THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 447/08

MICHAEL TUCH, HEATHER BRENDA EISER
HILTON MYERSON, JONATHAN TUCH NNO
Appellants

and

MYERSON, JEFFREY HAROLD
First Respondent
MYERSON, JEFFREY HAROLD ROPER,
ALASTAIR BRIAN NNO
Second Respondent
MASUREIK, DION BARRY
Third Respondent

Neutral citation:
Tuch v Myerson (447/09) [2009] ZASCA 132 (30 September
2009)

Coram:
STREICHER, MHLANTLA JJA and GRIESEL AJA

Heard:
8 SEPTEMBER 2009

Delivered:
30 SEPTEMBER 2009

Summary:
Defamation – defamatory allegations made in civil judicial
proceedings – qualified privilege – allegations devoid of merit –
ulterior purpose inferred – malice.

ORDER

On appeal from: High Court, Johannesburg (Malan J sitting as court of
first instance)

The following order is made:
The appeal, in so far as the first and third respondents are
concerned, is partially upheld with costs.
The appeal, in so far as the second respondent is concerned is
dismissed.
The order of the court below is set aside and replaced with the
following order:

‘(a)
The first and the third defendants, jointly and severally, are
ordered to pay to the plaintiff an amount of R30 000.

(b)
The plaintiff’s claim against the second defendant is
dismissed.

(c)
The first and third defendants, jointly and severally, are
ordered to pay the plaintiff’s costs.’

JUDGMENT

STREICHER JA (MHLANTLA JA and GRIESEL AJA concurring)

[1] The appellants are the executors in the deceased estate of Nathan
Myerson (‘the deceased’) who died on 4 March 2008 after an action for
defamation instituted by him against the respondents had been dismissed

by the Johannesburg High Court. Thereafter that court granted leave to
the appellants to appeal to this court.

[2] The alleged defamatory statements were made in an affidavit
deposed to by the first respondent (Jeffrey Harold Myerson) in
application proceedings instituted by the deceased against, amongst
others, the first respondent and the third respondent (Dion Barry
Masureik). The second respondent, namely Jeffrey Harold Myerson and
Alistair Brian Roper, in their capacities as trustees of the Jefferson
Business Trust, were subsequently joined as respondents in the
application proceedings.

[3] In the application proceedings the deceased claimed from each of
the first and third respondents delivery of share certificates reflecting him
as the holder of two and a half per cent of the share capital in a company
Jazz Spirit 46 (Pty) Ltd (‘Jazz Spirit’). In this regard the deceased relied
on a written undertaking dated 23 April 2004 and signed by the first and
the third respondents, which reads as follows:
‘This letter confirms that we (Mr JH Myerson and Mr DB Masureik) are holding in
trust 2,5% each of the shares of Jazz Spirit 46 (Proprietary) Limited. You can acquire
these shares at no cost, whenever you wish to have these shares transferred into your
name, subject to the following conditions: -
the shares will be available at any time after the transfer of the land into our
name has been finalized;
we require 3 working days’ verbal notice by you to transfer these shares;
these shares are being held specifically for yourself only and may not be sold,
pledged or transferred to any other person or entity except to ourselves in which case
these shares will be transferred back to ourselves or our nominee at par value to be
determined by the auditors of Jazz Spirit 46 (Proprietary) Limited.’

The parties are agreed that the phrase ‘into our name’ in the first
condition should read ‘into the name of Jazz Spirit 46 (Pty) Ltd’. The
land in question was transferred to Jazz Spirit in July 2004 and in March
2006 the deceased called upon the first and third respondents to transfer
the shares referred to in the written undertaking to him. On 30 March
2006 the first and third respondents’ attorneys wrote to the deceased’s
attorneys:
‘It is sufficient to state that your client has no right or entitlement whatsoever to the
shares nor the financial statements of Jazz Spirit 46 (Pty) Ltd, you refer to.’
They did not disclose the basis upon which it was alleged that the
deceased had no entitlement to the shares.

