THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 62/05
Reportable
In the matter between:
NATIONAL EDUCATION, HEALTH AND ALLIED
WORKERS UNION 1st Appellant
ISAAC MOITHERI MATHYE 2nd Appellant
and
KEGOM ODITSWE EUPHODIA TSATSI Respondent
Coram: HARMS, CAM ERON, NUGENT, JAFTA JJ A and
NKABINDE AJA
Heard: 14 November 2005
Delivered: 1 December 2005
Summary: Defamation – whether words in report that respondent ‘embraces fraudsters’
and ‘unleashes unprecedented harassment’ against staff is defamatory –
Defences – qualified pri vilege – whether available to the appellants –
whether appellants vicariously liable for re-publication of report.
JUDGMENT
NKABINDE AJA:
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[1] The respondent (plaintiff) in stituted an action against the
appellants in the Johannesburg Hi gh Court claim ing dam ages for
defamation in the sum of R250 000. The court a quo (Joffe J) found the
statements forming the basis of the cl aim to be defamatory in two respects,
and awarded damages in the sum of R50 000.
[2] The first appellant is the Nati onal Education, Health and Allied
Workers Union (‘NEHAWU’), a regist ered trade union. It has mem bers
who are em ployed at the Johannesburg Ma gistrates’ Court. It was sued on
the basis that it was vicariousl y liable for defam atory statements made by
its branch secretary, the second appellant , a senior interpreter at that court.
The respondent is an advocate empl oyed there as the manageress. Her
duties entailed, among other t hings, d ealing with l abour matters. She had
had various clashes with NEHAWU fro m the time of her appointm ent in
February 2002.
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[3] On 28 June 2002 NEHAWU held a general meeting of its
members at the court. The second a ppellant prepared a report which was
distributed to members in attendance at the m eeting. Later o n certain staff
members who were not m embers of NEHAWU (including the plaintiff and
one Mr Molefe) received copies of the report. For the m ost part the report
dealt with m atters relating to labour relations (eg outstanding disciplinary
matters, training issues, unilateral management decisions). These had
formed the subject of protracted and int ense exchanges and negotiati ons
between management and NEHAWU. Even though the st atements were
found to be defamatory in only two respects, it is us eful to set out t he full
text of the portions against which complaint was made:
(a) ‘The management headed by Ms Tsatsi is refusing to give us their plan, saying that it
is privilege[d] information and it cannot be given to us. How strange ?’
(b) ‘Empty prom ises under the leadership of Ms Tsatsi has been m ade in order to
expedite the training process or else to have an independent person to com e and tell the
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management that their kind of practice is cleft as “Residual Unfair Labour
Practice” we declared also another dispute in this regard; the administration of the office
is in bad shape than that in the era of Mr Bashe. If you compare the present dispensation
with that of Mr Bashe, o ne can safely say Mr Bashe was doing very well in rooting out
corrupt officials instead of embracing them (fraudsters).
(c) ‘There is unprecedented harassment unleashed agains t General Ass istants, Cas ual
Interpreters, Perm anent Interpreters, Stenogr aphers and Adm inistration. Literally the
whole office is under siege since the arrival of the new office manager.’
(Emphasis added.)
[4] The plaintiff contended that the report was widely dist ributed by the
second appellant, that the statements ita licised were defamatory of her in
that they imputed, and were intended by the appellants to impute and were
understood by persons to whom they were distri buted to mean that she is a
liar, fraudster who connives with fraudsters, is corrupt, without moral fibre,
is dishonest, and intim idated and ha rassed emplo yees at the court. S he
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pleaded further that the statements al so carried the additional sting that
she is manipulative, vindictive and abused her power.
[5] The appel lants denied that the statements were defamatory and,
pleaded, alternatively, that they were protected by qualified privilege.
[6] Apart from the quantum , the issues at the hearing narrowed down to
the following:
(a) whether the statements were defamatory ;
(b) if so, whether they were protected by qualified privilege ; and
(c) whether the appellants were liable for the re-publication of the report
outside NEHAWU’s general meeting.
[7] The learned judge a quo held that the statements were defam atory.
He concluded that qualified privi lege did not c over the publication to
individuals who were not mem bers of NEHAWU, and that the appel lants
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were liable as they had failed to take steps to preclude the furt her
publication of the re port. With the leav e of this court the appe llants appeal
against that order.
