South Africa: Bite Your Tongue!

Last Updated: 8 December 2016
Article by Qaqamba Moeletsi

Witnesses giving evidence before the Commission for Conciliation, Mediation and Arbitration ("CCMA") should take care when making statements that may expose them to defamation claims.

This issue arose in the recent case of Clover SA (Pty) Ltd and Another v Sintwa, in which the High Court heard a damages claim arising from defamatory statements made by a witness while giving evidence before the CCMA.

In this case, Harrison Sintwa was employed by Clover SA (Pty) Ltd ("Clover") as a team leader, reporting to Frederick Bopp, a production manager. He was responsible for, among other things, checking machines and products to ensure that they passed the relevant standards before being dispatched to the market and was required to sign a daily operator report ("DOR") to confirm that the relevant checks were done.

It came to Clover's attention that Mr Sintwa had falsely represented that he had conducted certain checks when he had not done so. Consequently, Clover charged him with fraudulently co-signing the DOR and claiming that certain checks had been performed on a machine when this had not been done. A disciplinary inquiry was convened and Mr Sintwa was dismissed. Mr Sintwa then referred an unfair dismissal dispute to the CCMA. Mr Bopp gave evidence on behalf of Clover at the disciplinary hearing and at the arbitration proceedings before the CCMA. During his evidence, he stated that it had come to his attention that Mr Sintwa had co-signed the DOR report sheet and had thus committed fraud. The CCMA commissioner found Mr Sintwa's dismissal to be substantively unfair on the basis that Clover had failed to prove that he was guilty of fraud, finding that his conduct had instead constituted negligence. Mr Sintwa was awarded four months' salary as compensation. The award was not taken on review by Clover or Mr Sintwa.

Following his victory in the CCMA, Mr Sintwa approached the High Court and instituted a damages claim against Clover and Mr Bopp, arising out of the alleged defamatory statements they presented at the arbitration proceedings before the CCMA. Mr Sintwa claimed R100 000 as damages on the basis that Mr Bopp and Clover had wrongfully and unlawfully alleged that he had committed fraud. Clover and Mr Bopp denied this and argued that the statements had been made in quasi-judicial proceedings (the CCMA proceedings) and were therefore protected by qualified privilege.

The court found that the statement implicating Mr Sintwa of having committed fraud had been irrelevant and unconnected to the arbitration proceedings before the CCMA and that Mr Bopp had acted out of spite, which could be inferred from the fact that another employee who had co-signed the DOR with Mr Sintwa had not been charged. It held that Clover and Mr Bopp had exceeded the bounds of qualified privilege and awarded Mr Sintwa R100 000 in damages.

Clover and Mr Bopp then brought an appeal before a full Bench of the High Court. As Mr Bopp and Clover argued that they were entitled to qualified privilege as the defamatory statements had been made in quasi-judicial proceedings, the full Bench considered the test for qualified privilege in judicial or quasi-judicial proceedings. It held that the test was slightly (but significantly) different to the normal test for qualified privilege. The full Bench held that to rely on qualified privilege in quasi-judicial proceedings, a defendant need only prove, on a balance of probabilities, that the statements were relevant to the matter at issue. The onus thereafter shifts to the plaintiff to prove that, notwithstanding the fact that the statements were relevant, the statements were not supported by reasonable grounds.

The full Bench criticised the court's earlier finding that "the statement of fraud made was irrelevant, unconnected to the matter and it was unnecessarily dragged into the matter that could easily be referred to as negligence." It held that that since Mr Sintwa had been charged and dismissed for fraudulent conduct, Mr Bopp had to lead evidence in this regard for the benefit of the arbitrator who had to determine whether the reason for Mr Sintwa's dismissal was valid. Mr Bopp and Clover therefore satisfied the requirements for relevance that must be met to qualify for qualified privilege in quasi-judicial proceedings. Mr Sintwa failed to show that there were no reasonable grounds for Mr Bopp and Clover to make the statements.

The full Bench then considered whether Mr Bopp and Clover had exceeded the limits of qualified privilege by acting out of malice. To succeed with this argument, Mr Sintwa needed to prove that:

  • there was no basis in evidence or surrounding circumstances for Mr Bopp to make the statement.
  • Mr Bopp knew that the statement was false or that there was no evidence to substantiate it.
  • Mr Bopp had personal spite or ill will in making the statement.

The full Bench held that the court's earlier finding that an inference of malice could be drawn from the fact that the operator who had also signed the DOR form had not been charged was illogical and that malice could not simply be inferred from this. It further held that there was no evidence that Mr Bopp knew the defamatory statements to be false and/or that he had personal spite or ill will in making them.

The issue of privilege also arose in the earlier case of Chalom Raymond Edward v Wright Graham and Another. In this case, the High Court dealt with a damages claim arising from alleged defamatory statements published in an affidavit before the Constitutional Court. The claim was instituted by an attorney against another attorney and his client. The High Court applied the same principles as those applied in the Sintwa case and found that there were defamatory statements made in the affidavit and the defamatory statements were relevant to the proceedings. The High Court held that the defamatory statements were covered by qualified privilege and dismissed the damages claim.

These two decisions serve as a reminder to litigants, witnesses and legal representatives to act cautiously and to take into account the requirements for qualified privilege when making defamatory statements in legal or quasi-judicial proceedings, as they could find themselves being successfully sued for damages.

Also of importance is the question whether the evidence of persons given during disciplinary proceedings can be regarded as privileged. Because disciplinary inquiries do not constitute judicial or quasi-judicial proceedings, the principles applied in these two decisions do not apply to them.

But there are other possibilities. Firstly, the defence of qualified privilege can also be raised where a person has a legal, moral or social duty or a legitimate interest in making defamatory assertions to another person who has a corresponding duty or interest to learn of the assertions. The test for determining whether the occasion is privileged is an objective one. The question to be asked is: Did the circumstances, in the eyes of a reasonable person, create a duty or interest that entitled the party sued to speak in the way in which it did? If the defendant meets this requirement and can show that the assertion made was relevant to the discharge of the duty or the furtherance of the interest, the assertion will be privileged unless the plaintiff can show that the defendant acted with an improper motive. The other potential defence is that the statement was true and it was in the public interest that it be made.

Both these defences could arguably be raised in the context of statements made during disciplinary inquiries.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions