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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE No: 2769/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 9 April 2026
SIGNATURE: DIAMOND AJ
MOITSI CHOENE DONALD PLAINTIFF
and
L[...] F[...] FIRST DEFENDANT
ROMANS PIZZA (POLOKWANE) SECOND DEFENDANT
JUDGMENT
DIAMOND A J:
[1] This is an action for defamation brought by the plaintiff, Mr Moitsi Choene
Donald, against the first defendant, Ms L[...] F[...], a co -worker, and the second
defendant, Romans Pizza (Polokwane), the plaintiff's employer. The plaintiff seeks
damages arising from a written grievance letter dated 5 November 2022 in which the
first defendant complained to management that the plaintiff had sexually harassed
her and, in one passage, referred to him as a "boy."
[2] The plaintiff claims a total of R1,300,000.00 in damages. This sum is made up
of R200,000.00 for injury to his dignity, R200,000.00 for injury to his good name and
reputation, and R900,000.00 for estimated future loss of income. He further seeks a
written apology from both defendants and costs of suit on scale C, with counsel's
fees on scale C.
[3] Following the grievance letter, the plaintiff was charged by the second
defendant with three counts of gross misconduct: gross insolence, gross negligence
regarding food safety, and sexual harassment. He appeared before an independent
disciplinary hearing chaired by an independent chairperson from the South African
Council of Arbitrators and Ombudspersons (SACAO). He was found guilty on all
three charges and dismissed on 6 December 2022.
[4] The plaintiff thereafter referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation and Arbitration (CCMA). The CCMA dismissed his dispute
and confirmed that his dismissal was substantively and procedurally fair.
[5] The plaintiff now seeks to achieve before this court what he could not achieve
before the disciplinary tribunal or the CCMA. He contends that the first defendant's
grievance letter was defamatory and that the second defendant is both vicariously
liable for publishing it and independently liable for having formulated charges against
him on the basis of the letter without conducting an adequate prior investigation. For
the reasons that follow, I am satisfied that the plaintiff's claim is entirely without merit
in law and in fact, and must be dismissed with costs.
THE PARTIES AND BACKGROUND
[6] The plaintiff is an adult male who was employed by the second defendant as
a hospitality worker, principally as a chef or kitchen hand, from approximately 2004
until his dismissal on 6 December 2022. He worked at the Romans Pizza branch
situated at the Palm Centre, Polokwane, Limpopo.
situated at the Palm Centre, Polokwane, Limpopo.
[7] The first defendant, Ms L[...] F[...], is an adult female. She was employed by
the second defendant at the same branch. At the relevant time, she worked
alongside the plaintiff and was subject to the plaintiff's conduct in the kitchen and
changing-room areas of the premises.
[8] The second defendant, Romans Pizza (Polokwane), is a juristic person
conducting business as a franchised fast -food restaurant at the Palm Centre,
Polokwane. The owner and operator of the second defendant at all relevant times
was Mr Pieter van der Merwe, who testified at trial.
[9] During the course of his lengthy employment, the plaintiff accumulated a
substantial disciplinary record. The record was placed before this court as Exhibit B
(pages 33 to 54 of the agreed bundle). It records numerous warnings, disciplinary
hearings, and adverse findings over many years. As will be addressed below, this
record is directly material to the plaintiff's claims relating to future loss of income and
his standing as a witness.
[10] It is common cause that on or about 5 November 2022, the first defendant
submitted a written grievance letter to management. In that letter, she complained
that the plaintiff had engaged in a sustained pattern of sexual harassment, including
unwanted touching, pressing his private parts against her body, and aggressive
conduct. In the course of the letter, she also referred to the plaintiff as a "boy."
[11] The first defendant gave the letter to her line manager, a Mr Lovemore, who in
turn gave it to the owner, Mr van der Merwe. Upon receiving the letter, Mr van der
Merwe conducted a preliminary investigation. He interviewed the first defendant,
reviewed available CCTV footage, and consulted with an external labour consultant.
Satisfied that a prima facie case of misconduct existed, he formulated three charges
against the plaintiff and referred the matter to an independent disciplinary hearing.
[12] The disciplinary hearing was presided over by an independent chairperson
drawn from SACAO. The plaintiff was found guilty on all three charges. Although the
drawn from SACAO. The plaintiff was found guilty on all three charges. Although the
plaintiff had pleaded not guilty, he admitted to certain elements of the conduct during
the proceedings. He was dismissed. His unfair dismissal referral to the CCMA was
subsequently unsuccessful, the commissioner having confirmed that his dismissal
was both substantively and procedurally fair.
THE PLAINTIFF'S CLAIM
[13] The plaintiff pleads in his Particulars of Claim that the first defendant's
grievance letter was defamatory of him in two respects: first, in that it falsely accused
him of sexual harassment; and second, in that it referred to him as a "boy," a word
which he contends is racially demeaning when applied to an adult Black African male
in the South African context.
[14] The plaintiff pleads that both defamatory imputations were made with animus
iniuriandi (intent to injure), that they were published to the second defendant and to
third parties, and that they have caused him serious injury to his dignity, good name,
and reputation.
[15] As to quantum, the plaintiff claims R200,000.00 for injury to his dignity,
R200,000.00 for injury to his good name and reputation, and R900,000.00 in respect
of future loss of income. The future loss claim is calculated on the basis that the
plaintiff will be unable to find employment in the hospitality industry as a result of the
defendants' alleged conduct.
[16] In respect of the second defendant, the plaintiff pleads that the second
defendant is vicariously liable for the first defendant's letter, the first defendant
having been its employee and having acted within the course and scope of her
employment when she filed the grievance. Alternatively, the plaintiff pleads that the
second defendant is independently liable for formulating charges against him without
conducting a proper and independent investigation, thereby "publishing" the alleged
defamatory material to the independent chairperson.
[17] The plaintiff further seeks an order directing both defendants to furnish him
with a written apology.
