Allie v Foodworld Stores Distribution Centre (Pty) Ltd and Others (353/02) [2003] ZASCA 151; [2004] 1 All SA 369 (SCA) (2 December 2003)

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[2003] ZASCA 151
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Allie v Foodworld Stores Distribution Centre (Pty) Ltd and Others (353/02) [2003] ZASCA 151; [2004] 1 All SA 369 (SCA); 2004 (2) SA 433 (SCA) (2 December 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case
no: 353/02
In
the matter between:
AKBAR
ALLIE
Appellant
and
FOODWORLD
STORES DISTRIBUTION
First Respondent
CENTRE
(PROPRIETARY) LIMITED
LIYAQAT
PARKER
Second Respondent
WAZIER
PARKER
Third Respondent
ILYAS
PARKER
Fourth Respondent
_______________________________________________________
Coram
:
Navsa,
Nugent and Conradie JJA
Date
of hearing:
13 November 2003
Date
of delivery:
2 December 2003
Summary: Defamation
and
iniuria
─ whether established on the evidence ─defence
of truth and public benefit ─ powers of Court of Appeal to reverse
credibility
findings.
.
_______________________________________________________
J U D G M E N T
_______________________________________________________
NAVSA
JA:
[1] The
appellant, Mr Akbar Allie was formerly employed as a supermarket
manager by the first respondent, a company with limited liability.
Subsequent to the termination of his services he instituted a
delictual action for damages in the Goodwood Magistrates’ Court
against
six defendants, including the four respondents, claiming
first, that on Tuesday 13 January 1998 the second to fourth
respondents
and two other individuals, acting within the course and
scope of their employment with the first respondent accused him of
theft
of R86-00, thereby impairing his dignity and second, that on a
subsequent day in January 1998, in the presence of other employees
of
the first respondent, they called him a thief thereby defaming him
and that in these circumstances they and the first respondent
were
liable to him in amounts of R20 000-00 and R80 000-00
respectively.
[2] In
the magistrate’s court the first to third respondents were the
first to third defendants respectively and the fourth respondent
was
the sixth defendant.
[3] I
will for the sake of convenience refer to the first respondent as the
company, the second respondent as LA, the third respondent
as Wazier,
the fourth respondent as Ilyas and the appellant as Akbar. LA is the
company’s chief executive officer and the other
respondents are
directors who are involved in managing the company’s affairs.
[4] The
company raised a special plea that Akbar was precluded from bringing
the action, in that following on a referral by him to
the Commission
for Conciliation, Mediation and Arbitration (‘the CCMA’) in terms
of labour legislation, he had, against payment
of an amount of R12
000 -00 and the withdrawal of the allegations of theft, settled all
claims against it.
[5] In
respect of the merits the respondents denied that they had alleged
that Akbar was a thief on any one of the two occasions and
in the
alternative, if they had, denied they acted wrongfully for one or all
of the following reasons:
the allegations were
true or substantially so and they were in the public interest, in
that they concerned Akbar’s honesty and
his suitability for
continued employment by the company;
the allegations were
made in the course of an enquiry into Akbar’s honesty and his
suitability for continued employment and they
were made to persons
who had a duty or right to hear them;
the allegations
constituted legitimate criticism of Akbar.
[6] The
magistrate dismissed the special plea and concluded that Akbar had
proved his claims against the respondents as set out in
the order
made by him and that they had failed to establish any of the
justifications pleaded. He made the following order:
‘
1.
I find that the 2
nd
, 3
rd
and 6
th
defendants are indeed liable in terms of claim 1 and the 2
nd
defendant in terms of claim 2.
2.
As all of them acted in the course and scope of their employment with
the first defendant that means that the 1
st
defendant is
also liable on both claims.
3.
Against the 4
th
and 5
th
defendants both claims
are dismissed with costs.
4.
Against the 3
rd
and 6
th
defendants claim 2 is
dismissed with costs.
5.
Against the 1
st
, 2
nd
, 3
rd
and 6
th
defendants the first claim is granted for R7500-00 jointly and
severally, the one paying the other to be absolved with costs.
