Clover SA (Pty) Ltd v Sintwa (CA2011/2015) [2016] ZAECGHC 77 ; [2016] 12 BLLR 1265 ; (2017) ILJ 350 (13 September 2016) per SM Mbenenge J ( R Griffiths J concurring)

Legally senior management is only required to afford employees the right to respond to factual allegations and possibly averments drawing some conclusions from the facts.  So there is no need to defame or insult or impugn the dignity of employees during any disciplinary investigation.  If the dispute is referred to arbitration there is likewise no legal need to prove anything other than a valid and fair reason to dismiss.  The high court held that the employer was protected by a qualified privilege in respect of defamatory statements made during the CCMA arbitration.

Comment:

But if there was no legal need to make those criminal allegations how could the employer escape liability for making them?  It is up to the police to investigation alleged crimes and to hand them over for prosecution if there is a real chance of proving guilt beyond a reasonable doubt.

Excerpts without footnotes

[9]       In pursuit of their defence to the claim, whilst admitting that during the arbitration proceedings the second appellant had “placed evidence before the Arbitrator to support an allegation that [the second appellant] committed fraud,” the appellant denied that the allegations were wrongful and unlawful.  The appellants further contended, in amplification, that the allegations complained of were made in quasi-judicial proceedings and therefore enjoyed qualified privilege.

[10]     The court a quo held the appellants liable to the respondent in damages in the amount claimed,[1]  and was of the view that the statement implicating the respondent as having committed fraud had been irrelevant and unconnected to the arbitration proceedings in circumstances where the second appellant could easily be referred to as having been negligent.  Hence the appellants were found to have exceeded the bounds of qualified privilege.

. . . . .

[13]       It is trite law that publication of defamatory material in privileged circumstances is justified and therefore lawful.[1]

[14]     As this case concerns qualified (as against absolute[2]) privilege, it becomes necessary to draw a distinction between “discharge of a duty or furtherance of an interest” and “judicial and quasi-judicial proceedings” as part of the few categories of qualified privilege[3] that have developed in our law.[4]  For reasons that will become clearer shortly, the distinction is not without significance.

[15]     “Discharge of a duty or furtherance of an interest” is present where a person has a legal,[5] moral or social[6]duty or a legitimate interest in making defamatory assertions to another person who has a corresponding duty or interest to learn of the assertions.[7]   Consequently, the key question is whether such a duty or interest is present in the case of both the defamer and the bystander.[8]   In the event of it being proved (by means of the reasonable man test) that both parties had a corresponding duty or interest, the defendant must prove that he acted within the scope or limits of the privilege.   This is done by proving that the defamatory assertions were relevant to, or reasonably connected with, the discharge of the duty or furtherance of the interest.[9]

[16]     In an instance of defamatory statements made during the course of judicial or quasi-judicial proceedings, however, the position is slightly (but significantly) different.   To enjoy provisional protection, the defendant need only prove that the statements were relevant to the matter at issue.[10]   Once that is achieved a duty is cast on the plaintiff to prove that, notwithstanding the statements’ relevance, the statements were not supported by reasonable grounds.[11]  The onus resting on the defendant to establish that the statements were relevant has been held to be a full onus, as opposed to an evidentiary burden, and the required quantum of satisfaction is therefore on a balance of probabilities.[12]

[17]     In both categories of qualified privilege dealt with above, the plaintiff may, even if the defendant establishes provisional protection, show that the defendant exceeded the limits of the privilege because he acted with an improper motive (malice).[13]

[18]     Because the line of distinction between these categories of privilege subject to discussion may sometimes be blurred or hard to draw, the risk of conflating the applicable principles is always high.

