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[2021] ZAWCHC 76
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Katz v Welz and Another (22440/2014) [2021] ZAWCHC 76 (26 April 2021)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NO: 22440/2014
In the matter between:
LEONARD
CHARLES KATZ
and
Plaintiff
MARTIN
SYLVESTER WELZ
First Defendant
(Identify No. [….])
CHAUCER PUBLICATIONS
(PROPRIETARY)
LIMITED
Second
Defendant
(Registration No.
2001/025520/07)
Coram
: N Mayosi AJ
Delivered
: 26 April 2021
JUDGEMENT
MAYOSI,
AJ
INTRODUCTION
1 This is an
action for damages for defamation, in which the plaintiff is
Mr
Leonard Katz, a director of Edward Nathan Sonnenbergs Inc. which is a
firm of attorneys that practices nationally and internationally
in
the name and style of ENS Africa (
ENS
). The plaintiff is a
senior attorney, who has practised as an attorney, uninterrupted,
since his admission to practice on 28 January
1987.
2 The plaintiff
specialises in insolvency law, corporate rescue and recoveries.
In
addition to being the national head of ENS’s Insolvency,
Business Rescue, Corporate Recoveries Department, he is also
the head
of the Durban office of ENS.
3 The first
defendant is Mr Martin Welz, a senior journalist and the editor
of a
monthly magazine known as Noseweek that is sold and circulated
throughout South Africa, and in Namibia. Mr Welz began
his
career as a journalist in 1975 and has practiced as such,
uninterrupted, since then. He has held senior positions at
various national news publications, including the position of
Pretoria Bureau Chief for the Sunday Times; Parliamentary
Correspondent
for the Sunday Express and head of investigations at
Rapport. Mr Welz has been the editor of Noseweek since it was
founded
in 1993.
4 The second
defendant, Chaucer Publications, is the owner, publisher and
distributor of Noseweek.
5 In addition
to being the editor of Noseweek, Mr Welz is also the sole director
and corporate controller of Chaucer Publications.
6 Mr Katz
brings this defamation action as a result of the publication of
the
following content in an edition of Noseweek in July 2014:
6.1 A
graphic and/or digital representation of Mr Katz published on
the
front cover of Noseweek with the caption “
The man who stole
justice
” (
the cover page
). This same image also
appeared on page 3 of the magazine. The digital image, as well
as the accompanying caption, were published
once again in the August
2014 edition of Noseweek.
6.2 An
editorial article entitled “
Lennie the Liquidator makes
mockery of the law
”, of which Mr Welz was the author,
together with the same digital image of Mr Katz (
the editorial
).
6.3 An
article entitled “
And then there’s Brakspear”
of which Mr Welz was the author, together with the same digital image
of Mr Katz (
the Brakspear article
).
7 Mr Katz
asserts that the digital image and the caption “
The Man who
stole justice”
are
per se
wrongful and defamatory of
him in that they were intended, and were understood by readers of
Noseweek to mean that Mr Katz had
acted to subvert the course of
justice; was dishonest; and had conducted himself in an unlawful and
unprofessional manner.
8 The editorial
contained the following statements concerning Mr Katz:
8.1
“
While several ENS directors have actively helped design the
fraudulent schemes, and all ENS directors and senior partners have
knowingly
and happily shared in the spoils and must therefore share
responsibility, one director stands out above the rest in his
aggressive
fee charging and disregard for his victims and the law. He
is Leonard Katz, director and ‘specialist’ in charge of
the insolvency and liquidation Department of ENS, and better known in
the trade as ‘Lennie the Liquidator.’
8.2 “
More
than a year ago serious allegations of fraudulent manipulation of
court proceedings (including the use of a fake court order)
by Katz
and other members of ENS were formally brought to the attention of
the Judge President of the KwaZulu- Natal High Court
and the Chief
Justice of South Africa.
”
8.3 It
questioned how it was possible “
that judges tolerate that
the likes of Katz continue to practice as officers of the court,
despite the damning evidence against
them having been public
knowledge for years? By now his impunity knows no bounds.
”
8.4 “
You
want what can’t legally be done? Agree to pay Lennie an extra
million-or-three and he will pull it off, by hook or by crook.
”
8.5 “
All
South Africa’s banks and many of the very rich know it, and are
happy to hire the likes of Lennie when the law gets in
their way. And
so the rot spreads.
”
Mr Katz’s complaint is that the above content in the editorial
article is
per se
wrongful and defamatory of him in that
these words were intended, and understood by readers of Noseweek to
mean that he acted,
inter alia
, fraudulently and/or devised
fraudulent schemes; is a dishonest person generally who has been
guilty of unprofessional conduct;
is unfit to practice as an attorney
and is prepared to act unlawfully and/or unprofessionally on behalf
of his clients, in return
for the payment of money.
9 Mr Katz
objects to the following content in the Brakspear article on the
basis that it is
per se
wrongful and defamatory of him:
9.1 “
What
to do? Call in Lennie the Liquidator. Katz immediately negotiated his
R1m bonus fee, then set about applying his old recipe,
but this time
with some salad on the side. The plan was to fraudulently manufacture
a debt with which to liquidate Brakspear’s
West-Dunes Property
5. And then to appoint a friendly liquidator who would not dream of
suing Nedbank’s Fairbairn Trust.
”
9.2 “
Only
days before Christmas in 2008, when his victim and most betterclass
lawyers could safely be assumed to be on holiday, Katz
filed notice
of an urgent application for the provisional liquidation of
Westdunes, to be heard in the KwaZulu-Natal High Court,
Durban, at
9.30am on 23 December.”
9.3 “
From
then on everything went as Katz had planned. He urgently applied for
and was given the court permission to cancel the sale
to Moti, sell
the farm to Applemint for R25m - and charge the company in
liquidation his outrageously extravagant fee.
”
9.4
“
Katz’s plan was to fraudulently manufacture a debt to
liquidate
Brakspear’s property.
”
9.5 “
It
emerges that what the fraudsters did was to try to mimic an earlier
R7m payment received by Brakspear from another trust established
long
ago by his father: the Brakspear Trust in the Isle of Man.
”
9.6 “
A
significant concluding point to make with regard to Katz’s
credibility:
on 31 March 2009 Katz submitted an invoice to the liquidators of
West June’s in which he demanded payment of fees totalling
R227,417.97 for services rendered by himself and his assistants at
court in Durban on 5 and 6 February, 2009. It was paid.
On 28 May 2010 he submitted another invoice, with a different invoice
number, but listing the identical services hours and totalling
the
same R227,417.97. That also got paid, without question.
”
9.7 “
When
are South Africa’s judges going to stop buying second-hand cars
from this fraud salesman? Until they do, they share the
shame.
”
10 In the view of Mr Katz, these
words were intended and were understood by readers of Noseweek
to
mean that he, amongst other things, acted fraudulently and/or
fraudulently manufactured a debt in order to liquidate a company;
that as an attorney, has no integrity and has acted without scruples;
has charged fees which are unjustified and/or are unconscionable
and/or to which he was not entitled; and rendered false invoices.
11 It is common cause that the
July 2014 and August 2014 editions of Noseweek were delivered
to its
subscribers and were offered for sale and sold to members of the
general public.
12 Mr Welz and Chaucer
Publications admitted that for the third quarter of 2014 (the period
from July to September 2014), total sales of 16 967 copies of
Noseweek were recorded.
13 Mr Katz seeks damages for
defamation in the amount of R1 000 000.00
14 In his defence Mr Welz denies
that the material to which Mr Katz objects is defamatory.
In the
alternative, in the event of this Court finding that the impugned
material is defamatory, Mr Welz asserts that the content
published
was substantially true and was published in the public interest; or
amounted to fair comment premised on substantially
true facts; or
that it was published on a privileged occasion in that the defendants
had a moral or social duty to make the publication,
which was made to
people who had a right to receive the information; and/or that the
contents to which Mr Katz objected were published
reasonably in the
circumstances.
15 Mr Welz further asserts that
when reading the passages complained of and all other material
published in Noseweek, its readers would be familiar with, or quickly
register what he describes as the publication’s ‘
uniquely
free, irreverent and occasionally entertainingly cheeky style of
writing’
, a style which he says Mr Katz himself has on
occasion described as ‘
satirical’
. Mr Welz
further asserts that the passages complained of are a reasonable
response to documents, statements and court records
that are quoted
in the Noseweek reports concerned - said documents, statements
and court records having been either generated
by Mr Katz himself, or
with his knowledge, or at his behest, or being known to him.
16 Chaucer Publications also
denies any defamation, and raises in the alternative the defences
of
public interest privilege; or reasonable publication; or fair comment
or truth and public benefit. It says that Noseweek
is
subscribed to and circulated within a niche market of professional
persons ‘
who are not insensitive to the publication’s
typically extravagant journalistic style, and accordingly understand
and appreciate
same.’
17 The trial commenced on 24
February 2020 and was concluded on 25 September 2020. It was heard
over a period of 19 days. Mr Katz was represented by Adv Manca
SC assisted by Adv Engelbrecht. Mr Welz represented
himself.
Chaucer Publications was represented by Adv Fehr and Adv Bishop, who
was briefed for the purposes of argument only.
LEGAL PRINCIPLES APPLICABLE TO DEFAMATION
18
An action for damages is one that seeks to
protect one of the personal rights to which every person is entitled,
that is the right
to a good name, unimpaired reputation and esteem by
others. In our new constitutional order, reputation forms part
of the
concept of human dignity which is a fundamental constitutional
value. In the result, the law of defamation lies at the
intersection
of two fundamental values, both protected by the
Constitution, namely the rights to freedom of expression, including
freedom of
the press and other media, and the protection of
reputation or good name.
[1]
19
The elements of defamation are (a) the wrongful
and (b) intentional (c) publication of (d) a defamatory statement
concerning the
plaintiff.
[2]
20
The question whether a statement is defamatory in
its ordinary meaning, or is
per se
defamatory involves a two-stage inquiry. The first is to establish
the natural or ordinary meaning of the statement. The
second is
whether that meaning is defamatory.
[3]
Stage
1: The natural or ordinary meaning of statements
21
The test to be applied is an objective one. This
Court is not concerned with the meaning which the maker of the
statements intended
to convey, or with the meaning those to whom it
was published gave to it or whether they believed it. In
accordance
with the objective test, the question is what meaning the
reasonable reader of ordinary intelligence would attribute to the
statement
in its context. In applying this test, it is accepted
that the reasonable reader would understand the statement in its
context
and that he or she would have had regard not only to what is
expressly stated but also to what is implied.
[4]
With regard to context, headlines are not to be read in isolation
since the ordinary reader is taken to have read the article
as a
whole.
[5]
22
It must also be borne in mind that the ordinary
reader is subject to limitations. He or she is not a lawyer called
upon to interpret
the precise meaning of some legal document.
[6]
Stage
2: Is the meaning of the statements defamatory?
23
At the second stage, our courts accept that a
statement is defamatory of a plaintiff if it is likely to injure the
good esteem in
which he or she is held by the reasonable or average
person to whom it had been published.
[7]
The well-known test proposed by Lord Atkin in
Sim
v Stretch
[8]
is that a statement is defamatory if it would
“
tend to lower the plaintiff in
estimation of right-thinking members of society generally.”
Although this test has been widely applied, it should be qualified in
two respects. First, it is recognised that the
reference to
“right-thinking persons” is no more than a convenient
description of a reasonable person of normal understanding
and
development. That is, it is a legal construct of an individual
utilised by the courts.
[9]
24
Second, it has been accepted that the reference
to the views of society generally is not to be equated with views
held by the national
community, but that it also includes views held
by a substantial and respectable section of the community. Defamatory
statements
include statements affecting moral character, imputing for
example dishonesty, unethical or unprincipled behaviour; reflecting
on office, profession or occupation, or which expose a person to
enmity, ridicule or contempt.
[10]
25
This Court agrees with the submissions made on
behalf of the plaintiff, and finds that the statements written and
publish
ed by the defendants in the cover page, the editorial
and the Brakspear article are indeed defamatory of Mr Katz.
26 The ordinary meaning of the
statements convey or imply that Mr Katz deliberately acted to
subvert
the course of justice, is dishonest, has conducted himself in an
unlawful manner, has been guilty of unprofessional conduct
or
conducted himself in an unprofessional manner, has acted fraudulently
and/or devised fraudulent schemes, is a dishonest person
generally,
is unfit to practice as an attorney, is prepared to act unlawfully
and/or unprofessionally on behalf of his clients
in return for the
payment of money, as an attorney has no integrity and has acted
without scruples and that this has been a matter
of public knowledge
for years, has exploited his clients, has acted in a criminal manner,
has acted in disregard of the law and
has fraudulently manipulated
court proceedings, has charged fees which are unjustified and/or are
unconscionable, has fraudulently
manufactured a debt in order to
liquidate a company, deliberately misled the court, has acted in a
criminal manner, has acted in
disregard of the law and has rendered
false invoices for his fees.