[18] The defendants deny that the letter was defamatory. They plead the defences
of truth and public benefit, qualified privilege, and fair comment. They further deny
the claimed quantum and contend that the claim for a written apology is legally
incompetent.
THE EVIDENCE
[19] The Plaintiff's Evidence
[20] The plaintiff testified in support of his own case. He denied that he had ever
sexually harassed the first defendant or any other female co -worker. He denied any
prior warnings or disciplinary proceedings related to sexual harassment. However,
under cross-examination, he was confronted with documentary evidence of at least
two prior sexual harassment complaints against him: one from a Ms D[...] L[...] P[...],
dated 17 July 2009, and one from a Ms W[...], dated 25 January 2022.
[21] The plaintiff's handling of these prior complaints was evasive and
demonstrably dishonest. He sought to minimise, downplay, and in some cases deny
knowledge of incidents that were corroborated by contemporaneous documentary
records placed before this court.
[22] The plaintiff denied knowledge of the charge sheet presented against him.
When shown page 50 of the bundle, which contained the three charges formulated
against him by the second defendant, he was compelled to acknowledge their
existence. His attempt to portray himself as a victim of an arbitrary and
uninvestigated process was accordingly contradicted by his own evidence.
[23] The plaintiff's dishonesty was particularly apparent in his testimony that the
first defendant "called him a boy" as if this were an unprovoked racial attack. Under
cross-examination, it was put to him that he had himself referred to the first
defendant as a "girl." He did not deny this with any conviction, and his evidence on
this point was, as I find, false. The first defendant subsequently confirmed under oath
that the plaintiff had in fact called her a "girl."
[24] On the question of publication, the plaintiff admitted that the grievance letter
was communicated exclusively within the internal chain of command: from the first
defendant to her line manager, from the line manager to the owner, and thereafter
within the disciplinary process. He admitted that the general public had no
knowledge of the contents of the letter. This admission is fatal to several aspects of
his claim.
[25] On the question of his inability to find alternative employment, the plaintiff was
caught in a direct falsehood. He claimed under examination -in-chief that he had
been unable to secure work since his dismissal. Under cross -examination, he
admitted that he had in fact been employed at Motate Lodge. This was not a minor
inconsistency: it went to the heart of his R900,000.00 future loss claim.
[26] Furthermore, the plaintiff admitted that there was no guarantee that he would
have remained employed at Romans Pizza until the age of 60. Given his extensive
disciplinary record (Exhibit B), this concession was self -evidently correct. When the
record of multiple warnings, hearings, and adverse findings is considered, the
suggestion that the plaintiff had a reasonable expectation of long -term continued
employment is untenable.
[27] The plaintiff admitted that he had apologised to co -workers during the
disciplinary process, though he sought to characterise this apology as strategic —
motivated by a desire to avoid losing his job — rather than as an acknowledgment of
wrongdoing.
[28] Importantly, it was the plaintiff himself who first disclosed the grievance letter
to external parties by referencing it in his CCMA referral. The defendants did not
broadcast the letter or publicise it in any way. The plaintiff's act of commencing
external legal proceedings is the primary vehicle by which the contents of the letter
became known beyond the immediate employment setting.
[29] The defendants led unchallenged evidence from a witness, Ms Moteme , that
the plaintiff had stated to co -workers that the employer would not dismiss him
because it would then be obliged to pay him a large sum of money. This evidence,
because it would then be obliged to pay him a large sum of money. This evidence,
which I accept as reliable, paints a picture not of a genuinely aggrieved victim of
defamation but of a person who anticipated the legal and financial consequences of
disciplinary action and sought, from the outset, to convert his misconduct into a
financial opportunity. The claim appears to be calculated and opportunistic.
EVIDENCE OF MR PIETER VAN DER MERWE (OWNER / SECOND DEFENDANT)
[30] Mr Pieter van der Merwe testified credibly and without contradiction in
material respects. He confirmed that the plaintiff had been dismissed after numerous
warnings and a lengthy disciplinary record extending over many years. He described
the plaintiff as a repeat offender who had been given numerous opportunities to
reform his conduct.
[31] Mr van der Merwe testified that upon receiving the first defendant's grievance
letter, he did not act precipitously. He conducted a preliminary investigation: he
interviewed the first defendant, reviewed available CCTV footage, and consulted with
an external labour consultant before formulating any charges. He found the first
defendant to be credible and consistent.
[32] He confirmed that three charges were formulated: gross insolence, gross
negligence regarding food safety, and sexual harassment. These charges were
formulated in consultation with the external labour consultant, with the specific
intention of complying with applicable labour legislation and not to harm or defame
the plaintiff. The formulation of charges in a disciplinary context is a statutory
obligation, not a discretionary publication.
[33] Mr van der Merwe confirmed that the plaintiff was found guilty by the
independent chairperson on all three charges. Although the plaintiff had pleaded not
guilty, he admitted to certain elements of the conduct attributed to him during the
proceedings.
[34] Mr van der Merwe confirmed that this was not the first occasion on which a
sexual harassment complaint had been made against the plaintiff. He produced
documentary evidence of the prior complaints: the D[...] L[...] P[...] complaint of 17
July 2009 and the W[...] complaint of 25 January 2022. He confirmed that these were
on the plaintiff's file and that they were taken into account when assessing the
appropriate sanction.
[35] He confirmed that the grievance letter was not published to any member of
the public, to any media outlet, or to any person outside the direct chain of the
disciplinary process. The letter was shared only with the line manager, himself, and
the independent chairperson.
[36] Mr van der Merwe confirmed that the plaintiff had no reasonable expectation
of employment until the age of 60, given his conduct record. He stated plainly that
the plaintiff had no future at the company and that his pattern of behaviour had
repeatedly undermined the working environment for other employees, particularly
female employees.
