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[2020] ZAGPJHC 187
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Mostert and Another v Nash and Others (12120/19) [2020] ZAGPJHC 187 (28 July 2020)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 12120/19
In
the matter between:
ANTONY
LOUIS
MOSTERT
First Applicant
POWER
PACK PENSION
FUND
Second Applicant
(IN
LIQUIDATION) (Represented by ANTONY LOUIS
MOSTERT
N.O.
(in
his capacity as liquidator of the Second Applicant)
and
SIMON
JOHN
NASH
First Respondent
PAUL
ROBERT
O'SULLIVAN
Second Respondent
SARAH-JANE
TRENT
Third Respondent
PAUL
O'SULLIVAN & ASSOCIATES PROPRIETARY
Fourth Respondent
LIMITED
(REGISTRATION
NUMBER 2012/077700/07)
OLD
MUTUAL LIFE INSURANCE COMPANY (SOUTH
Fifth Respondent
AFRICA)
LIMITED
(REGISTRATION
NUMBER 1999/004643/06)
JUDGMENT
CRUTCHFIELD
AJ:
[1]
This application came before me by way of special motion. The papers
spanned in excess of sixteen hundred (1 600) pages.
[2]
The first applicant , Antony Louis Mostert, was the curator
ad
/item
of the second applicant, Power Pack Pension Fund (in
liquidation) (represented by Antony Louis Mostert
NO)
0n his
capacity as liquidator of the second applicant). I
refer to the
first and second applicants jointly as 'Mostert'.
[3]
The first respondent was Simon John Nash, a former trustee of various
pension funds allegedly subjected to an 'asset-stripping'
scheme
executed by him and various others. I refer to the first respondent
as 'Nash'
[4]
The second respondent, Paul Robert O'Sullivan, described himself as a
'professional forensic litigation expert'. Sarah-Jane
Trent, the
third respondent, was a legal consultant to the fourth respondent.
The second and third respondents both co- authored
the forensic
report referred to hereunder.
[5]
The fourth respondent, Paul O'Sullivan & Associates Proprietary
Limited, was a corporate entity established by the second
respondent
for the purpose of conducting his forensic litigation business.
[6]
No relief was sought against the fifth respondent, Old Mutual Life
Insurance Company (South Africa) Limited, ('Old Mutual').
Old Mutual
abided the decision of the Court and did not participate in the
proceedings.
[7]
Old Mutual was a recipient of the 'forensic report' referred to
hereunder.
[8]
I refer to the second to fourth respondents jointly as the
'O'Sullivan respondents.' Nash and the O'Sullivan respondents were
represented separately at the hearing before me.
[9]
Briefly stated, the applicants claimed:
1.
An interim interdict that the first to fourth respondents, either
themselves or through entities in which they hold an interest,
be
interdicted and restrained from:
9.1.1
Publishing or disseminating or causing either, whether in the
media and/or on social media platforms or otherwise, any defamatory
allegations in respect of the first and second applicants , their
associates or persons engaged in assisting with the administration
of
the liquidation of the second applicant; and
9.1.2
Publishing the fourth respondent's 'forensic report' compiled
by the second and third respondents dated 30 March 2019 or any
variations,
updates or amendments thereof and the contents of any
correspondence between the second and fifth respondents.
2.
That the interim interdict operate pending the final determination of
action proceedings to be instituted against the first to
fourth
respondents for damages for defamation and a final interdict
prohibiting the first to fourth respondents from continuing
the
publication of defamatory statements regarding the first applicant.
3.
In respect of the action proceedings pending under case number
09/50684 in this Court ('the Power Pack action'), that the first
to
fourth respondents, either themselves or through entities in which
they hold an interest, be interdicted and restrained from
taking any
actions (other than as a party to the Power Pack action in terms of
the Uniform Rules of Court) including but not limited
to directly
corresponding and engaging with parties who may be required to give
evidence in the action, including but not limited
to the fifth
respondent or any of its officers or employees, and one June Marx.
[10]
Maier-Frawley AJ granted an urgent interim order in the matter during
April 2019. The application before me was the next instalment
in the
proceedings.
[11]
Nash sought the dismissal of the application together with costs of
two counsel. The O'Sullivan respondents also claimed the
dismissal of
the application with costs to be paid by the first applicant in his
personal capacity.
[12]
Nash launched two striking out applications, both opposed by the
applicants, in respect of which Nash required a judgment albeit
not a
discrete hearing. The applicants informed me at the outset that they
would not refer to any of the impugned averments and
they did not do
so. Thus, the striking out applications were rendered moot
eliminating any need for a judgment in respect of those
applications.
[13]
The applicants characterised the matter as a contest of rights - the
first applicant's right to dignity together with the second
applicant's right to efficient administration, particularly given the
applicable context where the beneficiaries of the Power Pack
Pension
Fund ('the Fund'), were elderly pensioners, as opposed to the
respondents' rights to freedom of expression, both to receive
and
impart information, including the public's interest in receiving
information from the respondents, and Nash's right of access
to
justice.
[14]
The
defences raised by Nash in the matter before me, dovetailed with
those raised by him in the matter determined by Matojane J,
being
that the order sought would violate his right to freedom of
expression by limiting his right to impart information and ideas
unjustifiably, and, unjustifiably limit the right of the general
public to receive information regarding Mostert's unlawful
conduct.
[1]
[15]
Furthermore,
that Mostert was trying to 'gag' the respondents to prevent his
alleged corrupt activities from coming to light, that
the information
that
he
wishes to publish is true
and
in the public interest.
[2]
[16]
[17]
The factual matrix to this application comprised various aspects:
1. Certain charges
pending against Nash in the Specialised Commercial Crimes Court for
fraud, theft and money laundering arising
from the alleged unlawful
removal of at least R160 million in capital from various pension
funds, the alleged 'asset-stripping'
scheme referred to earlier.