27 The statements are accordingly
likely to injure the good esteem in which Mr Katz is held
by the
reason
able average person to whom they were published.
Defences
available for defamation
28
Where in defamation proceedings the publication
of a defamatory statement is admitted, two presumptions arise, namely
that the publication
was wrongful and the defendant acted
animo
iniuriandi
. The onus is then upon the
defendant to establish either some lawful justification or excuse, or
the absence of
animus iniuriandi
.
[11]
29 In this matter
the defendants have admitted publication of the defamatory
statements, and
accordingly the onus shifts to them to establish
their defences.
30
It has been confirmed by both the Supreme Court
of Appeal
[12]
and the Constitutional Court
[13]
that the defendants bear a full onus of proving their defences, on a
balance of probabilities.
31 I deal in turn
with the legal principles applicable to each of the defences raised
by the
defendants, and pursued by them in the argument of the
matter.
Truth
and public benefit
32 It is lawful to
publish a defamatory statement which is true, provided the
publication is for the public benefit.
[14]
33
A defendant who relies on the defence of truth
and public benefit must plead and prove that the defamatory statement
complained
of is in substance true. What must be established is the
“
sting of the charge”
,
or the “
gist of the defamation”
and the fact that there is some exaggeration in the language used
does not deprive the defence of its effect.
[15]
Absolute
and qualified privilege
34
The general principle is that it not unlawful to
publish a defamatory statement on an occasion which the law regards
as privileged.
The consideration underlying the principle is
that on these recognised occasions the law regards the free flow of
information
as so important that it should not be hampered by the
fear of liability for defamation.
[16]
35 Absolute
privilege can only be created by statute. It is therefore not a
defence that is
available to the defendants in this particular
matter.
36
Unlike the defence of absolute privilege,
qualified privilege does not afford absolute immunity to the
publisher of a defamatory
statement. The protection conferred by this
defence is provisional and the p
ublication will be wrongful if
the publisher acted with an improper motive.
[17]
37 The three categories of
occasions that enjoy qualified privilege are recognised, namely:
(a)
statements published in discharge of a duty or exercise of a right;
(b) statements published in the course of judicial or quasi-judicial
proceedings; and (c) reports of proceedings of courts, Parliament and
public bodies. These occasions should not be regarded as
numerus
clausus
. Whether a particular instance is privileged
depends upon public policy considerations.
[18]
38 Mr Welz asserts as one of his
defences this form of qualified privilege, on the basis that
the
defendants had a moral or ‘
social’
duty to make
the publications, which were made to people who had a right to
receive the information. This defence cannot be sustained,
because
the courts do not recognise, as between a newspaper and its readers,
a community of interest sufficient to sustain the
defence of
qualified privilege. Though it may be said that the press has a
duty to publish, every reader of the newspaper
cannot be regarded as
having a sufficient interest in the subject matter.
[19]
Fair
comment
39 It is lawful to publish a
defamatory statement which is fair comment on facts that are true
and
are matters of public interest. The immunity afforded to such a
publication is provisional, and the publication will
be wrongful if
the publisher acted with an improper motive. Four requirements
have been set by the courts for successful
reliance on this
defence:
[20]
39.1 the defamatory
statement must amount to comment or opinion as
opposed to a statement of fact;
39.2 the comment must be
fair;
39.3 the facts on which the
comment is based must be true and must be expressly stated
or clearly
indicated in the document or speech containing the defamatory
statement;
39.4 the comment must
relate to a matter of public interest.
40 It is often difficult to
distinguish comment and fact, particularly where comment is presented
as fact. The test is an objective one in that the statement must be
recognisable to the ordinary reasonable person as a comment
and not
as a statement of fact. The general rule is that the
comment must be based upon facts expressly stated or clearly
indicated so that the reader is able to distinguish between what is
fact and what is comment. It is not necessary to set
out the
facts verbatim and in full, but there must be some reference in the
article that indicates what facts are being commented
on.
[21]
Media
privilege / reasonable publication
41 In
National Media Ltd v
Bogoshi
[22]
the Supreme Court of Appeal accepted that publication of a
defamatory statement by the press may, even in the absence of
stereotyped
defences excluding wrongfulness (for example truth for
public benefit, fair comment and privilege), be lawful if the
publication
was reasonable.
[23]
What would be regarded as reasonable in any given case is dependent
on all the circumstances of the case.
24
42 However, since the defence
deals with defamatory statements that can cause extraordinary
harm
that could be false, it is to be applied with great caution and
restraint.
43 The requirement of
reasonableness demands a high degree of circumspection from editors
and editorial staff on account of the nature of their occupation, the
powerful position of the media and the credibility which it
enjoys
amongst large sections of the community.
[24]
Although no definitive list of potentially relevant factors is
possible, the test of reasonableness includes, according to
Bogoshi’
s
case, considerations such as:
[25]
43.1 the nature, extent and
tone of the defamatory allegations;
43.2 the severity of the
consequences of publication;
43.3 the nature of the
information on which the allegations were based and the
reliability of their source;
43.4 the steps taken to
verify the information, including the opportunity given to the
person
concerned to respond; and
43.5 the need to publish
before establishing the truth of the allegations in a positive
manner.
44 I now turn to analyse the
defences raised by the defendants with reference to the evidence
placed before the Court.
ANALYSIS
OF THE EVIDENCE AND DEFENCES RAISED
45 I consider it an appropriate
point to first set out the factual matrix relevant to the Brakspear
article. Much of the evidence led in this case concerned the
content of the Brakspear article, and to this end this Court
spent a
considerable amount of time hearing the evidence of Mr Ian Brakspear,
called by Mr Welz, in this regard. What appears
below is a
summary of the salient features of that evidence.
46 At the heart of the Brakspear
article is a fairly convoluted structure of corporate dealings
between an entity named West Dunes Properties 5 (Pty) Ltd (
West
Dunes
), the Westley Trust, the JAM Brakspear Overseas Trust
(referred to either as the
JAMBOT Trust
or the
Brakspear
Trust
) and other entities in relation to, in essence, the
obligations of West Dunes in connection with its purchase of a farm
in Franschoek,
commonly known as Klein Normandie.
47 Mr Ian Brakspear was the sole
director of West Dunes. The entire issued share capital
of West
Dunes was owned by an entity named Money Box Investments 0012 (Pty)
Ltd.
48 West Dunes’ purchase of
the farm Klein Normandie was in part financed by a loan made
available to West Dunes by First Rand Ltd (
First Rand
or
Rand
Merchant Bank
).
49 The Westley Trust was required
to provide First Rand with a guarantee as part of the security
provided to First Rand for this loan. This is reflected in the first
paragraph of the Brakspear articles, wherein Mr Welz wrote,
inter
alia
:
‘
[Brakspear] had bought the farm in the name of a company,
Westdunes Property 5, funded with a R13-million bond from Rand
Merchant
Bank and backed by a guarantee from the Jersey-registered
Wesley Trust.’
50 Fairbairn Private Bank Jersey
(the “
Jersey Bank
”) issued the guarantee on behalf
of the Westley Trust to First Rand in the sum of £550,000.
Hence, the Westley Trust
was liable to indemnify the Jersey Bank if
the Jersey Bank became liable under its guarantee to First Rand.
51 As security for a loan made by
the Jersey Bank to the Westley Trust and the bank’s
potential
liability under the guarantee given to First Rand, the JAMBOT Trust
(also referred to as
the Guernsey Trustees
) gave the Jersey
Bank a guarantee, expressed to be a guarantee of the facilities
granted by the Jersey Bank to the Westley Trust.
That guarantee was
secured by securing a deposit of £900,000 held by the JAMBOT
Trust with the Fairbairn Private Bank (IOM)
Ltd (the “
Ilse
of Man Bank
”).
52 Mr Welz confirmed his
understanding that funds held by the JAMBOT Trust were used
indirectly
as security to fund West Dunes’ acquisition of the
farm. As Mr Welz put it, he understood that “
a pot of money
now belonging to the Isle of Man Trust held by the Isle of Man Bank,
will be held in that pot as security for that
guarantee given to Rand
Merchant Bank.”
53 At all material times though,
the primary liability under the guarantee given to First Rand
lay
with the Westley Trust. Mr Welz acknowledged this to have been so.
54 At some stage, the bank
guarantee given to First Rand was reduced to £500,000 and
the
cash security provided by the JAMBOT Trust was increased to £915,000.
55 On or about 3 July 2007, First
Rand called up the bank guarantee. On or about
5 July 2007 the Isle of Man Bank remitted to First Rand £500,000,
from the £915,000 it held as security at the time
in favour of
the Jersey Bank.
56 The payment of £500,000
to First Rand was from money held by the JAMBOT Trust, which
had been
put up as security and was used to pay and reduce the First Rand loan
to West Dunes.
57 The effect of the security
structure put in place was therefore as follows:
57.1 If First Rand called
up the guarantee given to it by the Jersey Bank on behalf of
the
Westley Trust, the Jersey Bank would be entitled to call upon the
guarantee given to it by the JAMBOT Trust. In other words,
the cash
required to make payment under the guarantees would ultimately come
from the JAMBOT Trust, specifically JAMBOT Trust’s
cash deposit
of £915,000 held with the Isle of Man Bank.
57.2 Hence, ultimately
JAMBOT Trust’s money would be used to settle the Westley
Trust’s primary obligation under the guarantee it was required
to give to First Rand in respect of the loan to West Dunes.
This is
also how Mr Welz understood it.
58 It follows that once payment
was made to First Rand under the aforesaid agreements:
58.1 The JAMBOT Trust would
have a right of recourse against the Westley Trust (broadly
because
its money was used to settle the Westley Trust’s guarantee to
First Rand).
58.2 The Westley Trust in
turn would, as a matter of law, have a right of recourse against
West
Dunes for being called upon to perform under the guarantee it was
required to furnish to First Rand as security for the loan
West Dunes
obtained from First Rand.
59 The net result therefore was
that:
59.1 the Westley Trust
would become liable to the JAMBOT Trust for
£500,000 in respect of the payment that was made on its behalf
by the JAMBOT Trust to settle the guarantee given to First
Rand
Ltd; and
59.2 the Westley Trust
would have a claim against West Dunes for £500,000.
It would become a creditor of West Dunes for that amount.
60 What then occurred was that,
on 14 May 2008, the JAMBOT Trust made a written demand to the
Westley
Trust for payment of the £500,000 paid by it pursuant to the
guarantee given by it to the Jersey Bank for the Westley
Trust’s
liabilities.
61 The Westley Trust initially
disputed this liability on 27 May 2008. On or about 13
September 2012, the JAMBOT Trust instituted proceedings against the
Westley Trust for payment of, amongst other things, the £500,000
paid to First Rand pursuant to it calling up the guarantee.
62 On or about 21 September 2012,
judgement was taken by the JAMBOT Trust against the Westley
Trust by
consent for the amount it claimed was due and payable to it, which
included the £500,000 paid under the guarantees.
This was known
to Mr Welz when he wrote and the second defendant published the
Brakspear article in July 2014.
63 In the winding up and
liquidation of West Dunes that was initiated on 19 December 2008 and
which, according to Mr Welz in the Brakspear article, was initiated
by Mr Katz on the basis of him having manufactured a debt,
the
Westley Trust ultimately succeeded in proving acclaim for £500,000
against West Dunes.
64 For the sake of convenience
during argument, Mr Manca for the plaintiff categorised the
defamatory statements at issue as follows:
64.1 The statement, which
appeared in the Brakspear article, that Mr Katz fraudulently
manufactured a claim to bring about or otherwise fraudulently brought
about the liquidation of West Dunes.
64.2 The statement that Mr
Katz obtained or relied on a fraudulent or fake court order
for the
provisional liquidation of West Dunes. In the editorial, Mr Welz
wrote of serious allegations that had been made a year
previously, of
fraudulent manipulation of court proceedings (including the use of a
fake order) by Mr Katz and other members of
ENS, which allegations
had been formally brought to the attention of the Judge President of
the KwaZulu-Natal High Court and the
Chief Justice.
64.3 The statement in the
Brakspear article that Mr Katz procured the appointment of
a
“
friendly liquidator
” in respect of the West Dunes
liquidation to protect his client, Nedbank Ltd’s Fairbairn
Trust, from any claims that
West Dunes might have against it.
64.4 The statements in the
editorial that if you agree to pay Mr Katz an extra million
or three,
he will act unlawfully to achieve your goals and, connected with
that, that Mr Katz negotiated a R1 million bonus fee
in connection
with the liquidation of West Dunes. The latter statement
appeared in the Brakspear article.
64.5 The statements made in
both the editorial and the Brakspear article that Mr Katz
overcharges
legal fees and/or has double charged for services rendered in the
West Dunes matter.
