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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 05951/2012

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

RAMARIDILI, ELPHUS                                                                                                   Plaintiff

and

MTN SA INNOVATION CENTRE                                                                       First Defendant

NYATHI, THEMBA                                                                                        Second Defendant

SUMMARY:    Human Resources Manager emails management colleagues describing junior employee as having ‘underlying psychological issues’ – employee sues for defamation –  prior to writing email manager had informed senior management that employee suffering from paranoia –  court finds statement defamatory.

Manager pleads statement made in course of attempting to procure medical and psychological  assistance for employee – court rejects this version.

Manager pleads fair comment and for public  benefit – court finds manager expressed opinion only and not a factual diagnosis – opinion expressed in email refers to relevant factors giving rise to such opinion – opinion honestly held – opinion also held by other persons – comment fair.

Public interest  distinguished from personal and individual concerns – comment in public interest for advantage of wider group than merely those engaged in quarrel – public interest not confined to politicians and notables – defendant is a multinational corporation whose shareholders, managers, employees, contractors and customers have an interest in  security and appropriateness of actions and behavior of employees – management had a duty to explore reasons for and explain behavior experienced as disruptive – public interest of those engaged in business enterprise  applicable.

JUDGMENT

SATCHWELL J:

INTRODUCTION

1. Plaintiff sues his former employer for defamation allegedly uttered in an email sent to colleagues by the Chief Human  Resources Manager  in MTN (South Africa).  The email reads as follows:

‘Colleagues.

I am personally convinced that Elphus has underlying psychological issues given the number of grievances and endless complaints both inside and outside of MTN.  He just recently took MTN to the CCMA and lost.   He recently claimed over R 5 million rands from MTN for not getting a job he applied for.  The jobs he is referring to within the Network Group  are part of the specialist  career track whereby all Network Group staff were consulted as approved by Remco three years back.

He keeps sending rude mails making all sorts of allegations.   We will  deal with the unacceptable, rude, disruptive behavior as a matter of urgency.

Regards

Themba.’

2. Plaintiff has pleaded that the words in the email are wrongful and defamatory in that they were intended and understood by the recipients of the email that the plaintiff has an underlying psychological issue and that the plaintiff is rude and disruptive.[1]

3.  Defendant has raised the following pleas:  Firstly, that recipients would not have understood the email in a defamatory sense[2]; Secondly,   that the second defendant did not send the email with the intention to defame but to assist plaintiff to overcome what appeared to be psychological issues in conformity with first defendant’s undertaking to assist all employees through the Employee Assistant Program Policy.[3] Alternatively, if it was found that the publication is defamatory, it is denied that the statements were made wrongfully or with intention to injure as they were made as an opinion or comment in the public interest of rendering professional assistance to an employee  through implementation of the Employee Assistant Program Policy.[4]  The comment was fair, relevant to the matter under comment and not actuated by malice and the recipients were able to discern the facts.

PRECURSORS TO THE ‘DEFAMATORY’ EMAIL OF 8^TH MARCH 2011

4. Plaintiff had been employed as a radio engineer with MTN since 2005. He worked within Network Group based in the Louis Trichardt area.

5. Over the period 15^th December 2010 to  8 March 2011,  plaintiff initiated a series of emails to the most senior management of MTN – at International Group level – with a  complaint which was of concern to him because it involved non-observance of policy by management.  He told the court that he felt he was speaking on behalf of the owners of MTN, the shareholders and all employees and himself because if there were policy breaches by management then all employees could ignore policy and eventually there would be no company.

6. On 15^th December 2010 he emailed Donald Khumalo – Senior Manager, Human Resources Operations, International Holding Company (‘Group’) – informing Khumalo of ‘irregular practices by HR’ involving appointments  ‘in total disregard of MTN recruitment Policy.’   He queried whether the employees he had named could be ‘disciplined.’

7. Two days later, on 17^th December 2010,  he again emailed Donald Khumalo   stating  MTN recruitment policy  and commenting that ‘failure to do that not only undermines the policy but MTN (Pty) Ltd.’   Again,  he names  individuals who ‘have clearly undermined Company Policies’  and queries ‘the appropriate process and procedure’  to address this issue.  This time, plaintiff copied this email to three other persons in management positions – Karel Pienaar (CEO of MTNSA), Sifiso Dabengwa  (President and Group CEO of the MTN Group) and Themba Nyathi (Chief Human Resources Manager of MTNSA  and second defendant).    

