Many things are said and done that upset one of the parties during and even after the employment relationship has terminated. When do these utterances constitute defamation?
In Nadia van der Westhuizen v Morgan Motlogelwa Ntshabelele (case 2014/27063, judgment handed down 23 March 2015) the South Gauteng High Court awarded Van der Westhuizen an amount of R50 000 in damages after she was called a ‘liar’ and an ‘unintelligent white girl’ in an open plan office. The dispute arose when Van der Westhuizen, in her capacity as HR manager, was finalising Ntshabelele’s retrenchment. The court agreed that these insulting utterances constituted defamation and that Van der Westhuizen suffered damage to her reputation as a result.
In a more recent case, the High Court on appeal did not agree that evidence that an employee allegedly committed fraud constituted defamation.
In the matter of Clover SA (Pty) Ltd & another v Sintwa  12 BLLR 1265 (ECG), the question before the High Court was whether the applicant, Sintwa, was defamed when a witness testified at the CCMA that he (Sintwa) had committed fraud in circumstances where the commissioner found that Sintwa was not guilty of fraud, but of negligence.
While the court a quo found that Sintwa had been defamed and awarded him R100 000 in damages, on appeal a full bench disagreed because it held that
‘ It is trite law that publication of defamatory material in privileged circumstances is justified and therefore lawful.’
While the CCMA is not part of the judiciary, its proceedings are quasi-judicial in nature.
Quasi-judicial proceedings enjoy provisional protection when the defendant (the appellants in this matter) can prove that the statements are relevant to the matter.
In this case the statements made by the employee witness (the second appellant before the court) were supported by reasonable grounds and were not actuated by malice. The witness in fact:
- did not have an improper or indirect motive;
- did not exceed the limits of qualified privilege;
- acted out of a sense of duty or was bent on protecting an interest.
The importance of this judgment
When saying things that might constitute defamation outside arbitration proceedings, a witness at arbitration will enjoy protection provided the evidence is relevant, and not born of malice.
As a rule of thumb evidence must be factual, relevant and supported by reasonable grounds.
It must not be led simply to injure or destroy the reputation of another; to expose him to hatred, contempt or ridicule, or to humiliate or belittle him; or to make him look foolish, ridiculous or absurd. If such evidence is led out of malice, the injured person may very well succeed with an action for defamation.
Written by Hilda Grobler