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[2019] ZAGPJHC 178
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Christodoulos v Jacobs (17/47551) [2019] ZAGPJHC 178 (11 March 2019)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
No. 17/47551
In the matter between:
KYRIACOU
CHRISTODOULOS
Applicant
and
JOHANNES
JACOB,
JACOBS
Respondent
Case
Summary
:
Interdict - final interdicts aimed at refraining respondent
from harassing and intimidating the applicant and enjoining
him to
‘remove all published defamatory, vilifying and slanderous
comments made of and concerning the respondent –
Application
dismissed.
JUDGMENT
MEYER J
[1]
The applicant, Mr Kyriacou Christodoulos, seeks final interdicts
against the respondent, Mr Johannes Jacob Jacobs, aimed at
restraining Mr Jacobs from harassing and intimidating him and at
enjoining him to ‘remove all published defamatory, vilifying
and slanderous comments made of and concerning [Mr Christodoulos].
[2]
Messrs Christodoulos and Jacobs reside on neighbouring smallholdings
in Hallgate, Nigel. Mr Jacobs conducts the business
of a tavern
on his smallholding, the conduct of which business causes great
discord amongst members of that community. In
this regard Mr
Christodoulos states ‘that the entire Nigel community is aware
of and share the same sentiments that [Mr Jacobs]
is conducting his
business unreasonably’. The discord has resulted in the
involvement of the SAPS and of the local
‘Nigel Rural Emergency
and Disaster Management’ committee and in Mr Jacobs, during
August 2010, obtaining a peace order
against Mr Christodoulos in the
magistrate’s court, Nigel. He lodged a complaint in the
magistrate’s court that
Mr Christodoulos
inter alia
had
harassed and threatened him. The peace order or notice advised
him what steps might be taken against him if his behaviour
towards Mr
Jacobs was not corrected.
[3]
It appears that Messrs Christodoulos and Jacobs thereafter had stayed
out of each other’s way. In this regard Mr
Christodoulos
states that although he disputed that he ever harassed or threatened
Mr Jacobs, he was advised ‘not to act
upon the Peace Notice as
[he] really had no intentions of dealing with [Mr Jacobs] in any
event’. Mr Jacobs, in his answering
affidavit, admits that the
two of them have no dealings with one another.
[4]
Mr Christodoulos’ adult son, Mr Alexi Christodoulos, is also a
community member who actively opposes Mr Jacobs’
tavern
business. The acrimony between them had resulted in Mr Jacobs
obtaining an interim protection order against Mr Christodoulos’
son on 7 November 2017 in the magistrate’s court, Nigel, in
terms of s 3(4) of the Protection from Harassment Act No 17 of
2011,
which order was not made final on the return day. The alleged
incidents of harassing, threatening and intimidating
conduct on the
part of Mr Jacobs on which Mr Christodoulos in the present
application relies, were aimed at his son, and not at
Mr
Christodoulos. His son, however, is not a party to these
proceedings and Mr Christodoulos does not have the requisite
locus
standi
to obtain any relief on his behalf.
[5]
Mr Christodoulos relies on the definition of ‘harassment’
in s 1 of the Protection from Harassment Act, which definition
includes conduct causing ‘harm or inspires the reasonable
belief that harm may be caused to the complainant or a related
person’, and on the definition of ‘related person’,
which means ‘any member of the family or household
of a
complainant, or any other person in a close relationship to the
complainant’. Therefore, he argues, he has the
required
locus standi
to obtain an order in these proceedings to
protect his son from harassment. I disagree. The order
which Mr Christodoulos
seeks is a final interdict to refrain Mr
Jacobs from harassing and intimidating him, Mr Christodoulos, and not
his son.
[6]
Moreover, he conflates proceedings in the magistrate’s court in
terms of the Protection from Harassment Act and motion
proceedings
for interdictory relief in the high court. The Protection from
Harassment Act was enacted
inter alia
to ‘afford victims
of harassment an effective remedy against such behaviour’ by
applying to a magistrate’s court
for a protection order against
harassment (s 2). That Act contemplates tailor-made proceedings
in the magistrate’s
court in which a complainant is permitted
to apply for a protection order against harassment of any member of
his or her family
or household or of a person in a close relationship
to him or her.