8. Less than an hour later on  the same day Donald Khumalo responded to plaintiff advising him that  second defendant  ‘is the Executive HR for MTNSA and he is well placed to address your query.’

9. Within twenty minutes, plaintiff again emailed Donald Khumalo advising that second defendant ‘as head of the Team involved can not be part of investigation.’  He repeated that his team ‘facilitated such breach of company policy and therefore he must be subject to investigation.’   Plaintiff repeated that ‘it is clear that the policy has been overridden.’ He asked to whom second defendant reported.    Again he copied his email to three additional persons – the CEO of MTNSA, the President and CEO of MTN Group and the Senior Human Resources Manager.

10. Fifteen minutes later, Donald Khumalo responded that second defendant reports to the MD of MTNSA and asked plaintiff to note that ‘we have no mandate to assist/engage you on this matter.’

11. The next day,   Saturday 18^th December 2010, plaintiff emailed Karel Pienaar – CEO MTNSA – as well as Nyathi (Senior Human Resources Officer of MTNSA,   Dabengwa (President and CEO, MTN Group) and Khumalo (Senior Human Resources Manager, MTN Group)   on the subject ‘disregard of recruitment policy.’  The crux of the email was ‘I am alleging that HR Team headed by Mr Themba is undermining the policies of MTNSA.  Can you please investigate as per allegations.’

12. There was no response from Pienaar.   On 8^th March 2011, plaintiff emailed Pienaar asking for a response to his email.

13. Pienaar did not respond to plaintiff.  Instead he emailed   Lee Ann Posthumus (Senior Manager for Human Resources, Network Group),    Themba Nyathi   (Senior Human Resources Officer MTNSA and second defendant)   and a copy to  Kanagaratnam Lambotharan (Group Executive of Network Group)   saying ‘I don’t accept this type of rude email to the MD and don’t follow the chain of command and expect disciplinary process to be followed with him.  Please facilitate.’

14. Ten minutes later, second defendant responded to Pienaar, Posthumus, Lambotharan, Sakkie Mashego ( Head of Industrial Relations, MTNSA) and Khumalo advising:

‘I am personally convinced that Elphus had underlying psychological issues given the number of grievances and  endless complaints both inside and outside of MTN.  He just recently took MTN to the CCMA and lost.  He recently  claimed over R5 million rands from MTN for not getting a job he applied for.  The jobs he is referring to within the  Network Group are part of the specialist career track whereby  all Network Group staff were consulted as approved by Remco three years back.

He keeps sending rude emails making all sorts of allegations.  We will deal with the unacceptable, rude, disruptive behavior as a matter of urgency.’

DEFAMATORY WORDS

The Author

16. Second defendant holds  the BA. LLB degrees from the University of the Witwatersrand and an   MBA  from a University in the Netherlands.    He also has completed various internal courses and has special training in counseling.   He explained to the court that his portfolio as Human Resources Manager,  MTNSA requires him  to look after the  welfare of staff  both in respect of physical and psychological challenges.       Staff encounter psychological challenges such as stress, paranoia, anxiety, depression.   Where necessary they are referred, in confidence, to a  contracted agency – ICAS – for counseling or therapy.   

“Underlying Psychological Issues”

17. Second defendant was at pains to repeat that the email of 8^th March opining on ‘underlying psychological issues’ was not sent to plaintiff.   He stressed that plaintiff was not copied with this email because it was ‘not my intention to belittle or insult him’ and he explained that ‘some staff feel belittled, insulted, confused… because they might not understand the full context.’ Second defendant himself seems to be conceding that the words complained of would  impact upon the plaintiff’s personal sense of self-worth or self-esteem.

18. To determine whether or not there has been a defamation, one has to assess the impact which these words would have made (if any) upon the public estimation of the worth or value of the plaintiff.

19. The words in their ordinary sense are a colloquial non-medical way of referring to mental illness. ‘Psychological  issues’ is a way of referring to some non-specific,  non-visible psychological frailty or illness or even mental illness.      They may be more or less common and more or less  serious.  In this email,  these ‘underlying psychological issues’  exhibit themselves in inappropriate workplace behavior such as ‘groundless complaints’   or which is ‘rude and disruptive.’ Clearly, in a workplace environment where team spirit and compliance with corporate ethos is desired, deviation from the normal is highly undesirable.

