REPORTABLE
Case number: 466/98
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
J VAN DER BERG
APPELLANT
and
COOPERS & LYBRAND TRUST (PTY) LTD
1st RESPONDENT
JAMES LANE TRUSTEES (PTY) LTD
t/a REPUBLIC TRUSTEES
2nd RESPONDENT
EILEEN MARGARET FEY
3rd RESPONDENT
MICHAEL JOHN LANE
4th RESPONDENT
CORAM:
SMALBERGER, GROSSKOPF JJA, MELUNSKY,
MPATI and MTHIYANE AJJA
DATE OF HEARING:
1 NOVEMBER 2000
DELIVERY  DATE:
29 NOVEMBER 2000
Defamation - of advocate in course of legal proceedings - privileged occasion -
relevance - vicarious liability - quantum.
______________________________________________________________
____

JUDGMENT
______________________________________________________________
____
SMALBERGER JA
SMALBERGER JA:
[1] The appellant is a senior advocate practising as such in Cape Town.  The third
respondent, Mrs Eileen Fey (“Fey”), and the fourth respondent, Mr Michael Lane
(“Lane”), are the joint trustees in the insolvent estate of Mr Jurgen Harksen
(“Harksen”).  Together I shall refer to them as “the trustees”.  Fey is an employee of
the first respondent (“Coopers & Lybrand”) and Lane is a director of the second
respondent (“Republic Trustees”).  Where appropriate I shall refer to the four
respondents collectively as “the respondents”.
[2] The appellant instituted an action for damages against the respondents in the
Cape of Good Hope Provincial Division arising out of an admittedly defamatory
statement made of and concerning him by Lane in a condonation application in civil

judicial proceedings between the trustees, on the one hand, and a number of
respondents, including five firms of attorneys, on the other.  Fey associated herself
with Lane’s affidavit containing the defamatory statement.  Coopers & Lybrand and
Republic Trustees were joined in the action on the basis that they were vicariously
liable for the conduct of Fey and Lane respectively.
[3] In the court a quo Cleaver J upheld the respondents’ defence that the
defamatory statement had been published on a privileged occasion and had been
relevant to the matter at hand.  He did so after hearing evidence from the appellant and
the trustees’ attorney, Mr Fischer (“Fischer”), who gave evidence on behalf of the
defendants (respondents).  Neither of the trustees testified.  The learned judge
accordingly non-suited the appellant but subsequently granted him leave to appeal to
this Court.  The judgment of the court a quo is reported as Van der Berg v Coopers
& Lybrand Trust (Pty) Ltd and Others 1998(4) SA 890 (C).

[4] In order to determine the issues on appeal before us it is necessary to place the
defamatory statement in its proper perspective.  This in turn involves an appreciation
of the relevant events which preceded its making.  These are set out accurately,
succinctly and lucidly in the heads of argument filed on behalf of Lane and Republic
Trustees.  In recounting the history of the matter I propose to borrow extensively from
them.
[5] Harksen’s estate was finally sequestrated on 16 October 1995.  The trustees,
in their then capacity as provisional trustees, experienced difficulty in obtaining any co-
operation from Harksen in relation to his financial affairs.  On 11 November 1995 the
trustees launched an ex parte application which had as its object the preservation of
assets thought to belong to Harksen as well as the preservation of documents which
it was believed might throw light on his financial affairs and dealings (“the main
application”).

[6] In essence, the case in the founding papers was that Harksen, while claiming to
have no assets of significance, was in truth the owner of substantial assets to which
he had access through various front entities (“the Harksen entities”), and that he used
the services of various firms of attorneys to enable him to lead an affluent lifestyle on
funds available to him through such entities.  These entities were alleged to include
certain of the respondents in the main application (the fifth and tenth to thirteenth
respondents).  The Harksen entities which featured as respondents and Harksen’s
spouse were, in terms of an ex parte order of 15 November 1995, provisionally
interdicted from parting with any assets except in terms of a court order obtained on
notice to the trustees.
[7] The first to fourth respondents and the fifteenth respondent in the main
application were firms of attorneys who were alleged to have acted for Harksen and/or
the Harksen entities (“the attorneys”).  In terms of paragraphs 3.1 and 3.10 of the ex

parte order of 15 November 1995, the attorneys were provisionally interdicted from
dealing with, paying out or transferring any funds or assets held by them on behalf of
the Harksen entities alleged by the trustees to be front companies for Harksen, and
from parting with any documents or computer discs relating to the affairs of Harksen
and the said entities.  The remaining respondents (the sixth to ninth respondents) were
banks, and they were interdicted from parting with funds held in the name of any of
the alleged Harksen entities, except in terms of a court order.
[8] The attorneys all filed opposing affidavits during November-December 1995 in
which they sought the discharge of the interdict and a costs order against the trustees
de bonis propriis on the attorney/own client scale.  With one exception the Harksen
entities which were respondents also opposed the application, and sought the
discharge of the interdict with costs.  One of the banks (ABSA) filed a notice of
opposition but did not file an opposing affidavit, and the banks did not play any

