THE SUPREME COURT OF APPEAL REPUBLIC OF SOUTH
AFRICA

JUDGMENT

In the matter between:

Case No:222/09

KGOSI LERUO MOLOTLEGI
First Appellant

ROYAL BAFOKENG ADMINISTRATION
Second Appellant

and

MOSOKO MOKWALASE
Respondent

Neutral citation:
Molotlegi v Mokwalase (222/09) [2010] ZASCA 59 (1 April
2010)

Coram:
Mthiyane, Heher, Bosielo et Shongwe JJA et Seriti AJA

Heard:
8 March 2010

Delivered:
1 April 2010

Summary:
Defamation – action for damages for defamation based on
an innuendo – separation of issues in terms of rule 33(4) –
trial court decided that the words are defamatory per se
without reference to the innuendo – misdirection justifying
the setting aside of its order – matter referred back to the
court below for trial.

ORDER

On appeal from: North West High Court, Mafikeng (Mogoeng JP sitting as
court of first instance):

1.
The appeal is allowed to this extent:
(a)
The order of the court below is set aside.
(b)
The appellants are ordered to pay the costs of the hearing of the issues
which were separated in terms of rule 33(4), jointly and severally.

2.
The matter is referred back to the court below for trial.

3.
The appellants are ordered to pay the costs of appeal jointly and severally.

JUDGMENT

BOSIELO JA (Mthiyane et Shongwe JJA et Seriti AJA concurring)
[1] The first appellant is Kgosi Molotlegi of the Royal Bafokeng Nation, which
is situated in the Northwest Province. The second appellant is a legal persona
responsible for the administration of the Royal Bafokeng Nation. The respondent
was employed as a team leader of the VIP Protection Team of the Royal
Bafokeng Nation.

[2] A protocol and security meeting of the second appellant was held on 13
October 2006 where both first appellant and the respondent were present. At the
meeting and in the presence of members of the protocol and security, first

appellant uttered the following words or words to the same effect to the
respondent:
'Mokwalase, you are fired. I don't want to see you again on my premises. You can
excuse yourself'.
Acting thereupon, the respondent left the meeting.

[3] Aggrieved by the first appellant's utterances, the respondent issued
summons against the two appellants alleging that the words uttered, given the
context of the meeting, the respondent's position at the meeting and the first
appellant's behaviour towards the respondent, are wrongful and defamatory.

[4] The appellants applied by notice of motion to the court below for a
separation of issues in terms of rule 33(4) of the Uniform Rules in the following
terms:

'1.
that the meaning of alleged defamatory words set out in paragraph 7 of the
Respondent's (Plaintiff's) particulars of claim be determined separately;
2.
that in the event that the Honourable Court determines that the words bear a
defamatory meaning, whether such meaning accords with the meanings pleaded by the
Respondent in paragraph 9 of his particulars;
3.
That the other issues in dispute between the parties be postponed sine die and
the determination thereof be stayed pending the finalisation of the separated issues; and
4.
that the respondent in the event that he opposes the relief set out in paragraph 1
and 2 above be ordered to pay the costs of this application.'

[5] The respondent neither opposed the application nor appeared at court
when it was heard. As a result the application was granted by the court below
(per Matlapeng AJ) on 25 September 2008. The part of the court order which is
relevant is the one to the effect that the meaning of the alleged defamatory words
as set out in paragraph 7 of the Respondent's (Plaintiff's) particulars of claim be
determined separately.

[6] On 28 November 2008, the court below (per Mogoeng JP), without any
evidence having been led about the context in which the alleged words were

uttered, found that they were defamatory in nature. The learned judge proceeded
further and found that the publication of the words (which was admitted) was
wrongful and was published with the requisite animus iniuriandi, ie 'with intent to
defame and the knowledge of wrongfulness and it caused the plaintiff to suffer
damages. A case of defamation, has therefore been proved'.
The appellants are appealing against this finding with the leave of the court
below.

