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2021
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[2021] ZAGPJHC 898
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Mostert and Others v Nash (22939/20) [2021] ZAGPJHC 898 (21 April 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE
NO: 22939/20
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ANTONY
LOUIS MOSTERT
First
Applicant
ANTONY
LOUIS MOSTERT
(In
his capacity as curator of the
Third
Applicant and in his capacity
As
liquidator of the Fourth Applicant)
Second
Applicant
SABLE
INDUDTRIES PENSION FUND
(Under
curatorship)
Third
Applicant
POWER
PACK PENSION FUND
(In
liquidation)
Fourth
Applicant
And
SIMON
JOHN NASH
Respondent
J
U D G M E N T
KEIGHTLEY,
J
:
INTRODUCTION
1.
This is the latest in a long line of judgments in the ongoing
litigation saga involving these parties. The main applicant
on
this occasion is Mr Mostert, both in his personal capacity, and in
his capacity as curator of the Sable Industries Pension Fund
(“the
third applicant”) and the liquidator of the Power Pack Pension
Fund (“the fourth applicant”). The
respondent is Mr Nash.
He was a trustee of the Sable Industries Pension Fund (“the
Sable Fund”). Both it, the Power
Pack Pension Fund (“the
Power Pack Fund”), and other pension funds became embroiled in
what has been referred to as
the “Ghavallas scheme”. This
involved, it is alleged fraudulently, removing the surplus from
pension funds through
simulated transactions. Mr Nash currently
stands accused in the Specialised Commercial Crimes Court on charges
of fraud, theft
and money laundering for his alleged part in the
scheme.
2.
All of this is by way of broad background. The nub of the present
application lies in what Mr Mostert says is an ongoing smear
campaign
by Mr Nash and some associates against, among others, Mr Mostert. Mr
Mostert says that the motive behind the smear campaign
ultimately is
to interfere with Mr Nash’s criminal prosecution. However, one
of the consequences is to damage Mr Mostert’s
good name and
reputation.
3.
The
existence of the smear campaign is not a new averment.
It
was central to at least two previous judgments in this court.
On
14 August 2018, the learned Matojane J handed down an order and
judgment
[1]
in an application
brought by Mr Mostert against Mr Nash (“the Matojane judgment
or order”).
The
Matojane order, among other things, directed that Mr Nash (and
identified others):
“
either
themselves or through entities in which they hold interest (sic), are
interdicted from disseminating, directly or indirectly,
false and
defamatory allegations pertaining to (Mr Mostert in his personal and
nomine officio capacity), associates or persons
engaged in assisting
(Mr Mostert) in the administration of the curatorship of the (Sable
Fund) and in the liquidation of the (Power
Pack Fund)”.
4.
On
28 July 2020, the learned Crutchfield AJ
in
the matter of Mostert and Another v Nash and Others
[2]
,
handed
down an order and judgment (“the Crutchfield judgment or
order”) against Mr Nash, Mr Paul O’Sullivan, Mr
O’Sullivan’s company, Paul O’Sullivan &
Associates Proprietary Limited, and one of its associates, Ms Trent.
That order, among other things, interdicted these respondents from
making defamatory allegations on similar terms to that set out
in the
Matojane order.
In
addition, it interdicted them from:
“
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 platforms or otherwise, (Paul O’Sullivan
& Associates’ Proprietary Limited)
‘forensic report’
compiled by (Mr O’Sullivan and Ms Trent) dated 30 March 2019 or
any variations, updates or
amendments thereof and the contents of any
correspondence between Mr O’Sullivan and the (Old Mutual Life
Insurance Company
(South Africa) Limited).”
5.
Leave to appeal against the Matojane judgment and order was refused.
At the time that this application was heard, an application
for leave
to appeal against the Crutchfield judgment was pending. I believe
that the application was recently dismissed. I do not
know whether Mr
Nash has filed a petition for leave to appeal to the Supreme Court of
Appeal (“SCA”)
6.
In this application Mr Mostert asserts that Mr Nash should be held in
contempt of the Matojane order. The alleged contempt arises
from
statements Mr Nash made in an email to a journalist, Mr Beamish, on
30 August 2020. Mr Mostert says that
these
statements are false and are defamatory of him, and that in making
the statements Mr Nash breached the interdict granted by
Matojane J.
7.
For his part, Mr Nash denies that the statements contained in the
email are false and defamatory. If they are not false and defamatory,
he cannot be held to be in contempt of the Matojane order. Mr Nash
contends further that even if the statements are found to be
false
and defamatory, he had no intention to act in breach of the Matojane
order, and so, for this reason too, he cannot be found
to be in
contempt.
THE
EMAIL TO MR BEAMISH
8.
The Crutchfield judgment and order was handed down on 28 July 2020.
On 29 August 2020, Mr Beamish, who is said to be an investigative
journalist (and who is not a party to these proceedings) wrote an
email to Mr Nash in the following terms:
“
Dear
Mr Nash
In
1999 Mr O'Sullivan was convicted of:
(i).
Common Assault - upon his wife.
(ii).
Contempt of Court for failing to comply with a court order - a
domestic violence interdict obtained by his wife;
(iii).
Malicious Injury to property; and
(iv).
Crimen injuria. He was fined R1,500-00. The docket reflecting the
convictions and sentence is attached.
I
will be covering matters consequent upon the recent judgment of
Crutchfield AJ and I wish to know- for publication —whether
Mr
O'Sullivan disclosed to you his criminal convictions at the time at
which you retained the services of the O'Sullivan respondents?
Furthermore, has he indicated to you whether these convictions were
disclosed to the Private Security Industry Regulatory Authority
(PSIRA) at the time when he joined it - a relatively short time
period after he was convicted?
These
questions are relevant to the publication of news stories about the
interdict matter and any sequelae. I wait to hear from
you.
Yours
sincerely Tony Beamish”
9.
Mr Nash forwarded the email to Mr O’Sullivan, who responded to
Mr Beamish. His response is not material to this application.
Mr
Nash’s response is. It was copied to Mr O’Sullivan and to
a Wynand Grobler of the television programme, Carte Blanche.
It read
as follows:
“
Mr
Beamish,
Firstly
the matter has been appealed and as such is of no legal consequence.
All Appellants are sure that
when the matter goes to the SCA that
Mostert actions
(sic) will once again be over turned— as
they always are at the SCA
.