further part in the subsequent proceedings.
[9] In terms of an order made by agreement on 14 December 1995 the trustees were
to file their replying affidavits by 30 December 1995.  They failed to do so and had not
yet done so by 22 April 1996 (nearly four months later) on which date they launched
their application for condonation (“the condonation application”).  It was in Lane’s
founding affidavit made in support of the condonation application that the defamatory
statement appeared.
[10] Paragraphs 1 and 2 of the notice of motion in the condonation application
sought condonation for the trustees’ failure timeously to file their replying affidavits,
and leave to file them “at this stage”.  In paragraphs 3 and 4 of the notice of motion,
the trustees sought an order that a decision on the costs of the main application be
postponed until after the completion of the insolvency interrogation, which was under
way, and leave to file supplementary replying affidavits in relation to costs after the

representatives of the attorneys who had been involved with Harksen’s affairs had
complied with their subpoenas to appear and after the interrogation of all witnesses at
the insolvency enquiry.
[11] With regard to paragraphs 1 and 2 of the notice of motion, one of the matters
which the trustees were required to canvass in their founding papers was the reason
for their delay in filing the required affidavits.  In summary, the explanation advanced
for such delay was as follows:
(a)
The trustees initially intended to file their replying papers by 30
December 1995, and their legal representatives reserved time to do
so.  However, the creditor who had been funding the litigation
withdrew the funding, and work had to stop until the creditors had
been consulted.
(b)
The trustees met with the creditors in Hamburg over the period 29
January-2 February 1996.  Although not expressly so stated in the
founding papers, it appears that funding for the trustees must have
been forthcoming pursuant to these meetings.

(c)
During the period 6 February-14 February 1996 the trustees’
attention was diverted by an urgent application launched by
Harksen in which he sought to interdict the commencement of the
insolvency enquiry.
(d)
Harksen’s urgent application was dismissed and the insolvency
enquiry began on 15 February 1996.  Attorney Kulenkampff (of
the second respondent) (“Kulenkampff”) and Mrs Jeanette
Harksen were subpoenaed to attend on 22-23 February 1996.
Both witnesses objected to testifying, Kulenkampff on the grounds
of professional privilege.  The presiding officer reserved his
decision on these objections, and eventually only gave his ruling
on 1 April 1996 (which was to the effect that Kulenkampff should
testify and raise privilege as and when appropriate).
(e)
In the meanwhile, Harksen himself had been interrogated.  He was
(according to the trustees) extremely evasive, produced no
significant documents, and generally said that requests for
documents should be directed to his attorneys or to Mr Siegwart,
the deponent for certain of the Harksen entities.
(f)
By 18 March 1996 the trustees had apparently come to the view
that the attorneys were in possession of documents and
information which would be highly pertinent to the main
application.  Although these documents and information might

constitute new matter in the context of the main application, the
trustees submitted in their condonation application that a court
would probably allow them to introduce such matter in their
replying affidavits.  The documents and information which the
trustees had in mind would appear to have been documents and
information which would assist to show that the various Harksen
entities were merely fronts for Harksen.  In other words, the
additional information was likely to be relevant in assisting the
trustees to maintain the interdict against the Harksen entities.
(g)
This view of the matter (namely, the relevance of the insolvency
enquiry to the finalisation of the trustees’ replying papers) was
expressed in a letter addressed by Fischer on 18 March 1996 to
the respondents opposing the main application and they were
asked to consent to its postponement.  They refused.
(h)
On 28 March 1996 attorney Katzeff (of the first respondent)
(“Katzeff”) was subpoenaed to produce documents at the
resumed interrogation scheduled for 1 April 1996.  He requested
and was granted an extension by Fischer, and he undertook that
his files (excluding privileged matter) would be handed over by not
later than 12 April 1996.  Also, in a letter from Fischer dated 26
March 1996 Katzeff was asked for information concerning a
cheque of R7 749 000 which Harksen had claimed to have handed
to Katzeff in January/February 1994.

