Malan v Minister of Safety and Security and Another (99/2005) [2008] ZAGPHC 65 (21 February 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NUMBER: 99/2005

Dates heard: 12,16 October 2007

Date of judgment: 21/02/2008

UNREPORTABLE

In the matter of:

MALAN, BENJAMIN PLAINTIFF

and­

MINISTER OF SAFETY & SECURITY 1ST DEFENDANT

TSABALALA, BEN 2ND DEFENDANT

JUDGMENT

VISSER AJ:

1. The plaintiff claimed payment of R150,000.00 for damages, interest thereon at the rate of 15, 5% per annum a tempore morae and costs for iniuria allegedly suffered by the plaintiff as a result of certain words uttered by the second defendant ("Inspector Tsabalala") while acting within the course and scope of his employ with the first defendant ("the Minister').

2. In respect of the Minister's liability for delicts which are committed by its servants, it was held by Olivier JA in Masuku v MdlaloseH­ 1998 (1) SA 1 (SCA) at p.16D-G:

"15. Despite various nuances in expression, the common-law test of vicarious liability, i e whether the employee in question was acting in the course and scope of his employment or, put differently, whether he was engaged in the affairs or business of the employer, has been applied consistently since 1958 to the liability of the State for the wrongful acts of police officers. See African Guarantee & Indemnity Co Ltd v Minister of Justice 1959 (2) SA 437 (A) at 445; Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A) especially at 567 para (3); Macala v Maokeng Town Council [1992] ZASCA 76; 1993 (1) SA 434 (A) ; Minister of Law and Order v Ngobo [1992] ZASCA 172; 1992 (4) SA 822 (A) at 826F--828A; Tshabalala v Lekoa City Counci/1992 (3) SA 21 (A) at 288--298; Minister of Police v Rabie 1986 (1) SA 117 (A) at 132G--H, 134D--135C; Minister of Police v Mbilini 1983 (3) SA 705 (A) especially at 7108--7128. These cases, on analysis, all confirm that, in order to establish the vicarious liability of the State, the plaintiff must prove that the person who did the wrong was (a) an employee of the State acting in that capacity, and (b) that he or she performed the wrongful act in the course or scope of his or her employment (see especially Smuts AJA in Minister of Police v Mbilini (supra at 711 H). What is more, the tests for State liability for the wrongful acts of police officers and the test for an employer's vicarious liability were stated explicitly to be the same in Mhlongo and Another NO v Minister of Police (supra). Also the terms 'within the scope of his authority' and 'within the scope of employment' were treated as being synonymous.”

Corbett JA (as he then was) in Mhlongo and Another NO v Minister of Police 1978 (2) SA 551 (A) at 567E-G said:

“All members of the South African Police Force are prima facie servants of the State and consequently, when a wrongful act is committed by a member of the Force in the course or scope of his employment, the State is prima facie liable. It is then for the State to show that, in committing the wrongful act, the policeman was engaged upon a duty or function of such a nature as to take him out of the category of servant pro hac vice. In order for the duty or function to take him out of the category of servant it must be one which is personal to the policeman in the sense that from its very nature the State is so deprived of the power to direct or control him in the carrying out of his duty or function that he cannot be regarded pro hac vice as the servant of the State.”

3. No point was taken in this regard on behalf of the Minister. The evidence which was presented in the trial furthermore indicated that what Inspector Tsabalala did, was done by him in the execution of his duties as a policeman in the service of the Minister. I shall consequently assume that if actionable wrongful conduct is proved on the part of Inspector Tsabalala, the Minister will be liable.

4. In his particulars of claim the plaintiff alleged in paragraph 5:

“On or about 30 June 2004 and at or near Rustenburg, the second defendant during a telephonic conversation with the plaintiff, wrongfully and with the intent to injure the plaintiff, said the following words or words to the effect, to and about the plaintiff, namely:

5.1 Ek gaan nog die eienaar (the plaintiff) van S.A.N. Contracting toesluit, omrede daar geld gevra 'vvord vir werksverskaffing. Ek is moeg vir al die mense wat sulke klagtes indiendat geld geneem word vir werksgeleenthede.’

