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1. This is an action in which the plaintiff claims payment for defamation, damage
to reputation and dignity , malicious proceedings, a loss of income claim and, in
the alternative, a malicious prosecution claim.
2. The plaintiff was employed by the first defendan t (“IDC”) as its Regional Officer
for the Limpopo Province and second defendant (“Bapela ”), the Regional
Manager, was the plaintiff ’s supervisor.
3. During 2017, the plaintiff was charged with misconduct for which he was found
to be guilty of all charges at a disciplinary hearing and dismiss ed.
4. The plaintiff then referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (“CCMA ”) which found that the plaintiff
was guilty of some of the acts of misconduct and not guilty of others.
5. The plaintiff ’s case against the IDC is that the allegations of misconduct
contained the Charge Sheet were incorrect , defamatory and malicious . The
case against Bapela is that he was the author of the Charge Sheet and acted
in concert with the IDC .
The amended particulars of claim
6. The amended particulars of claim contains four claims for defamation, four
claims for damage to reputation and dignity, four claims for malicious
proceedings, a loss of income claim and, in the alternative, a malicious
prosecution claim.
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7. The claims for defamation, damage to reputation and dignity and malicious
proceedings are based on the not guilty findings at the CCMA.
8. The first charge of conduct unbecoming of an employee in the position of the
plaintiff contained three occasions on which the plaintiff failed to attend
company events . Plaintiff was found to be not guilty by the CCMA arbitrator on
one of the acts of misconduct contained in this charge.
9. The plaintiff did not pursue a claim on the second charge of unethical or
disrespectful behaviour towards the IDC ’s clients as he was found to be guilty
of this charge at the CCMA.
10. The plaintiff was found to be not guilty on third to fifth charge s of
insubordination, poor work perfor mance and gross dishonesty, respectively.
11. The defamation claims are that the charges on which the plaintiff was found to
be not guilty were wrongful and defamatory , and intended to be understood by
readers of the Charge Sheet , who were part of the IDC ’s management and the
Chairperson of the disciplinary hearing, to mean that the plaintiff did not perform
his duties at the required standard and the defamatory allegations were made
with the intention to injure the plaintiff's reputation.
12. The damage to reputa tion and dignity claims are that the IDC made a false
representation to others, knowing that the charges were false and causing the
plaintiff to suffer loss from being unable to find gainful employment and
psychological trauma .
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13. The malicious proceedings cl aims are that the plaintiff was falsely charged by
the IDC and Bapela who had no reasonable or probable cause for doing so, nor
reasonable belief in the truth of the information given. The plaintiff ’s loss arose
from being unable to find gainful employment , psychological trauma, the costs
of counselling expenses for attending to the disciplinary hearing the CCMA
hearing.
14. The loss income claim is that the allegations contained in the Charge Sheet
influenced the plaintiff ’s future employability as a register ed chartered
accountant and t he disclosure of these charges to a potential employer would
render the plaintiff unemployable.
15. The alternative claim for malicious prosecution is that the IDC and Bapela had
no reasonable or probable cause or reasonable belief in the truth of the
information given amounting to a malicious prosecution. These allegations
influenced the plaintiff ’s future employability as a registered chartered
accountant and the disclosure of these charges to a potential employer would
render the plaintiff unemployable.
The defendants ’ plea
16. The defence to the defamation claims is that the that the publication is true,
alternatively substantially true, and was made in the public interest. Further,
Bapela was acting in the course and scope of his employment at the time that
he authored and issued the Charge Sheet and discharged his duty to the IDC
or exercised the IDC ’s right by publishing the charge to people who had a duty
or right to receive the information that was relevant to the disciplin ary hearing.
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17. The defence to the damage to reputation and dignity claims is a denial that ; the
publication is wrongful; the plaintiff can no longer find employment or the cause
of the plaintiff's failure to gain employment and that the publication caused t he
plaintiff to suffer psychological trauma. Further, Bapela was acting in the course
and scope of his employment at the time that he authored and issued the
Charge Sheet .
