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[2014] ZAGPJHC 243
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Da Luz v Faim (2003/25022) [2014] ZAGPJHC 243 (12 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2003/25022
DATE:
12 JUNE 2014
In the matter
between:
CARVALHO,
FERNANDO DA LUZ
...........................................
Plaintiff
And
GOMES, HERNANI
RICARDO FAIM
...................................
Defendant
J U
D G M E N T
MABASA AJ:
[1] This is a claim
for Default Judgment arising out of an action for damages due to
defamation. The Plaintiff, a businessman, sues
the First Defendant
for defamatory statements published in The Citizen newspaper.
[2] The editor of
The Citizen newspaper and The Citizen 1978 (Pty) Ltd were cited as
the Second and Third Defendants respectively.
The application against
these defendants has been withdrawn.
[3] Ms Denichaud for
Plaintiff informed the court that the First Defendant now lives in
Portugal and that his attorneys have withdrawn
as attorneys of
record.
[4] The cause of
action arose on 1 July 2003 when the First Defendant published an
article in The Citizen newspaper entitled to
‘An open letter to
the Portuguese community’. In this article it was stated inter
alia of the plaintiff that;
4.1 “he is a
person whom I would not be able to describe even if I had the use of
the whole newspaper”;
4.2 “due to
the manipulations and delay raised by Mr Ferdinando Carvalho, a
field in which he is a master”;
4.3 “My last
words are directed to Mr Carvalho, as a popular proverb,, and which
he will easily understand ‘you deceive
everybody for a certain
time, but you cannot deceive everybody forever’”.
[5] The Plaintiff
was the only witness who testified. The First Defendant was his
former business partner. Both were members of
World Roofing
Technologies cc. (“WRT”). During 2002, allegations of
misappropriation of money by the First Defendant
surfaced.
[6] The First
Defendant brought an urgent application to liquidate WRT, which was
opposed by the Plaintiff. The court found in favour
of the Plaintiff
and ordered a valuation of WRT. The Plaintiff was ordered to
compensate the First Defendant for his share in the
business. As a
result, the business relationship between the parties broke down.
[7] Subsequent to
this, in an entirely unrelated matter WRT instituted legal
proceedings against a client “Rusprof”.
The outcome of
this litigation as well as the court orders was published as an
explanation to the Portuguese community.
[8] The First
Defendant then published as a response the article which contained
the defamatory allegation. In his Plea he avers
that the First
Defendant wanted to set the record straight by publishing the true
state of affairs, which is in the public interest
and which amounts
to fair comment.
[9] The plaintiff
testified that he was a highly respected businessman in the
Portuguese community. His reputation was severely
tainted by the
publication. His company offers a unique product and they have no
competitors. Immediately after this publication
and he lost a deal of
approximately R 3,000,000m. Business people in the community were of
the view that they could no longer
trust him. He tried to explain but
the damage was done.
[10] He was also a
prominent figure in the Portuguese social and cultural community. He
constantly had to defend himself. As a result
he felt threatened and
withdrew from socialising. He even removed his sons from the soccer
clubs. The relationship with his wife
suffered and at one point he
thought that she was going to divorce him.
[11] In closing
argument Ms Denichaud submitted that the words in their ordinary
meaning were clearly defamatory. It meant that
the Plaintiff was
dishonest in his business dealings, especially with members of the
Portuguese community, that he is a master
in manipulating and
delaying tactics, and that he was a deceiver of people.
[12] The First
Defendant who was informed of the legal proceedings chose to stay
away at his peril. The facts are therefore uncontested.
[13] I am of the
view that the publication was prima facie wrongful. In Young v Shaikh
[2003] JOL 12113
(C) the court ordered the sum of hundred R150,000.00
as an award for an attack on the Plaintiff’s integrity
published on
national television.
[14] The
publication in the matter was in Portuguese and in reality limited to
the Portuguese community in Johannesburg. Having
regard to the
reluctance of the courts to award huge amount as damages for
defamatory statements I am of the view that an appropriate
award
would be R 200,000.00
[15] In the result
I make the following order;
1. The First
Defendant is ordered to pay to the Plaintiff the amount of
R200,000.00;
2. It thereon at the
rate of 15.5% per annum from the date of the service of the summons
to the date of final payment, both dates
inclusive;
3. Costs of the
suit.
NAME OF JUDGE AJ
ACTING JUDGE OF
THE HIGH COURT OFSOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel for the
Plaintiff: Adv Denichaud
Instructed by: A
J Van Rensburg Inc
Counsel for the
Defendant:
Instructed by:
Date of Hearing:
06 June 2014
Date of
Judgment: 12 June 2014