Tuch v Myerson

Nathan Myerson (the deceased) instituted a defamation action against the respondents arising from statements made by the first respondent (Jeffrey Harold Myerson) in an affidavit in application proceedings. The deceased had instituted an application against the first and third respondents (Dion Barry Masureik) for delivery of share certificates in Jazz Spirit 46 (Pty) Ltd, based on a written undertaking dated 23 April 2004. In his answering affidavit in those application proceedings, the first respondent made two allegedly defamatory statements: (1) that the deceased had misappropriated R5 to R6 million from the first respondent's deceased father's portion of a partnership; and (2) that if the deceased became a shareholder he would devote his time to creating trouble, unpleasantness and problems. The deceased died on 4 March 2008 after the action was dismissed by the High Court, and his executors (the appellants) were granted leave to appeal.

• Whether the statements made in the affidavit were defamatory
• Whether the statements were protected by qualified privilege as they were made in the course of civil judicial proceedings
• Whether the defamatory statements were relevant to the issues in the application proceedings
• Whether the respondents acted maliciously, thereby exceeding the bounds of qualified privilege
• Whether nominal or substantial damages should be awarded in the absence of evidence about the deceased's reputation
• What quantum of damages was appropriate in the circumstances

The appeal was partially upheld with costs as against the first and third respondents. The appeal against the second respondent was dismissed. The order of the court below was set aside and replaced with an order that: (a) the first and third defendants jointly and severally pay the plaintiff R30,000; (b) the plaintiff's claim against the second defendant be dismissed; and (c) the first and third defendants jointly and severally pay the plaintiff's costs.

The binding legal principles established are: (1) Qualified privilege protecting statements made in civil judicial proceedings is forfeited when the statement is made maliciously, i.e., for an ulterior purpose rather than to advance the case. (2) Malice, being a state of mind, can be inferred from intrinsic or extrinsic facts, including where a defamatory allegation is so devoid of merit that the only inference is that it was made for an ulterior purpose to damage reputation. (3) In defamation cases, every person is presumed to have a reputation capable of being injured; therefore, substantial (not merely nominal) damages may be awarded even in the absence of evidence adduced about the plaintiff's specific reputation. The plaintiff may adduce evidence of good reputation as an aggravating factor, and the defendant may adduce evidence of bad reputation as a mitigating factor, but absence of such evidence does not reduce damages to nominal amounts.

The court made observations about the practical administration of justice, noting that where parties agreed and circumstances warranted, it was appropriate for the appellate court to determine quantum of damages rather than remitting the matter to the trial court, particularly where the trial judge was no longer at that court and both parties had closed their cases without leading evidence on quantum. The court also observed that comparisons with damages awarded in other cases serve only a very limited purpose in determining appropriate quantum. The court made reference to the principle articulated in Basner v Trigger that privileged occasions are recognized to enable persons to achieve certain purposes, and when they use the occasion for other purposes, they are actuated by improper or indirect motives, constituting malice.

This case is significant in South African defamation law for clarifying the limits of qualified privilege in civil judicial proceedings. It establishes that even though statements made in court papers enjoy qualified privilege, this protection is lost where malice can be inferred from the lack of merit of the allegations and the ulterior purpose of damaging reputation rather than advancing the case. The judgment also clarifies the principles regarding assessment of damages in defamation cases, rejecting the notion that nominal damages should be awarded in the absence of evidence of reputation, and affirming that every person has a reputation capable of being injured. The case demonstrates how malice, being subjective, can be inferred from objective facts including the patent lack of legal merit in the defamatory allegations.