5.2 Jy wil nie weet hoe dit in die selle by Rustenburg gaan nie. Die kwessie van wit en swart maak dit baie gevaarlik vir 'n witman in die selle en ek het gedink deur te skakel kan die probleem opgelos word.”

5. The plaintiff's main claim was based on an alleged infringement of his constitutional rights and more particularly the right to his inherent dignity as enshrined in section 10 of the Constitution, Act 108 of 1996 ("the Constitution"). As an alternative to his main claim, the plaintiff pleaded the common law claim of iniuria, in that Inspector Tsabalala wrongfully and with the intent to injure the plaintiff uttered the words set out above. In argument, Mr da Silva indicated that he did not pursue the "constitutional claim" but that I was expected to adjudicate the case on the basis of the common law actio iniuriarum. I shall deal with the case on that basis.

6. The actio iniuriarum grants relief for the impairment of the person, dignity or reputation of a plaintiff, where such impairment is committed wrongfully and with animus iniuriandi (an intention to injure). The plaintiff does not rely on any publication of the injurious statement and consequently the plaintiff's cause of action does not lie in defamation. (Gosschalk v Rossouw 1966 (2) SA 476 (C) at 490; Minister of Police v Mbilini 1988 (3) SA 705 (A); Sokhulu v New Africa Publications Limited tla "The Sowetan Sunday World' 2001 (4) SA 1357 (W).)

7. It is trite that a plaintiff seeking damages based on the actio iniuriarum is required to allege and prove animus iniuriandi - i.e. the intention to injure the plaintiff. Animus iniuriandi can, however, in certain circumstances be implied from the words used or the conduct complained of. (Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A).)

8. The legal position in regard the actio iniuriarum was considered in Minister of Police v Mbilini (supra), where Smuts AJA said at 715F- H:

“It is trite law that one of the rights which is protected by the actio iniuriarum is the right to an unimpaired dignity. Dignity was defined by Melius de Villiers in 1899 in his well known work 'The Roman and Roman Dutch Law of Injuries' at 24­25 as –

‘That valued and serene condition in his social or individual life which is violated when he is, either publicly or privately, subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, radical, disesteem or contempt.' 'Every person has an inborn right to the tranquil enjoyment of his piece of mind, secure against aggression upon his person, against the impairment of that character for moral and social work to which he may rightly lay claim and of that respect and esteem of his fellow-men of which he is deserving, and against degrading and humiliating treatment; and there is a corresponding obligation incumbent on all others to refrain from assailing that to which he has such a right.”

9. In order to found a claim on the actio iniuriarum, the plaintiff has to show that his subjective feelings of dignity had been infringed, i.e. that he felt insulted. In addition, the objectionable behaviour must also, viewed objectively, be of an insulting or offensive nature. In judging the latter the test of the boni mores or the notional understanding and reaction of a person of ordinary intelligence and sensibilities are of decisive significance. (LAWSA (1st Re-issue) Vol 20, Part 1, p289 at para 326.) With reference to the test for determining dignity, Burchell: Personality Rights and Freedom of Expression: The Modern Actio Injuriarum, states at 329:

“The Appellate Division in De Lange v Costa has authoritatively laid down the general test for determining dignity under the common law:

(a) The Plaintiff's self-esteem must have been actually (subjectively) impaired, and

(b) A person of ordinary sensibilities would have regard to the conduct as offensive (tested by the general criterium of unlawfulness ­objective reasonableness).”

10. Although the onus of proving animus iniuriandi rests on the plaintiff, it is presumed to exist as soon as the wrongfulness of the insulting behaviour has been proved. The onus is then on the defendant to rebut the presumption. (Jackson v SA National Institution For Crime Prevent 1976 (3) (SA) 1 (AD) at 13A; Ramsy v Minister of Police, 1981 (4) SA 882 (AD) at 814 A -C.)

* DEFENCES RAISED:

11. The defendants pleaded a number of defences to the plaintiff's claims, but when the matter came to trial, the only defences which were proceeded with were the defences that the words uttered by Inspector Tsabalala a) were not intended to injure; b) were in fact not injurious; c) were true and the utterance thereof in the public interest; d) were uttered in the discharge of the duties of Inspector Tsabalala.

12. Mr da Silva correctly pointed out that the defendants' plea represented a misapprehension of the case made out in the particulars of claim, in that it considered the claim to be based on defamation. While this is true, it does not render the plea excipiable. Indeed no exception was raised to the plea on behalf of the plaintiff. Furthermore, apart from references to “defamation” the plea in my view presents legal defences to the plaintiffs claim. A replication was filed by the plaintiff which became irrelevant in view of the abandonment of the plea of justification by the defendants.

* THE PLAINTIFF'S EVIDENCE:

14. The plaintiff, a former policeman, testified that he was the sole member of, and interest holder in, a close corporation, SAN Contracting Services CC ("SAN Contracting"). He was also the chief executive officer of the close corporation. The business of SAN Contracting was to canvass labourers for placement in positions of employment with certain platinum mines in the Rustenburg area. At the time of the alleged iniuria approximately 3,300 such labourers had been placed by SAN Contracting with different platinum mines. The methodology was that the labourers who were so placed at a mine by SAN Contracting would work on the mine, but would be paid their salaries by SAN Contracting. The agreement between SAN Contracting and the different mines, in turn, was that the mines remunerated SAN Contracting, which remuneration included the salaries paid by SAN Contracting to the workers, and, presumably, an amount for the services rendered by SAN Contracting.

15. According to the plaintiff, the occasion on which the iniuria was allegedly perpetrated, and the institution of the present action, ­were antedated by the following:

a) Since about the year 2003 it had become known that certain persons or agencies were allegedly demanding and taking a commission from labourers themselves, as opposed to being remunerated by the employers, for the privilege of being placed in jobs on the mines. This was referred to as taking "money for jobs".

b) In 2003 a newspaper report appeared in the City Press newspaper which alleged that SAN Contracting was one such concern which took money for jobs.

c) The plaintiff stated that he was sensitive to that type of allegation, and that he took up the matter with City Press and indeed instituted an action against the newspaper. Apart from the possible relevance of the fact that the plaintiff instituted the said action for defamation, there appears to be no further relevance of that action to the present case.

d) Other actions taken by the plaintiff in an attempt to dispel any imputation that SAN Contracting took money from labourers for jobs, included the placing of advertisements through a concern by the name of Crime Reporting Boards and the broadcasting of messages on Radio Mafisa, a radio station which broadcasts in the Rustenburg area, denouncing the practice of taking money for jobs, and guaranteeing that SAN Contracting did not employ that kind of practice. An advertisement so placed through Crime Reporting Boards contained, inter alia, the following words:

"Job opportunities are not for sale".

16. The plaintiff testified that on 30 June 2004, he was in an office of SAN Contracting when he received a telephone call from Inspector Tsabalala. Mr Erasmus, one of the employees of SAN Contracting, was present in the office at the time. The call was put through to the plaintiff by a Mrs Kohl. Both these witnesses were called to give evidence on behalf of the plaintiff, but I regard their evidence as not having promoted the case the plaintiff to any material extent, other than to have corroborated the fact that Inspector Tsabalala had in fact telephoned. The telephone conversation was not broadcasted on a speaker telephone, so that Mr Erasmus was unable to testify to what Inspector Tsabalala had said.

17. The plaintiff testified that Inspector Tsabalala informed him that certain Mr Van den Berg had filed a complaint with the police, alleging that payment of his salary was being witheld by SAN Contracting. The plaintiff told Inspector Tsabalala that Van den Berg had received his salary that morning, and that, in fact, a special concession was made to him to collect his cheque before 12h00, which was the normal time when payment of salaries was commenced with. Inspector Tsabalala further informed the plaintiff that it was alleged that Van den Berg's motor car keys had been stolen or robbed from him by certain Mr Blackie Swart. The plaintiff told Inspector Tsabalala that he knew nothing about that. In respect of this evidence it must immediately be stated that the plaintiff placed no reliance thereon to found his claim for iniuria in the present case. Consequently this evidence occupies no higher status than background evidence, presumably presented to give a complete picture of what transpired during the telephone conversation.

