IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
APPEAL CASE NO: A2025-025717
COURT A QUO CASE NO: 2020-14102
DATE: 17 SEPTEMBER 2026
In the matter between:
JASON MKHWANE Appellant
and
ANDILE PHILIP DYAKALA Respondent
Neutral Citation: Mkhwane v Dyakala (A2025-025717) [2026] ZAGPJHC ---
(17 September 2026)
Coram: Mali et Adams JJ et Van Nieuwenhuizen AJ
Heard: 28 April 2026
Delivered: 17 September 2026 – This judgment was handed down
electronically by circulation to the parties' representatives via email,
by being uploaded to CaseLines and by release to SAFLII. The date
and time for hand-down is deemed to be 1 0:30 on 17 September
2026.
Flynote: Delict – defamation – truth and for public benefit and fair comment
– defendant accusing Municipal Supply Chain Manager of having ‘normalised
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corruption’ and implying personal corruption – institutional procurement
irregularities and irregular expenditure not, without more, proof of personal
corruption – inference of personal corruption not justified by evidence as a whole
– defence of truth and for public benefit not established –
Fair comment – defence not pleaded – unpleaded issue may be decided only
where fully canvassed and no prejudice results – factual substratum for
imputations that plaintiff was a ‘renowned bully’ and a ‘looter’ not established –
Appeal – factual findings – appellate deference to trial court – distinction between
credibility finding and inference drawn from accepted facts –
Quantum of damages – professional accused of corruption – publication limited
but professionally significant publication – R100 000 awarded for general
damages – retraction and apology ordered as part of damages award –
Interest payable on damages awarded – from date of judgment of court a quo –
Appeal upheld with costs.
Summary: The appellant , a Supply Chain Management Manager of a Local
Municipality, sued the respondent, the Municipality’s Chief Financial Officer , for
defamation arising from the publication by the respondent on a closed WhatsApp
group of statements that the appellant had ‘normalised CORRUPTION ’,
describing him as a ‘renowned bully’, that the appellant’s attorney has ‘looted R52
million’ and that he did not ‘fight with looters’.
The court a quo held that the statements were defamatory but dismissed the
appellant’s action, upholding the respondent’s truth and for public benefit and fair
comment defences.
On appeal, the Full Court held that the defence of f air comment had not been
pleaded. It also held that the evidence did not establish personal corruption. The
defence of truth and for public benefit failed for lack of evidence.
Fair comment not pleaded as a defence and should therefore fail. In any event,
the factual substratum necessary to justify the descriptions ‘renowned bully’ and
the factual substratum necessary to justify the descriptions ‘renowned bully’ and
‘looter’ had not sufficiently been established.
The appeal was upheld and the quantum of appellant’s claim assessed.
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JUDGMENT
On appeal from: The Gauteng Division of the High Court, Johannesburg
(Wilson J sitting as Court of first instance):
(1) The appellant’s appeal against the order of the court a quo dated 15 July
2024 is upheld, with costs.
(2) The order of the court a quo dated 15 July 2024 is set aside and substituted
with the following:
‘(1) It is declared that the statements published by the defendant concerning the
plaintiff on the SCM Management WhatsApp group were defamatory and
unlawful.
(2) The defendant shall pay the plaintiff the amount of R 100 000 as general
damages for defamation.
(3) The defendant shall pay i nterest at the applicable legal rate of 11.75% per
annum on the amount R100 000 from 15 July 2024 (the date of the judgment of
the court a quo) to date of final payment.
(4) Within ten days of service of this order, the defendant shall publish on the SCM
Management WhatsApp group an unconditional written retraction and apology
in respect of the defamatory statements concerning the plaintiff.
(5) To the extent that the defamatory statements remain accessible on any platform
or WhatsApp group under the defendant’s control, the defendant shall remove
them within ten days of service of this order.
(6) The defendant shall pay the plaintiff’s costs of the action, including the costs of
Counsel where so employed.’