(i)
On 28 March 1996 a subpoena was also issued and served on
Kulenkampff.  The latter promised to make, or to endeavour to
make, all his non-privileged documents available by 18 April 1996
at the latest.
(j)
At the enquiry on 2 April 1996, the appellant (representing
Harksen), objected to Harksen being interrogated prior to the
determination of an application which Harksen intended to launch
for a declaratory order concerning the meaning of the presiding
officer’s ruling that Harksen’s interrogation be conducted in
camera.  The appellant also informed the presiding officer that he
represented four of the attorneys and two of the Harksen entities.
(k)
Despite their undertakings, Katzeff and Kulenkampff had not
produced the promised documents by 19 April 1996 when the
interrogation resumed.  Both attorneys in fact reneged on their
undertakings to provide the promised documents to Fischer.
Katzeff also reneged on his undertaking to provide information
concerning the cheque of R7 749 000, and in this regard informed
Fischer that he had been advised by the appellant not to provide
the information.
(l)
At the resumed interrogation on 19 April 1996 the appellant
represented the subpoenaed attorneys (Katzeff, Kulenkampff and

attorney Mallach of the fourth respondent).  He told the presiding
officer that Katzeff and Kulenkampff would not provide the
promised documents, and he asked that their interrogation stand
down until after the main application had been determined.  Mrs
Harksen’s counsel asked for a similar order.  The trustees’
counsel resisted the ruling which the appellant sought.  However,
the presiding officer ruled in favour of the appellant’s clients.
(m)
The effect of the ruling was that the trustees were not able to have
access to the documents in the possession of the attorneys
concerned for purposes of preparing their further affidavits in the
main application.  With this possibility now closed to them, they
proceeded forthwith to apply for condonation, apparently
accepting that on the merits the main application would have to be
decided without reference to the documents in the attorneys’
possession.  However, in paragraphs 3 and 4 of the notice of
motion they sought to protect themselves against the costs orders
which the respondents were claiming by having the question of
costs deferred until after compliance by the attorneys with their
subpoenas and after the completion of the interrogation.
[12] It was in the context of what had occurred on 19 April 1996 that Lane said the
following in paragraph 9.33.3 of his founding affidavit in the condonation application:

“During his address, our Counsel expressed our regret that
the attorneys in question had taken up this stance and urged
them to reconsider and rather to give us their full co-
operation.  He also expressed concern that they were being
represented and advised by Counsel for the insolvent
[Harksen].  On analysis, their interests were very different
to those of the insolvent.  It was, and remains our belief,
that the attorneys in question were being manipulated
by the insolvent’s Counsel to take up an attitude which
favoured the insolvent, but was wholly inappropriate,
given their duties as officers of the Court”.
(The portion in bold constitutes the defamatory statement.  It is common cause that
the reference to “the insolvent’s counsel” was a reference to the appellant.)
[13] Earlier, in paragraph 9.28, with reference to Katzeff’s undertaking to make
available non-privileged documentation in his possession, Lane stated:
“Attorney Katzeff has also unfortunately had a change of heart since
giving this undertaking and has since reneged on this agreement.

According to him this was on the advice of the insolvent’s advocate [the
appellant].”
That Katzeff had acted on the advice of the appellant had been confirmed in a letter
to him from Fischer dated 12 April 1996 in which the latter stated, inter alia,
“You . . . advised writer that although you had prepared the
documentation and information as promised to us, you had been advised
by senior councel, Adv J van der Berg, not to hand the documentation
and information to us.”
[14] Also of significance in my view in the determination of the appeal are paragraphs
9.34.4 to 7 of Lane’s affidavit.  They read as follows:
“9.34.4
In the premises the insolvent most certainly
has an interest in this application being
decided against us and it is in the premises not
surprising that his legal representatives are
doing all in their power in order to engineer a
situation which reduces our prospects of
success to the greatest extent possible.
9.34.5
No doubt the insolvent and his legal

representatives realise that without all of the
relevant documents and information, we will
have a more difficult task in this matter.
9.34.6
We believe that it is this strategy that has
resulted in the insolvent’s Counsel persuading
the 1st, 2nd and 4th Respondents not to furnish
us with any of the documents in their
possession and which led to the application to
the Presiding Officer on 19 April 1996 to
prevent them from being interrogated.
9.34.7
Of course, insofar as they still represent the
insolvent, the attorneys in question may
believe that they have no alternative, but to act
in this application in such a manner as to best
favour their client’s interests.  I do not know
whether or not this is the motivation for the
stance taken up by them.”
[15] Cleaver J came to the conclusion (at 895 G-J of the judgment) that the
defamatory statement, when properly considered,
“was clearly defamatory of the plaintiff [appellant] in that it was intended,

and understood by persons to whom it was published, to convey one or
more of the meanings set out in the plaintiff’s particulars of claim, namely
that the plaintiff:
.
was
guilty
of
grossly
improper
and
unprofessional conduct;
.
by artful connivance or insidious means and to
his own advantage influenced the attorneys
referred to to fail in their duties as officers of
the Court;
.
failed in his duty as a senior counsel in his
professional conduct;
.
failed in his duty as an officer of the Court and
sought to practise a deception upon it.”
This finding is not challenged on appeal.
[16] Two presumptions arose upon the publication of the defamatory statement:  (a)
that the publication was unlawful and (b) that the statements were made animo
injuriandi (Joubert and Others v Venter 1985(1) SA 654 (A) at 696 A).  It was open
to the respondents (in particular Fey and Lane) to rebut these presumptions by
establishing that the defamatory statement was made on a privileged occasion.  The

