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[2010] ZAGPJHC 193
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Van Rensburg and Another v Meyer and Another (10879/2010) [2010] ZAGPJHC 193 (24 November 2010)
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 10879/2010
DATE:
24 NOVEMBER 2010
In the
application between
VAN RENSBURG,
HERMAN
..............................................................................
FIRST
APPLICANT
ALLFLIGHT
CC
..............................................................................................
SECOND
APPLICANT
And
MEYER,
ZANDY
...............................................................................................
FIRST
RESPONDENT
AIRSPORT
INTERNATIONAL
.................................................................
SECOND
RESPONDENT
JUDGMENT
EF DIPPENAAR AJ
[1] This is an
application in terms of which the Applicants seek final interdictory
relief against the First Respondent, an individual
and the Second
Respondent, a party which does not exist in the form in which it was
cited and which appears to be a foreign registered
entity with no
place of business or business activities within the Republic of South
Africa.
[2] Both Respondents
opposed the application, which was initially instituted as a matter
of urgency, but on the date for the hearing
of the application, time
periods for the filing of further affidavits were agreed upon without
any interim relief being granted
and the application was postponed.
[3] The Respondents
raised, in limine, an objection against this Court’s
jurisdiction in relation to the relief sought against
the Second
Respondent which, in my view, was well taken.
[4] It is undisputed
that the Second Respondent is incorrectly cited and is in fact a
company based in Switzerland with no registered
office, place of
business or any employees in South Africa. In my view, the Applicant
has not proved that this Court has any jurisdiction
to entertain this
matter in relation to the Second Respondent. Although there was no
proper service of process on the Second Respondent,
the Second
Respondent has apparently received notice of the application and has
opposed same. In my view, there is no basis on
which the Applicant is
entitled to relief against the Second Respondent. I shall accordingly
proceed to consider whether the Applicants
are entitled to relief
against the First Respondent.
[5] As the relief
sought by the Applicants is final in nature, they must show the
presence of the following three requisites, on
a balance of
probabilities:
[5.1] a clear right
on the part of the Applicants;
[5.2] an injury
actually committed or reasonably apprehended; and
[5.3] the absence of
any other satisfactory remedy.
[6] The basis for
the present application is an anonymous letter which was distributed
by the First Respondent to certain members
of the pigeon racing
fraternity.
[7] The Applicants
contend that the anonymous letter is defamatory inasmuch as it refers
to them as being dishonest and that they
are “up to their same
old cheating ways at Carnival City”.
[8] It is undisputed
that the Applicants enjoy a clear right to their good business name
and reputation. A right to dignity, as
enshrined in the Constitution,
includes their right to repudiation. See: Hardaker v Phillips,
2005
(4) SA 5
15 (SCA) at page 525 A-B.
[9] It is not
disputed that the reference to “they” is a reference in
the said letter to the Applicants as being cheats
and/or dishonest
which is at least prima facie defamatory of them and they are
entitled to the protection of their good name and
reputation.
[10] The Applicants
contend that the distribution of the anonymous letter is causing harm
to the good name of the Carnival City
pigeon race.
[11] The following
facts are common cause between the parties: The Second Respondent
carries on business as the organiser of pigeon
racing events; the
success of a pigeon race is directly proportional to the number of
entries in the race and that international
participation increases
the profitability of the race; the Carnival City race was previously
organised by parties other than the
Applicants and that the previous
organisers failed to pay out promised prize money which brought the
said race onto disrepute locally
and internationally, with the result
that international entrants were reluctant to support the race.
[12] I agree with
the Applicants’ contention that if potential entrants in the
Carnival City race were afraid that the Applicants
were dishonest or
cheats, the viability of the race would be in question and that the
Applicants would suffer an injury in the
event of the Respondents
publishing the anonymous letter.
[13] The First
Respondent admits having distributed the anonymous letter as alleged
by the Applicants and admits that he has passed
the anonymous letter
on to some of those associated with the SCMDPR, and has provided no
undertaking that we will not further distribute
the said letter. In
my view, the Respondents’ contention that the harm has already
been done and that there is no risk of
further harm does not bear
scrutiny and there is at least the reasonable risk that the First
Respondent will further distribute
the letter.