[7] The appellants have launched a three-pronged attack against the
judgment of the court below. This appears clearly from the appellant's Notice of
Appeal where the three grounds of appeal are set out as follows:

'1.
The Learned Judge, with respect, erred in finding that the statement was
wrongful, published with animus iniuriandi, and caused the Plaintiff damages and that a
case of defamation had been proved, in that the only issue before the Learned Judge,
separated in terms of Rule 33(4), was to determine whether or not the words used by the
First Defendant were defamatory of the Plaintiff.
2.
The Learned Judge, with respect, erred further in finding that the words used by
the First Defendant of and concerning the Plaintiff were defamatory of the Plaintiff in
that–
2.1
It was common cause that the words used by the First Defendant were:
"Mokwalase, you are fired. I don't want to see you again on my premises. You can
excuse yourself."
2.2
The Plaintiff limited the meaning of these words to three stings, namely that the
words meant that he was:

"unable to perform his duties in a professional manner; and

although being a member of the ROYAL BAFOKENG NATION, was deemed an
undesired person on the premises of the ROYAL BAFOKENG NATION; and\

not even worthy of proper disciplinary action and/or the rules of natural justice."
2.3
And the learned Judge ought, with respect, to have found that the words uttered
by the First Defendant were not defamatory of the Plaintiff in the senses pleaded and
relied upon by the Plaintiff.'

[8] Before us counsel for the appellants confined his submissions to the first
ground which he argued was dispositive of the whole appeal. The contention was

that the court below erred in finding that the words uttered were defamatory
without having heard evidence of the special circumstances surrounding the
utterances. He submitted further that the court below erred in going beyond the
terms of the court order of 25 September 2008, by, in addition to finding the
words uttered to be defamatory per se, continuing to find that 'it is wrongful and
was published with animus iniuriandi, ie with the intent to defame and the
knowledge of the wrongfulness and it caused the plaintiff to suffer damages. A
case of defamation has, therefore, been proved.'

[9] The respondent had raised the issue of the appealability of the finding by
the court below in his heads of argument. The contention is that as the parties
still had to return to court to lead evidence on other issues which had been
deferred for later determination, it could not be said that the order by the court
below had the effect of finally disposing of the issues between the parties.
However, counsel for the respondent conceded that the learned Judge President
erred in deciding that the words uttered were defamatory without any evidence of
the special circumstances under which the words were uttered. He argued further
that, given the fact that the respondent relied on the secondary as opposed to the
primary meaning of the words uttered, the court below erred in granting
separation of the issues in the manner it did as this failed to take account of the
averments regarding the special circumstances and the innuendo pleaded by the
respondent in para 9 of the particulars of claim.

[10] Notwithstanding the fact that the issue of appealability was not vigorously
argued before us, I deem it appropriate to deal with it upfront as it might be
dispositive of this appeal. It is clear from the judgment of the court below that it
had pronounced itself unequivocally and definitely on the issues of the
defamatory nature of the utterances as well as whether the utterances were
wrongful and made with the requisite animus iniuriandi. It follows that once the
court below had so pronounced itself on these issues, it would not be possible for
it to correct, alter or set aside its own order. It is only a court of appeal which
would be competent to correct, alter or set aside such an order. Self-evidently the
order made by the court below finally disposed of a substantial portion of the

relief sought by the plaintiff in the main action. Dealing with a similar situation in
Marsay v Dilley 1992 (3) SA 944 (AD) Corbett CJ stated the following at 962C-D:
'The law relating to the appealability of decisions of a Court of a Provincial or Local
Division was re-examined relatively recently by this Court in the case of Van Streepen &
Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A). As this
judgment shows, this Court has over the years adopted an increasingly flexible approach
to the question of appealability. The general principle which, I think, may be extracted
from the judgment is the following: where a trial Court has under some competent
procedure (such as an application under Rule 33(4)) made an order which has the effect
of being a final decision (ie one which cannot be corrected or altered or set aside by the
trial Judge at a later stage of the trial) and the decision is definitive of the rights of the
parties and has the effect of disposing of a substantial portion of the relief claimed by the
plaintiff in the main action, then this order is a judgment (as understood in s 20(1) of the
Supreme Court Act 59 of 1959) and is appealable, despite the fact that the main action
has not been concluded.'

