CIVIL LAW – Defamation – Rape complaint – Whether three statements Daily Sun published on basis of confidential source’s tip-off were defamatory – Rape complainant’s interest in confidentiality will generally weigh against reporting facts of complaint and identity of suspect at a very early stage of investigation – Sting of defamatory statements is that a complaint to police was made that Dr Ndlozi raped someone – Failure to demonstrate public benefit – Publication of statements was defamatory and unlawful.
Facts: Mr Manayetso, a journalist, received a tip-off from a confidential source within the police. The tip-off was that the applicant, Dr Ndlozi, had been named in a rape complaint. The source told Mr Manayetso that, in the complaint, a woman had said that Dr Ndlozi raped her. The source also supplied Mr Manayetso with several further details, culled from the woman’s statement, that appeared in a story published in the Daily Sun later that day under Mr Manayetso’s by-line.
Application: Dr Ndlozi seeks a declaration that each of the three impugned statements was unlawful and defamatory. At issue is whether the statements were defamatory, and if they were, whether the statements were nonetheless lawful because they were true and it was for the public benefit that they be published.
Discussion: The first statement is a billboard, under the Daily Sun banner, which reads “Mbuyiseni Ndlozi Raped Me!”. The billboard was published in hardcopy, and attached to lampposts in Johannesburg, one of which Dr Ndlozi saw on Jan Smuts Avenue. The second statement is Mr Manayetso’s article itself. The article sets out the portions of the complainant’s statement to SAPS as relayed to Mr Manayetso by the confidential source. The unfortunate impression is created that the article is quoting directly from the statement. The gist of the third statement is not directly concerned with Dr Ndlozi. The third statement takes aim at one part of the SAPS statement on the original story.
Findings: The publication of the fact that a person has been reported to the police for rape is defamatory because it will clearly tend to lower the person accused of rape in public esteem. The first and the second impugned statements are defamatory. The sting of both statements is the fact of the complaint against Dr Ndlozi. However, the third impugned statement is not defamatory since it had no such sting. Any public benefit derived from reporting the fact of the complaint against Dr Ndlozi was outweighed by the public interest in keeping the complaint private at the very early stage of an investigation at which it was reported. The respondents failed to demonstrate that the first and second impugned statements were published for the public benefit.
Order: The publications annexed to the applicant’s notice of motion are declared to be unlawful and defamatory. The first respondent is directed to remove the unlawful and defamatory statements from all its media platforms.
PROFESSION – Advocate – Accepting briefs from public – Defence that his administrators accepted the money without his approval – Counsel cannot avoid accountability by hiding behind conduct of those that assist them in practice – Obstructive and abusive attitude instead of dealing with allegations against him – Misconducted himself repeatedly and egregiously – Not a fit and proper person to be a legal practitioner – Removed from the roll – Legal Practice Act 28 of 2014, s 34.
Facts: Ms Nkala formally complained to the Legal Practice Council (LPC) because she paid Mr Mkhize on three occasions and he failed to assist her. Despite employing Mr Mkhize to represent her and having paid him, she lost her home which her grandmother had left to her. Five additional complaints were received that Mr Mkhize, who practices as an advocate, has accepted instructions directly from the public.
Application: By the LPC to suspend Mr Mkhize, alternatively, to strike him from the roll of legal practitioners. The second application is a review application launched by Mr Mkhize seeking to review and set aside the LPC’s decision to launch the proceedings.
Discussion: How the hearing commenced with Mr Mkhize wearing a senior counsel’s robe and counsel for the LPC pointed this out and contended that it is a fraud on the court to represent oneself as a senior counsel when one is not; the misconduct that Mr Mkhize has failed to practice as a referral advocate; the LPC’s central allegation that Mr Mkhize accepted instructions and deposits from clients directly without an attorney and that this is in contravention of section 34 of the Legal Practice Act 28 of 2014; that in addition, he is accused of engaging with his opponents and writing letters on behalf of his clients; his defence that his administrators accepted the money without his approval; and that counsel cannot avoid accountability by hiding behind the conduct of those that assist them in practice.
Findings: Mr Mkhize attacked the institution of the LPC instead of addressing the allegations brought against him and his obstructive and abusive attitude has persisted to the end. Mr Mkhize has treated the orders of this court with contempt. He makes false allegations in open court and there is concern with his false allegation that he had received his letters patent when he had not. Mr Mkhize has misconducted himself, repeatedly and egregiously. The court concludes that Mr Mkhize is not a fit and proper person to be a legal practitioner. The victims of his conduct were members of the public relying on him for assistance in moments of desperate need. Many of the complaints were elderly women, three of them over the age of 60.
Order: Advocate Senzo Wiseman Mkhize is removed from the roll of legal practitioners.
DE VOS AJ (MBONGWE J concurring)
LABOUR – Dismissal – Alcohol test – Employee twice failing alcohol test but disciplinary proceedings delayed for both incidents – Final written warning and later dismissal taking place after both incidents – Purpose of final written warning is to deter recurrence of misconduct – Had employer acted promptly on first incident the final written warning would have served as a warning that a repeat would result in dismissal – Commissioner finding dismissal unfair – Application for review of award dismissed.
Facts: Mr Mabizela (the employee) commenced work at Tiger Brands in 2007 and at the time of his dismissal was employed as an operator of heavy machinery at their plant in Germiston. He was also a shop steward. Tiger Brands had a zero-tolerance policy for employees testing positive for, inter alia, alcohol. The policy provides that being under the influence is serious misconduct which will normally result in summary dismissal. In January 2019 the employee was sent home because he tested positive for alcohol. In April 2019 he was again sent home due to a positive result. A disciplinary hearing months later resulted in a final written warning for the first incident and another hearing for the second incident resulted in his dismissal.
Application: Tiger Brands seeks to review and set aside the award at the CCMA which found that the dismissal was unfair. The commissioner found that the sanction of dismissal was too harsh and imposed the sanction of final written warning instead, coupled with limited backpay.
Discussion: The concerns of the commissioner at the delays in both disciplinary proceedings; that the employee was allowed to continue working until his dismissal; the contention by Tiger Brands that there was no proper basis to conclude that, absent the final written warning, the employee did not know what standard was expected of him and the consequences of a further breach to the zero-tolerance to alcohol rule; that the concern of the commissioner was that the final written warning for the first incident was issued after the second incident had already occurred; and that after the first incident the employee was subjected to daily testing whereas other employees were being subjected to random tests only.
Findings: The commissioner’s observation that the disciplinary process was grossly managed is a reasonable conclusion. The delay here was seven months to conclude the first matter and some six months to conclude proceedings for the second incident. Tiger Brand’s conduct in waiting months to institute disciplinary proceedings was inconsistent with the submission that the misconduct was regarded as serious and which attracted the sanction of summary dismissal. The fact that the employee was subjected to daily tests following the first incident did not have the effect that he knew he would be dismissed if another test came back positive. While it is correct that the employee now has two written warnings for the same misconduct, Tiger Brands has only itself to blame for that state of affairs. Had it acted promptly on the first incident, the final written warning would have served as a warning that a repeat would result in dismissal.
Order: The review application is dismissed. There is no order as to costs.
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