Dikoko v Mokhatla

• Jurisdiction: South Africa
• Citation: 2006 (6) SA 235 (CC)

Dikoko v Mokhatla
2006 (6) SA 235 (CC)

2006 (6) SA p235

Citation	2006 (6) SA 235 (CC)
Case No	CCT 62/2005
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde-Mono J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	March 23, 2006
Judgment	August 3, 2006
Counsel	W L Wepener SC (with him T J Bokaba) for the applicant.; Q Pelser SC for the respondent.

Flynote : Sleutelwoorde F

Constitutional law — Local government — Council — Councillors — Powers and privileges of — Privilege immunising councillors from civil proceedings for statements made in meetings of council or its committees — Local Government: Municipal Structures Act G 117 of 1998, s 28, and s 3 of Municipal Structures Act 3 of 2000 (NW) — Defamatory statement made by councillor (mayor) in meeting of Provincial Public Accounts Standing Committee — Such not a meeting of Council or one of its committees — Accordingly, privilege not applicable — Defamatory statement made concerning councillor's overdue municipal cell-phone H account — Statement not made in context of real and legitimate business of council but his personal finances and indebtedness to council — Facts not requiring Court to decide whether s 28 and s 3 should be interpreted to extend to business of council outside of council or its subcommittees.

Constitutional law — Human rights — Right to freedom of expression — Public I officials — Defamatory statement made by municipal councillor (mayor) in meeting of Provincial Public Accounts Standing Committee — Such not a meeting of Council or one of its committees — Accordingly, privilege afforded by s 28 of Local Government: Municipal Structures Act 117 of 1998 and s 3 of Municipal Structures Act 3 of 2000 (NW) not applicable — Semble: Immunising municipal councillors from criminal or J

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civil liability for statements made during council deliberations a bulwark of democracy — If A councillor participates in genuine and legitimate functions or business of council, whether inside or outside of council, privilege afforded by 28 of Structures Act, 1998, ought to extend to him or her.

Constitutional practice — Courts — Constitutional Court — Jurisdiction — Constitutional matter — Application for leave to appeal from order B holding municipal councillor liable for defamation arising out of statement made in meeting of Provincial Public Accounts Standing Committee — Issue raised whether privilege afforded by s 28 of Local Government: Municipal Structures Act 117 of 1998 and s 3 of Municipal Structures Act 3 of 2000 (NW) applicable — Such involving interpretation and application C of provisions of Constitution and statutory provisions authorised by Constitution — Such clearly a constitutional issue — Also in interests of justice for Constitutional Court to hear appeal.

Constitutional practice — Courts — Constitutional Court — Jurisdiction — Constitutional matter — Award of damages for defamation — Court holding in casu that it was D not necessary to decide whether appeal against such award raised a constitutional issue — No reasonable prospect of Court altering award of trial Court — Semble: Delict of defamation implicating both human dignity and freedom of expression — Both protected by Bill of Rights in Constitution — Remedy of sentimental damages for E defamation constituting 'appropriate relief' within meaning of s 38 of Constitution — Accordingly, strong argument to be made that assessment of damages for defamation is a constitutional matter.

Constitutional law — Provincial government — Provincial legislature — Members — Powers and privileges of — Privilege against civil liability for statements made in legislature or its committees — Constitution of the F Republic of South Africa, 1996, s 117, and Powers, Privileges and Immunities Act 5 of 1994 (NW), ss 2, 9 and 35 — Privilege limited to members and officers of legislature and not afforded to officials or persons other than such members or officers — Accordingly not available to municipal councillor appearing before Provincial Public Accounts Standing G Committee in enquiry into his overdue municipal cell-phone account — Section 10 of North West Privileges Act cannot be read to extend scope of immunity conferred on members of legislature by ss 2, 9 and 35 — Quaere: Whether legislation should not afford privilege more equitably, not only to members but also to those who appear before legislature or its committees as witnesses. H