I
am sure you also know of ( but failed to report on )
the very
recent judgment by
Judge Wanless where Mostert tried to gag
the public protector and the EFF. He
failed and was castigated
by the judge for ‘mulching pension fund money’ for his
own personal vendetta
. By the way, it should certainly be of
interest to you that
Mostert has paid himself personally more in
fees than the total he has ever paid to
the ‘poor
pensioners / fund members’ who supposedly he is so concerned
about
. Clearly, it seems that he sees himself personally is worth
more (sic) than the total sum of all ‘poor pensioners/members’
who were paid any money in surplus distributions.
What
Mostert is attempting to gag is a Report by P O’Sullivan
Associates
where
a
secret and
Confidential Agreement between Mostert, Old Mutual and Mr Tshidi of
the FSB agreed to have Old Mutual pay Mostert R106m in highly
questionable
circumstances
. The Report is
already publically (sic)
distributed-----------------------------------------------------
(sic)
to
the knowledge of Mostert. This was in 2008 and only recently was
Mostert forced by subpoena to disclose it. In the light of current
questions on public officials / corporate morality it seems this is
an appropriate subject to be publically (sic) aired and questioned
and the truth to be exposed.
Apart
from this, I note that you have now stopped sending the numerous lewd
and disgraceful secret g-mails to myself and wife.”
10.
I have underlined the portions of the email to identify those
statements that Mr Mostert contends are false and defamatory and
in
breach of the Matojane order.
11.
The circumstances of the case require a two-stage inquiry. Although,
ultimately, I must determine whether Mr Nash should be
committed for
contempt, first I must determine whether the statements are false and
defamatory. It is only if they are false and
defamatory that the
second stage of the inquiry is triggered: this involves a
determination of whether a case for contempt of the
court order has
been established. Consequently, this judgment first considers the
question of the false and defamatory nature of
the statements, and
thereafter considers the question of contempt.
GENERAL
LEGAL PRINCPLES APPLICABLE TO DEFAMATORY STATEMENTS
12.
The parties are agreed that the Motojane order interdicts Mr Nash
from disseminating false and defamatory allegations about
Mr Mostert
in both his personal and
nomine officio
capacities.
13.Defamation
is the wrongful and intentional publication of a defamatory statement
concerning the plaintiff.
The
statement need not be false (although in this case, it must in
addition be shown to be false).
Once
a plaintiff establishes that a defendant has published a defamatory
statement concerning the plaintiff, it is presumed that
the
publication was both unlawful and intentional.
The
defendant may then raise a defence to rebut the unlawfulness or the
intention.
The
most commonly raised defences to rebut unlawfulness are that the
publication is true and in the public benefit, or that the
publication constituted fair comment.
[3]
14.The
onus on a defendant to rebut one or the other presumption (of
unlawfulness or intention) is a full onus: it is not only the
duty to
adduce evidence, but instead is an onus that must be discharged on a
preponderance of probabilities.
A
bare denial is not sufficient.
The
defendant must plead and prove facts sufficient to establish the
defence.
[4]
15.
In order to determine whether a statement is defamatory, regard must
be had to its meaning.
The
primary meaning of a statement is the ordinary meaning given to the
statement in context by a reasonable person.
[5]
The
test for determining the ordinary meaning of the statement is
objective, and not subjective.
Thus,
the court is not concerned with the meaning the maker of the
statement intended to convey, or the meaning given to it by the
persons to whom it was directed.
The
test is what meaning the reasonable reader of ordinary intelligence
would attribute to the statement.
It
is understood that this reader would understand the statement in its
context, and that she would have regard not only to what
is expressly
stated, but what is implied.
[6]
16.If
the statement is ambiguous in the sense that it can bear one meaning
that is defamatory and others that are not, the normal
standard of
proof in civil cases is applied.
If
the defamatory meaning is more probable than the other, the
defamatory meaning will have been established as a matter of fact.
If
the non-defamatory meaning is more probable, then the plaintiff will
have failed to satisfy the onus she bears.
[7]
17.
Once
the meaning of the statement has been established, the court moves to
the next stage of the inquiry, which is to determine
whether the
meaning is defamatory. The question is whether it is likely to injure
the good esteem in which the plaintiff is held
by the reasonable or
average person to whom it is published.
[8]
Statements
attributing guilt of dishonest, immoral or dishonourable conduct to a
plaintiff are common
examples
of
statements
of
this
nature.
So
too
are
those
that
belittle
a
plaintiff or that render her less worthy of respect by her peers.
[9]
The
court does not consider evidence of whether an actual observer
thought less of the plaintiff.
The
test is rather whether it is more likely, or more probable than not,
that the statement will harm the plaintiff.
[10]
ARE
THE STATEMENTS COMPLAINED OF DEFAMATORY OF MR MOSTERT?
The
statements pertaining to the judgment of Wanless AJ
18.
Mr
Mostert’s first complaint is directed at the statements made by
Mr Nash in connection with the judgment of the learned
Wanless AJ
[11]
(“the Wanless
judgment”).
They
appear as the second set of underlined wording in the email set out
above.
Mr
Nash told Mr Beamish that the Wanless AJ judgment dealt with an
attempt by Mr Mostert to “
gag
the public protector and the EFF
”
.
Further
that Wanless AJ “
castigated”
Mr
Mostert for “
mulching
pension fund money”
for
his “
own
personal vendetta
”
.
19.
Mr Mostert says that this statement conveys to the reasonable reader
that the learned Wanless AJ castigated him for inappropriately
using
pension fund money for his own personal vendetta. Also that he tried
to gag the Public Protector and the Economic Freedom
Fighters
(“EFF”), when in fact he had sought the legal remedy of
an interdict.
20.
As to the first part of the statement, Mr Mostert says that it is
false. Mr Nash put the
term
“
mulching
pension fund money
”
in
inverted commas, indicating that the learnedActing Judge had used
this term in his judgment. It is common cause that he did not
use
this phrase.
21.
The judgment of Wanless AJ dealt with the costs of an urgent
application for an interdict that Mr Mostert had instituted against
the Public Protector and the EFF. He sought to interdict the Public
Protector from publishing her report after the EFF had lodged
with
her a complaint against Mr Mostert. The complaint was based on the
O’Sullivan report. However, after instituting the
application,
Mr Mostert failed to proceed with it. He eventually withdrew it
without tendering to pay costs. The issue of costs
was brought for
determination before Wanless AJ.
22.
Wanless AJ criticised Mr Mostert for the way in which he had
litigated the matter (or failed to progress the litigation for
that
matter). He was particularly unimpressed that Mr Mostert had
withdrawn the application without tendering costs. He said that
he
did not understand why the Sable and Power Pack Funds had been joined
in the litigation, and he found that: “…
the pension
funds and members thereof
should not
be
mulcted in costs
” (my emphasis). On this basis he found
that Mr Mostert should pay the costs in his personal capacity. Mr
Mostert was a litigant
in both his personal and
nomine officio
capacities in the matter.