I deal with the issues in turn.
[8] The test whether the statemen ts are defamatory is an objective one -
whether the statements co mplained of tend to lower the plaintiff in th e
estimation of the ordinary reader of the report. As was stat ed in Johnson v
Beckett and another 1992 (1) SA 762 (A) at 773C-E a court,-
‘construes the words in their context, and considers what meaning they would convey to
ordinary reasonable persons, having regard to the sort of people to whom the words
were or were likely to be published . . . “the average ordinary reader of th at
newspaper”;. . . . The kind and quality of the readership is relevant, since it is as m uch
part of the context in which the alleged defamation occurs as the other w ords contained
in the article are.’
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[9] The words that the plaintiff ‘embraces fraudsters’ and ‘unleashes
unprecedented harassment’ against staff members are, it would seem , used
not only figuratively but also in hype rbole. To say of a person that she
embraces fraudsters suggests, i n m y view, that she colludes with and/ or
condones fraudsters’ activities which in itself tarnishes the person and
discredits her in her social and pr ofessional standing. Whether the same
may be said of the accusation that a pe rson, in a managerial position as is
the plaintiff, ‘harasses’ staff is que stionable. I would however add that,
given the content and the tone of the report, any such defamation was
slight.
[10] Having so found, t he next questi on for consideration is whether the
statements were protected by qua lified privilege. When m aking th e
assessment it is convenient to deal, fi rst, with the publication of the report
at the meeting and, second, with re-p ublication out side the meeting. It is
not in dispute that the second appe llant dissem inated the report to the
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members of NEHAWU present at the meeting. To establish privilege
the appellants were required to s how that the second appellant and
NEHAWU members had a reciprocal right and duty t o make and receive
the report and the defamatory statemen ts were relevant or germane and
reasonably appropriate to the occasion. 1 The imm unity would be forfeited
if it is established that the seco nd appellant acted with an im proper motive,
but that does not arise here b ecause it was not raised as an issue on t he
pleadings.
[11] One of the recognised occasions th at enjoys the bene fit of the defence
is an occasion where the stat ements were published in the discharge of a
duty or exercise of a right. The facts in this case illum inate the instrumental
function of freedom of expression in l abour relations. O’Regan J 2 has
1.
1 See the authorities cited in FDJ Brand ‘Defamation’ 7 Lawsa 2 ed para 250.
2 South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) at 477 para [7].
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pointed out, regarding trade unions , that ‘[t]he Constitution recognises
that individuals in our society need to be able to hear, form and express
opinions and views freely on a wide range of matters’. She stated3 that-
‘ As Mokgoro J observed in Case and Another v Minister of Safety and Security
and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC)
… in para [27], freedom of expression is one of a ‘web of mutually supporting rights’ in
the Constitution. It is closely related to freedom of religio n, belief and opinion (s 15),
the right to dignity (s 10), as well as the right to freedom of association (s 18), the right
3.
See too s 23 of the Constitution. See also Thomas v C ollins 323 US 516 (1945) about the instrumental
function o f freed om o f ex pression in labo ur relatio ns. In th at case Ju stice Ru dledge, d elivering th e
opinion o f t he C ourt st ated (at 53 2) t hat ‘in t he ci rcumstances of o ur t imes t he di ssemination of
information concerning facts of labor disputes must be regarded as within that area of free discussion that
is guaranteed by the Constitution. … Free discussion concerning conditions in industry and the causes of
labor d isputes app ear t o us indispensable t o th e e ffective and in telligent d estiny of mo dern ind ustrial
society.’ McLachlin CJC and Lebel J in Pepsi-Cola Canada Beverages (West) Ltd. v R.W.D.S.U., Local
558, (2002) 208 D.L.R. (4th) 386 remarked at para [33] that ‘[f]ree expression is particularly critical in
the l abour c ontext. … Fo r e mployees, freedom of ex pression becomes not o nly an i mportant but an
essential co mponent of labo ur relations’. I con sider t hat t hese remarks sim ilarly ap ply i n t he
circumstances of our times in our country.
3 At 477 para [8].
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to vote and to stand for public office (s 19) and the right to assem bly (s 17).