EVIDENCE OF JOHANES TOOLA (CO-WORKER)
[37] Mr Johanes Toola, a co -worker of the plaintiff, testified on behalf of the
defendants. He described the plaintiff as a person who constantly used vulgar and
inappropriate language in the workplace and who did not treat his co -workers with
respect. He testified that the plaintiff had on a prior occasion physically assaulted
him and that the plaintiff had been subjected to a disciplinary hearing as a result of
this assault.
[38] Mr Toola's evidence was consistent and unshaken in cross -examination. I
found him to be a credible witness.
EVIDENCE OF DOLTHA LEHONG (CO-WORKER)
[39] Ms Doltha Lehong, also a co -worker, testified that the plaintiff had no respect
for women in the workplace. She described a working environment in which the
plaintiff would use vulgar language, make inappropriate comments about women's
bodies, and physically touch female co-workers without their consent — in her words,
"slapping their asses." She also testified that the plaintiff had threatened to poison
the staff's food, a deeply disturbing allegation that was not effectively challenged in
cross-examination.
[40] Ms Lehong was careful and measured in her evidence. She stated explicitly
that she did not have a personal problem with the plaintiff as an individual but that
his treatment of women was consistently disrespectful and constituted an ongoing
hazard in the workplace. I found her evidence credible and reliable.
EVIDENCE OF MATEMA MESO (FORMER CO-WORKER)
[41] Ms Matema Meso, a former co -worker of the plaintiff, testified that the plaintiff
was a bully who sought to control and dominate those around him. She described
him as having no respect for women and said she never felt safe in his presence.
[42] Ms Meso testified that the plaintiff would walk into the unisex changing room
while female employees were present and changing, deliberately creating a situation
of vulnerability and discomfort. She testified that he had physically touched her
inappropriately on multiple occasions, including "slapping her on the bum."
[43] A significant aspect of Ms Meso's evidence arose incidentally but carries
considerable weight in the analysis of the "boy" allegation. In the course of
describing the changing-room arrangements, Ms Meso referred naturally and without
any apparent self -consciousness to "the boys and the girls" who used the changing
room. She used these terms as colloquial, gender-descriptive shorthand, without any
racial dimension or intent to demean. Counsel for the plaintiff raised no objection to
this usage, nor sought to cross-examine Ms Meso on it. This usage corroborates the
defendants' case that, within the vocabulary of this particular workplace, the words
"boy" and "girl" were used colloquially and without racial loading.
[44] I found Ms Meso to be an honest and forthright witness. Her account was
consistent, detailed, and corroborated by the evidence of the other female witnesses.
EVIDENCE OF THE FIRST DEFENDANT (MS L[...] F[...])
[45] The first defendant testified that she wrote the grievance letter of 5 November
2022 because she was, in her own words, "sick and tired" of the plaintiff's conduct
and genuinely afraid for her life and safety. She described a prolonged pattern of
sexual harassment during which the plaintiff would touch her inappropriately, slap
her on the buttocks, and stand directly behind her with his private parts pressing
against her body. She described the plaintiff as aggressive, intimidating, and
physically threatening.
[46] The first defendant testified that the plaintiff had, on one occasion, produced a
knife during a confrontation and had physically pushed her. She was afraid of him.
She did not write the letter lightly. She wrote it because she had exhausted her
patience and was genuinely fearful.
[47] She testified that she delivered the letter to her line manager, Mr Lovemore, in
the normal course of the employment grievance procedure and had no intention of
having it published beyond that internal channel.
[48] On the specific question of the word "boy," the first defendant made a
concession under cross-examination: she acknowledged that she had used the word
"out of spite" in the moment. This concession was relied upon heavily by the
plaintiff's counsel as evidence of animus iniuriandi. I deal with the legal
consequences of this concession in detail below. However, it is important to place
this concession in its proper context: the first defendant was a victim of sustained
sexual harassment who, at the moment she wrote the letter, was frightened for her
safety. She described herself as "sick and tired." The use of the word "boy" in that
context — in a letter written in extremis by a young Black woman about the conduct
of a male colleague who had been persistently violating her physical integrity —
must be assessed within that human reality.
[49] The first defendant confirmed that the incidents of harassment occurred in the
[49] The first defendant confirmed that the incidents of harassment occurred in the
changing room and in the passage between the kitchen and the changing room,
areas that were not covered by CCTV cameras. This explains why the CCTV review
conducted by Mr van der Merwe did not capture the specific incidents described by
the first defendant, but it does not diminish the credibility of her account.
[50] The first defendant confirmed that she herself had no intention of damaging
the plaintiff's reputation or image. Her intention was to report workplace misconduct
through the proper internal channels. This is entirely consistent with her evidence
that she gave the letter to her line manager and to no one else.
[51] I found the first defendant to be a credible and compelling witness. Her
account was corroborated in all material respects by the evidence of Ms Lehong, Ms
Meso, and the documentary record of prior complaints. I accept her evidence in its
entirety.
THE LAW OF DEFAMATION
[52] The elemen ts of the delict of defamation under South A frican law are well
established. As authoritatively confirmed by the Constitutional Court in Le Roux v
Dey1, a plaintiff must prove: (a) that the defendant published a statement; (b) that the
statement concerned the p laintiff; and (c) that the statement bore a defamatory
meaning.
[53] Once a plaintiff has established publication and defamatory meaning, both the
element of wrongfulness and the element of animus iniuriandi (intention to injure) are
presumed. The burden then shifts to the defendant to rebut on e or both of these
presumptions or to establish a recognised defence.
[54] The recognised defences to defamation in South African law include: (a) truth
and public interest or public benefit; (b) qualified privilege; (c) fair comment on a
matter of public interest; and (d) consent.
[55] The standard for determining whether a statement carries a defamatory
meaning is objective. The question is whether a reasonable person of ordinary
intelligence, reading or hearing the statement in context, would understand it to
1 Le Roux v Dey 2011 (3) SA 274 (CC).
convey a meaning that tends to lower the plaintiff in the estimation of right-thinking
members of society. This test was affirmed in Heroldt v Wills2 and Isparta v Richter3.