[7]
In any event, Mr Jacobs has put up facts to the effect that Mr
Christodoulos’ son is the aggressor
vis-à-vis
him
and not the other way around, and he denies that he harassed or
intimidated him. Mr Christodoulos nevertheless elected
to argue
the matter on the papers. Motion proceedings in which final
relief is sought ‘cannot be used to resolve factual
issues
because they are not designed to determine probabilities’ (
per
Harms JA in
National Director of Public prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290D-E). I, therefore, have to
accept the facts alleged by Mr Jacobs, unless they constitute bald or
uncreditworthy
denials or are palpably implausible, far-fetched or so
clearly untenable that they could safely be rejected on the papers.
Such finding ‘occurs infrequently because courts are always
alive to the potential for evidence and cross-examination to
alter
its view of the facts and the plausibility of the evidence. (
Media
24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty)
Ltd
2017 (2) SA 1
(SCA) at 18A-B). That test was not
satisfied
in casu
.
[8]
Mr Christodoulos also seeks that Mr Jacobs be directed to remove all
published defamatory, vilifying and slanderous comments
made by him
of and concerning Mr Christodoulos. The alleged defamatory
words of and concerning Mr Christodoulos are contained
in Mr Jacobs’
application for a protection order against Mr Christodoulos’
son, which he made in the magistrate’s
court, Nigel on 7
November 2017 in terms of the provisions of the Protection from
Harassment Act. Therein, he also sought
the seizure of Mr
Christodoulos’ firearm on the basis that Mr Christodoulos was
shooting regularly ‘over’ the
business of Mr Jacobs.
Mr Christodoulos contends that the statement implies ‘that [he
is] not an honest law abiding
citizen and that [he has] little regard
for the firearm and other laws of our country’. The
statement, according to
him ‘is an attack on [his] basic
dignity, [his] reputation and good name as well as [his] right to
lawfully hold firearms
for which [he had] applied’.
[9]
In
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) para 17, Smalberger JA said the following:
‘
Our law confers a qualified,
albeit a very real, privilege upon a litigant in respect of
defamatory statements made during the course
of legal proceedings
(
Joubert v Venter
(
supra
at 697))
[1985 (1) SA 654
(A)]. The privilege extends to such
statements if they are relevant. The litigant bears the burden
of proving that
any such defamatory statement was relevant to an
issue in the proceedings (
Joubert
v Venter (
supra
)
at 700G and 701F –
I)). Once the respondents are able to discharge such
onus
the provisional protection
of the qualified privilege thus established would be defeated if the
appellant could show that the trustees,
in making the defamatory
statement, were actuated by malice in the sense of an improper or
indirect motive, as explained in
Basner
v Trigger
1946 AD 83
at 95
(
Joubert v Venter
(
supra
at 702C – D)).’
[10]
The terms of the protection order sought by Mr Jacobs against Mr
Christodoulos’ son included the seizure of Mr Christodoulos’
firearm by a member of the South African Police Service. The
statement that Mr Christodoulos regularly shoots ‘over’
the business of Mr Jacobs was therefore clearly relevant to the issue
whether or not Mr Christodoulos’ firearm should be
seized.
An improper or indirect motive on the part of Mr Jacobs has not been
established. The following statement made
by Mr Jacobs in his
answering affidavit is not challenged in Mr Christodoulos’
replying affidavit:
‘
The only platform on which I
indicated that the Applicant fires his gun is when I applied for a
protection order, which protection
order has been heard and dealt
with. I have never made any other statement on any social media
platform indicating that the
Applicant is not abiding the laws of the
country. The reason I made this statement is because of the
experiences I have had
with bullets being fired in my direction from
the direction of the Applicant’s property. The statements
attached hereinabove
are witness of same.’