6.
Against the 1
st
and 2
nd
defendants claim 2 is
granted for R15 000-00 jointly and severally, the one to pay and the
other absolved with costs. The cost is
on the normal party/party
scale, but is to include the costs of one junior counsel and his
costs is to be on the usual Bar council
tariff.
7.
The above is granted with interest from date of this judgment.’
[7] On
appeal the Cape Provincial Division (Van Zyl and Josman JJ)
overturned the magistrate’s order and substituted it as follows:
‘
1. The appeal is
upheld with costs.
2.
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.’
[8] Van
Zyl J reversed material credibility findings by the magistrate
holding that they were emotive and subjective and based mainly
on
demeanour without proper consideration of the evidence.
[9] Whilst
noting that a court of appeal would be slow to interfere with
credibility findings, Van Zyl J concluded that it is not
bound to
accept such findings if on the record they do not appear to be
justified.
[10] After
a detailed analysis of the evidence Van Zyl J held that the
magistrate had wrongly rejected the respondents’ witnesses’
version of events and that his assessment of their credibility was at
odds with the evidence. He was less impressed by Akbar’s
evidence
than was the magistrate.
[11] On
the view he took of the evidence the learned judge came to the
conclusion that in respect of the first occasion referred to
in para
[1] above, Akbar had not been called a thief but had been asked to
deal with allegations of irregularities reported to LA
by other
members of staff. Van Zyl J considered that on Akbar’s own evidence
that he had made use of the opportunity at that meeting
to tender an
explanation and to respond to questions, there was no factual basis
for the
iniuria
claim.
[12] In
respect of the second claim based on communications made at a meeting
of the company’s managers at which Akbar was not present
the
learned judge took the view that since Akbar’s name was not
mentioned nor details supplied of the ‘problem’ discussed the
factual basis for a defamation claim had not been established.
[13] Van
Zyl J held that on the available evidence he could not resolve the
issue of whether Akbar had stolen goods and did not consider
it
necessary in the course of his judgment to determine whether Akbar
had confessed to theft on Tuesday 13 January 1998 as testified
to by
LA and Wazier.
[14] Akbar
appeals against the judgment and order of the Cape High court,
seeking to have the magistrate’s order reinstated. The
judgment of
the Court below is reported as
Foodworld Stores Distribution
Centre (Pty) Ltd and Others v Akbar Allie
2002 (3) All SA 200
(C). The present appeal is with the leave of that Court.
[15] It
turns on an evaluation of the evidence. Regrettably, this involves
dealing with the background and the evidence in some detail.
It will
also be necessary in the course of this judgment to consider the
circumstances in which a court of appeal is entitled to
upset
credibility findings by a trial court.
[16] At
material times the company employed the appellant as a manager at a
supermarket in Elsies River in the greater Cape Town metropolitan
area. The store managed by the appellant is part of a supermarket
chain owned and operated by the company. The Elsies River store
employed forty-five people and the chain approximately seven hundred.
[17] The
incidents that gave rise to the appellant’s claims flowed from the
company’s practice of allowing their supermarket managers
to make
purchases on credit at a discount within stores they managed. The
procedure in terms of which purchases were to be made was
well known
and at the time of the incidents in question was as follows:
A book personal to the
manager was made available in which the purchases were to be written
up. The book was kept within the supermarket.
A non-purchasing
manager or supervisor was required to write up the purchases and to
append his signature to indicate that he had
checked the items and
the prices. The purchases would be rung up at a designated till. The
original note recording the purchases
would be removed from the book
and would then be handed to the purchasing manager to hand to a
security officer who would check the
contents of shopping packets
against the note and who would, if everything was in order, hand it
back after signing to indicate a
security clearance. A carbon copy of
the note was retained in the book and the totals due by the manager
would on a later occasion
be calculated and recorded by
administrative staff for recovery.
[18] It
is convenient at this stage to consider a summary of the respondents’
version of events.
