IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 3819/2022
In the matter between:
HENRIETTA MARGARET DU PREEZ Plaintiff
and
MINISTER OF POLICE Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] The Plaintiff was employed as a Captain and acting Visible Police (Vispol)
Support Head at the Joza Police Station (Joza). She conducted a parade during
December 2020. In response to a concern raised by WO Mbokodi, one of the officers
on parade, the plaintiff indicated that she was unprepared to take responsibility for
crime prevention vehicles, which were under the command of a colleague, Cpt
Manona. On her version, she used the following expression (to be referred to as ‘the
innocent expression’):
‘If you pick up the monkey, you need to feed it…If you take up the problem, you need to sort
it out.’
[2] The plaintiff maintains that her utterance made no reference to peop le as
monkeys. On 21 December 2020, WO Mbokodi reported the utterance to the station
commander, Col Mtshagi. On her version, the plaintiff had said the following (to be
referred to as ‘the racist expression’):
‘I will not worry about that, Captain Manona m ust worry about his monkeys and I will worry
about my monkeys.’
[3] The expression she had heard disturbed WO Mbokodi. She requested that
the matter be investigated. Despite receiving a recommending that the grievance be
resolved through mediation, Col Mtshag i approached the matter as an enquiry into
misconduct. Cpt Prince was appointed to investigate. The plaintiff was subsequently
charged with misconduct in the form of, firstly, intimidation or victimisation and,
secondly, unfair discrimination. Both charges emanated from her utterances at the
parade. The plaintiff was found guilty only of the second charge and dismissed with
effect from 14 June 2021. She challenged this outcome and was retrospectively
reinstated following an advisory arbitration award issued by the Safety and Security
Sector Bargaining Council (SSSBC) dated 6 December 2021. She was only
reinstated on 22 June 2022, now stationed at the stock theft unit in Makhanda.
[4] The plaintiff’s first claim is based on alleged malice on the part of the
defendant’s employees, and is formulated as follows:
‘W/O Manqola [now Mbokodi] and / or Col Mtshagi acted maliciously by setting the law in
motion by laying a false charge of intimidation and / or victimisation and / or discrimination
against the Plaintiff a t the Joza Police Station, Makhanda under CAS: 112/04/2021 as well
as disciplinary proceedings with the Provincial Commissioner, South African Police Services,
as disciplinary proceedings with the Provincial Commissioner, South African Police Services,
Eastern Cape … When laying this charge and giving the false information, the aforesaid
policemen and / or other members of the South African Police Services, had no reasonable
or probable cause for doing so, nor did they have a reasonable belief that the institution of
proceedings was justified.’
[5] The second issue to be determined is whether the plai ntiff was defamed by
the defendant as alleged in her particulars of claim, whether she sustained any
damages as a result and the extent to which the defendant is liable. Finally, the court
is required to decide the issue of costs.
Malicious prosecution
Setting the charges in motion
[6] It is common cause that WO Mbokodi raised an issue involving vehicles with
the plaintiff during a parade and that, as part of her response, the plaintiff used the
word ‘monkey’. On the plaintiff’s version, it had become normal for Cpt Manona to
leave supply chain management issues to her. Having decided that she was no
longer willing to perform these functions for Cpt Manona, she had expressed herself
accordingly by using the innocent expression. The reference to ‘monkey’ was
intended to relate to the vehicles in issue. This was the ‘problem’ to be picked up and
dealt with by Cpt Manona.
[7] The plaintiff’s diary confirms that WO Mbokodi and WO Williams left the
parade to meet with Col Mtshagi on 21 December 2020. Col Mtshagi recalled that
WO Mbokodi was accompanied by WO Williams, who was a union representative.
She listened to the complaint, which highlighted the racist expression that WO
Mbokodi had heard and noted that WO Mbokodi had said she was shocked. Col
Mtshagi asked WO Williams whether he had taken any action. She then requested
WO Mbokodi to submit a written statement before 16h00 that day.
[8] WO Mbokodi complied with Col Mtshagi’s request for a written statement,
consulted with Cpt Leander, the employer representative, sometime thereafter and,
during April 2021, opened a criminal docket based on her sense that her grievance
had not b een taken seriously. The evidence reveals that she was not informed by
her superiors about progress with the disciplinary proceedings against the plaintiff.
WO Mbokodi’s evidence was that she had little to do with the disciplinary process
WO Mbokodi’s evidence was that she had little to do with the disciplinary process
once she submitted the written complaint to Col Mtshagi, having been consulted only
on the date of the disciplinary hearing. Her disappointment with her employer’s
inaction resulted in her turning towards the criminal justice system by opening a
docket against the plaintiff.
[9] Col Mtshagi submitted the statement she received from WO Mbokodi to
human resources for a disciplinary hearing file to be registered. As the matter had
been reported to her, Col Mtshagi refused Lt Col Strydom’s offer to identify a
mediator. Strydom, i t may be accepted, had contacted Lt Col van der Merwe at the
provincial legal office and both opined that the matter could be mediated. A letter to
Brig Lebok on 21 December 2020 reflects Col Mtshagi’s view at the time:
‘A complaint followed by a statement has been received from a member attached at Vispol
Support, complaining about their Acting commander who used an unacceptable word while
referring to human beings (members on parade) … As this is seen as a serious misconduct,
this office hereby requests y our office to appoint an officer to investigate the alleged
misconduct…’
[10] Col Mtshagi did accept Lt Col Strydom’s suggestion that Cpt Prince be
appointed as investigating officer. Col Mtshagi addressed the following
correspondence to Cpt Prince on 21 December 2020:
‘1. Telephonic conversations with between Colonel NE Mtshagi and Capt Prince on
2020-12-21 bear’s reference (sic).
2. Attached find a statement made by W/O Manqola [Mbokodi] of Joza SAPS against
Capt HM du Preez regarding alleged utterances of a discriminatory nature made by
the officer.
3. Would you please investigate the incident as a matter of urgency and report you
findings to the Station Commander Joza in order for her to make an informed
decision on future action (sic).
4. Your urgent attention to this matter will be greatly appreciated.’
[11] Cpt Prince explained that he commenced the investigation once he had been
contacted by Col Mtshagi on 21 December 2020 despite only receiving his formal
letter of appointment a month later. The plaintif f accepted that Cpt Prince was
assigned to do the investigation and would have done so without malice. His
evidence supports this assessment. Having been appointed by Col Mtshagi and
evidence supports this assessment. Having been appointed by Col Mtshagi and
furnished with WO Mbokodi’s statement, he obtained further statements fro m those
members who had been on parade at the time of the incident during December and
January. This included various statements supporting WO Mbokodi’s recollection of
the expression that had been used, and Ms Stevens’ statement supporting the
plaintiff’s version.
[12] Cpt Prince considered the two different versions and determined that a prima
facie case existed. He linked this to a particular regulation pertaining to ‘victimisation
/ intimidation’, despite none of the statements suggesting this. He explaine d that the
precise formulation of the charges was a matter for the employer’s representative at
the hearing. Having completed his investigation, the file was returned to Col Mtshagi,
the station commander, who had to decide whether the file would proceed t o the
provincial office for the appointment of functionaries, and with final authority to
determine whether a prima facie case existed.
[13] Col Mtshagi wrote to the discipline management section of South African
Police Service (SAPS) provincial office on 19 J anuary 2021 and provided
‘preliminary particulars of the incident’. This included the crux of WO Mbokodi’s
complaint and confirmation that Col Mtshagi regarded the matter as serious. The
document referred to Prince’s appointment having occurred on 20 Janua ry 2021. By
this time, however, he had practically completed his investigation.
[14] On 22 January 2021, Prince produced an investigation outcome in terms of
regulation 8(1) of the SAPS Disciplinary Regulations, 2016, (the regulations) and
attached statements from seven individuals including WO Mbokodi and WO
Williams:
‘Charge 1: Regulation 5(3)(w) – Intimidates or victimizes other employees
I investigated the matter and I am of the opinion that the evidence indicated a prima facie
case of misconduct…’
[15] On the strength of this recommendation, Col Mtshagi certified that the alleged
misconduct was of a serious nature and justified the holding of a disciplinary hearing.
The provincial office was informed accordingly. A ‘notice of alleged misconduct and
pending investigation’, issued in terms of the regulations, was prepared on the same
pending investigation’, issued in terms of the regulations, was prepared on the same
day and served on the plaintiff. The file was sent to the provincial office for
appointment of an employer representative.
[16] A week later, Cpt Booth, employed in the SAPS Emplo yee Relations and Life
Cycle Management department, recommended ‘progressive measures (corrective
counselling)’ in correspondence addressed to Brig De Klerk and Maj -Gen Kunene,
the Deputy Provincial Commissioner: Corporate Services. This recommendation was
supported by Brig De Klerk on 12 February 2021. In Brig De Klerk’s view, both the
innocent and racist expressions were known idiomatic expressions in the English
language. Brig De Klerk did, however, consider the plaintiff’s conduct to warrant
corrective counselling and sensitisation:
‘… having perused the statements where either no negative inference is drawn from these
expressions or where the witnesses state that they understood these expressions in the
context of the lack of vehicles that were a challe nge, I do not recommend any disciplinary
steps to be taken against the officer.
