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Uploaded byAshwini Singh
Defamation in Sectional Title Schemes: Critical Legal Risks for South African Body Corporates
The document discusses the elements of defamation within sectional title schemes in South Africa, focusing on false statements, harm to reputation, and publication. It provides examples of slander and libel occurring in body corporates, highlighting a specific case where a body corporate's defamatory letter resulted in a significant damages award to the plaintiff. The case emphasizes the importance of dignity and the legal repercussions of slanderous or libelous statements.
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Defamation in Sectional Title Schemes: Critical Legal Risks for South African Body Corporates
- 1. Body Corporates Beware: Defamation in SectionalTitle Schemes
- 2. The Basic Elements of Defamation Adelictual claim under South African civil law.
- 3. Element #1: False Statement The defamatorystatement must be proven to be false (on a balance of probabilities).
- 4. Element #2: Harm The defamatorystatement must have caused harm to the reputation of the plaintiff.
- 5. Element #3: Publication •The defamatory statement must refer to the plaintiff. • The defamatory statement must be made known to a third party other than the plaintiff or the defendant either by writing (libel) or verbally (slander).
- 6.
- 7. Examples of Slander in aBody Corporate Unit Owner A makes a false statement that Unit Owner J is being sequestrated and foreclosed at an Annual General Meeting. Body Corporate Chairman O makes a false statement that a registered Professional Land Surveyor has committed fraud at an Annual General Meeting.
- 8.
- 9. Examples of Libelin a Body Corporate Former Trustee A makes false statements via email (sent to multiple other owners) that Unit Owner J is illegally parking on common property, when Unit Owner J is parked within a registered Exclusive Use Area. Unit Owner A makes false statements via email (sent to multiple other owners) that accuse specific owners and occupants of creating network names that Unit Owner A finds offensive.
- 10. Case Law Body Corporateof Sunnyside Gardens v Perreira
- 11. Paragraph 1: “This isan appeal against an order and judgment, in a defamation action, delivered by Magistrate J Rodrigues of the District of Tshwane Central Magistrates Court on 3 May 2022. The appellant is the Body Corporate of Sunnyside Gardens (the Body Corporate or the appellant), a body corporate established in terms of section 36 of the Sectional Titles Act 95 of 1986 (the Act). The respondent, Mr Eduardo Perreira, is the plaintiff in the defamation action. He is the owner of Unit 16 in Sunnyside Gardens Sectional Title Scheme (Sunnyside Gardens).”
- 12. Paragraphs 2-3: “At thecentre of the case is a letter written by attorneys Kleynhans & Swanepoel from the Body Corporate to Perreira (the letter) concerning Perreira’s conduct at Sunnyside Gardens. Specifically, that Perreira was using his garage for an impermissible purpose – a carpentry business – and in doing so, he was illegitimately using the electricity of the common property and causing a nuisance to his neighbours.” “The magistrate found that the letter, which was dated 17 November 2015 and which was sent to all members of the Board of Trustees of Sunnyside Gardens and its managing agent, was defamatory of the plaintiff and awarded R50 000 in damages with interest and costs. The appellant asks that the magistrate’s order be set aside with costs and replaced with an order that the defamation action be dismissed with costs. Perreira defends the judgment and order.”
- 13. Paragraph 46: “…An ordinaryperson of reasonable intelligence would have understood the letter to convey that Perreira was not merely accused of wrongdoing based on complaints received but was guilty of wrongdoing. The letter was defamatory both on its plain meaning, and because it implied squarely, that Perreira does not abide the rules and misuses the common property electricity for his personal use, effectively by stealing it. Contrary to the submission of the appellant, and as the Magistrate found, the letter as framed did not merely inform Perreira of complaints that have been received and provide an opportunity to respond thereto. The letter as framed, squarely concluded, not least implied, that Perreira was guilty of the conduct.”
- 14. Paragraph 52: “…The Magistratewas cognisance of the absence of an apology and the absence of any proof of the wrongdoing or even an opportunity to respond. The appellant’s suggestion that the extent of the publication was minimal cannot be sustained given the context and factors personal to Perreira, of which the Magistrate, in applying her mind to the eventual award, was clearly aware. A retiree living in a small community and being humiliated therein, losing trust of his community. His whole world was thereby affected by an accusation of being a person who steals electricity from the common property and is a nuisance to his neighbours. Further, it was wholly predictable that the body corporate would ultimately have learnt what had been done in its name, not least after the threat of litigation and the failure to respond to the invitation to apologise. What happened would have harmed the reputation of anyone, but especially a retired person living in the complex which to Perreira, was his community.’"
- 15. Paragraph 54: “The Magistrate,in a well-balanced and substantial judgment, weighed up both sides of the conflict. I find no reason to interfere with the judgment and order of the magistrate in the trial court. Hence the following order: (i) The appeal is dismissed with costs. (ii) The judgment and order, including the award of R50,000 as given by the trial magistrate, is upheld.”
- 16. Remember: In South Africa, everyonehas the right to dignity. Section 10 of the South African Constitution, 1996
- 17. In short, becareful what you say or write in a body corporate.