IN THE SOUTH GAUTENG HIGH COURT

(JOHANNESBURG)

CASE NUMBER:  A3024/05

In the matter between: -

ERROL BYRNE                                                           Appellant/Plaintiff

and

MASTERS SQUASH PROMOTIONS                       First Respondent/Defendant
CC

R A MALLAC                                                               Second Respondent/Defendant

JUDGMENT

SATCHWELL J:

1.	This appeal has raised the intriguing issue whether or not the contents of a letter from an employer advising an employee of the reasons for his dismissal can found an action for defamation or injuria.   The issue of privilege is discussed. 
2.	The appellant (Mr. Errol Byrne) was dismissed from his employment with first respondent (Masters Squash Promotions CC) at the instance of a member thereof , the second respondent (R A Mallac). He contends that the letter dismissing him from his employment is prima facie defamatory of himself or carries certain innuendos alternately that he was humiliated and degraded by the contents thereof. He further contends that these defamatory  contents were published to the typist who produced the letter of dismissal and that the injuria was suffered on receipt of the letter. Appellant therefore instituted an action against the respondents in the Randburg Magistrates Court   for damages in the amount of fifty thousand rand (R50 000.00). He now appeals the dismissal of his claims with costs . 
3.	The appellant was concurrently employed  by  the first respondent and a competitive institution, the Damelin Squash Centre. A client of the first respondent reported to the second respondent that the appellant had attempted to solicit  his patronage and that of a squash team away   from the first respondent to the Damelin  Squash Centre. 
4.	Acting upon such information, the second respondent caused the contentious  letter to be sent on behalf of the first respondent, the relevant portions reading as follows;
“Although we were aware of your involvement with the Squash Connection at the Damelin campus at the time that the alternative offer of employment was made to you, we were of the opinion that there would be no conflict of interests.
It has come to our attention, however, that following your appointment as Manager at the centre you have been soliciting business from our client base which is a total violation of the trust which we believed would be respected in our mutual interest.
Under the circumstances we have no option but to invoke the 24 hour notice period with immediate effect. Would you please, therefore, ensure that all your personal belongings are removed form the premises forthwith and keys in your possession handed to reception.
It must be clearly understood that, in terms of what has transpired, we are not prepared to debate this issue under any circumstances whatsoever.”    
3.	It is common cause at the dictation to the typist of this letter constituted publication to her.    For purposes of this judgment it can be accepted that  the contents of this letter are prima facie defamatory of the appellant.  
4.	The only issue for decision at trial and in this appeal is whether or not  such publication  was justified in the circumstances in  which it was published. 
5.	Appellant has testified regarding  his shock at his dismissal, distress at his unemployment, concern at what he perceived as an “unfair dismissal”.  However, it    was not required of the trial court nor is it necessary for this appeal court to  determine any substantive or procedural issues pertaining to the dismissal of the appellant.   Any  complaints which  the appellant may or may not have with regard to his dismissal  are not for determination by the trial court or this appeal court .  This is an action for damages based upon alleged defamation  or injuria and  not the hearing of a labour dispute.
6.	 The evidence of Mr Dean Milbank is that he made a report to  second respondent that appellant had attempted to solicit  business away from first respondent to a competitor. Second respondent  (as a member of the employer close corporation)  and first respondent (as employer) perceived the appropriate response to be immediate termination of the  part time employment of the appellant. This they did in the letter of which the appellant complains. 
7.	It is well established that where  defamatory statements are made in privileged circumstances then the prima facie wrongfulness of such utterance or publication is justified (see Herselman NO v Botha 1994 (1) SA 28 (A)).  The issue of privilege   is approached by considering whether or not  “the statements were relevant to the occasion “ , relevance  being essentially “a matter of reason and common sense, having its foundation in the facts, circumstances and principles governing each particular case”.  Assessment of whether a defamatory statement was relevant to the occasion is “essentially a value judgment”. 
8.	It is trite that an employee is entitled to know the basis upon which any disciplinary action is taken against him and particularly the sanction of dismissal. An employee  who is dismissed with no knowledge as to the reason for such action would  usually and understandably  feel most aggrieved.   An employer who  fails to inform an employee of  the reasons for his dismissal could  possibly expose itself to a complaint of unfair dismissal on that ground alone. 
9.	It is my view that  appellants’ employer and manager had both  a moral  and social  duty as well as  a legal duty   to communicate to  the appellant  the reasons for his dismissal from their employment.  (see De Waal v Ziervogel 1938 AD 112).  Considerations of morality and social  harmony suggest that  persons must know why actions to their prejudice are taken against them.   Failing such courtesy and absent such information,   employees would feel unjustly treated and aggrieved and these feelings could lead to various forms of labour unrest.   Further, failure to furnish reasons for dismissal would prejudice a former employee who wishes to challenge or appeal such dismissal. Finally,  the Code attached to the Labour Relations Act inter alia requires such reasons to be given.
10.	I therefore find that the publication of the contents of the letter of dismissal to the typist  by the second respondent on behalf  of the first respondent  was, in these circumstances, privileged. 
11.	I should remark that, if this were not so,  every employer who furnished such reasons in writing or through  subordinates or to other third parties such as shop stewards or immediate managers would  expose themselves to actions for defamation.   Further,  if this were so,    employees who  were to be  denied  reasons for their dismissal by employers who feared such exposure  to defamation actions would rightly feel aggrieved.   
12.	I have no difficulty in accepting that publication to a  typist of the contents of the letter of dismissal which is to be typed is publication in the exercise of a duty to inform the appellant of the reasons for termination of his employment.   However,  appellant now raises in  his supplementary heads of argument that “it is common knowledge” that the second respondent and  the typist   communicated these allegations  to  other persons.  This was not evidence  at the trial,  the second respondent has not had the opportunity to deal with such averments,  the typist was not called as a witness.  It is trite that an appeal court is bound to the record of the proceedings in the court a quo.   It is only in exceptional circumstances  that further evidence could be received on appeal.   No such basis has been laid for the admission of such new information into ‘evidence’ at this appeal.
13.	In the result this appeal is dismissed with costs. 

DATED AT  JOHANNEBURG  3RD AUGUST 2009 

_____________________
Satchwell J

I agree

______________________
Beckerling AJ

Date of hearing:  3rd August 2009
Date of Judgment 3rd August 2009

For the Appellant: In person
For Respondent:   W B Pye
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