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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

    CASE NO: 31583/2018

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

THAPELO PETRUS MOKGATLE                                           First Plaintiff

MOLAPO INDUSTRIES PROPRIETARY LIMITED                Second Plaintiff

and

TOYOTA SA MOTORS PROPRIETARY LIMITED                First Defendant

SUBEN MOODLEY                                                              Second Defendant

JUDGMENT

LAMONT, J:

[1]        This is an exception brought by the defendants against the plaintiffs particulars of claim. The parties are referred to herein as they are set out in the particulars of claim. The defendants have itemized ten grounds in which they claim the particulars are excipiable.

[2]        The plaintiffs particulars of claim can conveniently be divided into two separate sections. The plaintiffs claim damages arising out of the repudiation of a contract and damages arising out of a defamation.

[3]        It is convenient to deal with the exception concerning the contract first. The plaintiffs allege that the first defendant repudiated the contract. The first plaintiff does not accept the repudiation and seeks to enforce the terms of the contract by way of claiming the specific performance contemplated in clause 11. Clause 11 contemplates that in certain circumstances the first defendant would be obliged to employ the first plaintiff in a position of no less than a vice president. The first plaintiff alleges that the circumstances which trigger the obligation to employ the first plaintiff have occurred and that he is entitled to be employed in the position. The first plaintiff alleges that in consequence of the first defendant’s repudiation, constituted by a refusal to recognize the binding force of the contract, the first plaintiff has suffered damages equivalent to a monthly retainer multiplied by the rest of his working life.

[4]        The first defendant objects to the use of the word retainer on the basis that the first plaintiff as an employee would have been paid a salary as opposed to a retainer. The submission is that the word retainer is used in relation to rights concerning the second plaintiff who would receive a retainer and hence that there is no link between the obligation to reemploy and pay a salary as opposed to the obligation to re-employ and pay retainer equivalent to what the second plaintiff would have been paid.

[5]        In clause 9 of the contract the word retainer is used in relation to what previously had been the salary of the first plaintiff but would after the contract was implemented become the retainer of the second plaintiff. The contract appears to use the word retainer as opposed to salary to refer to the payment which would be made second plaintiff.

[6]        The use of the word “retainer” in the plaintiffs’ particulars of claim constitutes the use of a word which has an ambiguous meaning in the context of the contract. This renders the particulars of claim vague and embarrassing in this respect. The exception taken by the first defendant does not pertinently direct the reader to this issue which is contained within a long and convoluted exception.

[7]        The prejudice suffered by the first defendant in consequence of the ambiguity and vagueness is small. While the ambiguity exists it is a matter with which the first defendant could have dealt by appropriate pleading.

[8]        The balance of the exceptions concern the defamation alleged.

[9]        The second exception concerns the allegations relating to publication of the defamatory content. The plaintiffs allege in paragraph 41 of the particulars of claim that the first defendant’s decision to sever all ties with the plaintiffs including the reason it was doing so (the defamatory content) became widely known in and was widely published as a result of the defendant’s conduct including certain listed persons. The plaintiffs allege in paragraph 42 of the particulars of claim that the defamatory content probably also became known to certain other entities. The plaintiffs allege in paragraph 50 of the particulars of claim that publication by the defendants of the defamatory statement was prima facie wrongful and defamatory.

[10]      There is a difference in the allegations made in paragraph 49 and 50 and the allegation made in paragraph 41 in that the allegation in paragraph 41 includes the decision to sever all ties with the plaintiffs as well as the statement that the first plaintiff was a person of interest whereas the allegations in paragraphs 49 and 50 refer only to the statement.

[11]      The allegation made in paragraph 41 is made in the passive tense. While it is alleged that there was publication as a result of the defendant’s conduct there is no allegation that the defendant is the person who made the publication neither is there any allegation concerning the nature and extent of the conduct referred to. The references in paragraphs 49 and 52, the publication being made by the defendants relates to the defamatory statement only and itself contains no particularity. The plaintiffs are obliged to allege that the defendants published, to whom they published, what they published and particulars of how the publication took place. See: Le Roux v Dey 2011 (3) 274 (CC) at paragraph 86. The particulars of claim of vague and embarrassing by reason of their failure to have done so.