[56] The reasonable person against whom the test is measured is neither hyper -
sensitive nor entirely impervious to insult or affront. Courts will not make a finding of
defamation in every case where a person sub jectively experiences a statement as
hurtful, embarrassing, or offensive. The impairment must be of a n ature and degree
that the law recognises as worthy of a remedy.
[57] Furthermore, the test is contextu al. The meaning of a pu blication is
determined not by isolating indi vidual words or phrases b ut by cons idering the
publication as a whole, in its context, and through the eyes of a reasonable reader.
As the Supreme Court of Appeal held in Sindani v Van der Merwe 4, the court must
identify the "sting" of the publication — the central, operative defamatory imputation
— rather than fastening on peripheral or isolated expressions.
[58] Defamation law serves the constitutionally protected rights of dignity (section
10 of the Constitution) and reputation. However, these rights must be weighed
against equally important rights: the ri ght to freedom of expression (section 16), the
right to dignity of the complainant (who, in this case, is the first defendant as victim),
and the right of employees to report workplace misconduct without fear of reprisal. A
legal system that allows a ha rasser to sue his victim for reporting his conduct would
fundamentally subvert these constitutional values.
[59] Neethling, Po tgieter and Visser, in their authoritative work on the law of
delict,5 describe def amation as a wrongful and intentional publication of words or
conduct that impairs the esteem or good name of the p laintiff. All elements must be
present. In this case, as I find below, several critical elements are absent.
2 2013 (2) SA 530 (GSJ), Par 26.
3 2013 (6) SA 529 (GP), Par 23.
2 2013 (2) SA 530 (GSJ), Par 26.
3 2013 (6) SA 529 (GP), Par 23.
4 2002 (2) SA 32 (SCA), Par 11.
5 Neethling, Potgieter & Visser, Law of Delict, 7th ed (2015) at 307-308.
[60] In assessing both the defamatory nature of the communication and the
appropriate remedy, courts must also take into account the conduct of the plaintiff. A
plaintiff whose own conduct is disreputable, indecent, or criminal cannot claim the full
measure of dignity and reputational protection that the law affords to a person of
good character. This principle, associated with the cases of Mogale v Seima 6 and
Khumalo v Holomisa7, informs the court's assessment in this matter.
[61] With these principles in mind, I turn to the defences raised by the defendants.
QUALIFIED PRIVILEGE
[62] The doctrine of qualified privilege provides that a communication made in the
discharge of a legal, moral, or social duty, or in the furth erance of a legitimate
interest, is protected against an action for defamation, even if the communication
turns out to be untrue or hurtful, provided it is made without malice. Where a
qualified priv ileged occasion ex ists, the law presumes that the person making the
statement lacked the intention to injure.
[63] The most rec ent and directly applicable authority on this question in the
context of workplace grievances is the decision of the full bench of the Eastern Cape
Division (Mthatha) in Khuza and Another v Khanyiwe 8 . The full bench held
unequivocally that a workplace disciplinary investigation and process constitutes a
"qualified privileged occasion." On such an occasion, statements made in the course
of and for the purposes of the process are presumptively protected, provided they
are made without malice and within the scope of the duty or interest concerned.
[64] I respectfully align myself with the reasoning in Khuza and hold that it is
directly applicable to the facts of this case. The grievance letter of 5 November 2022
was written and submitted by the first defendant to her line manager, in the course of
6 2008 (5) SA 637 (SCA), Par 15.
7 2002 (5) SA 401 (CC) in which the court determined, amongst others in Par 28 that
7 2002 (5) SA 401 (CC) in which the court determined, amongst others in Par 28 that
that reputation is protected as a manifestation of human dignity, which must be
balanced contextually against freedom of expression.
8 [2025] ZAECMHC 17, decided by the full bench of the Eastern Cape Division,
Mthatha, on 4 March 2025.
her employment, in order to report conduct that she – on the evidence, with good
reason – believed constituted sexual harassment. This is precise ly the kind of
communication that the doctrine of qualified privilege is designed to protect.
[65] The rationale is clear and compe lling. The Labour Relations Act, 9 the
Employment Equity Act, and the Code of Good Practice on the Handling o f Sexual
Harassment Cases all impose obligations on both employees and employers in
respect of work place sexual harassment. An employee who files a gri evance about
sexual harassment is discharging a legi timate right – indeed a protected act – under
this legislative framework. To expose such an employee to a defamation suit by the
alleged harasser would fundame ntally undermine the protective purp ose of the
legislation.
[66] Similarly, the second defendant, upon receiving the grievance, was under a
legal and statutory obligation to investigate the complaint and to take appropriate
action. The formulation of charges, the conduct of a disciplinary hearing, and the
imposition of a sanction were all steps taken in discharge of those statutory
obligations. These were not voluntary acts of publication; they were compelled by
law and required by the Code of Good Practice.
[67] The grievance letter was transmitted through the proper and expected chain
of command: from the first defendant to her line manager, from the line manager to
the owner, and from the owner to the independent disciplinary chairperson. There
was no publication to the general public. There was no broadcast, no media contact,
and no disclosure to persons outside the employment relationship. The plaintiff
himself conceded this under cross-examination.
[68] The scope of the publication was strictly limited to those persons who had a
duty to receive and act upon it. This is the hallmark of a qualified privileged occasion.
The communication was proportionate to its purpose and contained within the
appropriate institutional structure.
appropriate institutional structure.
9 Labour Relations Act 66 of 1995; Employment Equity Act 55 of 1998; Code of Good
Practice on the Handling of Sexual Harassment Cases, GN 1367 of 2005.
[69] Can the qualified privilege be defeated? The plaintiff argues that the first
defendant's concession under cross -examination — that she used the word "boy"
"out of spite" — constitutes evidence of malice, which would defeat the privilege. I
address this argument in detail in the section dealing with the "boy" allegation below.
