Administrative errors are arguably inevitable — but can incorrectly citing a party and wrongly posting a judgment on a credit bureau amount to defamation? It is against this backdrop that Bam J reiterated the elements of a defamation claim in Makhafola v Wiese and Another (27518/2021) [2025] ZAGPPHC 238 (“Makhafola”).
Factual background
During his annual credit check with TransUnion, a credit bureau, Mr Makhafola noticed a judgment mistakenly listed on his profile. He discovered that this mishap was caused by two administrative errors — (i) the Candidate Attorney who prepared the summons used a template on which Mr Makhafola’s ID number appeared and failed to replace such with Mr Stoltz’s ID number and (ii) TransUnion mistakenly recorded the resulting judgment as being against Mr Stoltz despite judgment only being granted against Stoltz Incorporated. As a result, the judgment wrongly appeared on Mr Makhafola’s credit profile, though he had no involvement.
Mr Makhafola contacted the Defendants who promptly removed the judgment from his profile (whilst two unrelated judgments remained).
Mr Makhafola instituted Defamation Proceedings, alleging that he had suffered damages caused by the defamatory publication of the judgement. He claimed R6 712 000 for reputational harm, special damages in the form of lost rentals, which would have accrued if a property purchase had not fallen through, and Constitutional Damages.
Legal Principles
Bam J commenced by quoting the five elements of a claim founded on defamation as set out in Le Roux and Others v Dey 2011 (6) BCLR 577 (CC) (“Le Roux”) —
- The wrongful and
- Intentional
- Publication of
- a defamatory statement
- Concerning the Plaintiff.
With reference to Le Roux, Bam J explained that the Plaintiff only needs to prove the latter three elements for the first two elements to be presumed, leaving such for the Defendant to disprove.
In explaining each element, Bam J noted that as per Le Roux, a publication is the sharing of a statement with anyone other than the Plaintiff. He noted further that as per Sinadi v Van der Merwe 2002 (2) SA 32 (SCA), the determination whether a statement is defamatory involves two steps. First, the natural or ordinary meaning of the statement is determined by asking what a reasonable reader of average intelligence would understand it to mean, considering the context and any implications. Second, the court decides if the meaning is defamatory — that is, more likely than not to harm the Plaintiff. If the statement has more than one possible meaning, the most probable one is chosen.
Bam J moreover referred to Tuch and Others v Myerson [2010] 2 All SA 48 (SCA) which explained that malicious intention is determined by considering an individual’s subjective state of mind.
Lastly, in response to Mr Makhafola’s claim for special and Constitutional damages, Bam J explained that to claim special damages, the elements of the Aquilian Action must also be proven and to claim Constitutional damages, no other remedy may be available to the applicant.
Application of legal principles
After considering Mr Makhafola’s claim, Bam J determined that the elements of defamation had not been met and dismissed the application as frivolous. In his reasoning he explained that the judgment would not have been understood by a reasonable reader to refer to Mr Stoltz, much less Mr Makhafola. Mr Makhafola therefore failed to prove that the publication conveyed his indebtedness.
Furthermore, as Mr Makhafola already had two other judgments present on his profile and as the judgment against Stoltz Incorporated was only published for a short amount of time during which no enquiries as to Mr Makhafola’s profile were made, the publishing was unlikely to cause him harm. The Defendants’ quick action after being made aware of the mishap moreover excluded any chance that there was malicious intent involved.
Finally, Mr Makhafola’s prayers for special and Constitutional damages were also denied, as no evidence regarding the Aquilian Action or Constitutional damages was led.
Although unsuccessful, it should be noted that this case turned on its specific facts and a similar error could still justify a successful claim under different circumstances.
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