[12]      The 3^rd 4^th and 5^th exceptions are an objection to the way in which the plaintiffs make reference to the provisions of Section 10 of the Equality Act. In paragraph 51 of the plaintiffs’ particulars of claim the plaintiff alleges that the defamatory statement is wrongful because it was published, propagated, advocated or communicated by the defendants in breach of Section 10 (1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000. That section provides that no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to –

            (a) be hurtful;

            (b) be harmful or to incite harm;

            (c) promote or propagate hatred.

[13]      The plaintiffs do not rely on the provisions of the Act to find a cause of action but only to provide a test establishing wrongfulness. While the Act may provide evidence as to a consideration of public and legal policy of society is in my view inappropriate to substitute the existing test or provide an additional test in the form of section 10 (1). The existing test to measure wrongfulness is to be found in  Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015).

            “Previously, it was contentious what the wrongfulness enquiry entailed, but           this is no longer the case. The growing coherence in this area of our law is         due in large part to decisions of the Supreme Court of Appeal over the last decade. Endorsing these developments, this court in Loureiro ie Loureiro v             Imvula Quality Protection (Pty) Ltd [2014] ZACC 4; 2014 (3) SA 394 (CC) para 53 recently articulated that the wrongfulness enquiry focuses on the           [harm-  causing] conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It is             based on the duty not to cause harm – indeed to respect rights – and        questions the             reasonableness of imposing liability. The statement that harm-       causing conduct is wrongful expresses the conclusion that public or legal            policy considerations require that the conduct, if paired with fault, is     actionable. And if conduct is not wrongful, the intention is to convey the     converse: ―that public or legal policy considerations determine that there should be no      liability; that the potential defendant should not be subjected to a claim for damages‖, notwithstanding his or her fault.‘

            [16] With reference to the criterion for wrongfulness referred to in   Loureiro,          as to whether it would be reasonable to impose liability on the defendant, the          Constitutional Court sounded the following note of             caution in Le Roux v Dey       (Freedom of Expression Institute and Restorative Justice Centre as amici           curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC) para 122): In the more recent          past our courts have come to recognise, however, that in the context of the law of delict: (a) the    criterion of wrongfulness ultimately depends on a           judicial determination of whether — assuming all the other elements of     delictual liability to be present — it would be reasonable to impose liability on        a defendant for the damages flowing from specific conduct; and (b) that the       judicial determination of that reasonableness would in turn depend on      considerations of public and legal policy in accordance with             constitutional norms. Incidentally, to avoid confusion it should be borne in mind that, what is meant by reasonableness in the context of wrongfulness         has nothing to do with the reasonableness of the             defendant's conduct, but        it concerns the reasonableness of imposing liability on the defendant for the       harm resulting from that conduct.”

            Mashongwa v PRASA (CCT03/15) [2015] ZACC 36; 2016 (2) BCLR 204   (CC); 2016 (3) SA 528 (CC) para 22 , 23 Oppelt v Head: Health, Department      of Health Provincial Administration:   Western Cape (CCT185/14) [2015]    ZACC 33; 2016 (1) SA 325 (CC); 2015 (12) BCLR 1471 (CC) para51 DE v            RH (CCT 182/14) [2015] ZACC 18; 2015 (5) SA 83 (CC); 2015 (9) BCLR         1003 (CC) para 17 to 22.

[14]      Accordingly the allegation concerning Section 10 (1) constitutes surplusage. However as presently framed it is vague and embarrassing in that it contains an allegation suggesting an alternative test to the appropriate one. It is doubtful whether or not the defamatory content constitutes hate speech however I need not deal with this issue.

[15]      The 6^th, 7^th and part of the 10^th grounds of exception concern whether or not the defamatory content is in fact defamatory. The defamatory content is constituted by the defendant’s conduct and the words that the first plaintiff was a person of interest in a HAWKS investigation. I have previously dealt with the lack of particularity concerning the defendant’s conduct which is unidentified and not particularized. The plaintiffs particulars of claim of vague and embarrassing in this regard The statement that the first plaintiff is a person of interest in a HAWKS investigation are alleged to be defamatory per se on the basis that there were intended and understood by the persons to whom they were published to mean that the plaintiff was dishonest. The words are alleged also to carry the quasi-innuendo or innuendo that:-

            1.         the plaintiffs are suspects in a criminal investigation by the                             South African Police;

            2.         the plaintiffs have been or are engaged in criminal or other                            nefarious activities;

            3.         the plaintiffs are dishonest or deceitful;

            4.         the plaintiffs cannot be trusted; and

            5.         should be avoided in any honest business relationship.