18. The defence to the malicious proceedings claims is that is a denial that the
publica tion is wrongful or malicious, that the plaintiff can no longer find
employment or the cause of the plaintiff's failure to gain employment . The
plaintiff was awarded compensation at the CCMA for the charges on which he
was found not guilty.
19. The defence to the loss of income claim is a denial that the publication
influenced the plaintiff ’s employability or its effects or is the cause of the
plaintiff's employability.
20. The defence to the for malicious prosecution claim is a denial that the
publication influen ced the plaintiff ’s employability or its effects or is the cause
of the plaintiff's employability.
The plaintiff ’s evidence
21. The plaintiff ’s evidence is that he is a Chartered Accountant and is currently
employed unemployed. He was employed by the IDC and his employment
ended in 2018. He challenged his dismissal at the CCMA which found that his
dismissal was substantively unfair and awarded the plaintiff compensation.
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22. The plaintiff compared the findings of the disciplinary chairperson to that of the
CCMA ar bitrator.
23. On Charge 1, which contained three events, he was found to be not guilty on
one of the events contained in this Charge 1 by the CCMA arbitrator. He claimed
that the Bapela fabricated the evidence on the other events.
24. On Charge 2, he was found g uilty by the discip linary chairperson and the CCMA
arbitrator and there is no claim on this charge.
25. On Charge 3, the plaintiff stated that he was found guilty of this charge by the
Chairperson and found not guilty by the CCMA arbitrator.
26. On Charge 4, the plainti ff stated that Bapela lie d on this charge as the plaintiff
received a rating of 3.2 above the threshold for non -performance.
27. The plaintiff was found guilty at the disciplinary hearing but was found not guilty
at the CCMA. The plaintiff claimed that Bapela lied on this charge that the
plaintiff received a score of under 3 and that Bapela was intentional in
misleading his performance rating. As a result, the IDC's Employee Relations
Department required the plaintiff to conclude a performance improveme nt plan.
28. On Charge 5, the plaintiff stated that a charge of dishonesty affected him
immensely. The plaintiff stated that he became a director of the companies after
he had made a written declaration and there was no need to provide a further
declaration.
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29. The plaintiff believes that the charge was fabricated, and that the plaintiff must
live with the consequences of this fabrication for the rest of his life as he will
have to disclose this charge each time he applies for employment.
30. The amended Charge She et was distributed by e -mail to the IDC's legal
representative and the Chairperson. The Chairperson did not have the right to
receive the Charge Sheet as the IDC had to give the plaintiff a list of arbitrators
and follow due process.
31. Bapela acted with malice as he knew that the plaintiff would be harmed by false
charges and that the Charge Sheet was shared with internal staff. Further, the
plaintiff ’s dismissal from the IDC's employment was widely shared.
32. The plaintiff indicated that despite Bapela promoting the plaintiff in the previous
year, Bapela did not take this into account in his most recent performance
assessment. Plaintiff believes that Bapela wanted to harm him.
33. Plaintiff gave evidence of his mental well -being stating that he beca me
frustrated and paranoid as he had to disclose the charges brought against him
with any potential employer. However, plaintiff only applied at one organi sation
for employment and then embarked into entrepreneurship.
34. On the plaintiff ’s loss, he is the ev idence was that he earned a gross salary of
R 107 737.80 and lost R 1.2M but provided no justification for the loss.
35. The plaintiff summarized his evidence that charge 1(d), charge 3 and charge 5
were unfair and that these charges were factually incorrect.
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Plaintiff ’s cross -examination
36. The defendants Counsel commenced cross -examination by relying on the
employer ’s authority to institute disciplinary processes against employees.
37. The plaintiff agreed that Bapela was his line manager and that Bapela had
Counse lled him together with the Employee Relations Department.
38. The plaintiff also agreed that the people to whom the Charge Sheet was made
available were necessary as these people were required to have regard to the
Charge Sheet in terms of their job functions.
39. On charge one, the plaintiff ’s claim is based on the events in C harge 1D.
Charge 1 contains three events for which the plaintiff was found guilty on 2 by
the disciplinary chairperson and at the CCMA . Despite the findings of guilt, the
plaintiff stated tha t he should have been subjected to progressive discipline.