[19] On
Saturday 10 January 1998 in Akbar’s absence LA paid a visit to the
Elsies River store. A supervisor at the store, one Naseema
Banu
Parker (‘Banu’) reported to him that Akbar had been taking goods
without paying, achieving this by recording goods removed
by him from
the shop in a ‘phantom book’, that is, in an unofficial book that
was kept from the company so that he was not billed
at the end of an
accounting period. Banu and another employee, Sakina Parker
(‘Sakina’) also informed LA that when Akbar
did
record
purchases in the official book he under priced items. To substantiate
their claims they produced the official book, which
LA inspected and
in which he was shown that items purchased by Akbar on that day had
prices allocated lower than the marked prices
of the items on the
shelf. LA was informed that the official book did not contain a
record of items ‘purchased’ by Akbar on 4
January 1998.
[20] LA
asked Mr Hishamudien Sayed (‘Sayed’), the assistant manager for
an explanation. Sayed explained that earlier that day,
instead of
following company procedure as described earlier, Akbar handed him a
slip of paper on which he had written the items he
intended
purchasing and which contained the prices for each item. He did not
check them because he trusted Akbar. Sayed wrote the
items into the
book from the piece of paper. A piece of paper was later found
stapled to the book with prices on the paper having
been altered.
[21] On
Monday 12 January 1998 LA told Wazier about his visit to the Elsies
River store. Wazier was instructed to inform Akbar that
he would be
called upon to explain the irregularities. Wazier went to the store,
conveyed the message and asked Akbar to be honest
with him. Akbar
responded by stating that he knew he had done wrong.
[22] On
Tuesday morning the plaintiff was summoned to a meeting at which the
respondents were present. The plaintiff was presented
with his book
and called upon to explain why the goods purchased on 4 January 1998
had not been written up. Akbar paged through the
book and then said
he had written his purchases in another book. LA asked for the other
book. Akbar became visibly upset and emotional.
He looked like he was
starting to cry and said that he did not have the other book. He was
asked from when he had been doing this.
He said from December 1997.
Ilyas respondent and said:
‘Moenie
lieg nie Akbar, jy doen dit van Wynberg se tyd al.’
This
was a reference to Akbar’s prior employment at the company’s
Wynberg store. Akbar in response asked for ‘mauf’, a term
used by
Muslims when asking for forgiveness. Wazier explained that when this
term is used it means more than saying one is sorry.
It has a greater
significance and would be appropriate if one were to ask for
forgiveness for having committed theft.
[23] Subsequently,
on 21 January 1998 at the monthly managers’ meeting at which all
the defendants and others were present, LA told
the gathered managers
that there had been a problem at the Elsies River store and sought
their guidance on how to deal with the problem.
He did not mention
anyone’s name nor did he supply any details. It was apparent that
everyone at the meeting already knew about
events at the Elsies River
store. They responded by stating that everyone should be treated
equally.
[24]
Akbar’s services were terminated. He signed a document accepting
that he had been retrenched. Later, however, he declared a
labour
dispute with the company which, as stated earlier was settled at the
CCMA. The action for damages by Akbar culminating in
the present
appeal followed.
[25] LA,
Wazier, Banu, Naseeb Gafoor (‘Gafoor’) and Sayed all testified in
support of the respondents’ case.
[26] LA
testified in respect of the special plea but in his evidence dealt
with the merits of Akbar’s claim. Wazier testified about
events in
which he was involved as set out earlier. In the main they
corroborated each other.
[27] Banu
corroborated LA’s evidence that she and Sakina had made the
allegations against Akbar. She testified that on 4 January
1998,
shortly before Akbar’s purchases were rung up at the designated
till, she was standing next to him and had seen him write
them up in
a book similar to the official book. She was emphatic that he had not
written them on a loose piece of paper. She saw
Gafoor, the
perishables manager append his signature to the slip in the book to
acknowledge that he had checked it. Banu testified
that on 10 January
1998 Akbar had under priced the goods he purchased. She knew this by
later comparing with Sakina what was written
up with the shelf prices
of the goods.
[28] Gafoor
denied that Akbar had handed him a piece of paper to hand to Sayed
for writing up in the book. He confirmed Banu’s testimony
that he
had appended his signature to the slip in a book which looked like an
official book that had been used before. Gafoor testified
that he
would have refused to sign a loose piece of paper because it was
against company policy.