[70] Even if I were to accept that the use of the word “boy” was motivated by some
degree of animus, this does not necessarily vit iate the privilege in re spect of the
entire communication. The doctrine of qualified privilege attaches to the occasion as
a whoe, not to every indi vidual word or expression contained in the privileged
document. An occasion does not lose it s privilege d character merely because the
speaker, in the course of the communication, uses a phrase that could be
characterised as an expression of personal feeling. See Cullen v Jonas and
Another10, where the court emphasised that the privilege must be assessed in th e
round, taking account of the dominant purpose and the overall character of the
communication.
[71] The dominant purpose of the first defendant's letter was the reporting of
workplace sexual harassment to management. That purpose was entirely legitimate.
The fact that one phrase within the letter may have been animated by personal
feeling does not transform an otherwise protected grievance into a malicious attack
on the plaintiff's reputation. The letter as a whole was a legitimate exercise of the first
defendant's employment rights. It was not written with the primary or dominant
purpose of injuring the plaintiff.
[72] I accordingly find that both the first and second defendants are entitled to rely
on the defence of qualified privilege in respect of the grievance letter and the
subsequent disciplinary process. This is, in my view, the decisive finding that
disposes of the plaintiff's claim.
10 (3027/2021) ZAECBHC (unreported) in which the recites the classic position that “it
10 (3027/2021) ZAECBHC (unreported) in which the recites the classic position that “it
is the occasion that is privileged and not the statement” and that the test is objective,
judged by the reasonable person, with reference to the relationship between the
parties and the relevant surrounding circumstances. This frames privilege as
something to be assessed in the round, not piecemeal.
[73] Nevertheless, given the importance of the legal issues and the breadth of the
arguments advanced, I proceed to address the other defences and arguments in turn.
THE "BOY" ALLEGATION
[74] I turn to what the plaintiff's counsel characterised as the centrepiece of the
defamation claim: the use of the word "boy" in the grievance letter. This argument
requires careful and rigorous analysis, both because of its potential constitutional
dimensions and because it was the subject of the most extensive cross -examination
and legal argument at trial.
[75] As a first and critical observation, the word "boy" was not pleaded as a
separate or independent cause of action. A careful reading of paragraphs 8 to 13 of
the Particulars of Claim reveals that the plaintiff presented the grievance letter as a
single publication containing a composite defamatory meaning: namely, that the
plaintiff was a sexual harasser who behaved in a manner consistent with the
demeaning appellation "boy." The sexual harassment allegation and the use of the
word "boy" were pleaded to gether as the sting of a single publication, not as two
independent torts.
[76] Per Sindani v Van der Merwe , the court must determine the ordinary, natural
meaning of the publication as a whole by looking at the sting — the central, operative
defamatory imputation — rather than fastening on isolated words. On any fair
reading of the grievance letter, the sting of the complaint is the allegation of sexual
harassment. The word "boy" is a peripheral descriptor within that broader
communication. No innuendo was properly pleaded.
[77] Furthermore, the plaintiff's counsel, in the course of cross -examination,
elicited the first defendant's concession that she used the word "out of spite."
However, the plaintiff's counsel failed to plead innuendo — that is, the plaintiff did not
properly allege in the Particulars of Claim that the word "boy," in context and having
properly allege in the Particulars of Claim that the word "boy," in context and having
regard to extrinsic facts, bore a meaning beyond its ordinary and natural meaning.
Without a proper pleading of innuendo, the court cannot receive extrinsic evidence
going to the racially charged historical associations of the word as a free -standing
basis of claim. The pleading deficiency is fatal to this aspect of the case.
[78] I further note that no expert evidence was led regarding the cultural
significance or historical connotations of the word "boy" in the South African context.
Courts cannot simply assume, without evidence, the precise degree of racial or other
loading that a particular word carries in a specific social setting, particularly when the
evidentiary record before this court points in a different and contradictory direction.
[79] On the merits, even accepting for purposes of argument that the word "boy,"
when used by one person to describe an adult Black African male, can in certain
historical and social contexts carry a racially demeaning connotation rooted in South
Africa's colonial and apartheid past, the question for this court is not whether the
word has ever been used as a tool of racial subordination but whether it was so used
in these specific circumstances, and whether a reasonable person would interpret it
as such.
[80] The answer, when one considers all the circumstances, is emphatically no. I
set out the reasons for this conclusion.
[81] First, the first defendant is herself a Black African woman. The paradigmatic
colonial and apartheid -era use of "boy" as a racial slur was embedded in a specific
power structure: a white person deploying the word to subordinate a Black person in
order to reinforce racial hierarchy and deny the Black person's adulthood, dignity,
and full humanity. That dynamic is entirely absent in this case. The first defendant
was not a white superior deploying the language of racial oppression. She was a
young Black woman, a victim of sexual harassment, writing a distressed grievance
letter about the conduct of a male colleague who had repeatedly violated her dignity
and physical integrity. The racial dimension that might in other contexts invest the
and physical integrity. The racial dimension that might in other contexts invest the
word with its most toxic charge is substantially and materially attenuated by this
factual reality.
[82] Second, the context was a workplace grievance about sexual harassment. A
reasonable person reading the letter would focus on its substance — the serious and
detailed allegations of sexual misconduct — not on a single colloquial descriptor.
The word "boy" in this context would most naturally be understood as expressing the
first defendant's frustration with the plaintiff's behaviour, not as a racial or otherwise
derogatory statement.
[83] Third, and perhaps most significantly, the plaintiff himself used the equivalent
term "girl" when referring to the first defendant. This was put to the plaintiff under
cross-examination and corroborated by the first defendant's own testimony. If the
plaintiff regarded it as appropriate to use "girl" as a descriptor for an adult woman in
the context of their interaction, he is not well -positioned to claim racial injury from the
use of the reciprocal term. The use of these terms was evidently part of the colloquial
register of this workplace, devoid of the specific historical baggage that the plaintiff
now seeks to invoke.