[19]  In sum, therefore, a litigant relying on qualified privilege, which is what the instant case is about, must establish the following requisites:

(a)       that the occasion is privileged;[14] and

(b)       that the defamatory statements complained of  were relevant to the purpose of the occasion.  [15]

Once it is accepted that the statement fell within the bounds of a qualified privilege the onus shifts to the plaintiff to prove that the defendant was malicious.[16]

[20]    In Zwiegelaar v Botha[17] the plaintiff sued the defendant for defamation arising out of a statement made by the defendant while testifying under oath at a meeting of creditors of a close corporation which was in the process of being wound up.   In upholding the defence of qualified privilege the court held:

“Generally, a witness enjoys a qualified immunity or privilege in respect of defamatory statements made during the course of legal proceedings.   This qualified immunity applies not only to proceedings in a court of law but also to proceedings before certain quasi-judicial bodies, including, for instance, a judicial commission of enquiry (Basner v Trigger 1946 AD 83, and apparently any tribunal recognised by law (see Burchell The law of Defamation in South Africa at 254).   It was not disputed that this qualified immunity will generally extend to inquiries of the kind at which the defendant testified and made the statement forming the subject-matter of the present proceedings (cf Allardice v Dowdle 1965 (1) SA 433 (D) at 436 C).   The qualified nature of the immunity is such, however, that once the circumstances giving rise to the immunity are established, the plaintiff is entitled to ‘destroy’ or ‘defeat’ the immunity or privilege by showing, inter alia that the defendant, in making the defamatory statement, was actuated by malice in the sense of an improper or indirect motive, as explained in Basner v Trigger (supra at 94-5) (see Joubert and Others v Venter (supra at 699))” [18]

[21]     Even though the CCMA is not part of the judiciary and thus an administrative tribunal, its proceedings are quasi-judicial in nature.  [19]  The functions performed by the CCMA have been held to be “substantially similar in form and substance to those performed by a court of law,” even though the CCMA is not a court of law.[20]

. . . . .

[23]  The next question to pose and answer is whether the statement made by the second appellant during the relevant arbitration proceedings was relevant to those proceedings.

. . . . .

[27]   In my view, therefore, the appellants did establish with the requisite degree of proof that the otherwise defamatory allegation made by the second appellant during the relevant arbitration proceedings that the respondent had been dismissed for having committed fraud was relevant to the issue that fell to be determined by the Arbitrator and thus covered by qualified privilege.  The court a quo ought to have found as much.  The court a quo’s finding that “the statement of fraud made was irrelevant, unconnected to the matter and it was unnecessarily dragged into the matter that could easily be referred to negligence” was accordingly incorrect.

[28]     I now cross to deal with the question whether the respondent proved that, notwithstanding its relevance, the impugned statement was not supported by reasonable grounds.

In Joubert & Others v Venter [1] it was held that “[o]ne of the ways in which the plaintiff can do this is by proving that the defendant did not have ‘some foundation’ in the evidence or the surrounding circumstances for making the statement in issue.”[2]  The plaintiff could also prove that the defendant knew that his statement was false or that there was no evidence to substantiate it[3] or that the defendant’s real motive was personal spite or ill-will[4].

[29]     Quite apart from the fact that the respondent had not delivered a replication in which it was alleged that in the event of the defence of privilege being established it could not prevail as the statement in question had not been supported by reasonable grounds,[5] no basis for such a conclusion was laid when the respondent gave his testimony.[6]  Even though the respondent depicted a picture of a strained relationship between the second appellant and himself, no suggestion was made that the laying of misconduct charges and the allegation of fraud made during the ensuing arbitration proceedings were, for example, motivated by spite or ill-will.

[30]     In my view, therefore, the respondent did not prove that the impugned statement was not supported by reasonable grounds.   On this ground, as well, the appeal must succeed.

[31]  There remains the final question to answer namely, whether the respondent had shown that the appellants exceeded the limits because they acted with malice.   Here, too, neither by way of a replication to the appellants’ defence of qualified privilege nor by way of viva voce evidence was a suggestion made that the second appellant exceeded the limits of qualified privilege because he acted with an improper motive (malice).   It is quite clear from the answers given by the respondent whilst being cross-examined that the second appellant acted out of a sense of duty or was bent on protecting an interest.[7]  In so pronouncing, I am not unmindful of the fact that owing to its subjective nature the plaintiff will usually find it most difficult to furnish direct evidence of malice.[8]

[32]  The court a quo assumed the existence of malice by inference; the fact that the operator who had also signed the relevant form had not been charged was, according to the court a quo, a basis for inferring malice.   The conclusion is illogical.   A proper cause of action in such an instance would have been for the respondent to complain of unequal treatment or discrimination.   There are no other intrinsic or extrinsic facts from which an inference of malice could properly have been made.