LABOUR – Dismissal – Covid testing
Wilfully endangering safety of others employees – Returning to work while awaiting results of test – Employees received orientation after outbreak of covid – Commissioner finding dismissal substantively and procedurally unfair – Gravity of employee’s misconduct at time of its commission should not have been underestimated – Cannot be unfair to dismiss an employee who knowingly and deliberately exposes others at workplace to deadly virus – Arbitration award reviewed and set aside.
Facts: The employee was a tow truck driver at DHL and he fell in during July 2020. As his health condition did not improve, he took a test for Covid-19. When he reported for duty he could not get access and was told to go to the clinic. According to DHL there was an unpleasant incident at the clinic resulting in the employee spitting. He was dismissed following a disciplinary hearing for wilfully endangering the safety of others (and for spitting in the clinic nurse’s face while being examined).
Application: For review of the findings of the Commissioner at the CCMA. At arbitration, DHL intimated that the spitting part of the dispute would not be pursued. The Commissioner’s reasoning for finding the dismissal substantively unfair was that DHL failed to discharge the onus of proving that the employee had breached a rule punishable by dismissal. His basis for finding the dismissal procedurally unfair was that the charge preferred could not easily be understood by the employee.
Discussion: That the employee was notified of the allegations against him and afforded an opportunity to state a case and answer those allegations; whether he was aware of the workplace rule that he had to self-isolate after he had undergone a Covid-19 test until he received the results; the contention that he put the lives of other employees at risk by going to work while he awaited the results; the evidence of the orientation of the employees after the outbreak of Covid-19; and that the name of the employee and his supervisor appeared on the Covid-19 training awareness attendance register.
Findings: When the employee when to work before receiving his results he suspected that he had contracted the Covid-19 virus and knew that his presence at work could endanger others. He was in contact with a security guard and a nurse where DHL had an obligation to provide a safe working environment. The gravity of the employee’s misconduct at the time of its commission should not have been underestimated by the Commissioner. It cannot be unfair to dismiss an employee who knowingly and deliberately exposes others at the workplace to a deadly virus. The employer may dismiss an employee for committing misconduct when that employee should reasonably have known that the conduct constituted dismissible misconduct.
Order: The arbitration award is reviewed and set aside and substituted with an award finding that the dismissal of the employee was substantially and procedurally fair. There is no order as to costs.
CRIMINAL – Private prosecution – Abuse of process
Orders setting aside summonses and interdicting private prosecution – Mr Zuma seeking to appeal orders – Execution order made pending appeal – Zuma’s automatic right of appeal – Abuse of process and Stalingrad tactics discussed – Private prosecution part of Stalingrad strategy and without any foundation in fact or law – Respondents appearing as accused persons in an abusive private prosecution will compromise public confidence in administration of justice – Appeal dismissed with costs – Superior Courts Act 10 of 2013, s 18(4)(ii).
Facts: Mr Zuma, the former President of this country, is facing multiple charges of corruption, fraud, racketeering and money laundering. He first appeared in court in relation to those charges in 2005 and his trial has still not commenced. Throughout this period, Mr Downer has served as the lead prosecutor for the National Prosecuting Authority. In September 2022, Mr Zuma instituted a private prosecution against the respondents, Mr Downer and Ms Maughan, a senior legal journalist, who has been reporting on the criminal investigation, his criminal indictment and the numerous legal challenges and proceedings for well on 20 years.
Application: A specially constituted court of three judges set aside the criminal summons against the respondents, interdicted the private prosecution and ordered Mr Zuma to pay costs on a punitive scale (the main judgment). Mr Zuma applied for leave to appeal the main judgment, which was dismissed by the High Court. Both respondents applied to the High Court for an order that the setting aside of the private prosecution is to remain in force pending the outcome of any appeal against the main judgment. The High Court made such an order. Exercising his automatic right of appeal under section 18(4)(ii) of the Superior Courts Act 10 of 2013, Mr Zuma filed a notice of appeal with this court against the execution order.