Based on the above exposition, I am satisfied that the decision of the court below
is appealable. I proceed to deal with the merits of the appeal.

[11] In order to resolve this conundrum, I deem it necessary to quote the
relevant parts of the pleadings which reads:
7.
'During the said meeting, the FIRST DEFENDANT, in the presence of members of the
said protocol and security meeting,  uttered the following and/or words with the same
effect and meaning, to PLAINTIFF:
"Mokwalase, you are fired. I don't want to see you again on my premises. You can
excuse yourself".'

8.
As a result of the above, PLAINTIFF had to withdraw from the said meeting with
immediate effect.

9.

The said words,
-
in the context of the meeting; and
-
in the context of PLAINTIFF'S position in the meeting; and

-
in the context of FIRST DEFENDANT'S behaviour towards PLAINTIFF,
are wrongful and defamatory of PLAINTIFF,

in that they were intended and were understood by PLAINTIFF and members of the said
meeting, to mean that PLAINTIFF was:
-
unable to perform his duties in a professional manner; and
-
although being a member of the ROYAL BAFOKENG NATION, was deemed an
undesired person on the premises of the ROYAL BAFOKENG NATION; and
-
not even worthy of proper disciplinary action and/or the rules of natural justice.'

[12] In responding to these allegations, the appellants pleaded as follows:

'Save to admit that the First Defendant uttered the following words to the plaintiff:
"Mokwalase you are fired. I don't want to see you again on my premises. You can
excuse yourself." These allegations are denied.'

[13] It is common cause that this matter proceeded to trial on the issue as
separated in terms of rule 33(4). No evidence was led at the trial.
Notwithstanding the fact that no evidence regarding the context and the special
circumstances surrounding the utterance of these words was led, the court below
found the alleged words to be defamatory of the respondent. Furthermore, the
court below found the words to be wrongful and to have been uttered with
animus iniuriandi.

[14] It is necessary to recall that the respondent did not rely on the alleged
words as being defamatory per se. The respondent averred in paragraph 9 of the
particulars of claim that these words were defamatory because of the context of
the meeting, his position at the meeting and the manner in which they were
uttered. In other words the respondent pleaded special circumstances giving rise
to an innuendo. Based on this context, the respondent averred that the alleged
words were intended to mean and were understood by him and the members at
that meeting to mean that he was:

unable to perform his duties in a professional manner; and

although a member of the Royal Bafokeng Nation, was deemed an

undesired person on the premises of the Royal Bafokeng Nation; and


not even worthy of proper disciplinary action and/or the rules of natural
justice.

[15] It should be clear from the court order dated 25 September 2008 that the
issues for separation in terms of rule 33(4) were restricted to paragraph 7 of the
particulars of claim. The appellants' first prayer unduly limited the issue to be
separated to the words as set out in paragraph 7 of the particulars of claim. No
reference is made to paragraph 9 which sets out the context under which the
words were uttered and the innuendo which the respondent attributes to the
words uttered. It is clear to me that this was a mischaracterisation of the issues
pleaded by the respondent. Given the issues as pleaded by the respondent, it is
not possible to determine if the alleged words uttered about the respondent are
capable of bearing the meaning attributed to them in the innuendo without any
evidence of the background facts being led. This accords with the dictum by
Colman J in Hassen v Post Newspaper (Pty) Ltd & others 1965 (3) SA 562 at
566G-H where he stated:
'When a secondary meaning is relied upon, evidence is necessary because the plaintiff
must prove the special circumstances by reason whereof the published matter would, to
those aware of the special circumstances, bear the secondary meaning relied upon. The
plaintiff must prove, further, upon a balance of probabilities, that there were persons,
among those to whom the publication was made, who were aware of the special
circumstances, and to whom, it can therefore be inferred, the publication is likely to have
conveyed the imputation relied upon.'

[16] The logical conclusion is that the court below erred in attempting to
determine the meaning of the words used without any evidence of the special
circumstances being led. It follows that the order of the court below has to be set
aside so that the respondent can be afforded the opportunity to lead the
necessary evidence regarding the special circumstances and context under
which the alleged words were uttered in order to determine whether the meaning
attributed to them in the innuendo by the respondent is defamatory or not.