2. Long-running
litigation referred to as
the 'Power Pack action'
, in which
the second applicant is the plaintiff and Nash and various others the
defendants, for the recovery of approximately R42
million allegedly
extracted from the second applicant between June 1998 and September
1999. The Power Pack action was set down
for trial on 31 July 2017.
[18]
The applicants referred to an alleged defamatory smear campaign
conducted by Nash inter alia against the first applicant and
those
involved in the administration of the second applicant. The alleged
purpose of the smear campaign was to disrupt and delay
the Power Pack
action as a means of causing the demise of that litigation prior to
its determination by the courts.
[19]
The 'smear campaign' had succeeded in delaying the finalisation of
the administration of the Nash funds, to the prejudice of
the members
and pensioners beneficially entitled thereto, together with the team
administering those funds.
[20]
The basis for the interdict claimed in respect of the Power Pack
action was explained by the applicants thus: 'As the goal
of that
smear campaign is to stifle an action by the second applicant against
Nash (the Power Pack action) and as Nash and the
O'Sullivan
respondents have been interfering with witnesses intended to be
called in that action, the applicants seek an order
interdicting the
first to fourth respondents from taking any actions other than as a
party to the Power Pack action in terms of
the Rules of Court,
including but not limited to directly corresponding and engaging with
parties who may be required to give evidence
in the action including
but not limited to the fifth respondent or any of its officers or
employees, and June Marx'.
[21]
Nash denied that the alleged smear campaign was defamatory and
contended that the applicants were attempting to 'gag' the
respondents so as to prevent publication of the forensic report and
public knowledge of the first applicant's alleged unlawful
activities. Both Nash and the O'Sullivan respondents argued that they
were acting in the public interest by making information regarding
the first applicant known to the public. Furthermore, that the
information was true.
[22]
Nash denied that the applicants established the requirements for
interdictory relief.
[23]
As to Nash's right of access to justice, he alleged that an order in
the terms sought by the applicants would significantly
hamper his
preparation of his defence and running of the trial in the Power Pack
action. In effect, Nash's access to justice would
be impeded. He
inter alia
would not be entitled to consult with his
witnesses, not be entitled to call the O'Sullivan respondents, the
FSB, Zonda or the Public
Protector to furnish evidence in the trial
and would be prevented from engaging with Old Mutual as regards the
amounts claimed
by the applicants in the Power Pack action having
allegedly been discharged. Furthermore, Nash and each of the
O'Sullivan respondents
were alleged to have acted separately for a
period some twelve years.
[24]
The issues that I was required to determine comprised whether or not
the conduct complained of by the applicants amounted to
defamation of
the first applicant and interference in the administration of the
second applicant. If so, did the respondents acquit
themselves of the
onus resting upon them to furnish a defence that served to exclude
wrongfulness or intention on the part of the
respondents.
[25]
In the event that the respondents did not do so, whether the
applicants met the requirements of the interdictory relief sought
by
them.
[26]
The parties
have a long history through our courts, a plethora of judgments
having been granted in respect of various of the parties
in various
forms. Two of those judgments were of particular relevance to these
proceedings; being that of Matojane J
[3]
and Fisher J,
[4]
to which I
refer hereunder.
[27]
The Power Pack action incepted during 2009. The matter was set down
for trial, by arrangement between the parties, on 31 July
2017. The
hearing was postponed sine die as a result of Nash launching an
application to stay the proceedings (the 'stay application')
shortly
prior to the date of the hearing.
[28]
Matojane J interdicted Nash inter alia on 14 August 2018.
[29]
During October 2018, Nash approached Old Mutual in an attempt to
conclude an agreement premised on the termination of the Power
Pack
action. Old Mutual refused to conclude the proposed agreement.
[30]
The stay application was heard by Fisher Jon 19 November 2018 and
dismissed on 4 February 2019.
[31]
Before Matojane J, the first applicant was Mostert in his personal
capacity, the second applicant was Mostert in his capacity
as the
curator of the Sable Industries Pension Fund (under curatorship), and
liquidator of the Power Pack Pension Fund (in liquidation).
The first
respondent was Nash and the fourth respondent Midmacor Industries
Limited, a company controlled by Nash. The remaining
respondents are
not relevant to the application before me.
[32]
Matojane J,
inter alia:
1. Interdicted Nash and
the remaining respondents, either themselves or through entities in
which they hold an interest, from disseminating,
directly or
indirectly, false and defamatory allegations pertaining to the first
and second applicants and any of the first and
second applicants'
associates or persons engaged in assisting the second applicant in
the administration of the curatorship of
the third applicant (Sable
Industries Pension Fund (under curatorship)), and in the liquidation
of the fourth applicant (the Power
Pack Pension Fund (in
liquidation)); and
2. Ordered Nash and
Midmacor Industries Limited (the fourth respondent) to obtain the
leave of the Court first, as a prerequisite
to instituting any
further proceedings against the applicants; and
3. Ordered that Nash's
website entitled 'pensionscam' be closed down.
[33]
Nash unsuccessfully sought leave to appeal Matojane J's judgment.
Nash's attempt to appeal Fisher J's judgment also failed.
[34]
The applicants contended that the findings and orders of Matojane J
as between the first applicant and Nash are binding on
me.
Furthermore, that the defences raised by the respondents were the
same as those raised before Matojane J.
[35]
It follows from the stay application and Nash's attempts to appeal
the judgments of both Matojane J and Fisher J, that the
Power Pack
action has been delayed as a result thereof .
[36]
Whilst the applicant argued that the majority of issues in this
matter were
res iudicata
and limited issues remained for
determination by me, the first respondent differentiated the matter
before Matojane J and that before
me. Matojane J interdicted the
publication of matter that was false. That limitation did not appear
from the notice of motion before
me. Hence the respondents argued
that the application should be dismissed as defamation per se is not
wrongful and does not attract
sanction. It must be false in order to
attract an interdict.
