WhatsApp Defamation in HOAs and Body Corporates: What woners, Trustees and Directors Need To Know.
High Court Confirms That WhatsApp Defamation Can Have Serious Consequences
Many community scheme disputes no longer take place in boardrooms, annual general meetings or through formal correspondence. Instead, they increasingly play out on WhatsApp groups, Facebook pages and community forums.
A recent High Court judgment has delivered a clear warning to owners, residents, trustees and directors alike: social media is not a legal free-for-all, and defamatory statements made online can have serious consequences.
The Case:
In a recent matter before the KwaZulu-Natal High Court, a homeowners’ association and several of its representatives approached the Court for relief against a resident who had repeatedly made allegations on WhatsApp groups and other public platforms.
The allegations included claims that the association’s directors were dishonest, corrupt, unethical and involved in the unlawful management of the estate.
The Court ultimately granted a final interdict preventing the resident from making further defamatory statements and ordered him to pay legal costs on the punitive attorney-and-client scale.
One of the most important findings of the judgment is that WhatsApp messages are not protected simply because they are shared in a private group.
The Court confirmed that publication occurs when defamatory content is communicated to any third party. In other words, if a message is posted in a WhatsApp group and read by other members, publication has occurred.
Many people incorrectly assume that comments made in estate groups, owners’ groups or community forums are private. The law does not necessarily see it that way.
The judgment is not a victory against criticism.
Owners remain entitled to question decisions, challenge trustees, request information, raise concerns regarding finances and governance, and hold directors accountable.
However, there is a significant difference between raising concerns and making allegations of corruption, dishonesty, criminal conduct or unethical behaviour without evidence.
The Court emphasised that freedom of expression does not extend to reckless or false allegations that damage the reputation of others.
An often-overlooked aspect of community scheme governance is the reputational impact of public allegations.
Negative and unsubstantiated statements can affect property values, discourage potential purchasers and create unnecessary conflict within a scheme.
The Court recognised that sustained defamatory attacks can cause real harm not only to individual directors and managers but also to the reputation of the scheme itself.
If an owner believes that a body corporate or homeowners’ association is acting improperly, there are several legitimate avenues available:
- Requesting information through the proper governance channels.
- Raising concerns at meetings.
- Calling for resolutions where appropriate.
- Lodging complaints through internal procedures.
- Referring disputes to the Community Schemes Ombud Service (CSOS).
- Obtaining independent legal advice.
Public accusations should never be the first step.
Trustees and directors should not simply accept ongoing reputational attacks as part of the job.
Where criticism becomes defamatory, false or malicious, legal remedies may be available. The courts have repeatedly demonstrated a willingness to protect individuals and community schemes from unlawful attacks on their reputation.
At the same time, trustees and directors should continue to operate transparently, communicate openly and ensure that owners have access to appropriate governance processes.
Social media has become an important communication tool within community schemes, but it has also become a source of conflict.
Before posting allegations in a WhatsApp group or on social media, owners should ask themselves a simple question: can I prove what I am saying?
If the answer is no, the consequences may be far more significant than many realise.
Freedom of expression remains a fundamental right, but with that right comes responsibility. The recent High Court judgment serves as a timely reminder that the law still applies, even in a WhatsApp group.
Corrie
What if all the above wss done but they keep on doing it what if you have recordings from previous maintenance company claiming exactly what and how they doing also from an portfolio manager who knows and on an interview with her attorney that she was fired because she wanted to warn other trustee about what was going on