(3) The respondent shall pay the appellant’s costs of the appeal, including the
costs of the application for leave to appeal to the court a quo and the costs
of the application for leave to appeal to the Supreme Court of Appeal, all
such costs to include the costs consequent upon the employment of
Counsel on scale ‘B’ of the tariff referred to in Uniform Rule of Court 67A(3),
read with rule 69
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JUDGMENT
Mali J et Van Nieuwenhuizen AJ (Adams J concurring):
Introduction
[1] This is an appeal against the judgment and the order of Wilson J delivered
on 15 July 2024, in terms of which the appellant’s action for damages arising from
defamation was dismissed with costs. The appeal is before this Court with leave
of the Supreme Court of Appeal, granted on 4 December 2024.
[2] Mr Jason Mkhwane (Mr Mkhwane) is the appellant and was the plaintiff in
the court a quo. Mr Andile Philip Dyakala (Mr Dyakala) is the respondent and was
the defendant. For convenience, they are referred to in this judgment as the
plaintiff and the defendant respectively.
[3] The dispute arises from a series of WhatsApp messages published by the
defendant during December 2019 on a group with Group Name ‘ SCM
Management’. The group comprised approximately ten managers and senior
employees working within the Supply Chain Management division of the Emfuleni
Local Municipality ( ‘the Municipality ’). The defendant was at the time the
Municipality’s Chief Financial Officer (‘CFO’), while the plaintiff was its Manager:
Supply Chain Management, and reported to the defendant.
[4] The plaintiff alleged that the messages conveyed, expressly or by
implication, that he was corrupt; had ‘normalised corruption’; associated with an
attorney who had ‘looted R52 million’; was a ‘renowned bully’; and was a ‘looter’.
[5] The defendant admitted publishing the messages but denied liability. The
court a quo found the statements defamatory. It nevertheless dismissed the
action after upholding the defences of truth and for public benefit and fair
comment.
5
[6] The principal questions in this appeal are whether the aforesaid defences
were properly available to the defendant and, insofar as they were, whether they
were established on the evidence.
Factual Background
[7] The defendant had extensive experience in municipal finance. He was
initially seconded to the Municipality as acting CFO and was subsequently
permanently appointed. His evidence was that he encountered a municipality
afflicted by financial instability, mal administration, irregular expenditure and
serious deficiencies in procurement.
[8] The plaintiff had occupied the position of Manager: Supply Chain
Management, since 2017 and had previously served as an assistant manager
within SCM. He was also politically active and had occupied positions within
regional structures of the African National Congress.
[9] The defendant testified that difficulties arose between him and the plaintiff
concerning procurement controls and their respective understanding of the
plaintiff’s functions. According to the defendant, the plaintiff resisted measures
which he sought to in troduce to improve procurement controls and exercised
improper influence over officials within SCM.
[10] Of particular significance was the defendant’s evidence that, shortly after
his arrival at the Municipality, the plaintiff took him aside and explained that he
had a political ‘mandate’. According to the defendant, this mandate was to ensure
that businesses or persons favoured by the ruling party were appointed as
municipal service providers. The defendant alleged that the plaintiff would
introduce him to favoured service providers and that he understood the plaintiff
to mean that political interests were to influence which businesses obtained
municipal contracts. This evidence became central t o the reasoning of the court
a quo. Wilson J accepted that the conversation occurred substantially as
described by the defendant.
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[11] The defendant further alleged that the plaintiff interfered in procurement
processes, resisted measures introduced to improve financial controls, exercised
improper influence over junior managers and bullied officials who did not accede
to his demands. The defendant relied additionally upon reports concerning
irregular expenditure and procurement deficiencies at the Municipality, including
the Comperio Consulting report and Auditor-General material.
[12] The plaintiff denied that he had ever told the defendant that he possessed
a political mandate to direct municipal tenders to preferred service providers. He
accepted that there had been irregular expenditure and procurement deficiencies
within the Municipality, but denied that those matters demonstrated corruption on
his part. The plaintiff also denied bullying anyone. His evidence was that the
disputes between him and the defendant concerned reporting lines, operational
matters and their respective functions.