[37]
However, it was clearly apparent from a perusal of the applicants'
founding affidavit that the alleged defamatory matter upon
which the
applicants relied for the order sought by them, was described as
being false. In those circumstances, the absence of
the limitation of
false from the notice of motion was not, in and of itself, a reason
to deny the interdict sought.
DEFAMATION
[38]
Turning to the applicants' claims of defamation, the applicants
relied upon various allegedly defamatory statements made against
the
first applicant and others involved in the administration of the
second applicant.
[39]
The
elements of defamation were reiterated by the Constitutional Court in
Le Roux
v Dey
[5]
,
namely;
the wrongful and intentional publication of a defamatory statement(s)
of and concerning the plaintiff.
[40]
Furthermore, at the outset, a complainant must prove only the
publication of defamatory matter concerning the complainant.
Thereafter, wrongfulness and intention on the part of the wrongdoer
are presumed, and, it is for the wrongdoer, wishing to avoid
liability, to raise a defence that excludes either wrongfulness or
intention.
[41]
It is
settled law that it is the defendant who carries the onus to rebut
either or both of the presumptions and that this onus is
a full onus
to be discharged on a balance of probabilities, not a duty to adduce
evidence. A bare denial of the averments will
not suffice. Facts must
be pleaded and proved, sufficient to establish the defence/s raised
by the wrongdoer.
[6]
[42]
A statement
is defamatory of a plaintiff if that statement 'tends' to reduce the
status, good name or reputation of the plaintiff.
[7]
[43]
The test is
objective - the meaning the words conveyed to the reasonable reader
of them.
[8]
[44]
The intention underlying Nash's alleged 'smear campaign' was
evidenced, according to the applicants, from Nash's email
correspondence
dated 17 May 2011 to his attorneys, the subject of
which was 'Situation regarding the agreed approach to the attack on
the Mostert
Curatorship '.
[45]
Nash referred therein to the trial
'being 'the one last fight that
we have. It has to be the watershed fight .... (transforming) the
legal as well as the public perception
landscape The Press will start
to accuse Mostert and Tshidi (of the FSB) of corruption. The NPA will
further lose heart. So I need
a legal platform off which to highlight
the whole sordid matter to the public Our big news is the head of the
FSB plotting with
Mostert to put the CPF into Curatorship. ... this
matter if properly brought to the foreground of the public awareness
will turn
the whole matter around'
[46]
The essence of the email was that the strategy, described by Nash as
'high risk' and 'high publicity', would result in public
perception
of Nash shifting favourably whilst that in respect of Mostert and the
Financial Services Board ('FSB'), would reflect
them as corrupt.
That, in turn, would result in the prosecution authorities failing to
prosecute the matter to finality.
[47]
Matojane J
referred
[9]
to Heaton-Nicolls
JA's finding,
[10]
made with
reference to Nash's email, that Nash engaged in a smear campaign
against Mostert.
[48]
Matojane J
dealt
[11]
comprehensively with
the rights to human dignity and freedom of expression as well as the
defences comprising truth of the information
and the public's
interest in receiving the information, raised by the respondents
before me. I refer to the judgment of Matojane
J in that regard.
[49]
The applicants contended that Nash, having been interdicted by
Matojane J from pursuing the alleged defamatory smear campaign,
engaged the O'Sullivan respondents in order to circumvent Matojane
J's order and continue the interdicted campaign, albeit not
in Nash's
name.
[50]
Nash admitted appointing the fourth respondent to investigate various
allegations of corruption and fraud
inter alia
against Mostert
in his personal and official capacities, during July 2017. Nash
extended the scope of the mandate during January
2019, to include
certain items of correspondence between the second and fifth
respondents in respect of the Old Mutual agreements.
Those items of
correspondence form part of the subject of the applicants claim for
an interim interdict.
[51]
The Old Mutual agreements, (the 'Old Mutual agreements') were
concluded between Old Mutual and the Power Pack Pension Fund
in
settlement of issues arising out of the implementation of the
asset-stripping scheme. Old Mutual made significant monetary payments
to the Power Pack Fund in terms of the Old Mutual agreements, which
form part of the issues in the Power Pack action.
[52]
The applicants contended, and Nash denied, that the purpose of Nash's
mandate to the O'Sullivan respondents was to disseminate
false,
factually incorrect and defamatory statements in respect of the first
applicant to Old Mutual. Furthermore, to investigate
the Old Mutual
agreements as part of Nash's overall strategy to bring about the
termination of the Power Pack action prior to it
being determined by
the courts.
[53]
In my view, whether or not Nash engaged the O'Sullivan respondents
with the purpose claimed by the applicants, in the event
that the
applicants meet the requirements of an interim interdict based on
defamation by the O'Sullivan respondents, that will
suffice to
entitle the applicants to an appropriate order.
[54]
The respondents contended that the defamatory allegations relied upon
by the applicants were old, made previously and that
the forensic
report was already in the public domain.
[55]
The applicants, however, pointed to new allegedly defamatory matter
disseminated by the respondents in correspondence dated
29 March
2019. That correspondence, authored and signed by the second
respondent, was sent on the fourth respondent's letterhead
to an
attorney at Wakefields, Old Mutual's attorneys, ('the addressee '),
the third respondent and various of the attorneys engaged
in these
proceedings. The second respondent therein:
1. Referred to Nash as
'his client';
2. Threatened 'to expose
the dark underbelly of crimes committed by Mostert and his
accomplices over more than a decade';
3. Advised that he
intended to update the forensic report in the event that he did not
receive certain undertakings from the addressee
and Mostert; and
4. Stated that Mostert
'belongs in prison', and. 'extorted' 'pay-outs' from various
insurance companies including Old Mutual.
[56]
Nash conceded having made statements of the nature reflected in the
correspondence abovementioned, previously in respect of
Mostert.
[57]
The O'Sullivan respondents admitted having made certain statements of
a defamatory nature regarding the first applicant. Those
statements,
of a limited nature, were already in the public domain all be it to a
limited extent.
[58]
The O'Sullivan respondents' statements that Mostert committed crimes,
'belongs in prison' and 'extorted' 'pay-outs' serve to
undermine the
first applicant's standing, his status and his good name and
reputation in the ordinary sense of the words. The statements
are
prima facie maligning and defamatory of the first applicant.
[59]
The O'Sullivan respondents argued that the first applicant was a
public official, a liquidator and curator of the second applicant.
As
such, the first applicant was obliged to endure scrutiny and comment
greater than the average individual. Whilst that is undeniably
correct, there is a marked variance between reasonable and legitimate
scrutiny and comment to which a public official is justifiably
subject, and statements such as those made by the O'Sullivan
respondents that the first applicant 'belongs in prison' and
'extorted'
'pay outs' to mention only two instances of unjustifiable
commentary.
[60]
The latter do not comprise reasonable scrutiny and comment but serve
to degrade and reduce the first applicant in the eyes
of those
reasonable readers who come into contact with such statements.
[61]
The statements relied upon by the first applicant are prima facie
defamatory of him, both personally and also professionally
as the
liquidator of the second applicant given the context in-which the
statements were made by the O'Sullivan respondents.
The
'Forensic Report '
[62]
Subsequent to the closure of the website ordered by Matojane J, and
pursuant to Nash's mandate to the O'Sullivan respondents,
the latter
produced the first iteration of the forensic report, the 'draft
report', and thereafter, a 'final report' dated 30 March
2019. The
final report, together with all variations, updates or amendments
thereof, was the subject of prayer 2.2 of the notice
of motion.
[63]
The O'Sullivan respondents distributed either or both of the draft
and final report to various entities, including the Public
Protector,
the EFF and Old Mutual during February and March 2019.
[64]
That publication, together with the withdrawal by the second
respondent of the various undertakings made by him to refrain
from
disseminating the forensic report, resulted in the applicants
launching this application on 2 April 2019.
[65]
The forensic report referred inter alia to the first applicant's role
in concluding the Old Mutual agreements with Old Mutual.
The
applicants contended that the forensic report contained false and
factually incorrect matter defamatory of both Mostert and
Old Mutual,
that it comprised a restatement of averments made previously by Nash
impugning the validity of the Old Mutual agreements.
[66]
The forensic report alleged
inter alia
that the Old Mutual
agreements were unauthorised, extortionate, criminal and invalid. The
applicants argued that the intention underlying
the forensic report
and its publication to Old Mutual was to threaten, intimidate and
extort Old Mutual in respect of the Old Mutual
agreements.
[67]
Old Mutual, however, rejected the allegations made by O'Sullivan,
advising on 22 February 2019, that nothing in the forensic
report
justified an investigation by Old Mutual of the conduct of either Old
Mutual or any of its employees, past or present.
[68]
O'Sullivan's response dated 22 February 2019, to Old Mutual's
rejection of O'Sullivan's allegations, framed as a commitment
to
accuracy, was to advise that it might 're-issue ' the forensic
report.
[69]
Thereafter, correspondence from O'Sullivan to Old Mutual dated 25
February 2019, included statements of the nature made previously
by
Nash that were false, scandalous and defamatory of Mostert and Tshidi
of the FSB:
1.
Mostert
'... is raking in further millions in fees on what can best be
described as 'double-dipping' since Mostert has already received the
funds (and then some) from OM';
2.
'...
the conduct of Tshidi and Mostert over a period of many years, was
nothing short of a double act, which led to the extorting
of hundreds
of millions, which resulted in Mostert paying himself more than R200
million. During the same period Tshidi bought
lots of properties,
which were all paid for in cash'; and
3.
'We
are also mandated to 'discuss a method of finally settling this
matter, which would obviously be off the record and without
prejudice. A settlement would obviously include confidentiality and
the avoidance of potentially costly and time consuming litigation.'
[70]
Averments of fraud and corruption made previously by Nash regarding
Mostert and Tshidi were dealt with by Matojane J, as being
without
any basis in fact and absent any proof thereof whatsoever.
Notwithstanding Matojane J's orders, statements such as those
made by
O'Sullivan in the correspondence of 29 March and 25 February 2019,
continue to be made, and, are notably similar to those
made
previously by Nash.
[71]
O'Sullivan's statements are prima facie defamatory of both Mostert
and Tshidi and serve to substantiate the applicants' argument
that
the O'Sullivan respondents were employed by Nash as a means of
overcoming Matojane J's orders.
[72]
It is axiomatic that the publication of the defamatory statements
made by the respondents in respect of the applicants, the
publication
of the forensic report and the complaint laid by the EFF with the
Public Protector as a result of information furnished
to the EFF by
the first respondent, all served to impede the first applicant in
attending to is professional functions whilst simultaneously
interrupting and delaying the winding up of the Fund, to the
detriment of the beneficiaries of the Fund.
[73]
The harm to the applicants as a result, is manifest.
[74]
Moreover, whilst Nash denied that he instructed the second respondent
or the O'Sullivan respondents to obtain a settlement
from Old Mutual,
O'Sullivan's correspondence of 25 February 2019 revealed the
contrary.
[75]
A clearly discernible link was drawn by O'Sullivan between Mostert's
alleged unlawful conduct regarding the Old Mutual agreements
and Old
Mutual's involvement in the invalidity of those agreements on the one
hand, and O'Sullivan's attempt to procure a settlement
for Nash on
the other.
[76]
The correspondence of 25 February 2019 demonstrated that Nash and the
O'Sullivan respondents were not acting in the 'public
interest' as
argued by them regarding the investigation into the Old Mutual
agreements, or, in compiling the forensic report, but
that they did
so in order to obtain a settlement of the Power Pack action on behalf
of Nash. The latter was motivated by his own
self-interest and not
the public good.
