantly using the Islamic term
mauf
, which is more
fundamental and sincere than a simple apology.
[25] W Parker likewise confirmed LA Parker's
version of what had happened at the subsequent manager's meeting. The
purpose of the
meeting was to determine the feeling of the managers
regarding the steps to be taken against the respondent as a result of
the irregularities
at the Elsies River branch. The respondent's name
was not mentioned and nothing was said about what he had allegedly
done. The managers
made it clear that he should not be given
preferential treatment.
[26] Three further witnesses, who had been
employees at the Elsies River branch of Foodworld at the time of the
incidents in question,
testified as to their perception of the
alleged irregularities committed by the respondent. They were Mrs
Naseema Banu Parker, an
office clerk, Mr Naseeb Gafoor, perishables
manager, and Mr Hishamadien Sauied, assistant store manager. Sauied
tendered the significant
testimony that, after the respondent's
meeting with the Parkers, he had returned to the store and confessed
to him (Sauied) that
he had been guilty of "changing the prices
and taking the goods on the Sunday". For the rest it is not
necessary, for present
purposes, to consider their evidence.
JUDGMENT OF THE COURT
A QUO
[27] The court
a quo
dealt in general, if
not in somewhat sweeping, terms with the evidence. The learned
magistrate emphasised the fact that, during the
respondent's meeting
with the Parkers, I Parker had accused the respondent of stealing
from his Wynberg days. He also observed that
LA and W Parker had
played with words and refused to concede "even the very basic
terms of what was said and documented in the
meetings". The
Parkers, he said, had ensured that all present at the meetings giving
rise to the respondent's claims knew that
they were referring to the
respondent and that "he was indeed caught out for stealing".
[28] Turning to the credibility of the respondent
as a witness, the learned magistrate was satisfied that he had made a
good impression.
In contrast with "a lot" of the witnesses
for the appellants, he was "never arrogant or over-confident"
and readily
conceded points he could not answer or remember. He was
not dishonest and did not fabricate evidence. Nor was his version
improbable
"as the defendants wish it to be".
[29] The learned magistrate was clearly not
impressed by the way in which the defence was presented. He
apparently agreed with the
suggestion by counsel for the respondent
that LA Parker was an arrogant bully with an oppressive style of
management. His "absolute
dominance of the business and family
oozed from his evidence", despite his attempts to conceal it.
His dismissal of the respondent
had in fact been the cause of a rift
in the family. The other defence witnesses were family members with
"a very big interest
in the case". They were more intent on
covering for themselves and saving their own skins than on telling
the truth. Their evidence
was poor, "not very truthful and
lacked credibility". Very little weight could be attributed to
it. The court therefore
had no difficulty in rejecting it in favour
of the respondent's evidence.
[30] The learned magistrate was extremely critical
of the conduct of the Parkers directly after the CCMA settlement had
been concluded,
in that it indicated that their retraction of the
allegations of theft against the respondent had not been sincere. LA
and W Parker,
he said, had "tried their utmost to colour in
their wretched hurtful words said at the CCMA". They had played
with words
and avoided giving direct answers to questions put to
them. W Parker was intent on protecting LA Parker and covering up the
contradictions
in his evidence. His testimony on the retraction at
the CCMA was insincere and "barely short of pathetic". In
like manner
his evidence relating to the managers' meeting was "very
clouded and contradictory". Not surprisingly he did not impress
the court as a witness.
[31] I do not propose to deal further with the
criticism directed by the court
a quo
at the defence evidence,
other than to observe that much of it turned upon the alleged
irregularities at the Elsies River branch
of Foodworld and on whether
or not the respondent had committed theft. My general impression is
that the learned magistrate approached
the matter as if it were a
criminal trial in which the respondent had been arraigned on a charge
of theft. After considering the
defence evidence he held that "the
defendants could not show that the plaintiff admitted to stealing or
that he did in fact
steal (be it false record, no record or
underpricing)". This was followed, I hasten to point out, by a
finding that the defence
of truth and public interest in regard to
the
iniuria
claim could not succeed.
[32] The defence of privileged occasion on the
iniuria
claim was dispensed with without much discussion. The
same applies to the defences of truth and public benefit, on the one
hand,
and qualified privilege, on the other, in regard to the
defamation claim. For present purposes it is not necessary to deal
with this
aspect of the judgment.
