Aggrieved by the accusation, Khanyiwe alleged that the accusations were defamatory. She alleged that the Municipality attempted to bring false disciplinary charges of theft against her, which came to nought. She then sued for defamation, seeking damages of R600,000.

The Municipality admitted to accusing Khanyiwe of theft but denied that the statements made were defamatory and that it was made in the presence of third parties. The Municipality’s case was that the accusation was made in the context of an internal investigation, which led to disciplinary action against Khanyiwe. During the investigation, a supervisor who had since passed away owned up to the theft. Khanyiwe admitted to assisting the supervisor with selling the plastic refuse bags to a local business and apologised “saying that she was sorry for putting herself in such a situation”.

Khanyiwe’s version, however, was that she was taken to the cleaning department where she met a senior official of the Municipality and two other employees. The official accused her of theft in the presence of the two other employees. She denied the allegations. She also testified that she had not stolen the plastic refuse bags.

The Municipality argued the senior official did not say that Khanyiwe was a thief. It submitted that the act of conveying the nature of a complaint by an employer to an employee does not constitute a defamatory act, and that even if it did, it was not wrongful. If it were considered wrongful, employers would be discouraged from informing employees about allegations of misconduct.

The court held that it was undisputed that the senior official was doing his job when investigating the allegations of theft. The publication could therefore only have been made in a formal meeting. The utterances were accordingly made on a qualified privileged occasion, in which the senior official was doing his job, in confronting Khanyiwe with allegations of theft.

This constituted a qualified privileged occasion and reiterated that where statements are made in the discharge of a duty or exercise of a legitimate interest, the law presumes that the speaker lacked the intent to defame.

Importantly, the court stressed that the senior official acted within the scope of his duties, and there was no evidence that the accusations were made maliciously or outside of proper workplace channels, and the claim of defamation was accordingly dismissed.

Conclusion

This case underscores that not every workplace accusation, even if damaging to an employee’s reputation, will amount to defamation. Where an employer acts within the bounds of internal processes, and statements are made in a responsible and in a formal context, the defence of qualified privilege would apply.

Employers should still proceed with caution: privilege can be lost if accusations are made recklessly, to the wrong audience, or without factual basis. However, legitimate disciplinary action, even if it involves serious allegations, is protected.