Zwiegelaar v Botha

• Jurisdiction: South Africa
• Citation: 1989 (3) SA 351 (C)

Zwiegelaar v Botha
1989 (3) SA 351 (C)

1989 (3) SA p351

Citation	1989 (3) SA 351 (C)
Court	Cape Provincial Division
Judge	Scott AJ
Heard	August 30, 1988; August 31, 1988
Judgment	March 1, 1988

Flynote : Sleutelwoorde B

Defamation — Defences — Privilege — Protection afforded to witness who testifies at judicial or quasi-judicial proceedings — Ambit of protection — Only when answer wholly unconnected to the question or issues, should the witness not be afforded protection — If a statement relevant in some measure, then reply protected. C Defamation — Defences — Privilege — Defendant making defamatory statement whilst testifying under oath at inquiry in terms of s 415 of the Companies Act 61 of 1973 — Fact that liquidator already had information no reason for depriving witness of protection — Defendant succeeding in establishing qualified privilege — Action for D defamation dismissed.

Headnote : Kopnota

As a matter of policy, wide protection should be afforded to a witness who testifies viva voce in judicial or quasi-judicial proceedings. What would seem to be required, however, to establish the privilege, is no more than the defamatory statement being 'in some measure relevant' to an issue or a question put to the witness. It is undoubtedly in the public interest that the privilege afforded to a witness should E be substantial. It should not be construed in a 'rigid or niggardly' way. A witness testifying under oath is enjoined to tell not only the truth but also 'the whole truth'. If he elaborates upon an answer to a question put to him in an endeavour to tell 'the whole truth', he ought not to be penalised by being deprived of provisional protection merely because upon reflection it may appear that the elaboration was unnecessary and not strictly relevant to either the question put to him or an issue in the case. It is only when the answer is wholly unconnected to the question or to the issues that a witness should not F be afforded provisional protection.

A defendant who seeks to establish the lawfulness of his defamatory statement on the ground that it was made in the course of giving viva voce evidence in judicial or quasi-judicial proceedings must, in order to be afforded provisional protection of the qualified privilege, establish that the statement was in some measure relevant, at least to the extent that it cannot be said to have been wholly irrelevant G and unconnected to the question to which it was a reply or to an issue in the proceedings.

Defendant had made a defamatory statement while testifying under oath at an enquiry held in terms of s 415 of the Companies Act 61 of 1973. The subject-matter of defendant's defamatory utterances was an alleged fraud committed by plaintiff who had 'destroyed all the documentation relating to Autoarc, the reason being that they had gone along and embezzled H the Receiver of Revenue on those accounts'. It was contended by plaintiff that the fraud had been committed by the previous owners in the conduct of the business which had nothing to do with Genarc CC whose affairs were the subject of the enquiry. It was submitted that defendant had failed to establish the provisional protection otherwise afforded a witness testifying under oath. Defendant pleaded that the defamatory words had been spoken on a privileged occasion.

I Held, that the defendant had taken the oath at the meeting of creditors and had become obliged to answer the questions put to him by counsel: the fact that the liquidator was already in possession of all the information the defendant could give or that the information which he had could have been obtained without requiring him to give evidence under oath was no reason for depriving him of the protection of the privilege.

Held, further, on the facts, that the defendant had succeeded in establishing on a preponderance of probabilities the existence J of circumstances giving rise to a

1989 (3) SA p352

A qualified privilege in relation to the defamatory words upon which plaintiff sought to found his cause of action. Action dismissed with costs.

Case Information

Action for damages for defamation. The facts appear from the reasons for judgment.

A J Horwitz for the plaintiff.

B A J Smit for the defendant.

Cur adv vult.

Postea (August 31).