64.6 The statements that Mr
Katz is guilty of designing fraudulent schemes, shows disregard
for
the law and his “victims”, and that there exists “
damning
evidence
” against him, which has been public knowledge for
years. These were written by Mr Welz in the editorial, and
published
by Chaucer Publications.
65 I deal with these defamatory
statements, as categorized, in the sequence that appears below.
The R1m bonus fee; the plan to fraudulently manufacture
a debt and the friendly
liquidator
66 In the Brakspear article, the
following statement was written by the first defendant and
published
by the second defendant:
‘
What to do? Call in Lenny the Liquidator.
Katz
immediately negotiated his R1m
bonus fee, then
set about applying his old recipe, but this time with some salad
on the side
. The plan was to fraudulently
manufacture a debt with which to liquidate Brakspear’s
Westdunes Property 5. And then to appoint
a friendly liquidator who
would not dream of suing Nedbank’s Fairburn Trust.’
67 The defendants pleaded that
the above statements were (a) substantially true and were published
in the public interest; alternatively (b) they constituted fair
comment premised on substantially true facts, or further that (c)
they were reasonably published in the circumstances.
68 I deal first with the R1m
bonus fee.
The
statement that Mr Katz immediately negotiated his R1m bonus fee
69 Mr Welz did not lead any
evidence to support the published statement that Mr Katz had
negotiated
a R1 million bonus fee in relation to the West Dunes
liquidation, or that he had done so on any other occasion.
70 The only reference in
Mr Welz’s evidence to a
proposed
payment of R1 million is contained in an email sent by Mr
Levetan of ENS to Mr Brakspear’s attorney,
Mr Nico Le Roux, on
8 December 2008. In the email, which concerned settlement
negotiations, Mr Levetan wrote the following,
inter alia
:
to Mr Le Roux:
“
As discussed and as proposed by you, my clients will
receive a minimum of R1million but this is to be increased pro rata
should
the free residue be more than has been projected. As we
discussed yesterday, what is meant by this is that all creditors of
West
Dunes Properties should receive their pro rata portion of the
free residue on such sale of shares, but that my clients would be
guaranteed a minimum of R1-million. If their proportion is
more, then they must be paid the correct amount, but if their
proportion is less on a pro-rated basis, they will still receive a
minimum of R1-million of the free residue.
”
71 In cross-examination Mr Welz
was constrained to concede, in relation to the statement regarding
the bonus fee, that:
71.1 Mr Levetan’ s
email did not concern any bonus fee negotiated by Mr Katz, and
the
proposal about the payment of R1 million was in fact a proposal made
by Mr Brakspear’s attorney, Mr Le Roux.
71.2 The statement
published regarding Mr Katz immediately negotiating his R1m bonus
fee
is not true and was a misstatement.
71.3 His publication of the
statement that Mr Katz “
immediately negotiated his 1 million
bonus fee
” was careless.
72 Mr Bishop argued on behalf of
the second defendant that the statement that Mr Katz immediately
negotiated his R1m bonus fee is not defamatory, because an ordinary
reader of Noseweek would be aware that highly skilled professionals
such as attorneys or bankers could, and do, negotiate and get paid
bonuses for jobs well done, and that it is not defamatory of
an
attorney to say that they are well paid.
73 But the meaning contended for
by Mr Bishop cannot be sustained. First, the R1m bonus
fee that
Mr Welz stated in the terms was negotiated by Mr Katz was not for a
job well done. It was ostensibly a reward for, amongst
other things,
manufacturing a debt which, presumably, did not exist. This, in
my view, is what a reader of ordinary intelligence
would understand
from this statement, taken in context.
74 Second, the meaning contended
for by the second defendant seeks to sever the statement about
the
R1m bonus fee from the broader context in which the statement
appears, a context which includes not only the content of the
remainder of the Brakspear article, but also the contents of the
cover page and the editorial. In that context, the defendants
made and published statements that: (a) Mr Katz stole justice; (b) he
stands out above the rest of his partners at ENS in his aggressive
fee charging and disregard for ‘
his victims’
; (c)
Mr Katz will do for his clients, something ‘
that can’t
legally be done’
in return for ‘
an extra
million-or-three’;
(d) Mr Katz submitted two invoices to
the liquidators of West Dunes, for the same amount in relation to –
presumably, as would
be understood
by the ordinary reasonable reader - the same services, effectively
double charging.
75 Mr Welz wrote the statement,
as a fact, when in fact it was not true in that no R1m bonus
fee had
been negotiated by Mr Katz.
76 In the circumstances, and
based on the evidence before this Court, the statement that Mr
Katz
immediately negotiated a R1m bonus fee is not only
not
true
and therefore could not amount to fair comment, or be in the public
interest, but there can be no justification for its publication
on
the grounds of reasonableness.
Mr Katz’s
plan to fraudulently manufacture a debt
77 In regard to the winding up of
West Dunes, the defendants published the statements that
Mr Katz’s
“
plan was to fraudulently manufacture a debt with
which to liquidate Brakspear’s West-Dunes Property 5
.
And then to appoint a friendly liquidator who would not dream of
suing Nedbank’s Fairbairn Trust.”
78 To establish the
truth of the first sentence set out in the above quote,
the defendants must prove that:
78.1 there was no debt due
by West Dunes on which it could be liquidated;
78.2 that Mr Katz knew that
there was no debt due by West Dunes on which it could be
liquidated;
and
78.3 Mr Katz, with such
knowledge, intentionally misrepresented that there was such a
debt.
79 In support of the statements
published by the defendants that Mr Katz fraudulently procured
the
liquidation of West Dunes:
79.1 Mr Welz asserts that
the claim relied upon by the Westley Trust in the founding
affidavit
deposed to by Mr Nico Botha, in support of the application for the
liquidation of West Dunes is false and a fraud, and
that the Westley
Trust had no
locus standi
to bring the liquidation
application.
79.2 Mr Welz further
contends that the annexure marked “NB5” to the founding
affidavit in support of the liquidation application was a
manufactured document. Mr Welz asserted that the document was taken
out of context, and that it was not an admission of West Dunes’
insolvency.
79.3 Mr Welz also took
issue with the fact that the liquidation application was brought
on
an urgent basis, contending that the application was not urgent.
79.4 Mr Welz further
asserted that the alternative motivation for the liquidation of
West
Dunes, i.e. so that the then existing sale of the farm to Mr Moti’s
company could be cancelled and the farm sold to
Applemint at a higher
price, was itself a fraud on the court.
80 I analyse each one of these
claims below, for their truth and reasonableness for the purposes
of
the defences raised by the defendants, with reference to the evidence
of Mr Welz and Mr Brakspear, who testified for the first
defendant in
relation to these matters.
The
Westley Trust’s claim against West Dunes
81 In the founding affidavit
delivered in support of the Westley Trust’s application
for the
winding up of West Dunes that was instituted on 19 December 2008, the
deponent Mr Nico Botha asserted that “
In and during June
2008, the Westley Trust lent and advanced the sum of £500,000
to [West Dunes] at the latter’s special
instance and request.
”
82 The defendants take exception
to this and assert that the £500,000 in question was
not a loan
made by the Westley Trust to West Dunes, but that the money came from
the JAMBOT Trust and that it was paid pursuant
to a distribution made
to Mr Brakspear and was used (presumably at Mr Brakspear’s
instance) to reduce the debt owed by West
Dunes to First Rand.
83 Mr Welz contends that Mr
Brakspear phoned the trustees of the JAMBOT Trust at the time and
they, so it is alleged, agreed to pay the debt due and payable to
First Rand “
as a distribution
” to Mr Brakspear.
84 Mr Brakspear’s evidence
though was that back in 2004 when the structure was put in
place, it
was agreed and he was advised that if any payment had to be made by
the JAMBOT Trust, it would be recorded as a distribution
to Mr
Brakspear.
85 In cross examination, Mr
Brakspear also testified that (i) he received a call from an Ms
Sharon Gordian of the trustees for the JAMBOT Trust and (ii) that the
reason for the call was to advise him that RMB had called
up the
guarantee.
86 In support of their version,
Mr Welz and Mr Brakspear relied mainly on two documents:
86.1 A valuation report for
the JAMBOT Trust as at 29 February 2008, which on the face
of it
reflects a distribution to “IB” (which is contended to be
a reference to Mr Brakspear) of £500,000 on 5
July 2007; and
86.2 A so-called SWIFT
confirmation that reflects that the payment of £500,000
made to
First Rand was made from the Isle of Man (i.e. the Isle of Man Bank).
87 It seems that based on this
ostensible discrepancy, namely that the payment made to First
Rand
came from the Isle of Man bank (JAMBOT Trust’s bank) and not
directly from the Westley Trust, the defendants inferred
and accused
Mr Katz of having fraudulently manufactured a debt to cause West
Dunes to go into liquidation.
88 However, what actually
occurred, as stated above, was that:
88.1 On 14 May 2008, a
written demand was made by the JAMBOT Trust to the Westley Trust
for
payment of the £500,000 paid by it pursuant to the guarantee
given by it to the Jersey Bank for the Westley Trust’s
liabilities.
88.2 Notwithstanding the
Westley Trust initially disputing this liability on 27 May 2008,
on
or about 13 September 2012, the JAMBOT Trust instituted proceedings
against the Westley Trust for payment of, amongst other
things, the
£500,000 paid to First Rand pursuant to its calling up the
guarantee.
88.3 On or about 21
September 2012, judgement was taken by the JAMBOT Trust against the
Westley Trust by consent for the amount it claimed was due and
payable to it, which included the £500,000 paid under the
guarantees. This was known to Mr Welz before the writing and
publication of the statement with which this section is concerned.
89 This is also consistent with:
89.1 the evidence of Mr
Botha led in the trial proceedings brought by Mr Brakspear in
2013
seeking to rescind the liquidation of West Dunes, to the effect that,
the moment that the guarantee was paid to First Rand
Bank by Fairburn
Private Bank, Westley Trust stood in the shoes as creditor.
89.2 the fact that the
Westley Trust ultimately proved a claim for £500,000
(approximately
R7 million) against West Dunes.
90 In the premises, it is not
surprising to find that:
90.1 The records relied
upon by Mr Welz and Mr Brakspear show that payment was made directly
from the Isle of Man Bank to First Rand. It is consistent with
the security structure put in place by the parties that the
Ilse of
Man Bank would ultimately have to make payment of the amount called
up by First Rand under the guarantee.
90.2 JAMBOT Trust’s
records reflect the payment as a distribution to Mr Brakspear.
The
transaction to buy the farm and the security structure put up to
assist in the financing thereof was set up at the behest of
and for
the benefit of Mr Brakspear. £500,000 had been paid out of the
assets of the JAMBOT Trust pursuant to
First Rand calling
up its guarantee. It had to be accounted for in the JAMBOT Trust’s
accounts. It could hardly be accounted
for as a distribution to any
of the other beneficiaries of the trust and it was clearly not a
loan. The only apparent beneficiary
of the payment that the JAMBOT
Trust was forced to make to
First Rand,
was Mr Brakspear. Hence it makes
perfect sense that from an accounting point of view it was recorded
as a “
distribution
” to Mr Brakspear in the books
of the JAMBOT Trust. Indeed, in his evidence, Mr Brakspear testified
that this is precisely
what he was advised at the outset would happen
if the guarantees were called up.
91 Conversely, the
version relied upon by Mr Welz
and advanced by Mr Brakspear cannot be
sustained for the following reasons:
91.1 In the
answering affidavit deposed to by
Mr
Brakspear on 22 December 2008, in opposition
to the liquidation application, Mr Brakspear
makes no mention
of the version that the money paid to First Rand was in fact pursuant
to a distribution made to him.
91.2 Mr Brakspear attempts
to explain this discrepancy in his evidence before this Court,
by
stating that at the time that he deposed to the answering affidavit
he did not have the relevant documents in his possession,
as they
were with his mother. His evidence though is that he came into
possession of the relevant documents and gave them to his
legal
advisers a “
couple of days
” later after his mother
urgently returned from the UK after the urgent liquidation
application was launched.
91.3 Notwithstanding the
fact that Mr Brakspear, on his version, had documentary evidence
by
late December 2008 or early January 2009, for a considerable period
of time no mention is made of the assertion that the payment
made by
the Isle of Man Bank to First Rand was ostensibly pursuant to a
distribution made to him in his personal capacity.
91.4 Mr Welz referred in
his evidence in chief to a letter sent by Mr Brakspear’s
attorney on 5 February 2009 to Mr Graham Perry, one of the
liquidators of West Dunes. In it, it was expressly stated that it was
Mr Brakspear’s contention “
from the outset that the
trust that is in fact owed the money is the JAM Brakspear Trust and
not the Westley Trust as contained
in the applicant’s
affidavit. This information has now been used by Mr Katz in the
intervening application.
”
91.5 No mention was made of
any distribution ostensibly made to Mr Brakspear and that
Mr
Brakspear would therefore be the person entitled to claim the
£500,000 from West Dunes.