[84] Fourth, the evidence of Ms Matema Meso, the fourth witness, is instructive. In
describing the changing-room arrangements at the workplace, she referred naturally
and unselfconsciously to "the boys and the girls." This usage was accepted without
objection by the plaintiff's counsel and without cross -examination. It demonstrates
conclusively that in the shared internal vocabulary of this specific workplace, the
words "boy" and "girl" were used as informal gender descriptors without racial
content. This evidentiary context negates the plaintiff's claim that the use of "boy" in
the grievance letter would be understood by a reasonable person in this setting as a
racial or otherwise derogatory affront.
[85] Fifth, there is the matter of the plaintiff's own conduct and standing. The
plaintiff was found guilty of sexually harassing the very person who wrote the
grievance letter. He had a documented history of violating the physical boundaries
and dignity of female co -workers over many years. Six witnesses testified,
and dignity of female co -workers over many years. Six witnesses testified,
consistently and with corroborating detail, to a pattern of conduct that was coercive,
demeaning, and at times threatening. A person who has systematically denied the
dignity of others — particularly by subjecting them to unwanted sexual touching — is
poorly placed to claim, with any moral or legal force, that a single word in his victim's
grievance letter constitutes a serious affront to his dignity.
[86] The Constitutional Court in Khumalo v Holomisa recognised that dignity is not
an abstract and fixed quantum that exists independently of social context. It is
shaped by and reflected in one's conduct and one's relationships with others. A
person who treats others without dignity, who has been found guilty of sexual
harassment, who has accumulated a record of disciplinary violations, and who has
repeatedly disregarded the dignity and bodily autonomy of female co -workers,
cannot claim the full measure of reputational protection that the law accords to a
person of unblemished character.
[87] Sixth, the first defendant's concession that she used the word "out of spite"
must be assessed in its proper human context. She was a victim, not an aggressor.
She wrote the letter because she was frightened, exhausted, and desperate for the
harassment to stop. The "spite" she expressed was the natural and understandable
reaction of a person who had been subjected to a sustained course of sexual
harassment. Even accepting the concession fully, it does not transform a legitimate
workplace grievance into a calculated campaign of racial vilification. The doctrine of
qualified privilege, as I have held above, survives this concession.
[88] Seventh, this court must be alive to the systemic implications of the plaintiff's
argument. To hold that a victim of sexual harassment defamed her harasser by
including a single colloquial expression in her grievance letter would create a chilling
effect on workplace reporting of sexual misconduct that would be fundamentally
inconsistent with the Constitution, the Labour Relations Act, the Employment Equity
Act, and the Code of Good Practice. This court will not countenance such a result.
[89] Eighth, and as a matter of overriding principle, this court will not allow a
harasser to weaponise a single word in a victim's grievance letter to extract monetary
damages from the very person he was harassing. To permit such a claim would be a
damages from the very person he was harassing. To permit such a claim would be a
manifest injustice and an affront to the constitutional values of dignity, equality, and
freedom. It would invert the moral and legal order of the workplace and signal to
victims of harassment that speaking out carries financial risk. This court emphatically
rejects that proposition.
[90] I accordingly find, on all the above grounds, that the use of the word "boy" in
the grievance letter does not, in the circumstances of this case, constitute a
defamatory statement that would cause a reasonable person of ordinary intelligence,
in possession of the full context, to regard the plaintiff as lowered in the estimation of
right-thinking members of society. Any lingering discomfort that the word might
ordinarily generate is overwhelmed by the full picture: a guilty harasser, a frightened
victim, an internal grievance, a colloquial workplace register, and a plaintiff who used
the reciprocal term himself.
[91] Even if I were wrong on this point, the defence of qualified privilege, as I have
found above, independently provides a complete answer to the plaintiff's reliance on
this word.
THE OBJECTIVE REASONABLE PERSON TEST AND ROBUSTNESS
[92] The test for defamatory meaning, as confirmed by the Constitutional Court in
Le Roux v Dey, is whether the statement would tend to lower the plaintiff's reputation
in the estimation of right -thinking members of society. The test is objective and
inherently contextual.
[93] As noted in Heroldt v Wills and confirmed in Isparta v Richter, the reasonable
person is neither hyper -sensitive nor completely impervious to insult. Courts will not
hold that defamation has occurred simply because a plaintiff subjectively feels that a
statement was hurtful, unfair, or embarrassing. There is an implicit element of
robustness built into the reasona ble person standard: the law expects a degree of
resilience in dealing with interperson al friction, workplace criticism, and the ordinary
vicissitudes of human interaction.
[94] The courts have further recognised that the seriousness of the impairment
must meet a minimum threshold. In S v Sharp11, it was noted that the impairment of
dignity must be s erious, not merely trivial . The seriousness threshold serves to filter
11 S v Sharp 1981 (2) SA 318 (N).
out claims founded on exc essive se nsitivity, thin skin, or an inflated sense of
personal honour.
[95] In Mogale v Seima,12 Harms JA emphasised that in assessing claims for injury
to reputation and dignity, court s must w eigh the actual reputation, character, and
conduct of the plaintiff. A plaintiff whose own conduct is indecent, aggressive,
disreputable, or otherwise morally compromised is assessed by a more exacting
standard. The law does not afford to a person of bad character the same measure of
reputational protection as it does to a person of good character.
[96] Applying these principles to the present case: the plaintiff is not a person
whose esteem has been unjustly lowered by a false and malicious publication. He is
a person who was found guilty by an independent tribunal of sexually harassing the
author of the grievance letter, who had prior complaints of sexual harassment on his
record, whose conduct was described by multiple witnesses as habitually vulgar,
physically intrusive, threatening, and disrespectful toward women, and whose
disciplinary history at the second defendant stretched over nearly two decades.