[13] He distinguished his political activities from his professional career. His
profession was procurement and supply -chain management. An accusation of
corruption in that setting, he said, struck directly at his credibility and professional
integrity.
The Impugned Publications
[14] The impugned communications included the following statement: ‘Jason
you have normalized CORRUPTION. Not under my WATCH … ’. They included
further statements describing the plaintiff as a ‘renowned bully’; referring to his
attorney as having ‘looted 52 million’; and stating that the defendant did not ‘fight
with looters’.
[15] The communications were published in a work-related SCM management
group. The recipients were therefore not the public at large, but the plaintiff’s
professional colleagues, managers and subordinates. Publication was admitted.
7
The Pleadings
[16] The manner in which the defences were pleaded requires attention
because the position differs in relation to the different defamatory imputations.
[17] Contrary to the broad proposition advanced in parts of the plaintiff’s
argument, truth and public benefit was expressly pleaded in relation to the
allegation that the plaintiff had ‘normalised corruption ’. The amended plea
alleged, inter alia, that the plaintiff, as Manager: SCM, had obligations relating to
the prevention and correction of irregular procurement; that Auditor -General
findings had identified deficiencies; and that the plaintiff had failed adequately to
correct them. Importantly, paragraph 5.9 of the amended plea expressly alleged
that ‘[t]he allegations that the Plaintiff has normalised corruption is the truth and
was made in the interest of the public’.
[18] The defence of truth and public benefit in relation to ‘normalised corruption’
cannot therefore be rejected on the basis that it was not pleaded. The issue is
whether it was proved.
[19] The position concerning the allegation that the plaintiff was a ‘renowned
bully’ is different. The defendant pleaded that the allegation was true and set out
conduct said to substantiate it. Fair comment was not pleaded as a distinct
defence. Fair comment emerged only after the evidence had been completed.
The court a quo invited the parties to address whether the defence arose from
the evidence. The plaintiff objected to its introduction and contended that the trial
had been conducted on a different basis.
The Judgment of the Court A Quo
[20] The court a quo held that the WhatsApp publications were defamatory. In
particular, it found that a reasonable reader would understand the defendant to
have implied that the plaintiff was personally corrupt. The defendant himself
ultimately accepted that, in the context he had described, a reader would
understand his messages as at least implying personal corruption.
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[21] The court a quo also rejected the defendant’s contention that he lacked
animus iniuriandi . It considered the tenor of the messages to be intemperate,
baiting and frustrated and found that the defendant intended to discredit and hurt
the plaintiff. The court nevertheless upheld truth and public benefit. It found that
the plaintiff was ‘probably personally corrupt’.
[22] Central to the aforesaid conclusion was the defendant’s evidence
concerning the political -mandate conversation. The court also relied on the
Comperio report and other evidence concerning procurement irregularities.
Significantly, Wilson J recognised that the Comperio report’s identification of the
plaintiff as responsible for irregular expenditure was not the same as saying that
he was personally corrupt and that the report principally criticised the plaintiff for
deficiencies such as poor record -keeping. In relation to ‘renowned bully ’ and
‘looter’, the court characterised the aforesaid expressions as evaluative opinions
and upheld fair comment.
Issues on Appeal
[23] The principal issues are: (a) whether the defendant established the
substantial truth and public benefit of the allegation that the plaintiff had
normalised corruption and was personally corrupt; (b) whether the court a quo
was entitled to uphold fair comment in relation to the remaining defamatory
imputations; and (c) if liability is established, what relief and quantum of damages
are appropriate.
Applicable Legal Principles
[24] The elements of defamation are the wrongful and intentional publication of
a defamatory statement concerning the plaintiff. Once publication of defamatory
material concerning the plaintiff has been established, wrongfulness and animus
iniuriandi are presumed. The defendant bears the onus of establishing a
recognised justification or otherwise rebutting the presumptions.
