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Reporting a potential sex abuser not defamatory, court rules

A woman maintained that her intention was not to defame a father, but insisted it was her legal and civil duty to report her concerns to the welfare people and the SAPS if she suspected that children were being abused. Picture: File

A woman maintained that her intention was not to defame a father, but insisted it was her legal and civil duty to report her concerns to the welfare people and the SAPS if she suspected that children were being abused. Picture: File

Published Jun 27, 2022

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Pretoria - The Western Cape High Court has reversed the decision of a magistrate who had ordered a woman to pay R50 000 in damages for defamation because she had reported that a father was sexually abusing his children.

A magistrate’s court earlier found that the woman had bad-mouthed the father in the letter of concern she had sent to the police. She was ordered to pay him damages.

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However, the woman, who is not identified to safeguard the children, took the judgment on appeal to the high court.

She maintained from the start that her intention was not to defame the father, but she insisted it was her legal and civil duty to report her concerns to the welfare people and the SAPS if she suspected that children were being abused.

The woman owned a holiday home on a farm in the Koue Bokkeveld region. The father, only identified as N, was a labourer at the farm where he lived with his family.

During 2016 the appellant sent a letter to a social worker and a Family Violence, Child Protection and Sexual Offences Unit. The letter expressed concerns for the N family, in particular the two children, and detailed allegations of sexual deviancy and predatory behaviour on the part of the father.

The man claimed damages in the magistrate’s court for defamation and was awarded R50 000.

In defending the matter, the woman said she was entitled to send the letter, via email, to the police, as the Children’s Act empowered her to do so. She said there was a legal duty on the SAPS to investigate matters where children may be in danger.

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The woman at first alerted the local social worker to the possible plight of the children, but she was advised to raise her concerns with the police so they could investigate the matter.

The court raised the issue of how the father came to be in possession of the letter to the police on which he based his defamation claim. He, however, remained tight lipped about who showed him the letter.

The officer who at the time received the letter denied that he showed it to the man. The welfare worker said as the complaint did not fall in the area where she worked, she advised the woman to send a letter to the police if she felt the children were in danger.

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She said she informed the appellant she would not get into trouble for reporting the matter to the police because members of the public were obliged to report concerns about children to the police and the Children’s Act would protect her.

The woman testified that her primary issue was that an investigation would result in protecting the children because she was concerned for them. She did not know whether the issues reported to the police were true or not, but that it was for the police to ascertain.

The man initially testified that he had not seen the letter which gave rise to the defamation action. He also refused to say, during the trial, who told him about the letter or how he came to learn of it. He admitted that the letter was confidential, but he said he was belittled by the allegations against him.

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Judge Hayley Slingers said the magistrate was entirely wrong in finding that the woman defamed the father. She said the court should have ascertained how he learnt of the letter and whether it was obtained improperly or unethically.

The appellant’s legal representative argued that the letter was unlawfully obtained and uplifted from the police docket. This was not disputed or denied. On the contrary, the respondent refused to disclose how he came to be in possession of it, the judge said.

“If it was unlawfully uplifted from the police docket, it would not only have been unethical but also illegal,” the judge said.

In overturning the R50 000 in damages, the judge said one of the objectives of the Children’s Act was to increase reporting of instances where children may be in need of care and protection to social services and/or to the SAPS.

“It is only by reporting these instances to social services and/or the SAPS that they may be investigated, addressed and properly responded to.

“Increased reporting resulting in increased protection of vulnerable children and increased accountability for those guilty of abuse and/or deliberate neglect will result in increased confidence by children to request assistance and to report abuse and deliberate neglect,” the judge said.

Pretoria News

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