40. On Charge 2, the plaintiff agreed that he did not bring a claim on this charge
despite this charge being one of conducting himself unethically and
disrespectfully. Plaintiff agreed that this is a serious charge.
41. On Charge 3, the plaintiff stated that h is conflict with Bapela started with his
first performance review and thereafter Bapela reduced the plaintiff ’s workload.
Plaintiff agreed that Bapela ’s conduct did not indicate motive.
42. The plaintiff agreed that on Charge 4 he was initially rated with a performance
rating of 2.9 which was amended by the moderating committee to a
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performance rating of 3.1. Plaintiff could not dispute that Bapela motivated for
the higher rating at the moderating committe e.
43. Plaintiff also agreed that he's performance ratings for the previous years
showed a history of deteriorating performance ratings. The plaintiff agreed that
Bapela's motivation to the moderating committee cannot be reconciled with
motive.
44. On charge 5, th e plaintiff stated that he registered shelf companies with the
intention to trade once these companies had reached a certain maturity.
45. The plaintiff also stated that he was not turned down from any employment
because of the charges contained in the amended Charge Sheet .
46. The plaintiff accused the chairperson of being a hired gun without providing any
evidence, therefore.
Plaintiff ’s re-examination
47. In re-examination, the plaintiff reiterated his examination -in-chief.
Defendant ’s examination -in-chief
48. Bapela gave evidence for the defendants. He confirmed that he signed the
amended Charge Sheet as a line manager. The Charge Sheet was published
after Bapela pieced together a sequence of events that was shared with the
IDC’s Senior Employee Relations specialist. Bapela prepare d the charges but
that these were finali sed by the Senior Employee Relations specialist. These
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charges were vetted, tested and checked by the IDC a Line Manager cannot
send out a Charge Sheet without the involvement of the E mployee Relations
Department .
49. Bapela stated that those persons who were privy to the Charge Sheet were all
involved in some way or the other in employee relations and necessary to the
disciplinary hearing.
50. On Charge 1, Bapela explained that the employee displayed a pattern of
deteriorating behaviour . The IDC’s Limpopo office is a small o ffice and was not
performing optimally. The IDC ’s Chief Executive Officer visit to the Limpopo
office w as an important event and required all employees to be present .
51. The plaintif f was a senior member of the team and as the IDC’s Chief Executive
Officer knew the employees at the Limpopo office by name, it was important for
the plaintiff to be present at the meeting. The plaintiff was absent for the visit by
the IDC ’s Chief Executive Officer and another event which was unacceptable.
52. On Charge 2, the IDC is a funding organi sation with rules for screening and
credit checks. It is important to communicate with clients however, the plaintiff
told a client that he was delinquent, and that the plaintiff was informed that the
client was involved in illicit dealings. The plaintiff exposed the IDC to potential
litigation and tarnished the name of the organi sation.
53. On Charge 3, the plaintiff was reluctant to conduct a due diligence exer cise.
The plaintiff was charged with misconduct as he took leave in the middle of a
due diligence exercise and sent an e -mail to that effect to Bapela.
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54. The plaintiff ’s e-mail was sent to the Employee Relations Department for the
advice and the decision was made to charge the plaintiff with misconduct.
Further, due to the plaintiff ’s reluctance to assist in the due diligence exercise a
junior colleague had to take up the plaintiff ’s duties.
55. On Charge 4, the plaintiff agreed that he obtained a performance rat ing of 2.9
which was increased after moderation to 3.1. Bapela confirmed that he
motivated in favour of the plaintiff before the moderating committee. The
motivation for adjusting the plaintiffs scoring was because the plaintiff worked
on complex transacti ons.
56. The reason that the plaintiff was charged for this misconduct is that he
consistently performed badly, and a pattern was emerging of deteriorating
behaviour and scoring. Further, juniors in the workplace were scoring higher
than the plaintiff who seem ed unmotivated to work.