[11]
Mr Jacobs states that his reason for having sought to have Mr
Christodoulos’ firearm seized was for his safety, and for
that
of his family and customers. He insists that the statement
contained in his application for a protection order was true.
His
evidence is to the effect that stray bullets emanating from Mr
Christodoulos’ smallholding land on the roof of the tavern
and
elsewhere on Mr Jacobs’ smallholding. He further relies
on the evidence of the manager of his tavern, Mr Berdine
Stapelberg,
and Messrs Hendrik Johannes Jacobs and Johannes Albertus Jacobs, and
Ms Matilde Otter. Their evidence corroborates
that of Mr Jacobs
in material respects.
[12]
In denying these accusations, Mr Christodoulos states:
‘
What may be the source of these
complaints however is that I have provided one of my workers at home
with a big drum and a steel
pipe to hit the drum with every time
birds land in my hot house and fruit orchard in order to keep them
away as they have become
pests and they feed on all the fruit trees
on my property which I take great pride in. The drum makes a
loud noise which
explains why the Respondent and the above named
persons hear what they think are gun shots. When the birds
disperse it is
just the drum being hit.’
Mr
Christodoulos’ account does not refute Mr Jacobs’ version
of stray bullets landing on his smallholding.
[13]
Mr Christodoulos argues that the affidavits of Messrs Stapelberg, HJ
Jacobs and JA Jacobs and of Ms Otter should be disregarded
for
failure to comply with reg 4 of the Regulations Governing the
Administering of an Oath or Affirmation made in terms of s 10(1)(b)
of the Justices of the Peace and Commissioners of Oaths Act 16 of
1963. Regulation 4 reads thus:
‘
4(1) Below the deponent’s
signature or mark the commissioner of oaths shall certify that the
deponent has acknowledged that
he knows and understands the contents
of the declaration and he shall state the manner, place and date of
taking the declaration
(2) The commissioner of oaths shall-
(a)
sign the declaration and print his full name and business address
below his signature;
(b) state his designation and the area
for which he holds his appointment or the office held by him if he
holds his appointment
ex officio
.’
[14]
Mr Christodoulos argues that the designation of the commissioners of
oaths, the offices held by them and whether the deponents
are male or
female are not stated in the affidavits of Messrs Stapelberg, HJ
Jacobs and JA Jacobs and of Ms Otter. It is
settled law that
the court has a discretion to refuse to receive an affidavit attested
otherwise than in accordance with the regulations
depending upon
whether there has been substantial compliance with the regulations.
In
Lohman v Vaal Ontwikkeling
1979 (3) SA 391
(T) at
398G-399A, Nestadt J said the following:
‘
It is now settled (at least in
the Transvaal) that the requirements as contained in regs 1,2,3 and 4
are not peremptory but merely
directory; the Court has a discretion
to refuse to receive an affidavit attested otherwise than in
accordance with the regulations
depending upon whether substantial
compliance with them has been proved or not (
S
v Msibi
1974 (4) SA 821
(T)). In
Ladybrand
Hotels v Stellenbosch Farmers’ Winery
(
supra
)
[1974 (1) SA 490
(O)] a similar conclusion was arrived at. In
that case the admissibility of an affidavit was attacked on the basis
that the
certification did not state that the deponents had signed it
in the presence of the commissioner of oaths. It was held that
the maxim
omnia
praesumuntur rite esse acta
applied, that there was an
onus
on
the person who disputes the validity of the affidavit to prove by
evidence the failure to comply with the prescribed formalities
and
that in the absence of such evidence the objection taken failed.
In any event, it was held that if the affidavit was
defective it
should be condoned.
It is of course a question of fact in
each case whether there has been substantial compliance or not.’
[15]
The statements in question appear on standard pro forma documents
that are commonly used by the SAPS when statements are taken
and
commissioned. The stamp of the police station where the
affidavit was commissioned in each instance is affixed to the
document, indicating the place – South African Police Service,
Nigel, East Rand - and date of commissioning. The town
–
Nigel - and the date are also completed in manuscript as part of the
certification. In each instance the declaration
is signed by
the commissioning police officer, who also printed his or her rank,
number and name. The commissioner of oaths
in each instance,
however, has omitted to delete one pronoun in the selection ‘he/she’
that is included in the certification.
