Pietersen-Diergaardt v Fischer (CA 68 of 2007) [2011] NAHC 264 (14 September 2011);
‘Not
Reportable’
CASE NO.: CA 68/2007
IN THE HIGH COURT OF
NAMIBIA
In the matter between:
ALEXIS
PIETERSEN-DIERGAARDT
…........................................................Appellant
and
PIETER HENDRICK
FISCHER
…..............................................................Respondent
CORAM:
DAMASEB JP et SILUNGWE AJ
Heard on: 2009 July 13
Delivered on: 2011
September 14
_________________________________________________________________
APPEAL
JUDGMENT
_________________________________________________________________
SILUNGWE
AJ: [1] This is an appeal against a judgment of the
Magistrate’s Court for the District of Rehoboth by which the
presiding magistrate upheld the respondent’s claims against the
appellant for damages for (a) defamation, and (b) malicious
prosecution, totaling N$20 000-00. At the hearing of the appeal, the
appellant and the respondent were presented by Messrs Marcus and
Obbes, respectively.
[2]
A brief background is that when this matter arose in June 2001, the
appellant was a Magistrate responsible for the District of Rehoboth,
while the respondent was a Chief Legal Clerk and, therefore an
administrative head of subordinate members of staff at the Rehoboth
Magistrate’s Court. In other words the appellant was, at the
all material times, the overall head at that Magistrate’s
station.
[3]
The grounds of appeal in relation to the first claim – the
“defamation claim” – are that:
the
learned magistrate erred in finding that there was publication of
the letter dated 13 June 2001 to the Permanent Secretary of the
Ministry of Justice, when the evidence led at the trial clearly
established that no such publication in fact took place;
the
learned magistrate erred in law in holding that the borders of the
defence of qualified privilege were exceeded and/or that the
appellant abused the occasion.
[4]
With regard to the second claim – the “malicious
prosecution claim” – the grounds of appeal are mainly,
that:
the
learned magistrate erred in law in finding that the appellant set
the law in motion, i.e. “was active in setting the wheels of
justice in motion”;
the
learned magistrate erred in finding that the appellant was well
aware of the fact that she would not be able to prove the charge of
theft on the available evidence; and
the
learned magistrate erred in finding that the wheels of justice were
maliciously set in motion by the appellant in respect of the
criminal charge against the respondent.
[5]
To begin with, the first claim is predicated on publication of
defamatory material. The respondent, who was the plaintiff in the
court a quo, alleges in his particulars of claim that, on 13th
July 2001, the appellant (erstwhile defendant) addressed and
published to the Permanent Secretary of the Ministry of Justice, a
letter wherein she maliciously made defamatory allegations against
him. The words complained of are as follows:
“The staff members
of Rehoboth Magistrate’s Court are good and hardworking and
disciplined workers, but they cannot uphold this image if they don’t
have a compent and co-operative administrative head. Mr Fischer is
not competent to work with anybody.
I can therefore not see
how he can still supervise them. His behavior sometimes is definitely
unethical and an embarrassment to the Ministry of Justice.”
It
is further alleged that the appellant’s aforesaid statement is
wrongful and defamatory of the respondent and was made with the
intention to defame the respondent and injure his reputation; that
the statement was understood by the addressee and intended by the
appellant to mean that the respondent is incompetent, unethical and
unworthy of his position, dishonest, and that his behaviour is such
as requiring serious steps to be taken against him, and that, as a
consequence, the respondent was injured in his good name, reputation
and dignitas and that he suffered damages in the amount of
N$25 000-00.
[6]
In her plea, the appellant denies that the report was made wrongfully
or with intention to injure the plaintiff’s reputation.
Expounding on the denial, she states that:
as
head of the station, she was under a legal and moral duty to publish
her findings after an enquiry and at the request of the addressee
(of her report);
the
addressee, as Permanent Secretary, was under a legal and moral duty
or had a legitimate interest to receive the report; and
accordingly,
the occasion of the publication of the report was a privileged one.
