Case Note: Clover SA (Pty) Limited and Another v Sintwa (CA2011/2015) [2016] ZAECGHC 77; [2016] 12 BLLR 1265 (ECG); (2017) 38 ILJ 350 (ECG) (13 September 2016)

/ / 2017, Labour Law


The respondent employee was a team leader tasked with ensuring that the first appellant company’s machines and products met stringent health and safety standards. One of his duties was to certify that the necessary checks had been done by signing the relevant form.

In December 2009 the employee signed a form certifying that certain products had been checked without himself having performed the requisite inspection. He was charged with, and found guilty of fraud. On a previous occasion he had committed similar misconduct which resulted in a loss of R2.6 million to the company. The employee was dismissed. He referred an unfair dismissal dispute to the CCMA. During his testimony before the arbitrating commissioner, one of the company’s witnesses, the second appellant, stated that the employee had ‘committed fraud’ when he signed the form.

The commissioner found, however, that the employee had been guilty of negligence, and awarded him compensation equal to four months’ salary. Neither party sought to review the award. A few years later the employee instituted action in the Magistrates’ Court claiming damages for the defamatory allegations made against him in the CCMA proceedings. The appellants denied that the allegations were wrongful and unlawful, and contended that the allegations were made in quasi-judicial proceedings and therefore enjoyed qualified privilege. The magistrate nonetheless found the appellants liable and awarded the employee damages in the sum of R100,000.


On appeal, the court noted that this case concerned qualified privilege which arises when a person makes defamatory assertions about another either ‘in the discharge of a duty or furtherance of an interest’ or when he is participating ‘in judicial or quasi-judicial proceedings’. When a defamatory statement is made during judicial or quasi-judicial proceedings, the defendant need only prove that the statement was relevant to the matter at issue. Once relevance is proved, the plaintiff must prove that, notwithstanding the statement’s relevance, it was not based on reasonable grounds. In both categories of qualified privilege, the plaintiff may show that the defendant exceeded the limits of the privilege because he acted with improper motive, i.e. maliciously.

The court found that, even though the CCMA is not part of the judiciary and is an administrative tribunal, its proceedings are quasi-judicial in nature.

Applying the principles set out above, the court then had to determine whether the defamatory statement was relevant in the CCMA arbitration proceedings. During those proceedings both parties presented evidence and arguments in support of their contentions. It was the duty of the commissioner to assess and choose between the opposing contentions. As the reason for the employee’s dismissal was his alleged fraudulent conduct, the version of the second appellant was indeed self-evidently relevant. Furthermore, the employee had laid no basis in his testimony that the impugned statement was not based on reasonable grounds nor had he even suggested that the allegation of fraud was motivated by spite or ill-will. It was clear from his responses to cross-examination that the employee believed that the second appellant had acted out of a sense of duty towards his employer.

The court accordingly upheld the appeal with costs.


A litigant relying on qualified privilege must establish that the occasion is in fact privileged and that the defamatory statements complained of were relevant to the purpose of the occasion.  Once it is accepted that a statement fell within the bounds of a qualified privilege, the onus shifts to the plaintiff to prove that the defendant was malicious.  Even though the CCMA is not part of the judiciary (i.e. not a court of law) and thus an administrative tribunal, its proceedings are quasi-judicial in nature.

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