23.
It is plain that the Wanless AJ judgment did not say that Mr Mostert
was “
mulching pension fund monies
”. This was an
obviously false statement to attribute to the learned Acting Judge.
It is also incorrect that the application
was an attempt to “
gag
”
the Public Protector and the EFF. The EFF was cited as a party in the
application, but no relief was sought against it.
In the Crutchfield
application, Mr Nash argued that Mr Mostert was attempting to “
gag
”
him and the other respondents. The Crutchfield judgment made it clear
to Mr Nash that a “
gagging order
” in legal terms
applies to interdictory relief sought against the media.
Whether or not it has a broader meaning, as
Mr Nash argued before me,
is not material. This is because the real mischief of Mr Nash’s
statements about the Wanless judgment
is not to be found solely in
his use of the term “
gag
”.
24.
Mr
Nash went further to say that Wanless AJ had found that Mr Mostert
was “
mulching
pension fund money
”
for
his own personal vendetta.
Mr
Nash did not use quotation marks for the latter part of his
statement.
However,
the language he chose is explicit.
No
language of this kind is to be found in the Wanless judgment.
What
Wanless AJ in fact found was that the Public Protector’s notice
that she would be carrying out an inquiry and publishing
a report
applied only to Mr Mostert in his personal capacity.
[12]
Thus,
he found that the pension funds had no real interest in the matter.
For
this reason they should not be mulcted in costs and only Mr Mostert
in his personal capacity should be ordered to pay the costs.
25.
Mr Nash submitted that the only inference to be drawn from the
Wanless judgment was that the court had in fact castigated Mr
Mostert
for pursuing his own personal vendetta against the Public Protector
and the EFF. That this is not so is clear from my explanation
of the
relevant portion of the judgment above.
26.
Read
together the two parts of the statement clearly convey to the
ordinary reasonable reader that Wanless AJ found that Mr Mostert
was
using pension fund monies inappropriately for his own personal
vendetta.
In
other words, that he abused monies entrusted to him in his role as
curator or liquidator to effect personal vengeance against
those he
considered to be his enemies.
This
is what a personal vendetta entails.
It
is a private feud in which vengeance is sought, or a prolonged and
bitter feud.
[13]
Mr
Nash expressly stated that the vengeance exacted was personal to Mr
Mostert.
27.
Plainly, the statement is defamatory. It implies immoral,
dishonourable and unprofessional conduct on the part of Mr Mostert.
The effect would likely be to lower his esteem as a curator and
liquidator. This would affect his good standing in both his
nomine
officio
and personal capacities.
28.
It follows that the statement is both false and defamatory.
29.
But this is not the end of the matter. Mr Nash says that in making
the statement he only expressed his genuine and
bona fide
reading
of the Wanless judgment , and that his statement amounts to fair
comment.
30.The
defence of fair comment has four elements.
It
must be a comment and not a statement of fact; it must be fair in the
sense that it must be an honestly held opinion; the facts
on which it
is based must be true and must be clearly stated; and it must relate
to a matter of public interest.
[14]
31.
This defence cannot hold. The statement by Mr Nash was not in the
nature of a comment. He stated, as a fact to Mr Beamish, what
Wanless
AJ had found in his judgment. This is indicated quite clearly by the
quotation marks he used. His statement was not in
the nature of a
comment at all. In addition, as I have already found, it was not
true. Consequently, the elements of the defence
are not met, and Mr
Nash has failed to satisfy the onus he bears to show that the
statement was not unlawful.
32.
In making the statement, Mr Nash breached the Matojane order. I
consider later whether the breach is such as to justify
a finding
that he must be held in contempt of court.
The
statement pertaining to Mr Mostert’s fees
33.
In this part of the email, Mr Nash said that: “
Mostert has
paid himself personally more in fees than the total he has ever paid
to the ‘poor pensioners / fund members’
who supposedly he
is so concerned about.”
34.
Mr Mostert asserts that the statement gives the impression that he
has paid himself fees unlawfully to the detriment of the
pensioners
for whom he has no regard. He says that this is untrue and is
defamatory. He has recovered collectively an amount of
R1 billion to
date, and over 14 years, for the affected pension funds. R800 million
of this has been allocated for distribution
to former members and
R350 million has been paid, with approximately R200 million more in
the process of being paid. He says that
the balance will be paid as
and when beneficiaries are traced. Mr Mostert does not disclose in
his founding affidavit the fees
that have been paid in respect of the
curatorship and liquidation. However, he says that they are
prescribed in terms of orders
of court and are regulated and
monitored by the Financial Sector Conduct Authority (“FSCA”).
35.
In his answering affidavit, Mr Nash says that Mr Mostert is using the
application as a continuation of his attempt to prevent
the truth
about his fees as a curator of the funds from being brought to the
public attention, and, in particular, the thousands
of members and
pensioners who have not been paid. He states that Mr Mostert has
never disclosed his fees. The only time he has
done so was in 2011
when the Financial Services Board (“FSB”) answered
questions in Parliament. However, he says that
it is not in dispute
that Mr Mostert earned “
hundreds of millions of rands
”
in curator fees up to 2011. He says that the pensioners and the
public have an interest in knowing what fees have been paid,
and that
he ought to be permitted to ventilate the issue without fear of
reprisal from Mr Mostert for disclosing “information
relating
to suspected or alleged irregular conduct”.
36.
In addition, Mr Nash contends that in order to show the falsehood of
his statement regarding the fees, it was required of Mr
Mostert to
disclose the exact amount of fees he has earned. Without a detailed
disclosure in this regard, Mr Nash says his statement
cannot be shown
to be false.
37.
Further, he says the statement he makes does not convey the meaning
that Mr Mostert has paid himself fees unlawfully, as contended.
It is
a simple statement of fact, namely, that Mr Mostert has been paid
more in fees than the pensioners have been paid. He goes
on to say
that based on information in the public domain, he genuinely believes
what he has stated. He points to the Public Protector’s
report,
which was the subject matter of the Wanless judgment on costs, as
well as a report in the Daily Maverick titled “
Public
Protector tears into Financial Services Board and Former Boss Dube
Tshidi vindicating EFF’s Julius Malema
”. The article
deals, in part, with the Public Protector’s findings regarding
the fees issue.