[29] Sayed
testified that on 10 January 1998 when he looked for Akbar’s book
to transpose the items listed on the piece of paper
he had no
difficulty locating it. After he wrote up the purchases he handed the
top copy of the slip in the book to Akbar who would
have required it
to get past security. He had no idea who had stapled the piece of
paper in the book. Sayed acknowledged that on
another occasion on 9
January 1998 in contravention of company policy he had followed the
same procedure as was followed on 10 January
1998 in writing up
Akbar’s purchases. Sayed confirmed that LA confronted him on 10
January 1998 about the procedure followed when
he wrote up Akbar’s
purchases. According to Sayed, LA asked him if he was ‘in cahoots’
with Akbar which he denied. Sayed stated
for the first time in
cross-examination that Akbar had confessed wrongdoing to him.
[30] Akbar
and his brother Dr Yusuf Allie testified in support of his case. The
latter’s evidence did not take matters much further
as he was not
personally involved in any of the events in question.
[31] Akbar’s
version of events is different from that of the respondents. He
denied that he was guilty of theft and was adamant
that he never
confessed to it. According to Akbar the security officers would have
picked up any breach of security and would have
taken it up with a
manager at the store. As regards the purchases on 4 January 1998 he
testified that because his book was unavailable
he wrote the details
of his purchases on a piece of paper and handed it to Gafoor with
instructions that it be handed to Sayed to
transfer into the book.
Gafoor checked the goods and placed his signature on the piece of
paper. He referred to the occasion on 9
January 1998 when his book
was unavailable and the purchases were once again written on a piece
of paper which was handed to Sayed
who stapled it in the book and
recorded the purchases therein.
[32] In
respect of events on 13 January 1998 Akbar confirmed that he had been
asked to respond to the allegations staff had made against
him. He
gave the three directors his version of events as set out in the
preceding paragraph. He admitted being emotional but denied
breaking
down. He testified that after a settlement was reached at the CCMA,
LA once again, in the presence of Wazier repeated the
accusation of
theft but in more dramatic language:
‘
‘n Skelm bly ‘n skelm.'
[33] It
is common cause that Akbar did not, during the meeting on 13 January
1998, request LA or any of the others to check his version
of events
with Gafoor and did not himself approach Gafoor to corroborate his
explanation.
[34] Much
hostility was generated by the events in question and the litigation
that ensued due mainly to the following. LA, Wazier,
Ilyas and Akbar
are blood relatives and the company is a family business with the
result that family members took sides in the dispute
causing a family
split. Akbar, although younger than LA, is his uncle.
[35] The
magistrate’s judgment is a rambling account of events,
characterized by an inadequate and misdirected assessment of the
evidence presented. As correctly concluded by the Court below the
magistrate’s credibility findings appear in the main to be emotive,
and based on his perception of the demeanour of witnesses.
Furthermore, the magistrate concluded that all of the respondents’
witnesses
had a common (‘very big’) interest in the case, without
identifying such interest.
[36] The
magistrate said the following about LA:
‘
He
. . . portrayed an image bordering on arrogance, no matter how hard
he tried to cover it with sincere emotion for the plaintiff.
He tried
his utmost to divert questions as to his management oppressive style
away from him [presenting himself] as this totally
helpful and kind
businessman. His absolute dominance of the business and family oozed
from his evidence, regardless his attempts
to hide it.’ (
Sic
).
It is
this view that coloured the magistrate’s assessment of LA’s
evidence and clearly played an important part in his rejection
of the
respondents’ version of events.
[37]
The magistrate dealt with Wazier’s evidence in the same manner and
concluded that Wazier was all too eager to please and protect
LA. He
said the following of Wazier:
‘
He did not make a good
impression on the court. His demeanour got worse as his evidence
proceeded and his attempts to cover problem
areas and refusing to
concede the obvious left a big scar on the value of his evidence.’
