THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 62/05
Reportable
In the matter between:
NATIONAL EDUCATION, HEALTH AND ALLIED
WORKERS UNION
1st Appellant
ISAAC MOITHERI MATHYE
2nd Appellant
and
KEGOMODITSWE EUPHODIA TSATSI
Respondent

Coram:
HARMS, CAMERON, NUGENT, JAFTA JJA and
NKABINDE AJA
Heard:
14  November 2005
Delivered:
1 December 2005
Summary:
Defamation – whether words in report that respondent ‘embraces fraudsters’
and ‘unleashes unprecedented harassment’ against staff is defamatory  –
Defences – qualified privilege  – whether available to the appellants –
whether appellants vicariously liable for re-publication of report.

JUDGMENT

NKABINDE AJA:

[1] The respondent (plaintiff) instituted an action against the
appellants in the Johannesburg High Court claiming damages for
defamation in the sum of R250 000. The court a quo (Joffe J) found the
statements forming the basis of the claim to be defamatory in two respects,
and awarded damages in the sum of R50 000.
[2] The first appellant is the National Education, Health and Allied
Workers Union (‘NEHAWU’), a registered trade union. It has members
who are employed at the Johannesburg Magistrates’ Court. It was sued on
the basis that it was vicariously liable for defamatory statements made by
its branch secretary, the second appellant, a senior interpreter at that court.
The respondent is an advocate employed there as the manageress. Her
duties entailed, among other things, dealing with labour matters. She had
had various clashes with NEHAWU from the time of her appointment in
February 2002.

[3] On 28 June 2002 NEHAWU held a general meeting of its
members at the court. The second appellant prepared a report which was
distributed to members in attendance at the meeting. Later on certain staff
members who were not members of NEHAWU (including the plaintiff and
one Mr Molefe) received copies of the report. For the most part the report
dealt with matters relating to labour relations (eg outstanding disciplinary
matters, training issues, unilateral management decisions). These had
formed the subject of protracted and intense exchanges and negotiations
between management and NEHAWU. Even though the statements were
found to be defamatory in only two respects, it is useful to set out the full
text of the portions against which complaint was made:
(a) ‘The management headed by Ms Tsatsi is refusing to give us their plan, saying that it
is privilege[d] information and it cannot be given to us. How strange ?’
(b) ‘Empty promises under the leadership of Ms Tsatsi has been made in order to
expedite the training process or else to have an independent person to come and tell the

management that their kind of practice is cleft as “Residual Unfair Labour
Practice” we declared also another dispute in this regard; the administration of the office
is in bad shape than that in the era of Mr Bashe. If you compare the present dispensation
with that of Mr Bashe, one can safely say Mr Bashe was doing very well in rooting out
corrupt officials instead of embracing them (fraudsters).
(c) ‘There is unprecedented harassment unleashed against General Assistants, Casual
Interpreters, Permanent Interpreters, Stenographers and Administration.  Literally the
whole office is under siege since the arrival of the new office manager.’
(Emphasis added.)
[4] The plaintiff contended that the report was widely distributed by the
second appellant, that the statements italicised were defamatory of her in
that they imputed, and were intended by the appellants to impute and were
understood by persons to whom they were distributed to mean that she is a
liar, fraudster who connives with fraudsters, is corrupt, without moral fibre,
is dishonest, and intimidated and harassed employees at the court. She

pleaded further that the statements also carried the additional sting that
she is manipulative, vindictive and abused her power.
[5] The appellants denied that the statements were defamatory and,
pleaded, alternatively, that they were protected by qualified privilege.
[6] Apart from the quantum, the issues at the hearing narrowed down to
the following:
(a) whether the statements were defamatory ;
(b) if so, whether they were protected by qualified privilege ; and
(c) whether the appellants were liable for the re-publication of the report
outside NEHAWU’s general meeting.
[7] The learned judge a quo held that the statements were defamatory.
He concluded that qualified privilege did not cover the publication to
individuals who were not members of NEHAWU, and that the appellants