38.In
order to determine whether the statement in the email to Mr Beamish
is false and defamatory, it must first be established
what it means,
that is, what is its ordinary meaning (both express and implied) to
the reasonable reader. Is its meaning simply
a statement of the fact
that Mr Mostert has been paid fees in excess of the amounts that have
been paid to pensioners? If this
is so, then Mr Nash’s
submissions have merit.
39.
In determining the ordinary meaning, regard must be had to both
what the statement expresses and implies. Mr Nash’s
statement
is not a simple statement of fact. This is clear from the words used
and their implication. Mr Nash says Mr Mostert has
paid himself
“
personally”
more in fees that the total ever paid
to the “
poor pensioners/fund members who supposedly he is so
concerned about”
. The clear implication here is that
Mostert of his own accord has paid fees to himself to the detriment
of the fund members or
pensioners. Further, that in doing so he has
shown no concern for those whose interests he is required, as
curator, to safeguard.
40.
It is so that Mr Nash does not expressly say that Mr Mostert has
acted unlawfully. But if one considers what is stated, the
implication is certainly that Mr Mostert has acted contrary to his
obligations as curator, which are legally binding on him. As
I
indicated earlier, Mr Nash says expressly in his answering affidavit
that the issue is one “
relating to suspected or alleged
irregular conduct
”. In other words, on Mr Nash’s own
version, the statement implies that Mr Mostert is acting irregularly
and,hence,
unlawfully as a curator in the fees he has been paid.
41.
For a curator to be said to have acted outside of his legal
obligations and in his own personal interests, to the detriment
of
those whose interests he is lawfully required to protect obviously
reduces the esteem in which he is held, both in his personal
capacity, as a professional, and in his capacity as the curator
bonis
. The meaning of the statement is thus defamatory.
42.
However, Mr Nash says he believes it to be true. What must be
established to be true is the meaning given above to the statement,
namely, that Mr Mostert has acted irregularly and unlawfully in
allocating to himself fees to the detriment of the pensioners,
for
whose interests he has no regard. Contrary to Mr Nash’s
contention, it is not enough for him simply to set out how much
has
been paid in fees as opposed
to
how much has been paid to pensioners or members of the funds. This is
because this is not what his statement means. Nor, for
the same
reason, does it assist him to argue that, in the absence of Mr
Mostert giving a detailed accounting of his fees and how
much has
been paid out to fund members or pensioners in respect of each fund,
the falsity of his statement has not been established.
43.
As
far as evidence of unlawfulness or irregularity in respect of Mr
Mostert’s fees is concerned, Mr Nash points to the Public
Protector’s report and the Daily Maverick article referred to
earlier.
The
latter article was based on the Public Protector’s report.
It
is common cause that the O’Sullivan report was provided to the
EFF and to the Public Protector, and that the Public Protector’s
subsequent report was based on a complaint by the EFF.
This
complaint was informed by the O’Sullivan report. One of the
findings in the O’Sullivan report was that Mr Mostert
had
breached the law by drawing excessive fees.
[15]
However,
Crutchfield AJ interdicted the further publication of the report
partly because of its untrue and defamatory content.
In
turn, the Public Protector subsequently instituted disciplinary
proceedings against the investigators involved in the EFF’s
complaint, based on the alleged grossly negligent and reckless manner
in which they carried out the investigation.
A
report in City Press to this effect is attached to Mr Mostert’s
replying affidavit.
It
is not disputed that the reason why the urgent application resulting
in the Wanless judgment on costs did not proceed was because
the
Public Protector undertook in her answering affidavit not to publish
her report before giving Mr Mostert the opportunity to
make full
submissions to her.
44.
What the evidence shows is that the origin of the allegations about
Mr Mostert’s alleged unlawful and irregular fee allocations
(implied by Mr Nash in his statement) was in fact Mr Nash himself. He
has made these allegations for many years, as the previous
judgments
of the courts show. He secured the services of Mr O’Sullivan to
produce a report to justify these allegations.
He gave this report to
the EFF. The EFF lodged a complaint with the Public Protector, who
produced a report based on the O’Sullivan
report and no
submissions from Mr Mostert. Thus, Mr Nash cannot point to the Public
Protector’s findings or the Daily Maverick
article on those
findings to establish the truth of what he continues to say: they are
in effect an echo chamber for Mr Nash’s
original allegations
which have not been independently proven. In light of the Crutchfield
judgment, the O’Sullivan report
cannot be regarded as
independently justifying Mr Nash’s statements as the truth. In
light of the Public Protector’s
stance, nor can her report.
45.
Mr Nash’s own belief that his statement is true falls to be
considered in the context of whether a case has been made
out to hold
him in contempt of the Matojane order. However, for purposes of
determining whether the statement regarding the fees
is false and
defamatory, I am satisfied, given the meaning I have attached to the
statement, that Mr Mostert has established this
to be so.
The
statement pertaining to the Old Mutual agreement
46.
In his email to Mr Beamish, Mr Nash said that: “
What Mostert
is attempting to gag is a Report by P O Sullivan (sic) Associates
where a secret and Confidential Agreement between
Mostert, Old Mutual
and Mr Tshidi of the FSB agreed to have Old Mutual pay Mostert R106m
in highly questionable circumstances.”
47.
Mr Mostert contends that this statement conveys to the reasonable
reader that the agreement concluded between him, as at the
liquidator
of the Power Pack Fund and Old Mutual, and which was approved by Mr
Tshidi of the Financial Services Board
at
the time, is in some manner secretive and clandestine, and that it
involved a payment to Mr Mostert personally of some R106 million
“in
highly questionable
circumstances
”
.
He says that it also conveys that he has acted questionably and
dishonestly in having concluded the agreement with Old Mutual.
Further, that in attempting to “
gag
”
the report, Mr Mostert is
attempting to keep the truth from coming to light.
48.
Mr Mostert also contends that the statement is false. He says that
the agreement was concluded between Old Mutual and the Power
Pack
Fund. It involved an advance by Old Mutual of R106 million to the
Power Pack Fund without any admission of liability. This
was to
facilitate the recovery of assets of the Fund that had been denuded
by the perpetrators of the alleged fraud. Thereafter,
the advance
would be refunded to Old Mutual.
49.
He points out that the application before Crutchfield AJ was for an
interdict, not a “
gagging order
”, and that he was
entitled to take legal issue with the report because it is common
cause that it contained statements defamatory
of him.
50.
Mr Nash defends his statement on the basis that it was neither false
nor defamatory.
He
attached a copy of the agreement to his answering affidavit, and
stated that on its own terms, it was secret and confidential.
