Flusk and Another v Berg (A3021/2013) [2013] ZAGPJHC 248 (17 October 2013)

Flusk and Another v Berg (A3021/2013) [2013] ZAGPJHC 248 (17 October 2013)

The appeal was dismissed as the magistrate correctly found that the first defendant, despite acting in his official capacity, was personally liable for the defamatory statement made about the plaintiff. The statutory protection under s 176(1) of the Municipal Finance Management Act was not applicable, as the defendant failed to show he acted in good faith or that the meeting fell within the scope of the Act. The evidence of Mr Leibrandt was properly admitted, meeting all common-law requirements for refreshing memory from documents and minutes. The plaintiff proved publication of the defamatory statement, which was understood as imputing criminal conduct to him. The presumption of animus...

Citation
[2013] ZAGPJHC 248
Parties
Appellant: Patrick Flusk; Appellant: Ekurhuleni Metropolitan Municipality; Respondent: Izak Berg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 October 2013
Case Number
A3021/2013
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal dismissed with costs.
Judges
Wepener, Kubushi
Legal Topics
Defamation, Vicarious Liability, Animus Injuriandi, Admissibility of Evidence, Quantum of Damages
Delict Civil Procedure Defamation Vicarious Liability Animus Injuriandi Admissibility of Evidence Quantum of Damages

Case Brief

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Parties

Patrick Flusk

Appellant

Ekurhuleni Metropolitan Municipality

Appellant

Izak Berg

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the magistrate erred in dismissing the special plea that the plaintiff had no locus standi and in not upholding statutory protection under s 176(1) of the Municipal Finance Management Act.
  2. 2 Whether the evidence of the witness, Mr Leibrandt, was impermissibly admitted after refreshing his memory from documents and minutes.
  3. 3 Whether the plaintiff proved publication of the defamatory statement and that it was of and concerning him.

Ratio Decidendi

The appeal was dismissed as the magistrate correctly found that the first defendant, despite acting in his official capacity, was personally liable for the defamatory statement made about the plaintiff. The statutory protection under s 176(1) of the Municipal Finance Management Act was not applicable, as the defendant failed to show he acted in good faith or that the meeting fell within the scope of the Act. The evidence of Mr Leibrandt was properly admitted, meeting all common-law requirements for refreshing memory from documents and minutes. The plaintiff proved publication of the defamatory statement, which was understood as imputing criminal conduct to him. The presumption of animus...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.