18. According to the evidence of the plaintiff, Inspector Tsabalala further intimated to him that the police had received numerous complaints about SAN Contracting taking money for jobs. It must immediately be observed that according to the evidence of the plaintiff, the allegation of taking money for jobs was directed at SAN Contracting, and not specifically at him personally. The plaintiff testified that he told Inspector Tsabalala that he was unaware of such a practice. The plaintiff said that he invited Inspector Tsabalala to inform him of the names of the persons who were allegedly conducting the practice, so that he could investigate the matter and report back to Inspector Tsabalala in order to deal with the problem. This evidence indicates that the plaintiff himself did not consider the allegation concerning the taking of money for-jobs to have been directed at him personally, but rather to other employees of SAN Contracting.

19. The plaintiff said that in the course of the telephone conversation, Inspector Tsabalala uttered certain words which infringed upon his dignity and reputation. After the telephone conversation was terminated, he contacted his attorney and related to him what had transpired. His attorney advised him to write down as far as he was able to recall, the exact words of Inspector Tsabalala. This the plaintiff did on the same day, by typing a note of the conversation on his computer. That note was presented as evidence in the trial, an extract whereof indicates what Inspector Tsabalala had allegedly said to the plaintiff:

"Hy het glo verskeie kere aan ander gesê dat Hy gaan nog die eienaar van SAN Contracting toesluit omrede daar geld gevra word vir werkverskaffing. Hy is moeg vir al die mense wat sulke klagtes indien dat geld geneem word vir werksgeleenthede.

Ek het aan die Insp. Genoem dat daar moontlik baie ander eienaars van baie besighede is wat hy kan arresteer maar hy moet seker maak in my geval wie die skuldige is.

Insp. het daarop gesê die kwessie van Mnr Vd Berg en Blackie Swart het my nou ook geimpliseer.........

Die Insp. het ook aan my gesê dat ek nie wil weet hoe dit in . die selle by Rustenburg gaan nie. Die kwessie van wit en swart maak dit gevaarlik vir 'n witman in die selle en hy het gedink deur te skakel kan die probleem opgelos word."

[Words which are not relevant, omitted by me.]

20. It will be noted that there are differences between the wording of the contemporaneous note of the plaintiff and paragraph 5 (above) of his particulars of claim. Notably, the allegation that Inspector Tsabalala would have said that he had told people on several occasions of the fact that he was going to arrest the owner of SAN Contracting, was not repeated in the particulars of claim. The word "baie" was also added in the particulars of claim before the word "gevaarlik" which does not appear in the note. During cross-examination of Mr Lebala, who appeared for the two defendants, it was put to the

plaintiff that Inspector Tsabalala would deny:

a) that he intended to arrest the plaintiff because of the complaints he had received; or

b) that he said that he had told others that he intended to arrest the plaintiff; or

c) that he intended to cause any injury to the plaintiff and

d) that nothing which Inspector Tsabalala had said, constituted an iniuria to the plaintiff; and

e) that the Inspector had received various complaints against SAN Contracting for taking money for jobs prior to the telephone conversation.

The plaintiff disputed the aforesaid statements, except for the last mentioned statement, which he conceded.

* APPLICATION FOR ABSOLUTION:

22. At the close of the plaintiff's case, Mr Lebala applied for an absolution from the instance. I considered that there was prima facie evidence on record which called for an answer, and the application was dismissed.

23. No reason exists for making a separate cost order in respect of the application.

* THE EVIDENCE OF INSPECTOR TSABALALA:

24. Inspector Tsabalala was thereafter called to give evidence. He had been a policeman for 30 years. During 2002 to 2004 he had performed specialised work, namely the taking of statements, interviewing complainants and suspects, dispute resolution, training of subordinates and general supervision. The Inspector described his position as that of dispute resolution. His employment tasks were connected to the work of the Commercial Branch which concentrated inter alia on fraud, corruption and theft. During 2002 to 2004 he had never affected any arrests.

25. He testified that on 30 June 2004 a number of black persons arrived at the charge office of the Rustenburg police station. They were referred to his office, which is separate from the charge office. They complained that they had been charged money for being placed in employment. These people mentioned the name of SAN Contracting. They provided him with a telephone number of SAN Contracting. They also provided the inspector with the name of a black person in the employ of SAN Contracting who allegedly took money from them for work, with the promise that he would ensure that their names would be placed ahead of other job seekers.

26. The inspector telephoned SAN Contracting and asked to speak to the relevant black person. He was unable to recall the name of this person. The operator connected him to this particular person. He testified as to the contents of his conversation with this person, but I regard the contents of that conversation to be inadmissible hearsay evidence as far as the plaintiff was concerned. The inspector then asked to speak to the plaintiff. After some hesitation, the operator put him through. He asked the plaintiff whether he was aware that money was being taken (from employees of SAN Contracting) from people looking for employment. The plaintiff stated that was unaware that it occurred. The inspector told him that there were people in his office complaining about SAN Contracting taking money for jobs. He confirmed the evidence of the plaintiff that the plaintiff told him that there were other people who took money for jobs, working around Rustenburg. He told the plaintiff that he was being implicated and that if charges were laid and evidence presented that he was in fact taking money for jobs unlawfully, the Inspector would be compelled to have him arrested. He stated that he never told the plaintiff that he would arrest him on the day in question, because the complainants in his office did not wish to lay any charges. They merely asked him to assist in the recovery of their money from SAN Contracting.

27. In respect of what was stated in paragraph 5.1 of the particulars of claim, Inspector Tsabalala denied having stated to the plaintiff that he had told other persons that he was going to arrest him (the owner of SAN Contracting). He testified that he did not know the plaintiff from before, and that there was no question of arresting the plaintiff, as no charge had been laid against him. In respect of paragraph 5.2, he denied having said anything about black and white persons and conditions in the prison cells at the police station. He had no idea what went on in the cells, as his job did not necessitate him visiting the cells.

28. He testified and that he knew a Mr Blackie Swart who worked for SAN Contracting as a security officer. He denied, however, having spoken to the plaintiff about him. He did not know a person by the name of Van den Berg, and denied having spoken about him to the plaintiff during the telephone conversation. He conceded that the plaintiff might have said that he would come back to him if his investigations turned up anything about employees of SAN Contracting taking money for jobs.

29. Inspector Tsabalala stated that the telephone conversation ended on an amicable note. He accepted what the plaintiff had told him as the truth. He felt that he had failed to resolve the situation concerning the complaints. His evidence was that after the telephone conversation he intimated to the complainants who were present in his office that the plaintiff knew nothing about the allegations.

30. In reply to a question by myself, Inspector Tsabalala stated that his motivation for telephoning the plaintiff was that he wanted to establish whether the plaintiff knew anything about the alleged practice in SAN Contracting of taking money for jobs and to attempt to get the money which the complainants stated they had paid, to be returned to them.

31. Mr da Silva wanted to know from the Inspector where his police pocket book for the relevant time was. He stated that he was no longer in possession of that pocket book, as it was full and had to be handed in. He stated that he handed in his pocket books at the Community Service Centre to the commander who worked with pocket books. He could not recall his name. He could also not remember the names of the complainant's who were in his office at the time of the telephone call. He remembered that there was one

woman among them.

32. He said that he was never told about the case against him prior to the very month of October 2007, when the trial came on. The implication of this evidence is that his plea must have been settled without his instructions. He was told that he had to give evidence in the trial. He did not consult with any legal representative before that time. He was not consulted about the detail of the evidence which he gave in court. The consultation was conducted on the morning of the day when he testified.

* DISCUSSION OF THE PLAINTIFF'S COMPLAINTS:

33. In argument it was submitted by Mr da Silva that the words uttered by Inspector Tsabalala (as stated in the particulars of claim) imputed the following to the plaintiff:

a) That the plaintiff was dishonest;

b) That the plaintiff was committing fraud against members of the general public by taking money from them;

c) That the plaintiff was a criminal;

d) That the plaintiff had a propensity to commit fraud;

e) That as a result thereof Inspector Tsabalala will be entitled to incarcerate the plaintiff;

f) That, because of the fact that the plaintiff was a white man it would be very dangerous for him to be locked up in the cells in Rustenburg.