9
[25] Where truth and public benefit is relied upon, literal truth in every detail is
not necessary. What must be established is the substantial truth of the material
defamatory sting. The distinction is important in this case. The issue is not
whether there were irregularities at the Municipality, but whether the evidence
established the substantial truth of the personal allegation conveyed by the
publication.
[26] Fair or protected comment is conceptually different. It requires an
expression of opinion based upon facts which are true and which are either
stated, sufficiently indicated or, in an appropriate case, sufficiently notorious to
the audience.
[27] In The Citizen 1978 (Pty) Ltd v McBride 1, the Constitutional Court
recognised that the factual basis need not invariably be recited in the publication
where those facts are sufficiently notorious to those addressed.
Pleadings and the Disputes defined by the Parties
[28] Pleadings perform an important function. They define the issues which the
parties have chosen to place before the court and inform how evidence is
prepared, led and tested.
[29] In Fischer and Another v Ramahlele and Others 2, the Supreme Court of
Appeal emphasised that courts ordinarily adjudicate the dispute defined by the
parties rather than formulate a different dispute for them. The aforesaid principle
is not absolute. An unpleaded issue may in appropriate circumstances be
adjudicated where it has been fully canvassed and where no prejudice results.
The enquiry is one of substance rather than form. (Middleton v Carr3 and Minister
of Safety and Security v Slabbert 4). The important question is whether the
1 The Citizen 1978 (Pty) Ltd v McBride 2011 (4) SA 191 (CC).
2 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA).
3 Middleton v Carr 1949 (2) SA 374 (A).
4 Minister of Safety and Security v Slabbert [2009] ZASCA 163.
10
opposing party knew the case it was required to meet and enjoyed a proper
opportunity to lead evidence and cross-examine on that case.
Appellate approach to Factual Findings
[30] Before considering the political -mandate evidence, it is necessary to
recognise the proper limits of appellate interference with factual and credibility
findings. In that regard, the locus classicus remains R v Dhlumayo and Another5.
A trial court enjoys advantages which a court of appeal does not. It sees and
hears witnesses and is immersed in the atmosphere of the trial. Findings
substantially dependent upon credibility are accordingly not lightly disturbed.
[31] The principle is one of appellate restraint, not an inflexible rule. In Bernert
v Absa Bank Ltd6, the Constitutional Court explained that the reluctance to
interfere reflects the advantage enjoyed by the trial court in seeing and hearing
witnesses. It does not preclude appellate interference where the conclusion
cannot be sustained on the record. There is also an important distinction between
a trial court’s assessment of the credibility of a witness and the further inference
to be drawn from facts which it accepts. The former ordinarily attracts particular
deference. The latter must nevertheless b e justified by the proved facts and
probabilities viewed as a whole.
[32] It is therefore unnecessary and indeed undesirable for purposes of this
appeal to hold that Wilson J was not entitled to accept the defendant’s evidence
that a conversation concerning a political ‘mandate’ occurred. Even accepting
that evidence, however, the further conclusion that the plaintiff was ‘probably
personally corrupt’, and that the defamatory sting was consequently substantially
true, remained a conclusion which had to be justified by the evidence as a whole.
[33] It is at that stage of the reasoning that the difficulty arises. Evidence that
the plaintiff sought to advance political preferences in municipal procurement, if
the plaintiff sought to advance political preferences in municipal procurement, if
5 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705–706.
6 Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) para 106.
11
accepted, would unquestionably be serious and improper. But the question
remains whether it established the substantially broader defamatory allegation of
personal corruption.
The Allegation that the Plaintiff Normalised Corruption
[34] There can be no doubt that the Municipality experienced serious
procurement and financial deficiencies. Institutional dysfunction, however, was
not the defamatory sting which the defendant was required to justify. The sting
found by the court a quo was personal: that the plaintiff had knowingly normalised
corruption and was himself corrupt.
[35] The distinction between irregular expenditure and corruption is important.
Irregular expenditure demonstrates non-compliance with applicable procurement
or financial requirements. It does not without more establish dishonesty, bribery
or corrupt intent.