[14] I am satisfied
that on these facts, the Applicants are prima facie entitled to the
relief sought and that no other satisfactory
remedy exists whereby
the Applicants’ good name and reputation may be protected in
the present circumstances.
[15] I turn to deal
with the further interdictory relief which the Applicants seek. The
publication of defamatory material gives
rise to two presumptions:
namely that the publication was unlawful; and that the statement was
made animo injuriandi. See: Hardaker
v Phillips,
2005 (4) SA 515
(SCA) at page 524 E-H and Joubert and Others v Venter,
1985 (1) SA
654
(A) at page 696A;
[16] The onus rests
on the First Respondent to rebut the presumptions. See: Mohamed and
Another v Jassiem,
[1995] ZASCA 115
;
1996 (1) SA 673
(A) at 709 H-I.
[17] The First
Respondent contends that the anonymous letter is not defamatory of
the Applicants and, even if it is, the remarks
made were not unlawful
as they constituted fair comment.
[18] From the
answering papers it appears that the First Respondent relies on the
statements as contained in the anonymous letter
as being fair comment
rather than a statement of fact.
[19] It is trite
that the requirements for a successful reliance on the defence of
fair comment are the following:
[19.1] The
defamatory statement must amount to comment or opinion as opposed to
a statement of fact;
[19.2] The comment
must be fair;
[19.3] The facts on
which the comment is based must be true and must be expressly stated
or clearly indicated in the anonymous letter;
and
[19.4] The comment
must relate to a matter of public interest.
[20] Despite the so
called expert opinions filed by the First Respondent, the issue
remains disputed and it is not possible to resolve
the issue
definitively without resorting to oral evidence. Having regard to the
nature of the matter and on the available evidence,
I am not
convinced that the comments contained in the anonymous letter can
reasonably be construed as fair in relation to the Applicants.
[21] The First
Respondent did not deem it necessary to refer the matter to SANPOI,
of which both the Applicants and the First Respondent
are members,
and which has a disciplinary code and procedure in place to
discipline members who, amongst other things, tamper with
time
keeping and the like, militating against the First Respondent’s
assertion that the comment was fair, without resorting
to the
remedies available to it to establish this as a fact.
[22] I am not
convinced that the First Respondent’s conduct in summarily
publishing the anonymous letter without resorting
to SANPO’s
existing mechanisms constituted reasonable and fair comment.
[23] In its
answering affidavit, the First Respondent attempts to justify his
decision to publish the anonymous letter by setting
out all the facts
upon which he bases his opinion, which were not disclosed by the
First Respondent at the time of publication.
[24] Even if the
Respondents establish that, considered objectively, the anonymous
letter contains comments based upon facts which
are true and which
are stated or indicated relating to matter of public interest, and
that the comments are fair, the Respondents
cannot rely on a defence
of “fair comment” because it appears that the anonymous
letter was published with an improper
motive.
[25] In the
circumstances, the First Respondent has not established that the
anonymous letter is not defamatory of the Applicants
and that a real
and substantial risk exists of the Respondents further distributing
same, thereby threatening and besmirching the
Applicants’ good
name and placing the future viability of the Carnival City pigeon
race in jeopardy. In the circumstances,
I am of the view that the
Applicants are entitled to the relief sought.
[26] I accordingly
make the following order:
[26.1] The First
Respondent is interdicted and restrained from directly or indirectly
distributing and / or in any other fashion
or form publishing a
certain letter, a copy of which is annexed to the Applicants’
founding affidavit marked “FA3”.
[26.2] The First
Respondent is interdicted and restrained from defaming the First and
Second Applicants.
[26.3] The First
Respondent is directed to pay the costs of the application.
[26.4] The
application against the Second Respondent is dismissed with costs.
EF DIPPENAAR
ACTING JUDGE OF
THE HIGH COURT
Date of hearing :
10 May 2010
Date of judgement
: 24 November 2010
For Applicants :
Adv D van Niekerk
: KGL Attorneys
For Respondents :
Adv W Davel
J C Smit
Attorneys