91.6 On the same day (5
February 2009), Mr Nel, one of the other liquidators of West
Dunes,
deposed to an affidavit in support of an application brought in terms
of section 386(5) of the Companies Act, 1973 in which
he deposed to
the fact that the liquidators have had discussions with Mr Brakspear
to establish the identity of the creditors of
West Dunes. Mr Nel
noted in his affidavit that the Westley Trust contended that it is a
creditor in the amount of R7 million,
that Mr Brakspear disputes that
this amount is owing to the Westley Trust and contends that the
creditor is in fact the JAMBOT
Trust. Mr Brakspear advised Mr Nel
that his claim against West Dunes was in the sum of R4.5 million
(i.e. not £500,000 or
the Rand equivalent, approximately R7
million at the time).
91.7 On or about 11
February 2009, Mr Brakspear filed an answering affidavit/intervention
application in the section 386 (5) application. In his affidavit he
expressly refers to Mr Nel’s affidavit. Mr Brakspear
did not
dispute Mr Nel’s version of what Mr Brakspear had advised the
liquidators and in fact confirmed that the JAMBOT Trust
was a
creditor of West Dunes.
91.8 Again, Mr Brakspear
made no mention of any alleged distribution made by the JAMBOT
Trust
to him.
91.9 The first reference
one finds to the version now relied upon by the defendants and
Mr
Brakspear, seems to be found in West Dunes’ attorneys letter of
1 September 2009, some seven months after Mr Brakspear
deposed to
this affidavit in support of the section 386(5) application. In her
letter, Ms Fiona Scott advised the liquidators that
her client, Mr
Brakspear intends lodging a claim for the R7 million against West
Dunes “
as it was he who the money was distributed to and it
was he who “loaned” the money to West Dean properties
five (Pty)
Limited.
”
91.10 Mr Welz conceded though that Mr
Brakspear never proved or attempted to prove a claim for £500,000
(or R7million) against West Dunes.
91.11 In cross-examination, Mr Welz also
conceded that in his discussions with Mr Brakspear, Mr Brakspear
had
advised him on occasion that he contended that the JAMBOT Trust was
“
owed for the money they had stood in for
”.
92 In the circumstances, it is
inconceivable that Mr Welz, who holds himself out as an accomplished
investigative journalist, would not have recognised that there were a
number of material inconsistencies in Mr Brakspear’s
version
that the payment of £500,000 to First Rand was made pursuant to
a distribution to him.
93 Indeed, on 5 June 2014,
shortly before the July 2014 article was published, Mr Brakspear
forwarded to Mr Welz an email he had sent on 8 April 2009 to West
Dunes’ attorney at the time, Ms Scott, in which he advised
Ms
Scott that he had given some thought about attending the creditors
meeting convened for the coming Tuesday but had decided not
to
attend. The first reason advanced by Mr Brakspear for his decision
not to attend the creditors meeting was that he does “
not
understand trust or company law and do not want to prejudice
[himself] in any way whatsoever.
”
94 This also should
have alerted Mr Welz to
the risk
of relying on Mr Brakspear’s belated version that
the payment was made pursuant to a distribution
to him.
95 On the balance of
probabilities, I am satisfied that they clearly point to the fact
that
when First Rand called up the guarantee that the Westley Trust
had provided (through the Jersey Bank), the security structure put
in
place by the parties to procure the guarantee was triggered. This
resulted in the cash put up by the JAMBOT Trust as security
being
utilised to settle the Westley Trust’s primary obligation under
the guarantee given to First Rand. This in turn triggered
a right of
recourse in favour of the JAMBOT Trust against the Westley Trust,
which in turn had a right of recourse against West
Dunes.
96 The Westley Trust accordingly
had a claim against West Dunes for £500,000 (approximately
R7
million at the time), albeit not arising from a loan, but from the
fact that the guarantee that the Westley Trust was required
to give
to First Rand had been called up, and paid.
97 Even if Mr Welz and Mr
Brakspear’s version is accepted as true, namely that the
£500,000
payment made to First Rand was made pursuant to a
distribution to Mr Brakspear, the alternative interpretation, namely
that the
payment was made pursuant to the parties giving effect to
the security structure put in place between them and that pursuant to
the Westley Trust’s right of recourse it became a creditor of
West Dunes for the sum of £500,000/R7 million, was at
least
very plausible.
98 There is no evidence that the
valuation report for the JAMBOT Trust as at 29 February 2008
was in
either the Westley Trust or Mr Katz’s possession at the time
the application for the liquidation of West Dunes was
launched.
Indeed, Mr Brakspear’s evidence is that the reports were sent
to his mother who would then forward them to him.
99 Fraud is defined as the
unlawful and intentional making of a misrepresentation which causes
actual prejudice or which is potentially prejudicial to another.
[26]
100 The trustees of the Westley Trust and Mr Katz
may be criticised for describing the Westley Trust’s
claim
against West Dunes as a loan, instead of a right of recourse pursuant
to its being required to perform under the guarantee
given to First
Rand. But that is the highwater mark of the criticism. There
was an underlying indebtedness, and that is what
was required for the
purposes of the application brought on 19 December 2008.
101 There is simply no evidence that Mr Katz acted
fraudulently when he advised the Westley Trust that it was
a creditor
of West Dunes in the sum of approximately R7 million. This was
correct.
102 Mr Welz acknowledges the difficulty one has in
getting to the bottom of the security structure put in place
between
the parties. Commenting on the structure, Mr Welz stated that West
Dunes’ advisers [not a reference to ENS or Mr
Katz] “
developed
such an elaborate structure which was part fact, part fiction, that
they quite often got confused themselves as to who
they were speaking
for, and about which sum they were talking.
”
103 The defendants called Mr Ciaran Ryan, who led
evidence regarding an interview he had with Mr Katz in December
2013
regarding the Brakspear matter. Mr Ryan testified that he had a
discussion with Mr Welz about the interview subsequently,
although Mr
Ryan was unable to confirm exactly when the discussion took place.
104 Mr Ryan’s evidence was that during the
discussion with Mr Welz he advised Mr Welz:
104.1 that he found the case “
very
complex
” and that he did not know that he was particularly
more illuminated about the case after the interview with Mr Katz;
104.2 he advised that he thought the case was
a “
jumble
” and it was clearly an investment
banking deal which was “
highly convoluted
”.
105 Although it might then have been inaccurate to
describe the Westley Trust’s claim against West Dunes
as a loan
arising from monies advanced, pursuant to First Rand calling up the
guarantee and payment being made thereunder, the
Westley Trust had a
claim for £500,000/R7million against West Dunes arising from
its right of recourse. Hence, there was
no fraud or material
misrepresentation. The Westley Trust was a valid creditor of West
Dunes.
106 And of course, it is not disputed that West
Dunes, through its attorney and counsel, consented to both the
provisional and final winding up orders. That being the case, it is
difficult to discern on what basis the defendants could conclude
and
state that Mr Katz fraudulently procured the winding up of West Dunes
107 Moreover, it is also clear that West Dunes was
commercially insolvent.
107.1 On 28 November 2007, First Rand had
taken judgement against West Dunes and Mr Brakspear for R12 745
030.91 arising from the fact that West Dunes had failed to repay the
loan advanced to it by First Rand.
107.2 In cross-examination, Mr Welz was
pointed to an affidavit deposed to by West Dunes’ former
attorney, Ms Scott, in which she confirmed that based on the
instructions she had received from Mr Brakspear, it was self-evident
that West Dunes was insolvent.
108 Notwithstanding the fact that the defendants
had knowledge of a version diametrically opposed to the version
that
they published (which opposing version was confirmed on oath by Mr
Katz, by senior and junior counsel and West Dunes’
own former
attorney and counsel) in affidavits filed at court in 2013, the
defendants simply ignored this.
109 The opposing facts and version of what
transpired did not suit the narrative that the defendants were
adamant
on presenting to the public about Mr Katz.
The
alleged fabricated annexure to the liquidation application
110 As stated above, in further support of the
defendants’ contention that the application to liquidate
West
Dunes was part of some fraudulent scheme, Mr Welz suggested that the
annexure marked “NB5” to the founding affidavit
in
support of the liquidation application was a manufactured document.
111 Mr Brakspear asserted the same and denied ever
having written the email included in the annexure.
112 Mr Brakspear’s evidence was that he
ostensibly advised his attorney and counsel at the time they were
consulting to oppose the urgent liquidation application that he did
not write the email, yet no mention is to be found of this
in his
answering affidavit delivered on 22 December 2008. Again therefore,
the defendants would have been alerted to an inconsistency
in Mr
Brakspear’s version.
113 In any event, in cross-examination Mr
Brakspear’s denial of having been the author of the email
concerned
was shown to be false. He did write the email and it was
not a manufactured document.
114 The defendants led no evidence of any attempt
made by them to further investigate or obtain Mr Katz’s
comment
in relation to the purported belief that annexure “NB5”
was a manufactured document.
The
liquidation application was not urgent
115 Regarding Mr Welz’s reliance on the
assertion that the liquidation application was brought on an urgent
basis when, in his opinion, the application was not urgent, Mr Welz
conceded in evidence that urgency is a matter of law in respect
of
which he is not competent to express an opinion.
116 The defendants did not lead any evidence
regarding their investigating the issue of urgency any further or
requesting Mr Katz’s comment before publication of the
offending articles.
117 Liquidation applications are by their very
nature urgent and are regularly brought on an urgent basis.
[27]
There was nothing untoward in the application being brought on
an urgent basis and it is common cause that West Dunes, acting
through
its attorney and counsel, consented to its winding up
on that basis.
The
intention to cancel the Zambrotti sale
118 Finally, Mr Welz asserted in his evidence that
the application to liquidate West
Dunes was motivated by a desire to cancel the sale of the farm to
Zambrotti (another one of Mr Moti’s entities) so that Klein
Normandie could be sold to Applemint for a better price, was itself
fraudulent.
119 Firstly, in the founding affidavit delivered in
support of the liquidation application, it was expressly
disclosed to
the court that one of the reasons why the company should be wound up
(and on an urgent basis) was because a liquidator
would be in a
position to elect whether or not to continue with the existing sale
(to Zambrotti), or to cancel it in order to sell
the farm for a
higher purchase price.
120 Secondly, the opportunity to cancel the sale
with Zambrotti and accept the higher offer from Applemint is
precisely what motivated West Dunes to consent to its liquidation:
120.1 In cross-examination, Mr Welz was
referred to an affidavit deposed to by the attorney for West Dunes
and Mr Brakspear (which was available to Mr Welz by at least 5 June
2014), in which Ms Scott explained that in the days leading
up to the
application for the provisional liquidation of West Dunes, Mr
Brakspear was advised of the benefits of allowing West
Dunes to go
into liquidation, specifically that the sale to Zambrotti could be
cancelled which would allow for a new sale to be
concluded in respect
of the better offer that was on the table from Applemint.
120.2 After the provisional liquidation order
was obtained, Mr Brakspear assisted the provisional liquidators
to
secure the sale of the farm to Applemint.
120.3 On the day that the final liquidation
order was obtained, Ms Scott (on behalf of West Dunes and Mr
Brakspear) wrote to one of the liquidators and placed on record that
an application to extend the liquidators’ powers to
resile from
the sale agreement concluded with Zambrotti and to accept any other
offer on the property must be brought as a matter
of urgency.
120.4 That application was issued the next
day and in cross-examination, Mr Welz confirmed that Mr Brakspear
supported the liquidators’ application for authority to
terminate the sale between West Dunes and Zambrotti and to sell the
farm to Applemint.
121 All of this was known to Mr Welz before he
published the offending articles, yet no suggestion is made in
the
defamatory articles that Mr Brakspear was party to any purported
“
fraud
”.
122 In any event, there is nothing untoward in
using the process of a liquidation application to procure better
value for an insolvent company’s creditors.
Conclusion
on Mr Katz’s alleged fraudulent scheme to liquidate West Dunes
123 In the premises, in addition to their failure
to prove the truth of the statements published about Mr Katz,
in the
circumstances it cannot be said that the statements published by the
defendants were reasonable in all the circumstances:
123.1 Accusing anyone, let alone an attorney,
of fraud, fabricating evidence and abusing court proceedings
is a
very serious allegation.
123.2 The fact that the Westley Trust had a
claim against West Dunes (at least on the probabilities), was
evident
from the documents that were in the defendants’ possession and
their knowledge of the security structure before they
published the
offending articles.
123.3 In the very opening paragraph of the
Brakspear article the defendants stated that the loan to West
Dunes
was “
backed by a guarantee from the Jersey-registered
Westley Trust.
” Ignoring the security structure put in
place behind the Westley Trust, that statement alone demonstrates
that the defendants
must have known that if the guarantee was called
up (which is common cause), the Westley Trust would have a
corresponding claim
(right of recourse) against West Dunes.
