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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, THOHOYANDOU

 

(1)      NOT REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

(3)      REVISED

CASE NO:11/2015

17/8/2017

 

In the matter between:--

 

SHONISANI RALSON MUKHWANTHELI                                                          PLAINTIFF

 

AND

 

DR NTAVHANYENI PHASWANA                                                                        FIRST DEFENDANT

MEMBER OF EXECUTIVE COUNCIL OF

EDUCATION LIMPOPO PROVINCE                                                                  SECOND DEFENDANT

HEAD OF DEPARTMENT OF EDUCATION

LIMPOPO PROVINCE                                                                                            THIRD DEFENDANT

JUDGMENT

MUSHASHA A.J.

[1]        The Plaintiff Shonisani Raison Mukhwantheli , instituted an action against the Defendants claiming damages for defamation of character.

[2]        Both Plaintiff and the 1^st Defendant are employees of the Department of Education for the Limpopo Province ( the second Defendant).

[3]        The claim is based on the contents of the letter written by the First Defendant and addressed to the District Senior Manager (annexure SRM1 of the Particulars of Claim)

[4]       The relevant contents of the said letter goes as follows:-

" Kindly note that Liphakha Primary school learners did not affiliate or take part in sports this year. This is having a direct link with all the allegations against Mr. Mukhwantheli S.R. Learners at Liphakha Primary school could be disadvantaged simply because there is a sports organizer coordinator with a personality disorder.

Decisive action should be taken against anybody who undermines authority lest we find ourselves in all lawlessness situations"

 

[5]        The particulars of claim allege that the statement was made with the intention to defame the Plaintiff and to injure the Plaintiffs reputation.

[6]        The Defendants defend the action on the following grounds.

[6.1]  The contents of the letter were not defamatory.

[6.2]  The Defendants lacked the intention to defame the Plaintiff .

[6.3]  The letter was written as part of internal measures to regulate issues within the school and the said letter was never meant for public exposure.

 

[7]        Evaluation

It is trite that the test whether the statement is defamatory is an objective one. The words used in the statement should be construed in context with regard to the meaning that may be conveyed to any average ordinary reader .

 

National Education, Health and Allied workers union and Kegomoditswe Euphodia Tsatsi (SCA) a Judgment delivered on the 1^st of December 2005.

 

[8]        Even though the letter referred to a Sports Organizer Coordinater, in my view, it is clear from its entire content that the person referred to in the letter could not have been any other person other than the Plaintiff.

[9]        I also hold the view that referrence to the Plaintiff as a person with personality disorder has the effect of lowering his status. The words if published also have the effect of tarnishing the image of the Plaintiff in his social and professional standing.

[10]     Turning to the question whether the Plaintiff had the necessary intention to injure the Plaintiff. It was submitted on behalf of the Defendants that the statements were made and published in the course of discharging of a duty or furtherance of interest of the Department of Education (3rd Defendant). It was submitted on behalf of the Defendants that the 3^rd Defendant had a corresponding right or interest to know what was happening within its own institution. In other words a privileged occasion existed.

[11]     The content of the said letter reflects the following issues:-

[11.1]  Liphakha Primary school learners did not affiliate or take part in sports during that year.

[11.2]  The Plaintiff had disobeyed instructions from the Sports committee as shown in annexure SRM2 of the Particulars of claim.

[11.3]  Decisive actions by the District Senior Manager were recommended to prevent lawlessness.

 

[12]     I am of the view that the contents of the letter was relevant and connected to the occasion it was addressing.

[13]     In my view the 1st Defendant had a duty to impart to the District Senior Manager the information concerning the Plaintiff and the District Senior Manager had a corresponding duty to know what was the reason behind failure of the school to participate in Sports and accordingly the statements were protected by qualified privilege..

 

Bongin V Devilliers 1980 3 SA 556 (A) 577

 

[14]       In addition I am of the view that the 1^st Defendant lacked the intention to injure the Plaintiff in his good name particularly in the absence of evidence showing that 1^st Defendant intended the contents of the letter to be published to non-members of the Defendants institution.

There is also no evidence establishing improper motive on the part of the 1^st Defendant.

[15]      Taking all the evidence into account and the surrounding circumstances I am driven to the conclusion that the Plaintiff failed to establish the element of wrongfulness in respect of the statement to render the Defendants liable to the claim.

In the result the following order is made.

 

The Plaintiff's claim is dismissed with costs.

 

 

MUSHAHA M.J

ACTING JUDGE OF THE HIGH COURT

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