Judgment

Scott AJ:

The plaintiff sues the defendant for defamation arising out C of a statement made by the defendant on 1 October 1986 while testifying under oath at a meeting of creditors of a close corporation, Genarc CC, which was then in the process of being wound up. Before considering the various issues raised in the pleadings, it is convenient to set out briefly the events leading up to the granting of an order for D the winding-up of Genarc CC and the circumstances in which the defendant came to testify under oath on the occasion in question.

In 1982 a company in which the plaintiff has a major interest, Ventco Engineering (Pty) Ltd, began importing and marketing in South Africa a certain power generator which could be fitted to an ordinary motor E vehicle and used for various purposes, including the driving of a welding plant. This business was carried on by a division of Ventco under the style of Autoarc. A certain Mr Voogt was engaged by the company in connection with the running of this business. The plaintiff testified that the enterprise was not successful and in 1984 Ventco, in effect, abandoned the business to Voogt who proceeded to run it for F his own account, but still under the style of Autoarc. Instead of simply importing the generator from Australia, Mr Voogt sought to modify and improve the device and eventually succeeded in doing so, to such an extent that he became entitled to patent his modification in South Africa. In the latter part of 1985 Mr Voogt decided to sell the business together with certain of the rights to his modification. On 4 December G 1985 he accordingly entered into two written agreements with a certain Mr P M Mostert. The first was for the sale of the business for the sum of R295 000. The second was a licensing agreement in terms of which, for a consideration of R5 000, Mostert was to acquire the licence to manufacture and market the generator on the African continent. As Voogt was essentially a technical man he requested the plaintiff to assist H him in finalising these agreements. The plaintiff agreed to do so and, in fact, witnessed the signatures on both agreements. On the same date Voogt also signed a separate one-page document recording that the price of the business in terms of the first of the agreements referred to above was reduced to R145 000. The plaintiff witnessed Voogt's I signature on this document. In cross-examination he could offer no satisfactory explanation why the purchase price of the business had been reduced from R295 000 to R145 000 in this manner and why the figure of R295 000 in the main agreement had not simply been altered to read R145 000 in the same way as other changes had been made.

By this time, ie by December 1985, the plaintiff and Voogt had J agreed to go into business together marketing Voogt's modified generator

1989 (3) SA p353

Scott AJ

A overseas and particularly in the United States of America. For this purpose it was intended to purchase units manufactured by Mostert under the licence agreement. On 4 December 1985, ie the same day as the agreement was signed, both the plaintiff and Voogt signed a letter addressed to 'Genarc' for the attention of Mr M Mostert in the following terms:

B 'As you are aware of the latest restructure of Moto Weld of which you hold the manufacturing rights, we would appreciate it if you would consider our export market volume in your planning for your factory for the year 1986.

By 15 January 1986, Johan and I will be visiting the United States to establish the possibility of a semi-firm order of 60 000 units for the year 1986. C As you know we are negotiating with several companies in the States for the best proposal. We also are pressurised by the fact that the Rand/Dollar situation could change and it will mean a drastic change for us.

Please let us have your opinion of delivery for that volume as soon as possible.'

The letter was headed 'Zwiegelaar and Voogt Marketing'. It was signed by both Voogt and the plaintiff. Once again, the plaintiff could offer D no satisfactory explanation as to the purpose of this letter save that he thought that Mostert wanted to file it. He denied that the purpose of the letter and the failure to reflect the true purchase price in the agreement for the sale of the business was to enable Mostert to use the letter and the agreement to raise finance.

At about this time, or shortly thereafter, the defendant met E Mostert who demonstrated to the defendant how the generator worked and told him that he had an option to acquire the right to manufacture and market it. The defendant testified that he was told that the price was R295 000 but that Mostert required financial backing. The defendant was impressed by the performance of the generator. He was shown the letter of 4 December 1985 signed by Voogt and the plaintiff, which similarly F impressed him. He also saw the two agreements which Mostert had entered into, ie the licensing agreement and the agreement for the sale of Voogt's business for R295 000. On 10 December 1985 he was given a written option by Mostert...