respondents accepted that the onus upon them in this regard was a full onus -
Mohamed and Another v Jassiem 1996(1) SA 673 (A) at 709 H - I.
[17] Our law confers a qualified, albeit a very real, privilege upon a litigant in respect
of defamatory statements made during the course of legal proceedings (Joubert v
Venter supra at 697 I).  The privilege extends to such statements if they are relevant.
The litigant bears the burden of proving that any such defamatory statement was
relevant to an issue in the proceedings (Joubert  v Venter supra at 700 G and 701 F-I).
Once the respondents are able to discharge such onus the provisional protection of
the qualified privilege thus established would be defeated if the appellant could show
that the trustees, in making the defamatory statement, were actuated by malice in the
sense of an improper or indirect motive, as explained in Basner v Trigger 1946 AD
83 at 95 (Joubert v Venter supra at 702 C-D).  The appellant, however, never set out
to prove that.

[18] Coopers & Lybrand accepted on the pleadings that it would be vicariously
liable for any damages for which Fey might be held liable to the appellant in respect
of the defamatory statement.  Not so Republic Trustees, who denied any vicarious
liability for Lane’s conduct in this regard.
[19] At the conclusion of the trial the issues which fell to be determined were:
(a)
Whether the respondents’ defence of qualified privilege had been proved;
(b)
If not, whether Republic Trustees were vicariously liable for the
defamatory statement published by Lane;
(c)
The quantum of the appellant’s damages.
[20] The same issues arose on appeal before us.  The court a quo, having found for
the respondents on issue (a), was not called upon to resolve the remaining issues.
Should the appellant succeed on appeal in respect of issue (a) we would be required
to deal with issue (b), and have also been requested to deal with issue (c).  Insofar as

it may be necessary to do so I shall deal with each issue in turn.
THE DEFENCE OF QUALIFIED PRIVILEGE.
[21] As appears from what has gone before, the defamatory statement, having been
published in the course of civil judicial proceedings, is privileged provided it satisfies
the requirements for relevance.  In this respect it was incumbent upon the respondents
to show that it was relevant to an issue arising in or in connection with the condonation
application.
[22] No attempt has been made to define the concept of relevance, or to formulate
a universally applicable test for relevance, within the context of qualified privilege.
This is not surprising as relevance, in this sense, is not capable of precise definition.
Relevance in relation to the publication of defamatory matter has variously been
described as “relevant to the purpose of the occasion” (Molepo v Achterberg 1943
AD 85 at 97); “in some measure relevant to the purpose of the occasion” (Basner v

Trigger supra at 97 - see also Joubert v Venter supra at 705H and Zwiegelaar v
Botha 1989(3) SA 351 (C) at 358E); “germane to the matter” being dealt with (May
v Udwin 1981(1) SA 1 (A) at 11C-D); “relevant . . . tot die onderwerp onder
bespreking” (Herselman NO v Botha 1994(1) SA 28 (A) at 35G-H).  In essence they
are all saying much the same thing; words such as “relevant”, “germane” and
“pertinent” (another word used in this context) have the same basic content.  To the
extent that the above concepts differ, they do so in degree rather than substance.
[23] In National Media Ltd and Others v Bogoshi 1998(4) SA 1196 (SCA) at
1207D  Hefer JA stated:
“It is trite that the law of defamation requires a balance to be struck
between the right to reputation, on the one hand, and the freedom of
expression on the other”.
He went on to observe (at 1207E) that
“[i]t would be wrong to regard either of the rival interests with which we

are concerned as more important than the other”,
a matter on which he then proceeded to elaborate.  This is particularly so where the
Constitution in terms seeks to protect both the dignity of the individual and freedom
of speech (see ss 10 and 16(1) of the Constitution of the Republic of South Africa,
Act 108 of 1996).
[24] While the public interest undoubtedly requires that the approach to relevance in
relation to privilege should not be too strict or rigid lest witnesses or deponents to
affidavits be unduly restricted or fettered in their testimony or depositions, thereby
detracting from their right to freedom of speech (cf Zwiegelaar v Botha supra at
358E-F), too liberal or wide an approach to relevance could effectively undermine or
negate a defamed person’s right to the protection of his or her dignity.  An allied
consideration is that a more generous approach to relevance may be justified in the
case of a witness who makes a defamatory statement while giving viva voce evidence