[38] In
dealing with demeanour and credibility in relation to the
magistrate’s findings Van Zyl J said the following:
‘
Of
course the judicial officer, who has sight of the witnesses and is
able to assess their evidence from nearby, is the best person
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 of 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.’
[39] In
S v Kelly
1980 (3) SA 301
(A) at 308B-D this Court said:
‘In
any event, as counsel conceded in a homely metaphor, demeanour is, at
best, a tricky horse to ride. There is no doubt that
demeanour ─
“that vague and indefinable factor in estimating a witness’s
credibility”. . .can be most misleading. The hallmark
of a truthful
witness is not always a confident and courteous manner or an
appearance of frankness and candour [traits the Magistrate
held
against the witnesses]. As was stated by Wessels JA in
Estate
Kaluza v Braeuer
1926 AD 243
at 266 more than half a century ago
in this Court: “A crafty witness may simulate an honest demeanour
and the Judge had often but
little before him to enable him to
penetrate the armour of a witness who tells a plausible story.”
On the other hand an
honest witness may be shy or nervous by nature, and in the
witness-box show such hesitation and discomfort as
to lead the court
into concluding, wrongly, that he is not a truthful person.’
[40] In
Body Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA 975
(SCA)
Harms JA,
after citing the
Kelly
case
with approval said the following at 979I-J:
‘The
Judge’s failure to decide the case without regard to the wider
probabilities is a clear misdirection and entitles us to
reassess Mrs
Shiloane’s evidence. It was also wrong of the Judge to consider
that a non-acceptance of her evidence of necessity
requires a finding
that she is a deliberate liar and perjurer. . .That is an emotional
approach. In a civil trial the question is
whether her evidence is,
on the probabilities, correct.’
[41] In
President of the RSA and Others v South African Rugby Football
Union and Others
2000 (1) SA 1
(CC) the Constitutional Court,
after referring to the
Kelly
and
Dumbarton Oaks
cases,
said the following at para 79:
‘The advantages which
the trial court enjoys should not, therefore, be over-emphasised
“lest the appellant’s right of appeal
becomes illusory”. The
truthfulness or untruthfulness of a witness can rarely be determined
by demeanour alone without regard to
other factors including,
especially the probabilities. . .A further and closely related danger
is the implicit assumption, in deferring
to the trier of fact’s
findings on demeanour, that all triers of fact have the ability to
interpret correctly the behaviour of
a witness, notwithstanding that
the witness may be of a different culture, class, race or gender and
someone whose life experience
differs fundamentally from that of the
trier of fact.’
[42] Van
Zyl J correctly reversed the credibility findings by the magistrate.
It is clear from the magistrate’s judgment that he
did not properly
consider the evidence against the probabilities. As appears from
cases cited above that is a misdirection that entitles
this Court to
reassess the evidence.
[43] There
is nothing inherently improbable about the evidence of the
respondents’ witnesses and in respect of core aspects they
corroborated each other.
[44] The
corollary of accepting Akbar’s version of events is that Banu,
Sakina, Sayed, Gafoor and the respondents conspired first,
to bring
unwarranted charges against Akbar and second, to give false evidence
in concert against him in court. This would be a conspiracy
of major
proportions by actors who did not on anyone’s version of events
have any grudge, common interest or some other reason
for acting in
this manner. On the contrary, it was unchallenged that Akbar was
close to Wazier and his wife, Banu and enjoyed lunch
with them after
mosque on Fridays.
[45] On
Akbar’s version of events all that was required when he was asked
on 13 January 1998 to respond to the allegations against
him, after
providing his explanation, was a statement by him that Gafoor would
confirm it. It is common cause that Akbar had not
requested that LA
or anyone else summon Gafoor to confirm his version of events. One
would have expected him to readily respond in
that fashion.
[46] That
LA himself did not question Gafoor is a factor in the respondents’
favour, particularly as it is clear that LA wanted
to get to the
bottom of the allegations made against Akbar. If the explanation
testified to by Akbar had been given to the meeting
on 13 January
1998 one would have expected LA to take it up with Gafoor. That he
did not do so gives credence to the respondents’
version of events.
[47] On
his own evidence Akbar did not ask Gafoor whether he had complied
with his instruction to hand the piece of paper to Sayed.