[97] Would a reasonable person, in possession of all these facts, regard the
plaintiff's reputation as having been lowered by the grievance letter in a manner that
the law should remedy? I think not. The plaintiff's reputation, such as it was, had
been substantially impaired by his own conduct long before the grievance letter was
written. An employer, a disciplinary chairperson, and a CCMA commissioner had all
concluded, independently, that his conduct fell far below the standards expected of
an employee in a shared working environment.
[98] The plaintiff asks this court to treat him as a person of good standing who was
arbitrarily and falsely accused of sexual harassment. The evidence conclusively
demonstrates the opposite. He was accurately accused, found guilty on his own
partial admissions and on credible witness testimony, and dismissed after a fair
partial admissions and on credible witness testimony, and dismissed after a fair
process. In these circumstances, the objective reasonable person test simply does
not yield a finding in the plaintiff's favour.
12 Par 15.
[99] I find that the plaintiff has failed to satisfy the objective test for defamation in
respect of either the sexual harassment allegation or the use of the word "boy." The
claims fail on this ground as well.
THE PLAINTIFF'S OWN CONDUCT
[100] The evidence relating to the plaintiff's conduct at the workplace was
overwhelming, consistent, and largely unchallenged in its substance. Six witnesses
testified to aspects of his behaviour. Their accounts, taken together, paint a detailed
and deeply troubling picture.
[101] The first defendant testified to a sustained course of sexual harassment:
unwanted touching, slapping of her buttocks, pressing his private parts against her
body from behind, aggressive conduct including the production of a knife during a
confrontation, and physical pushing. She was afraid of him. She wrote the grievance
letter because she was "sick and tired" and felt she had no other option.
[102] Ms Lehong testified to a consistent pattern of the plaintiff touching female co -
workers without their consent, making vulgar comments about women's bodies, and
threatening to poison the staff food. Ms Meso testified that the plaintiff would walk
into the unisex changing room while women were present and changing, that he had
no respect for women, that she had never felt safe in his presence, and that he had
physically touched her inappropriately on multiple occasions. Mr Toola testified that
the plaintiff had physically assaulted him and was generally violent and disrespectful.
[103] The documentary record confirms at least two prior sexual harassment
complaints (D[...] L[...] P[...], 2009; W[...], 2022) and an extensive disciplinary record
spanning nearly two decades. The plaintiff was found guilty by an independent
disciplinary chairperson and by the CCMA. His dismissal was confirmed as
substantively fair.
[104] The principle of tu quoque — that a plaintiff who has contributed to the
situation through his own egregious conduct cannot claim the same measure of
sympathy or legal protection as an innocent party — applies with full force in this
case. The plaintiff brought this claim against the very victim of his own sustained
misconduct. He did so having been found guilty of that misconduct by independent
tribunals. That is a position of profound moral and legal compromise.
[105] A court of law is an institution designed to vindicate genuine rights and to
provide remedies for genuine wrongs. It is not designed to assist a person in
avoiding the natural and just consequences of his own misconduct or in transferring
to his victim the financial and reputational costs of those consequences.
[106] The plaintiff's conduct comprehensively demolished any claim to good
reputation or dignity in respect of the subject matter of the grievance letter. He had,
by his own acts, reduced his reputational standing in the eyes of his co -workers to
the point where the grievance letter did not and could not have materially lowered
him in their estimation beyond what his own conduct had already accomplished.
TRUTH AS A DEFENCE
[107] In the alternative to my findings on qualified privilege and the objective test, I
find that the defendants are entitled to succeed on the defence of truth and public
benefit.
[108] The sting of the grievance letter is the allegation of sexual harassment. That
allegation was vindicated by the independent disciplinary hearing, which found the
plaintiff guilty on the charge of sexual harassment. The finding was upheld by the
CCMA commissioner on review. A finding of guilt by an independent tribunal —
particularly one from which the plaintiff had the right of appeal to the Labour Court —
constitutes a vindication of the allegation in every meaningful sense. The allegation
was substantially true.
[109] Truth is a complete defence to defamation under South African law where the
publication was also in the public interest or for the public benefit. The reporting of
publication was also in the public interest or for the public benefit. The reporting of
workplace sexual harassment by a victim to her employer serves the public interest
in promoting dignified and safe working environments. The Code of Good Practice
on the Handling of Sexual Harassment Cases recognises the public interest
dimension of such reporting.
[110] The first defendant's account of the plaintiff's conduct was corroborated in
material respects by the evidence of Ms Lehong, Ms Meso, Mr Toola, and Mr van
der Merwe. The corroboration extends across both the specific incidents described in
the letter and the broader pattern of conduct attributed to the plaintiff. I have already
found the first defendant to be a credible witness. There is no basis on which to
doubt the substantial truth of the allegations she made.
[111] I accordingly find that even absent the defence of qualified privilege, the
defendants have established the defence of truth and public benefit. The plaintiff's
claim fails on this ground as well.
THE CLAIM FOR FUTURE LOSS OF INCOME
[112] The plaintiff claims R900,000.00 in respect of estimated future loss of income.
He alleges that as a result of the defendants' conduct, he has been unable to find
employment in the hospitality industry and will continue to suffer income loss until the
age of 60. This claim is, as I find, entirely unsustainable on the evidence.
[113] As a preliminary matter, a claim for future loss of income in a defamation
action requires the plaintiff to establish a causal link between the defamatory
publication and his inability to find work. Specifically, the plaintiff must show that
prospective employers were made aware of the defamatory content of the
publication and that this caused them to decline to employ him. The plaintiff has not
established this causal link.
[114] The plaintiff admitted under cross -examination that the grievance letter was
published only within the internal disciplinary process and was not made available to
any member of the public or to any prospective employer. This concession is fatal to
the future income claim. Prospective employers could not have been influenced by a
document they had no knowledge of.
[115] Furthermore, under South African law, an employer is not legally permitted to
disclose the reasons for an employee's departure or dismissal to prospective
employers. Any prospective employer conducting a reference check would not have
been informed of the contents of the grievance letter or the nature of the charges
against the plaintiff. The suggestion that the letter caused the plaintiff's alleged
unemployment is speculative and evidentially unsupported.