than where that is done by a deponent to an affidavit, bearing in mind that the latter
situation would normally allow opportunity for reflection and advice (cf Zwiegelaar
v Botha supra at 357F-H).
[25] Relevance in the context of qualified privilege is not to be equated to relevance
in the strict evidential sense.  The law of evidence distinguishes between evidence
which is logically relevant and legally relevant.  What is logically relevant may not
necessarily be legally relevant because it may be too remote to have any probative or
persuasive value, in other words, it may not be sufficiently relevant for the law’s
purposes.  What may be relevant and admissible in the strict evidential sense may not
necessarily be regarded as relevant in the present context and vice versa, for there are
different considerations which apply to each situation.
[26] Ultimately, the concept of relevance under discussion is, in my view, essentially
a matter of reason and common sense having its foundation in the facts, circumstances

and principles governing each particular case.  The words of Schreiner JA in R v
Matthews and Others 1960(1) SA 752 (A) at 758 A that “[r]elevancy is based upon
a blend of logic and experience lying outside the law” have particular application in a
matter such as the present even though they were said in the context of evidential
relevance (cf Hoffmann and Zeffertt: The South African Law of Evidence, 4th ed, p
21).  The assessment of whether a defamatory statement was relevant to the occasion
to which it relates is therefore essentially a value judgment in respect of which there are
guiding principles but which is not governed by hard and fast rules.  And in arriving
at that judgment due weight must be given to all matters which can properly be
regarded as bearing upon it.
[27] This Court has not yet determined whether the test for relevance is subjective
or objective - see the discussion in Herselman NO v Botha supra at 36 A-J.  Reliance
on the remarks of Lord Atkinson in Adam v Ward [1917] AC 309 (HL)at 339 as

propounding a subjective test for relevance is subject to certain important
qualifications.  His remarks were made in the context of the English law of libel and
slander which differs from our own law of defamation in certain fundamental respects.
The context in which the remarks were made suggest that Lord Atkinson may not have
been dealing with relevance as our law perceives it in relation to qualified privilege.
Furthermore, to the extent that he did support a subjective test his view appears to
have been a minority one.  Strictly speaking, a subjective test would be satisfied if a
litigant or witness honestly thought that what he or she said was relevant - no matter
how misguided or unreasonable such belief.  It is doubtful that the law could
countenance that.  An objective test would in my view be more in keeping with
developments in our law - see National Media Ltd v Bogoshi supra at 1204 D - E.
It is, however, not necessary to decide the point.  Counsel were prepared to accept
for the purposes of the appeal that the test for relevance was objective, or essentially

objective, and argued the matter on that basis.  The court a quo had in any event held
(see the judgment at 903 G - H) that the subjective test for relevance applied by it had
not been satisfied.  This finding was not challenged on appeal.
[28] The accepted simple objective test for relevance is whether the defamatory
matter could fairly be regarded as reasonably necessary to protect the interest or
discharge the duty which was the foundation of the privilege (Molepo v Achterberg
supra at 97; Rhodes University College v Field 1947(3) SA 437 (A) at 464;
Blumenthal v Shore 1948(3) SA 671 (A) at 682).  Mr Wallis, who appeared for
Coopers & Lybrand and Fey, suggested that the test in a matter such as the present
should be “whether a reasonable person in the position of the deponent might have
regarded the defamatory material as necessary for the advancement of his case”.
While this formulation is attractive, to the extent that it may be an adaptation of the
simple objective test formulated above, I would prefer to apply the latter although

ultimately it would make no difference which of the formulations is applied.
[29] A court has a wide discretion to grant condonation for the failure to comply
with the time limits laid down (or agreed upon) for filing affidavits (in the present
instance, the trustees’ replying affidavits).  It has to be satisfied that sufficient cause
exists for the grant of the indulgence sought.  This requires a consideration of all
relevant facts and circumstances that bear on the matter - see Mbutuma v Xhosa
Development Corporation Ltd 1978(1) SA 681 (A) at 682 D - H.  Included amongst
these (and in many cases, the most important) is the length of the delay in bringing the
application for condonation and the explanation therefor.
[30] When the trustees launched their application for condonation on 22 April 1996
they had been in default of filing their replying affidavits since 30 December 1995.  The
defamatory statement was made in the context of the events of 19 April 1996 and the
immediately preceding period; it went no way to explaining the earlier delay of more

than three months which was perhaps the more important period to cover.
[31] I am mindful of the fact that the trustees were also seeking a further indulgence -
a postponement of any decision on the costs of the main application and leave to file
supplementary replying affidavits in relation to costs once the interrogation process
had been completed.  A court also has a wide discretion in relation to costs.  It was
necessary for the trustees to place facts before the court in support of the relief sought
in this regard.  The conduct of the attorneys subsequent to filing their answering
affidavits, in particular their seeming lack of co-operation, no doubt had relevance to
the costs order sought by them.  In the circumstances it can be assumed, in favour of
the trustees, that it was necessary for them, at least in opposing the costs order, to set
out the history of what had transpired with regard to the Harksen estate between the
main application and the condonation application, and the problems experienced by
them in relation thereto.