Reference to “monkeys” in general at the workplace may create negative perceptions
though, however innocently it may have been made and notwithstanding that it may be used
to refer to things and circumstances, not necessarily human beings.
It is therefore further recommended that the officer be subjected to corrective counselling to
sensitise her about words / expressions that may offend others regardless of the context in
which it was used.’
[17] While the pleadings identify WO Mbokodi and / or Col Mtshagi as having
acted maliciously by setting the law in motion, the plaintiff accepted that the decision
to be taken in respect of formal disciplinary proceedings rested with Maj -Gen
Kunene, following consideration of the views of Cpt Booth and Brig De Klerk. On 17
February 2021, Maj -Gen Kunene recommended that the plaintiff be subjected to a
disciplinary hearing ‘…to check the context under which the statement was used.’
The process cu lminated in this decision and the plaintiff took no issue with the way
Maj-Gen Kunene had proceeded.
Maj-Gen Kunene had proceeded.
[18] Col Nkwenkwe was appointed as chairperson of the disciplinary hearing
during May 2021. This was after Cpt Gusha had requested to be released from his
duties as the selected employer representative due to a lack of experience. Cpt
Leander was appointed as the employer representative. The hearing proceeded in
June and the plaintiff’s application for legal representation was granted because of
the seriousness of the charges. Mr Greyling, the chosen representative, was
formerly a brigadier attached to legal services at the SAPS provincial head office.
The disciplinary hearing record reflects that Col Nkwenkwe engaged at length with
the plaintiff regarding her us e of the word ‘monkey’, the alleged offence it had
caused and whether the plaintiff continued to use the innocent expression. The
plaintiff was found not guilty of intimidation but guilty of discrimination. Having heard
evidence in mitigation, Col Nkwenkwe decided that dismissal was the appropriate
sanction. This was notwithstanding the plaintiff’s exemplary disciplinary record. Maj -
Gen Kunene, having received this finding from Col Nkwenkwe, recommended a
sanction of two months suspension without salary, on the basis that the plaintiff
ought to be given the benefit of the doubt in respect of the use of the word ‘monkey’
as a metaphor. Despite this, the sanction of dismissal was confirmed a few days
later by the provincial commissioner.
Disputes of fact and procedural irregularities
The date of the incident
[19] The plaintiff disputed WO Mbokodi’s evidence regarding the day on which the
incident occurred. A meticulous chronicler of her activities, the plaintiff’s diary entry
suggested that the incident occurred at the parade on 14 December 2020. This is
based on a diary entry for that day that refers to ‘issue raised about CPU vehicles’
and because WO Williams was absent from parade that day. On the plaintiff’s
version, WO Williams’ outspoken nature would have resu lted in a confrontation with
her about what she had said, had he been present. This is speculative and there are
various reasons why he might not have chosen to press the matter himself even if he
was present. The plaintiff’s diary entry also does not take the matter further. Leaving
aside the questions posed as to its authenticity, being the only entry that day not
written on its own separate line, Ms Stevens testified that the issue of vehicles was a
written on its own separate line, Ms Stevens testified that the issue of vehicles was a
matter of daily discussion, so that the entry likely re ferred to a separate discussion
about vehicles.
[20] By contrast, WO Mbokodi had two good reasons to recall that the incident
occurred on 17 December 2020. Firstly, the previous day had been a public holiday
and she and other police officers had performed spe cial duties. As it was busy in the
town area, a visible police presence had been required, including the performance of
night work. Importantly, WO Mbokodi explained that this was the first occasion on
which night duties had been performed, so that the occasion would more easily have
remained in memory. This had been necessitated by Covid and the police’s attempt
to enforce compliance with the associated regulations during the December period.
Those who worked would receive extra remuneration and had to ret urn the following
morning at 07h30 to perform their normal duties. It was during the performance of
those duties that WO Mbokodi, who was stationed in a vehicle, recalled observing
members from crime prevention carrying out their duties on foot, without ac cess to
motor vehicles. This prompted her enquiry at the parade the following morning.
[21] Secondly, WO Mbokodi explained that the events in question had been
painful to her, as she believed that she and her colleagues had been addressed as
monkeys by a fell ow SAPS member, so that she recalled the date clearly. Indeed,
her testimony in this respect was unequivocal and based on her independent
recollection. These dates are also supported by her typed complaint on 21
December 2020, a few days after the incident , which refers to all those who had
been in attendance, including WO Williams, and provides insight as to her state of
mind at the time:
‘This is not sitting well to me at all, as I never thought in this day in age, in my career, at my
work environment a c ommander can refer to me and other members as Monkeys whereas
we are human beings. I find it very hard to come to work and face the same commander. I
am traumatised physically and emotionally by this incident, but I try and put a brave face and
be professi onal for service delivery to continue until this matter is resolved in a proper
manner.’ (sic.)’
[22] WO Mbokodi was mistaken in certain respects, including when she had first
communicated with Col Mtshagi after the incident, whether WO Williams had
accompanied her at Col Mtshagi’s request and whether Capt Prince had spoken to
her about her statement. But she demonstrated a very good ability to recall details of
her about her statement. But she demonstrated a very good ability to recall details of
the day in question and she was clear and consistent in this respect. On a
conspectus of the evidenc e, she had good reason to recall these specifics, and she
was emphatic that the incident occurred on 17 December 2020. Given the
seriousness with which she viewed the matter, her evidence that she would not have
waited for a week before acting was compelli ng. On her version, she had
endeavoured to contact Col Mtshagi for two days before making contact on Sunday
20 December 2020. According to Col Mtshagi, she received a Whats App message
from WO Mbokodi as early as Friday 18 December 2020. Col Mtshagi also r ecalled
WO Mbokodi advising her that the incident had occurred on 17 December 2020. I
have also considered that Ms Stevens did not recall WO Williams’ presence on the
date of the incident and the plaintiff’s version. Considering the evidence, however,
including the interaction between WO Mbokodi, WO Williams and Col Mtshagi on 21
December 2020, the probabilities favour the finding that WO Williams was present,
as he subsequently indicated in his statement. This all supports the conclusion that
the incident occurred on 17 December 2020. There was no reason for WO Mbokodi
to fabricate this date, which, on the probabilities, is when the incident occurred.
Communication of the plaintiff’s version
[23] There is a dispute as to whether the plaintiff was afforded the opportunity,
either by Col Mtshagi or Cpt Prince, to provide her version of events. She certainly
did not do so in writing during December or January. The plaintiff did, however, have
the opportunity to discuss the matter with Col Mtshagi on 21 December 2020. From
her own evidence, it is apparent that she was confronted with the racist expression.
She immediately explained to Col Mtshagi that she had uttered the innocent
expression, with the ‘m onkey’ reference pertaining to the vehicles. Col Mtshatgi
informed her that a written statement had been requested from WO Mbokodi.
[24] The plaintiff’s argument that she had not been given the opportunity to put her
version before Col Mtshagi is therefore ga insaid by her own recollection of their
interaction at that time. It is common cause that the professional relationship
between the plaintiff and Col Mtshagi was good, that Col Mtshagi advised the plaintiff
about the complaint and that this interaction was not confrontational. Col Mtshagi, it
must be noted, testified twice in the plaintiff’s favour, including testimony in mitigation
must be noted, testified twice in the plaintiff’s favour, including testimony in mitigation
that no member had advised her that they would refuse to continue working with the
plaintiff, despite her utterance, and recom mending corrective measures short of
dismissal.
[25] I accept that the plaintiff conveyed her version of events to Col Mtshagi,
indicated that WO Mbokodi’s version was denied, admitted using the word ‘monkey’
and explained that this was with reference to the vehicles, not people. According to
the plaintiff, Col Mtshagi said as much at the disciplinary hearing in the plaintiff’s
defence. Col Mtshagi’s conduct thereafter must be assessed on the basis that she
was aware that the plaintiff disputed WO Mbokodi’s understanding and interpretation
of what had been uttered.
[26] As for the dispute of fact between the plaintiff and Cpt Prince, and to the
extent that this may be relevant, I am of the view that the plaintiff was mistaken in
failing to recall that Cpt Prince afforded her an opportunity to place her version in
writing. Cpt Prince was a good witness who testified clearly and openly about his role
in the proceedings and without having any reason to embellish the truth. While the
plaintiff was also generally a good witness, on the probabilities I accept that Cpt
Prince afforded the plaintiff an opportunity to make a statement and to place her
version before him.
Procedural irregularities
[27] Col Nkwenkwe testified that he had knowledge of the principles underpinning
the SAPS revised discipline regulations. In his view , the hearing had proceeded
smoothly and neither party had expressed any concerns with his conduct or
suggested that he had been biased. Instead, the evidence, including the record of
the disciplinary proceedings, reveals various irregularities and shortco mings in
respect of the plaintiff’s hearing. Firstly, Cpt Toto testified that Col Nkwenkwe had
mentioned that he had been appointed to chair a racism -related matter, when the
two met while attending a training course in the Western Cape. He also mentioned
that he had dealt with a similar matter in Graaff Reinet. On my assessment of the
evidence, Col Nkwenkwe’s denials in this respect must be rejected on the
probabilities as being implausible and based on an adverse credibility finding.
