Good everyone and welcome back to another discussion in a What If series. We will bring you insights in the format of a what if question on the ever evolving landscape of employment law.
My name is Ross Simon from Maserumule Corporate Employment Law and in today's discussion we're unpacking what if workplace misconduct investigations lead to defamation claims. What are the legal considerations and implications?
While we usually focus on Labour Court matters, today we look at a High Court judgement that explored our deformation law intersects with workplace investigations, a scenario that's becoming increasingly common in South African employment relations.
In the case of Manqele v Baloyi Masango Inc Attorneys and Others, the employee was a senior technical director at the local municipality. After a major sewer spillage incident, the municipality appointed a law firm, let's call them the attorneys, to conduct an investigation and prepare a report for the municipal council.
The attorneys interviewed several staff members, but the employee refused to participate, saying he would only do so with his lawyer present. When the report was presented to the 28 councillors, it contained adverse findings highlighting poor leadership, inadequate technical skills and wasteful expenditure within the technical department. Feeling that the report had tarnished his professional reputation, the employee sued the attorneys for 2 million Rand, claiming that the report portrayed him as incompetent, corrupt and unqualified and was therefore defamatory.
The key question before the court was this “Can an investigator, law firm or even an employer be held liable for defamation when an investigation report includes negative findings about an employee? “ Under South African law, defamation occurs where there is publication of a statement that is wrongful, intentional, defamatory and refers to the plaintiff. But even if a statement is defamatory, it is not automatically unlawful.
One of the key defences is qualified privilege, which applies when the communicator has a legal, moral or social duty to make the statement and the recipient has a legitimate interest in receiving it. This privilege can only be lost if the employee proves malice, in other words, that the statement was made with an improper motive rather than in the course of duty. The High Court dismissed the employee's claim.
First, the court found that the report was compiled on a qualifiedly privileged occasion. The attorneys were acting on lawful instruction from the municipality. They had a duty to investigate and report back to the council, and the council had a legitimate interest in receiving their findings.
Second, there was no proof of publication beyond that formal setting. The report is tabled only before the 28 councillors, not made public or distributed to others. In South African law, publication means communication to at least one person other than the plaintiff, and here there was none. In fact, the employee saw the report only because a municipal security manager who attended the meeting showed it to him at his request.
Third, there was no evidence of malice or intent to defame. The attorneys were performing the professional mandate, not acting with hostility or personal bias. Finally, the court found that the employee had omitted important portions of the report in his pleadings to make it seem that all criticism was directed at him alone. In truth, the report dealt with systemic departmental issues affecting several employees. The judge held that the attorneys acted in good faith, that the findings reflected professional opinion, and there was no wrongful or malicious publication.
Accordingly, the deformation time failed and was dismissed with costs. This judgement reinforces several important lessons for the workplace and HR environment. Negative findings aren't automatically defamatory if an investigation is honest, evidence based, and within mandate. Criticism does not equal defamation. Qualified privilege protects fair process. Reports shared only with authorized persons such as management, HR, or council are privileged. Malice destroys that protection. If an investigator acts with bias, hostility, or leaks a report, privilege falls away. Confidentiality is crucial. Restricting circulation of the report helps prevent unlawful publication.
That brings us to an end of this week's discussion. Thank you for joining us. We hope you have found it informative. If you have any questions or comments, we'd love to hear from you. You can find us on social media or you can e-mail me directly at ross@masconsulting.co.ca. Until next time, bye bye.