Discussion: That the respondents contend that Mr Zuma has engaged in an unremitting campaign to delay the commencement of his criminal trial and that to allow the proposed private prosecution (which is described as a sham and an abuse) to proceed would mean that he would be allowed to succeed in his strategy of delay; that Wallis JA has explained that “Stalingrad defence” has become a term of art in the armoury of criminal defence lawyers; that the facts demonstrate that the private prosecution of Mr Downer is an abuse of the process of the court, for multiple reasons; and that Ms Maughan characterises her private prosecution as one that has been brought by a powerful former President against a journalist (who has been reporting on his legal troubles in a manner that displeases him), which will have a chilling effect on her journalistic freedom and press freedom more widely.
Findings: The private prosecution is part of the “Stalingrad strategy” announced by Mr Zuma’s counsel over a decade and a half ago. The harm asserted by the respondents is real. The private prosecution is without any foundation in either fact (Mr Downer did not disclose Mr Zuma’s doctor’s report to Ms Maughan and there was no breach of confidentiality or privacy) or law (no cognisable offence has been committed, even if all of the facts alleged by Mr Zuma are true). The respondents appearing as accused persons in an abusive private prosecution will undeniably compromise public confidence in the courts and the administration of justice. It is hard to resist the conclusion that this appeal is itself an abuse of process.
Order: The appeal is dismissed with costs, including two counsel, to be paid on the attorney and client scale.
PONNAN JA (MOLEMELA P, SALDULKER JA, MOCUMIE JA and MOTHLE JA concurring)
CIVIL LAW – Defamation – Apology and retraction
Municipal councillors and members of political party – Publication of defamation very wide in media and made by leader of political party – Defamation had far-reaching effects upon plaintiffs’ professional and personal lives and resulted in financial detriment – Apology and retraction in electronic newsletter not undoing damage – Second apology tendered just prior to commencement of trial – Awards of R100,000, two of R120,000 and one of R135,000.
Facts: The plaintiffs resigned both as members of the municipal council of the City of Cape Town where they had served as municipal councillors and the Democratic Alliance (DA). The defendant was the federal leader of the DA at the time, as well as the leader of the opposition in Parliament. A report compiled at the Council’s behest, known as the Bowman’s Report pertained to the alleged misconduct of certain municipal officials and councillors within the City. The defendant made a public statement to journalists to the effect that the plaintiffs’ resignations were not surprising, as the plaintiffs were implicated in the Bowman’s Report in covering up corruption in the City. The defendant stated that the report “made serious findings against those people. They must be investigated.” The defendant also published an electronic newsletter, known as Bokamoso, in which the report was discussed.
Application: The plaintiffs each instituted action against the defendant for defamation under a separate case number. As the actions arose from the same events they were subsequently consolidated. Shortly before the commencement of the trials, the defendant tendered an apology and a full retraction of the statements in one publication of the Sunday Times newspaper and on the TimesLive website. The tender included an offer to pay each plaintiff the sum of R35,000 as compensation, plus costs on the appropriate magistrate court’s scale. The plaintiffs rejected the apology and the tender as being “too little, too late”.
Discussion: That the defendant concedes that the defamation was serious and accepts that, prior to the making the statements, the plaintiffs were respected local politicians and public figures in their respective communities; the contention by the defendant that the impact of the defamation was short-lived because the plaintiffs themselves, amongst others, made sure that the world knew the truth; how the plaintiffs each testified about the impact that the defamatory statements had on them; and the argument by the defendant that the reasonable person following the media’s reporting on the incident would invariably have concluded that the plaintiffs were not named nor implicated in the Bowman’s Report.
Findings: An apology and retraction were made in the second Bokamoso letter and that that is what the media reported. But the rest of the newsletter yet again referred to the plaintiffs in defamatory terms. The apology in the newsletter served no purpose in undoing the damage done to the plaintiffs. The second apology, the one tendered just prior to the commencement of the trial, is comprehensive, but it came exceedingly late in the day. The defendant must have known that the plaintiffs were not implicated in the unlawful conduct he attributed to them. He had no reason to believe that they were ever dishonest. The publication of the defamation was very wide, and in several languages, across South Africa, as well as to an international audience of readers. The defamation had far-reaching effects upon the plaintiffs’ professional and personal lives. It also resulted in financial detriment to the plaintiffs after funding for their new political party and private business ventures proved difficult.
Order: The defendant shall pay damages in the sums of R100,000 to Mr August, R120,000 to Ms Little, R135,000 to Mr Barnado and R120,000 to Mr Stemele and costs of suit (on the High Court scale) on the scale as between attorney and client.
VAN ZYL AJ
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