20. What is explicitly stated by second defendant does not impute  morally improper or disgraceful conduct to plaintiff. Second defendant has expressed an opinion that plaintiff is suffering from psychological disturbance  which explains his behavior.   That explanation suggests that he is  unable to control his choices or interactions with others because of the  impacts on his psyche which underpin his behaviour.

21. Reasonable and intelligent  management in a corporate environment cannot help but be influenced  in their assessment of the suitability of an employee for employment,  of the opinions expressed by such employee,  of the actions taken by such employee when they learn that  he  is suffering from   a psychological or mental disturbance.   Stigma attaches to mental disease in society generally and in a corporate environment,  management has a responsibility to ensure that fellow employees and customers  and not subjected to any untoward behavior initiated by psychological    abnormality.

22. I find that the words used were defamatory of plaintiff.

“Unacceptable,  rude, disruptive behavior”

23. Second defendant   noted that the CEO of MTNSA had  complained to him and others that the plaintiff’s  behavior was ‘rude’ with which he concurred because plaintiff had ignored the chain of command and the established procedures.

24. I have no difficulty in agreeing that plaintiff’s behavior was grandiose and sensationalist – he  went as high as he liked within the organization and  adopted a scattergun approach to reach as many people as possible.   Such behavior was certainly disruptive  and unacceptable.

25. I do not find that such comments were defamatory.

Impact upon recipients

26. Second defendant’s email was sent to five individuals – Pienaar,  Posthumus, Khumalo had all previously received emails while Lambotharan and Mashego were new to the circulation.   All were members of management.

27. Pienaar had provoked this email by demanding action.   Khumalo, who had been the initial recipient,  responded that he concurred with second defendant’s observations and that ‘Elphus needs help to deal with his own issues.’  He also referred to earlier interactions involving plaintiff and commented that ‘all parties’ had felt that plaintiff had merely been wasting his and their time.

28. In fact,  none of the recipients were unaware of the difficulties in dealing with plaintiff.    There had been previous grievances which had escalated to such an extent that  Mashego  had met with plaintiff  ‘about 20 times’  and eventually had discussions with plaintiff trying to ascertain what it would be worth to plaintiff to simply ‘walk away.’

29. Disruptive, difficult and demanding would be words that could be used to described plaintiff when one has regard to his  employment history at MTN.  He cannot have been held in very high esteem at all by management.    He was probably perceived as a nuisance best to be avoided.

30. Mental illness or psychological disturbance was something new which had only been identified by the second defendant  to other members of management  in the previous couple of days.   In a sense,   what had been uncomfortable behavior was now being labeled as illness.    This was a new perspective.   The defamation had an impact.

COMMUNICATION OF EARLIER DIAGNOSIS OF ‘PARANOIA’ INVOLVING PLAINTIFF

31.    Second defendant gave evidence that,   on either the  6^th or 7^th March 2011,  he was called to a meeting with Pienaar  (CEO),  and  Lambotharan  (Group Executive for Network Group)  at which the  CEO said that this situation with plaintiff could not continue,  plaintiff was disruptive and sensationalist,  debilitating of MTN internally and externally because of media attention and plaintiff needed to be disciplined.   The CEO was not happy with second defendant because he felt that HR was not doing anything about plaintiff’s insubordination and incitement and causing racial disharmony. Second defendant told the meeting plaintiff had psychological tendencies towards paranoia. Second defendant took the view that policies and procedures should be followed and plaintiff should be referred to counseling with the external agency retained at MTN cost to provide such services to employees.  He said that he would instruct Prudence Mokone (Senior Manager Human Resources and Employee Service Centre) to arrange this.

32. This  assessment by  second defendant of plaintiff  had emerged over a period of time and, in particular, as a result of a meeting which he had held with plaintiff some two months  previous.   Plaintiff disputed that this meeting had ever taken place.  According to second defendant,  plaintiff  had come to see him and raised a number of issues which  caused second defendant to form the opinion that plaintiff was suffering from paranoia.

33. After the meeting  with the CEO and Lambotharan on 6^th or 7^th March,    second defendant had made personal contact with Posthumus and Mashego and Khumalo and briefed them on discussions at the meeting, advised them of his diagnosis of paranoia and that he was going to arrange for plaintiff to be treated by ICAS rather than disciplined.