Secondly, it is accep ted that Col Nkwenkwe commented, in the presence of the
plaintiff and Mr Greyling at the start of the proceedings, that he had never trialled a
plaintiff and Mr Greyling at the start of the proceedings, that he had never trialled a
white woman before. This was an inappropriate remark. Thirdly, the disciplinary
hearing record captured his disc ussion with Col Mtshagi, including reference to the
possible transfer of the plaintiff, while she was under oath, while the plaintiff and Mr
Greyling were consulting outside the room. This was highly irregular. Finally, his
clarification questions, it may be accepted, morphed into cross -examination and his
repeated interventions, manner and tone revealed that he entered the arena. He also
investigated Ms Stevens’ attendance at the parade by personally travelling to Joza at
his own instance.
[28] The procedures adopted by the defendant’s employees also contravened the
regulations in various respects. I accept that the plaintiff was, for example, only
served notice after the investigation had been completed. There were discrepancies
in completing the relevant forms accurately and in the timeline for appointment of the
investigating officer. But the plaintiff was alive to most of these inadequacies as they
occurred. It may be noted that the plaintiff had extensive knowledge of discipline
management and had trained others to conduct disciplinary enquiries over a lengthy
period. She was also assisted initially by a co -employee. As she testified, she was
initially eager for the hearing to proceed given the mistakes that had been made by
SAPS along the way. Things chang ed when the initially appointed initiator and
chairperson were replaced. The plaintiff’s evidence was that she knew, at that point,
that the writing was on the wall and that she would be dismissed. In response, she
engaged Mr Greyling, a legal practitioner with vast experience in matters pertaining
to the police. The plaintiff’s sense of foreboding was confirmed when Col Nkwenkwe
referred to her race and gender at the outset of proceedings and conducted himself
in the unfortunate matter described above. It cannot be gainsaid that the designated
chairperson fell short of the mark in his treatment of the hearing. The defendant
eventually adopted the stance that the plaintiff’s dismissal was unfair.
[29] Throughout the process, however, there was no application for Col
Nkwenkwe’s recusal. When this issue was raised with her, the plaintiff accepted that
it was evident from his demeanour that he was ‘biased from the word go’ and
‘overpowered’ the disciplinary proceedings. In the circumstances, it is remarkable
that th e plaintiff elected not to seek his recusal. The plaintiff’s only answer was to
that th e plaintiff elected not to seek his recusal. The plaintiff’s only answer was to
contend that he would not have recused himself, which was an inadequate
response. The plaintiff, aided as she was by a competent and experienced legal
representative, must have appreciated that she would be able to vindicate her right
to fair labour practices through statutory labour dispute resolution processes, as she
subsequently did. She had herself lodged two grievances against previous
supervisors and was au fait with the relevant processes. She testified that she and
Mr Greyling agreed, during a lunch interval during the proceedings, that Col
Nkwenkwe had prejudged the issue and intended to dismiss her. Col Mtshagi’s
evidence in support of the plaintiff was dealt with in a similar manner by the
chairperson. The plaintiff was undoubtedly aware that the record would capture the
demonstrated bias and that she would be able to utilise this to her advantage in the
subsequent proceedings. Unsurprisingly, bias was listed as one of the grounds of
complaint when the matter was referred to the SSSBC. The result is that the
plaintiff’s testimony of the extent to which she had been upset by the chairperson’s
conduct is difficult to understand. That said, the procedural irregularities id entified
add little to the determination of plaintiff’s claim of malicious proceedings at the
instance of WO Mbokodi or Col Mtshagi.
The law
[30] WO Mbokodi, Col Mtshagi and the other employees involved in the
disciplinary process against the plaintiff were a cting in the course and scope of their
employment with the defendant. It is also accepted that disciplinary proceedings
instituted in terms of the regulations fall within the ambit of ‘malicious proceedings’
as a valid cause of action. 1 The cause of actio n for a claim for damages caused by
malicious legal proceedings is the actio iniuriarum . To succeed, the plaintiff must
allege and prove:2
(a) that the defendant set the law in motion (instigated or instituted the
proceedings);
(b) that the defendant acted without reasonable and probable cause;
(c) that the defendant acted with ‘malice’ (or animo injuriandi); and
(d) that the prosecution has failed.
1 Mahlangu v Minister of Police 2017 JDR 0129 (GP); [2017] ZAGPPHC 13; [2017] 5 BLLR 528 (GP);
(2017) 38 ILJ 1749 (GP); Holden v Assmang [2020] ZASCA 145; 2021 (6) SA 345 (SCA) para 10; Cf
Kutu v Minister, Department of Justice and Correctional Services (2021) 42 ILJ 2489 (MM). Also see
C Okpaluba ‘Does “pr osecution” in the law of malicious prosecution extend to malicious civil
C Okpaluba ‘Does “pr osecution” in the law of malicious prosecution extend to malicious civil
proceedings? A commonwealth update (Part I) (2017) 28 Stell LR 402.
2 Minister of Justice and Constitutional Development and Others v Moleko [2008] ZASCA 43; [2009] 3
All SA 47 (SCA); 2009 (2) SACR 585 (SCA) ( Moleko) para 8, cited with approval in Kruger v National
Director of Public Prosecutions [2019] ZACC 13; 2019 (6) BCLR 703 (CC) para 48. Also see Relyant
Trading (Pty) Ltd v Shongwe & Another [2007] 1 All SA 375 (SCA) para 5: mali cious prosecution
consists in the wrongful and intentional assault on the dignity of a person comprehending also their
good name and privacy. The plaintiff must allege and prove that the defendant intended to injure
(either dolus directus or indirectus). Save to the extent that it might afford evidence of the defendant’s
true intention or might possibly be taken into account in fixing the quantum of damages, the motive of
the defendant is not of any legal relevance.
Whilst there may be a measure of overlap between the first three requirements, they
remain separate elements of the cause of action and the plaintiff bore the onus to
establish each distinctly.3 I accept that the plaintiff has proved the requirements in (a)
and (d), although it is necessary to comment on the identity of which of the
defendant’s employees ‘instigated or instituted the proceedings’.
Who instigated or instituted the proceedings
[31] Inherent in the concept of ‘set the law in motion’, ‘instigate’ or ‘institute the
proceedings’ is the causing of a certain result, namely a ‘prosecution’ or, in present
circumstances, disciplinary proceedings. This involves the question of causality. 4
The legal position has been expressed as follows:5
‘The first matter the plaintiff has to prove is that the defendant was actively instrumental in
the prosecution of the charge … Where a person merely gives a fair statement of the facts to
the police, and leaves it to the latter to take such steps thereon as they deem fit, and does
nothing more to identify himself with the prosecution, he is not responsible, in an action for
malicious prosecution, to a person whom the police may charge. But if he goes further, and
actively assists and identifies himself with the prosecution, he may be held liable. “The test,”
said Bristowe, J., in Baker v Christiane, 1920 W.L.D. 14, “is whether the defendant did more
than tell the detective the facts and leave him to act on his own judgment” … [on the other
hand] when an informer makes a statement to the police which is wilfully false in a material
particular, but for which false information no prosecu tion would have been undertaken, such
an informer “instigates” a prosecution.’
[32] Leaving aside Maj -Gen Kunene’s role, the plaintiff has proved that Col
Mtshagi, rather than WO Mbokodi, set the disciplinary proceedings in motion. WO
Mbokodi did little more t han report what she believed she had heard, put her
Mbokodi did little more t han report what she believed she had heard, put her
complaint in writing and testify based on her recollection of events. There is no
evidence that she went further or that she made a wilfully false statement. The
plaintiff conceded that WO Mbokodi was not the person responsible for determining
whether the alleged misconduct was serious. In terms of the regulations, it is also
evident that she was not empowered to decide whether a disciplinary hearing ought
3 Minister of Safety and Security v Lincoln 2020 (2) SACR 262 (SCA) (Lincoln) para 21.
4 Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196H–197A.
5 Lederman above n 4 quoting Waterhouse v Shields 1924 CPD 155 at 160 and Madnitsky v
Rosenberg 1949 (1) P.H. J5 with approval; Also see Lincoln above n 3 para 27.
to be conducted. 6 As the plaintiff understood the position, it was Col Mtshagi, the
station commander, who took that decision.
[33] The claim of malicious proceedings based on the docket opened by WO
Mbokodi is a non-starter. Inherent in the concept of ‘set the law in motion’, ‘instigate’
or ‘institute the p roceedings’, is the causing of a certain result, namely a
prosecution.7 In this respect, the prosecution never commenced and WO Mbokodi’s
conduct in opening a docket did not set the law in motion or result in any
prosecution.8 To the extent that this conclusion is erroneous, the evidence reveals
that WO Mbokodi laid the criminal complaint in her personal capacity, so that no
liability can attach to the defendant.
