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South Africa Judgment

North Gauteng High Court, Pretoria

Mabuza v Phosa (8018/2015) [2017] ZAGPPHC 139 (5 May 2017)

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01

Holding and result

The court found that the plaintiff failed to discharge the onus of proving, on a balance of probabilities, that the defendant authored or participated in the creation of the Spy Report. The only witness relied upon by the plaintiff, Jan Venter, was found to be a self-confessed liar whose evidence was inconsistent, unreliable, and lacking credibility. The defendant, on the other hand, was considered a credible and impressive witness, and his version was supported by the inherent probabilities and the circumstances of the case. The court accepted that the defendant acted within the bounds of qualified privilege when forwarding the document to ANC leadership, and there was no credible evidence of malice or improper motive. Consequently, the plaintiff's claim for defamation could not succeed, and the action was dismissed.

Court disposition

Plaintiff's claim dismissed with costs on the scale as between attorney and client.

Orders

  • The plaintiff's claim is dismissed.
  • The plaintiff is ordered to pay the defendant's costs on the scale as between attorney and client.

02

Material facts

Parties

David Dabede Mabuza

Plaintiff Counsel: E C Labuschagne SC

Dr Mathews Phosa

Defendant Counsel: M C Maritz SC

Amounts and remedies

  • Damages Claimed by Plaintiff (initial): ZAR 10,000,000
  • Damages Claimed by Plaintiff (final Argument): ZAR 1,000,000
  • Settlement Amount Paid by Venter to Defendant: ZAR 10,000

03

Procedural history

  1. Posture

    Civil Trial / Final Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The plaintiff alleged that the defendant authored, fabricated, and distributed the Spy Report with the intention to defame him, particularly within the ANC, and sought damages of R10 million (later reduced to R1 million), a public apology, and costs on a punitive scale. The plaintiff argued that the document was a fabrication intended to discredit him and remove him from his position as Provincial Leader and Premier of Mpumalanga. The plaintiff relied on the testimony of Jan Venter, who claimed to have witnessed the defendant creating the report, and asserted that the defendant acted with malice and outside the bounds of qualified privilege.
Respondent
The defendant denied authoring or fabricating the Spy Report, stating that it was anonymously delivered to his residence and that he merely forwarded it to the appropriate ANC leadership for investigation, acting within his rights and duties as a senior ANC member. The defendant argued that the communication was made on a privileged occasion, without malice, and that he had no knowledge of further dissemination. The defendant challenged the credibility of the plaintiff's sole witness, Jan Venter, highlighting inconsistencies and admissions of dishonesty, and contended that the plaintiff failed to discharge the onus of proof.

05

Court’s reasoning

  1. 01

    Amler's Precedents of Pleadings, 8th edition, p163

    Qualified privilege applies if defamatory words are published in the discharge of a duty or exercise of a right to a person who has a corresponding duty or right to receive the statement. The test is objective, judged by the standard of a reasonable person, considering the relationship and circumstances.

  2. 02

    National Employers' General Insurance v Jagers 1984 4 SA 437 (ECD) at 440D-H

    Where there are mutually destructive versions, the party bearing the onus must adduce credible evidence and satisfy the court on a preponderance of probabilities that their version is true and the other is false or mistaken.

  3. 03

    Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 1 SA 11

    Failure to call key witnesses may adversely affect a party's case, especially where their testimony could clarify material issues.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the plaintiff failed to discharge the onus of proving, on a balance of probabilities, that the defendant authored or participated in the creation of the Spy Report. The only witness relied upon by the plaintiff, Jan Venter, was found to be a self-confessed liar whose evidence was inconsistent, unreliable, and lacking credibility. The defendant, on the other hand, was considered a credible and impressive witness, and his version was supported by the inherent probabilities and the circumstances of the case. The court accepted that the defendant acted within the bounds of qualified privilege when forwarding the document to ANC leadership, and there was no credible evidence of malice or improper motive. Consequently, the plaintiff's claim for defamation could not succeed, and the action was dismissed.

Obiter and limits

  • The employment of senior counsel by both parties was fully justified given the seriousness of the allegations, but the court cannot fetter the Taxing Master's discretion regarding costs for senior counsel.
  • The plaintiff's failure to testify or call key witnesses, including his attorney, weakened his case and left material questions unanswered.
  • The court noted the improbability that the defendant, given his stature and professional background, would have fabricated such a detailed document under the circumstances alleged by the plaintiff.

Court disposition

Plaintiff's claim dismissed with costs on the scale as between attorney and client.

  • The plaintiff's claim is dismissed.
  • The plaintiff is ordered to pay the defendant's costs on the scale as between attorney and client.

Source and reliance status

North Gauteng High Court, Pretoria

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Authorities

Authorities used by the court

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National Employers' General Insurance v Jagers 1984 4 SA 437 (ECD)

Case cited

Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 1 SA 11

Case cited

The City of Johannesburg Metropolitan Municipality v The Chairman of the Valuation Appeal Board for the City of Johannesburg (282/2013) [2014] ZASCA 5 (12 March 2014)

Case cited

Hangar v Robertson (211/2015) [2016] ZASCA 102 (10 June 2016)

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