[7]
An important element of defamation is publication of a defamatory
matter. Neethling’s Law of Personality, 2nd
ed., declares as follws, at 131:
“Since the good
name, respect or regard that a person enjoys in the community
concerns the
esteem in which he is held by others,
and defamation is aimed at the infringement of his good name, it is
self-evident that the defamation can occur only if the defamatory
statement or behavior is published or made known to a third party.
Without such publication, the esteem in which that person is held by
other cannot be diminished. Accordingly publication is a requirement
for defamation.”
As
publication is an important requirement for liability for defamation,
the plaintiff must aver and prove expressly that publication of the
alleged defamation indeed occurred (Cramer Tothill 1945 TPD
365), unless it is admitted.
[8]
In casu, publication of the letter (also referred to in
evidence as “report”) to the Permanent Secretary of the
Ministry of Justice was not denied by the appellant in the pleadings.
However, publication to the addressee – as alleged by the
respondent – was put in issue, at the commencement of the trial
by the appellant’s legal representative and the issue was fully
canvassed during the course of the proceedings, although no formal
application to amend the plea was made.
[9]
It is not in dispute that, during the presentation of oral evidence
at the trial, the respondent (then plaintiff) could not say whether
the report aforesaid ever reached the addressee. For her part, the
appellant testified that, after the Permanent Secretary had requested
her in writing to investigate (written) complaints (by some members
of staff at the station) against the respondent, she carried out
investigations and subsequently compiled a confidential report which
was typed by Ms Moller, a typist, under instructions of
confidentiality. When the report was ready, the appellant put it on a
file which was placed on her office table on 13th June
2001. The appellant then instructed the typist to erase the report
from the computer so that no one else could have access to it. The
original report remained in the file on the table until 21st
June, 2001, as the appellant hoped that a solution to the problem
might be found. However, the report disappeared from the file. In her
testimony, she was assertive that she never dispatched the report to
the addressee.
[10]
In the judgment, the subject of this appeal, the trial magistrate
disposed of the issue of publication as follows:
“Now, the court has
to deal with the issue of publication first before it can deal with
the defense as raised by the Defendant.
It is clear from the
pleadings before court that the Defendant did not raise the defense
that the document in question was not in fact published and that it
never reached the addressee.
The Legal Representative
for the Defendant argued in favour of his client that this cannot
constitute a fatal error to the defense case since it became clear
from the testimonies of the parties that the letter never reached the
PS. The Plaintiff said in his testimony that he did not know whether
this letter reached the PS or not. The Defendant said it did not. The
PS was not called to confirm either of these versions.
The court order that as
it is trite law that the parties will be bound by their pleadings the
court is not inclined to deviate from this principle, especially in a
material aspect such as the defense itself, by oral evidence.
The Defendant will
therefore be held by her plea in respect of the publication and the
court accepts that there was publication even if the Plaintiff did
not call the PS to testify about this.”
For
the avoidance of doubt, the letters PS are an acronym for the title
“Permanent Secretary”.
[11]
Relying on South African authorities, such as Collen v Rietfontein
Engineering Works 1948 (1) SA 413 at 433; and Middleton v
Carr 1949 (2) SA 374 (A) at 385-6, Mr Marcus, for the appellant,
submitted that the court a quo should, in the circumstances,
have determined the issue of publication, having regard to the facts
which had emerged during the trial, namely, that there had been no
publication to the Permanent Secretary.
[12]
But Mr Obbes, representing the respondent, argued that the
appellant’s entire defence was premised on qualified privilege
which, of its very nature, assumes publication, which had not been
denied. He then drew attention to Jones and Buckle, The Civil
Practice of the Magistrates’ Courts in South Africa 9th
ed., Vol. 11 at 19 – 12, where the following words appear:
“… whatever
is not denied and is not inconsistent with the plea is taken to be
admitted, and while an admission stands on the pleadings the
defendant cannot contend to the contrary.”