This is
because clause 5.1 of the agreement obliged the parties to keep the
agreement and related information “
private and confidential
and (to) take reasonable care to prevent any disclosure of the
Confidential Information to any third party
.”
51.
Mr Nash averred that there was a factual basis for his statement that
the agreement was concluded in “
highly questionable
circumstances
”. This was because, although it purports to
provide for a loan from Old Mutual to the Power Pack Fund, it “quite
obviously
” is not a loan agreement. He says that Mr
Mostert’s explanation, described above, is only partially true.
He states
that “
in truth
” the agreement was to
settle a damages claim by the Power Pack Fund against Old Mutual, and
that the payment was styled as
a loan: “
so that Mr
Mostert/the Power Pack Fund could, despite having received payment
from Old Mutual, continue with an action against so-called
Perpetrators
.” He then points to aspects of the agreement
that he says are “
highly questionable
.”
52.
Mr Nash also contends that his statement was not meant to suggest
that Mr Mostert was paid personally. He says that he did not
use the
term, and that the statement was made in the context of Mr Mostert in
his official capacity.
53.
As the well-established legal principles dictate, it is not what Mr
Nash intended to convey when he made the statements, but
rather what
meaning is conveyed to the reasonable reader. This includes the
implied meaning. While the statement does not expressly
say that Mr
Mostert personally was involved in the agreement, or that he was
personally paid the R106 million, the statement gives
no impression
to the reader that reference is being made to him in his official
capacity. He is called “
Mostert
”, not “
Mr
Mostert
”, or “
the liquidator, Mostert
”.
54.
It is difficult to avoid the impression created that the statement is
about Mr Mostert personally. This is particularly so given
that in
the second paragraph of the email, Mr Nash had said that according to
the Wanless judgment, Mr Mostert was using pension
fund money for
“
his own personal vendetta
”. The theme of the
email, from commencement, undoubtedly placed in the mind of the
reasonable reader that Mr Mostert was
acting with a personal motive.
The email also said that: “
Clearly, it seems that he sees
himself
personally
(my emphasis) is worth more
than (sic) the total
sum
of
all
‘
poor
pensioners/members
who
were
paid
any
money
in
surplus distributions.
”(my
emphasis). This statement reinforces the impression for the reader
that any critical statements made in the email are
about Mr Mostert
personally. What then follows is the statement about the Old Mutual
agreement. There is no change of wording or
of tone to indicate to
the reader that Mr Nash is now departing from his pervious personal
criticism of Mr Mostert. The inevitable
consequence is that the
reader understands that it is Mr Mostert who is being criticised
personally for his role in the agreement
and for ensuring that he
would be paid R106 million.
55.
I conclude that the statement would not convey, to the reasonable
reader, that Mr Nash was commenting on Mr Mostert as liquidator
as he
claims. But even if this were so, it does not mean that the statement
did not carry a defamatory meaning.
Read
as a whole, the statement contains strong pointers as to its
meaning. The statement says that Mr Mostert was attempting to
“
gag
”
the O’Sullivan report, which dealt with a “
secret and
confidential agreement
” in terms of which it was agreed
that Mr Mostert would be paid a very large sum of money “
in
highly questionable circumstances
”. The reference to
gagging would convey to the reasonable reader that Mr Mostert was
trying to prevent an investigation
into the agreement from coming to
light. The statement implies that the reason for this is because Mr
Mostert’s role in
the agreement was self-serving (involving
payment to him) and suspicious (highly questionable). It also
conveys that for these
reasons, the agreement was in the first place
entered into under a cloak of secrecy (secret and confidential). In
other words,
that it was a clandestine arrangement. Contrary to Mr
Nash’s assertion, the statement means a lot more than a simple
factually
correct statement that the agreement was subject to a
confidentiality clause.
57.
Mr Nash gave his analysis and interpretation of various clauses
of the agreement in an attempt to show that he was factually
correct
in describing the agreement as “
highly questionable
”.
As I have indicated, he also attached the agreement to his answering
affidavit. The difficulty with this strategy is that,
in the first
place, this defence is simply based on Mr Nash’s own analysis
of the agreement, and his own conclusions. For
example, he concludes
that the agreement was an abuse of the court process. This is clearly
his opinion, based no doubt on the
fact that he is one of the alleged
perpetrators of the fraudulent scheme that allegedly stripped the
Power Pack Fund of assets.
He is one of those who is being sued
civilly for the recovery of R42 million in this regard. Thus, his
analysis of the terms of
the agreement cannot be regarded as
amounting to objective evidence as to the “
highly
questionable
” nature of the agreement.
58.
But perhaps the greater difficulty for his defence to the statement
is that what Mr Nash said to Mr Beamish was that the agreement
was
concluded in
highly
questionable
circumstances
, not that the
agreement was highly questionable
.
Thus, the truth (as he would have it) of his statement cannot be
determined through an analysis of the agreement. It would really
depend on evidence of the circumstances in which the agreement was
concluded.
59.
For all of these reasons, I conclude that once the objective meaning
of the statement is understood, it was not true and was
defamatory.
Mr Mostert’s personal standing as an individual professional
lawyer, and in his
nomine officio
capacity as curator of the
Power Pack Fund would be lowered in the eyes of his peers, the
general public and the recipients of the
email as a result of the
statement made. The statement paints him as being a person who,
despite holding a position of trust, engaged
in an underhand and
dishonest manner to secure an agreement that resulted in him being
paid a very substantial sum of money. This
is obviously not conduct
that anyone expects from a court appointed officer or a duly admitted
officer of the court.
60.
I will deal separately with Mr Nash’s defence that he did not
wilfully and maliciously breach the Matojane order.
The
statement pertaining to the SCA
61.
The final statement identified by Mr Mostert as being false and
defamatory of him, and thus in breach of the Matojane order
is Mr
Nash’s statement that: “
All Appellants are sure that
when the matter goes to the SCA that Mostert (sic) actions will once
again be over turned -- as they
always are at the SCA.
” Mr
Mostert says that this statement conveys that Mr Mostert litigates
recklessly, without merit and that he is regularly
sanctioned and
overturned by the SCA.
62.
In
defending the truth of his statement, Mr Nash refers to two judgments
of the SCA in which Mr Mostert has not succeeded on appeal.
In
the first,
Mostert
NO v Registrar of Pension Funds
,
[16]
Mr
Nash was not a party.
It
was an application by Mr Mostert for the judicial review of
regulation 35(4) of the regulations made under the Pension Funds
Act.
[17]
Mr
Mostert failed to succeed in reviewing the regulation in both the
High Court and in the SCA.