RELEVANT LAW
[33] The law relating to the delict of
iniuria
is well established and recorded in numerous authorities. Its
essential elements are:
factually determinable injury to or
impairment of a person's subjective feelings of dignity (
dignitas
)
or self-respect by means of insulting conduct or behaviour;
wrongfulness of such injury or impairment in
the sense that a reasonable person in the position of the plaintiff
would, objectively,
feel insulted; and
the deliberate intention to cause such injury
or impairment (
animus iniuriandi
).
The plaintiff bears the
onus
of proving the
factual element which, once established, gives rise to an inference
of unlawfulness and intent. The defendant may
then rebut this
inference by adducing evidence justifying his or her action. See in
general Jonathan Burchell
Principles of Delict
(1993) 192-211;
J Neethling, J M Potgieter and P J Visser
Law of Delict
(4
th
ed 2001) 13-17 and 353-361. In section 10 of the South African
Constitution (Act 108 of 1996) the "inherent dignity" of
all persons is respected and protected as one of the human rights
contained in the Bill of Rights.
[34] The delict of defamation is a form of
iniuria
that has, in the course of time, developed its own rules and
principles. It may be defined as the wrongful, intentional
publication
of words, conduct or behaviour directed at infringing, or
otherwise impairing, the right of a person to the good name, status
or
reputation he or she enjoys in the community or in society in
general. This is assessed by the stature attributed to him or her by
other right-minded and reasonable members of such community or
society. Inasmuch as it relates, therefore, to the opinion others
have of him or her, it is required that the defamatory words, conduct
or behaviour be published, in the sense of disclosed, to a
third
person. It follows, then, that the essential elements for a
successful defamation action are:
publication or disclosure by the defendant of
the defamatory words, conduct or behaviour to a third person, or to
more than one
person;
wrongfulness, in the sense that the ordinary
reasonable person with normal intelligence and development would,
objectively, be of
the view that the good name, status or reputation
of the defendant has been infringed or impaired;
the deliberate intention to cause such
infringement or impairment (
animus iniuriandi
).
The plaintiff bears the
onus
of proving
publication of the alleged defamation by the defendant. Once proven,
there is an inference that such publication was wrongful
and
intentional. The defendant may then rebut this inference by adducing
evidence to justify his or her action. See in general the
full
discussion in Burchell (par 31 above) 152-188. See also Neethling
(par 31 above) 337-353 and the authorities cited there. Inasmuch
as
the respondent does not rely on the secondary meaning of words
attributed to the appellants, it is not necessary to deal with
the
law relating to innuendo.
[35] In both
iniuria
and defamation claims
it is necessary to set forth, in the relevant pleadings, the words,
conduct or behaviour complained of. In
addition substantially the
same words as are pleaded must be proved. See
Hairman v Wessels
1949 (1) SA 431
(O) at 433-435;
International Tobacco Co of S A
Ltd v Wollheim and Others
1953 (2) SA 603
(A) at 613H-614A; L T C
Harms (ed)
Amler's Precedents of Pleadings
(5
th
ed
1999) 147.
APPLICATION OF THE LAW TO THE FACTS
[36] The evidence of Dr Yusuf Allie was of little
assistance to the respondent in that he was present at neither of the
meetings giving
rise to the claims in the present matter. If
anything, his testimony supported the case of the appellants on
whether or not the respondent
had admitted guilt and asked for
forgiveness at the meeting with the Parkers. The fact that LA Parker
told him that the respondent
had committed theft at the Elsies River
branch, and previously at the Wynberg branch, of Foodworld, does not
establish, or even support,
the contention that he was accused of
stealing goods to the value of R86,00 or, for that matter, to any
value.
[37] The respondent's own evidence was restricted
to his allegation of
iniuria
arising from the meeting with the
appellants and the fourth and fifth defendants on 13 January 1998
(par 3 above). It is clear from
his evidence that the fourth and
fifth defendants (par 2 above) were not even present and that W
Parker barely participated in the
discussion.