[77]
In addition, turning to the forensic report
per se,
the
purpose of the investigation mandated by the first respondent
comprised an investigation of Mostert in relation to the Power
Pack
agreements, particularly whether those agreements amounted to a loan
or a pay out by Old Mutual. Nowhere in the O'Sullivan
respondents'
description of the purpose of the investigation, did they mention
that investigation being in the interests of the
public in general or
that the investigation would further the public interest.
[78]
In the circumstances, I find that the respondents were not acting in
the public interest in investigating the Old Mutual agreements,
or,
in compiling or publishing the 'forensic report'.
[79]
The applicants highlighted the absence of facts in the forensic
report, and, the falsity of numerous allegations made therein,
framed
as 'findings' by the O'Sullivan respondents, to the effect that the
first applicant breached the law in various respects.
These included
by drawing excessive curatorship / liquidator fees whilst the fees
were advanced, in fact, to pay multiple co-curators
involved in the
curatorships and to cover various disbursements. Furthermore, the
forensic report stated that the Old Mutual agreements
were concluded
as a loan for the purposes of unlawfully and intentionally enriching
Mostert in his personal capacity. Such statements
were shown by the
first applicant to be false.
[80]
The applicants pointed to the 'sting' in the 'forensic report',
including the second respondent's 'finding' that the first
applicant
'extorted' Old Mutual, suspicions that the first applicant was
involved in possible corrupt activities including money-laundering
and guilty of abuse of power, all of which were false.
[81]
The respondents' statements to the effect that Mostert
inter alia
'bullied' Old Mutual into paying over unjustified sums of money
serve to degrade and reduce Mostert in his professional capacity
as
the Fund's liquidator. So too the allegations of possible money
laundering and corruption by Mostert, given that they were alleged
by
the respondents in the context of the Old Mutual agreements. The same
applies in respect of the second respondent's 'finding'
that Mostert
'extorted' Old Mutual and that Old Mutual was too embarrassed to
admit it, hence Old Mutual 'joined forces' with the
first applicant.
[82]
The statements contained in the 'forensic report' are prima facie
defamatory of the first applicant. Thus, the applicants'
allegation
that Nash engaged the O'Sullivan respondents with the purpose of
continuing the defamatory 'smear campaign' against
the first
applicant were justified.
[83]
The applicants admitted that the 'forensic report' had already been
published to various limited parties. The applicants alleged
that
Mostert's reputation had already been damaged and further harm should
be prevented by prohibiting the further publication
of the 'forensic
report'.
[84]
In my view, the fact that the 'forensic report' had already had
limited publication is not a reason to permit it to receive
further
or wider publication, assuming that the balance of the requirements
of an interim interdict based on defamation are met.
As and when
Mostert's alleged criminal conduct in respect of the Old Mutual
agreements is ventilated by Nash in open court in the
Power Pack
action, the alleged criminal activity will no doubt be referenced in
the media. The truth of the issues will be made
clear.
[85]
Various of the statements made in the forensic report and in the
correspondence highlighted by me herein referred to Tshidi
of the
then FSB. Hence, the applicants claimed that the interdictory relief
apply in respect of associates involved in the administration
of the
winding-up of the second applicant.
The
Freedom of Expression Defence
[86]
The O'Sullivan respondents relied upon section 16 of the
Constitution, being the guarantee of the right to freedom of
expression,
including press and media freedom, and, freedom to
receive and impart information, both on the part of the respondents
and the
public.
[87]
The freedom of expression defence was raised by Nash before Matojane
J.
[88]
The O'Sullivan respondents justified their claimed reliance on press
and media freedom with reference to their alleged 'crime
busting'
work, allegedly tracking down and exposing alleged fraud, corruption
and unlawful activities. Whether or not the O'Sullivan
respondents
are involved in activities of such a nature is not an issue to be
determined by me.
[89]
The
O'Sullivan respondents, however, are not members of the press, and,
as stated by Matojane J in respect of Nash,
[12]
are not under any duty to bring the allegations regarding Mostert or
Tshidi to the attention of the public. More importantly, however,
it
follows from the fact that the O'Sullivan respondents (and Nash), are
not members of the press or media, that they are not obliged
to take
steps to establish the truth or otherwise of an intended publication,
prior to publication thereof.
[13]
[90]
Furthermore, I have already found that the O'Sullivan respondents are
not acting in the public interest as regards the Old
Mutual
agreements (the issues in respect of which will be ventilated in the
Power Pack action), or the 'forensic report', but are
motivated by
Nash's personal interests as they relate to the Power Pack action.
[91]
In these circumstances and in the light of the O'Sullivan
respondents' willingness to publish statements such as those
reflected
in the correspondence highlighted herein, there is no basis
to permit Nash or the O'Sullivan respondents to rely on press and
media
freedom .
The
Gagging Order
[92]
The
respondents argued that the interdictory relief, (other than the
Power Pack action interdict sought in prayer 4 of the notice
of
motion), amounted to a gagging order, a restraint on free speech
prior to publication,
[14]
and
ought not to be granted.
[93]
A restraint
imposed prior to publication by the media serves to censor free
speech. A strong presumption against constitutionality
exists. Such
restraints should only be granted where a failure to do so would
result in a substantial risk of grave injustice.
[15]
[94]
The third
respondent relied on the test in
Hix
Networking Technologies v System Publishers (Pty) Ltd
&
Another,
[16]
referred
to in
Midi
Television,
[17]
to the effect that a party seeking such a restraint must show that
the proposed ban is necessary, (meaning that the objective cannot
be
achieved by a reasonably available and effective alternate measure);
that it is as limited in scope, time and content as possible;
and ,
is proportional as between the salutary and deleterious effects of
the ban.
[95]
The respondents argued that the relief claimed by the applicants
failed all three grounds of that test.
