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REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: 378/2010
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 27/8/25
SIGNATURE

In the matter between:

MADIMETJA JOHANNES LEDWABA PLAINTIFF

and

MINISTER OF HOME AFFAIRS DEFENDANT

JUDGMENT

MULLER J:

[1] Madimetja Johannes Ledwaba 1 instituted action against the Minister of Home
Affairs2 for defamation. The amended particulars of claim 3 aver that the plaintiff, who is
an officer in the employ of the Department of Correctional Services in Polokwane, was
not paid his monthly salary on 15 June 2010. Upon enquiry , it was discovere d that a
death certificate had been issued by the defendant. The certificate incorrectly certified
that Madimetja Johannes Ledwaba with identity number 7[...] had died on 9 October
2009 at Johannesburg due to natural causes. The p laintiff attended the offices of the
defendant in Polokwane for the death certificate to be cancelled. He was advised to re -
apply for a new identity document. The plaintiff re-applied, but he remained certified as
deceased. It is alleged that the publication that the plaintiff is deceased was wrongful
and defamatory of the plaintiff in that it was understood to convey that the plaintiff was a
fraud or is dishonest or that he assumed another person’s identity or that plaintiff is not
the person he professed to be in real life and in his employer’s records.

[2] As a result, his salary was discontinued which caused him not to undergo a n
operation as well as financial prejudice in that his accounts, investments and policies
were stopped and his name submitted to the credit bureau as a defaulter by creditors.
The plaintiff suffered emotionally because he separated from the mother of his minor
children due to his inability to provide for his family.

[3] The defendant filed an amended plea. The defendant pleaded that whenever a death
is reported , the informant will produce a death notice together with the identity
document of the informant a s well as the identity document of the deceased. Officials
will enter the identity number of the deceased and issue a death cert ificate. When the
death was reported , the identity number matched that of the plaintiff . On 1 June 1995

death was reported , the identity number matched that of the plaintiff . On 1 June 1995
the birth of Madimetja Josias Ledwaba was regist ered and he was allocated an identity
number.

1 Hereinafter called “the plaintiff”.
2 Hereinafter called “the defendant”.
3 Dated 2 September 2024.

[4] The plaintiff previously never had an identity number. He applied for a re-issue of an
identity document on 30 April 2001 and was informed that the identity number was
allocated to Madimetja Josias Ledwaba. On 24 January 2002 the plaintiff was informed
that the thumb print provided by him on the application i s different from the records held
by the defendant.

[5] The plaintiff applied again on 12 February 2002 for the issue (not re -issue) of an
identity document. He submitted fresh finger prints on 22 February 2002. The plaintiff
applied for a first applicatio n for an identity document and was issued with an identity
document on 19 April 2002. On 1 November he applied for a name change on the
identity number allocated to Madimetja Josias Ledwaba to change the name to
Madimetja Johannes Ledwaba despite having ha d knowledge that the identity number
was allocated to Madimetja Josias Ledwaba.

[6] On 14 October 2009 the mother of Madimetja Josias Ledwaba reported his death.
The death certificate contained the names of the plaintiff because the plaintiff caused an
amendment after being informed that the identity number belonged to Madimetja Josias
Ledwaba.

[7] The plaintiff applied again for the late registration of his birth. On 10 August 2010 the
plaintiff was issued with a new identity number.

[8] The defendant de nied that it published the death of the plaintiff and pleaded that
plaintiff was issued with a death certificate after he attended the office of the defendant
when he was informed that his salary was frozen. The plaintiff published the content of
the death certificate to other persons.

[9] It is also pleaded by the defendant that National Treasury froze the salary of the
plaintiff due his status as being deceased. The moment a death is registered National
Treasury is notified by the defendant who will block any activity associated with that

identity number. The Department of Correctional Services was also notified. The
Department communicated with the plaintiff. The recreational club of the Department
extended loans to the plaintiff on a monthly basis from June 2010 until August 2010. His
salary was restored in September 2010 and backpay was paid to the plaintiff on 14
October 2010. The defence put up by the defendant is that publication of the statement
was reasonable, if regard is had how the plaintiff acted from the time it was brought to
his attention that his identity number ha d been duplicated with that of Mametja Josias
Ledwaba.

