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[2015] ZAGPJHC 105
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Chalom v Wright and Another (4104/13) [2015] ZAGPJHC 105 (4 June 2015)
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
4104/13
DATE: 04
JUNE 2015
In the
matter between:
CHALOM
RAYMOND
EDWARD
.............................................................................................
Plaintiff
And
WRIGHT
GRAHAM
......................................................................................................
First
Defendant
TEREZAKIS
MARCELLE
.......................................................................................
Second
Defendant
J U D G
M E N T
WEINER
J
:
Background
[1] The Plaintiff has issued summons against the first and second
Defendant. Only the first Defendant (“Wright”)
was
represented at the trial.
[2] The Plaintiff claims:
2.1
In
claim one, damages arising out of alleged defamatory statements
alleged to have been published by affidavit before the Constitutional
Court. This claim refers to the affidavit of Wright in his capacity
as the attorney for the second Defendant (“Mrs T”)
in
response to the Plaintiff’s application for leave to appeal to
the Constitutional Court.
2.2
In
claim two, damages for loss of income arising out of alleged
fraudulent affidavits of Mrs T filed in the High Court in Durban
and
also before the Law Society for the Northern Provinces (LSNP), which
affidavits were filed pursuant to a complaint by Mrs T
to the LSNP.
The Plaintiff contends that Wright owed him a duty of care to verify
the truth and accuracy of the allegations made
by Mrs T before
instituting the application in the High Court and distributing the
complaint to the LSNP.
[3] The papers in this matter run to several thousands of pages.
After hearing both parties, the court
mero motu
issued an
order in the following terms:
“
In
terms of Rule 33(4) of the Uniform Rules of Court:
1.
The
issues of quantum and merits are separated.
2.
The
court is to determine by way of legal argument:
2.1
Whether
the proceedings before the Constitutional Court, the High Court in
Durban and the LSNP, as referred to in both claims 1
and 2 constitute
privileged occasions.
2.2
If
so, Plaintiff’s claim 1 is to be dismissed.
3.
If
the proceedings are held not to be privileged, the court is to
decide:
3.1
Whether
the statements in claim 1 are defamatory.
3.2
Whether there exists the legal duty as set out in claim 2.
”
No
evidence will be led in respect of the aforegoing issues which will
be decided by means of legal argument only.
4.
The
balance of the issues, if any, are postponed sine die.
”
[4]
The reason for the issue of this order is that, in my view, the legal
arguments on privilege and the duty of care, if decided
in the
Defendants’ favour would dispose of the matter in its entirety.
The Plaintiff relies, in his pleadings, on three affidavits
deposed
to by Wright and/or Mrs T (and the confirmatory affidavits thereto).
The defamation and duty of care claims are based on
the allegations
in these three affidavits. In opposing the order in terms of Rule
33(4), he submitted that he wished to rely on
thousands of other
documents in his evidence in relation to the defamation claim. In my
view, it was therefore convenient and just
and equitable to attempt
to curtail the matter by hearing the legal issues first.
Pleadings
[5] The Plaintiff, an attorney, issued summons against Wright also an
attorney and Mrs T who was Wright’s client.
Claim One
[6] The Plaintiff claimed that statements made by Wright were
malicious and
prima facie
defamatory, injurious and
intentionally designed by Wright and Mrs T to reduce the Plaintiff’s
esteem (both professionally
and personally) in the eyes of his peers,
in the city of his employment (viz Johannesburg) and in his own
eyes. The statements
referred to by the Plaintiff are contained
in Wright’s answering affidavit under Constitutional Case No
CCT132/12 signed
by Wright on 21 January 2013 (and confirmed by Mrs
T), which affidavits were delivered by Wright’s correspondents
to the
Plaintiff and the Constitutional Court on 24 January 2013.
[7] The Plaintiff sets out in 14 numbered paragraphs in the
particulars of claim, the statements that he claims are defamatory
and injurious. I will give a few examples, as this issue, in
view of the decision to which this Court has come, is not one
which
it is necessary for the court to decide at this stage.
[8] The statements were of the following nature:
8.1
Plaintiff’s
affidavit is verbose, convoluted and repetitive.
8.2
The
affidavit contains half-truths and downright lies.
8.3
Plaintiff
refuses to recognise general exceptions to the parol evidence rule.
8.4
Plaintiff
does not explain the law fully and his conduct is therefore
disingenuous, dishonest, deceitful and deprecatory.