[32] It can also be assumed in favour of the trustees that it was relevant to their
ultimate prospects of success both in relation to the main application and the costs
issue to deal with:
(a)
The undertakings given by the attorneys (in particular Katzeff and
Kulenkampff) to produce documents in their possession relating to the
extended affairs of Harksen;
(b)
Their failure to honour their undertakings; and
(c)
The reason for their reneging on their undertakings.
[33] As appears from the facts that I have set out, Katzeff informed Fischer on 12
April 1996 that he had reneged on his undertaking on the advice of the appellant.  The
same was probably true of Kulenkampff.  As the events leading up to and including
19 April 1996 unfolded it was increasingly apparent that the attorneys’ refusal to hand
over any documentation until the main application had been disposed of was based on

advice given to them by the appellant.  At that time the appellant was acting both on
their behalf and on behalf of Harksen, inherent in which situation was a potential
conflict of interest.  It was probably unwise for the appellant to have acted for the
attorneys and Harksen at the same time.  Be that as it may, the representatives of the
attorneys concerned were all senior practitioners capable of looking after their
respective interests, aware of their legal responsibilities and obviously free to accept
or reject any advice given by the appellant.
[34] In my view, the fact that the attorneys had reneged on their undertakings on the
advice, or perhaps even the insistence, of the appellant was all that the trustees
reasonably needed to draw attention to for the purposes of the condonation
application and the concomitant relief sought.  There was simply no need for them to
have gone further than that.  They were not called upon to speculate (for their
expressed belief in the defamatory statement was no more than that) on what the

precise nature of the advice was or what the appellant’s purpose or motive was in
giving it.  The appellant was not a party to the main application.  The trustees’ case
against the attorneys, or their defence to the latter’s claim for punitive costs, could not
reasonably have been furthered by allegations against the appellant.  The trustees were
concerned with the conduct of the attorneys and why they had reneged on their
undertakings.  There has never been any suggestion that whatever ulterior motive the
appellant might have had was also ascribable to the attorneys.  The appellant’s motives
could therefore not have been a factor in any issue between the trustees and the
attorneys, and could not have realistically or reasonably furthered the former’s
prospects in the condonation application.  If the defamatory statement had been
omitted from Lane’s affidavit the trustees’ case would not have been affected one way
or the other by such omission.  In other words, the defamatory statement was not
reasonably necessary for the purpose, main or ancillary, of the condonation

application.  Applying a realistic and common sense approach it has not, in my view,
been shown to have been relevant to the occasion.  It amounts to no more than a
gratuitous, uncalled for insult.
[35] A further consideration is that on the trustees’ own showing the defamatory
statement was purely speculative.  This follows from a proper reading of paragraph
9.34.4 to 7 of Lane’s affidavit quoted in [14] above.  What is set out there makes it
clear, in my view, that Lane was uncertain as to what the underlying reason was for the
attorneys’ volte-face.  Being speculative, the defamatory statement for that reason too
lacked relevance.  Even if it was ultimately found to be true, that could not alter its
speculative nature at the time it was made.  In any event, the truth or otherwise of a
defamatory statement has no bearing on whether it was relevant to the occasion or not
(Borgin v De Villiers and Another 1980(3) SA 556 (A) at 579 A).
[36] In my view the respondents have failed to discharge the onus of proving that the

defamatory statement was relevant to the occasion on which it was published, and thus
privileged, and that the court a quo erred in finding to the contrary.  It follows that the
appellant was entitled to succeed in his action in the court below against those in law
responsible for such publication.  It is common cause that Lane, Fey and Coopers &
Lybrand fall into that category.
VICARIOUS LIABILITY OF REPUBLIC TRUSTEES
[37] As pointed out previously, although Coopers & Lybrand accepted that they
were vicariously liable for Fey’s publication of the defamatory statement, no such
admission was made by Republic Trustees in respect of Lane, despite the fact that the
underlying factual situation is identical, or virtually identical, in both instances.
Republic Trustees admitted in their plea that:
(a)
Lane and a certain Ernest James were directors of Republic Trustees;
(b)
Their directors and employees accepted appointments as trustees of insolvent

estates and as liquidators of companies being wound up;
(c)
They provided administrative and secretarial support to their directors and
employees in the performance of their functions as trustees and liquidators; and
(d)
The fees earned by their directors and employees in their capacities as trustees
and liquidators are paid by them to Republic Trustees.
[38] It was pleaded, however, that in the performance of their functions as trustees
and liquidators, the aforesaid directors and employees are not subject to the control
or supervision of Republic Trustees.  This, too, was the submission of Mr Rogers,
who appeared on their behalf.  He argued that even if it was established that Lane was
an employee - and not only a director - of Republic Trustees, he performed statutory
duties which were imposed on him personally by the Insolvency Act 24 of 1936 (“the
Act”); that he was ultimately subject to a measure of control by creditors of the
insolvent estate and the Master;  that the very nature of his statutory duties and