[4] The deceased thereupon launched an application against the first
and third respondents for the transfer of the shares. In his answering
affidavit the first respondent stated that in so far as the aforesaid
undertaking was binding on the third respondent and on him it constituted
a donation ‘motivated by nothing other than pure liberality and
generosity’. Being a donation he stated that it was not valid as, according
to him, there had not been compliance with s 5 of the General Law
Amendment Act 50 of 1956. He did not say why not. He stated,
furthermore, that the document contained no more than an offer and that
the offer had not been accepted within a reasonable time. Later in the
same answering affidavit he alleged that the undertaking contained in the
document was furnished under duress. But still later he again alleged that
the transaction was that of a donation and that the third respondent and he
‘were entitled to revoke the donation by virtue of inter alia [the
deceased’s] ingratitude’. The deceased’s gross ingratitude was, according
to him, evidenced by the following:

’30.3.1 [The deceased] and my father who died in September 2003 were brothers and
partners in mainly immovable property.
30.3.2 During about July 2004, I found out that the [deceased] had misappropriated
something in the order of R5 to R6 million of my father’s portion of the partnership. I
took this up with the auditors, namely Kessel Feinstein, who confirmed that this had
indeed occurred. I further established that the [deceased] had transferred all or most of
these funds to Ireland via his wife who was Irish. This information was extremely
disturbing.’

[5] Yet another defence raised by the first respondent in the answering
affidavit was that the third and fourth respondents in the application
proceedings were shareholders in Jazz Spirit and that they would not vote
in favour of the transfer of the shares to the deceased. He stated that the
third and fourth respondents ‘are of the view that should [the deceased]
become a shareholder in [Jazz Spirit] he would devote his time and
energy to creating as much trouble, unpleasantness and problems as
possible’.

[6] The third respondent filed a confirmatory affidavit in which he
asked that the first respondent’s affidavit be read as if incorporated into
his affidavit.

[7] The statement that the deceased had misappropriated something in
the order of R5 to R6 million of the first respondent’s father’s portion of
the partnership and the statement that should the deceased become a
shareholder in Jazz Spirit, he would devote his time and energy to
creating as much trouble, unpleasantness and problems as possible, gave
rise to the defamation action which is the subject matter of this appeal.

[8] The respondents in their plea denied that the publication of these
statements was wrongful and pleaded that the statements were published
in the course of judicial proceedings ie on a privileged occasion. The
deceased replicated that the statements were made maliciously.

[9] The court below held that both the aforesaid statements were per se
defamatory. In respect of the first statement it said that ‘any reasonable
reader of ordinary intelligence would conclude that the word
“misappropriated” means that the [deceased] is called a thief who stole
some R5 to R6 million from the [first respondent’s] father’. In respect of
the second statement it said:
‘The ordinary reader would conclude that the plaintiff is a troublemaker, ie a person
who would, as a shareholder, not devote his time and energy for the benefit of the
company but would disrupt it. The clear implication is that the plaintiff is unfit to
have as a (minority) shareholder. This reflects on his reputation as a businessman.’
I am in full agreement with these findings of the court below.

[10] The publication of the defamatory statements gave rise to a
presumption of unlawfulness and animus injuriandi on the part of the first
and third respondents.1 The presumption of unlawfulness could be
rebutted by proving that the publication took place on an occasion of
qualified privilege such as during the course of civil judicial proceedings
provided the requirements for relevance were satisfied.2 The court below
held that the defamatory statements were indeed relevant to the issues in
the application proceedings. It added that the deceased could in the
circumstances only succeed if he could show that the respondents acted
maliciously and thereby exceeded the bounds of qualified privilege. It

1 Suid-Afrikaanse Uitsaaikorporasie v O’Malley 1977 (3) SA 394 (A) at 401 in fine – 402A.
2 Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and others 2001 (2) SA 242 (SCA) par 21.

concluded that the deceased failed to do so and for that reason dismissed
the action.

[11] The court below correctly held that the protection afforded by the
qualified privilege afforded to a litigant is forfeited if the defamatory
statement is published maliciously.3 In Basner v Trigger 1946 AD 83 at
95 Schreiner JA said:
‘Privileged occasions are recognised in order to enable persons to achieve certain
purposes and when they use the occasion for other purposes they are actuated by
improper or indirect motives, that is, by “malice”.’