were liable as they had failed to take steps to preclude the further
publication of the report. With the leave of this court the appellants appeal
against that order.
I deal with the issues in turn.
[8] The test whether the statements are defamatory is an objective one -
whether the statements complained of tend to lower the plaintiff in the
estimation of the ordinary reader of the report. As was stated in Johnson v
Beckett and another 1992 (1) SA 762 (A) at 773C-E a court,-
‘construes the words in their context, and considers what meaning they would convey to
ordinary reasonable persons, having regard to the sort of people to whom the words
were or were likely to be published . . . “the average ordinary reader of that
newspaper”;. . . . The kind and quality of the readership is relevant, since it is as much
part of the context in which the alleged defamation occurs as the other words contained
in the article are.’

[9] The words that the plaintiff ‘embraces fraudsters’ and ‘unleashes
unprecedented harassment’ against staff members are, it would seem, used
not only figuratively but also in hyperbole. To say of a person that she
embraces fraudsters suggests, in my view, that she colludes with and/or
condones fraudsters’ activities which in itself tarnishes the person and
discredits her in her social and professional standing. Whether the same
may be said of the accusation that a person, in a managerial position as is
the plaintiff, ‘harasses’ staff is questionable. I would however add that,
given the content and the tone of the report, any such defamation was
slight.
[10] Having so found, the next question for consideration is whether the
statements were protected by qualified privilege. When making the
assessment it is convenient to deal, first, with the publication of the report
at the meeting and, second, with re-publication outside the meeting. It is
not in dispute that the second appellant disseminated the report to the

members of NEHAWU present at the meeting. To establish privilege
the appellants were required to show that the second appellant and
NEHAWU members had a reciprocal right and duty to make and receive
the report and the defamatory statements were relevant or germane and
reasonably appropriate to the occasion.1 The immunity would be forfeited
if it is established that the second appellant acted with an improper motive,
but that does not arise here because it was not raised as an issue on the
pleadings.
[11] One of the recognised occasions that enjoys the benefit of the defence
is an occasion where the statements were published in the discharge of a
duty or exercise of a right. The facts in this case illuminate the instrumental
function of freedom of expression in labour relations. O’Regan J2 has

1 See the authorities cited in FDJ Brand ‘Defamation’ 7 Lawsa  2 ed  para 250.
2 South African National Defence  Union v Minister of Defence and Another  1999 (4) SA 469 (CC) at 477 para [7].

pointed out, regarding trade unions, that ‘[t]he Constitution recognises
that individuals in our society need to be able to hear, form and express
opinions and views freely on a wide range of matters’. She stated3 that-

‘As Mokgoro J observed in Case and Another v Minister of Safety and Security
and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC)
… in para [27], freedom of expression is one of a ‘web of mutually supporting rights’ in
the Constitution. It is closely related to freedom of religion, belief and opinion (s 15),
the right to dignity (s 10), as well as the right to freedom of association (s 18), the right

See too s 23 of the Constitution. See also Thomas v Collins 323 US 516 (1945) about the instrumental
function of freedom of expression in labour relations. In that case Justice Rudledge, delivering the
opinion of the Court stated (at 532) that ‘in the circumstances of our times the dissemination of
information concerning facts of labor disputes must be regarded as within that area of free discussion that
is guaranteed by the Constitution. … Free discussion concerning conditions in industry and the causes of
labor disputes appear to us indispensable to the effective and intelligent destiny of modern industrial
society.’  McLachlin CJC and Lebel J in Pepsi-Cola Canada Beverages (West) Ltd. v R.W.D.S.U., Local
558, (2002)  208 D.L.R. (4th)  386  remarked at para [33] that ‘[f]ree expression is particularly critical in
the labour context. … For employees, freedom of expression becomes not only an important but an
essential component of labour relations’. I consider that  these remarks similarly apply in the
circumstances of our times in our country.
3 At 477 para [8].

