Tuch v Myerson

The deceased, Nathan Myerson, instituted an action for defamation arising from statements made by the first respondent in an answering affidavit in separate application proceedings. Those proceedings concerned the deceased’s claim for transfer of shares in Jazz Spirit 46 (Pty) Ltd based on a written undertaking by the first and third respondents. In resisting the application, the first respondent alleged that the undertaking was a donation, invalid or revocable due to the deceased’s alleged gross ingratitude. He further alleged that the deceased had misappropriated R5–R6 million from his late father’s partnership and that, if made a shareholder, the deceased would cause trouble and problems. The third respondent filed a confirmatory affidavit adopting these allegations. The deceased alleged that these statements were defamatory and made maliciously. The High Court found the statements defamatory but held they were protected by qualified privilege as they were relevant to judicial proceedings and not malicious. After the deceased’s death, his executors appealed.

The appeal was partially upheld against the first and third respondents. The High Court order was set aside and replaced with an order directing the first and third respondents, jointly and severally, to pay R30 000 in damages and the plaintiff’s costs. The claim and appeal against the second respondent were dismissed.

The case clarifies the limits of qualified privilege in defamation arising from judicial proceedings and confirms that relevance alone does not suffice where allegations are made maliciously. It illustrates how malice may be inferred from allegations that are patently unfounded and serves as an important authority on reputational protection against abuse of court processes.