NEHAWU v Tsatsi[1] is an important case in South African law, in particular the law of delict. It was heard before the Supreme Court of Appeal (SCA) on 14 November 2005, with judgment handed down on 1 December.[citation needed]
Tsatsi claimed damages for defamation from National Education, Health and Allied Workers' Union (NEHAWU), alleging vicarious liability for certain defamatory statements contained in a report prepared by its branch secretary (the second appellant in this case) and distributed to members in attendance at a NEHAWU general meeting held at the Johannesburg Magistrate's Court. The branch secretary was the senior interpreter at the court, and Tsatsi its manageress.[citation needed]
After the meeting, certain court staffers, unaffiliated with NEHAWU, came into possession of copies of the report, and thus of two allegedly defamatory statements:
The appellants, NEHAWU and its branch secretary, denied that the statements were defamatory; in addition, they claimed qualified privilege. The court a quo, however, found that the statements were indeed defamatory, that qualified privilege did not cover their distribution to non-NEHAWU members, and that the appellants were liable for their failure to take steps to prevent such distribution. They appealed this decision.[citation needed]
The SCA agreed that the first statement was defamatory. The suggestion that Tsatsi had colluded with or condoned "fraudsters" served in itself to tarnish and discredit her social and professional standing. It was doubtful that the second statement was defamatory; if it were, however, the defamation was only slight.[2]
The next question was whether or not these statements were protected by qualified privilege. To establish privilege, the appellants had to show that they had a reciprocal right and duty to make and receive the report, and that the defamatory statements were relevant or germane and reasonably appropriate to the occasion.[3] One of the recognised occasions that enjoys qualified privilege is where such statements are published in the discharge of a duty or in the exercise of a right.