[34] In any event, the plaintiff testified that she had generally enj oyed a good
working relationship with WO Mbokodi since August 2020. This changed for various
reasons, notably because of the plaintiff’s role in arresting an officer Sauls, who had
been romantically linked to WO Mbokodi, because of an issue pertaining to a year-
end function and WO Mbokodi’s alleged unauthorised use of a vehicle. Considering
both the plaintiff’s evidence and that of WO Mbokodi, however, it cannot be said that
the original complaint was contrived to settle a previous score. More than a month
had passed since Sauls’ arrest and the crux of the complaint pertained to the use of
the word ‘monkey’, which the plaintiff admitted. On the plaintiff’s version, their
relationship returned to a professional level by the middle of January 2021.
[35] The Labour Appeal Court has held that unfounded accusations of racism are
inherently demeaning, insulting and an attack on human dignity. 9 While WO
6 Regulation 8(1): ‘A supervisor must ensure that the investigation into the allegations of misconduct
is completed within thirty (30) calendar days or as soon as practically possible th ereafter, and if
satisfied that the alleged misconduct is of a serious nature and justifies the holding of a disciplinary
hearing, refer the outcome of the investigation to the employer representative within seven (7)
working days to initiate a disciplinar y enquiry. The employee must be informed of the alleged
misconduct and pending investigation.’
7 Lederman above n 4 at 196H–197A.
8 See Holden v Assmang Limited above n 1 para 10: a claim for malicious prosecution can ordinarily
only arise after the succes sful conclusion of the criminal case in the plaintiff’s favour. In a criminal
matter, this would occur on acquittal or withdrawal of the charges.
9 Legal Aid SA v Mayisela & Others (2019) 40 ILJ 1526 (LAC) ( Mayisela). Alse see M van Staden
‘Unfounded accus ations of racism as workplace discrimination: Solidarity obo K v Western Cape
Education Department and Others [2024] ZALCCT 59’ (2025) 46 ILJ 1573 at 1579.
Mbokodi continued to press the matter, it must be accepted that this was because
she remained concerned that her co mplaint was not being taken seriously by her
employer. This makes it clear that she did so in her own name, as pleaded by the
defendant. She opened the docket the day after the disciplinary hearing was
postponed for the second time, on 21 April 2021. The p laintiff’s criticism of her
decision to do so at a different police station is without substance, given that her
dissatisfaction was with the pace of the disciplinary proceedings and the key
involvement of various personalities from Joza. As Lt Col Havenga rightly explained,
it was WO Mbokodi’s prerogative to do so. The plaintiff made a statement explaining
her conduct at the parade and the Director of Public Prosecutions declined to
prosecute during June 2021. By that time, the disciplinary proceedings wer e in
motion and WO Mbokodi did not pursue the criminal complaint further. This is
consistent with WO Mbokodi’s version that she had wanted to be heard and for the
matter to be investigated properly, without specifically desiring the plaintiff’s
dismissal. Her testimony makes it clear that she was genuinely troubled by the
incident, based on her view that the plaintiff had articulated herself in a way that
revealed that she considered her to be an animal. To the extent that it may
nevertheless be said that she instigated or instituted either the disciplinary or criminal
proceedings, so that the defendant may be liable as a result, and applying the tests
discussed below, I find that she had reasonable and probable cause to do so based
on what she honestly beli eved she had heard, and that she acted without malice or
animus injuriandi in doing so.
Reasonable and probable cause
[36] Reasonable and probable cause means an honest belief founded on
reasonable grounds that the institution of proceedings is justified. 10 The concept
therefore involves both a subjective and an objective element. 11 In the criminal
therefore involves both a subjective and an objective element. 11 In the criminal
context, a prosecutor must subjectively have a belief in the existence of reasonable
and probable cause, and that belief must be justifiable from an objective poi nt of
view:12 ‘When it is alleged that a defendant had no reasonable cause for prosecuting, I
understand this to mean that he did not have such information as would lead a reasonable
10 Prinsloo and Another v Newman 1975 (1) SA 481 (A) at 495G–H.
11 Moleko above n 2 para 20.
12 Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A) (Beckenstrater) at 136A–B.
man to conclude that the plaintiff had probably been guilty of the offenc e charged; if, despite
his having such information, the defendant is shown not to have believed in the plaintiff’s
guilt, a subjective element comes into play and disproves the existence, for the defendant, of
reasonable and probable cause.’
[37] The test may require some moderation in the employment context, also
because of the different nature of the proceedings, including the distinct
consequences of a finding of guilt and the opportunity to pursue conciliation and
arbitration, which is typically a de novo rehearing of the alleged misconduct. In the
present matter, the specific disciplinary offence was also determined by a person
other than the person who set the proceedings in motion, so that a literal application
is inapposite. It is trite that the rules re lating to procedural fairness in employment
disputes deliberately do not replicate the criminal justice model of procedural
fairness or the accoutrements of a criminal trial, including technical and complex
charge sheets. 13 The arguments relying on the for mulation of the charges against
the plaintiff are accordingly misplaced. In addition, the focus in the pleadings on WO
Mbokodi and Col Mtshagi overlooks the role played by various other senior SAPS
employees, notably Maj-Gen Kunene.
[38] For present purposes, reasonable and probable cause exists if a reasonable
person would have concluded that the plaintiff was probably guilty of a disciplinary
offence on the facts available to Col Mtshagi. The SCA has recently confirmed, in the
criminal context, that a prosecutor need not have evidence establishing a prima facie
case or proof beyond a reasonable doubt when deciding to initiate a prosecution.
Suspicion of guilt on reasonable grounds suffices. The question is what a reasonable
prosecutor would have done consider ing the information available at the relevant
stage.14 The test is not whether plaintiff was innocent of the charges but whether
stage.14 The test is not whether plaintiff was innocent of the charges but whether
there was reasonable and probable cause for the disciplinary proceedings, which is
dependent on the careful assessment of the m aterial available at the time the
proceedings were instigated.15
13 See Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation
and Arbitration and Others [2006] ZALC 44; [2006] 9 BLLR 833 (LC); (2006) 27 ILJ 1644 (LC).
14 National Director of Public Prosecutions v Mdhlovu 2024 (2) SACR 331 (SCA) (Mdhlovu) para 21.
15 Ledwaba v Minister of Justice and Constitutional Development and Others [2024] ZASCA 17 para
24.
[39] Answering that question requires some appreciation of the sensitivities
associated with racism, including racist utterances and the use of the word
‘monkey’:16
‘South Africa’s special sect or brand of racism was so fantastically egregious that it had to be
declared a crime against humanity by no less a body than the United Nations itself. And our
country, inspired by our impressive democratic credentials, ought to have recorded
remarkable pro gress towards the realisation of our shared constitutional vision of
entrenching non-racialism. Revelations of our shameful and atrocious past, made the Truth
and Reconciliation Commission, were so shocking as to induce a strong sense of revulsion
against racism in every sensible South African. But to still have some white South Africans
address their African compatriots as monkeys, baboons or kaffirs and impugn their
intellectual and leadership capabilities as inherently inferior by reason only of skin col our,
suggests the opposite. And does in fact sound a very rude awakening call to all of us.’
[40] The Constitutional Court has remarked that the terms ‘monkey’ and ‘baboon’
are ‘weapons of gross insult regularly resorted to pulverise whatever racists thought
was left of the dignity and self -worth of the African people.’ 17 In Strydom v
Chiloane,18 the court relied on Mangope v Asmal 19 to confirm that, given the
connotation attached to such words, a person so described ‘may rightfully perceive
them to be hurtful’ . This is because the purpose of the use of such a word is to
indicate that the recipient is ‘base and of extremely low intelligence’ and because it
can be inferred from the use of the word, depending on the circumstances, ‘that the
person mentioned is of subhuman intelligence and not worthy of being described as
a human being.’20
[41] It is unnecessary to determine precisely what was said at the parade for
purposes of the present proceedings, assuming that this is possible on the evidence
purposes of the present proceedings, assuming that this is possible on the evidence
adduced. There are a t least two distinct versions. According to Ms Stevens, the
16 South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and
Others [2016] ZACC 38; 2017 (1) SA 549 (CC) ( SARS) para 2. Also see the remarks of Cele J in
Edcon Ltd v Cantamessa & Others (2020) 41 ILJ 195 (LC) (Edcon) para 17.
17 SARS above n 16 para 5; Also see Lebowa Platinum Mines Ltd v Hill (1998) 7 BLLR 666 (LAC)
para 12.
18 Strydom v Chiloane 2008 (2) SA 247 (T) (Chiloane).
19 Mangope v Asmal 1997 (4) SA 277 (T) at 286J–287A.
20 Chiloane above n 18 para 13.
plaintiff ‘stated that she will look after the components vehicles, Captain Manona
must take charge of the CPU vehicles, because he is in charge of CPU. She then
stated that if she “picks up the monkey that means she must feed the monkey”’ (own
emphasis). While Stevens’ recollection aligns closely with that of the plaintiff, it is
subtly different and constitutes a third version. This itself demonstrates the subtleties
of language, coupled with que stions pertaining to the genuine ability to recall and
articulate what has been heard.
