When are defamatory statements protected by qualified privilege?

October 1st, 2022

Picture source: Gallo Images/Getty

By Tshepo Mashile

In the case of Rapp van Zyl Incorporated and Others v FirstRand Bank and Others [2022] 3 All SA 437 (WCC), Sher J had the occasion to consider the question whether defamatory statements (the court having found that such statements constituted defamation) made against attorneys in a founding affidavit filed in an application for an interdict (such application having been subsequently withdrawn against the attorneys) were protected by the defence of qualified privilege in a defamation suit brought by the attorneys against the applicant for the interdict (FirstRand Bank (the Bank)), its employee who had deposed to the founding affidavit, the firm of attorneys that represented the bank in the interdict application and the attorney who was responsible for the matter at the firm at that time.


In the founding affidavit the plaintiff attorneys were accused of fraud and of abusing court proceedings. The attorneys, acting for judgment debtors, had addressed letters to several of the bank’s foreclosure attorneys who were dealing with scheduled sales in execution. The letters ‘sought to inform the bank, on behalf of the debtors concerned, that a surrender notice in terms of s 4(1) of the Insolvency Act [24 of 1936 (the Act)] had been published in the Gazette on a certain date and drew its attention to s 5(1) of the Act, … and the bank was requested in view thereof to confirm that the sales in execution which had been scheduled in respect of the debtors’ immovable properties would be cancelled’ (para 12). Some letters were sent a few days before the auctions were to be held, but in certain instances they were sent on the day of the auction itself. The attorneys were accused of ‘utilising the machinery of the Insolvency Act for purposes for which it was never intended, by causing surrender notices to be published’ without any actual intention of applying for the surrenders. It was averred that ‘the notices were being published solely with the intention of stopping or cancelling sales in execution, which had been scheduled to take place in respect of properties on which [the bank] had foreclosed, thereby delaying the execution process to afford debtors … time to pursue “other avenues”, instead of … sequestration’ (para 13).

The defendants denied that the statements were defamatory (though they were found to be) and, in the alternative, pleaded that the statements were not unlawful as they were made during legal proceedings in the discharge of their right and duty to seek the relief, which they claimed in the application for the interdict and were relevant thereto, and were accordingly made on a privileged occasion.

The law: Qualified privilege

‘In our [South African] law any protection which is extended on a so-called privileged occasion is qualified and not absolute. Thus, it may be lost if the speaker exceeds the bounds of what is considered permissible (either in regard to what is relevant or germane to the occasion or because their communication was not one made in the discharge of a right, duty or interest which they may have had in communicating the information concerned), or because it is considered that they were motivated by “malice”’ (para 64).

‘Three distinct and separate categories of statements which may enjoy qualified privilege are recognised in our law namely those made 1) in the discharge of a legal, moral, or social duty or a legitimate interest or 2) those made in the course of judicial or quasi-judicial proceedings and 3) those which constitute the publication of the proceedings of courts, parliament and certain public bodies. Insofar as the second category is concerned it is well-established that the privilege extends to litigants and their legal representatives as well as to witnesses and the presiding officer’ (para 65).

There is a long line of authority in our law ‘that in relation to statements made in the course of legal proceedings, they are not only required to be relevant to the matter in issue but the maker thereof must also have a “reasonable foundation” or “reasonable cause” for making them’ (para 67). ‘In Pogrund v Yutar [1967 (2) SA 564 (A) at 569H-570E] a Full Bench of the Appellate Division held that this meant that in addition to showing that the defamatory statement was pertinent or germane to the occasion there also had to be “some” foundation for it in the evidence or the “surrounding circumstances”, an approach that was confirmed in the appeal in [Joubert and Others v Venter 1985 (1) SA 654 (A) at 704B-D]’ (para 68).

Defamatory statements made during legal proceedings by legal practitioners

In Findlay v Knight 1935 AD 58 at 72, ‘the decision of the court a quo that, in the absence of any evidentiary foundation for the allegations, which he had made in the pleadings the defendant was not entitled to rely on the privilege as there had been no “reasonable foundation” for them, was upheld. Although the court recognised the wide latitude which is afforded to legal practitioners in the presentation of a case on behalf of a client it held with reference to the Roman-Dutch authorities, that in doing so he/she may only do that “which the case requires” and may not indulge in scandalous or libellous language “beyond the necessity of the case”’ (para 71).

‘Thus, it was not permissible for an advocate or attorney to plead defamatory statements which he/she knew to be false, or in respect of which they knew there was no proof, or where they did so recklessly, not caring whether the averments were true or false, and the pleader who did so was abusing the process of the court. Consequently, inasmuch as the allegations in question were made recklessly by the defendant, not caring whether they were true or false, or whether they could be proved or not, the privilege was not available to him’ (para 71).