8.5
Mrs
T applied to have the Plaintiff removed as an attorney of record due
to a conflict of interest, the Plaintiff having previously
acted for
both Mrs T and her husband (“Mr T”).
8.6
The
Plaintiff has managed to create such havoc in the courts and has
upset many judges in the KZN Province.
[9] The Plaintiff claims that these statements constitute a
breach of his legal and constitutional rights, a reduction in
his
value as a lawyer and should attract compensatory damages of R200
000,00 for each such statement.
[10] The Plaintiff contends that the offending affidavit in the
Constitutional Court (case no 132/12) refers to a confirmatory
affidavit by one Jeanique Naiker (“Naiker”) in which she
states that she has read the affidavit of Wright and confirms
the
contents insofar as it concerns Anthony Rome Attorneys. Mrs T
also signed a confirmatory affidavit in which she confirmed
the
contents of Wright’s affidavit. Accordingly the Plaintiff
contends that the defamatory statements were published
to Naiker, the
registrar of the Constitutional Court and to the Constitutional Court
judges in Johannesburg who read the record
of the proceedings.
Background
[11] It appears from Mrs T’s various affidavits that the
Plaintiff had launched a Rule 43 application in the Durban High
Court
on behalf of Mr T against Mrs T. That application was not successful.
The Plaintiff, on behalf of Mr T, sought leave to appeal
which was
not granted. He thereafter petitioned the Supreme Court of
Appeal (SCA) for leave to appeal which application was
also refused.
A week after the Rule 43 order was granted, he advised his client to
approach the Magistrate’s Maintenance
Court to have a
re-hearing. He then took the issue to the Constitutional Court which
also refused his application for leave to
appeal.
[12] The papers in this matter run to several volumes. It appears
that there are various matters in the Durban High Court under
Case
Numbers 3883/12, 13706/13 and 8589/09. They are all concerned
with the divorce proceedings between Mr and Mrs T. One
of the matters
concerns a claim by Mrs T against the Plaintiff for defamation and is
of the same nature as the counterclaim which
forms part of the
present proceedings.
[13] The next matter is an urgent interdict brought by the Plaintiff
against Mrs T to prevent her from executing a warrant. The
application was heard on 12 December 2014 and dismissed. Leave
to appeal was heard and also dismissed. An application for
leave to
appeal to the SCA has apparently been filed. [at the stage of
this hearing, the result of this application is not
known]
[14] In the third case, a matter which has dragged on for several
years, there was an application for rescission of judgment and
leave
to appeal to be heard in the Durban High Court on 8 December 2014.
[15] In case 8589/09 the affidavits deposed to by Wright, on behalf
of Mrs T in 2012, are in answer to the Plaintiff’s application
to the Constitutional Court for leave to appeal against the decision
in relation to a costs order which arose in the Durban proceedings.
The conduct of the Plaintiff in these proceedings was the basis of
the complaint to the LSNP.
Claim 2
[16] This claim is of a different nature but arising out of the same
proceedings. The Plaintiff contends that on 18 June 2009,
Wright,
purporting to act as attorney for Mrs T, instituted an
ex parte
application out of the Durban High Court under Case No 8589/2009 for
relief concerning the Plaintiff’s conflict of interest
in
acting for Mr T in a divorce, when he had previously acted for both
parties. According to the Plaintiff, the application is
fraudulent in
that the majority of the allegations constitute perjury and are false
and without foundation.
[17] In addition, he refers to a similar affidavit, signed by Mrs T
on 7 June 2009, submitted to the LSNP in support of a complaint
against the Plaintiff. He says that same is also fraudulent. It is
common cause that the complaint to the LSNP has not yet been
determined. The Plaintiff contends that the institution and
delivery of the said application and complaint to the LSNP and
the
allegations made therein are wrongful and unlawful.
[18] The basis of claim 2 is that Wright had a
legal duty to the Plaintiff to verify the truth and accuracy of the
allegations
made by Mrs T before instituting and distributing the
affidavit and the LSNP complaint. Wright failed or neglected to do so
and
accordingly breached his professional duties and duty of care to
the Plaintiff, who is a member of the public and a practising
attorney. His claim is one for damages based upon his practice
suffering a loss of income of R2 400 000,00.