[42] Without delving into detail regarding the racial composition and language
preferences of the group that heard the utterance, and as an aside, it may be noted
that the innocent expression was itself unfortunate given South Africa’s painful
history. What may be emphasised is that the innocent expression included both a
word that could be construed as a racial slur on its own, as well as a separate
allusion to that same wo rd, combined in a metaphor or unfamiliar idiom. While WO
Mbokodi was conversant in English and Afrikaans, leaving aside the plaintiff, the
home language of all those present on parade was either isiXhosa or Afrikaans. As
ended up being the case, a listener could, rightly or wrongly and bearing in mind the
vagaries of language, hear a racial undertone, feel demeaned or targeted when
hearing the word or conclude that the speaker was ignorant of or insensitive to the
possible racial implications. To compound matters, the utterance followed an enquiry
pertaining to vehicles for Cpt Manona’s members. Even on the plaintiff’s version, the
innocent response was a comment to those assembled that made indirect reference
to Cpt Manona (‘if you pick up the monkey…’). Th e subsequent clarification that
referred to a ‘problem’ was ambiguous. It could have been construed as a problem
pertaining to ‘vehicles’, as the plaintiff would have it, or a problem pertaining to
‘vehicles for members’. WO Mbokodi’s concern had emanated from members on foot
‘vehicles for members’. WO Mbokodi’s concern had emanated from members on foot
patrol, so that she would have had these people in mind. That being the case, it is
apparent how even the innocent expression could have been perceived by her as
referring to members as monkeys, despite this not having been the plainti ff’s
intention.
[43] More importantly, Col Mtshagi had received WO Mbokodi’s written complaint,
containing reference to the racist expression which included the use of the word
‘monkey’ by the plaintiff amidst several black colleagues. Col Mtshagi discussed the
allegation with the plaintiff shortly after having received the verbal complaint, to
which the plaintiff responded. She informed the plaintiff that a written statement from
WO Mbokodi was awaited. Having received the complaint in writing, inc luding a
serious allegation of racism, Col Mtshagi cannot be criticised for triggering an
investigation, irrespective of her personal sentiments. Where a serious charge is
levelled against an employee, the Labour Relations Act: Code of Good Practice:
Dismissal21 requires an employer to investigate the allegations prior to disciplinary
proceedings being initiated. Col Mtshagi sought the appointment of an investigator
and, having engaged with
Lt Col Strydom, contacted Cpt Prince, provided him with WO Mbokodi’s sta tement
and requested him to investigate and report to her so that she could ‘make an
informed decision on future action’. This suggests a diligent and good faith attempt to
assess the merits before proceeding. 22 The decision not to follow Lt Col Strydom’s
recommendation, even if supported by Lt Col van der Merwe, cannot be criticised.
The decision to be made was within her discretion, which she exercised by adopting
the view that mediation should be reserved for more minor issues.
[44] Having obtained statements from those in attendance, Cpt Prince determined
that a prima case existed. Considering the information before him, it is difficult to
fault that conclusion. There were at least two different versions of what had occurred,
one of which constituted a racist expression that had been heard by WO Mbokodi as
well as other members, although only WO Mbokodi had complained. Having
received this report, following investigation, Col Mtshagi proceeded to inform the
provincial office that the matter was serious and n ecessitated a disciplinary hearing.
Her approach was based on persuasive objective information leading to a compelling
and legitimate inference, following a complaint through the appropriate channel. 23
and legitimate inference, following a complaint through the appropriate channel. 23
The decision was sound in principle and reflects an ho nest belief founded on
reasonable grounds that formal disciplinary proceedings were warranted. This was
confirmed by Col Mtshagi’s responses during cross -examination. The matter could
not have been addressed informally. The language used contained referenc e to both
21 Schedule 8, Act 66 of 1995.
22 Mdhlovu above n 14 para 28. See Weitz v Goodyear SA (Pty) Ltd and Others (2014) 35 ILJ 441
(ECP) (Weitz) para 18: a pre -hearing investigation is precisely what its name suggests, the employer
investigating the offence to decide whether formal disciplinary action may be justified.
23 See Mayisela above n 9 para 48.
an animal and a human being so that Col Mtshagi had triggered an investigation,
even if only one person had complained. It was, as she said, not her place to try to
determine the dispute of fact herself or to conclude that the incident had been
nothing more than a misunderstanding. The plaintiff had uttered words that had
shocked WO Mbokodi and Col Mtshagi was alive to the plaintiff’s version that she
had only expressed a metaphor or idiom. There is no evidence to support the
suggestion that she had tried to appease WO Mbokodi by proceeding in the manner
she did. Her conduct demonstrates that she had no axe to grind with the plaintiff.
She obtained input from Lt Col Strydom and testified in support of the plaintiff. Her
approach also finds support in Maj-Gen Kunene’s determination that a hearing was
necessary to determine the issue of context, notwithstanding Cpt Booth and Brig De
Klerk’s conclusions to the contrary.
[45] The result is that the plaintiff has failed to prove that the information before
Col Mtshagi was insufficient to lead a reasonable person to conclude that the plaintiff
had probably committed misconduct. WO Mbokodi’s verbal and written complaint,
while that of a single person, raised a reasonable suspicion of impropriety that
warranted further investigation as it suggested possible serious misconduct. 24 This
was subsequently supported by Capt Prince’s recommendation, which was based on
various statements supportive of WO Mbokodi’s version. Subjectively too, Col
Mtshagi had concerns abou t the possible reference to police officers as monkeys
and has not been shown to have proceeded with disciplinary steps absent a belief as
to the plaintiff’s guilt. 25 That the plaintiff was subsequently retrospectively reinstated
does not negate the earlier existence of reasonable and probable cause.26
[46] In Beckenstrater, the court held that it was important to the community that
persons with reasonable and probable cause for prosecution should not be deterred
persons with reasonable and probable cause for prosecution should not be deterred
from setting the criminal law in motion against those whom they believed to have
committed offences, even if in so doing they were actuated by indirect or improper
motives.27 Bearing in mind the constitutional right to fair labour practices for
24 Mdhlovu above n 14 para 26.
25 Beckenstrater above n 12 at 136. Also see Edcon above n 16 para 18.
26 Mdhlovu above n 14 para 30.
27 Beckenstrater above n 12 at 135D–E.
everyone, similar sentiments must be applicable in the empl oyment context.28 It is
certainly of importance to an employer that has reasonable and probable cause for
instituting disciplinary proceedings that it should not be deterred from setting
workplace processes in motion against those it believes to have commi tted
misconduct.29 It may be added that the analysis as it pertains to Col Mtshagi applies
with equal force to any other SAPS employees that may be said to have been
involved in the institution of the disciplinary action. It must also be noted that the
plaintiff went as far as to concede that there was reason for SAPS to investigate the
complaint, because of its nature, which accords with Col Mtshagi’s evidence. The
plaintiff’s complaint, as she expressed it during her evidence, was that she had not
been as ked for an explanation, a matter dealt with above, and consternation that
SAPS, while enjoying the prerogative to discipline, had exercised that right in
punitive fashion. This submission speaks to malice or animo injuriandi, which is dealt
with below.
Malice or animo injuriandi
[47] Although the expression ‘malice’ is used, the claimant’s remedy in a claim for
malicious prosecution lies under the actio injuriarum and what has to be proved in
this regard is animus injuriandi.30 ‘Malice’ therefore strikes at le ast at the subjective
motive or true intention of the actor and gives expression to their animus injuriandi. It
includes the intention to injure, whether in terms of dolus directus or dolus
indirectus.31 The ‘malice’ must be that of the person responsible for initiating the
prosecution.32
[48] Animus injuriandi includes not only the intention to injure, but also
consciousness of wrongfulness:33
28 See National Education Health and Allied Workers Union v University of Cape Town and Others
(2003) 24 ILJ 95 (CC) paras 33 and following: the right is enjoyed by employees and employers.
29 See Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2001) 22 ILJ 1603 (LAC): discipline in
the workplace is the prerogative of the employer.
30 Rudolph and Others v Minister v Safety and Security and Another 2009 (5) SA 94 (SCA) ( Rudolph)
para 18.
31 Weitz above n 22 para 20, 27 and the authorities cited there.
32 Rudolph above n 30 para 19. The court accepted that the proceedings were initiated, in that matter,
when the appellants were formally charged.
33 J Neethling, JM Potgieter & PJ Visser Neethling’s Law of Personality 2 ed (2005) at 181 cited with
approval in Moleko above n 2 para 63. Also see Kruger above n 2 para 52.
‘In this regard animus injuriandi (intention) means that the defendant directed his will to
prosecuting the plaintiff (and thus infringing his personality), in the awareness that
reasonable grounds for the prosecution were (possibly) absent, in other words, that his
conduct was (possibly) wrongful (consciousness of wrongfulness). It follows from this that
the defendant will go free where reasonable grounds for the prosecution were lacking, but
the defendant honestly believed that the plaintiff was guilty. In such a case the second
element of dolus, namely of consciousness of wrongfulness, and therefore animus injuriandi,
will be lacking. His mistake therefore excludes the existence of animus injuriandi.’