[17] Based on the wording of the order of separation dated 25 September
2008, both counsel are ad idem that the learned Judge President went beyond

what he was required to decide. Evidently he was not required to determine the
issues of wrongfulness and animus iniuriandi at that stage. He was only required
to determine if the words uttered were defamatory per se or not. I agree that the
learned Judge President erred in deciding issues which were not before him.

[18] What remains for consideration is the issue of costs. The general rule is
that ordinarily costs will follow the result unless there are exceptional
circumstances dictating otherwise. However, this rule is not inflexible. It is equally
trite that costs are discretionary. Considerations of fairness and justice might, in
appropriate circumstances, dictate otherwise.

[19] Given the peculiar circumstances of this case, I am of the view that it
would be unfair and unjust to award the appellants costs in this matter. It is
common cause that it is the appellants who sought and obtained an order for
separation of issues. It is the appellants who settled the terms of that order. The
respondent played no role in that application. I have already found that the
respondent's case was mischaracterised in the application for separation of
issues. This led to the appellants obtaining a wrong order which did not take
proper account of the respondent's pleaded case. It is this order which led the
court below to decide the matter on the narrow and incorrect basis chosen by the
appellants. I do not think that the mere fact that the respondent did not oppose
that application is sufficient reason for him to be mulcted with the costs. It is
important not to loose sight of the fact that in the application for separation of
issues, the appellant had warned the respondent that in the event that he might
oppose the application, they would ask for an order of costs against him. Why
should the respondent who exercised his option not to oppose the application,
probably to avoid attracting a cost order, be made to pay the costs he tried to
avoid incurring. Aggrieved by the decision of the court below, the appellants took
the matter on appeal to this court. It is clear to me that it is the appellants who
determined the course which this matter took culminating in the appeal before us.
To my mind justice and fairness demand that the appellants be ordered to pay all
the costs including the costs of appeal.

[20] A court hearing an application for a separation of issues in terms of rule
33(4) has a duty to satisfy itself that the issues to be tried are clearly
circumscribed to avoid any confusion. It follows that a court seized with such an
application has a duty to carefully consider the application to determine whether
it will facilitate the proper, convenient and expeditious disposal of litigation. The
notion of convenience is much broader than mere facility or ease or expedience.
Such a court should also take due cognisance of whether separation is
appropriate and fair to all the parties.  In addition the court considering an
application for separation is also obliged, in the interests of fairness, to consider
the advantages and disadvantages which might flow from such separation.
Where there is a likelihood that such separation might cause the other party
some prejudice, the court may, in the exercise of its discretion, refuse to order
separation. Crucially in deciding whether to grant the order or not the court has a
discretion which must be exercised judiciously. The court cannot simply grant
such an application because it is unopposed. I regret to say that the court below
failed in this respect. See Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA)
para 3.

[21] Based on the conclusions made above, I make the following order:
1.
The appeal is allowed to this extent:
(a)
The order of the court below is set aside.
(b)
The appellants are ordered to pay the costs of the hearing of the issues
which were separated in terms of rule 33(4), jointly and severally.

2.
The matter is referred back to the court below for trial.

3.
The appellants are ordered to pay the costs of appeal jointly and severally.

___________________
L O BOSIELO
JUDGE OF APPEAL

HEHER JA:

[22] In Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 536A-C
this Court held that, generally speaking, a non-appealable decision (ruling) is
a decision which is not final (because the court of first instance is entitled to
alter it), nor definitive of the rights of the parties nor has the effect of disposing
off at least a substantial portion of the relief claimed in the main proceedings.

[23] Because I am of the view that, at least, the second and third legs of
that dictum apply to the present matter, it follows that I would strike the appeal
from the roll with costs. My reasons are, in brief, as follows.