Defences
[19] In regard to claim 1, Wright denies the fact that the
statements made were defamatory. There is some dispute as to whether
or not the allegations in paragraph 2.2 of Plaintiff’s claim 1
were admitted by Wright in regard to their defamatory nature.
For the
reasons below, this is not relevant at this stage. The main thrust of
his defence however, is that the statements were
made in legal
proceedings in response to (defamatory) allegations or averments made
against Wright in the same legal proceedings
by the Plaintiff.
Further, that in such proceedings, Wright was under a duty to make
the statements, and the registrar and
the judges of the
Constitutional Court were under a similar duty to receive them.
The statements, according to Wright, were
pertinent and germane to
the issues arising in such proceedings. Accordingly, the
affidavit was privileged and Wright was
acting in furtherance of the
interests of his client and without malice.
[20] In regard to claim 2, Wright denies that there was any such duty
of care on him to act as the Plaintiff alleges. Alternatively,
he has
filed a counterclaim and he prays that judgment be stayed pending the
decision on the counterclaim.
[21] The counterclaim alleges that the Plaintiff
made defamatory, false and wrongful statements of and concerning
Wright, with the
intention to defame him and injure him in his
reputation.
The Defence of Privileged Occasion
[22]
Wright contends that the crisp issue to be determined is whether the
affidavits filed in the Constitutional Court, the Durban
High Court
and the LSNP were filed within the context of a privileged occasion.
If so, this would rebut the inference of
unlawfulness.
[1]
In each of the instances that the Plaintiff claims the unlawful
statements were made, Wright was acting as Mrs T’s
attorney and
not personally as a litigant.
[23]
Wright has referred to the
Law
as to Solicitors
[2]
(quoting
with authority
Lilly
v Roney
61 LJQB 727)
as authority for the proposition that statements made in
the course of, or in connection with, judicial or quasi-judicial
proceedings
are protected under the privilege. Privilege exists where
‘someone has a right or duty to make, or an interest in making,
specific defamatory assertions and the person or people to whom the
assertions are published have a corresponding right or duty
to learn
of an interest in learning of such assertions’
[3]
In
Penn v Fiddel
[4]
privilege
was found to exist in proceedings before a rent council. In
Zwiegelaar v Botha
[5]
defamatory
statements were made in a meeting of creditors of a company being
wound-up. Legal proceedings in a court obviously fall
into such
category, as do proceedings before a disciplinary tribunal.
[24]
A Defendant does not however, escape liability merely because the
statements are made in judicial or quasi-judicial proceedings.
He
must show that the statements were relevant and germane to the matter
at issue.
[6]
[25]
In addition, in order to rebut the right to this protection, the
Plaintiff can show that Wright was actuated by an improper
motive and
malice. The
onus
would be on the Plaintiff to prove malice on the part of Wright
.
[7]
Germane to the Issue / Relevance
[26] In regard to the statements, Wright denies that they constitute
defamatory
matter
alternatively
pleads
that they were germane to the issue at hand and were connected to the
issues before the Constitutional Court. In
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and Others
[8]
it was
held that relevance in the context of qualified privilege should not
be equated with relevance in a strict evidential sense.
What is
logically irrelevant may not necessarily be irrelevant in relation to
privilege and the test is not as rigid as with the
evidentiary test.
Wright has argued that his statements are in all respects germane to
the issues before the Constitutional Court
and were in answer to
allegations contained in the founding affidavit in the Plaintiff’s
application for leave to appeal.
Accordingly they are clearly
relevant to the occasion and privileged on that basis.
[9]
[27]
The issue of qualified privilege was dealt with extensively in the
judgment of
Van
der Berg
supra
[10]
where Smalberger JA held:
“…
The defamatory statement having
been published in the course of civil judicial proceedings is
privileged provided it satisfies the
requirements for relevance.
In this respect, it was incumbent upon the respondents to show that
it was relevant to an issue
arising in or in connection with the
condonation application.
”
[28]
Smalberger JA went on to state that the concept of relevance has not
been universally defined. It has been described
in various
matters as “
relevant
to the purpose of the occasion
”
[11]
.
[29] At [24] Smalberger JA held:
“
While the public interest undoubtedly
requires that the approach to relevance in relation to privilege
should not be too strict
or rigid least witnesses or deponents to
affidavits be unduly restricted or fettered in their testimony or
depositions, thereby
detracting from their right to freedom of speech
(cf Zwiegelaar v Botha supra at 358E-F), too liberal or wide an
approach to relevance
could effect the undermine or negate a defence
person’s right to the protection of his or her dignity.