123.4 Indeed Mr Welz knew there existed a
material dispute regarding the issue. In cross-examination Mr
Welz
acknowledged that there was as he put it a “
whole dispute
”
as to whether the payment of £500,000 was a distribution to Mr
Brakspear or a payment made under the guarantee and
security
structure referred to above.
123.5 Mr Brakspear’s version is
contradicted by contemporaneous correspondence sent by his and West
Dunes’ attorney and by affidavits deposed to by Mr Brakspear at
the time. On the face of it, it is clear, or the defendants
should at
least have been alerted to the fact, that Mr Brakspear’s
belated version that the monies were paid pursuant to
a distribution
to him, was nothing more than an
ex-post facto
contrivance.
123.6 Notwithstanding this, the defendants
maliciously accused Mr Katz of fraud and did so in the most
derisory
tone.
123.7 Mr Welz made no attempt to clarify the
position with Mr Katz and in fact entirely ignored his version
that
he had given under oath in 2013.
124 The timing of the publication is also of
significance. It was published more than 5 ½ years after
the
events described in the articles, but little more than a month before
Mr Brakspear’s High Court case before Kgomo J,
in which the
truth of his allegations could be proved in a positive manner, was
due to start.
125 On 2 June 2014, less than a month before the
offending article was published, Mr Brakspear wrote an email
to Mr
Welz in which he stated “
FYI – case has been set down
on the opposed roll 14 August 2014 – hopefully I can use your
story
”
126 It is evident from this email, that Mr
Brakspear had an expectation that he would be able to use the
defendants’
articles, due to be published in the July 2014
edition of Noseweek, in his upcoming trial set down for 14 August
2014. This
calls into question the objectivity of Mr Welz, a
seasoned journalist, to place the truth facts before members of the
public, and
is another significant factor to negate any suggestion
that the publications were reasonable.
Mr
Katz’s alleged appointment of a friendly liquidator
127 The statement made in this regard bears
repeating and it is as follows:
‘
What to do? Call in Lenny the Liquidator. Katz immediately
negotiated his R1m bonus fee, then set about applying his old recipe,
but this time with some salad on the side. The plan was to
fraudulently manufacture a debt with which to liquidate Brakspear’s
Westdunes Property 5.
And then to appoint a friendly
liquidator who would not dream of suing Nedbank’s
Fairburn Trust
.’
128 In his evidence, and as appears in the
Brakspear article, Mr Welz asserted that the other motive for Mr
Katz’s alleged “
fraudulent scheme
” to
liquidate West Dunes was to acquire control over West Dunes to
prevent it from instituting a damages claim against Mr
Katz’s
client, i.e. the Nedbank Fairbairn Trust.
129 The alleged claim – and all of this is
contained in the Brakspear article - arises from Mr Justin Thomas,
acting on behalf of the trustee for the Westley Trust, inadvertently
disclosing the Westley Trust’s financial predicament
to Mr
Moti’s legal adviser. It is alleged that because of this
disclosure, Mr Moti cancelled the purchase agreement he had
with West
Dunes for Klein Normandie, through an entity by the name of Zambien
Investments 99 (Pty) Ltd for R37.75 million.
Subsequently the
farm was sold in execution to another Moti entity (Zambrotti) for
significantly less than what it had previously
been sold to Mr Moti’s
other entity. This, it is asserted, gave rise to a potential damages
claim against the Westley Trust’s
trustees.
130 The evidence was that following three
liquidators were appointed for West Dunes.
130.1 Mr Eugene Nel, an attorney who appeared
to have taken the lead role. He was appointed pursuant to
a
requisition received from RMB Private Bank, the largest creditor of
West Dunes.
130.2 Mr Graham Perry was appointed at the
behest of Mr Brakspear; and
130.3 Ms Marlene Elizabeth Retief, was
appointed pursuant to a requisition signed by the Westley Trust.
131 In his evidence in chief and in cross
examination, Mr Welz conceded that:
131.1 Before the liquidation of West Dunes,
Mr Brakspear consulted with a liquidator, Mr Graham Perry and
procured the appointment of Mr Perry as his own
“
friendly liquidator
” to
look after Mr Brakspear’s interests.
131.2 Mr Welz had knowledge of this before he
published the offending article.
131.3 It was known to him that where more
than one liquidator is appointed (as was the case in the West
Dunes
liquidation) they are obliged as a matter of law to act jointly in
everything they do. It is not surprising that this
would be
known to Mr Welz because, in addition to him being a seasoned and
experienced investigative journalist who must surely
have acquired
vast knowledge of these matters throughout his career, before he
commenced his journalism career he was employed
for two years in the
Office of the Master of the High Court in Pretoria auditing deceased
and insolvent estates, and completed
three years of attorney’s
articles whilst obtaining his B.Proc degree.
132 It is apparent from the concessions made that
there can be no truth to the statements published by the defendants
in the Brakspear article that part of Mr Katz’s fraudulent plan
included appointing a friendly liquidator who would prevent
any
action being taken against Nedbank’s Fairburn Trust.
133 That it was not true, was known to the
defendants by the time they published the offending articles. There
can be no benefit to the public in publishing untrue statements, and
neither can such a statement constitute fair comment. The
fact
commented on must be true, and here, to the extent that it may even
be said that the statement made is a comment, the facts
underpinning
it are not true.
134 The defendants did not advance any evidence to
support a contention that notwithstanding the fact that the
statements published were not true, it was reasonable in the
circumstances for them to have published the untrue statement.
135 This is one of the statements which Mr Bishop
argued, on behalf of the second defendant, were not defamatory.
But
once again Mr Bishop indulged in an exercise in which he sought to
excise this statement from the context in which it was made,
and the
defamatory narrative that that context sought to promote, founded as
it was on statements that have been established, and
were known at
the time, to not have been substantially true. An ordinary reader
will read the statement in the context set out
from the cover page,
the editorial and the remaining contents of the Brakspear article
itself. In any event in his evidence,
Mr Welz made is clear why
he himself wrote such a statement, i.e., he believed – despite
knowing facts that did not support
this belief - that Mr Katz would
want to appoint a friendly liquidator in order to prevent any action
being taken against one of
his clients as a result of Mr Thomas’s
faux pas
.
136 This statement, made in the context of the
particular paragraph in which it occurs and the context of the
Brakspear article as whole, sought to paint Mr Katz as a an attorney
without any scruples, who will go to all lengths to further
a
fraudulent agenda and this, in my view, is what the ordinary reader
of such material would understand.
137 The statement was not true, and there is no
evidence justifying why it was reasonable to write and publish
it in
the circumstances.
The
alleged fake order
138 In the editorial Mr Welz wrote, and Chaucer
Publications published, that:
‘
More than a year ago, serious allegations of fraudulent
manipulation of court proceedings (including the use of a fake court
order)
by Katz and other members of ENS were formally brought
to the attention of the Judge President of the
KwaZulu-Natal High Court and the Chief Justice of South Africa.”
139 To appreciate the full context of what is being
said here, as would the reasonable ordinary reader of the
July 2014
edition of Noseweek, one must also have regard to the contents of the
Brakspear article wherein, from the third paragraph
of the left
column on page 11 the magazine until the fourth paragraph of the
middle column on the same page, Mr Welz sets out his
full thesis of
the fake order supposedly obtained by Mr Katz. To quote from Mr
Welz’s culinary parlance (‘
salad on the side’
),
if the editorial was the appetiser (the cover page having been the
menu), then the Brakspear article was the main meal.
There, in
the Brakspear article, he sets out fully what he only teases about in
the editorial in regard to the fake order allegedly
obtained and used
by Mr Katz. To paraphrase from one of Mr Bishop’s submissions
in argument on behalf of the second defendant,
the reasonable reader
would understand the statements made in this edition of Noseweek in
their context, which means the context
of the Brakspear article as a
whole and also the context between the editorial and the article. The
context of the cover page,
which already set the scene, supported by
a digital image of a man who stole justice, must not be forgotten in
this picture.
140 The ‘
fake order’
spoken of
in the editorial and the Brakspear article is the provisional order
of liquidation obtained on 23 December 2008.
141 In evidence, Mr Welz conceded that counsel
acting for West Dunes consented to the order for the provisional
winding up of West Dunes and that the order was granted by consent in
chambers.
142 The defendants have therefore conceded that
there is no truth to the publication or suggestion in the offending
articles that Mr Katz fraudulently obtained and/or relied on a fake
order for the provisional winding up of West Dunes.
143 Mr Welz conceded further that he had come to
this view before he published the offending articles in July
2014.
144 Instead, Mr Welz’s evidence in these
proceedings was not that the order was fake, but that he had come
to
the conclusion that Mr Katz had pressured or browbeaten the attorney
and counsel acting for West Dunes into agreeing to the
provisional
liquidation order. However, this is not what the defendants wrote and
published. It is accordingly irrelevant
for these proceedings.
145 Having thus come to
the conclusion that there were
no
merits to Mr Brakspear’s allegations that the provisional
liquidation order was a fake, there can
be no
justification for the
defendants having published
Mr
Brakspear’s allegations to the contrary when the defendants
knew them to be false.
146 There is also no dispute from the defendants
that subsequently the final liquidation order was taken by agreement
in February 2009. The concessions made by the defendants were
therefore well made.
147 Mr Welz’s evidence was that he phoned Ms
Scott regarding the question whether Mr Brakspear consented
to the
provisional liquidation order. Although Mr Welz was critical of the
fact that Ms Scott did not express herself more
forcefully or clearly, her response
was consistent with Mr Brakspear having consented
to the provisional liquidation order being taken by agreement.
148 In cross examination, Mr Welz conceded that
before the defendants published the offending articles:
148.1 He had seen and read a letter dated 15
September 2010, sent by West Dunes’ attorney at the
time, Ms
Scott, in which she confirmed that the provisional liquidation order
was taken by consent.
148.2 On 12 November 2013 (approximately
seven months before the Brakspear article was published) Mr Brakspear
had sent Mr Welz a copy of Nedgroup Trust (Jersey) Ltd’s
intervention application in respect of Mr Brakspear’s
application
to set aside the winding up of West Dunes. It included an
affidavit by Mr Katz in which he deposed to the fact that the
provisional
liquidation order was taken by agreement. This version
was confirmed by both senior and junior counsel, who both deposed to
confirmatory
affidavits.
148.3 On 26 November 2013, Mr Brakspear sent
Mr Welz a copy of the supplementary affidavit filed in the
intervention application, again deposed to by Mr Katz. In it Mr Katz
again set out the process that was followed when the application
for
the provisional winding up of West Dunes was brought to court and
presented a full explanation for the apparent discrepancies
identified by Mr Brakspear in his application to set aside the
provisional liquidation order.
148.4 On 5 June 2014 (less than a month
before the July 2014 edition was published), Mr Brakspear provided
Mr
Welz with a copy of the affidavit deposed to by his and West
Dunes’ former attorney, Ms Scott.
In it she
stated under oath that after extensive
consultation with Mr Brakspear
in the days leading up to
the hearing on 23 December 2009, and having taken advice from
liquidator Mr Graham Perry, it was agreed
that although an answering
affidavit would be filed in the liquidation application, West Dunes
would consent to the provisional
winding up order. Although the
Westley Trust’s claim against West Dunes would be disputed,
they would consent to the liquidation
for “
tactical reasons
”
i.e. so that the Zambrotti sale could be cancelled and the better
Applemint offer accepted. She stated that Mr Brakspear
accepted that
West Dunes was in fact
de facto
insolvent even before Westley
Trust’s liquidation application was served. Ms Scott’s
affidavit was confirmed in a letter
from West Dunes’ counsel at
the time, Adv. Alberts, who confirmed Ms Scott’s version of
events.
149 Mr Welz further conceded in cross-examination
that notwithstanding his reliance in the Brakspear article
on the
fact that the provisional liquidation order was “
not typed
on the High Court’s typewriters or in the court’s
standard format
” as purported evidence confirming that the
order was fake, Mr Welz was well aware of the practice in South
African courts
that draft orders are often prepared by counsel and
handed up to the judge to make an order of court.
150 In cross-examination Mr Welz, in response to
the conflicting versions being put to him and it being demonstrated
that it was clearly known to him before he published the offending
article, Mr Welz stated “
I believe I certainly must have
known it, but I would have excluded it as irrelevant to a news
article with a particular focus.
”
151 On the evidence, it is clear that the
“
particular focus
” of the defendants’
publications was to attack Mr Katz, and in pursuit of this goal Mr
Welz was not about to let the
truth get in the way of what he
considered to be a good story.
152 It is not in the public interest, and can be of
no public benefit, to write and publish untrue statements
about an
individual.
153 On behalf of the second defendant, it was
argued that its primary defence was that the allegation of a
complaint
having been made of the serious manipulation of court
proceedings, including Mr Katz’s use of a fake order, was true.