[116] It was the plaintiff himself who, by commencing CCMA proceedings and
subsequently this litigation, placed the grievance letter in the public domain. If there
is any harm to his employability arising from the contents of the letter becoming
known, that harm flows from his own decision to pursue external proceedings.
[117] The plaintiff's claim to have been unable to find work since his dismissal was
directly contradicted by his admission under cross -examination that he had been
employed at Motate Lodge. This dishonesty fundamentally undermines the
foundation of the R900,000.00 claim.
[118] Moreover, Mr van der Merwe confirmed that even before the grievance letter,
the plaintiff had no reasonable prospect of long -term continued employment at the
second defendant, given his extensive disciplinary record. The plaintiff himself
admitted that there was no guarantee that he would have remained employed until
the age of 60. Given Exhibit B, this concession was unavoidable. A person with a
disciplinary record of that nature had no reasonable expectation of uninterrupted
employment for the period claimed.
[119] The unchallenged evidence of Ms Moteme — that the plaintiff had informed
co-workers that the employer would be obliged to pay him a large amount of money
if it dismi ssed him – further undermines the credibility of the income loss claim. It
suggests that the claim was anticipated and calculated rather than the product of
genuine financial loss cause d by the defendants ’ conduct. I accordingly dismiss the
genuine financial loss cause d by the defendants ’ conduct. I accordingly dismiss the
claim for future loss of income in its entirety.
THE CLAIM FOR A WRITTEN APOLOGY
[120] The plaintiff seeks an order directing both defend ants to furnish him with a
written apology. This relief is legally incompetent.
[121] The Constitutional Court confirmed in Le Roux v Dey 13that a court cannot
compel a party to issue an apology as part of a judgment in a def amation matter. To
do so would compel the expression of a sentiment that the party may not genuinely
hold, which would itself cons titute an infringement of the right to freedom of
expression guaranteed by section 16 of the Constitution. An enforced apology is in
any event meaningless and affords no genuine vindication.
[122] This aspect of the plaintiff's claim is dismissed on the grounds that it is legally
incompetent and constitutionally impermissible.
COSTS
[123] The question of costs is in the discretion of this court, exercised judicially and
having regard to all the circumstances. The general rule is that costs follow the event.
The defendants have succeeded entirely. The plaintiff's claim was dismissed in full.
Costs accordingly follow the event in favour of the defendants.
[124] The defendants seek costs on the attorney and client scale. I must consider
whether the circumstances of this case justify a departure from the ordinary party
and party scale in favour of the punitive scale.
[125] Attorney and client costs are awarded in circumstances where the conduct of
the unsuccessful party has been vexatious, oppressive, or constitutes an abuse of
the court's process. They are intended both to compensate the successful party fully
for the costs it has actually incurred and to signal the court's strong disapproval of
conduct that has wasted judicial resources.
[126] I am satisfied that attorney and client costs are warranted in this case for the
following cumulative reasons.
13
[127] First, the claim was brought by a person who had been found guilty of
sexually harassing the very defendant he now sues for defamation. The attempt to
convert a just and fair outcome of a disciplinary process — including the victim's
exercise of her right to report harassment — into a claim for monetary damages
borders on a perverse inversion of the purpose of defamation law. The plaintiff,
having been found guilty by an independent tribunal and confirmed by the CCMA,
seeks to relitigate his guilt by another name in this court.
[128] Second, the plaintiff was dishonest in his testimony on multiple material
aspects. He attempted to conceal his prior sexual harassment complaints, denied
knowledge of charges that were on paper before him, fabricated or exaggerated his
inability to find employment, and sought to present himself as a victim of an
uninvestigated and arbitrary process. This court finds his evidence to be unreliable
and at times deliberately false.
[129] Third, the claim was in the assessment of this court opportunistic from the
outset. The unchallenged evidence of Ms Moteme suggests that the plaintiff had
anticipated the financial consequences of his dismissal and had planned to extract
financial benefit from the defendants before the grievance letter was even processed.
The claim was not a genuine response to genuine injury.
[130] Fourth, the claim as framed and conducted wasted this court's time and the
defendants' resources. The plaintiff's counsel relied heavily on a cross -examination
concession about the word "boy" but failed to plead innuendo, failed to adduce any
expert evidence on the cultural significance of the word, and failed to establish the
word as an independent actionable cause of action. The strategic failure of the
plaintiff's case was compounded by its moral unsoundness.
[131] As to the scale for counsel's fees: I am satisfied that this is an appropriate
case in which to recommend that the taxing master allow counsel's fees on scale C.
case in which to recommend that the taxing master allow counsel's fees on scale C.
The proceedings involved a trial of more than one day, an extensive record of
documentary evidence, multiple witnesses, and complex legal argument spanning
defamation law, qualified privilege, constitutional rights, and labour law. The
defendants' counsel was required to prepare and present an extensive and
meritorious defence. The complexity of the legal issues traversed and the duration of
the trial justify scale C.
ORDER
131. In the result, the following order is made:
1. The plaintiff's claim against both the first and second defendants is
dismissed in its entirety.
2. The plaintiff is ordered to pay the costs of the first and second
defendants on the attorney and client scale, such costs to include the costs of
counsel, which this court orders be allowed by the taxing master on scale C.
DIAMOND AJ
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
Date of hearing: 17 November 2025
Date of judgment: 9 April 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time for hand -down of the judgment is
deemed to be 10 APRIL 2026.
APPEARANCES
For the Plaintiff: ADV MPHAHLELE i
nstructed by: MOITSI AND ASSOCIATES INC
email: moitsiassociates@gmail.com
ATTORNEY FOR THE PLAINTIFF
For the Defendants: RIKA VAN STADEN
instructed by: STEMMETT & OSMAN INC
email: rika@stemmett.co.za
ATTORNEY FOR THE DEFENDANTS