”
Malice
[30]
A privileged occasion cannot be misused. A Plaintiff in a defamation
suit must show that the Defendant exceeded the bounds
of privilege,
that is, he acted with malice. According to Neethling
[12]
malice means more than ‘spite’ or ‘ill-will’.
Any motive that does not originate from a “sense of
duty or the
desire to protect an interest” gives rise to improper motive or
malice”.
[13]
[31]
In
Basner v Trigger
[14]
the
court held that inasmuch as the Defendant had a common interest with
the Commission’s terms of reference and inasmuch
as the
defamatory matter complained of was relevant thereto such matter was
uttered on a privileged occasion and the Appellant
was not liable
unless the Respondent proved malice.
[32]
In
Naylor and Another v
Jansen
[15]
a
statement was found to be one of qualified privilege. When speaking
of qualified privilege, Scott JA
[16]
said the following:
“
In the
event of it being shown that the statement was made with knowledge of
its untruthfulness, the inference that would arise,
in the absence of
any indication to the contrary, would be that the statement was
actuated by malice”
[33]
In the same Judgment,
Borgin v De
Villiers and Another
[17]
is
cited, in which Corbett JA finds:
‘
The
defence of qualified privilege is, however, not concerned with the
truthfulness or otherwise of the publication, though proof
that the
Defendant did not believe that the facts stated by him were true may
give rise to the inference that he was actuated by
express malice.’
Facts of the Present Matter
[34]
In the present matter, the main issue in the High Court in Durban
was whether or not the Plaintiff had a conflict of interest
in
representing Mr T. It is common cause that, in acting for Mr T, the
Plaintiff has instituted proceedings in the Durban High
Court and the
KZN Provincial Division as well as in the Durban Magistrate’s
Court, the Supreme Court of Appeal and the Constitutional
Court. In
addition, proceedings are pending before the LSNP.
[35]
According to Wright, the allegations made against the Plaintiff in
these proceedings are in response to affidavits deposed
to by the
Plaintiff in the Durban High Court and the Constitutional Court. Some
of these allegations against Wright, to which he
responded, are the
following:
35.1
Terezakis
has been impoverished by Wright;
35.2
Wright
has colluded in perjury and in a fraudulent application;
35.3
Wright
presented a false subpoena and filed a fraudulent practice note;
35.4
Wright
was dishonestly engaged in a false procedure and in abusive court
procedures with an ulterior motive;
35.5
Wright
behaved fraudulently;
35.6
Wright
has filed false affidavits.
[36] From the aforegoing it can be seen that these proceedings are
fraught with allegations made by both attorneys against each
other in
a most undesirable and unprofessional manner. There has been a
failure to deal with the merits of each particular
matter and an
ad
hominem
attack in respect of both parties.
[37]
In the application in the Durban High Court, Mrs T was applying to
have the court declare the Plaintiff’s representation
of Mr T a
conflict of interest, and that such representation should accordingly
be terminated. In setting out the background
to the matter, it
was germane to the issue for Mrs T to set out precisely how the
Plaintiff had, according to her, initially represented
both parties
in various matters over many years. She alleged that an attorney’s
conduct in so acting would be unprofessional.
[18]
[38] It is clear that all the allegations made in those proceedings
are germane to the issue of whether there was a conflict of
interest
and whether or not the Plaintiff should have acted for Mr T.
[39] The Plaintiff submits that the Defendants
only pleaded that the offending affidavits were privileged. They did
not plead that
the affidavits were delivered on a privileged occasion
as is set out in the court order which I made
supra
.
The Plaintiff also claims that Wright’s plea to claim 1 is
vague and embarrassing and the plea to claim 2 does not set out
a
defence as it amounts to a bare denial.
[40] In my view the Plaintiff’s contention
that the Plaintiff has pleaded that only the affidavits are
privileged and not
the occasion, cannot be upheld. The
allegation by Wright that the statements were made in legal
proceedings and in answer
to allegations or averments made against
Wright in the same legal proceedings, places such statements within
the context of a privileged
occasion. The statements were made either
in High Court proceedings, Constitutional Court proceedings or to the
LSNP, all of which
have been held to amount to privileged occasions
in which affidavits filed therein are privileged.[41] The Plaintiff’s
additional
problem with the defence raised to claim 1 is that Wright
had no duty to speak in deposing to the affidavit in the
Constitutional
Court proceedings. The Plaintiff contends that because
Mrs T did not sign the answering affidavit but Wright did (with a
confirmatory
affidavit by Terezakis) that the occasion is therefore
not privileged.