This
loses sight of the fact that by the time that Mr Welz wrote the
article, and Chaucer Publications published it, they were fully
aware
that there was no merit to Mr Brakspear’s complaint; that the
allegation was unfounded; that it was not true and they
proceeded to
write and publish nevertheless. I fail to see how their conduct can
be said to have been reasonable, in particular
when regard is had to
the following injunction from
Bogoshi
:
[28]
‘
Ultimately there can be no justification for the
publication of untruths, and members of the press should not be left
with the impression
that they have a licence to lower the standards
of care which must be observed before defamatory matter is published
in a newspaper.
Prof Visser is correct in saying
(1982 THRHR 340)
that a high degree of circumspection must be expected of editors and
their editorial staff on account of the nature of their occupation;
particularly, I would add, in light of the powerful position of the
press and the credibility which it enjoys amongst sections
of the
community….”
The
alleged double charging / overcharging of fees
154 It will be recalled that in the editorial the
defendants wrote and published the following:
154.1 “
While several ENS directors
have actively helped design the fraudulent schemes, and all ENS
directors and senior partners have knowingly
and happily shared in
the spoils and must therefore share responsibility, one director
stands out above the rest in his aggressive
fee charging and
disregard for his victims and the law. He is Leonard Katz, director
and
‘
specialist’ in charge of the insolvency and
liquidation Department of ENS, and better known in the trade as
‘Lennie
the Liquidator.’
154.2 “
You want what can’t
legally be done? Agree to pay Lennie an extra million-or-three and he
will pull it off, by hook or by
crook.
”
155 The Brakspear article contained the following
statement:
“
A significant concluding point to make with regard to
Katz’s credibility: on 31 March 2009 Katz submitted an invoice
to the
liquidators of West June’s in which he demanded payment
of fees totalling R227,417.97 for services rendered by himself and
his assistants at court in Durban on 5 and 6 February, 2009. It was
paid. On 28 May 2010 he submitted another invoice,
with a
different invoice number, but listing the identical services hours
and totalling the same R227,417.97. That also got paid,
without
question.
”
156 It is apparent from these statements that the
view expressed by Mr Welz is that Mr Katz charges excessive
fees and
does so aggressively, and has no difficulty charging his clients fees
to which he is not entitled, and also fees as a
result of the
fraudulent schemes that, according to Mr Welz, Mr Katz concocts for
them.
157 It becomes necessary then, to assess whether
the facts upon which these comments or opinions are made, are
true.
The defendants pleaded that the above statements were (a)
substantially true and were published in the public interest;
alternatively (b) they constituted fair comment premised on
substantially true facts, or further that (c) they were reasonably
published in the circumstances.
158 In apparent support for the statement that Mr
Katz charges excessive fees, Mr Welz led evidence in respect
of a
letter addressed by the Master of the High Court, Cape Town dated 10
July 2013 to Mr Katz which concerned, amongst other things,
the fees
charged by ENS in a liquidation relating to an entity named Chestnut
Hill Investments (Pty) Ltd, in which Mr Katz had
been involved:
158.1 In this letter, the Master expressed
concern about and was querying the fees and disbursements incurred
in
connection with the liquidation of Chestnut Hill Investments (Pty)
Ltd.
158.2 In cross-examination, Mr Welz conceded
that he did not do any investigation regarding the allegations
made
by the Master and what ultimately transpired in respect of the
matter.
158.3 Mr Welz further conceded that he is not
in a position to judge whether the work that was done in
the Chestnut
Hill matter was justified or not.
158.4 The apparent high water mark of Mr
Welz’s evidence was that he has a “
sense
as an ordinary citizen
” that
the fees charged by Mr Katz and his teams are
“
enormous, they are enormous from an ordinary person’s
point of view
”.
158.5 Mr Welz conceded though that he did not
know whether they might be justified in the circumstances.
158.6 In cross-examination, Mr Welz was
pointed to the fact that on 29 October 2013, the court reviewed
and
set aside the Master’s refusal to confirm the account in the
Chestnut Hill liquidation and the account was confirmed
by the Court.
159 Mr Welz also baldly relied on the fees incurred
in the Brakspear matter as apparent evidence in support of
his
contention that Mr Katz charges excessively.
160 In relation to the statement that Mr Katz
double billed in the Brakspear matter, in cross-examination and
after
being taken by Mr Manca to the relevant accounting records and
correspondence regarding ENS’ relevant invoicing, Mr
Welz was
constrained to concede that Mr Katz did not bill twice for the same
work as he had stated in his article.
161 Mr Welz in fact conceded that the statement
regarding Mr Katz having double billed is not true. Therefore
the comment that Mr Welz made in the Brakspear article that: ‘
It
is either grand larceny or a terribly fortunate error’
which flowed from his suggestion of double-billing in relation to the
31 March 2009 and 28 May 2010 invoices, cannot have been
fair
comment, given that the underlying inference or implied fact that was
embedded in his statement regarding the two invoices,
was simply not
true.
162 Notwithstanding this, Mr Welz asserted that
based on the records he had seen at the time it was reasonable
to
deduce that Mr Katz had invoiced twice for the same work. Mr Welz
however did not produce any documentary evidence to support
his
contention that his belief that Mr Katz had double billed was
reasonable.
163 The SCA in
Bogoshi
held as follows
:
‘
Whether the making of a publication was reasonable must
depend upon all the circumstances of the case. But, as a general
rule, a
defendant’s conduct in publishing material giving rise
to a defamatory imputation will not be reasonable unless the
defendant
had reasonable grounds for believing that the imputation
was true, took proper steps, so far as they were reasonably open, to
verify
the accuracy of the material and did not believe the
imputation to be untrue. Furthermore, the defendant’s conduct
will not
be reasonable unless the defendant has sought a response
from the person defamed and published the response made (if any)
except
in cases where the seeking or publication of a response was
not practicable or it was unnecessary to give the plaintiff an
opportunity
to respond.’
[29]
164 Mr Welz conceded in cross-examination that
notwithstanding the significance he had placed on the alleged
double
billing as evidence of Mr Katz alleged dishonesty and impugned
credibility, he did not afford Mr Katz any opportunity to
explain the
purported double-billing before the statements were published.
Therefore, Mr Welz took no steps to verify his
double-billing notion
from the only person who could either prove or disprove it before
publication – Mr Katz. There
is no explanation as to why
an experienced journalist like himself, who prides himself on showing
respect for the constitutional
rights of his subjects, did not do
so. This, in circumstances where Mr Katz was the subject
of the cover page; the
editorial and the Brakspear article –
front and centre.
165 Finally, Mr Welz attempted to lead evidence in
relation to documents provided to him by one Mr Steven Kruger,
as
purported evidence of Mr Katz overcharging or charging excessive
fees. Mr Kruger was a witness whom Mr Welz had supposedly secured
and
who was initially willing to testify, until he changed his mind on
the eve of the hearing and decided not to. However,
he was
clearly available to give evidence, judging by his presence on the
virtual Microsoft Teams platform through which the trial
was
conducted, during the course of ‘
his’
evidence
which Mr Welz attempted to place before the Court, and further
judging by Mr Kruger’s willingness and ability to
actually
furnish Mr Welz with contemporaneous instructions during the course
of the proceedings in relation to the evidence that
was being led,
ostensibly on his behalf. Even though he appeared to be present
and available to give it. Needless to
say, everything Mr Welz
had to say on behalf of Mr Kruger (who listening throughout) was
hearsay, and accordingly, inadmissible
evidence. This Court places no
reliance on it.
166 No expert or other independent evidence was led
to support the contention that Mr Katz’s fees are excessive
or
unjustified. Mr Welz attempted to place such evidence before
the Court, but the evidence itself was procured only after
the
publication of the articles and was objected to by the plaintiff,
which objection this Court upheld, as the writing and publication
of
the articles could clearly not have been influenced by knowledge
obtained after publication of the articles.
167 This
matter - the apparent double charging – is a matter
which in
the Brakspear article Mr Welz says expressly goes to Mr Katz’s
credibility. Having made the visceral link
between the ‘facts’
set out in that paragraph, with Mr Katz’s credibility in the
same paragraph, the mere suggestion
of impropriety questions, if it
does not outright impugn, Mr Katz’s integrity and ethical
demeanour as an attorney, and therefore
impugns his ability to
practise his profession. In circumstances where all that Mr
Welz could, and in my view should, have
done before publication - and
nothing suggests this was not available to him - was to verify this
apparent double-billing
with Mr Katz himself, I see no reason to find
that the writing of such a statement and its publication were
justified on the grounds
of reasonableness. The facts stated in
the paragraph regarding the invoices sent may have been true as Mr
Bishop asserts,
but the implied meaning that a reasonable reader
would make of them, in the fuller context of the cover page, the
editorial and
the Brakspear article, was not true. Mr Welz
could and should have verified this beforehand with Mr Katz, and
accordingly
the writing and publication thereof could not have been
for the public benefit, nor could it constitute fair comment.
168 Mr Bishop’s argument that this statement
is protected comment loses sight of the sting in it, which
is that
the apparent double-billing impugns Mr Katz’s credibility. This
Mr Welz states this in terms in the Brakspear article.
The meaning
that is implied from the ‘facts’ put up by Mr Welz, which
forms part of its primary or ordinary meaning
of the statement
[30]
viewed in context, is that not only does Mr Katz charge fees
aggressively and excessively, but he also charges fees to which he
is
not entitled which makes him a legal practitioner lacking in
credibility and, for that matter, integrity. That is what
the
reasonable reader would understand from this statement, in its full
context.
169 In the premises, the defendants have failed to
establish the truth of the statements published that Mr Katz
charges
excessive fees, or that he doublebills (which is false, on the
evidence led).
170 Similarly, no evidence has been led on which it
can plausibly be contended that the defendants were reasonable,
or
that it was fair comment to publish the statements regarding Mr Katz.
Mr Welz’s personal feelings about the fees charged
by Mr Katz
are irrelevant and to then publish highly defamatory statements that
Mr Katz overcharges or double bills cannot be justifiable,
absent at
least some credible evidence that this is in fact true.
The allegations that Mr Katz designs fraudulent schemes
and there is damning
evidence
against him
171
The
statement made and published in the editorial is that “
While
several ENS directors have actively helped design fraudulent schemes,
and all the ENS d
irectors and senior partners have
knowingly and happily shared in the spoils and must therefore share
responsibility, one director
stands out above the rest in his
aggressive fee charging and disregard for his victims, and the law.”
And that director, Mr Welz says, is Mr Katz.
172 In the editorial Mr Welz goes further and
writes: ‘
How is it possible that judges tolerate that the
likes of Katz continue to practice as officers of the court, despite
the damning
evidence against them having been made public knowledge
for years? By now his impunity knows no bounds.’
173 None of the evidence led
demonstrated the truth of the statement that Mr Katz is in general
guilty of designing
fraudulent schemes, nor did it establish that
there is any so-called “
damning evidence
” against
Mr Katz.
174 In apparent support of the above
statements, Mr Welz led evidence in relation to:
174.1 A matter in which Investec has been accused of
unlawful phone tapping;
174.2 The Investec / Midtown matter; and
174.3 Mr Geoff Chait’s dealings with Investec.
175 This evidence is dealt with in
turn below.
The
Investec phone tapping matter
176 It appears that the defendants
sought to establish that Mr Katz was involved in an alleged phone
tapping affair.
177 The defendants called Mr Leonard
Knipe, a retired Major General from the SAPS, to lead evidence in
relation
to the alleged phone tapping. Mr Knipe had been tasked with
investigating the alleged phone tapping. Asked about Mr Katz’s
involvement in the affair, Mr Knipe’s evidence was that
although Mr Katz’s name came up as the attorney of record for
Investec, Mr Knipe found no evidence that Mr Katz performed any
improper function.
178 Next, the defendants called Mr
Leslie Haupt to lead evidence regarding the alleged phone tapping by
Investec
Bank.
179 Mr Haupt did not lead any
admissible evidence to indicate that Mr Katz (or Sonnenberg Hoffman
Galombik for
that matter) was involved in the alleged phone
tapping by Investec Bank.
Mr Haupt’s evidence constitute inadmissible hearsay evidence.
He had no direct knowledge of the things about which he
was
testifying, and none of it implicated Mr Katz.
180 Mr Haupt’s evidence took the
matter no further, and was of no assistance to the defendants.
181 Finally, Mr Welz sought to rely on
what he referred to as the Murphy Report. It was authored by a
Michael
Murphy who was not called to give evidence. The entire
contents of the report constituted hearsay evidence which was
inadmissible
and therefore disregarded by the Court.
182 This report is inadmissible
hearsay evidence and this Court was constrained to have no regard to
it.
38
The
Investec / Midtown matter
183 The defendants called Mr Justin
Lewis to lead evidence in relation to the Investec / Midtown matter.