[16]
Mr Christodoulos places strong reliance on
ABSA Bank Ltd v Botha
NO and others
2013 (5) SA 563
(GNP), but that case, in my view,
is distinguishable. There, the deponent declared that she was
female, yet the commissioner
certified that the deponent was male.
Kathree-Setiloane J drew the inference that the deponent had not
signed in the presence
of the commissioner (a requirement of reg
3(1)) from that inconsistency and from the fact that neither the
deponent nor the commissioner
had submitted affidavits confirming
that the document was indeed signed by the deponent in the presence
of the commissioner (para
12).
[17]
In
Goncalves and another v Franchising to Africa (Pty) Ltd t/a
Gold Brands
[2016] ZAGPPHC 960 (2 November 2016), the deponent
declared that she is female and the commissioner has also failed to
delete one
pronoun in the selection ‘he/she’ that was
included in the commissioner’s certificate. There Brenner
AJ
held as follows (para 28):
‘
I respectfully disagree with
the judgment in
Absa Bank
Ltd v Botha NO & Others
2013
(5) SA 563
(GNP). In practice, the “he/she”
reference in the oath section of affidavits is a frequent occurrence,
as is
an incorrect reference to gender. These are innocuous and
inadvertent errors in the main. I am of the respectful view
that judicial notice may be taken of this established fact, and that
one should subordinate form to substance. It is plain
from the
body of Evy’s affidavit that she is female and from the body of
Pedro’s affidavit that he is male. The
affidavits
in
casu
substantially complied
with the formalities prescribed by the Justice of the Peace and
Commissioner of Oaths Act 16 of 1963.’
(See
also
Capriati
No v Bonnox (Pty) Ltd and another
[2018]
ZAGPPHC 345 (10 May 2018).)
[18]
I need not enter the debate whether or not
Botha
was
decided correctly in the light of the view that I take that
Botha
is
distinguishable from the instant matter and also from
Goncalves
.
However, I respectfully agree with Brenner AJ that in practice
commissioners of oaths often fail to delete one pronoun in
the
selection ‘he/she’ that is included in the certification
and that such omission
per
se
is
innocuous and inadvertent.
[19]
This, in my view, is a proper case to hold, as I do, that there has
been substantial compliance with the regulations in each
instance. I
should add that even if the affidavits of Messrs Stapelberg, HJ
Jacobs and JA Jacobs and of Ms Otter were to be excluded
on the basis
that they are invalid, Mr Jacobs’ account relating to the stray
bullets fails to meet the test for rejection
on the papers alone.
[20]
I conclude, therefore, that it was lawful for Mr Jacobs to publish
the statement in issue in the course of the proceedings
in the
magistrate’s court on 7 November 2017. This conclusion is
dispositive of the relief claimed by Mr Christodoulos
that Mr Jacobs
be directed to remove all published defamatory, vilifying and
slanderous comments made by him of and concerning
Mr Christodoulos.
I accordingly need not consider other issues, such as whether effect
can be given to an order for Mr Jacobs
‘to remove’ the
offensive statement from his application for a protection order and
whether a reasonable apprehension
of injury – the second
requisite for a final interdict – has been established.
[21]
In the result the following order is made:
(a) The
rule nisi
issued on 15 October 2018 is discharged.
(b) The application is
dismissed with costs, including those reserved on 15 October 2018.
P.A. MEYER
JUDGE OF THE HIGH
COURT
Dates
of hearing: 5 December 2018
Date
of Judgment: 11 March 2019
Counsel
for Applicant: Adv V Vergano
Instructed
by: Kyriacou Incorporated, Melrose North
Counsel
for Respondent: Mr Jaggan
Instructed
by: Pranav Jaggan Attorneys, Highlands North, Johannesburg