Employment law update – Defamation in the context of quasi-judicial proceedings

February 1st, 2017
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Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in
Johannesburg.

In Clover SA (Pty) Limited and Another v Sintwa (ECG) (unreported case no CA2011/2015, 13-9-2016) (Mbenenge J), the Eastern Cape Division of the High Court was required to consider qualified privilege in the context of defamatory statements made during quasi-judicial proceedings.

In this case, the respondent, Mr Sintwa, was dismissed following a disciplinary inquiry into a charge of fraudulent conduct. He challenged his dismissal in the Commission for Conciliation, Mediation and Arbitration (CCMA). Mr Bopp was one of the witnesses called by Clover during the arbitration proceedings to give evidence that Mr Sintwa committed fraud by gross negligence. The arbitrator found that Mr Sintwa was not guilty of fraud but rather was guilty of negligence. The dismissal was found to be substantively unfair and the arbitrator ordered compensation equal to four months’ remuneration.

Mr Sintwa then instituted proceedings seeking damages equal to R 100 000 on the basis that during the arbitration proceedings Mr Bopp had wrongfully and unlawfully alleged that he had committed fraud. The appellants argued that the statements made by Mr Bopp were not wrongful and unlawful and in any event enjoyed qualified privilege as the statements were made in quasi-judicial proceedings.

The court a quo found that the statement made by Mr Bopp was irrelevant and unconnected to the arbitration proceedings. It was accordingly found that the defamatory statement made by Mr Bopp exceeded the bounds of qualified privilege and the appellants were liable to pay damages to Mr Sintwa. Furthermore, the court a quo found that malice could be inferred from the facts.

On appeal, the court, per Mbenenge J and Griffiths J, was required to consider whether the statements by Mr Bopp were covered by qualified privilege. A distinction was drawn between two categories of qualified privilege –

  • discharge of a duty or furtherance of an interest; and
  • judicial and quasi-judicial proceedings.

In the first category, it must be shown that a person had a legal, moral or social duty or a legitimate interest in making a defamatory statement to another person who had a corresponding duty or interest to learn of the statement. In order for the statement to be within the bounds of privilege, it must be shown that the statements were relevant to or reasonably connected with the discharge of the duty or furtherance of the interest.

As regards defamatory statements during the course of judicial or quasi-judicial proceedings, the defendant only needs to prove that the statements were relevant to the matter. In order to succeed in a claim for damages, the applicant must then prove that the statements were not supported by reasonable grounds or were made in malice. In this case, it was found that the CCMA is quasi-judicial in nature and that Mr Bopp’s statements were on a balance of probabilities relevant as Mr Sintwa had been charged with and dismissed for fraudulent conduct.

It was held that although there appeared to be a strained relationship between Mr Bopp and Mr Sintwa, there was no evidence that the allegation of fraud was made in spite. It was also found that there was no evidence of malice as it appeared that Mr Bopp had been acting out of a sense of duty and in order to protect an interest. It was further found that the court a quo was illogical in concluding that there was malice because another individual had not been charged for committing similar misconduct. It was noted that if this was in fact the case then Mr Sintwa should have sought relief based on another cause of action for this unequal treatment. The appeal was accordingly upheld.

Breach of employment contract

In Kwazulu-Natal Tourism Authority and Others v Wasa [2016] 11 BLLR 1135 (LAC), the employer appealed the decision of the Labour Court (LC) in which the employer was ordered to pay damages arising out of its breach of the employee’s fixed term employment contract.

In this case, the employee was engaged in terms of a fixed term contract of employment for a period of five years. One of the duties of the employee was to provide strategic leadership on marketing and tourism development functions of the employer. The employee requested permission to attend the Two Oceans Marathon in Cape Town in order to do research and promote the Comrades Marathon, which is a major event that takes place under the auspices of the employer. This trip cost the employer approximately R 21 049,31. When the employee returned from The Two Oceans Marathon, the employer conducted an investigation into the work that she had done while on the trip and found that she had participated as an athlete in the marathon and there was no evidence that she had done any research or marketing. The employee was charged with dishonesty and was dismissed. The costs of the Cape Town trip were also deducted from the employee’s final salary.

The employee then launched an application for damages in terms of the Basic Conditions of Employment Act 75 of 1997 (the BCEA) on the basis that her dismissal was an unlawful breach of her employment contract. She sought damages equal to the amount that she would have earned had she worked for the balance of the contract term.

The employer argued that the application should be dismissed as it was not appropriate for the matter to be decided by application as there were disputes of fact that needed to be determined by leading oral evidence. Furthermore, the employer alleged that the employee had not proven that she had suffered any loss as a result of the alleged breach by the employer.

The LC was of the view that there were no factual disputes on the papers. It held that the employer had not followed the applicable disciplinary procedures and thus the contract had been unlawfully breached. The employer was ordered to pay the employee the amount that she would have earned had she continued working for the balance of the contract term. Furthermore, the employer was ordered to pay the costs of the Cape Town trip that had been deducted from the employee’s salary.

On appeal, the Labour Appeal Court (LAC) held that the employee should have anticipated that the employer would dispute her claim. It was noted that the LC had to accept the averments made by the employer on all the issues relating to the breach as these facts could not be tested by the leading of oral evidence. The LAC held that the LC was wrong in finding that there was no dispute of facts. Thus, the application should have been dismissed on this basis.

It was not necessary for the LAC to make a decision on the damages sought. However, it did go on to deal with the issue of damages as it was of the view that this was a pertinent issue. In this regard, it was held that it was erroneous for the LC to find that the employee did not need to prove her damages. This was not a case of the employee seeking compensation for an unfair dismissal. In this regard, there is a distinction between a civil claim for damages under the BCEA and an unfair dismissal claim in terms of the Labour Relations Act 66 of 1995. In this case, the employee had brought a civil claim for damages and was accordingly required to prove –

  • that she had suffered damages;
  • the quantum of the damages suffered; and
  • that the damages were linked to the breach of the employment contract by the employer.

In this case, the employee did not show any evidence of her loss and thus she was not entitled to damages. The appeal was upheld with costs.

This article was first published in De Rebus in 2017 (Jan/Feb) DR 51.