He
went on to submit that the appellant had not invoked Rule 19(11) of
the Magistrates’ Courts’ Rule to amend the plea; and
quoted from Jones and Buckle, supra, at 19 – 25 (see also
footnote 5) as follows:
“A defence must be
pleaded as well as proved for the Court sits to try the issues raised
by the pleadings. A defendant who has missed his true defence, or who
has learned of it only from facts which appeared during the trial,
must therefore raise the defence formally and have it placed on
record. If no amendment is made to the pleadings, the defence will,
as a general rule, not be adjudicated upon.”
Also
cited in aid of the respondent’s contention was the case of
Courtney-Clarke v Bassingthwaighte 1990 NR 89 (HC) at 103,
where O’Linn J stated as follows:
“… In any
case, there is no precedent or principle allowing a Court to give
judgment in favour of a party on a cause of action never pleaded,
alternatively there is no authority for ignoring the pleadings in a
case such as the present and giving judgment in favour of a plaintiff
on a cause of action never pleaded.”
Rounding
off his submission in respect of the appellant’s first ground
of appeal, Mr Obbes stated that, in the present case, the question of
publication had been alleged by the respondent and admitted by the
appellant, but that, as regards whether publication had been made to
the addressee, such was not common-cause between the parties, neither
was it clear beyond doubt. He added that the consideration of the
question of publication at the hearing of this appeal would
undoubtedly cause unfairness to the respondent; and, that the
respondent’s rights in terms of Article 12 of the Namibian
Constitution would be grossly infringed if the appellant were to be
allowed to withdraw her admission.
[13]
On a proper scrutiny of this matter, two questions impinging on
publication arise. The first question is whether there was
publication made to the Permanent Secretary of the Ministry of
Justice? And the second one is whether publication was made to a
third party? Unquestionably, much discourse has been centred around
the first question. An explanation for this probably lies in the
manner in which the respondent’s pleadings in this respect were
formulated, namely, that the focal point of publication was the
Permanent Secretary in the Ministry of Justice. Although the
appellant’s pleadings admitted such publication, the factual
evidence from both parties pointed in the opposite direction. As the
appellant’s legal representative raised the issue of such
publication at an early stage of the proceedings, he should at that
stage, or subsequently when the evidence of the parties seriously put
into question whether such publication had in fact been made, have
applied for an appropriate amendment of the appellant’s plea,
but this was not done.
[14]
It is trite law that the Court may, at any stage before judgment,
grant leave to amend any pleading or document on such terms as to
costs or other matters as it deems fit. Herbstein & Van Winsen:
The Civil Practice of the Supreme Court of South Africa, 5th
ed., dealing with the question as to when amendments can be made,
states (among other things) as follows at 675–676:
“An
amendment may also be allowed on appeal where no prejudice would
thereby be occasioned, for instance where the issues sought to be
introduced by the amendment have been fully canvassed at the trial.
Even where no amendments
have been applied for, both trial courts and the Court of Appeal have
adjudicated on issues not raised on the pleadings but fully canvassed
at the trial. Thus, in Collen v Rietfontein Engineering Works
1948 (1) SA 413 (A) where the Appellant Division found a contract
that had not been relied upon in the pleadings to have been
established, Centlivres JA, after remarking that the position should
have been regularised by an appropriate amendment, went on to say:
‘This
court, therefore, has before it all the materials on which it is able
to form an opinion, and this being the position it would be idle for
it not to determine the real issue which emerged during the course of
the trial.’
In Middleton v Carr
Schreiner JA said:
‘[W]here
there has been full investigation of a matter, that is, where there
is no reasonable ground for thinking that further examination of the
facts might lead to a different conclusion, the Court is entitled to,
and generally should, treat the issue as if it had been expressly and
timeously raised. But unless the court is satisfied that the
investigation has been full, in the above sense, injustice may easily
be done if the issue is treated as being before the Court. Generally
speaking the issue in civil cases should be raised on the pleadings
and if an issue arises which does not appear from the pleading in
their original form an appropriate amendment should be sought.’
”
[15] In this case, and
regard being had to what will shortly be determined pertaining to the
second aspect of publication, it is enough to say that, evidentially,
the report did not reach the addressee.