[49] To succeed on the case as pleaded, the plaintiff had to demonstrate that Col
Mtshagi intended to take disciplinary steps with the consciousness of wrongfulness.
Dolus, at least in the form of dolus eventualis, is required and negligence, or even
gross negligence, will not suffice. 34 Yet the plaintiff failed to show that Col Mtshagi,
or indeed any other SAPS employee, had foreseen the possibility that initiating the
disciplinary proceedings was wrongful, in that reasonable grounds for it were lacking,
and had acted recklessly as to that consequence. 35 Matters such as the procedural
deficiencies which occurred and the manner in which the charges were formulated
do not establish the required intention to injure the plaintiff through baseless
proceedings.36 Col Mtshagi’s decision to proceed, viewed objectively, is incompatible
with consciousness of wrongfulness, recklessness or animus injuriandi. Instead, and
as the defendant pleaded, the indications are that she genuinely believed that
disciplinary proceedings were warranted given the serious nature of the complaint
and the conflicting versions of what had been said. 37 To the extent that her
reasoning, or indeed that of Maj -Gen Kunene or any other relevant functionary, may
reasoning, or indeed that of Maj -Gen Kunene or any other relevant functionary, may
be said to have been flawed, this on it s own is insufficient to impute the necessary
intent. Proving malicious proceedings requires egregious conduct, not merely flawed
34 Moleko above n 2 para 64; Mdhlovu above n 14 para 31.
35 Mdhlovu above n 14 para 32.
36 Mdhlovu above n 14 para 33. On the standard of c are that an employer should take in drafting
charges, see EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others (2019) 40 ILJ 2477 (LAC) paras 15 –16: employers embarking on disciplinary proceedings, not
being skilled legal practitioners, occasionally define or restrict the alleged misconduct too narrowly or
incorrectly. The categorisation by the employer of the alleged misconduct is less important than
informing the employee of the alleged misconduct and courts and arbitra tors must not adopt too
formal or technical an approach.
37 Cf Mdhlovu above n 14 para 37.
reasoning.38 On this basis too, the first claim must be dismissed so that the
defendant is not liable to the plaintiff for any damages suffered.
Defamation
The pleadings and evidence
[50] The plaintiff claims that member(s) of the defendant unlawfully and
intentionally published information that was defamatory, namely that the plaintiff had
referred to people as monkeys in statements under oath. As a result, the plaintiff
pleads that posters referring to the plaintiff as a ‘white racist bitch’ were placed on
fences and doors at Joza. 39 The plaintiff claims that member(s) of the defendant, on
2 May 2021, allowed these posters containin g defamatory and derogatory
statements to be affixed to entrances at the different sections of Joza, including the
door of the plaintiff’s office and on vehicles parked in the back yard of the station. 40
On 19 May 2021, the plaintiff pleads that, during an Economic Freedom Fighters
(EFF) protest, protestors were in possession of placards containing various
defamatory statements, which were tied to the fence of the station. 41 As a result of
the publication of the defamatory statements, the plaintiff adds tha t an unknown
individual posted on Facebook that the plaintiff had racially abused black police
officers by calling them monkeys. The individual also referred to CAS no.
112/04/2021, being the case opened against the plaintiff.
[51] The defendant accepts that there were some posters containing statements
relating to some members of the SAPS, including but not restricted to the plaintiff,
placed inside Joza. The defendant denies that the posters were placed on the
38 Mdhlovu above n 14 paras 35–37.
39 While the pleadings refer to ‘placards’, it is convenient to refer to this as ‘posters’ to differentiate
from the alleged EFF-related conduct.
40 The plaintiff pleads that the posters stated the following:
a) ‘Why is this racist leader called Capt Du Preez still here While she called other officers
a) ‘Why is this racist leader called Capt Du Preez still here While she called other officers
Monkeys or Baboons PLZ ACT S/COM M.NTSHAGI RACISM must GOOO!!’ (sic.)
b) ‘Yooooo!! Call our Collegeus!! As Monkeys!!! Capt Du Preez’ (sic.)
c) ‘RACIST BITCH MUST GO ON this Orgsniation E.G. .. Capt Dupreez AND Lt Col Havange’
(sic.)
41 The statements are the following:
a) ‘NO TIME FOR RACISM NOW DUPREE MUST GO’ (sic.)
b) ‘ONS IS MOEG VAN DIE BOERE WAT KOM O ORVAT IN ONS SE SWART LAND.’ (We are
tired of the farmers / Afrikaners who came to take over our black country.) (Own translation.)
c) ‘STRYDOM SWART MENSE KAFFER TE ROEP IS VERBY!’ (Strydom, calling black people
‘k…..’ is over.) (own translation.)
boards by SAPS members acting in the scope of th eir normal duties. Once the
posters were noticed, they were removed. No complaint was lodged with the SAPS
for the matter to be investigated or pursued. As for the EFF march, the defendant
denies any SAPS involvement. In respect of the Facebook post, the d efendant
pleads that the individual is unknown to the defendant or to any members stationed
at Joza. In addition, SAPS cannot control what is posted online and no complaint
was lodged by the plaintiff.
[52] An inspection in loco was conducted at Joza and the p arties signed a minute
as to what had been observed, with reference to the testimony of Lt Col Havenga
where necessary. The entire police station has walls with palisade fencing that
secures the police station. The entrance gate would have been locked at t he time of
the incident, which fell within the Covid -19 period. After the entrance gate there is
another steel gate in front of glass doors that lead to the main entrance. To the right -
hand side is a vehicle entrance gate which leads to the parking bays of SAPS
officials at the back of the station. This is a motorised gate, accessed only by
members with a pin code. A glass double door on the side of the building was always
locked. Lt Col Havenga pointed out the covered parking bay where he had observed
vehicles with posters on them, and the area on the right of the building where
detective vehicles are parked. These vehicles also had posters on them. The back
entrance was, during the Covid -19 period, the only entry point for SAPS members,
leaving aside the c ommand service centre near the main entrance to the police
station. Lt Col Havenga pointed out the various areas within the station that had
contained posters, including the entrance of the administrative section against the
glass door and notice board, up the staircase to the first floor, on the walls and
locked glass door of the detectives’ section, on the crime office passage and locked
locked glass door of the detectives’ section, on the crime office passage and locked
glass door, and behind a glass cabinet. There was a large concentration of posters
in the passage towards the plaintiff ’s office and posters were placed on her office
door. During the EFF protest, placards were tied to the palisade fencing at the
parking area.
Analysis
[53] A claim for defamation is aimed at compensating the defamed party for any
publication that injures their good name and reputation, with its main focus being the
protection of the constitutional rights to dignity and privacy.42
[54] The elements of defamation include: (i) the wrongful; and (ii) intentional; (iii)
publication of; (iv) a defamatory statement; (v) concerning the plaintiff.43 A plaintiff in
a defamation action need not prove each of the aforesaid elements to succeed, once
he or she has proven publication of defamatory matter concerning himself or herself,
a presumption that the statem ent was both wrongful and intentional arises. 44 A
defendant who wishes to avoid liability must raise a defence which excludes either
wrongfulness or intent. This duty on a defendant constitutes a full onus, which must
be discharged on a preponderance of probabilities and facts must be pleaded and
proved that will be sufficient to establish the defence.45
Was there publication?
[55] Publication means ‘the communication or making known to at least one
person other than the plaintiff’ and may take many forms, including print. 46 The
posters were mainly photocopied from four original posters containing the offensive
material and the contents were made known to those who were inside the police
precinct during the time they were affixed. This constitutes publication.
Were the posters defamatory?
[56] It is common cause that unknown people referred to the plaintiff as a ‘racist’
and a ‘bitch’ in documents affixed to the walls of the police station. The question
whether the posters contain defamatory material invol ves a two -stage enquiry. The
first is to establish the natural or ordinary meaning of the writing. The second is to
decide whether that meaning is defamatory. The test to be applied to determine the
ordinary meaning of the words is objective, namely what m eaning the reasonable
ordinary meaning of the words is objective, namely what m eaning the reasonable
42 See, in general, Le Roux & others v Dey (Freedom of Expression Institute & another as amici
curiae) 2011 (3) SA 274 (CC) (Le Roux).
43 Khumalo & Holomisa 2002 (5) SA 401 (CC); 2002 (8) BCLR 771; [2022] ZACC 12 para 18.
44 Le Roux above n 42 para 85.
45 Ibid.
46 Le Roux above n 42 para 86.
reader of ordinary intelligence would attribute to the words read in context. 47 The
reasonable reader will not take account only what the words expressly say but also
what they imply.48
[57] The word ‘bitch’ is clearly derogatory and abu sive49 and, when coupled with
reference to the plaintiff, a white woman, and the words ‘racist’, ‘monkeys’ and
‘baboons’, constitutes racially -charged communication.50 What the posters imputed
to the plaintiff was both demeaning and expressly suggestive of the conclusion that
she was racist. The statement that a person is a racist on its own carries a meaning
that can defame. 51 As the Labour Court has noted, it is hard to conceive ‘of any
place or circumstance or country where, if a person is told that he i s racist, it will not
be experienced by such person as him or her being insulted and abused’. 52 This
exposed the plaintiff to contempt and animosity that rendered her less worthy of
respect by her colleagues. 53 The result is that the posters constituted p ublished
defamatory statement(s) concerning the plaintiff.