[16]      The statement means that the first plaintiff is a suspect in a criminal investigation by the South African Police. The statement is capable of meaning that the plaintiffs of suspected of having the characteristics further referred to in 2 to 5 above. The statement does not have the innuendo for quasi-innuendo alleged in 2 and 5. Similar words were considered and held not to have such an innuendo in Lewis and Another v Daily Telegraph Limited and Associated Newspapers Limited [1963] to All ER 151 (HL); Mirror Newspapers v Harrison [1982] HCA 50; (1982) 42 ALR 487; Modiri v Minister of Safety and Security & Others 2011 (6) SA 370 (SCA) at paragraph 15;  Moselakgomo v Media 24 Limited and others [2014] ZAGPJHC 147; Council for Medical Schemes and Another v Selfmed Medical Scheme and Another [2011] ZASCA 207; Smalle and Another v Southern Palace Investments 440 (proprietary) Limited and Another [2016] ZASCA 189 at paragraph 28.

[17]      The 10^th ground of exception concerns the claims made by the plaintiffs that their careers or business in the automotive industry have been affected (paragraph 55.3 and 55.4). There is no allegation made that the defamatory content was published to the automotive industry.

[18]      The plaintiffs’ particulars of claim are vague and embarrassing in relation to these grounds of exception.

[19]      The 8^th and 9^th grounds of exception concern the calculation of damages. The plaintiffs allege in paragraph 55 that they have suffered damages totalling R30 million. They then plead a number of facts which impact upon their ability to have earn an income and that they would each have earned a net profit of R10 million over the period of their employment which terminates with the first plaintiff’s birthday at age 65 years.

[20]      The plaintiffs do not particularize in financial terms what the impact upon their ability to earn an income is. There is no indication of the financial value of periods of employment or offices which would have been occupied which must be completed to underpin what the net profit would have been. No calculation can be made and no effective pleading directed towards the allegations in paragraph 55.

[21]      The plaintiffs’ particulars of claim of vague and embarrassing in this regard.

[22]      The plaintiffs submit that the exceptions taken by the defendants are long involved convoluted and often do not deal precisely with the problem which they seek to raise. There is merit in this argument. It appears to me however that the reason why the defendants have been driven to deal with the matters as they have is the long involved and convoluted particulars of claim which contain significant evidence, irrelevant material and lengthy sets of allegations which are not always identical. Had the particulars of claim been drafted tersely and precisely as is required i.e. only the allegations needed to find the cause of action set up then the exception may well have been different. The plaintiffs’ particulars of claim comprises some 55 paragraphs filled with evidence often in an illogical order. In order to facilitate a better understanding of the particulars of claim it was necessary for me to require the plaintiffs to provide me with an attenuated set of particulars for purposes of the hearing. I believe that it was the way in which the particulars were drawn that led to the way in which the exception was presented. In my view the defendants are entitled to the costs of the exception, such costs to include the costs of senior and junior counsel where employed.

[23]      The plaintiffs indicated that they would wish to amend the particulars of claim in the event of any of the exceptions succeeding.

[24]      I accordingly make the following order:

1.         The defendants’ exception to the plaintiffs’ particulars of claim is   upheld.

2.         The plaintiffs are afforded a period of one month from today’s date to deliver a notice of amendment containing such     amendment to the particulars of claim as they may be advised.

3.         In the event the plaintiffs fail to deliver the notice referred to in paragraph 2 then the defendants shall be entitled to apply on   proper notice for the striking out of the plaintiffs claim.

4.         The plaintiffs are to pay the costs of the exception such costs   are to include the cost consequent upon the employ of senior   and junior counsel where same were employed

__________________________________________

                                                                            C G LAMONT

                                           JUDGE OF THE HIGH COURT OF SOUTH AFRICA

                                             GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR PLAINTIFFS:                                  Adv. C.H.J. Badenhorst SC

(RESPONDENTS IN THE EXCEPTION)

PLIANTIFF’S ATTORNEYS:                                    Mohlala Attorneys

COUNSEL FOR THE DEFENDANTS/EXCIPIENTS:Adv. J.A. Daniels SC

                                                                                    Adv. C.C. Bester

ATTORNEYS FOR DEFENDNAT:                               Webber Wentzel                

DATE/S OF HEARING:                                                25 April 2019

DATE OF JUDGMENT:                                                03 May 2019

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