[16] I now turn to the
second question of publication. In this regard, Mr Obbes submitted
that, in any event, from the appellant’s own testimony, it
appears that the report was published to Ms Moller (the typist). Not
surprisingly, the response of Mr Marcus was not averse to the
submission of Mr Obbes on the point. In accepting Mr Obbes’
submission in this regard, Mr Marcus stated that although no
publication to the Permanent Secretary had taken place, the appellant
testified that she gave the letter to her secretary to type which, he
submitted, was sufficient to meet the “publication
requirement”. He continued that publication of the letter took
place, albeit on a different basis than that held by the court a
quo. Mr Marcus added that, on the pleadings, the defamatory
nature of the report had not been denied but that, in the appellant’s
plea, he had raised the defence of qualified privilege. It is thus
common cause that publication occurred in relation to the appellant’s
typist.
[17] The question that
must now be settled is whether the appellant can avail himself of the
defence of qualified privilege which is relied upon in his plea.
[18] In determining
whether the defence of qualified privilege (i.e that publication of a
defamatory matter was done on a privileged occasion), Cameron J said
in O v O 1995 (4) SA 482 (W) at 486B-C:
“The
law relating to qualified privilege as a defence to a claim for
defamation is well settled. Innes CJ set it out in Ehnike
v Grunewald
1921 AD 575 at 581:
‘The
test to apply in a case of this kind is that of mutual interest or
duty in the subject-matter of the communication. Where the person
publishing the defamatory matter is under a legal, moral or social
duty to do so or has a legitimate interest in so doing, and the
person to whom it is published has a similar duty or interest to
receive it, then the occasion of the publication would be
privileged.’ ”
In a similar vein, O’Linn
J said in Marais v Haulyondjaba 1993 NR 171 at 175D-F:
“The
only problem on the merits is whether, on the basis of the facts
alleged by the plaintiff, the letter was not published by the
defendant on a privileged occasion, i.e either communicated in the
discharge of a duty or the exercise of a right, or the furtherance of
a legitimate interest and communicated to somebody who has a
corresponding right or duty or legitimate interest to receive the
communication.
If such qualified
privilege is established or apparent from the proved facts, then the
publication is lawful, notwithstanding that it is defamatory and/or
injurious.”
[19] In the matter under
consideration, the appellant conducted investigations of complaints
against the respondent and subsequently compiled the report in
question at the behest of the Permanent Secretary of the Ministry of
Justice. He pleaded the defence of qualified privilege as reflected
in para [6], supra:
[20] On the facts of this
case, I am persuaded that the appellant acted within the parameters
of the test referred to in O v O, supra, and Marais
v Haulyondjaba, supra and that the said Permanent
Secretary was equally under a corresponding legal duty and had a
legitimate interest to receive the report which was the result of the
enquiry that the Permanent Secretary had initiated. Indeed, the trial
magistrate held that the defendant (i.e the appellant) “was
under a legal duty to report to the PS about the complaints which
were lodged against the Plaintiff by fellow staff members at the
Rehoboth Magistrate’s Court ...”
The court a quo proceeded
to question whether certain (few) aspects of the report exceeded the
borders of the defence of qualified privilege. The court then said:
“Although
the phrase: ‘I can therefore not see how he can still supervise
them. His behaviour sometimes is definitely unethical and an
embarrassment to the Ministry of Justice’ can be accepted to be
within the borders provided for in respect of the defense raised,
irrespective of the truth thereof, the court order that the last
sentence of the last paragraph is outside these borders.
The Court order that
there was a legal duty upon the Defendant to inform the PS about the
state of affairs at her station and that she also had the authority
to make a suggestion as to how this problem could be solved.
But to go as
far as saying that the Plaintiff was
incompetent to work with ANYBODY was
farfetched and defamatory and was not germane to the occasion the
court orders that this occasion was indeed abused by the Defendant.’