[36] Wilson J himself acknowledged that the Comperio report’s criticism of the
plaintiff was not equivalent to a finding that he was personally corrupt. The
documentary evidence therefore did not by itself prove the defamatory sting. The
trial court’s finding of personal corruption depended principally upon the political-
mandate evidence.
The Political Mandate Evidence
[37] If the plaintiff told the CFO that municipal tenders were to be directed to
businesses favoured by a political party, that would plainly constitute improper
conduct and warrant serious criticism. The critical question is whether that
evidence, together with the objective material, established the substantial truth of
the accusation that the plaintiff was himself corrupt and had normalised
corruption. Several considerations militate against the aforesaid conclusion.
[38] First, the alleged political mandate conversation was not identified in the
defendant’s detailed amended plea as part of the factual basis for the allegation
12
that the plaintiff had normalised corruption. The omission does not render the
evidence inadmissible or require its rejection. It is nevertheless significant when
one considers the weight the conversation ultimately assumed in the court a quo’s
reasoning. A direct statement that political interests were to dictate municipal
procurement would have been amongst the most serious facts available to the
defendant.
[39] Second, the contemporaneous documentary material did not establish that
the plaintiff participated in any identified corrupt tender or transaction.
[40] Third, the material relied upon concerning irregular expenditure did not
itself establish personal corruption.
[41] Fourth, the evidence concerning the political mandate remained general.
No particular service provider was identified as having received a municipal
tender through the plaintiff’s intervention pursuant to the alleged mandate.
[42] Fifth, the defendant’s own explanation of what he meant by ‘normalising
corruption’ involved a broader institutional complaint: that maladministration,
irregularities and corruption had become a tolerated status quo and that the
plaintiff, as the head of SCM, had failed to correct it.
[43] That explanation illustrates the difficulty. A failure adequately to correct
procurement irregularities may amount to poor administration, dereliction of duty
or even serious misconduct. It does not necessarily establish that the official
concerned is pers onally corrupt. The court a quo ultimately found the plaintiff
‘probably personally corrupt ’ despite recognising the absence of proof of an
identified corrupt transaction.
[44] In our view, that reasoning crossed the evidential gap between evidence
capable of supporting serious criticism of the plaintiff’s administration of SCM and
proof of the more serious imputation of personal corruption.
13
[45] The defendant bore the onus. The enquiry was not whether there were
legitimate grounds for criticism of the plaintiff, nor whether the Municipality was
beset by irregular expenditure. It was whether the substantial defamatory sting –
that the plaintiff had normalised corruption and was himself corrupt – had been
established on a balance of probabilities.
[46] Even accepting the political mandate evidence, the evidence as a whole
did not establish the aforesaid broader defamatory sting. The court a quo
therefore erred in holding that substantial truth had been established.
Public Benefit
[47] There can be no doubt that the exposure of genuine corruption within a
municipality is a matter of considerable public importance. A CFO may not only
be entitled but may in appropriate circumstances be obliged to expose suspected
corruption and maladministration.
[48] The aforesaid proposition does however not resolve the matter. Where
truth and public benefit is the justification invoked, public benefit does not
dispense with the requirement that the defamatory sting be substantially true.
Once substantial truth was not proved, the defence could not succeed merely
because municipal corruption is a matter of public concern.
The ‘Renowned Bully’ Statement
[49] The defendant pleaded that it was true that the plaintiff was a renowned
bully and identified conduct said to substantiate the allegation. The court a quo
did not, however, determine the allegation simply as a question of truth. It
described the statement as opinion and upheld fair comment. Fair comment had
not been pleaded.
[50] The fact that an unpleaded issue may sometimes be determined does not
mean that the introduction of a distinct defence after the close of evidence is
necessarily without prejudice.
14
[51] Fair comment raises questions different from a plea of truth: whether the
impugned expression is comment rather than fact; what factual substratum
supports it; whether those facts are true; whether they were stated or sufficiently
known to the audience; and whether the opinion was honestly held. The aforesaid
issues are capable of affecting the manner in which evidence is led and cross -
examination conducted.