57. On Charge 5, Bapela stated that employees must update their declaration
forms and inform the employer that employees are conducting outside
business. The reason that the plaintiff was charged with this misconduct is that
the plaintiff boasted to coworkers that despite not receiving a performance
bonus, he would not be affected due to his additional earnings from other
companies.
58. Bapela maintained that the content of the charges was factually correct, and
that the IDC followed the prescripts of labour legislation. Bapela did not want
the plaintiff to be dismissed and maintained the disciplinary chairperson was
not a hired gun.
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Bapela ’s cross -examination
59. On Charge 1, Bapela confirmed that the plaintiff was not present for the mee ting
with the IDC’s Chief Executive Officer. Bapela confirmed that the plaintiff
displayed a pattern of behavio ur that constituted misconduct and that Bapela
counselled the plaintiff on this issue .
60. On Charge 3 , Bapela confirmed that the plaintiff refused to get a carry out an
instruction and do the work assign ed to him.
61. On charge 4, Bapela confirmed that he motivated for the plaintiff before the
moderation committee and that over a three -year period, the plaintiff ’s
performance rating deteriorated. Bapela maintained that the plaintiff ’s factual
score under 3 was sufficient to charge the plaintiff and that the final adjusted
score of 3.1 came about after he motivated in favour of the plaintiff.
62. On charge 5, Bapela accepted that the declaration form w as completed before
the companies displayed on the Charge Sheet were registered. However,
employees are duty bound to make annual declarations.
63. Bapela denied that the charges were not an accurate reflection of the facts but
admitted that the Charge Sheet could have reflected the facts better.
Analysis
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64. In Argus Printing and Publishing Co Ltd and Others v Esselen's Estate ,1 the
Appellate Court held that:
“… the test as to whether a reasonable person of ordinary intelligence might
reasonably understand the words of the article to convey a meaning
defamatory of the plaintiff (see at 767E -F). This is unquestionably the correct
approach and, as this formulation indicates, the test is an objective one. In the
absence of an innuendo, the reasonable person of ordi nary intelligence is
taken to understand the words alleged to be defamatory in their natural and
ordinary meaning. In determining this natural and ordinary meaning the Court
must take account not only of what the words expressly say, but also G of
what the y imply …”
65. The plaintiff ’s claim is that the mere publication of the Charge Sheet is
defamatory as the charges on which he was found not guilty at the CCMA were
based on incorrect facts.
66. There is no disagreement that there was a publication but that the pub lication
was qualified as was considered i n Clover SA (Pty) Ltd and another v
Sintwa ,2 where the court held :
“[13] It is trite law that publication of defamatory material in privileged
circumstances is justified and, therefore, lawful.
[14] As this case concerns qualified (as against absolute) privilege, it
becomes necessary to draw a distinction between "discharge of a duty
1 1994 (2) SA 1 (A) at 20 E -G
2 [2016] 12 BLLR 1265 (ECG) at para. 13 to 21
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or furtherance of an interest" and "judicial and quasi -judicial
proceedings" as part of the few categories of qualified privilege that
have developed in our law. For reasons that will become clearer
shortly, the distinction is not without significance.
[15] "Discharge of a duty or furtherance of an interest" is present where a person
has a legal, moral or social duty or a legitimate interest in making defamatory
assertions to another person who has a corresponding duty or interest to
learn of the assertions. Consequently, the key question is whether such a
duty or interest is present in the case of both the defamer and the bystander.
In the event of it being proved (by means of the reasonable man test) that
both parties had a corresponding duty or interest, the defendant must prove
that he acted within the scope or limits of the privilege. This is done by
proving that the d efamatory assertions were relevant to, or reasonably
connected with, the discharge of the duty or furtherance of the interest.
[16] In an instance of defamatory statements made during the course of judicial or
quasi -judicial proceedings, however, the posi tion is slightly (but significantly)
different. To enjoy provisional protection, the defendant need only prove that
the statements were relevant to the matter at issue. Once that is achieved a
duty is cast on the plaintiff to prove that, notwithstanding th e statements'
relevance, the statements were not supported by reasonable grounds. The
onus resting on the defendant to establish that the statements were relevant
has been held to be a full onus, as opposed to an evidentiary burden, and the
required quantu m of satisfaction is therefore on a balance of probabilities.