[10] At close of the plaintiff’s case an application for absolution was made on the basis
that publication of a certificate ce rtifying that the plaintiff ha d passed away is not
defamatory. The application was dismissed on the ground that the statement is false of
plaintiff and has capacity to be understood that plaintiff acted fraudulently by assuming
the identity of someone else.

[11] I do not propose to deal with the evidence of all the witnesses in light of the
conclusion that I have reached on the common cause facts. It is common cause that the
defendant in the normal course of business notifie d National Treasury of all deaths
being registered in the Republic. Such notification included a notice that the plaintiff had
passed away as stated in the death certificate. National Treasury froze the salary of the
plaintiff, and similarly notified the Department of Correctional Service s who in turn
notified the human resources section at Polokwane Correctional Centre when t he
human resources section at Polokwane made enquiries on behalf of the plaintiff why his
salary had not been paid on 15 June 2010. The witness was informed that the salary of
the plaintiff had been suspended due to his passing. The plaintiff is very well known to
her for a number of years , and she, as a matter of fact, did not believe a word of it. She

her for a number of years , and she, as a matter of fact, did not believe a word of it. She
published the news to him. The plaintiff thereafter proceeded to the offices of the
defendant in Polokwane where he applied for and was issued a death certificate that
contained information that he had died in Johannesburg on 9 October 2009.

[12] In Khumalo and Others v Holomisa 4 the Constitutional Court described defama tion
as:
“The law of defamation in South Africa is based on the actio injuriarum , a
flexible remedy arising from Roman Law, which afforded the right to claim
damages to a person whose personality rights had been impaired
intentionally by the unlawful act o f another. One of those personality rights
that was protected by the law of defamation.
At common law, the elements of the delict of defamation are
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.”5

[13] Publication of a defamatory statement is prima facie unlawful and intentional if it is
published to a person other than the plaintiff. A defendant wishing to avoid liability must
raise and rebut unlawfulness and intention.6

[14] An analysis of the amended plea reveals that the defendant despite a lengthy
narrative pleads a privileged occasion that has arisen when a statement was published
in the discharge of a duty or the protection of a legitimate interest to another person who
had a similar duty or interest t o receive to receive it. 7 The court is required to judge the
situation by the standard of the reasonable man having regard to the relationship of the
parties and the surrounding circumstances. The court in answering the question
whether the statement is la wful must consider if public policy justifies publication of the
statement.


4 2002 (5) SA 401 (CC).
5 par 17-18.
6 Borgin v De Villiers and Another 1980 (3) SA 556 (A).
7De Waal v Ziervogel 1938 AD 112, 121-3.

[15] The Birth and Deaths Registration Act 8 which regulates the registration of all births
and deaths applies to all South African citizens , whether in or outside the Republic. 9
The Director -General is the custodian of all documents relating to both and deaths
required to be furnished under this Act or any other law as well as all the records of any
births and deaths preserved prior to the commencement of this Act. 10 The particulars
obtained from the records shall be included in the population register11

[16] Section 7 makes provision for the Director-General to supplement or correct the
particulars in the population register or a person may apply in the prescribed manner for
the amendment or rectification of his/her particulars. Section 29 provides that:

“(1) Subject to the provisions of subsection (2), no person shall publish or
communicate to any other person any information obtained from
documents or records mentioned in section 5( 1), and which he or she
acquired by virtue of his or her functions in terms of this Act or any other
law, except for the purposes of this Act, judicial proceedings or the
performance of functions in terms of any other law, and no person who
has come into p ossession of any such information shall publish the
information or communicate it to any other person.
(2) Notwithstanding the provisions of subsection (1), the Director -General
may furnish any information in relation to a person submitted in terms of
this Act to—
(a) any department of State, local authority or statutory body for any of
the statutory purposes of that department, authority or body; or
(b) any person who has applied, in the prescribed manner, with a full
exposition of the purposes for which t he information is required and
who has paid the prescribed fees, if any: Provided that the Director -
General is satisfied that the furnishing of that information—

8 Act 51 of 1992.
9 Preamble and section 2.
10 Section 5(1)(a) and (b).
11 Section 5(2).

(i) will not amount to an unreasonable disclosure of that person’s
personal information as con templated in section 1 of the
Promotion of Access to Information Act, 2000 (Act 2 of 2000);
(ii) is for the protection of the rights, and in the interest, of the
person whose particulars are being requested; or
(iii) is in the public interest”

[17] It is a lso common cause that the defendant , in the ordinary course of business ,
reports all deaths registered throughout the Republic to National Treasury, the purpose
of which is to detect if recipients of state grants and government employees are
deceased to prevent payment of grants and salaries to deceased persons.