Headnote : Kopnota

The respondent had sued the applicant in a High Court for damages for defamation and had been awarded damages in the sum of R110 000. The applicant applied to the Supreme Court of Appeal for leave to appeal against the finding of liability as well as against the quantum of damages awarded, but the application was I dismissed. In an application to the Constitutional Court for similar leave to appeal, it appeared that the applicant was the executive mayor of a district municipality in the North West Province and the respondent its chief executive officer. Following the applicant having overspent on his cell-phone account, the respondent had received letters from the Provincial Auditor-General about the matter. The J

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respondent had on a number of occasions brought the matter to the applicant's attention. Eventually the Provincial Auditor-General A called on the applicant to appear before the North West Provincial Public Accounts Standing Committee (Standing Committee) to provide an explanation. In doing so, the applicant made certain remarks to the effect that his overdue indebtedness was because the respondent had changed the accounting procedures of the Municipal Council (the Council), providing for periodic as opposed to more frequent monthly B payments of cell-phone account excesses; that he did so deliberately, causing his indebtedness to the Council to accumulate, thereby giving political opponents a basis for an attack on his integrity. In the High Court action the applicant entered a special plea based on s 28 of the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act), averring that s 28 afforded him privilege in that he was not C liable to civil proceedings for the statements he had made in the Standing Committee. In support of this contention the applicant averred that the Standing Committee was a public hearing of the Council and that he was therefore entitled to the privilege as a member of the Council under s 28. The High Court dismissed the special plea, holding that the Standing Committee meeting, even though held in the chambers D of the Council, was a meeting of the provincial legislature and not that of the Council and that s 28 was therefore not applicable. In the application for leave to appeal to the Constitutional Court, the applicant averred that the meeting of the Standing Committee was a meeting of a committee of the Council, as contemplated in s 28 of the Structures Act and s 3 of the North West Municipal Structures Act 3 of E 2000 (the North West Structures Act). Alternatively, the applicant averred that his attendance at the Standing Committee was part of the extended business of the Council and that, even if the meeting in question was a meeting of the Standing Committee, the applicant would qualify for the privilege under s 117 of the Constitution of the Republic of South Africa, 1996, read together with s 9 of the North F West Powers, Privileges and Immunities Act 5 of 1994 (the North West Privileges Act). The applicant also averred that the award of damages made against him was excessively disproportionate or grossly unreasonable, in that it was not commensurate with the limited publication of the statement as well as the slightness of the injury to the respondent's reputation. Consequently, it was contended that the Constitutional Court should interfere with the High Court's award G and substitute it with its own. It was averred that an award of R20 000 to R30 000 would be adequate.

Held (per Mokgoro J and all members of the Court), as to the question whether the application for leave to appeal on the question of liability had raised a constitutional matter and whether it was in the interest of justice to grant such leave, that the issue whether privilege extended to the applicant for the statement he H made to the Standing Committee involved the interpretation and application of the provisions of the Constitution and statutory provisions authorised by the Constitution. It also pertained to the regulation of aspects of the constitutional powers and functions of municipal councillors and members of provincial legislatures. This clearly raised a constitutional issue. (Paragraph [29] at 249G.) I

Held, further, that the application raised the important constitutional issue of the ambit of the privilege afforded under the Constitution and the legislation authorised by the Constitution. That immunity protected councillors from defamation actions, enabling them to speak and express themselves freely and openly. It was therefore essential to constitutional democracy. However, it prevented those that may be defamed from seeking recourse through J

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the courts. Its precise ambit was therefore an important constitutional issue and it was in the A interests of justice for the Court to hear the appeal. (Paragraph [30] at 250A - C.)

Held, further (per Mokgoro J and all members of the Court), as to the issue of the applicant's liability, that the Standing Committee was a meeting of the North West Legislature Finance Committee and not a meeting of the Council or one of its committees. (Paragraph [31] at 250D.) B

Held, further, that the texts of both s 28 of the Structures Act and s 3 of the North West Structures Act...