Bargaining council chairperson: No defence to defamation

Note: Footnotes omitted and emphasis added

[1] The plaintiff instituted action against the defendant, claiming payment of the sum of R750 000 (Seven Hundred and Fifty Thousand Rand) based on the fact that the defendant had defamed him in two publications, which were electronically distributed to

• the Chief Director of the Department of Labour;
• the Director of the Commission for Conciliation, Mediation and Arbitration (CCMA);
• the Executive Committee of the Bargaining Council for the Contract Cleaning Industry (BCCCI);
• the Secretary of the BCCCI;
• the Provincial Secretary of the South African Transport and Allied Workers Union (SATAWU), and
• the Chairperson of the National Contract Cleaners Association (NCCA).

The second publication was published on 7 December 2015 and sent to the recipients listed in annexure B, attached to the particulars of claim.

[2] Copies of the published statements were attached to the particulars of claim. The relevant parts of ‘A’ read as follows:

. . . . .

Legal position

[4] In Lawsa, the delict of defamation is defined as the ‘unlawful publication, animo iniuriandi, of a defamatory statement concerning the plaintiff’. It is trite that once a plaintiff establishes that a defendant has published a defamatory statement concerning him, that it is presumed that the publication was both unlawful and intentional.

[5] Further, at para 114 of Lawsa supra, the author FDJ Brand states that

‘[d]efamatory statements include statements which injure the reputation of the person concerned in his or her character, trade, business profession or office or which expose the person to enmity, ridicule or contempt’.

[6] In Tsedu & others v Lekota & another, Nugent JA found a judgment of an English court helpful in understanding defamatory statements:

‘“The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naïve or unduly suspicious. They should be treated as capable of reading between the lines and engaging in some loose-thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or an accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made upon the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task.”’
(My emphasis.)

[7] In determining whether the statements are defamatory, I am guided by the approach of the Supreme Court of Appeal (SCA) in Smalle v Southern Palace Investments 440 (Pty) Ltd (121/2016) stating:

‘A statement is defamatory if, on an ordinary reading by a reasonable person, it has the effect of injuring a person’s reputation. Statements can have a primary and a secondary meaning. The primary meaning is the ordinary meaning and the test is an objective one, requiring no evidence.

A two stage inquiry is required to establish whether a primary statement is defamatory. The first is whether the words are reasonably capable of referring to the plaintiff and the second is whether the reasonable person would regard the words as referring to the plaintiff.’
(Original footnotes omitted, my emphasis.)

[8] Corbett JA, in Borgin v De Villiers & another, observed:

‘The defence of qualified privilege is, however, not concerned with the truthfulness or otherwise of the publication, though proof that the defendant did not believe that the facts stated by him were true may give rise to the inference that he was actuated by express malice. . . .’

[9] The SCA, in Le Roux & others v Dey, [per Harms DP and see judgment in CC dated 8 March 2011] held that the following approaches be followed in determining wrongfulness:

‘[6] To answer the first question a court has to determine the natural and ordinary meaning of the publication: how would a reasonable person of ordinary intelligence have understood it? The test is objective. In determining its meaning the court must take account not only of what the publication expressly conveys, but also of what it implies, ie what a reasonable person may infer from it. The implied meaning is not the same as innuendo, which relates to a secondary or unusual defamatory meaning that flows from knowledge of special circumstances. Meaning is usually conveyed by words, but a picture may also convey a message, sometimes even stronger than words.
[7] It may be accepted that the reasonable person must be contextualised and that one is not concerned with a purely abstract exercise. One must have regard to the nature of the audience. In this case the main target was the school children at the particular school, but it also included at least teachers.
[8] A publication is defamatory if it has the “tendency” or is calculated to undermine the status, good name or reputation of the plaintiff. It is necessary to emphasise this because it is an aspect that is neglected in textbook definitions of defamation because it is usually said that something can only be defamatory if it causes the plaintiff’s reputation to be impaired. That is not the case, as Neethling explains with reference to authority:

“It is notable that the question of a factual injury to personality, that is, whether the good name of the person concerned was actually injured, is almost completely ignored in the evaluation of wrongfulness of defamation. In fact, generally a witness may not even be asked how he understood the words or behaviour. In addition, it is required only that the words or behaviour was calculated or had the tendency or propensity to defame, and not that the defamation actually occurred. In short, probability of injury rather than actual injury is at issue. It can be concluded, therefore, that the courts are not at all interested in whether others’ esteem for the person concerned was in fact lowered, but only, seen objectively, in whether, in the opinion of the reasonable person, the esteem which the person enjoyed was adversely affected. If so, it is simply accepted that those to whom it is addressed, being persons of ordinary intelligence and experience, will have understood the statement in its proper sense.”’
(Original footnotes omitted, my emphasis.)

Evidence

. . . . .

Evaluation

[19] Based on the evidence in totality, it has been shown on a balance of probabilities that the statements were made by the defendant and distributed to the individuals on the address lists. In a consideration of the content of the statements, it is clear that the words used in the statements are not difficult; they are understandable to the ordinary person and written in plain English.

[20] In my view, to say that the plaintiff is ‘going out of his way to protect the dishonest’ and that he resents those who do their work with honesty and integrity, had to tarnish the plaintiff’s reputation and discredit him in his professional standing.

Given the content of both memorandums, I am of the view that words published are defamatory in nature and most certainly caused the plaintiff to be defamed.

[21] Having so found, it is necessary to consider whether the statements published by the defendant were protected by qualified privilege as pleaded by the defendant.

The SCA, in National Education, Health and Allied Workers Union & another v Tsatsi, recognised that one of the

‘occasions that enjoys the benefit of the defence [qualified privilege] is an occasion where the statements were published in the discharge of a duty or exercise of a right’.

Whether a statement was relevant to the occasion will be determined by reason and common sense.

As was held in Van der Berg v Coopers & Lybrand Trust (Pty) Ltd & others, [per Smalberger JA]

‘[r]elevance in the context of qualified privilege is not to be equated to relevance in the strict evidential sense’.

[22] During the defendant’s testimony, he conceded that he had no factual foundation for a number of the allegations. In fact, the allegations went beyond his duties as compliance officer. He did not simply request an investigation into the affairs and conduct of the BCCCI. He also did not explain in annexure B his position in relation to the unions. In fact, he made bold statements about the conduct of the plaintiff that was not supported by any evidence.

In my view, once it is shown that the allegations made are not relevant to the issues at hand, then the defence of qualified privilege cannot protect the statements. Given the facts of this case, the defendant has failed in his defence that the statements were protected by qualified privileged and hence lawful.

[23] I am satisfied that the plaintiff succeeded on a balance of probabilities in proving his claim.

Award

[24] Having found in favour of the plaintiff, this court still has to determine the quantum of the award. This court’s discretion should be informed by the circumstances of the case, and the prevailing attitudes of the community.

[25] This court has a wide discretion in determining the award of general damages. I have already found that the plaintiff in his position at the BCCCI was defamed as being corrupt and not honest. The conduct of the defendant to make public allegations that could not be supported by any factual foundation was wrong.

I will however take into account that the statements were not widely circulated. There was no evidence that members other than those recipients on the lists had received the defamatory statements. The plaintiff also testified that he still works at the BCCCI and in my view; the impact of the statements had a temporary effect on his professional standing at the council.

[26] Having considered all of the above factors, in my view, a fair and reasonable award in the circumstances of this matter would be R100 000 (One Hundred Thousand Rand).

Costs

[27] The plaintiff as the successful party is entitled to costs. In argument, Mr Chetty, for the defendant, argued that costs, if awarded should be on the magistrates’ courts scale, as the matter should not have been pursued in the high court. In my view, if the defendant felt so strongly about the issue that this matter should have been heard in the lower court, he should have applied for a transfer to another forum at the pre-trial stage. I am satisfied that the issues raised, sufficiently warranted a hearing at this forum.

Order

[28] In the result, the following order shall issue:

1. The plaintiff’s claim succeeds with costs.
2. The defendant is ordered to pay the plaintiff an amount of R100 000 (One Hundred Thousand Rand).