[18] It serves a very important public function to detect and eradicate unauthorized
expenditure, corruption and malfeasance in all government departments. There is no
doubt that such information i s reported to state departments by the defendant in the
public interest.

[19] There can also be no doubt that information so furnished should not be false.
However, a defence of qualified privilege is not concerned with the truthfulness or
otherwise of the publication.

[20] The defendant published the statement to National Treasury who republished it to
the Department of Correctional Services where the plaintiff was employed . The
statement was republished to a recipient from h uman resources at the Polokwan e
Correctional Centre where the plaintiff was stationed when enquiries were made why
the salary of the plaintiff was suspended. She republished it to the plaintiff, personally.

[21] The defendant, in my view, succeeded in proving that the statement was pub lished
in terms of a legal duty to provide information which is in the public interest to National
Treasury who is required and entitled to receive the information. National Treasury
republished the statement to the Department of Correctional Services, whe re the

plaintiff was employed, who was also required to receive the information in the normal
course of business . The statement was republished by the Department of Correctional
Services to the witness at human resources, who was also required to receive t he
information and who published it to the plaintiff personally. In all instances set out
above, the publication was not intended to defame the plaintiff, but served a legitimate
purpose, namely, the assimilation of information relating to deceased persons . It is in
the public interest that payment of grants and salaries to deceased persons be frozen . I
am of the view that knowledge of unlawfulness,12 which is an integral element of animus
iniuriandi, has been successfully rebutted on a balance of probability.

[22] The plaintiff obtained a death certificate from the office of the defendant in
Polokwane. The information so obtained , therefore, was published to him personally.
Publication to the plaintiff is not regarded as publication to establish liability fo r
defamation.

[23] A great deal of time was devoted at the trial whether the statement was published
to some of the plaintiff’s colleagues, who according to the plaintiff, made jokes and
demeaning remarks towards him, inter alia as being deceased. It is also common cause
that the plaintiff wrote a letter to the club office on 16 June 2010 in which he had set out
the unfortunate circumstances that caused his salary to be frozen. It has not been
proven who published the statement to his co -workers. There are various possibilities
since the plaintiff applied for financial assistance from the ir recreation club in a letter
which could have come to the notice of any number of people at the Polokwane
Correctional Centre.

[24] Republication by a third person create s a separate cause of action against that
person and does not create vicarious liability. 13 Be that as it may, i n K v Minister of
Safety and Security,14 the Constitutional Court plainly stated that:

Safety and Security,14 the Constitutional Court plainly stated that:


12 Wederregtelikheisbewussyn.
13 Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) 565.
14 2005 (6) SA 419 (CC).

“The common-law principle of vicarious liability holds an e mployer liable for the
delicts committed by its employees where the employees are acting in the course
and scope of their duty as employees. The principles ascribe liability to an
employer where its employees have committed a wrong but where the employer
is not at fault.”15

[25] It was, therefore, necessary for the plaintiff, not only to allege that employees of the
Minister were acting within the course and scope of their duty or that they were engaged
with the affairs of their employer , in the amended particulars of claim , to hold the
Minister liable, but also to prove that allegation. No such allegation to hold the Minister
vicariously liable was made. 16 The failure to allege and prove that the Minister is
vicariously liable is fatal to the plaintiff’s cause of action against the defendant.

[26] In the result, the plaintiff’s action falls to be dismissed.

ORDER

The action is dismissed with costs.


_____________________________
G.C MULLER
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE


APPEARANCES

FOR THE PLAINTIFF : MR S. RANGOANASHA

15 Par 21 and 24.
16 Harms LTC Amler’s Precedents of Pleadings 9th ed (2018) 370.

INSTRUCTED BY : S. RANGOANASHA INC

FOR THE DEFENDANT : ADV M.T MATLAPENG
INSTRUCTED BY : STATE ATTORNEY, POLOKWANE