[58] The consequence of this finding is that it is presumed that the statements
were both wrongful and published with the intention to injure ( animus injuriandi ).
Little needs to be said about the sugg estion in argument that the plaintiff’s use of the
term ‘monkey’ qualified as a ground of justification for defamation. The defendant
has, firstly, failed to prove on a balance of probabilities that the sting of the
defamatory statement was true. Secondly, and in any event, the convictions of the
community are such that it cannot be said that the defamatory remarks were made in
the public interest. In coming to this conclusion, I have considered the time lapse, the
manner and the occasion of the publication , including the offensive appellation and
publication through multiple posters being placed around the station anonymously.
Is the defendant responsible for the defamation
Is the defendant responsible for the defamation
47 Sindani v Van der Merwe and Others 2002 (2) SA 32 (SCA) (Sindani) paras 10–11.
48 Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994 (2) SA 1 (A) at 20F–G.
49 See Viviers v Jentile [2010] ZAGPPHC 239 para 15.
50 Sindani above n 47 para 12. Cf Viviers above n 49 para 15.
51 Phaleng-Podile v Dovey [2022] ZAGPJHC 656 para 40.
52 SA Chemical Workers Union & another v NCP Chlorchem (Pty) Ltd & others (2007) 28 ILJ 1308
(LC) para 13; Jankielsohn v Reagan and 3 Others 2019 (7K11) QOD 23 (FB) para 55.
53 Le Roux above n 42 para 91.
[59] The remaining defence relied upon is that the members responsible were not
acting in the course and scope of their employment. The defendant argues, on this
basis and with reference to case authority, that the plaintiff has failed to prove that
the defendant defamed her. In particular, the defendant highlights the absence of
any link between the posters and the duties of SAPS members.
[60] On the evidence, it must be accepted that member(s) of the defendant
allowed posters containing defamatory and derogatory statements in respect of the
plaintiff, notably that she was a ‘racist’ and a ‘bitch’, to be affixed at parts of the
police station as pleaded. This included at the entrances, on the door of the plaintiff’s
office and on vehicles parked in the back yard. The police station was a space that
was always secured, particularly during the Covid -19 period. Any significant incident
ought to have been reported in an occurrence register. The posters were numerous
and displayed in various areas close to where those on duty were situated. Yet those
on night shift reported no incidents during their hourly station inspections on the
evening of Sunday 2 May 2021. The shift changed at 06h00 on 3 May 2021, also
without any incident noted. Yet soon thereafter, as Lt Col Havenga testified,
approximately 80 posters, mainly photocopies, were discovered affixed on walls,
doors and vehicles at the police stati on. Considering the facts, this was unlikely to
have been the conduct of a member of the public who gained access unlawfully and
was permitted to stroll through station affixing the posters. The probabilities are that
one or more SAPS members drafted, copi ed and affixed the posters while on night
duty.
[61] It remains to consider the argument that the posters were not placed on the
boards by SAPS members acting in the course and scope of their duties, and that
SAPS members did not order the publication of the posters in the course and scope
SAPS members did not order the publication of the posters in the course and scope
of their duties. Acts performed by an employee(s) solely for their own interests and
purposes and outside their authority are not considered to be ‘in the course of
employment’ even though they may have occurred during emplo yment. This is a
question of fact to be decided upon the circumstances of the case, with due
appreciation of the constitutional values of openness, responsibility and
accountability.54 The modern test for vicarious liability in cases of ‘deviation’ from
authorised duties is based on the majority judgment of Jansen JA in Rabie.55
(a) If an employee is seeking, albeit improperly, to advance their employer’s
interests, the employer may be vicariously liable. This is a subjective test. On
the subjective test there would be no vicarious liability if the employee were
acting solely in their own interests;
(b) Even if there is no vicarious liability on the subjective test, the employer may
still be liable if objectively there is a sufficiently close link between the
employee’s acts for their own interests and purposes and the business of the
employer.
[62] The test has been developed by the Constitutional Court in K v Minister of
Safety and Security (K) as follows:56
‘The objective element of the test which relates to the conne ction between the deviant
conduct and the employment, approached with the spirit, purport and objects of the
Constitution in mind, is sufficiently flexible to incorporate not only constitutional norms, but
other norms as well, It requires a court when appl ying it to articulate its reasoning for its
conclusions as to whether there is a sufficient connection between the wrongful conduct and
the employment or not.’
[63] Various cases have confirmed an employer’s liability to a third party for the act
of an employee considered to be ‘in the course of employment’, even though the act
itself is unlawful or prohibited. 57 Courts have confirmed that the application of the
general principle does not entail that every act of an employee committed during the
time of employm ent, in the advancement of their personal interests or the
achievement of their own goals, necessarily falls outside the course and scope of
their employment. 58 Ultimately, a sufficiently close link must exist between the
wrongful act of the employee, on the one hand, and the business or enterprise of the
wrongful act of the employee, on the one hand, and the business or enterprise of the
employer, on the other. Put differently, employees act outside the scope of
54 Mkize v Martens 1914 (AD) 382 at 394; K v Minister of Safety and Security [2005] ZACC 8; 2005
(6) SA 419 (CC). The following summary of the legal position is drawn from this court’s judgment in
Oudehoutkloof Boerdery (Pty) Ltd and Others v Venter [2021] ZAECGHC 85.
55 Minister of Police v Rabie 1986 (1) SA 117 (A) at 134C–F.
56 K v Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC) para 44.
57 See, for example, Estate van der Byl v Swanepoel 1927 AD 141.
58 Viljoen v Smith [1996] ZASCA 105; 1997 (1) SA 309 (A) at 315E–G. Also see Minister of Safety and
Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA).
employment if they disengage them selves completely from their employment and
promote their own objectives or interests exclusively. 59 As Neethling and Potgieter
note, whether or not a sufficiently close connection exists between an employee’s
acts for their own purposes and the business o f their employer is particularly
problematic in instances of an employee’s intentional wrongdoing, since this is the
very antithesis of an act in the course and scope of employment. 60 The authors also
note the turnabout occasioned by the K judgment.
[64] Applying these principles, the probabilities favour the conclusion that the
defendant is vicarious liable both on the subjective and objective tests espoused in
Rabie. On the subjective leg, each of the posters alluded in some way to the
employment context, ei ther through reference to ‘our colleagues’, or the
‘organisation’ or by pressing for the plaintiff’s dismissal. At least in some instances,
the allegedly racist conduct was linked, directly or indirectly, to the power of the
defendant to dismiss the plaint iff. To that extent, the employees concerned were
acting beyond their own interests, also pressuring their employer to act in a certain
manner.
[65] That aside, and for similar reasons, the employee(s) conduct occurred within
the confines of the workplace, pe rtained to an issue that arose during a parade,
alluded to and involved one or more fellow employees, including the plaintiff, and
suggested a desired response from SAPS. The workplace provided the location,
opportunity and, in all probability, the tools t o those who caused the plaintiff harm.
This occurred during ‘working hours’, bearing in mind that it is possible for a so -
called frolic to amount to a person’s neglect to perform their employer’s work
properly.61 Instead of utilising their time to act in s ervice of the defendant, to deter
harmful conduct and to protect members of society, including fellow colleagues,
harmful conduct and to protect members of society, including fellow colleagues,
those involved facilitated harm, despite being best place to prevent it. 62 Objectively,
and applying a multi -faceted test that considers all r elevant factors, including value -
59 J Neethling and JM Potgieter Law of Delict (8th Ed) at 447.
60 Ibid at 449.
61 K above n 56 paras 47–48.
62 See CJ Roederer ‘The constitutionally inspired approach to vicarious liability in cases of intentional
wrongful acts by the police: One small step in restoring the public’s trust in the South African Police
Services’ (2005) 21 SAJHR 575 at 592; K above n 56 paras 26 –29, quoting Feldman (Pty) Ltd v Mall
1945 AD 733, and para 57.
laden questions of policy and fairness, this amounted to a sufficiently close link to the
defendant to warrant vicarious liability.63
Republication
[66] There are different considerations that arise in respect of the alleged
defamation in respect of the placards carried by those who participated in the EFF
protest and the Facebook post. It may be accepted, in the plaintiff’s favour, that one
of the placards suggested indirectly that she was a racist and that this amoun ted to
defamation. So too the Facebook post. But the link between this conduct and the
defendant is tenuous. The plaintiff has failed to prove the involvement of any SAPS
member in the protest or in respect of the Facebook post. That aside, there is no
evidence to support the conclusion that any member who shared information about
the disciplinary and criminal proceedings involving the plaintiff was not acting in their
own interests or that, objectively, there was a sufficiently close link between such
conduct and the defendant’s operations. Furthermore, the established authority
provides that the general rule is that a person who publishes a defamatory
statement, or is held responsible for the publication of a defamatory statement, is not
liable for damages flowing from its unauthorised republication. 64 In my view, none of
the limited exceptions to this principle find application in the circumstances.