functions as trustee deprived Republic Trustees of the power to direct and control his
activities; and that he could not be regarded pro hac vice as their servant.
[39] In terms of s 55(h) of the Act a body corporate cannot be appointed as a
trustee.  It is, however, not uncommon to appoint in that capacity an individual who
is employed by a company or firm which carries on business as insolvency
practitioners.  As long ago as 1884 Barry JP remarked:
“It is useful to appoint persons who are officers of a public company,
because by doing so the company guarantees the due performance of the
trust, as they get the remuneration and pay their officers a salary, but the
Court also looks to the individual to whom the trust is in form confided.”
(See Re Estate McKenny IV EDC 41 at 42.)  In terms of s 63(2) of the Act the
employer of a trustee is not entitled to any remuneration “out of” the insolvent estate.
The manner in which a trustee deals with the remuneration once it has been received
is outside the regulation of the Act.  He may therefore divert it to his employer in terms

of an agreement between them (Meskin: Insolvency Law, 4 - 30).  The admission by
Republic Trustees that the fees earned by their directors and employees as trustees are
paid to them (Republic Trustees) presupposes an agreement between them to that
effect.
[40] Mr Rogers’s argument was based on a long line of cases in which this Court
has had to grapple with the liability of the State for the unlawful acts of policemen
while carrying out statutory duties of arrest and detention.  The leading authorities were
considered and reviewed by this Court in Mhlongo and Another NO v Minister of
Police 1978 (2) SA 551 (A) at 566D-568C (per Corbett JA).  The principle that arises
in regard to the liability of the State for the delictual acts of a policeman cannot be
applied mechanically to the present matter.  The relationship between a policeman and
his employer or superiors is largely, if not entirely, governed by statute.  (See, in this
respect, Mhlongo v Minister of Police at 568H-570C.)  The cases on which Mr

Rogers relied essentially applied the conventional control test for vicarious liability.
In Midway Two Engineering & Construction Services v Transnet Bpk 1998(3) SA
17 (SCA) this Court indicated a preference for a broader, multi-faceted test that took
into account all relevant factors, including questions of policy and fairness, to
determine issues of vicarious liability (at 23 H - J).  There is therefore no uniform or
universal principle that governs each and every case involving vicarious liability,
although the element of control remains an important factor.
[41] In the present appeal the relationship between Lane and Republic Trustees is
purely contractual.  No evidence was led to reveal to what extent, if any, Republic
Trustees controlled Lane’s actions or, indeed, whether Lane, by virtue of his position
as a director, was himself the guiding force of the former.  To the extent that Lane’s
remuneration as a trustee is by agreement paid into the coffers of Republic Trustees,
he is no different from any other employee.  Moreover Republic Trustees provide all

the infrastructure to enable Lane to perform his duties as a trustee and it is unlikely that
they do not remunerate him for doing so although his remuneration may be partially
related to his duties as a director.  In the absence of evidence to the contrary it is
reasonable to infer that Republic Trustees employed Lane.  It is probable, in fact, that
as a director Lane also exercises control over Republic Trustees.
[42] At all material times Lane was not only engaged in carrying out his duties as a
trustee, he was also engaged in carrying out functions on behalf of Republic Trustees
and for their benefit.  The mere fact that Lane exercised a discretion is not sufficient
to exempt the latter from liability (Minister van Polisie en ‘n Ander v Gamble en ‘n
Ander 1979(4) SA 759 (A) at 767E).  Prima facie, therefore, Lane, while exercising
his functions as a trustee, was also engaged in carrying out his duties on behalf of
Republic Trustees.  In principle there seems to be no difference between the vicarious
liability of an employer whose employee, while acting in the course of his employment

as a trustee, misappropriates the assets of an insolvent estate (in which case the
employer would clearly be liable) and the liability of Republic Trustees for Lane’s
conduct in this case.
[43] It is also necessary to mention the question of control.  Once it is accepted that
Republic Trustees are prima facie liable on the basis that Lane was carrying out his
functions as a trustee, which he was employed to do - see Minister van Polisie v
Gamble (supra) at 765 H - it is for the former to show that the nature of the duty was
such that it took Lane out of the category of employee for the time being (see Union
Government (Minister of Justice) v Thorne 1930 AD 47 at 51 and Mhlongo v Minister
of Police (supra) at 567E-G).  Not only did Republic Trustees fail to do so, it is
legitimate to infer, in my view, that they were unable to do so.  It is unlikely, given their
relationship, that Republic Trustees were unaware of Lane’s application for
condonation or that they did not acquiesce therein.  There is nothing to indicate that,

as a private company, they have more than two directors who are its “directing mind
and will”, to use the phraseology of Viscount Haldane LC in Lennard’s Carrying
Company, Limited v Asiatic Petroleum Company, Limited [1915] AC 705 (HL) at
713.  One of their directors, Lane, is the very person who is delictually liable to the
appellant for his actions while carrying out his duties on their behalf.  In the
circumstances it is simply not open to Republic Trustees to contend that the delict was
committed outside the course or scope of Lane’s employment and that they are not
vicariously liable for the defamatory statement published by him.
QUANTUM OF DAMAGES
[44] As a general rule the determination of damages is a function peculiarly within the
province of the trial court.  There are, however, circumstances in which it would be
appropriate, and the interests of justice and convenience would best be served, were
an appellate tribunal to determine the damages (Neethling v Du Preez and Others