[52] The record moreover demonstrates that the plaintiff expressly complained
during closing argument that fair comment had not been pleaded or canvassed
at trial and that he would be prejudiced by its introduction. That complaint was
repeated in the application for leave to appeal.
[53] The present case accordingly involved more than a mere change in legal
nomenclature. In any event, the evidence did not adequately establish the factual
foundation for describing the plaintiff as a ‘renowned bully ’. The defendant
referred to complaints allegedly made by other employees. The aforesaid
persons did not themselves give evidence establishing the conduct attributed to
the plaintiff. The fact that complaints were conveyed to the defendant might
explain why he formed a particular view. It did, however, not establish the truth of
the underlying allegations.
[54] The adjective ‘renowned’ also added a particular sting. It suggested that
bullying was an established or generally recognised characteristic of the plaintiff
rather than merely the defendant’s personal assessment of him. The aforesaid
proposition was not established.
The ‘Looter’ Imputation
[55] The statement that the plaintiff’s attorney had ‘looted R52 million ’ was
literally directed at the attorney, who is not a party to this litigation. Its significance
lies in its context. Wilson J accepted that the statement was made to associate
the plaintiff with ‘looting’ and imply that he was a ‘looter’.
15
[56] To the extent that ‘looter’ constituted evaluative comment concerning the
plaintiff, the same difficulty arises. The factual basis necessary to sustain the
implication that the plaintiff himself looted, facilitated looting, or was properly to
be characterised as a looter was not established.
Notorious Facts and Fair Comment
[57] The court a quo relied upon McBride7 for the proposition that the factual
substratum of comment need not always expressly be stated where the relevant
facts are notorious to the audience. The aforesaid proposition is correct but
requires careful application. Members of the SCM WhatsApp group may have
known that the Municipality was under financial pressure, that procurement
irregularities existed, that the plaintiff had previously been suspended and that
there was significant conflict between the plaintiff and defendant. It does not
follow that they knew as notorious facts that the plaintiff had directed politically
motivated tenders, bullied colleagues or participated in looting.
[58] General knowledge of institutional dysfunction cannot substitute for proof
of the particular defamatory facts attributed to an individual. The reliance upon
notorious facts therefore did not cure the deficiency in the factual foundation for
the defence.
Animus Iniuriandi
[59] The court a quo rejected the defendant’s attempt to rebut the presumption
of animus iniuriandi. There is no basis to interfere with that finding. The messages
were not neutral reports of suspected misconduct. They were personal,
confrontational and accusatory. The court a quo found that the defendant
intended to discredit and hurt the plaintiff and was at least reckless as to the injury
to his dignity. That finding is supported by the record.
7 The Citizen 1978 (Pty) Ltd v McBride 2011 (4) SA 191 (CC) supra.
16
[60] It is unnecessary to characterise the defendant’s conduct as ‘malice in the
technical sense applicable to fair comment. Anger, hostility, animus iniuriandi and
malice for purposes of defeating a defence of protected comment should not be
conflated.
Conclusion On Liability
[61] The plaintiff established publication of defamatory statements concerning
him. The defendant did not establish the substantial truth of the allegation that
the plaintiff had normalised corruption or was personally corrupt.
[62] Fair comment had not been pleaded. Its introduction after the evidence
had closed, raised legitimate procedural concerns and, in any event, the factual
substratum necessary to sustain the defence in relation to the bullying and looting
imputations was not sufficiently established.
[63] The defendant did not rebut the presumption of animus iniuriandi . The
appeal must therefore succeed.
The Quantum of Damages
[64] The court a quo, having dismissed the action, did not determine quantum.
This Court must accordingly do so on the evidence on the record.
[65] The assessment of general damages for defamation does not admit of
precise calculation. In Tsedu and Others v Lekota and Another 8, the Supreme
Court of Appeal held that monetary compensation for defamation is not
empirically measurable and that previous awards provide no more than general
guidance. The same caution applies when comparable awards are considered.