[96]
The cases
relied upon by the respondents referred to prior restraints against
the media. The applicants did not seek relief against
the media, nor
are the respondents part of the media or subject to a duty to ensure
that a proposed publication is true and correct
prior to its
publication.
[18]
[97]
The
restraint sought by the applicants regarding future versions of the
forensic report turns on the test for defamation referred
to in
Le
Roux,
[19]
together with the interests of justice as they relate to the
beneficiaries of the Fund.
[98]
Moreover, the forensic report does not contain facts and the
averments that the forensic report does contain are substantially
false. The respondents do not make out a case that the contents of
any future version of the forensic report will be different
or
anything other than substantially untrue.
[99]
The respondents' statements regarding the applicants reflect an
absence of concern on the part of the respondents, not only
with the
truth or correctness of those statements but also with the language
used to express them.
[100]
I have already found, as Matojane J did in respect of Nash, that the
O'Sullivan respondents are not under any duty to convey
the 'forensic
report' or any of the 'facts' alleged in it to the public or the
shareholders or any other stakeholders in or concerning
Old Mutual.
The appropriate forum for the articulation and publication of such
issues is the hearing of the Power Pack action.
Thus, finalisation of
that action, as soon as possible, will serve to ensure that the truth
regarding the alleged unlawful conduct
in respect of the Old Mutual
agreements is told, and that those responsible are brought to justice
as allegedly sought by the respondents.
[101]
The beneficiaries of the Fund are the parties most likely to
suffer from any future delays in finalising the Power Pack action. It
Is likely, given the background and factual matrix to this matter,
that any publication of a future version of the forensic report
by
the O'Sullivan respondents pending finalisation of the Power Pack
action, will result in further litigation and consequential
delays to
that action. Any such delays will serve to prejudice the
beneficiaries of the Fund, and, are inimical to the interests
of
those beneficiaries as well as to the administration of justice, and,
ought not to be permitted.
[102]
The further consumption of scarce judicial resources by
litigation ancillary to the Power Pack action should not be
permitted.
[103]
The Old Mutual agreements are issues in the Power Pack action.
They will be dealt with in those proceedings. In the light of the
stated purpose of Nash's smear campaign, to influence the prosecution
of the Power Pack action, publication of the forensic report
or any
future version thereof should not be permitted. Nor should
publication of the correspondence between the second and fifth
respondents be permitted.
[104]
As to the O'Sullivan respondents' argument that no case was
advanced by the applicants that the defamatory statements already
made
by the O'Sullivan respondents regarding the first applicant were
likely to be repeated, the O'Sullivan respondents' case contained
a
marked inconsistency.
[105]
The O'Sullivan respondents contended, on the one hand, that the
applicants failed to make a case that the O'Sullivan respondents
would republish the defamatory statements already made by them
regarding the first applicant, whilst simultaneously insisting,
on
the other hand, that the alleged 'facts' gleaned from their alleged
investigation into the Old Mutual agreements and the forensic
report
ought to be brought to the attention of the general public and the
Old Mutual shareholders in particular.
[106]
Hence, the O'Sullivan respondents themselves sought the publication
of the forensic report. Additionally, the second respondent
withdrew
the undertakings made previously by him to refrain from disseminating
the forensic report, and, the O'Sullivan respondents
threatened to
republish the forensic report. Old Mutual was informed on 22 February
2019, that they might 're-issue' the forensic
report, and, they
reiterated their intention to update the forensic report absent the
second respondent receiving certain undertakings,
on 29 March 2019.
[107]
Maier-Frawley J's interim order operated to prevent any republication
of the forensic report in the interim.
[108]
In the circumstances, I reject the respondents' argument that there
is no case that the O'Sullivan respondents will republish
the
defamatory statements already made by them regarding the applicants.
The
Power Pack action interdict (Prayer 4 of the notice of motion).
[109]
The applicants drew attention to the correspondence of Walkers
Attorneys, dated 25 March 2019, in which Walkers stated
inter alia
that Old Mutual considered the two iterations of the forensic
report to constitute harassment, intimidation and threats of Old
Mutual
and its employees, and, that the forensic report comprised an
attempt to extort Old Mutual or otherwise unlawfully obtain some
advantage for the first respondent in respect of the Power Pack
action.
[110]
The applicants sought the interdict in prayer 4 in order to prevent
the O'Sullivan respondents from intimidating potential
witnesses who
might be called to testify in the Power Pack action. The applicants
referred to the extreme steps taken by O'Sullivan
in an alleged
attempt to intimidate one Ms June Marx ('Marx'), who switched
alignment from the first respondent to the applicants.
[111]
The applicants alleged that the first respondent failed to furnish
any facts based upon which the relief claimed in prayer
4 of the
notice of motion would impede the first respondent's preparation or
defence in respect of the Power Pack action, or cause
any prejudice
to his legal team.
[112]
The first respondent argued that the relief was not about defamation
but about interdicting the first respondent from utilising
the
forensic report either in preparation of the Power Pack action or in
the trial itself. The only 'carve out' according to the
first
respondent related to steps sanctioned by the Uniform Rules of Court
and the
Superior Courts Act 2013
. The Uniform Rules of Court do not
deal with how litigants' interview or communicate with witnesses. The
Superior Courts Act does
so in so far as it deals with subpoenas.
[113]
Prayer 4 of the notice of motion, according to the first respondent,
ignored how trials are prepared and attempted to limit
the first
respondent's right to call witnesses at the trial, including
preventing the first respondent from utilising a forensic
investigator.
[114]
The first respondent argued that the relief claimed would result in
the first respondent having to subpoena Old Mutual and
any witnesses
with whom it sought to communicate.
[115]
In the light of the second respondent's correspondence to Old Mutual
dated 25 February 2019 and Old Mutual's correspondence
of 25 March
2019, the first respondent will have to subpoena Old Mutual and any
employees, former employees, office bearers, directors
or other
witnesses of Old Mutual. Old Mutual is entitled to make that choice
and the respondents are obliged to respect Old Mutual's
choice
accordingly.