It
was found that the review was brought outside of the 180-day period
prescribed in s7(1) of the Promotion of Administrative Justice
Act.
[18]
63.
The
second judgment Mr Nash refers to is that of
Mostert
& Others v Nash & Another
[19]
Mr
Nash was a party to the litigation.
He
sought and obtained an order in the High Court setting aside a
contingency fee arrangement between Mr Mostert N.O. and the FSB
in
relation to his curatorship of the Sable Pension Fund.
Mr
Mostert appealed the order but his appeal was not successful.
The
judgment was critical of Mr Mostert’s having extended the
length of the record by litigating separately in his personal
and
nomine
officio
capacities.
While
the SCA upheld the main finding of the High Court judgment, it
amended the terms of that order in material respects.
64.
Mr Nash further claimed in his answering affidavit that he had
effectively succeeded at the SCA in an appeal against the dismissal
of his application to have Mr Mostert’s appointment as curator
of the Cadac Pension Fund set aside. While the SCA did not
uphold his
appeal, he says that Mr Mostert agreed to the appointment of two
additional trustees. Such an outcome cannot be categorised
as the SCA
overturning Mr Mostert’s actions. The fact of the matter is
that Mr Nash sought his removal, and he did not succeed
in this on
appeal to the SCA.
Even
on the express statement that Mr Mostert’s actions are always
overturned in the SCA, the statement is not factually
correct. What
is critical to consider is what meaning is conveyed to the
reasonable reader by the statement. It is not factually
correct, and
it is not just mere exaggeration. The use of language is
instructive: the reader is told that Mr Mostert’s
actions are
“
always
” overturned by the SCA, and that they
will be so overturned again. The implication is that when
adjudicated on by a higher
court Mr Mostert’s actions are
regularly revealed to have been without merit. The statement that he
is “
always
” overturned at the SCA implies that he
is reckless in the litigation he pursues. These are obviously
defamatory statements:
professionals and persons holding positions
of trust should not litigate recklessly and without merit.
66.
Mr Nash says that he was merely expressing himself as to the
assuredness of the appellants in the Crutchfield judgment
that they
would succeed on appeal. He says that it was an opinion based on
legal advice that he had good prospects of success.
He says further
that it was no more than a minor and trivial statement, particularly
in the circumstances where the courts have
recognised that the
litigation between the parties has been arduous and mean-spirited.
67.
However, as I have indicted already, the statement meant far more
than an expression of Mr Nash’s confidence in his prospects
of
success in respect of the Crutchfield judgment. A statement of that
nature would simply have said that Mr Nash has been advised
that he
has good prospects of success. Instead the statement goes further,
giving rise to the implied meaning discussed earlier.
A statement
implying that Mr Mostert regularly litigates without merit and thus
acts recklessly in litigating against Mr Nash is
not trivial. This is
particularly so if one has regard to the balance of the email, which
casts clearly directed aspersions against
Mr Mostert’s actions.
Once the meaning of the statement is understood, Mr Nash’s
defence that it was a trivial and
bona fide
comment, which
bore no defamatory element, cannot stand.
BREACH
OF THE MATOJANE ORDER
68.
The Matojane order interdicted Mr Nash from disseminating false and
defamatory allegations pertaining to him in both his personal
and
nomine officio
capacities. Any statements that are both false
and defamatory in nature will obviously constitute a breach of that
order.
69.
Having considered each of the impugned statements, I conclude that
they are indeed false and defamatory. This means that
Mr
Mostert has succeeded in satisfying the first element of his contempt
application, namely, the breach of an order of this court.
70.
It remains for me to consider whether the breach constitutes a
contempt of the Matojane order and, if so, what the appropriate
sanction should be.
CONTEMPT
OF COURT
71.
The
rationale underlying contempt of court proceedings is that a person
who fails to obey a court order is guilty of “
violating
the dignity, repute or authority of the court
”
.
[20]
Thus, contempt proceedings serve a dual purpose.
They
secure the rights of the individual
litigant
arising
out
of the court order.
At
the
same
time,
they serve
the
broader
public purpose of ensuring that there is compliance with court orders
and thus with the rule of law.
[21]
72.
An
applicant
in
contempt
proceedings
must
establish
the
existence
of
the
order,
service or notice thereof on the respondent, and her non-compliance
therewith.
[22]
73.
Until
the judgment of the SCA in
Fakie
,
once these three requirements were met, the respondent assumed a
reverse onus to demonstrate that her compliance was neither wilful
nor
mala
fide
.
Fakie
introduced
a change in the law in this regard. The court held in its judgment
that a respondent in civil contempt proceedings in
which imprisonment
is sought is in the same position as an accused person in criminal
contempt proceedings in the sense that her
wilful
and
mala
fide
non-
compliance with the court order must be established beyond reasonable
doubt.
In
these cases, once the applicant has established the basic three
requirements, the respondent assumes an evidentiary (as opposed
to a
legal) burden to raise reasonable doubt as to whether her
non-compliance was
mala
fide
and
willful.
[23]
74.
In this case, Mr Mostert seeks an order that Mr Nash be committed to
prison for his breach of the Matojane order. As such, the
principles
laid down in
Fakie
apply.
75.
There is no dispute about the existence of the order or that Mr Nash
was served with it. I have found that his email to Mr Beamish
contravened the Matojane order. The first three elements having been
established, Mr Nash assumes an evidentiary burden to raise
reasonable doubt that he acted wilfully and
mala fide
in
making the false and defamatory statements in contravention of the
order.
76.
Mr Nash averred in his answering affidavit that Mr Mostert was using
the contempt proceedings as an intimidatory tactic to prevent
the
truth emerging about the fees he has earned as curator. He said that
the Constitution, the courts and the legislature recognise
that
irregular conduct by organs of state and private bodies is
detrimental to good, effective, accountable and transparent
governance
in organs of state, and good corporate governance in
private bodies. According to him, members of the pension funds and
pensioners
have an interest in knowing what fees have been paid to
the curator of the funds. He said that the statements he made relate
to
the fact that Mr Mostert has never disclosed his fees. Because of
this, he said that he ought to be permitted to ventilate and raise
this issue without fear of reprisal from Mr Mostert (and especially
the threat of incarceration) and to disclose information relating
to
suspected or irregular conduct.
77.