Mr Welz wrote about this matter in the Katz and mice article which
formed part of the July 2014 issue, which is the subject matter
of
this litigation.
184 Mr Lewis led evidence regarding a
funding arrangement between Midtown Building Systems Holdings CC
(“Midtown”)
and Investec in respect of a property
development in Plettenberg Bay that collapsed and led to the
liquidation of Midtown.
185 Mr Lewis accused Investec of
improper conduct in advancing claims against Midtown which he
asserted, in chief,
did not exist.
186 Notwithstanding this, Mr Lewis’s
evidence was that he consented to the liquidation of the company and
signed a supporting affidavit in support thereof.
187 Moreover, in cross-examination, Mr
Lewis was constrained to concede that in subsequent court proceedings
against
him and his wife (who stood surety for the debts of Midtown
up to an amount of R3million), judgement was handed down against him
and his wife for the full amount. .
188 As far as Mr Katz’s
involvement in the matter was concerned, according to Mr Lewis’
evidence,
Mr Katz’s only involvement was that he acted for
Investec in the liquidation application brought by Investec and
subsequent
proceedings.
189 Hence, Mr Lewis’ evidence
also constitutes no evidence of the truth of the statements published
by the
defendants, nor to the reasonableness thereof.
Geoff
Chait
190 Mr Chait gave evidence in relation
to his dealings with Investec Bank in relation to the Victoria
Junction
development. It appeared from him evidence that the
Fairweather Trust, of which he was a trustee, borrowed money in order
to finance
the development.
191 He and his sons as well as a Mr
Novick stood sureties for the Fairweather Trust under the loan.
192 During 1997 and 1998, the trust
fell into arrears and Investec called up the loan and threatened,
inter alia
, to sequestrate him, his sons and their families.
193 During this period, Mr Chait had
one meeting with Mr Katz. He described Mr Katz as the hatchet man
brought
in by Investec to bully him. He described the abusive manner
in which Mr Katz addressed him at this meeting. This was his only
dealing with Mr Katz.
194 Thereafter, the immovable property
on which the development was situated was sold to Investec Bank for
an
agreed amount of R25million. He was granted an interest moratorium
by Investec for the outstanding balance of the loan which stayed
in
place until 2005/6.
195 He described how he and his fellow
trustee took a decision to no longer repay the capital to Investec as
he
had discovered that Investec had agreed to sell the property to
Protea Hotels behind his back.
196 Protea Hotels subsequently on sold
the property and despite Mr Arthur Gillis of Protea Hotels agreeing
to
cut Mr Chait in on that deal, Protea Hotels did not do so.
197 Investec issued summons against
the Fairweather Trust and the sureties for the outstanding capital
and interest.
The Fairweather Trust was represented by senior and
junior counsel and Johannesburg attorneys. A plea and a claim in
reconvention
in a substantial amount (Mr Chait could not remember the
number) was filed.
198 The litigation was settled when
the trust and the sureties agreed to pay Investec’s capital,
interests
and costs and agreed to withdraw the claim in reconvention.
199 Mr Chait candidly admitted that he
settled because he had little confidence in his own case.
200 He also testified that at some
time, which he could not remember, he was shown photographs of a
bugging device
placed in the parking garage of the building in which
he had his office. He could not remember who showed him the
photographs.
201 He was unable to tender any
admissible evidence in relation to Mr Katz’s involvement in the
alleged
phone tapping of his office.
202 This Court finds no evidence, let
alone “
damning evidence
” that Mr Katz is guilty of
devising fraudulent schemes and that this has been public knowledge
for years.
PRINCIPLES
RELATING TO THE AWARD OF DAMAGES FOR DEFAMATION
203
The
successful plaintiff in a defamation action is entitled to an award
of general damages as a
solatium
to compensate the plaintiff for the impingement on his or her dignity
and reputation. Despite the recognised impropriety of damages
as a
remedy in certain circumstances, the present position in our law
seems to be that, apart from an interdict, a claim for damages
is the
only remedy available to someone who has suffered an infringement of
a personality right.
[31]
204
The
court has a wide discretion in determining the award of general
damages
ex aequo et bono
having regard to all the circumstances of the case and the prevailing
attitudes of the community.
[32]
Generally speaking, “
our courts have not
been generous in their awards of solatia. An action for defamation
has been seen as the method whereby a plaintiff
vindicates his
reputation, and not as a road to riches.”
[33]
The idea of “
punitive
damages”
in order to punish the
defendant, rather than to compensate the plaintiff for his or
her loss or harm, has been rejected by
the majority of the
Constitutional Court.
[34]
205 There is no formula for the
determination of general damages. That flows from the infinite number
of varying
factors that may come into play. Factors which the courts
have taken into account include those set out below.
The
nature of the defamatory statements written and published
206
This
goes to the seriousness of the defamatory statement made against a
plaintiff. Imputations of serious dishonesty may cause greater
hurt
to dignity and reputation than imputations of private immorality or
political unreliability, and may attract greater awards
of
damages.
[35]
207
The
statements published by the defendants regarding Mr Katz are highly
defamatory. Accusing any person, let alone an attorney,
of corruption
and/or fraud is about as serious and damaging an allegation as can be
made.
[36]
The nature and extent of the publication
208
A
defamatory statement published in a serious journal with a wide
circulation may attract a higher award than a publication of an
ephemeral nature to a limited number of people. Re-publication or
repetition which is the natural and probable result of the initial
publication may also be taken into account.
[37]
209 There was nothing ephemeral about
the publication of the defamatory statements concerning Mr Katz.
Mr
Welz published his repetition of them well into 2020, culminating
with a letter to prospective funders of his defence in this
litigation
- in February 2020 - where he asserted the essence of the
statements once more, and vowed to vindicate their truth in these
proceedings.
He has failed to do so here.
210 As stated above, the defendants
admitted that just for the third quarter of 2014 (July to September
2014),
total sales of 16 967 copies of Noseweek were recorded.
Circulation was surely widened even beyond this as a result of the
publication of letters and related articles that occurred since the
initial publication of the defamatory statements.
211 Mr Welz certainly regards Noseweek
as a serious journal, judging by the offence he took to it having
been
described as a tabloid by Kgomo J in his judgment. Its
circulation at the time of the initial publication of the defamatory
articles,
combined with the subsequent re-publications to which I
have alluded, and about which more is said below, can hardly be said
to
be anything but wide.
The
reputation, character and conduct of the plaintiff
212 The plaintiff may adduce evidence
of his or her character and reputation and standing in the
community.
Mr Katz did not do so in this case.
213 In correspondence addressed to the
Court on 18 January 2021, the attorneys of record for the second
defendant
drew this Court’s attention to the judgement
delivered by the Supreme Court of Appeal on 17 December 2020, in the
matter
of
Economic Freedom Fighters and Others v Manuel
[2020]
ZASCA 172
, specifically paragraphs 119 to 127 of the judgement which,
it was submitted, addressed the issue of damages where a plaintiff
has chosen not to lead evidence, and the general quantum of damages
awarded in defamation matters. In these paragraphs of
its
judgement, the SCA dealt with the question of whether or not the
court
a quo
should have referred the question of the quantum
of damages to be awarded to Mr Manuel, to oral evidence. The
SCA ultimately
held that the court a
quo
should have done so.
214 Whilst the correspondence did not
go as far as to say that the fact that the plaintiff did not
personally
lead any evidence regarding the harm to his reputation
should be held against him, the suggestion embedded in the referral
of this
Court to those specific paragraphs of the SCA's judgement is
either that his failure to lead evidence in this regard disentitles
him to any damages, or that this should be a factor to be considered
by this Court in assessing the question of damages.
215
The
fact that no evidence is led on reputation does not mean that only
nominal damages must be awarded, or none at all, since it
is accepted
that every person has a reputation that is worthy of
protection.
[38]
As the SCA has confirmed and as the courts have held in several other
cases, there is n
o empirical measure to determine compensation
for damages of this nature. This Court, in determining an
appropriate award,
must have regard to all the facts and
circumstances of a particular case.
[39]
216 In any event, and in addition to the principles
set out above, as to Mr Katz’s reputation and esteem
after the
publication of the defamatory articles evidence was put before the
Court on his behalf of a letter written by one of
Noseweek’s
readers and published in its June 2018 edition that compared Mr
Katz’s conduct as previously described in
Noseweek (as one of
Nedbank’s lawyers) to the conduct of the Nazis in the
concentration camps during WWII. Mr Katz
is Jewish. The impact
of the articles on Mr Katz’s reputation and esteem is patent
from the repugnance of the association,
or comparison, made in this
letter.
217 The defendant may also adduce evidence of the
plaintiff’s lack of reputation or general bad character,
but
not of particular facts which show only that the plaintiff ought to
be a person of bad reputation.
[40]
Mr Katz is certainly not the most popular person to Mr Welz and the
witnesses that he called, based on what they view as
his abrasive,
rude and arrogant manner. However, the reputation and respect
to which a person is entitled may be different
from his or her
popularity.
[41]
Further, the grounds for which the plaintiff’s character is to
be impeached should be placed at issue in the pleadings,
and notice
should be given of the intention to adduce evidence on matters in
mitigation not raised in the pleadings.
[42]
This has not occurred in this case.
218 The extent to which the defendants prove that
the defamatory statements made were true may be taken into
account
where a plea of truth and public benefit fails.
[43]
My finding above is that the defendants have not discharged the onus
on them to prove, on a balance of probabilities, the
truth of the
defamatory statements written and published in July and August 2014,
and accordingly there can have been no public
benefit in them, nor
can the comments made in relation to those statements (which were
presented as fact, though not true) have
been fair.
The
motives and conduct of the defendant
219
The
fact that the defendant has embarked on a deliberate and unfounded
attempt to destroy the plaintiff’s reputation will
be an
aggravating factor. The conduct of the defendant from the date of the
publication of the statements to the date of the judgement
is
relevant. Expressions of regret and apology may be mitigatory.
[44]
There have been no such expressions from the defendants in this case.
220 The conduct of Mr Welz since the
first publication of the defamatory statements in July 2014 is, in my
view,
an aggravating factor in the question of what can be
appropriate damages to award in this matter.
221 In the September 2014 edition of
Noseweek, the defendants published a letter sent by Mr Katz to the
defendants,
in which he, referring to the defamatory articles in the
July 2014 edition, pointed out that if the defendants had applied
their
minds to the various affidavits filed in the Brakspear matter,
they would have come to the view that West Dunes was validly placed
into liquidation and that the true facts could be established from
the affidavits (including those of Mr Brakspear’s attorney
and
counsel) filed in the application to set aside the winding up of West
Dunes. Mr Katz expressly stated that the defendants deliberately
chose to ignore what was said in answer to Mr Brakspear’s wild
allegations. Mr Katz asserted that the defendant’s failure
to
have regard to the affidavit of Mr Brakspear’s own attorney,
which accords with his affidavit filed in that matter (confirmed,
on
oath, by two counsel) was, at best, reckless, and at worst,
dishonest.
222 Mr Welz published his response and
stated, “
In short, so far, we stand by our story
”.
223 On 20 October 2014, Mr Brakspear’s
application for an order setting aside the winding up of West Dunes
was dismissed with costs. In the judgement the court concluded
that Mr Brakspear’s allegations of impropriety, fraud
and
fictitiousness were nothing more than wild, reckless, unsubstantiated
allegations. The court found:
“
[251] The evidence of the applicant (Mr Ian
Brakspear) himself must be treated with great circumspection where it
is not consistent
with that of his own legal team, the Nedgroup Trust
or the liquidators. That is so because he jumped from one standpoint
to another
and back without blinking an eyelid. In my view and
finding he was a mendacious witness whose evidence was resplendent or
shot
through with contradictions and inherent improbabilities. […]
[252]
He was evasive
while giving evidence and/or answering questions during his
cross-examination. He has conceded to being angry, frustrated
and
combustible, it was clear that he was to some degree actuated by
extreme malice towards the liquidators, Nedgroup Trust and
its
attorney, Leonard Charles Katz who was and is a senior practitioner
with attorneys’ firm, Edward Nathan Sonnenbergs among
others.
This was amply demonstrated, not only in the allegations in his
affidavits but also in his “know this Katz”
email of 1
November 2012.
[253]
The applicant
confirmed in his evidence that it was his “life mission”
to bring about the downfall of Mr Katz. As a
result, it is my view
that because of his hostility and vindictiveness he (applicant/Mr
Brakspear) cannot reasonably be said to
have had a commensurate
ability to present or view facts objectively. It also bears mention
that as part of his ostensible vendetta,
he used the fringe
publication, Noseweek edited by his friend and adviser at court, Mr
Martin Welz, as a platform to publish allegations
which may amount to
criminal defamation unless they are proven to be true or in the
public interest, among others.”
224 Notwithstanding this, the
defendants persisted with their assertion that the facts contained in
the defamatory
articles published in July 2014 were true.
