A now former senior employee at Gibela Rail has instituted a damages claim for R5 million against the rail company as he claimed that a report, which was used against him during an internal disciplinary hearing, contained defamatory statements regarding him.
Rodgers Ndobe turned to the Gauteng High Court, Johannesburg, as he claimed that the report was “leaked” to others within the company.
The report was generated by Gibela Rail and used in support of disciplinary proceedings initiated against Ndobe for gross negligence.
The disciplinary proceedings were initiated following his refusal to follow the instruction of his line manager, Ezra Bambo.
Bambo sought input from Ndobe’s former line managers to compile evidence regarding his performance during their tenure. The report was incorporated into the package of documents that Bambo used to present the company’s case against Ndobe at the disciplinary hearing.
Ndobe was dismissed after being found guilty of the disciplinary charges. He filed an appeal against the results of the hearing. On appeal, only the sanction of dismissal was overturned and replaced with a final written warning.
Nine months later, Ndobe instituted legal action against the company based on the report. He continued to work for the company until he was dismissed for another unrelated offence.
Ndobe claimed that the report was published and distributed amongst the company’s management personnel and “leaked to other employees in a clandestine manner”. This was done unlawfully, he said, as the report was confidential, defamatory, and contained incorrect information.
Ndobe also alleged that the report was discussed by other employees during a protest following the disciplinary hearing, during which the former CEO of the company was summoned to intervene.
It was argued that Ndobe’s integrity and reputation were harmed because of the report's distribution and publication.
Gibela Rail denied that any statement contained in the report was defamatory and maintained that no defamatory material or statement was published to a third party.
It contended that the disciplinary processes, including the preparation of the report, the charge sheet, and the hearing, were legally sanctioned processes that constitute a privileged event which can never give rise to defamation.
The report, which was in the form of a PowerPoint slide, stated that Ndobe was the manager of a multimillion project in which Gibela Rail was involved.
The latter is a rail transport consortium that is committed to black economic empowerment. In 2013, it was incorporated as a ring-fenced company to oversee the rolling-stock fleet-renewal programme of the Passenger Rail Agency of South Africa (Prasa).
The purpose of this contract was to furnish Prasa with trainsets, as well as to offer technical support and related services. Ndobe testified that the design group was responsible for the installation of equipment to facilitate the production of “the cars”, which are actually train coaches.
Ndobe stated that he was never the project manager of the design group, as stated in the report, and his only duty was to provide support for the project.
He claimed that the report contained sensitive information about him and was published to “other employees” after it was “recklessly distributed” to all participants in the hearing.
Ultimately, he said, the striking workers could access this information and engage in a discussion regarding the report, specifically, the allegations that he mismanaged a project valued at 11 million Euros.
Ndobe testified that the rail company failed to safeguard his integrity and permitted all attendees at the hearing to take the report with them.
Judge Leonie Windell said according to the evidence, only four copies of the report that were brought to the disciplinary hearing were distributed to those involved in the hearing.
In turning down his claim, she said that distributing the report to the participants at the hearing does not constitute publication for purposes of Ndobe’s defamation claim. This is because Ndobe is suing the rail company vicariously for the actions of its employees or representatives at the hearing.
“The hearing was a privileged occasion, and the report was pertinent and essential for the purposes of the hearing,” Judge Windell concluded.
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Pretoria News