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“autocrat” and a “bully” in her conduct of the Board’s affairs, and in her
dealings with the Board’s staff.
2 Mr. Motsepe admits he made those remarks, but he is defending the claim,
and now seeks discovery of a number of documents he says are relevant to the issues defined in the pleadings. There are 23 items listed in Mr. Motsepe ’s
discovery schedule. However, at the hearing of this matter, Mr. Sikhakhane, who appeared for Mr. Motsepe, accepted that items 3 to 16 in the schedule
could no longer reasonably be sought, since Ms. Mulaudzi could only have the documents specified in those items in her capacity as chief executive of the Board. Since Ms. Mulaudzi is no longer the Board’s chief executive, she no longer possesses or controls the documents, and, for that reason, can no
longer be expected to discover them.
3 The remaining items in the schedule specify documents that are said to be
relevant to assessing Ms. Mulaudzi’s personal income and wealth (items 1, 2
and 18 to 23) , and to working out whether she had anything to do with
disseminating the defamatory matter outside the meeting in which it was published (item 17). In the first place, it was submitted that Ms. Mulaudzi’s
particulars of claim went beyond the usual pursuit of general damages for injury to dignity, and sought a specific amount for patrimonial loss caused by damage to her reputation. If that was so, Mr. Sikhakhane argued, then Ms. Mulaudzi’s wealth and earning capacity were relevant to the assessment of her damages. Secondly, it was submitted that, if she had a hand in publicising Mr. Motsepe’s defamatory remarks, then the nature and extent of the steps
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she took to disseminate the defamatory material were relevant to any quantum
of damages to which she may ultimately be entitled.
4 I am convinced of neither of these propositions. While it is appropriate in
principle to claim for patrimonial loss caused by a defamatory publication (see Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA),
paragraph 91), such a claim must be pleaded. If it is not pleaded, then
damages arising from the claim may not be awarded. Ms. Mulaudzi’s particulars of claim do not seek recompense of that sort. Paragraphs 16 and 17 of her particulars of claim can only sensibly be read to claim for sentimental damages arising from injury to her dignity. Her income and wealth are accordingly irrelevant to any issue defined in the pleadings, and documents sought for the sole purpose of assessing her financial worth are not discoverable.
5 Item 17 of Mr. Motsepe’s schedule seeks “[a]ll records relating to both [Ms.
Mulaudzi’s] business and personal cellular phone usage including short messages (SMSs), call log[s], WhatsApp's messages, telegrams, messages for the period from [Ms. Mulaudzi’s] employment date [at the Board] to present”. Mr. Sikhakhane submitted that these records are requested to prove an allegation in Mr. Motsepe’s plea that Ms. Mulaudzi was herself responsible for any dissemination of Mr. Motsepe’s remarks beyond the meeting. Leaving aside the startling overbreadth of records sought, none of the material referred to in item 17 is discoverable, because it would at best tend to prove or disprove a fact that Ms. Mulaudzi never placed in issue. In other words, Ms. Mulaudzi’s particulars of claim, properly construed, do not allege that Mr. Motsepe
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disseminated his remarks outside the meeting. There was, accordingly, no
need for Mr. Motsepe to deny that allegation in his plea.
6 Neither party specifically alleges that Mr. Motsepe’s utterances about Ms.
Mulaudzi were disseminated beyond the meeting at which they were made.
Mr. Sikhakhane argued that paragraph 13 of the particulars says that Mr. Motsepe’s utterances were “distributed”, which implies, so it was submitted, that he disseminated them beyond the meeting. I do not agree. Paragraph 13
of the particulars cannot reasonably be read as an allegation that Mr. Motsepe “distributed” his prima facie defamatory remarks outside the 15 November
2019 meeting. The use of the word “distributed” is, I accept, odd to the point of being inapt, but what is really meant by the sentence is that Mr. Motsepe’s
remarks “were understood by the person[s] to whom they were distributed to
impute that [Ms. Mulaudzi] consistently, and over a period of time, [was] failing
to uphold . . . professional standards” (particulars of claim, paragraph 13) . The
point is not to allege that Mr. Motsepe “distributed” his remarks beyond the
meeting, but rather to allege that his remarks in the meeting would have
lowered Ms. Mulaudzi in the esteem of anyone who heard them. That is something different.
7 For all these reasons, none of the material sought in the schedule is
discoverable. It is either no longer in Ms. Mulaudzi’s possession or is irrelevant
to the issues defined in the pleadings. The application to compel discovery must fail.
8 I am not inclined to make any costs order. Although Mr. Motsepe has been
unsuccessful, the manner in which Ms. Mulaudzi has defended the application