[116]
As regards the O'Sullivan respondents' interaction with Marx, the
second respondent's email correspondence of 5 May 2018 to
Marx, the
subject of which was 'Fraud & corruption carried out by Mostert
and others', stated inter alia:
'... .our planned
engagement with you was to help you... your mother would not be able
to save you from being struck off as an attorney,
or create
alternative income streams after you have been sequestrated. Or even
do jail time for you, in the event that you were
found guilty of the
serious offences you are accused of.
My suggestion: ... Meet
with us together with the Public Protector and reverse the lies that
have been spun to them by Mostert,
Ofcourse you don't have to come to
us, we have no legal authority to demand that you do. But time is
running out and you may find
that by the time you do want to meet
with us, we don't want to talk to you'.
[117]
The second respondent detailed therein the alleged incriminating
evidence to which the O'Sullivan respondents had access regarding
Marx, the implication being only too clear that the O'Sullivan
respondents would utilise such information to achieve their purpose
no matter the cost to Marx.
[118]
The second respondent's email correspondence of 19 June 2018 to Marx,
the subject of which was 'Fraud & Corruption carried
out by
Mostert and others', stated:
'Being labelled dishonest
by the State, is surely something you would want to share with the
Law Society June? If I was you, I would
attempt to get my version of
events in front of the Law Society before someone else does and
accuses you of unbecoming conduct.
Maybe now, you would consider
coming clean at last?'
[119]
The second respondent's email correspondence of 29 March 2019 to
Marx, the subject of which was the forensic report of 8 February
2019, stated:
'Looks like the chickens
are coming home to roost now. When Mostert gets fired, which he will,
and a new curator is appointed, I
will then push for you and him to
be arrested and for you to pay the R17m you currently owe. The wheel
turns June! The truth will
out.'
[120]
It is manifest that the second respond's persistent threats were
intended to intimidate Marx as regards the Power Pack action.
The
second respondent threatened Marx with a criminal record and
incarceration, threatened her professional reputation and future
financial livelihood inter alia by way of sequestration, and
threatened to utilise such information as was available to the
O'Sullivan
respondents to achieve their own ends. Such ends being
interference in the Power Pack action aimed at bringing about its
termination
prior to being determined by the courts, as was the
purpose of the smear campaign.
[121]
The applicants' potential witnesses are not obliged to endure
pressure, intimidation, harassment and threatening conduct, all of
which is unlawful, such as that directed by the second respondent
against Marx.
[122]
Nor are the applicants obliged to suffer the resultant
interference with the applicants' potential witnesses in the trial of
the
Power Pack action, and, the consequent interference in the
applicants' rights so a fair trial.
[123]
In these circumstances, there is every reason to require that
that the respondents not be permitted to deal with the applicants'
potential witnesses in the Power Pack action other than as parties to
the litigation as claimed by the applicants in prayer 4.
[124]
Whilst Old Mutual and Marx are entitled to approach the court for the
appropriate relief, the applicants are well within their
rights to
protect their interests in a fair trial, including preventing
interference with their potential witnesses. Old Mutual
employees and
Marx are potential witnesses in the Power Pack action. Thus, the
respondents are not entitled to attempt to engage
with either of them
or any other of the applicants' potential witnesses in the public
arena, or, to attempt to threaten or intimidate
them or any other of
the applicants' potential witnesses.
[125]
The respondents are obliged to respect the wishes of those potential
witnesses who do not wish to communicate with the respondents.
That
includes Old Mutual, its employees and officers as evidenced by the
letter of Walkers attorneys dated 25 March 2019, annexure
'FA9' to
the founding affidavit.
[126]
So too, the applicants cannot preclude the first respondent from
using a forensic investigator, or prevent the forensic investigator
from interviewing witnesses assuming that the potential witnesses are
amenable to such interviews. Nothing compels a potential
witness to
undergo an interview with the forensic investigator or any of the
respondents in the event that that witness does not
wish to do so.
[127]
I did not understand prayer 4 of the notice of motion to prevent the
respondents from utilising such documentary evidence
as is relevant
to the issues at hand in the trial of the Power Pack action,
including the forensic report. In the event that the
applicants
object to a document to be used by the first respondent at the trial,
the determination of that issue would be a matter
for the trial
court.
[128]
The Old Mutual agreements form part of the issues for determination
in the Power Pack action, and are obviously relevant to
those
proceedings. That, however, does not mean that the forensic report in
and of itself is relevant to those proceedings. The
first respondent
ought to be in a position to furnish the relevant evidence regarding
the alleged corruption and unlawful conduct
in respect of the Old
Mutual agreements himself, thus rendering the forensic report
irrelevant.
[129]
The false averments contained in the forensic report may result,
however, in the use of the forensic report for purposes of
the Power
Pack action not serving the public interest. That, however, is not an
issue to be determined by me.
[130]
In my view, prayer 4 of the notice of motion does not prevent the
first respondent from disclosing or using or referring to
the
forensic report in the Power Pack action. However, the respondents
are not permitted to deal with the forensic report by publication
thereof, or, in the public arena.
[131]
The O'Sullivan respondents supported the arguments made on behalf of
the first respondent regarding prayer 4 of the notice
of motion.
[132]
The Requirements of the interdictory relief
[133]
As to the requirements of the interdictory relief, the first
respondent argued that the effect of the interdictory relief
sought
by the applicants was final. Hence, the test to be applied was that
in respect of final relief.
[134]
In my view, the applicants met the requirements of the more stringent
test utilised for final relief, as well as the lesser
requirements of
an interim interdict. In the light of the first respondent's
contentions in this regard, I deal with the requirements
of a final
interdict.
[135]
The applicants established a clear right not to be falsely defamed as
was done by the respondents in the correspondence referred
to herein,
and, in terms of the forensic report. The applicants also have a
clear right not to be impeded in finalising the winding
up of the
second respondent. This latter right is in addition to the rights of
the beneficiaries that the winding up proceed to
finality as
expeditiously as possible.