[17] In both categories of qualified privilege dealt with above, the plaintiff may,
even if the defendant establishes provisional protection, show that the
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defendant exceeded the limits of the privilege because he acted with an
improper motive (malice).
[18] Because the line of distinction between these categories of privilege subject
to discussion may sometimes be blurred or hard to draw, the risk of conflating
the applicable principles is always high.
[19] In sum, therefore, a litigant relying on qualified privilege, which is what the
instant case is about, must establish the following requisites:
(a) that the occasion is privileged; and
(b) that the defamatory statements complained of were relevant to the
purpose of the occasion. Once it is accepted that the statement fell
within the bounds of a qualified privilege the onus shifts to the plaintiff
to prove that the defendant was malicious.
[20] In Zwiegelaar v Botha the plaintiff sued the defendant for defamation arising
out of a statement made by the defendant while testifying under oath at a
meeting of creditors of a close corporation which was in the process of being
wound up. In upholding the defence of qualified privilege the court held:
‘Generally, a witness enjoys a qualified immunity or privilege in
respect of defamatory statements made during the course of legal
proceedings. This qualified immunity applies not only to proceedings
in a court of law but also to proceedings before certain quasi -judicial
bodies, including, for instance, a judicial commission of enquiry
(Basner v Trigger 1946 AD 83, and apparently any tribunal recognised
by law (see Burchell The law of Defamation in South Africa at 254). It
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was not disputed that this qualified immunity will generally extend to
inquiries of the kind at which the defendant testified and made the
statement forming the subject -matter of the present proceedings (cf
Allardice v Dowdle 1965 (1) SA 433 (D) at 436 C). The qualified
nature of the immunity is such, however, that once the circumstances
giving rise to the immunity are established, the plaintiff is entitled to
'destroy' or 'defeat' the immunity or privilege by showing, inter alia that
the defendant, in maki ng the defamatory statement, was actuated by
malice in the sense of an improper or indirect motive, as explained in
Basner v Trigger (supra at 94 -5) (see Joubert and others v Venter
(supra at 699)). ’
[21] Even though the CCMA is not part of the judiciary and thus an administrative
tribunal, its proceedings are quasi -judicial in nature. The functions performed
by the CCMA have been held to be "substantially similar in form and
substance to those performed by a court of law", even though the CCMA is
not a co urt of law. ”
67. Plaintiff and the defendants agreed that the resolution of this matter is based
on the above test and that qualified privilege should be considered.
68. The enquiry is then objective and based on reasonableness , firstly, whether the
wording of the charges on which the plaintiff was found not guilty at the CCMA
were unreasonable and objectively defamatory. Secondly, the defendant should
prove that the wording of the charges was relevant to disciplining the plaintiff
and if that is achieved, the n thirdly, the duty is on the plaintiff to prove that the
wording of the charges was not supported by reasonable grounds.
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69. There is no disagreement that r easonableness requires that the context of the
Charge Sheet should be considered. The publication of the Charge Sheet
should be viewed within its context in the employment relationship to discipline
employees .
70. A Charge Sheet is issued by an employer to commence disciplinary
proceedings against an employee and contains allegations of mi sconduct that
the employer will rely on to discipline an employee. The employee has the right
to respond to the charges and present evidence in defence at a disciplinary
hearing .
71. The plaintiff ’s evidence relied on the incorrectness of the charges that he was
found not guilty at the CCMA. In OEH Abantu v (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and others ,3 the Labour Appeal
Court favoured reasonableness as the standard of care that an employer
should take in drafting charges:
“[15] One of the key elements of fairness is that an employee must be
made aware of the charges against him. It is always best for the
charges to be precisely formulated and given to the employee in
advance of the hearing in order to afford a fair opportu nity for
preparation. The charges must be specific enough for the employee to
be able to answer them. The employer ordinarily cannot change the
charge, or add new charges, after the commencement of the hearing
3 [2019] 12 BLLR 1304 (LAC) at para. 15 -16
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where it would be prejudicial to do so. Howeve r, by the same token,
courts and arbitrators must not adopt too formalistic or technical an
approach. It normally will be sufficient if the employee has adequate
notice and information to ascertain what act of misconduct he is
alleged to have committed. Th e categorisation by the employer of the
alleged misconduct is of less importance.