Mr Nash pointed out that his email was in response to a request from
Mr Beamish. Further, that he believed that Mr Beamish and
Mr Grobler
might be interested in investigating and questioning these issues. He
specifically said in his email that the issues
should be “
publicly
aired and questioned and the truth exposed
”. The gist of
this general approach adopted by Mr Nash is that he was simply
attempting in his email to provide an avenue
for what he regards as
the truth about Mr Mostert and the fees he has earned to be exposed.
As I understand his submissions, Mr
Nash says that his intention in
sending the statement to Mr Beamish was to expose the truth and that
the public has an interest
in knowing the truth. His intention was
never willfully and with
mala fides
to undermine the court
order.
78.
In order to uphold Mr Nash’s defence, I must find that he has
placed sufficient evidence before me to establish that he
was acting
bona fide
in the statements he made in his email to Mr
Beamish. I must take into account that the Matojane order was not
made in a legal vacuum.
Nor, too, were the statements made by Mr Nash
in his email. The contempt application arose within a particular
context. This context
is critical to determining whether or not there
is reasonable doubt as to Mr Nash’s wilfulness and
mala
fides
in breaching the Matojane order.
79.
In
the Matojane judgment reference is made to a judgment by the learned
Heaton- Nichols J
[24]
(as
she then was) in which she found that Mr Nash had embarked on a smear
campaign against Mr Mostert involving allegations of a
corrupt
relationship between him (Mr Mostert) and Mr Tshidi of the FSB.
Matojane
J noted in his judgment that:
“
Despite
the above critical findings by the court, Nash continues with his
vilification campaign against Mostert. He provides no
proof that the
facts on which his statements are based are true. Nash makes repeated
allegations that Mostert is guilty
of
corruption
and
fraud
without
any
basis
and
in
flagrant
disregard
of
consequences. The allegations cannot be regarded as ‘in the
public interest’ as they are based on falsehood and distorted
facts. The imputation lowers Mostert in the estimation of ordinary
people straddling all sectors of our society and is outrageously
defamatory.”
[25]
80.
The contempt application follows these two court findings that,
despite his vehement denials, he has over a considerable period
of
time engaged in repeated statements aimed at, and having the effect
of undermining Mr Mostert’s standing in the public
eye. It is
not necessary to adopt the epithet of a “
smear campaign
”
for the point to be made that Mr Nash has been warned previously by
courts that conduct of this nature is not lawful. The
Matojane order
went so far as to impose an interdict to bring this home to Mr Nash.
81.
He
has repeatedly accused Mr Mostert of suspicious and even criminal
conduct in relation to the fees he has earned as curator and
liquidator.
This
was part of the factual matrix that led to the Matojane J order.
The
events leading to the Crutchfield order involved allegations,
originating from Mr Nash, that Mr O’Sullivan communicated
to
Old Mutual to the effect that: “
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 (Old Mutual)
.”
[26]
It
was common cause in the application before Crutchfield AJ that Mr
Nash had appointed Mr O’Sullivan and his company to investigate
the Old Mutual agreement.
Mr
O’Sullivan’s findings included one to the effect that the
purpose of that agreement was to enrich Mr Mostert in his
personal
capacity.
Crutchfield
AJ found that these types of statements were shown to be false.
[27]
Mr
Nash failed in his attempts to appeal the Matojane judgment and
order. The findings in it stand. It is so that the Crutchfield
judgment and order may yet be the subject of a petition for leave to
appeal to the SCA. However, until set aside, Mr Nash cannot
ignore
the fact that a third court refused to countenance allegations of
wrongdoing on the part of Mr Mostert, his fees and the
Old Mutual
agreement.
82.
These findings by previous courts go to the alleged
bona fides
on
the part of Mr Nash. In the face of them, it is difficult to accept
as credible his statement that what he said in the email
to Mr
Beamish on the fee issue and the Old Mutual issue was an honest
attempt at exposing the truth. His version of the truth on
these
issues has been tested previously and found wanting, as the earlier
findings demonstrate. Significantly, two of those judgments
involved
defamation applications. The fact that Mr Nash says that he believes
there is truth in his statement cannot hold against
court findings
indicating that this is not a defence. Despite his protestations of
his
bona fides
, he cannot truly and genuinely have believed
that in repeating, albeit in less strident terms, allegations he had
previously made,
he would not be acting in breach of the Matojane J
order.
83.
What is more, both the Matojane and Crutchfield judgments, found that
Mr Nash could not claim to have a duty to make public
his allegations
in the public interest. Matojane J held that:
“
Nash
is not part of the media and has no legal duty or obligation to bring
to the attention of the public the type of allegations
he makes about
Mostert without first establishing whether they are indeed true and
correct.
The
cases dealing with freedom of expression are distinguishable in that
respect.
[28]
84.
The
learned Judge also found that the defamatory statements made by Mr
Nash were not made honestly and in good faith, but were made
in
retaliation against Mr Mostert for uncovering Mr Nash’s fraud
and corruption.
[29]
Similarly,
in the Crutchfield judgment the court 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.”
[30]
(words
in brackets in the original)
85.
In the face of these findings, Mr Nash cannot genuinely have believed
that he was acting innocently, in the public interest,
and not with
the intention of defaming Mr Mostert, in making the statements that
he did about the fee issue and the Old Mutual
issue. His version
lacks credibility and the evidence he has presented to support his
evidentiary burden is not sufficient to raise
the reasonable doubt
required to avoid the conclusion that he was acting wilfully and
mala
fide
in making false and defamatory statements in respect of Mr
Mostert.
86.
The statements regarding the Wanless judgment had not previously been
the subject of either the Matojane or Crutchfield judgments.
Mr Nash
says that he had no intention of breaching the Matojane J order in
making these statements. He says that he was only expressing
his
genuine and
bona fide
reading and understanding of the
judgment. I have already dismissed his defence based on fair comment.
The question is whether he
has placed evidence before the court to
sow reasonable doubt as to his absence of
bona fides
for the
purposes of avoiding a finding of contempt against him.
87.
The statement made by Mr Nash was a serious one: it quoted from the
judgment incorrectly, and ascribed to Wanless AJ a finding
that Mr
Mostert had embarked on a personal vendetta by instituting the urgent
application. The use of the term “personal
vendetta” is
loaded. Not only does it imply needless, badly carried out, meritless
or even reckless litigation on the part
of Mr Mostert, it goes far
further by implying a personal and wrongful motive on the part of Mr
Mostert. To avoid
mala fides
in its making, Mr Nash would have
to have been very sure that this is what the judgment said. The court
did not make a finding of
a personal vendetta on the part of Mr
Mostert, albeit that it criticised him on aspects of his litigation
strategy. In light of
the history of Mr Nash’s attacks against
Mr Mostert, as detailed in the judgments discussed earlier, little
weight can be
placed on Mr Nash’s assertion that he
bona
fide
believed that Wanless AJ had found Mr Mostert to have been
motivated by personal vengeance. The credibility of this claim is not
supported by his previous conduct, by the other statements made in
the email, or by the overall tone of the email. It does not
raise
reasonable doubt as to Mr Nash’s
mala fide
and wilful
intent.
