|
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, (MBOMBELA MAIN SEAT)
Case No.: 896/2023
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE SIGNATURE
In the matter between:
SINENHLANHLA MANQELE PLAINTIFF
And
BALOYI MASANGO INC ATTORNEYS 48 DEFENDANT
JIMMY BALOYI 2"° DEFENDANT
THABA CHWEU LOCAL MUNICIPALITY 39 DEFENDANT
JUDGMENT
2
VUKEYA J
{1] This is a delictual claim for defamation of character. The action was instituted by the
plaintiff against the first and second defendants on allegations based on an investigative
report written at the behest of the third defendant and authored by the first and second
defendants. The plaintiff alleges that the report contained false, wrongful, unlawful, and
defamatory statements directed at him both personally and in his professional capacity.
The claim is predicated on the contention that the contents of the report were intended
to tarnish his reputation.
[2] The plaintiff therefore seeks an order for judgement against first and second defendant
for payment in the amount of R2 000 000-00 (Two Million Rand), interest on the amount
of R2 000 000-00 (Two Million Rand) a tempore mora at the prescribed rate of 10,25 %
per annum calculated from 14 days after date of judgement, to date of settlement. He
also prays that the first and second defendants be ordered and directed to retract the
; statements and publish an apology to the plaintiff in a prominent position in each of the
offices of the municipality; and costs of suit.
[3] The first and second defendants defend the action on the basis that the document was
" privileged and that the plaintiff did not make out a case for defamation of character.
[4] It is common cause that the first and second defendants were engaged by the third
defendant to undertake an investigation into the causes of sewer spillage occurring in
the Thaba Chweu Local Municipality and to compile a report. The first and second
defendant's investigative report would have to provide answers on the following
questions:
4.1. What led to the criminal guilty finding of the Municipality that also necessitated
the Municipal Manager to sign an admission of guilt and be found guilty of
transgression of the NEMWA Act:
4.2. To investigate whether the Municipality could have avoided the transgression;
5
4.3. | Whether there was any sort of negligence by any of the Municipal employees:
4.4. Whether there is proper accountability in relation to workflow of the relevant
departments that are necessarily in charge of compliance with the above act;
and
4.5. To reflect on the criminal case brought against the Municipality and
demonstrate the complexities and seriousness of the problem surrounding
ti unlawful municipal sewage discharge.
15 [5] The first and second defendants conducted the investigation and interviewed the
hil necessary employees from 1 to 12 August 2022 where after they compiled a report
dated 19 August 2022. The aforesaid report signed by the second defendant, was
tabled at the Council sitting of the third defendant on or about 23 August 2022. It was
presented to 28 Councillors. The relevant parts of the report can be quoted as follows
below:
i There is an emergency in the technical department that has not been
recognized as such by the technical services director end technical services
management team;
vy There is a lack of knowledge skills from the people that ought to be managing
the department;
3. Whether this is a result of a lack of basic approach to employment or not, there
és a lack of will when it comes to applying oneself in the position that one is employed
in from the technical director down to the plumber in the command chain.
4. We were unable to interview the technical director as he had taken a stand
against this by involving an attomey who indicated that we cannot have a conversation
with the technical director without the attorney involved. This on its own indicated that
the technical director knows what exactly is happening in the department.
5. The technical director my so refusing to have a consultation with us also b 'y SO
refusing to give his input as to how to resolve this issue, directly insinuated that he
refused to take an instruction from council. This in terms of the labour laws amount to