Each defamation occurs within its own factual and social setting.
8 Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) at para 25.
17
[66] The purpose of damages must also remain clear. They are not imposed to
punish a defendant. They serve principally to compensate for impairment of
dignity and reputation and to provide appropriate vindication.
[67] Relevant considerations include the seriousness of the defamatory
allegation, the nature and extent of publication, the plaintiff’s standing, the
positions of the parties, the conduct and motives of the defendant, the impact of
the publication and the pres ence or absence of an apology or retraction. The
constitutional setting must also be recognised. Reputation and dignity are
constitutionally protected, but so too is freedom of expression. A damages award
must therefore vindicate the injured party without becoming punitive or
disproportionate.
[68] Restorative relief may play an important role. In Le Roux and Others v
Dey9, the Constitutional Court recognised the value of apology in restoring dignity
and reputation.
[69] In Economic Freedom Fighters and Others v Manuel10, the Supreme Court
of Appeal similarly recognised the relationship between retraction, apology and
the appropriate assessment of damages.
[70] The accusation made in this case was exceptionally serious. Corruption is
an accusation of dishonesty. When directed at a municipal official responsible for
supply chain management, it strikes at the integrity central to the proper
performance of the aforesaid office. The plaintiff’s responsibilities concerned
public procurement and expenditure of public money. The suggestion that he had
‘normalised corruption ’ was therefore directly capable of undermining
professional trust in him.
9 Le Roux and Others v Dey 2011 (3) SA 274 (CC).
10 Economic Freedom Fighters and Others v Manuel 2021 (3) SA 425 (SCA), [2020] ZASCA 172.
18
[71] The identity of the publisher aggravated the sting. The defendant was not
an outsider or ordinary colleague. He was the Municipality’s CFO and the
plaintiff’s line manager. An accusation by a CFO that the Manager: SCM was
corrupt or had normalised corruption would naturally carry considerable weight
amongst officials working within the Municipality’s procurement and financial
structures.
[72] The identity of the recipients was equally important. The proven
publication was not widespread. The SCM WhatsApp group consisted of
approximately ten members. This was not publication to a national newspaper
readership, public social -media platform or the public generally. The limited
numerical reach must be reflected in the award. However, the significance of
publication cannot be assessed only by counting recipients. The recipients
comprised the plaintiff’s professional colleagues, managers and subordinates –
the very persons before whom his reputation for integrity was particularly
important. The publication was consequently limited in numerical extent but
significant in its professional context.
[73] The plaintiff gave evidence concerning its personal and professional
effect. He described living under a ‘dark cloud’ and wanting his name cleared of
the allegations of corruption. Vindication of his professional reputation was a
central purpose of the litigation. He also testified about the impact upon his family.
His sister heard allegations about him on local radio an d contacted him in
distress.
[74] The evidence concerning radio and other subsequent dissemination must,
however, be approached cautiously. The record does not establish on a balance
of probabilities that the defendant caused or authorised the local radio broadcasts
or every subsequent rep ublication. Damages should therefore not be assessed
as if the defendant himself published the defamatory allegations to a mass
audience.
19
[75] The plaintiff’s political profile is also relevant. He accepted that political life
requires resilience and referred to having developed a ‘thick skin’. That does not
deprive him of protection of his reputation. More particularly, the defamatory
allegation concerned corruption in his professional role in public procurement, not
merely robust political criticism. No specific patrimonial loss was established. The
plaintiff did not prove loss of employment, salary or a particular professional
opportunity as a result of the WhatsApp publication. That factor moderates the
amount of damages. On the other hand, the defen dant did not publish a timely
and unequivocal apology or retraction which might have assisted in restoring the
plaintiff’s standing.
[76] The plaintiff sought an apology and retraction. Their absence is relevant
both to vindication and to the appropriate monetary award.
[77] Comparable cases offer broad guidance only. The gravity of the present
allegation, the professional positions of the parties and the identity of the
recipients distinguish this matter from an ordinary interpersonal insult. At the
same time, the Court must avoid converting damages into punishment. The
proven audience was limited, no patrimonial loss was shown, and mass
republication cannot fairly be attributed to the defendant.