[12] I agree that the defamatory statement that the deceased would
cause trouble, unpleasantness and problems, should he become a
shareholder in Jazz Spirit was relevant to the deceased’s claim in the
application proceedings. I also agree that no malice has been shown on
the part of the respondents in respect of that statement. I do however not
agree that no malice on the part of the first and third respondents had
been shown in respect of the allegation that the deceased stole R5 to R6
million from the first respondent’s father.

[13] The onus was on the deceased to prove the alleged malice on the
part of the respondents. No direct evidence of such malice was adduced
by the deceased but, malice being a state of mind, that is hardly
surprising. Being subjective in nature malice will often have to be
inferred from intrinsic or extrinsic facts.4

3 Joubert and others v Venter 1985 (1) SA 654 (A) at 704D-G; and Van der Berg v Coopers & Lybrand
Trust (Pty) Ltd and others supra at para 17.
4 See Neethling Potgieter and Visser Neethling’s Law of Personality 2ed (2005) p 149 and the
authorities referred to in footnote 201.

[14] The respondents claimed that the alleged theft of R5 to R6m by the
deceased from the partnership between the deceased and the first
respondent’s father constituted ingratitude which entitled them to revoke
the alleged donation. However, the first respondent’s father died in 2003
whereas the alleged donation was made on 23 April 2004. It is hard to
believe that anybody, let alone the first and the third respondents who are
property developers, could possibly have thought that something done to
a third party before a donation was made could constitute evidence of
gross ingratitude on the part of the donee in respect of the donation
subsequently made. The allegation is so devoid of any merit that, in the
absence of any evidence to the contrary, the inference must be drawn that
the first and third respondents used the occasion not to advance their case
but for an ulterior purpose namely to besmirch the name and reputation of
the deceased. In the circumstances the deceased succeeded in proving
malice on the part of the first and the third respondents.

[15] It follows that the appeal in so far as the first and third respondents
are concerned should succeed in respect of the allegation that the
deceased misappropriated R5 to R6m. The second respondent was joined
as a party to the application proceedings because the first respondent had
alleged in his answering affidavit that the second respondent was a
shareholder of Jazz Spirit and that it should for that reason have been
joined as a party. There is no evidence that the second respondent made
common cause with the first and third respondents and counsel for the
appellant conceded that the action against it could not succeed ie that the
appeal in so far as the second respondent is concerned, should be
dismissed.

[16] The parties were agreed that in the event of the appeal succeeding
the matter should not be referred back to the court below for the
determination of the amount of damages to be awarded but that such
amount should be determined by this court. In my view the request
should be acceded to. The deceased as well as the respondents closed
their cases without leading any evidence in regard to the quantum of
damages with the result that this court is in as good a position as the trial
court to determine the amount. To refer the matter back to the court
below will involve the parties in additional costs which they obviously
wish to avoid. Moreover, the trial judge is no longer a judge of the court
below and the administration of the courts will unnecessarily be disrupted
by referring the matter back to the court below. I shall therefore proceed
to determine the amount of damages to which the deceased was entitled.

[17] Counsel for the respondents submitted that because no evidence as
to the reputation of the deceased had been tendered at the trial, only
nominal damages could be awarded. This is tantamount to arguing that a
court should assume that a person has a bad reputation or no reputation
that can be injured. That is not correct. Every person has a reputation that
can be injured. There may of course be aggravating or mitigating
circumstances relating to a person’s reputation. A plaintiff may therefore
adduce evidence of his good reputation and standing in the community5
and a defendant may adduce evidence of the plaintiff’s bad reputation.6
Should a plaintiff allege that there are aggravating circumstances the onus
would be on him to prove such aggravating circumstances. Conversely
should the defendant allege that there are mitigating circumstances the
onus would be on him to prove such mitigating circumstances.

5 See eg Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and others 2001 (2) SA 242 (SCA) at para
45.
6 See eg Black and others v Joseph 1931 AD 132 at 146.

