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2 Though it is clearly aware of Mr.
Tjabadi’s complaint, and was properly served
with Mr. Tjabadi’s founding papers, Eskom did not oppose the application,
which was enrolled in my unopposed court on 17 July 2024. After hearing from
counsel, I dismissed the application. I indicated that my reasons for doing so
would be issued in due course. These are my reasons.
Mr. Tjabadi’s dismissal from Eskom
3 Mr. Tjabadi is a former employee of Eskom. In June 2015, he was disciplined
and dismissed from his role. On 25 October 2019, the Commission for
Conciliation Mediation and Arbitration (CCMA) confirmed Mr. Tjabadi’s
dismissal, finding it to have been both procedurally and substantively fair.
Eskom disciplined Mr. Tjabadi on three charges. The first charge alleged the
mishandling of contracts between Eskom and various of its service providers.
The second charge alleged that Mr. Tjabadi had been negligent in assessing
quotations provided to Eskom for services it wished to procure. The third
charge alleged that Mr. Tjabadi had acted contrary to Eskom’s interests in his
role as its agent in the management of one of its contracts with a service
provider.
4 It is hard to be more precise about the nature of the charges Mr. Tjabadi faced,
because the only relevant evidence before me is the charge sheet proffered
against Mr. Tjabadi at his disciplinary inquiry. I have not seen any of the
evidence led at that inquiry, or any of the material placed before the CCMA.
5 Mr. Tjabadi is in the process of reviewing the CCMA award at the Labour
Court. That review has not yet been heard.
2
The alleged defamatory matter
6 Whatever the facts underlying Mr. Tjabadi’s dismissal, his conduct seems to
have become relevant in three other sets of contentious legal proceedings
involving Eskom.
7 In an affidavit made on Eskom’s behalf in proceedings in the Supreme Court
of Appeal, which was filed on 28 January 2016, a Ms. Leena Ramprsad
alleged that Mr. Tjabadi had become “the subject of criminal fraud charges”.
8 In a further affidavit, deposed to on Eskom’s behalf in the Labour Court on 22
April 2016, a Ms. Winile Madonsela alleged that Mr. Tjabadi had engaged in
“irresponsible and dishonest behaviour”. The affidavit was filed in proceedings
concerning another of Eskom’s employees.
9 On 30 August 2021, while engaged in an arbitration with a joint venture it is
not necessary to name, Eskom sought to amend its statement of defence to
include an allegation that Mr. Tjabadi had “wrongfully” approved a “task order”
in “collusion” with some other person. The gist of the allegation is that Mr.
Tjabadi knew that he should not have approved the order, but did so anyway,
apparently for some improper motive.
10 Mr. Tjabadi says that all of this is untrue and defamatory. He also says that
Eskom’s allegations go well beyond anything for which he was disciplined and
dismissed. He is clearly aggrieved that allegations have been made about him
in proceedings to which he is not a party. He wishes to protect his reputation
against further attack.
3
11 On 5 December 2023, Mr. Tjabadi’s attorney wrote to Eskom seeking the
retraction of the allegations I have set out, a public apology for having made
them, and an undertaking not to make them again. On 19 December 2023,
Eskom replied. It asserted the truth of all the allegations. It stated that the
evidentiary basis on which the allegations were made is set out in the record
of the CCMA proceedings. It refused to accede to Mr. Tjabadi’s demands.
Relief not available on the established facts
12 I shall assume in Mr. Tjabadi’s favour that the material of which he complains
is defamatory, and that Eskom was solely responsible for publishing the
defamatory material, rather than the legal representatives who drafted the
pleadings or the deponents to the affidavits in each case. That
notwithstanding, the relief Mr. Tjabadi seeks is not available to him, because
his own papers establish that the defamation of which he complains was
probably lawful.
13 Mr. Tjabadi says that the allegations in Eskom’s papers are false. Eskom says
that they are true. The grounds on which Eskom asserts the truth of the
allegations are not addressed in Mr. Tjabadi’s affidavit. Mr. Tjabadi says no
more than that the charge sheet in his disciplinary inquiry does not allege
dishonest or criminal conduct. But that simply begs the question of what was
established by the evidence proffered on those charges. Mr. Tjabadi does not
produce the CCMA record. Nor does he seriously address Eskom’s allegation
that the record contains the evidence necessary to confirm the truth of the
statements made on its behalf in the affidavits and the pleadings with which
Mr Tjabadi takes issue. The record was plainly available to Mr. Tjabadi. His
4
failure to deal with it justifies the inference that Eskom was probably right in
asserting that the CCMA record confirms the truth of its statements.
14 Moreover, the defamatory statements were each made in affidavits and
pleadings tendered in legal proceedings. It is well-established that those who
make statements on affidavit or in pleadings enjoy a qualified privilege against
liability for defamation, so long as their statements are relevant to the issues
in the proceedings, and are not made maliciously or recklessly (Findlay v
Knight 1935 AD 58). There is no suggestion that Eskom’s statements
exceeded the bounds of the privilege that would normally attach to them.
Onus
15 Counsel for Mr. Tjabadi approached the matter on the basis that Mr. Tjabadi
merely had to establish that the statements were defamatory. Once he had
done that, counsel submitted, Mr. Tjabadi was entitled to rely on the onus to
justify a defamatory publication that usually rests on a defendant in defamation
proceedings.
16 There are at least two problems with this approach. The first is that it has long
been accepted that “[i]n motion proceedings the question of onus does not
arise”. The rule in motion proceedings is that final relief may only be granted
on the undisputed facts “irrespective of where the legal or evidential onus lies”
(National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA),
paragraph 27).
17 Secondly, and assuming against the authority in Zuma that the onus counsel
relied upon can meaningfully be applied in these motion proceedings, the facts

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2 Though it is clearly aware of Mr.

Tjabadi’s complaint, and was properly served

counsel, I dismissed the application. I indicated that my reasons for doing so

would be issued in due course. These are my reasons.

Mr. Tjabadi’s dismissal from Eskom

3 Mr. Tjabadi is a former employee of Eskom. In June 2015, he was disciplined

Conciliation Mediation and Arbitration (CCMA) confirmed Mr. Tjabadi’s

dismissal, finding it to have been both procedurally and substantively fair.

mishandling of contracts between Eskom and various of its service providers.

quotations provided to Eskom for services it wished to procure. The third

Court. That review has not yet been heard.

have become relevant in three other sets of contentious legal proceedings

7 In an affidavit made on Eskom’s behalf in proceedings in the Supreme Court

of Appeal, which was filed on 28 January 2016, a Ms. Leena Ramprsad

8 In a further affidavit, deposed to on Eskom’s behalf in the Labour Court on 22

“irresponsible and dishonest behaviour”. The affidavit was filed in proceedings

concerning another of Eskom’s employees.

9 On 30 August 2021, while engaged in an arbitration with a joint venture it is

not necessary to name, Eskom sought to amend its statement of defence to

apparently for some improper motive.

in proceedings to which he is not a party. He wishes to protect his reputation

against further attack.

them, and an undertaking not to make them again. On 19 December 2023,

of the CCMA proceedings. It refused to accede to Mr. Tjabadi’s demands.

Relief not available on the established facts

pleadings or the deponents to the affidavits in each case. That

14 Moreover, the defamatory statements were each made in affidavits and

pleadings tendered in legal proceedings. It is well-established that those who

make statements on affidavit or in pleadings enjoy a qualified privilege against

in the proceedings, and are not made maliciously or recklessly (Findlay v

Knight 1935 AD 58). There is no suggestion that Eskom’s statements

justify a defamatory publication that usually rests on a defendant in defamation

(National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA),

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