Defence of qualified privilege

In Rapp van Zyl Incorporated and Others v FirstRand Bank and Others [2022] 3 All SA 437 (WCC), firm of attorneys claimed damages arising from statements made by a bank employee -  objective test for defamation; a so-called privileged occasion, is qualified and not absolute.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Delict - Defamation – defence of qualified privilege: In Rapp van Zyl Incorporated and Others v FirstRand Bank and Others [2022] 3 All SA 437 (WCC), a firm of attorneys and its two directors claimed damages from the first defendant bank (FirstRand) and one of its employees, arising from alleged defamatory statements made. The defendants denied that the statements were defamatory and, in the alternative, pleaded that the statements were not unlawful having been made on a privileged occasion.

The fourth defendant (Meintjies) was an attorney employed by the third defendant. He regularly advised FirstRand on insolvency applications, including applications for voluntary surrender, which were brought by debtors who had mortgage loans with it. He became suspicious about certain notices of intended surrender of debtors’ estates and became convinced that these were part of a concerted and deliberate stratagem to frustrate judgment creditors, such as the bank from being able to execute against their debtors, and he suspected that the notices emanated from a common, organised source. On discovering the identity of that source, he informed them that they were utilising the machinery of the Insolvency Act 24 of 1936 for purposes for which it was never intended, by causing surrender notices to be published whereby creditors were being notified that applications would be made for the voluntary surrender of debtors’ estates, without any actual intention of applying for such surrenders. Based on information before Meintjies, he concluded that the defendants were complicit in that.

Meintjies did not contradict himself in any material respect and stuck to his version in cross-examination and it could not be said that there were any material improbabilities in the evidence which he gave. On the other hand, the second and third plaintiffs were not satisfactory witnesses. The court expressed scepticism about their alleged ignorance of the true intention of the voluntary surrender applications.

The test in determining whether a statement is defamatory is an objective one. In the first place the court is required to establish the ordinary or natural meaning thereof, being the meaning which the reasonable reader of ordinary intelligence would attribute to the words under scrutiny, in their context. Thereafter, it must be determined whether the ascribed meaning of the words used would have the effect of injuring the plaintiff’s reputation by lowering her in the estimation of right-thinking members of society. Confirming that Meintjies’ statement was defamatory of the plaintiffs it was rebuttably presumed that the publication was made intentionally (animo iniuriandi) and that it was wrongful/unlawful. The sole defence, which was raised was one of qualified privilege. Any protection, which is extended on a so-called privileged occasion, is qualified and not absolute.

Applying the legal principles, the court found that the defendants, particularly Meintjies, did not do what was reasonably expected of them and acted recklessly. Their joining the plaintiffs as respondents on the basis that, as of June 2012, they were participants in the unlawful scheme, was not reasonably appropriate. Defendants were held liable for plaintiffs’ damages.

• See Tshepo Mashile ‘Qualified privilege: defamatory statements made by lawyers during legal proceedings’ 2022 (Oct) DR 15.

Merilyn Rowena Kader
Legal Editor at LexisNexis