34. The question to be decided turns on whether any or all of the words, as recited in paragraph 5 of the particulars of claim, can be regarded as constituting injurious intent, taken in the context of the circumstances at the time. The plaintiff testified that the words did, and that he felt aggrieved by the words. Inspector Tsabalala testified that he was just doing his job, and that no injury was intended.

35. The plaintiff's complaints that his dignity had been impaired was based on allegedly being threatened and implicated. He adopted the position that nobody has the right to threaten his person or to implicate him. He described the allegation of his complicity in a robbery as "unthinkable". In this respect it is difficult to comprehend why the plaintiff should criticise Inspector Tsabalala, because his own evidence was that he was told that the police had received a complaint from Mr Van den Berg and that it was that gentleman who had implicated someone by the name of Blackie Swart, not the plaintiff. As stated earlier, this latter issue did not form part of the res gestae in the case. No evidence which was presented justifies the inference that Inspector Tsabalala imputed to the plaintiff that he was considered to be implicated in the "robbery".

36. In respect of the plaintiff's complaint about being threatened with an arrest, the following appears to me to be relevant. The sole ground for the plaintiff's belief that he was threatened with an arrest was the alleged statement by Inspector Tsabalala that he had told people that he was going to arrest the owner of SAN Contracting and what was allegedly said by him in respect of what occurs in the police prison cells between whites and blacks. These allegations remained in dispute.

37. Assuming that Inspector Tsabalala's denials are rejected, and it be found that he uttered the words as quoted by the plaintiff, the question remains what the words must be taken to mean and what reasonable inferences can be drawn from them.

38. It was submitted by Mr da Silva that from the words which were uttered by Inspector Tsabalala, it must be inferred that the plaintiff's dignity was in fact injured or impaired. Reliance was placed on the cases of Ramsy (supra) at 812E, Mbilini (supra) at 716D-E and Brenner v Botha 1956 (3) (SA) 257 (T) at 260 - 261. In Mbilini (supra) at 716D-E, the learned judge said:

"Any decent women to whom a threat was directed in the form in which the plaintiff was threatened by Fouchè would feel insulted and humiliated and that her dignity had been impaired. That plaintiff did in fact feel insulted and humiliated appears from her evidence and that of the person who accompanied her. That the words were uttered animo iniuriandi bv Fouche appears from the words themselves considered in the circumstances in which they were spoken." [Emphasis provided.]

In Sindani v Van der Merwe 2002 (2) SA 32 (SCA), the Supreme Court of Appeal considered how a court should approach a written article with a view to determine whether the article is defamatory. It was held 368:

"The question whether the article is defamatory in its ordinary meaning, involves a two-stage enquiry. The first is to establish the natural or ordinary meaning of the article. The second is whether that meaning is defamatory."

At 36C it was stated:

"The ordinary meaning of the words under consideration does not necessarily correspond with their dictionary meaning. The test to be applied is an objective one, namely what meaning the reasonable reader of ordinary intelligence would attribute to the words read in the context of the article as a whole. In applying this test it must be accepted that the reasonable reader will not take into account only what the words expressly say but also what they imply..."

39. In my view a reasonable person would not have drawn the inferences from the words which the plaintiff did. A more probable and reasonable view to take of the words would be that they indicated the Inspector's intention to resolve the issue amicably by discussing it with the plaintiff, rather than to go to the extreme of an arrest of the plaintiff, if a complaint should be filed. No argument was addressed by Mr da Silva that the inspector would have been disentitled to execute such an arrest in case such a complaint had been received. In my view the relevant words would more probably have been employed in order to accentuate to the plaintiff the seriousness of the matter, and the desirability of settling the dispute. This would be precisely the opposite of what the plaintiff intended the court to believe. The probability referred to above appears to be borne out by the fact that the plaintiff was not arrested, and by Inspector Tsabalala's evidence, which was not contradicted or even disputed, that he accepted what the plaintiff had told him, and that he informed the complainants accordingly. On the evidence taken as a whole, the plaintiff's evidence that he considered himself to have been threatened with an arrest by Inspector Tsabalala, or that he was unlawfully implicated in an offence by Inspector Tsabalala, was not the most probable inference to draw from the words, and cannot be supported. In this regard, the probabilities appear to me to support the evidence of Inspector Tsabalala who testified that he told the plaintiff that he was being implicated (by complainants in his office) and that if charges were brought against him and evidence presented that he was in fact taking money for jobs unlawfully, the Inspector would be compelled to have him arrested. There can be no unlawfulness in that intimation, as long as it was the truth that people had implicated the plaintiff. This evidence was also not contradicted or placed in dispute.