[18] The allegation that the deceased stole R5 to R6 million from his
brother is obviously seriously defamatory of the deceased. The extent of
the damage caused thereby would, however, have been restricted by the
limited publication thereof to a restricted class of people. The allegation
is nevertheless so serious that substantial damages should be awarded.
The appellant, referring to the award made in Naylor and another v
Jansen; Jansen v Naylor and others 2006 (3) SA 546 (SCA) at paras 15 –
17, submitted that R30 000 should be awarded as damages. In that matter
it had been alleged that Jansen had stolen money from his employer
whereas he had not stolen money but had made himself guilty of
misconduct involving dishonesty which misconduct the trial court
erroneously did not take into account when determining the quantum of
damages. Consequently an award of R30 000 by the trial court was
reduced on appeal to R15 000. As was said by Smalberger JA in the Van
der Berg-case at para 48 comparisons can of course serve a very limited
purpose.

[19] A court has a wide discretion to determine an award of general
damages which is fair and reasonable having regard to all the
circumstances of the case and the prevailing attitudes of the community.7
Having regard to all the circumstances of the present case it would in my
view be fair and reasonable to award damages in an amount of R30 000.
The appeal of the appellants should therefore be upheld in so far as the
first and the third respondents are concerned. The appellants conceded
that no case has been proved against the second appellant and that the
appeal in so far as the second appellant is concerned should be dismissed.
Counsel for the respondents conceded that the fact that the second

7  See 7 Lawsa 2ed para 260 and the cases therein referred to.

respondent was cited as a respondent in the action and also in the appeal
had no real effect on the costs. In the circumstances no costs order will be
made in respect of the second respondent.

[20] The following order is made:
The appeal, in so far as the first and third respondents are
concerned, is partially upheld with costs.
The appeal, in so far as the second respondent is concerned, is
dismissed.
The order of the court below is set aside and replaced with the
following order:

‘(a)
The first and the third defendants, jointly and severally, are
ordered to pay to the plaintiff an amount of R30 000.

(b)
The plaintiff’s claim against the second defendant is
dismissed.

(c)
The first and third defendants, jointly and severally, are
ordered to pay the plaintiff’s costs.’

________________
P E STREICHER
JUDGE OF APPEAL

APPEARANCES:

For appellant:
H S Eiser

Instructed by:

Eiser & Kantor, Riviera

Matsepes, Bloemfontein

For respondent:
M Basslian

Instructed by:

Myers Inc, Greenside, Gauteng

Naudes Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 September 2009
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *
M TUCH & OTHERS NNO v J H MYERSON & OTHERS NNO

The Supreme Court of Appeal today upheld an appeal against a judgment in the High
Court, Johannesburg in terms of which that court dismissed an action for defamation
instituted by one Nathan Myerson who has since died.

In application proceedings instituted by the deceased against the first and the third
respondents (‘the respondents’) the deceased, relying on a written undertaking by the
respondents, claimed delivery of certificates reflecting him as the holder of 5% of the
share capital in a company Jazz Spirit 46 (Pty) Ltd. The respondents alleged that the
undertaking constituted a donation and that they had revoked the donation because of
gross ingratitude on the part of the deceased.

The deceased and the first respondent’s father were partners and according to the
respondents the deceased had misappropriated in the order of R5 – R6m of the first
respondent’s father’s portion of the partnership. Such misappropriation allegedly
constituted evidence of the deceased’s gross ingratitude.

The SCA agreed with the court below that the allegation was defamatory as any
reasonable reader of ordinary intelligence would have understood the respondents to
be saying that the deceased was a thief who stole from the first respondent’s father.
However, it disagreed with the court below that no malice on the part of the
respondents had been proved and that it had not been proved that the respondents
exceeded the bounds of qualified privilege afforded by the fact that the allegation was
made during the course of civil judicial proceedings.

Having regard to the fact that the first respondent’s father died before the undertaking
was given the SCA said that it was hard to believe that anybody could possibly have
thought that something done to a third party before a donation was made could
constitute evidence of gross ingratitude on the part of a donee in respect of a donation
subsequently made. It held that the allegation was so devoid of any merit that, in the
absence of any evidence to the contrary, the inference must be drawn that the
respondents used the occasion not to advance their case but for an ulterior purpose
namely to besmirch the name and reputation of the deceased ie that the respondents
acted maliciously.