”
(Emphasis is provided)
[21] The question that
arises from the presiding magistrate’s finding is whether, by
the use of the words underscored, the privileged “occasion was
indeed abused by the Defendant” and thereby exceeded the
borders of the defence of qualified privilege? The Magistrate went on
to elaborate that there could not be any legal duty upon the
defendant to publish a statement saying that the plaintiff is
incompetent to work with anybody. This, the magistrate continued,
goes to the root of any person’s personality and character. It
was added that, if “the plaintiff cannot work with some of the
staff members of the Rehoboth Magistrate’s Court, it cannot
mean that he cannot work with anybody for that matter”. It is
apparent that the magistrate construed the expression that “the
plaintiff cannot work with anybody” to mean, not only that the
plaintiff could not work with anybody at the Rehoboth Magistrate’s
Court, but also with anybody at any other Magistrate’s Court!
On the contrary, it seems to me that the appellant was concerned with
the members of staff with whom the respondent worked at the Rehoboth
station, as opposed to members of staff elsewhere. In any event, I do
not conceive that, in the context that she expressed herself and the
circumstances surrounding the episode, she was actuated by malice. In
the final analysis, I do not consider that the appellant abused her
privileged occasion, or in any way exceeded her privileged occasion.
[22] The only outstanding
claim to be considered is the second one, namely, the malicious
prosecution claim. The scenario that gave rise to this claim was the
disappearance from the appellant’s office of her report
addressed to the Permanent Secretary of the Ministry of Justice.
[23] The appellant
testified that, on 21st June 2001, while she had gone to
Nauchas Magistrate’s Court to perform her official duties, she
received a telephone report from Ms Moller, the typist, that her (the
appellant’s) office was in disarray; that Mr Fischer (the
respondent) had apparently gone into her (the appellant’s)
office and removed the report addressed to the Permanent Secretary,
Ministry of Justice, adding that she should immediately return to the
station and attend to the matter. The appellant at once returned to
Rehoboth Magistrate’s Court where Ms Moller confirmed her
telephone report; however, the appellant was told that Mr Fischer had
been seen going into her (the appellant’s) office but that Ms
Moller could not say what Mr Fischer had done (in the office). After
further investigations, the appellant reported to the Namibian Police
the crime of theft of the report. Consequently, the respondent was
arrested for theft and detained behind a counter at the Police
Station. Subsequently, the Prosecutor General declined to prosecute
the respondent. According to the appellant’s testimony, she
confronted the respondent and asked him to please return the report
to her but that he responded that he would not do so and that she
could do what she wanted. The appellant thereafter reported the
matter to the police.
[24] In its judgment, the
court a quo held, inter alia, that:
“It
is common cause that the Plaintiff in fact made a copy of this
document, this is not disputed.”
It is apparent that the
document referred to in the aforegoing excerpt relates to the report
in question. The presiding magistrate’s finding shows that the
respondent had been, or must have been, in possession of the missing
report.
[25] The appellant’s
defence was, as previously stated, that she was under a legal and
moral duty; that she had a legitimate interest and that she acted in
the public interest when she reported the matter to the police, based
on affidavits of staff witnesses in connection with the disappearance
of the report from her office desk; that the only person who could
possibly have had any interest in the report was the defendant.
[26] In all the
circumstances of this matter, I find that the appellant acted
reasonably in reporting the disappearance of the report to the police
as a case of theft; and that, in so doing, the appellant was not
actuated by malice or any improper motive. Hence, the trial
magistrate erred in finding that the respondent’s second claim
had been established; this equally applies (and for the reasons
already given) to the finding in respect of the first claim.
[27] In the result, I
make the following order:
the appeal is upheld and
the order of the Court a quo is substituted for the
following:
“The
claim is dismissed with costs.”
_____________________
SILUNGWE AJ
I agree.
_____________________
DAMASEB JP
COUNSEL ON BEHALF OF
THE APPELLANT:
Mr N Marcus
Instructed by:
Government Attorney
COUNSEL ON BEHALF OF
THE RESPONDENT:
Adv. Van Vuuren
Instructed by: Lentin,
Botma & Van den Heever