[38] From the respondent's evidence in chief (par
12 above) it appears that LA Parker at no stage accused him of theft,
but merely
informed him that he had been called in because "certain
allegations" had been made against him relating to his taking
goods without paying for them. He was clearly not being accused, but
was in fact being given an opportunity to tender an explanation.
And
this he did, after I Parker had told him that goods in question were
those taken by him on Sunday 4 January 1998. He then explained
that
he had taken the goods but had written them down on a piece of paper
he had given to Naseeb with the request that he give it
to Sauied,
who was to record it in his credit book.
[39] It is abundantly clear from this evidence
that the respondent had come nowhere near making out a case of
iniuria
based on an accusation that he had stolen goods, let
alone goods to the value of R86,00. None of the Parkers present at
the meeting
was implicated in any such accusation. This might have
prompted his counsel to ask a leading question (par 13 above) as to
whether
they had raised the possibility of anything else he "might
have stolen". At that stage there had been no mention of his
having stolen anything. In any event his answer, namely that they had
asked him about milk, contained no suggestion that they had
accused
him of stealing it. On the contrary they had apparently accepted his
explanation that he had bought the milk for his brother.
His counsel
then followed up with another leading question, namely whether they
had suggested that he had stolen the milk as well.
His answer,
"exactly", was incomprehensible and starkly contradictory
to what he had just testified.
[40] After the respondent's case had metamorphosed
from an accusation that he had stolen goods to the value of R86,00 to
an accusation
that he had stolen milk of an undisclosed value, one
would have thought that the respondent would reconsider his
iniuria
claim. Far from it. His counsel was apparently intent on eliciting
the required evidence by asking yet another leading question (par
14)
as to how he had felt being accused of theft! This had the effect of
placing words in the mouth of the respondent who, up to
that point,
had never even used the word "theft" or anything related to
it. His reply, namely that he had been "very
upset and
disturbed", was predictable. Quite unpredictable, however, was
his further evidence that this emotional state had
been of brief
duration, because LA Parker had called him soon afterwards and asked
him not to discuss the matter. This had created
the impression in his
mind that his explanation of the allegations against him had been
accepted.
[41] This is
clearly not the stuff that
iniuria
is made of. Despite
resourceful efforts by his counsel to fill the
lacunae
in his
case, the respondent was unable to make out a case of injury to or
impairment of his subjective feelings of dignity or self-respect.
On
his own version of the events leading up to the meeting with the
Parkers, he had committed irregularities by not following the
correct
procedures when making personal purchases from the store under his
management. This would clearly have justified a suspicion
of theft
and called for an explanation. From my reading of the record, he was
given all opportunity to put his case and he even gained
the
impression that he might have persuaded the Parkers that he was not
guilty of conduct unbecoming of a store manager. I respectfully
agree
with the learned magistrate that, had this been a criminal matter,
there would not have been sufficient evidence to justify
a conviction
on a charge of theft. Unfortunately the learned magistrate did not
give full consideration to whether or not the respondent
had
succeeded in proving (the
onus
being on him in this regard)
the factual element of
iniuria
(par 33 above).
[42] Mr Kirk-Cohen, for the respondent, attempted
to overcome the aforesaid difficulties in the respondent's case by
suggesting that
his evidence should be supplemented by evidence
elicited from LA Parker during cross-examination. The gist of LA
Parker's evidence
in chief (par 17 above) had been that, at the
meeting of 13 January 1998, the respondent had admitted stealing
goods from the store
and had asked for forgiveness.
[43] In cross-examination LA Parker reiterated
(par 19 above) that he had not accused the respondent of theft, but
had apprised him
of allegations that had been made against him. The
allegations had related to goods he had taken without paying for
them. At no stage
was any mention made of the value of the goods
(R86,00 or otherwise) and at no stage was he placed under any
pressure to confess
having stolen goods. On the contrary, because the
respondent was a member of the family, they had all wished to settle
the matter
with as little fuss as possible. It is in this context
that he testified: " … if he had to tell me listen, here's the
proof
and he would have felt I accused him falsely …" (par 19
above). This cannot be interpreted as an admission or concession that
he (LA Parker) had in fact accused the respondent falsely. It was
never put to him as such and was clearly never intended to be an
admission or concession.