Quantum
[67] The purpose of damages for defamation is typically not to punish the
defendant but to offer concil iation and solace to the plaintiff by payment of
compensation for the harm caused and to vindicate the plaintiff’s dignity. 65 An award
for damages in proceeding of this nature should, therefore, compensate the plaintiff
for both wounded feelings and reputa tional damage. The court is obliged to have
regard to all the circumstances. It is useful to consider factors such as the nature and
content of the defamatory statement, the nature and extent of the publication, the
content of the defamatory statement, the nature and extent of the publication, the
63 See Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others 2001 (2) SA 242 (SCA) para 40.
Also see Roederer above n 62.
64 Buthelezi v Poorter and Others 1975 (4) SA 608 (W); Vengtas v Nydoo and Others 1963 (4) (SA)
358 (D).
65 Dikoko v Mokhatla 2006 (6) SA 235 (CC) paras 75–76.
reputation, character and conduct of th e plaintiff and the motives and conduct of the
defendant.66
[68] As alluded to above, the published statements contained serious defamatory
material, labelling the plaintiff a racist and alluding to morally reprehensible conduct.
It was clear from the plainti ff’s evidence that she was extremely hurt by this, both
personally and professionally, and that this has had a lingering effect. There was
little evidence on the extent of the publication, in the sense of how many police
officers would likely have had sigh t of the posters, which were plastered all over the
police station, or precisely how long it took for the posters to be removed. I accept
that several people would have observed the posters personally and that verbal
republication to those members who arri ved at work shortly after the posters had
been removed was the natural and probable result considering the manner, location
and extent of the original publication. To this extent, there was reputational damage
suffered. That said, the actual publication wa s relatively narrow in its scope, and
largely confined to the defendant’s employees, as opposed to the wider public. The
plaintiff was a senior officer with a spotless record who was facing disciplinary action
at the time of this incident. The aggravating features to be considered include the
language used and the plethora of copies that were affixed in places designed to
draw attention to all those who entered those areas of the precinct. It is relevant that
the incident was either not properly investigate d, or at least that there was no proper
follow-up to the investigation, and that there has been no formal apology to the
plaintiff. The posters did target other senior personnel, and the average reader would
have construed the material accordingly, and wit h some appreciation that the
author(s) were aggrieved colleagues.
[69] I have also considered that the Constitution places great value on human
[69] I have also considered that the Constitution places great value on human
dignity, including reputation, to be balanced with the right to freedom of expression in
the occasionally robust cut and thrust of workplace relations. The extent of
sentimental damages for defamation has implications for the properly mediated
connection between dignity and free expression in that overly excessive amounts will
66 Meyer v Basset 2019 JDR 0562 (ECG).
deter and foster intolerance to the latter. 67 Finally, the court must consider that the
general trend of awards in such matters to limits the award of solatium has been
commended in various cases. 68 It has also been said that monetary compensation
for harm of this nature is not capable of being det ermined by any empirical measure
and awards in other cases might, at best, provide a measure of general guidance. 69
Having considered all these factors, I consider an amount of R80 000,00 to be an
appropriate award.
Costs
[70] There are competing consideratio ns in respect of the question of costs. It
goes without saying that the proper exercise of this court’s discretion demands an
approach that is fair to both sides.
[71] The court must look to the substance of the judgment and not merely its form
in determining who is the successful party. I have considered that the plaintiff has
succeeded in obtaining a damages award and, there being no suggestion of any
tender, that she had to approach the court to obtain this award.70
[72] Where issues are distinct and severable , the general rule is that a successful
party on each issue is entitled to their costs. This is, however, not a hard and fast
rule and considerable discretion is left to the trial judge. 71 The following sentiments
appear apposite:72
‘But if there are technically separate issues [and] if all these issues had to be raised in order
to lead evidence so as to enable the trial judge to give a correct judgment upon the issue on
which the litigant succeeds, then there must be some exceptional reason for not adopting
the general principle that the successful litigant is entitled to all his costs.’
[73] The evidence reveals, factually, a clear connection between the parade
incident and the plaint iff’s successful claim for defamation. Moreover, at least one of
67 Dikoko v Mokhatla above n 65.
68 See, for example, Mogale and Others v Seima [2005] ZASCA 101; 2008 (5) SA 637 (SCA) para 18.
69 Tsedu and Others v Lekota and Another 2009 (4) SA 372 ( SCA). See, for example, Media 24
Limited t/a Daily Sun and Another v Du Plessis [2017] ZASCA 33; Van der Berg v Coopers & Lybrand
Trust (Pty) Ltd & Others above n 63.
70 Norwich Union Fire Insurance Society Ltd v Tutt 1960 (4) SA 851 (A) at 854.
71 Estate Wege v Strauss 1932 AD 76 at 86.
72 Penny v Walker 1936 AD 241 at 260.
the pleaded defences to the defamation claim was grounded upon the plaintiff’s
utterance of the word ‘monkey’ during the parade. The result is that some, but not all,
of the issues that emerg ed in respect of the malicious proceedings claim were
interwoven with the defamation claim, so that I prefer not to award separate costs
order per claim.73 This provides sufficient justification, in my view, for making a costs
order in favour of the plaint iff, rather than awarding the defendant the costs of the
malicious proceedings claim: the defendant has not been entirely successful on a
distinct issue wholly unconnected with the issue upon which the plaintiff has
succeeded.74 To add to this, the award obtained is not insubstantial and the plaintiff
has succeeded in vindicating a substantial right.75
[74] On the other hand, the plaintiff succeeded only respect of part of the lesser of
her two claims and much of the evidence led was in respect of the unsucce ssful
claim. The costs of the action were increased appreciably by the issue upon which
the plaintiff failed. 76 This, on its own, appears to me to justify an award of only a
percentage of the plaintiff’s costs.
[75] That the plaintiff unduly increased the cost s of the proceedings adds to this
conclusion.77 In particular, the emphasis placed on the disciplinary hearing, including
the provision of the full transcript and much of the time spent with reference to the
conduct of Col Nkwenkwe, was unnecessary and rem ained disconnected to the
pleaded basis of the action.
[76] To compound matters, the figures attached to the plaintiff’s claims were
grossly extravagant. The plaintiff claimed R5 million for the alleged malicious
proceedings and R1 million for defamation. Yet heads of argument submitted on
behalf of the plaintiff, at the conclusion of the trial, suggested that payment in the
amount of only one third of the sum of those figures was appropriate. This amount
amount of only one third of the sum of those figures was appropriate. This amount
was itself markedly higher than any of the comparable a uthorities relied upon in
73 See Invernizzi v Port Elizabeth Municipality 1954 (2) SA 288 (E) at 299D–F.
74 May v Union Government 1954 (3) SA 120 (N) at 131 –132 quoting Fripp v Gibbon & Co 1913 AD
354 at 358.
75 See Featherby v Zulu 2021 (8K11) QOD 1 (KZD) para 27.
76 Norwich Union Fire Insurance Society Ltd v Tutt above n 70. Also see Premier Attraction 300
trading as Premier Security v City of Cape Town [2016] JOL 35769 (WCC).
77 Rowles v Isipingo Beach Re ision Court 1966 (3) SA 751 (D).
support of the quantum to be awarded and constitutes, at the very least, an
irresponsible claim. The failure to assess quantum realistically is to be deprecated.
So too the practice of allowing an inflated amount to remain unamend ed in
particulars of claim, in the face of authorities suggestive of a far lower amount. While
this may not be a basis for depriving the plaintiff of her costs, it contributed to the
incurrence of unnecessary costs and is a factor to be considered in the p resent
circumstances.
[77] Considering all these factors, I consider it appropriate to award the plaintiff
thirty per cent of her costs. As to the scale of costs of counsel, in terms of the rules, I
have considered the complexity of the matter, the value of t he claim, the importance
of the relief sought and the fact that the respondent engaged the services of senior
counsel. Costs of counsel on scale B appear to me to be warranted.
Order
[78] The following order is issued:
1. The defendant is ordered to pay damages to the plaintiff in the amount of
R80 000,00.
2. The defendant is ordered to pay interest on the aforesaid amount at the
legally prescribed rate, from the date of service of summons to date of
payment.
3. The defendant is ordered to pay thirty per cent of the plaintiff’s costs of suit,
including costs of counsel on scale B.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard:
Heads of argument received: 23 – 28 October 2025
3 November 2025
Delivered: 2 December 2025
Appearances
For the Plaintiff: Adv M du Doit
Instructed by: NN Dullabh & Co
Makhanda
For the Defendant: Adv A Rawjee SC
Instructed by: The State Attorney
Gqeberha