40. In drawing the conclusions and inferences which he did, it appears to me that the plaintiff was perhaps over-sensitive. He himself stated that he was sensitive to the allegations made in the City Press newspaper about taking money for jobs to the extent that he instituted an action against the newspaper for defamation. The plaintiff had been a policeman. It is difficult to comprehend why he could not appreciate the correctness of the conduct of Inspector Tsabalala. If the conduct of Inspector Tsabalala was foreign to the way in which the plaintiff conducted himself while he was a policeman, in my view he would not have been as good a policeman as Inspector Tsabalala had shown himself to be.

41. Even if the denials by Inspector Tsabalala that he threatened the plaintiff with arrest or implicated him in an offence, were to be dismissed, I have difficulty in discovering an injurious intent in the words relied upon by the plaintiff in paragraph 5 of his particulars of claim. In my view, only an over-sensitive person would have felt aggrieved by, or would have drawn sinister inferences from, these words.

42. It is therefore my view that the plaintiff failed to discharge the onus resting upon him to prove that Inspector Tsabalala had the required animus iniuriandi and had acted unlawfully. Nor do the words, relied upon by the plaintiff, in themselves indicate such animus or unlawfulness.

* DISCUSSION OF THE EVIDENCE:

43. In considering and weighing the evidence, I bear in mind the guidelines stated in Stellenbosch Farmers' Winery Group Limited v Martel et Gie & Others 2003 (1) SA 11 (SCA), where, at 14-15, Nienaber JA said:

"The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (Hi) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curia I statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues; In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail."

44. In respect of the credibility of Inspector Tsabalala, it was submitted by Mr da Silva that his evidence was "hazy" and that no reliance whatsoever can be placed on it. In this regard, counsel submitted that Inspector Tsabalala had no recollection of names. He could not remember the names of the complainants, he could not remember the name of the black person to whom he spoke on the telephone, he could not remember the name of the receptionist, he could not remember the name of the person to whom he gave his pocket book. Counsel also criticised his evidence in that he was unable to recall what happened to his police pocket book. The events which gave rise to the present action, played out in 2004 - three years before the trial. I take into account the constant warnings by our judges that people's memories are fallible. In the present case the undisputed evidence of Inspector Tsabalala was that he was never informed, not consulted in respect of the present trial until shortly before the trial started, and that, by all accounts, no detailed consultation was conducted with his in which he was asked about detail of the events. All things being

equal, there was therefore no reason why the Inspector would have had cause to remember the detail which Mr da Silva referred to. A poor memory per se cannot be equated to dishonesty.

45. Counsel further submitted that on the admission by Inspector Tsabalala that the complainants who had been referred to him, refused to lay charges. It followed, accordingly, that the Inspector had no reason to telephone the plaintiff. In his evidence, he stated that the reason why he telephoned the plaintiff was (a) to establish the truth and (b) to get the money back. However, during the telephone conversation he never asked for the money back. His evidence was that, after the telephone conversation, he told the complainants that the plaintiff knew nothing about the allegations. I do not regard these criticisms of Inspector Tsabalala's evidence to be justified. On the evidence it was clear that Inspector Tsabalala was the dispute resolution officer in the police station. He had complainants who complained about the SAN Contracting allegedly having taken money from them with the promise of placing them in positions of employment. They asked the police to assist them in getting their money back. I fail to see anything untoward in the Inspector telephoning the plaintiff in order to attempt to achieve this purpose. On the contrary, I consider that the telephone call represented a proficient, practical and effective method of attempting to resolve the issue. Far from being affronted by the telephone call, I think the plaintiff should in stead have been appreciative of it. The Inspector clearly wished to resolve the

issue, if he could. The plaintiff would have had better cause to complain if the Inspector had not followed the route of the telephone

call, but had taken other possible action. The criticism that the Inspector did not ask for the money back, tends in my view to

indicate the complete lack of animus iniuriandi, as he, on his evidence, immediately accepted the plaintiff’s denial, when given, did not pursue the matter, and told the complainants that the plaintiff knew nothing about it.

46. Mr da Silva submitted that Inspector Tsabalala was dishonest when he testified that during a period of three years while he was stationed at the Rustenburg police station, he did not execute any arrests or visited the cells in the police station. Presumably this criticism was based on probabilities, as there was no contradictory evidence supplied by or on behalf of the plaintiff. However, the uncontradicted evidence of the Inspector was that he was employed at the Rustenburg Police Station to exercise special functions as a dispute resolution officer during the period from 2002 to 2004. During this time he did not perform normal police functions of investigations and arrests. There are no probabilities which tend to indicate that this evidence should not be accepted as the truth.

47. I have been most favourably impressed with the evidence of Inspector Tsabalala. He did not hesitate in giving answers to questions put to him in cross-examination. He did not contradict himself. In my view the probabilities favour the veracity and acceptability of his evidence. He testified about events which took place some four years before. He was not properly consulted with prior to his evidence in court in order for him to have been made aware of all the issues in the case. Yet he answered all questions put to him promptly and without hesitation.

48. The demeanour of Inspector Tsabalala as a witness was above reproach. He instilled confidence in accepting his evidence as true' and reliable. It might be argued (which it was not) that the Inspector has had experience in giving evidence in court by virtue of the fact that he was a policeman. But so was the plaintiff, and the same would apply to him.

49. I was not so impressed with the evidence of the plaintiff. I am of the firm view that he has an exaggerated sense of self-esteem. As mentioned, he clearly demonstrated signs of over-sensitiveness. I am of the view that the inferences which he sought to draw from the words of Inspector Tsabalala to be far-fetched and unrealistic. In stead of being appreciative of the effort made by Inspector Tsabalala to amicably resolve the issues raised by the complainants, the plaintiff chose to institute the present action. In doing so and in furthering his interests, he made what I consider to be unfounded allegations against Inspector Tsabalala. In his evidence he tended to exaggerate the impact on his dignity of the Inspector's words.

50. Where there are disputes of fact on the evidence, I have no hesitation in accepting the evidence of Inspector Tsabalala as opposed to that of the plaintiff. Once this is so, a completely different view emerges in regard to the telephone conversation. While I have already found that the plaintiff had not proved his case on the facts relied upon by him, once the evidence of Inspector Tsabalala is accepted, this is even more so.

51. I have been unable to discover any ground in the evidence of the plaintiff to conclude that the Inspector telephoned the plaintiff with an injurious or unlawful intent. In fact it was the evidence of the plaintiff that there was no animosity between him and Inspector Tsabalala. This is supported by the evidence of Inspector Tsabalala that the telephone call ended on an amicable note. No pre-existing ground or reason prevailed from which an inference of injurious intent on the part of the Inspector can be drawn. Inspector Tsabalala's uncontested evidence was also that he did not know the plaintiff from before.

52. On the evidence, taken as a whole, it is my view that the plaintiff failed to prove animus iniuriandi or unlawfulness on the part of Inspector Tsabalala. In the circumstances, based upon the law and my findings above, I am of the view that the plaintiff has failed to prove his case against either of the two defendants. It follows that the assertions of the

defendants that the words uttered by Inspector Tsabalala were not intended to injure and were in fact not injurious, must be upheld.

In the result, the following orders are made:

1. Absolution from the instance is ordered against the plaintiff.

2. The plaintiff is ordered to pay the costs of suit of the two defendants.

L J L VISSER, AJ.

For plaintiff: Adv C da Silva

For defendants: Adv Lebala.