Herselman NO v Botha (623/91) [1993] ZASCA 144; 1994 (1) SA 28 (AD); [1994] 1 All SA 420 (A) (28 September 1993)

Herselman NO v Botha (623/91) [1993] ZASCA 144; 1994 (1) SA 28 (AD); [1994] 1 All SA 420 (A) (28 September 1993)

The Supreme Court of Appeal held that Botha's statements at the council meeting were defamatory of Jonker, imputing corrupt and irregular conduct. Although the meeting was a privileged occasion, the statements were not relevant to the subject matter under discussion, which was the recommendation regarding Bradley's employment following his conviction for possession of pornographic material. Botha extended his remarks beyond Bradley's conduct to accuse Jonker and other councillors of dishonesty, which was not germane to the meeting's purpose. Both objective and subjective tests for relevance were applied, and Botha failed to demonstrate that his statements about Jonker were necessary or...

Citation
[1993] ZASCA 144
Parties
Appellant: S.W. Herselman NO (executor of the estate of the late Ismael Jonker); Respondent: Barend Mattheus Botha
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1993
Case Number
623/91
Procedural Posture
Civil Appeal / Appeal From Full Bench of Eastern Cape Division
Outcome
Appeal upheld; order of the full bench set aside.
Judges
Joubert, Van Heerden, Vivier, Kumleben, Harms
Legal Topics
Defamation, Privileged Occasion, Malice, Relevance of Statement
Delict Defamation Privileged Occasion Malice Relevance of Statement

Case Brief

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Parties

S.W. Herselman NO (executor of the estate of the late Ismael Jonker)

Appellant

Barend Mattheus Botha

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Eastern Cape Division

Legal Issues

  1. 1 Whether the words spoken by Botha at the council meeting were defamatory of Jonker.
  2. 2 Whether the occasion was privileged and if the statements fell within the scope of privilege.
  3. 3 Whether Botha acted with malice (mala fides) in making the statements.

Ratio Decidendi

The Supreme Court of Appeal held that Botha's statements at the council meeting were defamatory of Jonker, imputing corrupt and irregular conduct. Although the meeting was a privileged occasion, the statements were not relevant to the subject matter under discussion, which was the recommendation regarding Bradley's employment following his conviction for possession of pornographic material. Botha extended his remarks beyond Bradley's conduct to accuse Jonker and other councillors of dishonesty, which was not germane to the meeting's purpose. Both objective and subjective tests for relevance were applied, and Botha failed to demonstrate that his statements about Jonker were necessary or...

Court Disposition

Appeal upheld; order of the full bench set aside.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is replaced with: 'The appeal is dismissed with costs.'