[78] Having regard to all these considerations, and to the complementary
vindicatory effect of the retraction and apology ordered below, an award of
R100 000, assessed as at the date of this judgment, is fair and reasonable. This
award, in our view, appropriately recognises the seriousness of an allegation of
professional corruption made by a CFO against his SCM Manager before the
latter’s colleagues and subordinates, while remaining proportionate to the limited
proven reach of the publication.
Interest Payable on the Damages Awarded
[79] The plaintiff claimed interest at 9.75% per annum from the date of issue of
[79] The plaintiff claimed interest at 9.75% per annum from the date of issue of
summons until final payment. The damages awarded are, however, unliquidated
general damages assessed as at the date of judgment.
20
[80] In Minister of Police v Khedama11, the Constitutional Court confirmed that
an award of interest on general damages requires consideration of the discretion
conferred by section 2A(5) of the Prescribed Rate of Interest Act 55 of 1975. The
issue is therefore not resolved merely by the date upon which summons was
issued or served. Where general damages are assessed in current monetary
terms at the date of judgment, retrospective interest may result in
overcompensation unless the circumstances justify it.
[81] A sufficient separate basis has not been established in this matter for
awarding interest on the R 100 000 from the institution of the action. It is
accordingly just that interest run at the prescribed rate from the date of the
judgment in the court a quo to date of final payment.
Retraction and Apology
[82] Monetary damages are not the only means by which the plaintiff’s dignity
and professional reputation may be vindicated. The present case is particularly
suited to restorative relief because the defamatory publication took place within
an identifiable workplace group. A retraction and apology addressed to the same
group is capable of restoring the plaintiff’s standing before substantially the same
persons before whom it was impaired.
[83] The plaintiff expressly sought a written apology and retraction in his
amended particulars of claim. An unconditional retraction and apology should
accordingly accompany the damages award.
Costs
[84] The plaintiff has achieved substantial success in the appeal and in the
action. There is no reason to depart from the ordinary principle that costs follow
the result.
11 Minister of Police v Khedama 2026 JDR 3209 (CC), [2026] ZACC 27.
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[85] Rule 67A requires the court, when making an order for party -and-party
costs, to indicate the applicable scale in relation to Counsel’s charges as
contemplated in Rule 69. In determining the appropriate scale, regard is
appropriately had to the complexity of the proceedings, the value and importance
of the litigation and the nature of the issues requiring determination.
[86] The matter was of considerable importance to both parties. It involved a
substantial record, competing factual versions, the proper limits of appellate
interference with factual findings, the pleading and proof of recognised
defamation defences, constituti onal interests in reputation and expression, and
the assessment of general damages.
[87] Those considerations justify costs above Scale A. They do not, however,
warrant Scale C. The matter, while important and reasonably complex, was not
of such exceptional legal or factual complexity as to justify the highest ordinary
party-and-party scale. T he scale of costs should also not be employed as an
indirect punitive measure. Scale B is therefore appropriate in both the action and
the appeal.
Order
[88] In the result, the following order is made: -
(1) The appellant’s appeal against the order of the court a quo dated 15 July
2024 is upheld, with costs.
(2) The order of the court a quo dated 15 July 2024 is set aside and substituted
with the following:
‘(1) It is declared that the statements published by the defendant concerning the
plaintiff on the SCM Management WhatsApp group were defamatory and
unlawful.
(2) The defendant shall pay the plaintiff the amount of R 100 000 as general
damages for defamation.
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HEARD ON: 29 April 2026
JUDGMENT DATE: 17 September 2026 – judgment
handed down electronically
FOR THE APPELLANT: T Ramogale
INSTRUCTED BY: TTS Attorneys Incorporated,
Melrose, Johannesburg
FOR RESPONDENT: No appearance
INSTRUCTED BY: Ntsoane Attorneys, Hatfield, Pretoria