The South Gauteng High Court awarded a human resource manager
R50 000 in damages, plus legal costs, after she was called a
'liar' and an 'unintelligent white girl'. In
Nadia van der Westhuizen v Morgan Motlogelwa Ntshabelele
(case 2014/27063, judgment handed down 23 March 2015) the court
upheld her claim for damages and agreed that she suffered damage to
her reputation as a result of the defamatory remarks made by the
The defendant was retrenched by the employer. The plaintiff was
tasked to finalise the retrenchment and secure the return of the
employer's property in possession of the defendant. The
defendant uttered the defamatory remarks in the presence of fellow
employees, including the plaintiff. The defendant later made
further utterances that the court held were per se
defamatory. The defendent did not oppose the application and did
thus not suggest that his statements were unintentional or that he
had a valid defence for raising the remarks (such as that the
statements were true and in the public interest).
The court confirmed the general principles applicable to
defamation. "A statement is defamatory of a plaintiff if it is
likely to injure the good esteem in which he or she is held by the
reasonable average person to whom it has been published. It
includes not only statements that expose a person to hatred,
contempt or ridicule, but also statements that are likely to
humiliate or belittle the plaintiff; which tend to make him or her
look foolish, ridiculous or absurd or which render the plaintiff
less worthy of respect by his or her peers."
The court may exercise discretion in awarding damages. Relevant
factors for the court to consider include the seriousness of the
defamatory statements, falseness, nature and extent of the
publication of the statement, malice, rank or social status, the
absence of an apology, motive and the general conduct of the
defendant. The court also considered the fact that the derogatory
statement had racial undertones. It confirmed that "... the
use of racially derogatory language is regarded by right-minded
members of South African society as reprehensible."
Nevertheless, the court agreed with previous cautions issued to
state that overly large sums should not be awarded in damages so as
to avoid promoting or encouraging litigation of this nature.
The lesson from this case is that employers and employees ought
to take care in making statements that could be defamatory. Making
such statements in the workplace does not present a defence to the
wrongdoer. Whilst it may be tempting to lash out at a company
representative, be it CEO, line manager or HR representative,
employees should refrain from making statements that are untrue,
hurtful or otherwise defamatory. Such wrongful statements should
neither be made in the workplace or in public, including public
platforms like social media (such as Facebook and Twitter) or
during an after-hours drinks session at the local pub. Although the
courts are reluctant to award significant sums in defamation cases,
even an amount of R50 000 could balloon into a more significant sum
when taking the plaintiff's legal costs into account.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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