One would
have expected him to do so, particularly as he was the manager in
charge of the store. Against this failure Gafoor’s
denial is
credible.
[48] On
Akbar’s version of events he became emotional when confronted with
the allegations on 13 January 1998. It should be borne
in mind that
according to Akbar he had the simplest explanation, which rendered
his emotional state inexplicable. However on the
respondents’
version of events it is understandable.
[49] An
examination of the record shows that Akbar vacillated between stating
that when he was confronted on 13 January 1998 with
the allegations
made by members of staff he was not accused of theft and was
unaffected, to stating that he was angry after he was
accused of
theft. He also testified that LA and the others were satisfied with
his explanation, which is at odds with their later
conduct that
resulted in the termination of his services.
[50] The
factors set out in the preceding paragraphs, which the magistrate did
not take into account, militate against the veracity
of Akbar’s
version. The probabilities favour the respondents’ version of
events that Akbar was guilty of and confessed to theft.
[51] Akbar’s
counsel correctly conceded that in the event that this Court held
that Akbar had confessed to theft he would be unable
to sustain the
iniuria
claim. The allegation by Ilyas that Akbar had been
guilty of theft since the Wynberg days was not part of Akbar’s case
as pleaded
nor was his case conducted on the basis that he was
aggrieved by this statement or that he sought judicial redress for
it. The same
applies to utterances by Wazier and LA at the CCMA.
[52] Counsel
submitted that notwithstanding the confession by Akbar the discussion
of the issue at the subsequent managers’ meeting
by the respondents
was defamatory of him and that Van Zyl J erred in holding that since
no name or details were supplied by LA the
respondents were not
liable.
[53] It
is unlikely that armed with a confession and the evidence presented
by the members of staff that the respondents and in particular
LA
would not have communicated the theft by Akbar. It is for that very
reason that they terminated his services, albeit dressed up
as a
retrenchment. I accept therefore that Akbar was accused of theft at
the managers’ meeting and that this was defamatory of
him.
[54] The
respondents, however, are entitled to rely on a pleaded ground of
justification, namely, truth and public interest.
[55] As
set out above the respondents established on the evidence that Akbar
was guilty of and confessed to theft. The accusation
of theft was
communicated to managers within the supermarket chain. They must
surely have had an interest in having information imparted
to them
that a co-manager had recently abused the prescribed credit
purchasing procedure towards a dishonest end. In
Mahomed v Kassim
1973 (2) SA 1
(RAD) the court held that there could be no benefit
in informing persons of something of which they were already aware.
In the present
case LA and Wazier testified that the managers already
knew about events at the Elsies River store. No details were supplied
of the
extent of that knowledge. In Burchell’s
The Law of
Defamation in South Africa
at 212-213 the learned author is
critical of the restrictive and strained interpretation placed by the
court in
Mahomed’s
case on the term ‘public benefit’,
arguing that it involves an unwarranted curtailment of freedom of
expression. At 214, conceding
that the term is a vague concept, the
learned author submits that each case has to be treated on its own
merits suggesting that the
time, manner and the occasion of the
publication must be carefully investigated.
[56] I
agree that the conclusion reached by the court in the
Mahomed
case is too restrictive and that the question of whether or not a
communication is for the public benefit must be assessed on the
basis
suggested by Burchell.
[57] In
the present case it is common cause that there was gossip about
events at the Elsies River store. This led to a family split
in what
is essentially a family business. It was important for the
respondents and arguably their duty to have the issue out in the
open
and decisively dealt with. Akbar’s co-managers had an interest in
the manner in which senior employees conducted themselves
and in the
consequences flowing from theft of the company’s property. In my
view the defence of truth and public interest was established
by the
respondents.
[58] In
light of the conclusions reached it is not necessary to consider any
of the other defences raised by the respondents. It follows
that the
order by the Court below arrived at by another route remains
unaffected. I make the following order:
1. The appeal is
dismissed with costs.
_________________
MS NAVSA
JUDGE OF APPEAL
CONCUR:
NUGENT JA
CONRADIE JA