Defamation entails the publication of defamatory remarks concerning another person which result in reputational impairment. To succeed with a claim for defamation, a plaintiff must prove that there was publication, the published matter was defamatory in nature, and that reference was made to the plaintiff in the matter. Publication in the context of defamation entails the act of making the defamatory matter known to others.
In the context of an employment relationship, can an employer’s remarks in respect of an employee alleged to have perpetrated certain acts of misconduct be regarded as defamation? This question was considered by an appeal bench of the High Court in the recent judgment of Lungisa Khuza & King Sabata Dalindyebo Municipality v Nontandabuzo Khanyiwe (5009/2018) [2025] ZAECMHC 15 (4 March 2025)
Ms Nontandabuzo Khanyiwe (“the employee”) was employed in the cleaning department of the King Sabata Dalindyebo Municipality (“the Municipality”). In 2016, there were reports that the refuse removal bags of the Municipality, which were not meant to be sold, were seen at a hardware store.
Mr Lungisa Khuza (“Mr Khuza”), a superintendent working in the team that the employee was employed in, conducted an investigation which revealed that the refuse removal bags were given to the retailers by some of the municipality’s employees. CCTV footage allegedly showing municipal employees offloading the refuse bags at a hardware store and receiving money in exchange was discovered during the investigation.
After one of the employees involved confessed to their involvement in the scheme, the employee also approached the Municipality to admit to her complicity, and apologised. A disciplinary enquiry was convened, and she pleaded guilty to the charge of gross dishonesty. The employee later contended that the plea of guilty was tendered on the advice of her Union representative.
The employee then instituted a civil claim for defamation in the High Court against both Mr Khuza and the Municipality, alleging that she had been falsely accused of theft in the presence of others and that this impaired her dignity. The High Court found in favour of the employee and awarded her compensation in the sum of R120,000.00 (One Hundred and Twenty Thousand Rand).
Aggrieved by the decision of the court a quo, the Municipality appealed the judgment. The appeal court arrived at a different conclusion. While it accepted that the defamatory statements in question were indeed made, and that they were made about the employee, the appeal court found that insufficient attention had been given to the context within which those statements had been made and that the evidence of Mr Khuza had been ignored without any sound basis for doing so.
The appeal court found that in defamation matters, a publication made in the course of a disciplinary enquiry could constitute so-called ‘qualified privilege’, which is a recognised defence to defamation claims. In this regard, the statements were made by Mr Khuza during a workplace investigation into alleged misconduct. The persons to whom the statements were made were also internal officials of the Municipality, who had a legitimate interest in the disciplinary enquiry. The statements were thus made on a privileged occasion and could not be considered defamatory in law.
The judgment clarifies that employers are entitled to investigate misconduct and confront employees on allegations that arise in the workplace. When utterances are bona fide in nature and in the ordinary course of the employer’s operations, such conduct may be protected by the defence of qualified privilege.