PROCUREMENT OF MEDICAL ASSISTANCE FOR PLAINTIFF

34. Second defendant was adamant that the purpose of writing the email of 8^th March was preliminary to and part of obtaining necessary psychological assistance for plaintiff.

35. He could not explain why there was no reference in his email  to  the  allegedly already discussed and agreed arrangements  for plaintiff to be referred to ICAS; why there was no mention that he had contacted Prudence Mokone who would be in charge of arrangements.

36. He could not explain why it is his own version that no steps were taken with regards to arranging counseling or therapy for six weeks after the email was sent.

37. In short,   there is absolutely nothing to indicate any intention, let alone plan, to arrange professional therapeutic  assistance as pleaded or to suggest that the email in question was part of or pursuant to such intention.

38. In devastating cross-examination by Advocate Pillay,    he was taken through the documentary chronology.   A further email of  18^th March 2011  to  Sakkie Mashego (Head of Industrial Relations) and Zakade Salmon (Senior Manager Human Resources)   regarding plaintiff’s claim for a ‘cash advance’   asked  them to  ‘look into this issue urgently as Elphus is getting more incompatible with MTN policies and practices.’    He agreed that ‘incompatibility’  is  a dismissible  offence.  There continued to be no reference to ICAS for counseling.   A notice of suspension[5] followed on 1^st  April which was 23 days  subsequent to the email of 8^th March but that there had still been no referral to ICAS.  

39. It was only on 19^th April that second defendant emailed[6]   Prudence Mokone (Senior Manager  Human Resources and Employee Service Centre) informing her that  a staff member (plaintiff) had ‘been suspended for insubordination,  incitement and incompatibility’  and that ‘I personally think that he need psychological help of  ICAS  counseling between now and going forward.  Maybe with proper counseling,   his behaviour can change and the chairman of the enquiry can make an informed decision.  It is clear that something is not right in his head based on his bizarre repeated grievances, and nonsensical emails to both staff and top management. I would like you to formally refer him for counseling… I think that he requires professional psychological assistance while the organization investigates his case.’    It is clear that this direction to Mokone was  directed to the upcoming disciplinary enquiry  and was not a belated follow-on from the email of 8^th  March.

40. Not only was there no evidence of any concern (as claimed and pleaded) about plaintiff’s psychological state,  but it was also put to second defendant  that he was actuated by personal animus in that which he had written on 8^th March.   After all the plaintiff’s  complaints had referred to him by name,  alleged second defendant had violated MTN policy and procedures,  wanted to ensure disciplinary procedures  were taken against him and wanted the higher authority to whom he reported to be informed.    I take the view that second defendant ignored plaintiff as long as he did precisely because he did not take plaintiff’s complaints seriously and did not expect anyone else to do so.   I see no malice – only exasperation – in second defendant.

41. It follows from this discussion that defendants plea  that ‘the email was sent with the intention to assist the plaintiff to overcome what appeared to be psychological issues to ensure the general wellbeing of the plaintiff’ must fail.

COMMENT IN THE PUBLIC INTEREST

42. Second defendant is no more than a counselor.  He is not a medical practitioner nor is he a psychologist.   He is not competent to make a diagnosis of either ‘paranoia’ or ‘psychological issues’.     Accordingly,   he cannot plead ‘truth and public benefit’ because neither he nor this court has the expertise to make and uphold such a diagnosis.

43. A great deal of time was spent on the reasons why second defendant,  as a result of discussions and interaction with plaintiff, formed the opinion which he did on plaintiff’s psychological state.     These ranged from  grievances about racism,  termination of computer access and non-promotion.    Again there is little purpose in discussing the  validity or otherwise  of these indicia.   Second defendant was and is not in a position to make a diagnosis and the court cannot  rely on it.

44. Accordingly,  it is appreciated that the defendants pleaded not ‘truth’ but ‘fair comment’ in the alternative defence.[7]  For a defence of ‘fair comment and public interest’ to succeed,  the comment must be based upon facts which are expressly stated.  For comment to be fair,  the facts must be substantially true.    In the email of 8^th March,   there is reference to  a number of factors, relevant to the opinion expressed, and  upon which second defendant relies in making this  comment.  

