Tuch and Others v Myerson and Others (447/08) [2009] ZASCA 132; 2010 (2) SA 462 (SCA) ; [2010] 2 All SA 48 (SCA) (30 September 2009)

Tuch and Others v Myerson and Others (447/08) [2009] ZASCA 132; 2010 (2) SA 462 (SCA) ; [2010] 2 All SA 48 (SCA) (30 September 2009)

The Supreme Court of Appeal found that the statements made by the first and third respondents in affidavits during judicial proceedings were per se defamatory. While the statement regarding the deceased causing trouble as a shareholder was relevant and not shown to be malicious, the allegation that the deceased misappropriated R5 to R6 million was devoid of merit and made for an ulterior purpose, evidencing malice. The defence of qualified privilege was thus defeated for the theft allegation. The second respondent was not shown to have made common cause with the defamatory statements. The court determined that substantial damages were warranted due to the seriousness of the allegation,...

Citation
[2009] ZASCA 132
Parties
Appellant: Michael Tuch; Appellant: Heather Brenda Eiser; Appellant: Hilton Myerson; Appellant: Jonathan Tuch NNO; Respondent: Jeffrey Harold Myerson; Respondent: Jeffrey Harold Myerson and Alistair Brian Roper NNO; Respondent: Dion Barry Masureik
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 September 2009
Case Number
447/08
Procedural Posture
Civil Appeal / Appeal From the High Court, Johannesburg
Outcome
Appeal partially upheld against the first and third respondents with costs; dismissed against the second respondent.
Judges
Streicher, Mhlantla, Griesel
Legal Topics
Defamation, Qualified Privilege, Malice, Damages, Judicial Proceedings
Delict Civil Procedure Defamation Qualified Privilege Malice Damages Judicial Proceedings

Case Brief

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Parties

Michael Tuch

Appellant

Heather Brenda Eiser

Appellant

Hilton Myerson

Appellant

Jonathan Tuch NNO

Appellant

Jeffrey Harold Myerson

Respondent

Jeffrey Harold Myerson and Alistair Brian Roper NNO

Respondent

Dion Barry Masureik

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court, Johannesburg

Legal Issues

  1. 1 Whether the statements made by the respondents in judicial proceedings were defamatory and wrongful.
  2. 2 Whether the defence of qualified privilege applies to the defamatory statements made in affidavits.
  3. 3 Whether malice was proved, thereby defeating the privilege.

Ratio Decidendi

The Supreme Court of Appeal found that the statements made by the first and third respondents in affidavits during judicial proceedings were per se defamatory. While the statement regarding the deceased causing trouble as a shareholder was relevant and not shown to be malicious, the allegation that the deceased misappropriated R5 to R6 million was devoid of merit and made for an ulterior purpose, evidencing malice. The defence of qualified privilege was thus defeated for the theft allegation. The second respondent was not shown to have made common cause with the defamatory statements. The court determined that substantial damages were warranted due to the seriousness of the allegation,...

Court Disposition

Appeal partially upheld against the first and third respondents with costs; dismissed against the second respondent.

Orders

  • The appeal, in so far as the first and third respondents are concerned, is partially upheld with costs.
  • The appeal, in so far as the second respondent is concerned, is dismissed.