These rights taken together protect the rights of indivi duals not only individually to
form and express opinions, of whatever natu re, but to establish associations and groups
of like-m inded people to foster and propa gate such opinions. The rights im plicitly
recognise the im portance, both for a dem ocratic society and for i ndividuals personally,
of the ability to f orm and express opinions, whether individually or c ollectively, even
where those views are controversial. The corollary of the freedom of expression and its
related rights is tolerance by society of diff erent views. Tolerance, of course, does not
require approbation of a particular view. In essence, it requires the acceptance of th e
public airing of disagreements and the refusal to silence unpopular view.’
[12] The question whether the statemen ts wer e relevant to the occasion
involves essentially a value judgm ent. The correct approach is set out by
Smalberger JA in Van der Berg v Coopers & Ly brandt Trust (Pty) Ltd and
Others 2001 (2) SA 242 (SCA). He stated4 that:
1.
1. 4 at 254 para [26].
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‘the concept of relevance under discussi on is, …essentially a m atter of reason
and common sense, having its foundation in th e facts, circum stances and principles
governing each particular case. The words of Schreiner JA in R v Matthews and Others
1960 (1) SA 752 (A) at 758A that “relevancy is based upon a blend of logic and
experience lying outside the law” have partic ular application in a m atter such as the
present, even though they were said in the context of evidential relevance (cf Hoffm ann
and Zeffertt The South African Law of Evidence 4 th ed at 21). The assessm ent of
whether a d efamatory statem ent was relevan t to the occas ion to which it relates is
therefore essentially a value judgment in respect of which there are guiding principles
but which is not governed by hard and fast rules. And in ar riving at that judgm ent due
weight must be given to all matters which can properly be regarded as bearing upon it.’
[13] Here, the second appellant , as the branch secretar y of NEHAWU ,
had a right to make allegations and impart the inform ation concerned to
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NEHAWU memb ers and that the l atter had a reciprocal right to
receive it. That right is underlin ed by the provisions of s 23 5 of the
Constitution.
[14] The appellants contended that the statements were relevant to the
labour matters in respect of which they had the right and dut y to report to
their mem bers. It was contended on behalf of the plaintiff that the
statements were untruthful and not relevant to the issues disc ussed at the
meeting ‘to advance any of t heir objective goals’. Their relevance cannot
be dispute d. In any event as Corbett JA 6 has stated, the truthfulness or
otherwise of the statements has no bearing on whether they were germane
to the occasion or not.
1.
2. 5 Which entitles, in ter alia, a trad e un ion t o determine it s own ad ministration, pro grammes an d
activities, to organise and engage in collective bargaining and the worker to form, join and participate in
the trade union activities and programmes.
3. 6 In Borgin De Villiers & Another 1980 (3) SA 556 (A) at 578H-579A.
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[15] As I have already indicated, the court a quo rejected the
defence of privilege on the basis th at the publication was not lim ited to
NEHAWU m embers thereby finding t hat the appellants re-publ ished the
statements to non members. There is however no proof that the second
appellant or any of the em ployees of NEHAWU was dire ctly responsible
for such re-publication.
[16] As to whether the appellants were liable for the re-publication, there
can be no doubt t hat one or m ore of NEHAW U memb ers present at the
meeting might have re-published the report to non-members (including the
plaintiff and Mr Molefe). Ther e is however no evidence to show that the
appellants authori sed or were otherw ise responsible for the re-publication
of the report. On t hat basis they cannot be held liable for the wrongs
committed by their mem bers without their authorisation. The court a quo
found, however, that the appellants s hould have taken steps to preclude t he
re-publication, thereby implying, first, that they acted negligently in failing
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to take steps to prevent such re- publication. It bears note that the
plaintiffs claim was not based on neg ligence. Moreover, the plaintiff has
not shown what steps the appellants oug ht to have taken or second, that
they were vicariously liable for th e conduct of t hose who m ight have
disseminated the statements – there is no evidence to suggest that a
relationship of an employer – e mployee or principal – agent existed for the
appellants to be held so liable. The fi nding by the court a quo is therefore,
with respect, without legal basis and places an undue burden on th e
appellants. For these reasons the pl aintiff’s claim ought to have been
dismissed with costs.
[17] In the result the following order is made:
(a) The appeal is upheld with costs.
(b) The order of the court a quo is set aside and replaced with the following:
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“The plaintiff’s claim is dismissed with costs.”
________________
NKABINDE AJA
CONCUR:
HARMS JA
CAMERON JA
NUGENT JA
JAFTA