[136]
The first applicant has already suffered harm to his personal and
professional reputation by virtue of the false defamatory
statements
already in the public domain. So too the associates involved in the
winding up of the second respondent. The fact that
a degree of harm
has already been sustained, does not justify further or future
publication of false defamatory material regarding
the first
applicant or others involved in the winding up of the second
applicant.
[137]
As stated by me afore, a reasonable apprehension that the respondents
will continue with the publication of false defamatory
statements
against the applicants as well as continuing with the intimidation of
the applicants potential witnesses in the Power
Pack action with the
intention of disrupting those proceedings, is more than sufficiently
evident from the respondents' own case
and the correspondence
authored by the O'Sullivan respondents.
[138]
An award of damages will not suffice as an alternate remedy
sufficient to protect the applicants' rights not to be falsely
defamed and the second applicant's interest in finalisation of the
liquidation of the Fund. There is no alternate remedy available
to
the applicants.
[139]
The date of this judgment will be 28 July 2020.
[140]
It is appropriate that the costs of this matter, including the costs
of two counsel where so utilised by the applicants, follow
the
outcome on the merits. Additionally, given the contents of this
judgment, those costs should be ordered on the scale as between
attorney and client.
[141]
The reserved costs of the interim application before Maier-Frawley J
will be costs in the cause of this application.
[142]
By virtue of the aforementioned, I grant the following order:
1. An interim interdict,
interdicting and restraining the first, second, third and fourth
respondents, ('the first to fourth respondents'),
either themselves
or through entities in which they hold an interest, from:
1.1
Publishing, causing to be published or in any other manner
disseminating or causing to be disseminated to any person or to the
public whether in the media and/or on social media platforms or
otherwise, any false defamatory allegations pertaining to the first
and / or second applicants and of any of the first and / or second
applicants' associates or persons engaged in assisting the second
applicant with the administration of the liquidation of the second
applicant; and
1.2
Publishing, causing to be published or in any other manner
disseminating or causing to be disseminated to any person or to the
public whether in the media and/or on social media platforms or
otherwise, the fourth respondent's 'forensic report' compiled by
the
second and third respondents dated 30 March 2019 or any variations,
updates or amendments thereof and the contents of any correspondence
between the second and fifth respondents.
2. The interim interdict
referred to in paragraph 1 above will operate pending the final
determination of action proceedings to
be instituted by the
applicants, within one month of the date of this order, for damages
for defamation against the first to fourth
respondents together with
final interdictory relief prohibiting the first to fourth respondents
from continuing the publication
of false defamatory statements of and
concerning the first applicant.
3. Failure by the
applicants to institute the action proceedings referred to in
paragraph 2 above within the stipulated time period,
will result in
the automatic lapse of the interim interdict referred to in paragraph
1 of this order, and such interim interdict
will be of no further
force or effect.
4. Pending the final
determination of the Power Pack action proceedings pending under case
number 09/50684 in this Court ('the Power
Pack action'), an interim
interdict, interdicting and restraining the first to fourth
respondents, either themselves or through
entities in which they hold
an interest, from taking any actions in respect of potential
witnesses of the applicants in the Power
Pack action (other than as a
party to the Power Pack action In terms of the Uniform Rules of Court
and
Superior Courts Act 2013
) including but not limited to directly
corresponding and engaging with parties who may be required to give
evidence in the action,
including but not limited to the fifth
respondent or any of its officers or employees, and one June Marx.
5. The reserved costs of
the interim proceedings before Maier-Frawley J during April 2019, are
costs in the cause of this application.
6. The costs of this
application including the costs of two counsel where so utilised by
the applicants are to be paid by the first
t-o fourth respondents
jointly and severally, the one paying the others to be absolved, on
the scale as between -attorney and client.
___________________________
A
A CRUTCHFIELD
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the Applicants: Mr JG Wasserman SC and
Mr
G Rome SC.
Instructed
by: Assheton-Smith Ginsberg Incorporated.
Counsel
for the First Respondent: Mr A Subel SC and Ms S Pudifin-Jones.
Instructed by: Ian Levitt
Attorneys.
Counsel
for the Second, Third
and
Fourth Respondents: Mr A Katz SC and Mr D Vetten.
Instructed
by: Darryl Furman & Associates Attorneys
Date.
of the application: 30 July 2019·.
Date of Judgment: 28 July
2020
[1]
Matojane J judgment [4].
[2]
Matojane J judgment [5].
[3]
Antony Louis Mostert and others v Simon John Nash and others case no
34664/2017 ('Matojane J').
[4]
Simon John Nash and Midmacor Industries Limited v Director of Public
Prosecutions and others case number 22324/17.
[5]
Le Roux v Dey
2011 (3) SA 274
(CC) ('Le Roux') para 84.
[6]
Id para 85.
[7]
Le Roux v Dey
2010 (4) SA 210
(SCA) para 8.
[8]
Id para 15.
[9]
Note 1 above para 70.
[10]
Executive Office of the Financial Services Board v Cadac Pension
Fund; In re: Executive Officer of the Financial Services Board
v
Cadac Pension Fund and Others as referenced by Matojane J at para
70.
[11]
Id paras 53 - 74.
[12]
Matojane J note 3 above at para 63.
[13]
Id.
[14]
Currie & De Waal The Bill of Rights Handbook 6 ed 374
[15]
Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecution
s (Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) ('Midi Television’ at
para 15 ; Print Media South Africa v Minister of Home Affairs 201
2
(6) S A 443
(CC) at para (46).
[16]
[1996] ZASCA 107
;
1997 (1) SA 391
(A) at 4 02; Midi Television id at para 15.
[17]
Midi Television note 14 above at para 15.
[18]
Matojane J at para 63.
[19]
Le Roux note 4 above at para 84.