[44] The outburst of I Parker, that the respondent
had been engaged in this kind of irregular conduct since the time of
his employment
at the Wynberg branch of Foodworld, cannot assist the
respondent. It was clearly provoked by the respondent's answer to I
Parker's
preceding question (par 20 above) and was not the basis of
the
iniuria
pleaded by the respondent. His case was that he
had been accused of stealing goods to the value of R86,00, not that
he had engaged
in theft or any other nefarious activities over a long
period of time.
[45] LA Parker's positive answers to the two
subsequent questions put to him by counsel for the respondent (par 20
above) cannot justify
an inference that he admitted having accused
the respondent of theft. In his answer to the first question, he
simply expressed concurrence
with the statement that it was "a
shocking experience to be accused of theft". Similarly his
response to the second question,
namely "that's really what you
were doing", was not couched as an admission or concession and
must be read in its full
context. It was never suggested to him that
he was admitting the respondent's allegations relating to
iniuria
and I have no doubt that, if this had been put to him, he would
inevitably have denied it.
[46] The respondent was not present at and did not
testify as to the alleged defamation perpetrated at the managers'
meeting later
on in January 1998. In this regard it appears that he
relied wholly on the evidence elicited from the defence, which helped
him not
at all. LA Parker's evidence as to what ensued at the said
meeting (par 18 above) was never placed in issue by any evidence
tendered
by or on behalf of the respondent. The purpose of the
meeting was clear: we have a family problem we would like to resolve,
but we
require your input as to what we should do. Their input was
unequivocal: do unto the family member as you would do unto us. At no
stage was the respondent's name mentioned, nor was there any
discussion as to what he had done to create the family problem. The
persons present were, it would appear, already fully apprised as to
the nature of the problem and realised that they were now simply
being pulsed on a policy matter.
[47] The attempt by counsel for the respondent, in
his cross-examination of LA Parker, to remedy the ailing defamation
claim, was
doomed to failure. On being asked whether he had seen the
respondent's conduct as theft (par 21 above) his response was that,
as
he saw it, from what the respondent had told him, it was indeed
theft. Once again this was no admission and, in fact, amounted to
no
more than an opinion. In a last-ditch attempt to elicit a concession
or, better still, an admission from LA Parker, the respondent's
counsel attempted once again to put words in his mouth. This appears
from the exchange (par 21 above) where he suggests that LA Parker
told everyone in the meeting that he had "a problem with Akbar
Allie's theft". In similar vein it was put to him (par 22
above)
that he had conveyed to the assembly that he had an employee, the
manager of the Elsies River branch, "who is a thief".
LA
Parker's denial of these allegations was clear and unequivocal.
[48] I find it puzzling why so much negative
comment should be attributed to the evidence of W Parker, simply
because he confirmed
LA Parker's evidence in all substantial
respects. Why should this be sinister and why should it characterise
him as dishonest and
no more than a lackey? Of course the judicial
officer, who has sight of the witnesses and is able to assess their
evidence from nearby,
is the person best equipped to gauge their
demeanour. The record of such evidence, however, speaks for itself.
If a witness is mendacious,
contradictory or evasive, this will
appear from the record. And if a judicial officer has justified
criticism of a witness or of
his or her evidence, the justification
for such criticism will normally also appear from the record. Even
more so will this be the
case when a credibility finding is made
against a particular witness. Although a court on appeal is reluctant
to interfere with credibility
findings made by the court of first
instance, it is not obliged to accept such findings if they should
not appear to be justified.
[49] With this in mind I must respectfully
question the validity of the learned magistrate's credibility
findings in the present matter.
They appear, in general, to have been
somewhat subjective and even emotive. It was never the respondent's
case that LA Parker had
been an arrogant bully with an oppressive
style of management, or that he had been an autocrat in business and
family affairs (par
28 above). Yet the learned magistrate held that
his "absolute dominance" in such affairs "oozed from
his evidence".
If LA and W Parker were arrogant and
over-confident in court, such conduct certainly did not show from the
record. The fact that
the defence witnesses were in the employ of
Foodworld did give them an interest in the case, but that does not
mean that their testimony
would of necessity be dishonest and biased.