to vote and to stand for public office (s 19) and the right to assembly (s 17).
These rights taken together protect the rights of individuals not only individually to
form and express opinions, of whatever nature, but to establish associations and groups
of like-minded people to foster and propagate such opinions. The rights implicitly
recognise the importance, both for a democratic society and for individuals personally,
of the ability to form and express opinions, whether individually or collectively, even
where those views are controversial. The corollary of the freedom of expression and its
related rights is tolerance by society of different views. Tolerance, of course, does not
require approbation of a particular view. In essence, it requires the acceptance of the
public airing of disagreements and the refusal to silence unpopular view.’
[12] The question whether the statements were relevant to the occasion
involves essentially a value judgment. The correct approach is set out by
Smalberger JA in  Van der Berg v Coopers & Lybrandt Trust (Pty) Ltd and
Others 2001 (2) SA 242 (SCA). He stated4 that:

4 at 254  para [26].

‘the concept of relevance under discussion is, …essentially a matter of reason
and common sense, having its foundation in the facts, circumstances and principles
governing each particular case. The words of Schreiner JA in R v Matthews and Others
1960 (1) SA 752 (A) at 758A that “relevancy is based upon a blend of logic and
experience lying outside the law” have particular application in a matter such as the
present, even though they were said in the context of evidential relevance (cf Hoffmann
and Zeffertt The South African Law of Evidence 4th ed at 21). The assessment of
whether a defamatory statement was relevant to the occasion to which it relates is
therefore essentially a value judgment in respect of which there are guiding principles
but which is not governed by hard and fast rules. And in arriving at that judgment due
weight must be given to all matters which can properly be regarded as bearing upon it.’
[13] Here, the second appellant, as the branch secretary of NEHAWU,
had a right to make allegations and impart the information concerned to

NEHAWU members and that the latter had a reciprocal right to
receive it. That right is underlined by the provisions of s 235 of the
Constitution.
[14] The appellants contended that the statements were relevant to the
labour matters in respect of which they had the right and duty to report to
their members. It was contended on behalf of the plaintiff that the
statements were untruthful and not relevant to the issues discussed at the
meeting ‘to advance any of their objective goals’. Their relevance cannot
be disputed. In any event as Corbett JA6 has stated, the truthfulness or
otherwise of the statements has no bearing on whether they were germane
to the occasion or not.

5 Which entitles, inter alia, a trade union to determine its own administration, programmes and
activities, to organise and engage in collective bargaining and the worker to form, join and participate in
the trade union activities and programmes.

6 In Borgin De Villiers & Another 1980 (3) SA 556 (A) at 578H-579A.

[15] As I have already indicated, the court a quo rejected the
defence of privilege on the basis that the publication was not limited to
NEHAWU members thereby finding that the appellants re-published the
statements to non members. There is however no proof that the second
appellant or any of the employees of NEHAWU was directly responsible
for such re-publication.
[16] As to whether the appellants were liable for the re-publication, there
can be no doubt that one or more of NEHAWU members present at the
meeting might have re-published the report to non-members (including the
plaintiff and Mr Molefe). There is however no evidence to show that the
appellants authorised or were otherwise responsible for the re-publication
of the report.  On that basis they cannot be held liable for the wrongs
committed by their members without their authorisation. The court a quo
found, however, that the appellants should have taken steps to preclude the
re-publication, thereby implying, first, that they acted negligently in failing

to take steps to prevent such re-publication. It bears note that the
plaintiffs claim was not based on negligence. Moreover, the plaintiff has
not shown what steps the appellants ought to have taken or second, that
they were vicariously liable for the conduct of those who might have
disseminated the statements – there is no evidence to suggest that a
relationship of an employer – employee or principal – agent existed for the
appellants to be held so liable. The finding by the court a quo is therefore,
with respect, without legal basis and places an undue burden on the
appellants. For these reasons the plaintiff’s claim ought to have been
dismissed with costs.
[17] In the result the following order is made:

(a)   The appeal is upheld with costs.
(b)   The order of the court a quo is set aside and replaced with the following:

“The plaintiff’s claim is dismissed with costs.”

________________

NKABINDE AJA
CONCUR:
HARMS JA
CAMERON JA
NUGENT JA
JAFTA