225 In the December 2014 edition of
Noseweek, the defendants, in response to the Kgomo J judgement and Mr
Katz
advising that he intends to institute defamation proceedings
against the defendants, wrote and published the following:
“
On another day and under different
circumstances I might have been just a bit rattled by all of that.
But I know that Noseweek’s
earlier stories on the subject were
squarely based on the evidence quoted in them. I also know that
several of the judge’s
statements quoted here are either half-
truths, or simply nonsense.”
226 On 17 March 2015, the National
Prosecuting Authority declined to prosecute anybody arising out of
the allegations
made by Mr Brakspear.
227 On 9 December 2015, Mr Brakspear’s
petition for leave to appeal to the Supreme Court of Appeal, against
the Kgomo J judgement, was dismissed.
228 None of the above events convinced
Mr Welz and the second defendant to change their stance.
229 Instead, in the December 2015
edition of Noseweek, the defendants published an editorial penned by
Mr Welz
in response to these proceedings having been instituted by
the plaintiff against the defendants. In it the defendants published
the following:
“
Judge Kgomo’ s judgement, which Mr Katz
found so much to his liking is undoubtedly the most arrogantly,
ludicrously, incompetent
High Court judgements I have read in my long
career. On that score, it might have been just sadly unfortunate.
However, it also
reflects malicious bias, which makes it
reprehensible. … Katz’s summons was a gift. It offers me
the opportunity to
fully unpack all the damning evidence in an open
court room, should not have happened already elsewhere.”
230 On 9 March 2016, Mr Brakspear’s
application for further consideration for leave to appeal in terms of
section 17 (2) (f) of the
Superior Court Act
, 2013 was
dismissed.
231 During or about July 2016, the
defendants refused Mr Katz’s offer to settle these proceedings
on the
basis that the defendants publish a retraction and apology and
agree to pay his party-and-party costs to date.
232 On or about 1 May 2018, the
defendants published an article with the title “
How Nedbank
lied, and lied, and lied
” in which the defendants again
recounted Mr Brakspear’s version of events.
233 On 5 July 2018, the Royal Court of
Jersey struck out the Brakspears’ claims.
234 On 22 July 2018, the defendants
published another article regarding the Brakspear saga titled
“
Nedbank offshore saga continues
”. In it the
defendants again refer to Mr Katz and published a picture of him with
the remark immediately thereunder “
Standing up to rogue
bankers and their lawyer Leonard Katz
”.
235 On 2 August 2019, the Court of
Appeal of Jersey dismissed the Brakspears’ appeal.
236 On 18 February 2020, shortly
before the trial proceedings in this matter were due to commence, Mr
Welz distributed
an email to Noseweek’s “
shareholders
and its friends and major supporters over the years
.” In
the email, which was a request for funding to assist the defendants
in these proceedings, Mr Welz published the following
statements:
“
In Noseweek I have frequently championed the
cause of the self-made successful businessman who, in a moment of
weakness falls victim
to the legal manipulations of one or other big
financier, assisted by one or other less scrupulous attorney. Mr
Leonard Katz, head
of insolvency at Edward Nathan Sonnenbergs (ENS,
“the largest law firm in Africa”) is one such attorney. …
We have made a discovery of thousands of pages of
documents related to a number of cases in which Mr Katz has acted in
what I can
only euphemistically describe as manipulated liquidations…
Ian Brakspear’s cases in South Africa (there
were three over a four-year period) failed, but Katz’s
propensity to manipulate,
bully and to lie baldly in court documents
– assisted by his favourite counsel – was a significant
factor. By suing
us, Katz has opened the way to us to prove it, now
with the benefits of vastly more evidence and experience. What in
those cases
was merely probable, is now easily shown to be true.”
237 The truth of the matter is, in the
present proceedings neither Mr Welz nor the second defendant have
unpacked
any evidence, let alone evidence that is damning,
establishing the substantial truth of the statements written and
published by
them concerning Mr Katz, and accordingly they have
failed to uphold their defences to Mr Katz’s summons.
In addition,
no evidence has been placed before this Court
demonstrating that Mr Welz’s biting, derisory and condescending
commentary
in response to the Kgomo J judgement was justified.
Unfortunately therefore for Mr Welz, the gift presented by Mr Katz’s
summons failed, in my view, to deliver the anticipated fruits.
238
Persistence
in a defence of truth and public benefit which fails may increase the
award, as may recklessness and irresponsibility
on the part of the
defendants.
[45]
239 The defendants persisted with
their defamation of Mr Katz and refused to retract and apologise for
the defamatory
articles published in July 2014, notwithstanding the
ever-growing confirmation that the statements contained therein were
not true
and that there was no justification for the offending
statements published in those articles.
240
In
the circumstances, the defendants have abused their powerful position
as members of the media and a publisher of a widely distributed
magazine to launch and sustain a vicious unsubstantiated attack
against the person of Mr Katz. They appear to have turned
a
blind eye to the injunction in
Bogoshi,
that
members of the press should not labour under the impression that they
have a licence to lower the standards of care which must
be observed
before defamatory matter is published (which in this case, persisted
with long after publication and the objective
facts showed otherwise)
in a newspaper, wherein the Supreme Court of Appeal cited Professor
Visser’ s view that a high degree
of circumspection must be
expected of editors on account of the nature of their occupation,
particularly in light of the powerful
position of the press and the
credibility and the credibility which it enjoys among large section
of the community.
[46]
241 As stated above, in considering
the amount of damages to be awarded in a case for defamation, the
Court has
to take into account that essentially the plaintiff seeks
the vindication of his reputation by claiming compensation from
the
defendants and as a conciliation of the wrong done to him. The
aggravating factor is the conduct of the defendants and the
manner in
which the defamatory statements were made and their attitude
subsequent to the publication.
242 Considering all of the factors
which I have set out above, all of which I consider to be
aggravating, this
case justifies a significant award in damages.
Awards in other cases provide generalised guidance on what award
might be appropriate.
242.1
In
Hlongwana v Tiso Blackstar Group (Pty)
Ltd
[47]
an award of R300 000 (for a claim of R2 000 000) was made for
defamatory allegations published in
Times Live
and
Sowetan Live
that
the plaintiff (an advocate and arms dealer) was involved in the arms
deal scandal, specifically links with Gupta family and
received
bribes.
242.2
In
Engelbrecht and another v Independent Media
(Pty) Ltd and another
[48]
,
a recent case with some similar facts to this one, the court awarded
R300 000 on a claim of R5 million, where allegations that
the
insolvency practitioner plaintiffs
were corrupt, fraudulent and
intimidated
opponents where published in a certain newspaper and on internet
sites which ar
e widely distributed between the Council of the
Bar, the Judiciary and the side bar in Johannesburg, where the
plaintiffs practice.
243 The court concludes that the defendants have
failed to discharge the onus on them of proving that the defamatory
statements were true and published in the public interest;
constituted fair comment and that their publication was reasonable in
the circumstances.
244 Weighing up all of the above circumstances, to
which regard may properly be had in the assessment of damages
in
matter of this kind, I am of the view that an appropriate award of
damages would be R330 000.00.
COSTS
245 The usual rule, namely that the successful
party should be entitled to the costs of the proceedings, applies
to
these proceedings.
246 The factors that are relevant to the costs
order in this matter are set out below.
247 On 18 July 2016, Mr Katz addressed a letter to
the defendants in which he advised that he was prepared to
settle the
claim against them provided that the defendants published an apology
and retraction in the September and October 2016
editions of Noseweek
and that the defendants accept liability for his partyand-party
costs. The defendants refused to do so.
248 The defendants refused to retract, or apologise
for the defamatory statements published regarding Mr Katz
and,
instead, republished them on more than one occasion, as set out
above.
249 In these proceedings, Mr Welz has conceded in
evidence that:
249.1 at least certain of the defamatory
statements published concerning Mr
Katz were known to be false;
249.2 the defendants have been in possession
of documentary evidence that demonstrates the defamatory statements
to be false; and
249.3 a number of courts, both in this
country and in Jersey, have rejected as false Mr Brakspear’s
version, which was written and published by the defendants;
249.4 the allegations made in the defamatory
statements, either directly or the essence of them, were repeatedly
published, thereby continuing their dissemination.
250 A further factor to consider is the fact that
these trial proceedings were extended for much longer than
was
required. This is directly attributable to Mr Welz generally being
unprepared in the conduct of his defence, leading irrelevant
evidence
and often being late for the commencement of the hearings.
251 Such conduct would ordinarily warrant a
punitive costs order. However, I do not deem a punitive costs
order to be just and equitable in the circumstances of this case.
Mr Welz was a lay litigant. He could not afford representation,
and
exercised his right to defend himself. He has already been
mulcted with costs on two occasions during the conduct of
this
lengthy trial – once for a postponement application that went
against him, whilst on another occasion he was ordered
to pay the
wasted costs of that day after his witnesses failed to turn up.
CONCLUSION
252 In the result, I make the following order:
252.1 The first and second defendants are
ordered, jointly and severally, to pay damages to the plaintiff
in
the sum of R330 000.
252.2 The first and second defendant shall
pay interest on the sum of R330 000 at the
mora
rate from the
date of this judgement to the date of payment.
252.3 The defendants are to pay, jointly and
severally, the costs of the action such costs to include the
costs
attendant upon the employment of two counsel.
Ncumisa Mayosi
Acting Judge of the High Court
Western
Cape Division
[1]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 109
[2]
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para [18]
[3]
Le Roux and Others v Dey
2011 (3) SA 274
(CC) para [85]
[4]
Le Roux, para [89]
[5]
Tsedu v Lekota
[2009] 3 All SA 46
(SCA);
2009 (4) SA 372
(SCA)
[6]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 116
[7]
Le Roux, para [91]
[8]
1936 2 All ER 1237 (HR) 1240
[9]
Le Roux, para [91]
[10]
Le Roux, para [91]
[11]
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (8) BCLR 771
(CC)
[12]
National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1999 1 BCLR
1 (SCA); 1998 (4) SA 1196
[13]
Khumalo v Holomisa 2002 (8) BCLR 771 (CC); 2002 (5) SA 401 (CC)
[14]
Vol 14(2) - Third Edition, para 124
[15]
Vol 14(2) - Third Edition, para 124
[16]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 125
[17]
Vol 14(2) - Third Edition, para 126
[18]
Vol 14(2) - Third Edition, para 126
[19]
Vol 14(2) - Third Edition, para 127
[20]
Vol 14(2) - Third Edition, para 130
[21]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 130
[22]
[1998] ZASCA 94
;
[1998] 4 All SA 347
(SCA);
1999 1 BCLR 1
(SCA);
1998 (4) SA 1196
(SCA)
[23]
At 1212. See also Mthembi-Mahanyele v Mail & Guardian Ltd
[2004]
3 All SA 511
(SCA)
24
Bogoshi, at 1213
[24]
Bogoshi, at 1212-1213
[25]
Bogoshi, at 1212-1213
[26]
LAWSA, Criminal Law (Vol 11 – Third Edition), para 363
[27]
Myburgh v The Master of the High Court Bloemfontein Free State
Division, NO 2019 JDR 1698 (FB) para [13]; Ex parte Nel and Others
NNO
2014 (6) SA 545
(GP)
[28]
[1998] ZASCA 94
;
1998 (4) All SA 347
(A), p 361J-362B
[29]
Supra, p. 360G-I
[30]
Argus Printing & Publishing Co Ltd v Esselen’s Estate
[31]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[32]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[33]
Per Grosskopf JA in Argus Printing & Publishing Co Ltd v Inkatha
Freedom Party 1992 (3) SA 579 (A) 590
[34]
Fose v Minister of Safety & Security
[1997] ZACC 6
;
1997 (7) BCLR 851
(CC);
1991 (3) SA 786
(CC) (per Ackerman J) 822-823; 826-828 (Didcott J);
829-832 per Kriegler J. See also Esselen v Argus Printing &
Publishing
Co Ltd
1992 (3) SA 764
(T); Tsedu, supra, 2009 (4) SA 372
(SCA) 19
[35]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[36]
Economic Freedom Fighters and Others v Manuel; In Re Manuel v
Economic Freedom Fighters and Others (13349/2019) ZAG2PJHC 172
(18
June 2019) at [10]
[37]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[38]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137, fn 9.
See also Van der Berg v Coopers & Lybrand Trust (Pty) Ltd
[2001]
1 All SA 425
(A) para [46]
[39]
See also Dikoko v Mokhatla
2006 (6) SA 235
(CC) para [71] and [77];
Tsedu supra, at para [21]
[40]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[41]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[42]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137, fn 10
[43]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[44]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[45]
LAWSA
Defamation
Vol 14(2) - Third Edition, para 137
[46]
Supra, page 361J-362B
[47]
[2018] ZAGPPHC 214 (5 April 2018).
[48]
[2019] LNQD 41 (GSJ).