45. Firstly,  there are ‘the number of grievances.’  It is conceded by  plaintiff  that he  approached management with grievances on more than one occasion.     Secondly,   there are ‘endless complaints both inside and outside of MTN.’   It is conceded by second defendant that  plaintiff’s  complaints  about racism and termination of computer access were not groundless.   Thirdly,  there is reference to   ‘complaints outside MTN’ which may be a reference to the media picking up on the racism allegations but which leak was never proven to be connected to plaintiff.  If this is a reference to complaints to the CCMA,  no one can be penalized for utilized statutory mechanisms for dispute resolution.   Fourth,   ‘he just recently took MTN to the CCMA and lost.’    It is arguable whether it makes much difference  that the complaint to CCMA was unsuccessful or undetermined  or lost.  There was no positive outcome for plaintiff.  Fifth,   plaintiff  ‘recently claimed over R 5 million rands from MTN for not getting a job he applied for.’  It is correct that there  were proceedings  before the CCMA  and that there were discussions between plaintiff and Mashego  to find out how much it would cost MTN for plaintiff to ‘walk away’ but that is not the same as lodging a claim with the CCMA.  The amount of R 5 million  was seen by Mashego as without any ‘scientific’ basis whilst plaintiff might see it as a negotiating position.  It does, however, seem to be an extraordinarily high sum for an employee in his position.   Sixth,    ‘the jobs he is referring to… are part of a specialist career track’ which is not disputed.  Seventh,  he keeps on sending  emails ‘making all sorts of allegations’ which are ‘rude.’   This rudeness has been qualified  as involving approaches to senior management well out of plaintiff’s chain of command or line or approach.

46. On the whole,   it would seem that the factors upon which second defendant relied to justify his comment were substantially true.

47. The view of second defendant  was not expressed as fact but as an opinion.  He commenced the email with the words ‘I am personally convinced.’    This view was clearly honestly held.  He was adamant at the trial that he now thought that he was expressing not just an opinion about plaintiff but an actual fact.  He was very clear that plaintiff was indeed suffering from paranoia and continually referred to the ‘evidence’ presented by plaintiff which apparently justified this diagnosis.

48. I have already indicated why the opinion of second defendant cannot be held to be true or correct – but all second defendant has to show to succeed in his defence is that his comment was ‘fair.’   I am of the view that the opinion or comment  does qualify as fair.   It is honestly held and apparently emerges over a period of time and interactions.   It is a not unreasonable comment  given that Mashego had a  similar view  before receiving the email and Khumalo  gave his own reasons for accepting this view after the email.

49. Public interest has traditionally been  understood as the interest of wider society in the affairs and statements and activities of public figures such as politicians or notable figures.       Public interest is obviously opposed to the private interest which pertains to personal and individual concerns.   The distinction between the two is obvious:    comments in the public interest are for the benefit of a wider group than merely those who are interacting as defamer and defamee;   the  sphere of those advantaged by knowing or learning of the comment is  more extended than those with a merely personal  quarrel.

50. MTN is a vast organization.   It operates within South Africa,  in Africa,  in the Middle East and in Europe.     It employs thousands of people.   It’s  customers are numbered in their millions.    The organization, its shareholders,  the management, the employees,  the customers, the contractors all have an interest in the wellbeing of MTN.   They all have a need to be assured that their interactions with MTN and its employees are safe and appropriate.   The organization and its management can expect   that employees behave appropriately,   act without disruption,  treat everyone courteously,   follow procedures and work within an accepted framework.    

51. I find that the Human Resources Manager of MTNSA is entitled, even required, to comment on the psychological wellbeing of an employee when the CEO has raised the perceived ‘rude’ behavior of the employee with him and other members of management.

52. In the result I find that the alternative defence of fair comment and public benefit succeeds.

ORDER

Plaintiff’s claim is dismissed with costs.

Dated at Johannesburg on 3^rd June 2014.

________________

K. SATCHWELL

Date of hearing :  28^th, 29^th, 30^th May 2014

Counsel for Plaintiff:  Adv. L. Pillay

Attorneys for Plaintiff:  Nishlan Moodley Attorneys

Counsel for Defendants:  Adv. A. Mthembu

Attorneys for Defendants :  Mashiane, Moodley & Monama Inc.

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