[42] In regard to claim 2, the Plaintiff contends that Wright had a
legal duty to the Plaintiff to verify the truth and accuracy
of the
allegations contained in Mrs T’s affidavit and that he failed
to do so. In so doing, he breached his professional
duties and
breached his duty of care to the Plaintiff as a member of the public
and practising attorney.
[43] The Plaintiff was unable to point to any authority to back up
this submission.
[44]
This duty would impose upon an attorney a highly burdensome task in
having to investigate the truth and accuracy of every
statement made
to him by a client which he may place in an affidavit. Having regard
to the fact that the attorney/client relationship
imposes a duty upon
the attorney to advance the interests of his client even where it
could cause harm to the opposite party, this
burden does not seem to
give rise to a legal duty of care, as submitted by the Plaintiff.
[19]
In
Shabangu
,
a lawyer innocently submitted a fraudulent claim on behalf of a
client who deposed to affidavits stating that she was the wife
of the
deceased. The court held that it was impossible to lay down a test as
to when an attorney is under a legal duty to persons
other than a
client. The lawyer proved that he was misled by his client, and this
was upheld. There is no allegation that Wright
was aware, when
preparing the affidavit, that the allegations were false.
Wright’s counsel submitted that counsel and/or
attorneys are
afforded protection and need not believe in the truth of the
statements arising from their instructions.
[20]
The Plaintiff would have to demonstrate subjective knowledge on the
part of Wright that the evidence pleaded was false
[21]
.
[45] This duty
contended for by the Defendants would have the consequence that an
attorney would have to approach, for instance,
opposing parties, to
enquire as to the veracity of his client’s submissions. This
would breach attorney/client privilege
and subvert the
attorney/client relationship. The Plaintiff has not shown in
either claim 1 or 2 that Wright made such statements
knowing them to
be untrue and therefore actuated by malice, as defined in the
authorities cited above.
[22]
Wright claims that he had a duty to protect his client’s
interests and therefore did not act maliciously.
[46] Accordingly, in relation to Claim 1, the Plaintiff’s
claims are ousted by the fact that they are privileged, and made
on a
privileged occasion. In relation to Claim 2, similarly, privilege is
a defence to the claim. In addition, the Plaintiff has
failed to
establish that Wright has the duty of care relied upon by the
Plaintiff or that Wright breached same.
[47] In regard to costs, this court intends to show its disapproval
of the unprofessional manner in which both parties have conducted
themselves by ordering each to pay their own costs.
[48] Accordingly, the following order is made:-
1
The
Plaintiff’s claims are dismissed;
2
Each
party is to pay their own costs.
WEINER
J
APPEARANCES
:
For
the Plaintiff: Appeared in Person
For
the 1st Defendant: I. Pillay
Instructed
by: Ningiza Horner
Date
of Hearing: 24 March 2015
Date
of Judgment: 4 June 2015
[1]
Burchell,
Law
of Defamation in South Africa
1985 at page 238
[2]
D
Herbert 1932 page 12
[3]
Neethling
et al
,
Neethling’s Law of Personality p145
[4]
1954
(4) SA 498
(C)
[5]
1989
(3) SA 351
(C)
[6]
Van
Der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA)
[7]
Tuch
and Others NNO v Myerson and Others NNO
2010 (2) SA 462
(SCA) at para [11].
[8]
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA)
[9]
Van
der Berg supra
at para [21]
[10]
at
[21]
[11]
at
[22]
[12]
Supra
at
page 149
[13]
Neethling
supra
[14]
1946
AD 83
15
Jansen
v Naylor and others
[2005] 4 ALL SA 26
(SCA)
[16]
Supra
at [11]
[17]
1980
(3) SA 556
(A) at 578H
[18]
Retha
Meiring Attorney v Walley
2008 (2) SA 513
(D&CLD).
[19]
Road
Accident Fund v Shabangu and Another
2005 (1) SA 265
(SCA)
[20]
Joubert
and Others v Venter
1985 (1) SA 654
(AD) at 702
[21]
Joubert
supra
at
705
[22]
Naylor
supra
at
[11]