Bite your tongue! Is evidence given before the CCMA privileged?

13 Dec 2016

Witnesses giving evidence before the Commission for Conciliation, Mediation and Arbitration (“CCMA”) should take care when making statements that may expose them to defamation claims.

This issue arose in the recent case of Clover SA (Pty) Ltd and Another v Sintwa, in which the High Court heard a damages claim arising from defamatory statements made by a witness while giving evidence before the CCMA.

In this case, Harrison Sintwa was employed by Clover SA (Pty) Ltd (“Clover”) as a team leader, reporting to Frederick Bopp, a production manager. He was responsible for, among other things, checking machines and products to ensure that they passed the relevant standards before being dispatched to the market and was required to sign a daily operator report (“DOR”) to confirm that the relevant checks were done.

It came to Clover’s attention that Mr Sintwa had falsely represented that he had conducted certain checks when he had not done so. Consequently, Clover charged him with fraudulently co-signing the DOR and claiming that certain checks had been performed on a machine when this had not been done. A disciplinary inquiry was convened and Mr Sintwa was dismissed. Mr Sintwa then referred an unfair dismissal dispute to the CCMA. Mr Bopp gave evidence on behalf of Clover at the disciplinary hearing and at the arbitration proceedings before the CCMA. During his evidence, he stated that it had come to his attention that Mr Sintwa had co-signed the DOR report sheet and had thus committed fraud. The CCMA commissioner found Mr Sintwa’s dismissal to be substantively unfair on the basis that Clover had failed to prove that he was guilty of fraud, finding that his conduct had instead constituted negligence. Mr Sintwa was awarded four months’ salary as compensation. The award was not taken on review by Clover or Mr Sintwa.

Following his victory in the CCMA, Mr Sintwa approached the High Court and instituted a damages claim against Clover and Mr Bopp, arising out of the alleged defamatory statements they presented at the arbitration proceedings before the CCMA. Mr Sintwa claimed R100 000 as damages on the basis that Mr Bopp and Clover had wrongfully and unlawfully alleged that he had committed fraud. Clover and Mr Bopp denied this and argued that the statements had been made in quasi-judicial proceedings (the CCMA proceedings) and were therefore protected by qualified privilege.

The court found that the statement implicating Mr Sintwa of having committed fraud had been irrelevant and unconnected to the arbitration proceedings before the CCMA and that Mr Bopp had acted out of spite, which could be inferred from the fact that another employee who had co-signed the DOR with Mr Sintwa had not been charged. It held that Clover and Mr Bopp had exceeded the bounds of qualified privilege and awarded Mr Sintwa R100 000 in damages.

Clover and Mr Bopp then brought an appeal before a full Bench of the High Court. As Mr Bopp and Clover argued that they were entitled to qualified privilege as the defamatory statements had been made in quasi-judicial proceedings, the full Bench considered the test for qualified privilege in judicial or quasi-judicial proceedings. It held that the test was slightly (but significantly) different to the normal test for qualified privilege. The full Bench held that to rely on qualified privilege in quasi-judicial proceedings, a defendant need only prove, on a balance of probabilities, that the statements were relevant to the matter at issue. The onus thereafter shifts to the plaintiff to prove that, notwithstanding the fact that the statements were relevant, the statements were not supported by reasonable grounds.

The full Bench criticised the court’s earlier finding that “the statement of fraud made was irrelevant, unconnected to the matter and it was unnecessarily dragged into the matter that could easily be referred to as negligence.” It held that that since Mr Sintwa had been charged and dismissed for fraudulent conduct, Mr Bopp had to lead evidence in this regard for the benefit of the arbitrator who had to determine whether the reason for Mr Sintwa’s dismissal was valid. Mr Bopp and Clover therefore satisfied the requirements for relevance that must be met to qualify for qualified privilege in quasi-judicial proceedings. Mr Sintwa failed to show that there were no reasonable grounds for Mr Bopp and Clover to make the statements.

The full Bench then considered whether Mr Bopp and Clover had exceeded the limits of qualified privilege by acting out of malice. To succeed with this argument, Mr Sintwa needed to prove that:

  • there was no basis in evidence or surrounding circumstances for Mr Bopp to make the statement.
  • Mr Bopp knew that the statement was false or that there was no evidence to substantiate it.
  • Mr Bopp had personal spite or ill will in making the statement.

The full Bench held that the court’s earlier finding that an inference of malice could be drawn from the fact that the operator who had also signed the DOR form had not been charged was illogical and that malice could not simply be inferred from this. It further held that there was no evidence that Mr Bopp knew the defamatory statements to be false and/or that he had personal spite or ill will in making them.

The issue of privilege also arose in the earlier case of Chalom Raymond Edward v Wright Graham and Another. In this case, the High Court dealt with a damages claim arising from alleged defamatory statements published in an affidavit before the Constitutional Court. The claim was instituted by an attorney against another attorney and his client. The High Court applied the same principles as those applied in the Sintwa case and found that there were defamatory statements made in the affidavit and the defamatory statements were relevant to the proceedings. The High Court held that the defamatory statements were covered by qualified privilege and dismissed the damages claim.

These two decisions serve as a reminder to litigants, witnesses and legal representatives to act cautiously and to take into account the requirements for qualified privilege when making defamatory statements in legal or quasi-judicial proceedings, as they could find themselves being successfully sued for damages.

Also of importance is the question whether the evidence of persons given during disciplinary proceedings can be regarded as privileged. Because disciplinary inquiries do not constitute judicial or quasi-judicial proceedings, the principles applied in these two decisions do not apply to them.

But there are other possibilities. Firstly, the defence of qualified privilege can also be raised where a person has a legal, moral or social duty or a legitimate interest in making defamatory assertions to another person who has a corresponding duty or interest to learn of the assertions. The test for determining whether the occasion is privileged is an objective one. The question to be asked is: Did the circumstances, in the eyes of a reasonable person, create a duty or interest that entitled the party sued to speak in the way in which it did? If the defendant meets this requirement and can show that the assertion made was relevant to the discharge of the duty or the furtherance of the interest, the assertion will be privileged unless the plaintiff can show that the defendant acted with an improper motive. The other potential defence is that the statement was true and it was in the public interest that it be made.

Both these defences could arguably be raised in the context of statements made during disciplinary inquiries.

See also: The practical application of legal professional privilege in discovery proceedings

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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