Justified criticism might be directed at the conduct of the Parkers
directly after the
CCMA matter had been settled. This does not,
however, mean that their evidence should be rejected
in toto
.
[50] In my respectful view there is no justifiable
reason to reject the evidence of LA or W Parker. It was clear
throughout that they,
and the other members of the family, were
extremely upset at what had developed into a full-scale family rift.
They were intent on
resolving it in an amicable way, with the least
possible damage to the family and their business interests. The
respondent was not
suddenly confronted with serious allegations that
he was unable to consider in the time made available to him. He was
in fact forewarned
on 12 January that he would be summoned on 13
January 1998 to a meeting with the directors. He was told what it was
about and had
the opportunity to prepare himself for the meeting.
[51] Eventually it was only LA, W and I Parker who
were present at the meeting. W Parker was clearly a very reluctant
participant,
in view of his lengthy and very close relationship with
the respondent. At the very outset the respondent was given an
opportunity
to explain the allegations made against him. He made use
of the opportunity to tender an explanation and to reply to questions
ostensibly
aimed at clarifying his explanation. At no stage was he
pressured into making admissions or concessions. The outburst
attributed
to I Parker, as to the period during which the respondent
had allegedly been committing irregularities, arose only during
cross-examination
and from the confirmatory evidence of LA and W
Parker. It certainly does not appear to have perturbed the
respondent. He did not
even mention it during his evidence in chief.
This does not, of course, mean that the meeting was normal and happy.
It was clearly
awkward and painful to all the participants.
[52] I am somewhat less impressed than the
learned magistrate with the respondent's evidence. Apart from the
fact that he tendered
no evidence on which either of his claims could
be justified, much of what he said turned upon whether or not he had
stolen goods
or acted in conflict with prescribed procedures. For the
rest he simply denied the allegations against him. On his own version
he
had acted irregularly and it is probable that he conceded this at
the meeting with the Parkers. It is likewise probable that he
apologised
for his conduct. The fact that both LA and W Parker
testified as to his using the word
mauf
, an Islamic term of
apology denoting deep and sincere contrition, has the ring of truth
about it. This would explain his having become
upset and very
emotional, as he himself testified. Of course it may well be that he
was apologising for having acted in conflict
with established
procedures and not for having stolen goods. It may also be that the
Parkers misunderstood his apology as confirmation
of his having
stolen goods.
[53] Whether or not the respondent indeed stole
goods cannot, as mentioned before, be resolved on the evidence
tendered in this matter.
Whether or not the Parkers misunderstood the
respondent’s apology as indicating an admission of theft rather
than an admission
of committing irregularities in purchasing goods
for his own account, need not detain us. Whatever the situation, it
is clear that
he was never accused of stealing or of being a thief.
At most allegations to this effect were made and those were the
allegations
that were withdrawn (however insincerely) when the CCMA
case was settled.
[54] It follows that the respondent did not
provide a factual basis for either the
iniuria
or the
defamation claim and must hence be held not to have discharged the
onus
of proof resting on him in this regard. In my respectful
view the learned magistrate in the court
a quo
failed to apply
his mind to this essential aspect of the case. Inasmuch as he might
have been persuaded that the necessary proof
had been furnished by
the evidence of the respondent as supplemented by that elicited
during cross-examination from LA Parker, I
must respectfully differ
from him for the reasons set forth above.
CONCLUSION
[55] In the event the appeal must succeed on the
basis that the respondent failed to discharge the
onus
resting
upon him in regard to both the
iniuria
and defamation claims.
[56] On the issue of costs Mr Rose-Innes, for the
appellants, did not suggest that the costs on appeal should include
the costs of
two counsel, despite his being ably assisted by Mr
Fagan. He did, however, request that the order of costs in the court
a quo
should include the costs of one counsel on the Bar
Council tariff. Mr Kirk-Cohen, for the respondent, did not oppose
this request.
[57] I would
hence make the following order:
The appeal is upheld with costs.
The order of the court
a quo
is set
aside and substituted by the following:
“The plaintiff’s
claims are dismissed with costs, including the costs of one counsel
on the Bar Council tariff.”
D H VAN ZYL
Judge of the High Court of South Africa
I agree.
G JOSMAN
Judge of the High Court of South Africa