1995(1) SA 292 (A) at 301 B - 302 D).  As all the parties were agreed that, in the event
of the appeal being successful, we should fulfil that function and as there are
circumstances present, upon which I need not elaborate, which make it convenient and
in the interests of justice for us to do so, I proceed to a consideration of the
appellant’s damages.
[45] The appellant’s evidence with regard to his seniority, good standing and
reputation as an advocate was not challenged in cross-examination.  It was conceded
that the defamation was serious.  It ascribes highly improper conduct to the appellant
in the proper performance of his duties as a legal practitioner and officer of the Court.
The word “manipulate” in its context implies a deliberate perversion of the course of
justice.  The fact that the appellant, as an experienced trial lawyer who is used to the
rough and tumble of litigation and can give as good as he gets, may be able to bear the
defamation more readily than someone perhaps more sensitive than he is does not

detract from the sting of the accusation.
[46] There was limited publication to a restricted class of persons.  The publication,
however, was made in the very field in which the appellant’s reputation rests.  The
defamatory statement forms part of a permanent public record, albeit one to which
only a limited number of persons will seek access, and appears to have been raised in
open court by the presiding judge dealing with the matter, an event clearly foreseeable.
There is, however, no evidence that the defamatory statement was believed, or that the
appellant has in fact been lowered in the esteem of legal colleagues or others, or that
he has suffered any consequence of note as a result of the defamation apart from the
personal affront to his dignity.
[47] It is correct, as contended by the respondents, that the appellant made no
attempt to seek an apology from them before issuing summons.  In the light of their
subsequent attitude no purpose would have been served by his doing so.  The fact is

that no apology or retraction has ever been forthcoming from them.  Nothing
precluded them from doing so had they so wished - the choice whether to do so or
not to do so (whether for tactical or other reasons) was theirs.
[48] We were referred to a number of cases reported over a period of years which
were claimed to be comparable or roughly comparable to the present.  An inflation
factor was applied to some of them to indicate what the current value would be of the
amounts awarded.  Amongst the cases referred to were Black and Others v Joseph
1931 AD 132; Gelb v Hawkins 1960(3) SA 687 (A); South African Associated
Newspapers Ltd and Another v Yutar 1969(2) SA 442 (A); De Flamingh v
Pakendorf en ‘n Ander 1979(3) SA 676 (T); Mohamed and Another v Jassiem supra.
Comparisons of the kind suggested serve a very limited purpose.  In the nature of
things no two cases are likely to be identical or sufficiently similar so that the award
in one can be used as an accurate yardstick in the other.  Nor will  the simple

application of an inflationary factor necessarily lead to an acceptable result.  The award
in each case must depend upon the facts of the particular case seen against the
background of prevailing attitudes in the community.  Ultimately a court must, as best
it can, make a realistic assessment of what it considers just and fair in all the
circumstances.  The result represents little more than an enlightened guess.  Care must
be taken not to award large sums of damages too readily lest doing so inhibits freedom
of speech or encourages intolerance to it and thereby fosters litigation.  Having said
that does not detract from the fact that a person whose dignity has unlawfully been
impugned deserves appropriate financial recompense to assuage his or her wounded
feelings.
[49] Weighing up all the circumstances to which regard may properly be had I am
of the view that an appropriate award of damages would be R30 000,00.  The
appellant has asked for an order that the award carry interest at the legal rate from the

date of the service of the summons (David Trust and Others v Aegis Insurance Co
Ltd and Others 2000(3) SA 289 (SCA) at 303 I - 304 D).  I did not understand the
respondents to contend that such an order would be inappropriate.
[50] The following order is made:
1.
The appeal is allowed with costs, including the costs of two counsel.
2.
The following order is substituted for that of the court a quo:
“(a)
Judgment is granted against the defendants jointly and severally,
the one paying the others to be absolved, in the sum of
R30 000,00; together with
(b)
Interest a tempore morae calculated at the appropriate legal rate of
interest as from the date of service of summons to date of
payment; and
(c)
Costs, including the costs of two counsel.”
_________________________
J W SMALBERGER
JUDGE OF APPEAL
GROSSKOPF JA  )Concur

MELUNSKY AJA )
MPATI AJA
)
MTHIYANE AJA )