[16] Employers embarking on disciplinary proceedings, not being skilled
legal practitioners, sometimes define or restrict the alleged misconduct
too narrowly or incorrectly. For example, it is not uncommon for an
employee to be charged with theft and for the evidence at the
disciplinary enquiry or arbitration to establish the offence of
unauthorised possession or use of company property. The principle in
such cases is that pr ovided a workplace standard has been
contravened, which the employee knew (or reasonably should have
known) could form the basis for discipline, and no significant prejudice
flowed from the incorrect characterisation, an appropriate disciplinary
sanction m ay be imposed. It will be enough if the employee is
informed that the disciplinary enquiry arose out of the fact that on a
certain date, time and place he is alleged to have acted wrongfully or
in breach of applicable rules or standards. ”
72. Further, the plai ntiff did not claim defamation on the charge that he was found
to be unethical. It is inconceivable that the plaintiff could then claim defamation
or relief on the remaining claims.
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73. Bapela ’s evidence was that the charges against the plaintiff were reasona ble,
and he was not challenged on the wording, the relevance or the
reasonableness of the charges.
74. Bapela, the plaintiff ’s supervisor, noticed the plaintiff ’s workplace misconduct
and reported it to the IDC ’s Employee Relations department to formulate the
charges against the plaintiff. The plaintiff did not challenge the reasonableness
of the charges and wrongly focussed on the correctness of the charges .
75. Further, in cross -examination, the plaintiff conceded on material issues that ; he
did not challenge the CCMA finding that he was unethical, Bapela ’s conduct did
not demonstrate motive, Bapela motivated for a higher scoring before the
Moderation Committee, the plaintiff had applied for one job offer and that the
plaintiff also was not turned down from any employment because of the charges
contained in the amended Charge Sheet.
76. The plaintiff ’s concessions demonstrate that there are no defamatory
statements contained in the charges that he was found not guilty at the CCMA.
77. Consequently, the plaintiff cannot succeed on the defamation claims.
78. On the claims for damage to reputation and dignity claims the plaintiff relies on
the false representation made by the IDC to other s. The plaintiff again relied on
correctness over reasonableness. The plaintiff did not pr ove that the
representations made in the Charge Sheet were false or unreasonable, apart
from broad statements that Bapela had lied. Further, the plaintiff ’s claims rely
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on the CCMA findings that found him not guilty, but the plaintiff led no evidence
on issue that he was not reinstated by the CCMA .
79. Despite tendering evidence of his mental state after his dismissal, the plaintiff
provided no expert evidence to support his claim.
80. Consequently, the plaintiff cannot suc ceed on the claims for damage to
reputation and dignity .
81. On the claims for malicious proceedings and malicious prosecution , the plaintiff
must prove that the disciplinary hearing was brought with the object to injure
the plaintiff and an impairment of the relevant aspect s of his personality to
succeed in the claims for malicious proceedings. These claims cannot succeed
after the plaintiff conceded in cross -examination that the Bapela ’s conduct did
not demonstrate motive.
82. The loss income claim is a claim in delict that requires the plaintiff demonstrates
a nexus between the wrongful act and the loss, and the loss should be
assessed b y making the best use it can of the evidence before it.4
83. The loss of income and malicious proceedings claims was not seriously
pursued by the plaintiff in evidence. The plaintiff ’s evidence lacked material
information to support the claim apart from the plaintiff ’s statement that he was
now unemployable after he applied for one job offer and that he was not turned
4 See: Everson v Allianz Insurance Ltd. 1989 (2) SA 173 (C) at 174 I to 175 F