Question posted in the General Law category relating to Gauteng
Greetings, Apologies, this will seem like a very trivial matter, but one that could have far reaching effects on me personally and in terms of a business investment if it came out.
I am the President of a Bowls Club in Johannesburg. I have been President for 6 years, and have been called the best President the Club has ever had.
I am, unfortunately though coming under increasing attack from 2 people (they are life partners) The Female Partner, whose late Husband was previously President as was her Life Partner, has shown jealousy towards my success at the club, and has said in front of many witnesses "I hate that Man" about me. She has generally made my life difficult. I have over the years shrugged off her attacks. But the whole thing came to a head last week, where at the club there was a group of ladies sitting. Something sparked a memory of a slightly off colour joke. I asked the ladies if they minded if I tell a slightly crude joke, and proceeded to tell it. The Lady who was there took offence went outside and told a number of people a very skewed version of the joke, not teling them that I asked permsiision, and saying the joke was directed at her personaly. Anyway she then went on a crusade to spread the incident telling a number of people, and threatening to take me to the Bowls Authorities.
We then come to what I am not prepared to ignore, a number of people have since told me (I have 5 witnesses) that when the club had some theft a couple of years ago. That the particular Lady was saying that it was me, that had stolen the money. When the last theft occurred I was the first one to undergo a Polygraph test, One of the questions asked, was have you ever stolen money from the Bowls Club. Obviously the answer was no. I have never stolen from the club, and in fact when there is a shortage on the cash up or countings have often put in from my own pocket.
What concerns me is that this could do huge damage to me personally if it gets out, my reputation amongst the Bowls Comunity as well is untarnished, and would hate to be labelled a thief. It could also affect a possible investment of 6 Million Euro into our company. Do I have a case for Defamation or Crimen Injuria. and is it worth taking on? I would at least like an apology and a full retraction.
The Second person who is her partner, left me a Voice Mail, saying I should grow up because I had closed a Whatsapp Group for comments (as requested by members this group is purely for Info) I replied to the voice mail and got the following Whatsapp Back:
"I cannot personally continue to watch your ongoing manipulation of [the bowling club] members with your Pathological Lies to suit a situation" as far as I know this was only sent to me, the pathological lies is totally devoid of truth. Is this Crimen Injuria?
Apologies, this is really trivial, but I would hate my reputation to be tarnished by this.
Information Requested by Lawyer
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Answer to the Question
So, everyone is entitled to freedom of expression, and I think that her saying "I hate that man" towards you, is most probably a jutifiable form of her opinion - even though it is not kind or nice.
Telling a slightly crude joke to a group of women was probably not the cleverest thing to do either. And in my view, one of the ladies going around telling other people of the joke, is probably allowed. Again, freedom of expression.
However, this lady's going around telling people that it was you who had stolen money from the club, is NOT alright. This would most certainly constitute defamation against you.
Defamation is a part of the law of delict and can be defined as any damaging statements made publicly with the intention to harm or damage someone’s good name and reputation. In order for a person to succeed in a delictual claim of defamation, there are certain elements that must be present. The elements include wrongfulness, intention and the publication of a defamatory statement or behaviour towards another.
Wrongfulness: Wrongfulness, as an element of defamation, is the infringement of a person’s right to his good name and reputation. It is irrelevant whether the person involved has suffered damages once the element of wrongfulness has been established. The appropriate test for wrongfulness will be the objective “reasonable person” test.
In South African law, the onus of proof is on the person claiming that an act of defamation has occurred and he or she must submit proof that the violation was indeed wrongful. It is not one of the requirements of defamation for the statements or actions to be false. Defamatory words that are true can also be actionable.
Intention: The person making the defamatory statements must have had an intentional focus or will to damage another person’s reputation. Be it by statements or comments, he or she must have known at the time that what they were doing would be harmful to another person’s good name. The defendant in a defamation claim must raise a defence which proves that the element of unlawfulness or intention was never present.
Publication: Generally, the good name, respect or status of a person depends on the opinion others have of him or her and the core of defamation is the infringement of one’s good name. When defamatory statements or behaviour has been published or a third party has been informed of the information, defamation arises. When a third party isn’t made aware of the defamatory statements or actions relating to a person, his or her reputation cannot suffer damages. Therefore, publication is an important element of defamation.
Generally, this requirement is met if the statements or actions are made known to at least one other person other than the plaintiff himself/herself. Once the element of publication is established, the onus is on the plaintiff to prove that the defendant was responsible for the publication of such statement(s). Any person who repeats or merely confirms these defamatory statements can indirectly be held responsible for the publication thereof. It is not only the person who initially made the defamatory statements public, but also any other person who repeats or confirms it, who can be held responsible for the damage to a person’s reputation.
When the matter is heard in court, the two conflicting constitutional rights of dignity and privacy with that of the right to freedom of expression will have to be weighed up considering the facts.
I definitely think that you need to address a letter to this lady, on the record, setting out the truth of the matter and putting your version down, and explaining that you are not a thief and you've never been found guilty or anything like that, and that by her continuing to spread these untruths, it is defamation, and causing you harm! ... and that she must stop, otherwise you might sue her!
Depending on how she responds, or if she continues doing what she is, then you must take it further and get a lawyer to send a cease and desist letter!
Regarding the second issue of the WhatsApp message, I don't think that it amounts to Crimen Injuria and you should simply ignore it.