In Van der Berg v Coopers & Lybrand Trust (Pty) Ltd & Ors 2001 (2) SA 242 (SCA), ‘the Supreme Court of Appeal held that there were no “hard and fast rules” and no “universally applicable formula”, which applied to determine whether a defamatory statement which was made during legal proceedings could be said to have been relevant thereto, only guiding principles, and in the context of the defence relevance was not a concept which was capable of precise definition. It was not to be equated with the test for relevance in an evidential sense’ (para 74). ‘Essentially the determination of whether the material in question was relevant amounted to a value judgment, based on reason and common sense, which had its foundation in the facts and circumstances of each particular case’ (para 74).

Court’s finding

Truth, on its own, is not a defence. ‘In the context of the defence of qualified privilege the truth or otherwise of a defamatory statement is only relevant to the question of whether there was malice shown … on the part of the defamer, which would thereby defeat the privilege’ (para 80).

The interdict application, notwithstanding that it was subsequently withdrawn against the attorneys, was only brought approximately one year after their letters to the bank and one year after the bank had served them with a letter of demand for them to cease participating in the scheme run by the other respondents. ‘In order to obtain such relief, the bank needed to show not only that its rights had previously been infringed by the [attorneys], but that it needed to be protected from them as there was a continuing, ongoing violation thereof, or at least an imminent threat of such violation. It was hardly going to succeed in obtaining such relief against the [attorneys] on the strength of a violation of rights which had taken place a year earlier and which had, on the face of it, ceased and was not ongoing at the time when the application was brought’ (para 84). In such circumstances it cannot be claimed that the allegation of fraud was protected by qualified privilege, because in a broad sense it was relevant to the proceedings and the issues raised therein, or to the story which needed to be told. In the first place, there was no sufficient foundation in the information at disposal to the bank to make the necessary connection that was required a year earlier to allege not only that the attorneys were participating at the time in an ongoing, unlawful scheme but also that they were engaged in an ongoing fraud.

‘An allegation that someone has engaged in fraud connotes that they acted criminally, and dishonestly. In its ordinary meaning, as understood by the average person, it accuses the person against whom it is directed of intentionally participating in the making of a false representation to another. The persons against whom such an accusation was directed were attorneys and colleagues of [the bank’s attorney]. Accusing an attorney of fraud and of abusing court proceedings is a very serious allegation. It is not one to be made lightly, by anyone, least of all a colleague. On the information which [the bank’s attorney] had available to him, given the [attorneys] limited involvement the fact that they had previously participated in the scheme did not necessarily, and only, imply that they did so with fraudulent intent. It was equally possible that they may have done so negligently, or even inadvertently, at the instance and on the instructions of [the other respondents]. Thus, caution was required, and some attempt should have been made to ascertain what the position was, before simply making an allegation that they were engaged in fraud’ (para 87).

The court referred to a series of decisions (Hill v Church of Scientology [1995] 2 SCR 1130, Botiuk v Toronto Free Press Publications Ltd [1995] 3 SCR 3 and Bent v Platnick 2020 SCC 23) by the Canadian Supreme Court in which the court ‘ruled against legal practitioners who made defamatory statements of and concerning colleagues and other professionals without ensuring that they had a proper foundation for doing so’ (para 88). In Hill, the court ‘pointed out that reputation has a particular significance for lawyers and is a “cornerstone” of their professional life, as a lawyer’s practice is founded and maintained on a good reputation for professional integrity and trustworthiness and is of “paramount” importance to clients, other members of the profession and the judiciary, and the entire system of administration of justice depends upon a lawyer’s reputation for integrity’ (para 90). In Bent, ‘the court held that in the light of the heightened expectation of reasonable due diligence which has historically been required of lawyers they are not entitled to rely on the privilege where they have been “indifferent” or reckless in relation to the averments which they make. Thus, unlike in the case of laypersons, a court will strictly scrutinise a lawyer’s conduct in making a defamatory allegation, because lawyers are duty-bound to take reasonable steps before making statements that are defamatory, especially in cases involving other professional persons’ (para 94).

‘If one goes back to first principles it must be remembered that it is the occasion which is privileged and not the statement. Therefore, whether the statement is protected by the privilege depends on whether it was relevant or pertinent to the occasion and its purpose, which in this case was the seeking of an interdict in June 2012. The fact that the plaintiffs had previously participated in an unlawful scheme for a period of [two to three] months, a year earlier, was not relevant to the “occasion”, which occurred a year later. In this regard it was held in [Rhodes University College v Field 1947 (3) SA 437 (A) at 464, 466-467] that the privilege cannot be relied upon on the basis that it was necessary to make the statements in question because they were simply made as part of the historical account of events’ (para 96).

Lawyers need to consider carefully whether to include prima facie defamatory statements in court papers and should apply the tests laid down by the courts.

Tshepo Mashile LLB (University of Limpopo) is a legal practitioner at Mkhonto and Ngwenya Inc in Pretoria.

This article was first published in De Rebus in 2022 (Oct) DR 15.

De Rebus