[24] The application under rule 33(4) should neither have been made nor
granted. The separation of the issues as formulated was a hypothetical
exercise. The plaintiff’s case was not dependent on the meaning of the
alleged defamatory words construed in isolation. His case was that the words,
in the context in which they were spoken and heard, were intended and
understood as defamatory of him. That was a perfectly acceptable way of
pleading.1 The defendant took no exception to it.2 The proof of the plaintiff’s
allegation depended on the evidence which he adduced of the ‘context’, which
he identified in his particulars of claim as relating to ‘the meeting’, the
‘plaintiff’s position in the meeting’ and ‘the first defendant’s behaviour towards
the plaintiff’. Within those limits the plaintiff was free to prove facts which
conduced to a defamatory intention and understanding in the words he
attributed to the first defendant, the final decision being that of the court.3

[25] But the rule 33(4) application attempted to have the case decided
without evidence, not as an exception taken at the beginning of the trial, but
simply as a preliminary question to be answered. Because of the manner of
pleading of the plaintiff’s case the answer to

1 Because the plaintiff, having pleaded ambiguous language, was, in effect relying on a
context which lifted his words out of the non-defamatory sense and tinged them with the
colour of defamation; and cf Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) at
566F-H.
2 Indeed he would have been hard-pressed to argue such an exception in the light of the
authorities referred to by this Court in Coulson v Rapport Uitgewers (Edms) Bpk 1979 (3) SA
286 (A) at 294B-295H.
3 Sutter v Brown 1926 AD 155 at 166 in fine – 167.

the question was an irrelevance that carried the trial nowhere. The defendant
was wholly responsible for the application and his counsel’s submission to us
that the plaintiff should have opposed the application does not mitigate his
culpability.

[26] The fact that the learned judge erred in arriving at his conclusion by
assuming that the context had been proved and was such as to imbue the
words with a defamatory meaning, does not mean that his final word has been
expressed on the pleaded issues. Once such evidence as the parties may
wish to place before the court has been considered and the context, if any,
established, a proper appraisal can be undertaken of the real issues.

______________

J A Heher

Judge Of Appeal

APPEARANCES:

For appellant:

J W G Campbell SC

Q R Mashabane

Instructed by:

Bell Dewar Inc

c/o Kgomo, Mokhetle & Tlou, Mafikeng

Webbers, Bloemfontein

For respondent:

B P Geach

Instructed by:

Moloto Weiss Inc

c/o Smit Stanton Inc, Mafikeng

Lovius-Block Inc, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
1 April 2010

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

MOLOTLEGI v MOKWALASE(222/09) [2010] ZASCA      (1 April 2010)

The Supreme Court of Appeal upheld the appeal by the appellants Kgosi Leruo
Molotlegi of the Royal Bafokeng Nation and the Royal Bafokeng Administration
from a judgment of the Mmabatho High Court (Mogoeng JP), which had granted
judgment in favour of the respondent, Mr Mosoko Mokwalase. Mr Mokwalase, was a
team leader of the VIP Protection Team of the Royal Bafokeng Nation. At a protocol
and security meeting attended, inter alia, by Kgosi Molotlegi, Mr Mokwalase and
members of the protocol and security, Kgosi Molotlegi said to Mr Mokwalase:
'Mokwalase, you are fired. I don't want to see you again on my premises. You can
excuse yourself.'

Mr Mokwalase issued summons against Kgosi Molotlegi and the Royal Bafokeng
Administration alleging that he was defamed by the utterances. The court below
ordered separation of issues in terms of rule 33(4). When the trial resumed before
Mogoeng JP, the learned Judge President found that the words uttered were
defamatory per se without any evidence of the special circumstances surrounding the
utterances referred to above to prove the innuendo relied upon by Mr Mokwalase
being led.

The Supreme Court of Appeal found that the learned Judge President erred in finding
that the words per se, without any evidence of the special circumstances, were
defamatory. The SCA set aside the judgment of the court below and referred the

matter back to the court below for trial. Given the peculiar circumstances of this
matter and the role played by the appellants in having the wrong issue decided by the
court below, there, being no blame to attribute to Mr Mokwalase, the SCA found that
it would be unfair and unjust to mult him with any costs.

Accordingly the appeal was granted but the appellants were ordered to pay the costs.