88.
Similarly, as regards his assertion that the SCA will again find
against Mr Mostert as it always does, the falsity of the claim
and
its sting belie the credibility of his assertion that he was simply
expressing the opinion, based on legal advice, that he
had good
prospects of success on appeal. As I have already found, in dealing
with the defamatory aspects of this statement, if
this had been his
bona fide
intention, the statement would simply have said that
he had received legal advice to the effect that he had good prospects
of success
on appeal and that he was confident of his chances. This
is not what he said, and it is not what the statement means. I am not
satisfied that Mr Nash’s averment raises any reasonable doubt
as to his wilful and
mala fide
intent in including this
statement in his email.
89.
I have found that in respect of each of the impugned statements
Mr Nash acted in breach of the Matojane order. Consequently,
the
burden rested on Mr Nash to place evidence before the court to raise
reasonable doubt as to the wilful and
mala fide
nature of his
breach in respect of all or any of the impugned statements. For the
reasons cited in detail above in respect of each
of his impugned
statements, his version that he did not act willfully or
mala fide
is demonstrably uncreditworthy and falls to be rejected. In the
absence of reasonable doubt as to his wilful and
mala fide
breach
of the Matojane order, Mr Nash must be found to have acted in
contempt of that order. What remains to be determined is the
appropriate penalty.
PENALTY
90.
Civil
contempt of court has both a private and a public dimension.
[31]
Even
where a party acts to ensure compliance with a court order, the
proceedings have an inevitable public dimension, which is to
vindicate judicial authority.
[32]
It
has at its heart the very effectiveness and legitimacy of the
judicial system.
This
means that the court is not only dealing with the individual
interests of the frustrated successful litigant, but also, as
importantly, it is acting as guardian of the public interest.
[33]
91.
It follows that an appropriate penalty must take into account both
the private interests of those involved, and the public interest
in
ensuring that court orders are obeyed. Mr Mostert is aggrieved by the
particularly personal nature of the contempt in this case.
It is
understandable that repeated defamation in the face of a court
interdict will have this effect. It is obviously important,
too, that the public has confidence that the civil justice system
will be effective in protecting individuals against invasions
of
their rights to dignity by enforcing interdicts of this nature.
92.
On the other hand, I must take into account that the relationship
between these two parties is extremely litigious and has been
so for
a long time. While this circumstance does not provide a defence to Mr
Nash’s contempt, it is a contextual factor to
bear in mind in
an attempt to balance the interests involved. I take into account,
too, that Mr Nash is over 70 years of age. A
penalty of direct
imprisonment must be carefully considered before it is imposed on a
person who falls into this vulnerable age
category.
93.
In the notice of motion, Mr Mostert sought a committal of Mr Nash to
a period of imprisonment for three months, or an alternative
sanction, at the discretion of the court. Neither of the parties
discussed what that alternative might be.
94.
In my view, an appropriate penalty must be such as to facilitate the
public purpose of these proceedings, while at the same
time balancing
this with the interests of the offender (albeit that Mr Nash is a
civil offender). The appropriate way to do this
is to impose a period
of imprisonment, but subject to the suspensive condition that Mr Nash
refrains from disseminating, either
directly or indirectly, any false
and defamatory averments about Mr Mostert in either his personal
capacity or his capacity as
liquidator or curator
bonis
.
95.
Mr Mostert sought an attorney and client costs order in the matter.
In view of the nature of the proceedings, which involve
the wilful
and
mala fide
disobedience of a court order, I consider that a
costs order of this nature is warranted.
ORDER
96.
I make the following order:
The
respondent is in contempt of the Order of the Honourable Judge
Matojane, dated 14 August 2018 under case number 3466/2017 (the
Matojane J Order).
2.
The respondent is committed to a period of imprisonment of 2 months,
which committal is suspended on condition that the respondent
does
not disseminate, directly or indirectly, false and defamatory
allegations pertaining to the first and second applicants, or
in any
other manner breach the Matojane J Order.
3.
The respondent is directed to pay the costs of the application,
including the costs of two counsel, on the attorney and client
scale.
R.M.
KEIGHTLEY
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically to the
parties/their
legal representatives by email and by uploading it to the electronic
file of this matter on CaseLines. The date for
the hand-down is
deemed to be 26 April 2021
APPEARANCES
Counsel
for the applicants:
JG
Wasserman SC
S
Quinn
Attorneys
for the applicants:
Asheton-Smith
Ginsberg Incorporated
Counsel
for the respondent:
GD
Wickens SC
Attorneys
for the respondent:
KWA
Attorneys
Date
of hearing: 4 February 2021
Date
of judgment: 26 April 2021
[1]
Mostert
& Others v Nash & Others
[2018]
ZAGPJHC 511
[2]
[2020] ZAGPJHC 187
[3]
Khumalo
& Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC) at para 18
[4]
Le
Roux v Dey
2011
(3) SA 274
(CC) at para 85
[5]
Le
Roux
,
above n4, para 87
[6]
Le
Roux
,
above n4, para 89
[7]
Le
Roux
,
above n4, para 91(b
[8]
Le
Roux
,
above n4,para 91
[9]
Le
Roux
,
above n4, para 91
[10]
Le
Roux
,
above n4, para 91(a)
[11]
Mostert
v The Public Protector & Others
,
unreported,
ex
tempore
judgment
of the Gauteng Division, Pretoria in Case no. 5860/19, dated 3
February 2020
[12]
See pg 9 of the Wanless AJ judgment at para 10. The second reference
to “first respondent” in lines 12-13 appear
to be in
error. It should read as a reference to “first applicant”
being Mr Mostert in his personal capacity. He
is usually cited as
second applicant in his N.O. capacity.
[13]
Collins English Dictionary, 12 ed, 2014
[14]
Economic
Freedom Fighters & Others v Manual
[2021]
All SA 623
(SCA) (
EFF
v Manual
),
para 38
[15]
Crutchfield judgment para 79
[16]
2018 (2) SA 53 (SCA)
[17]
Act 24 of 1956
[18]
Act 3 of 2000
[19]
2018 (5) SA 409 (SCA)
[20]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at
[6]
[21]
Fakie
,
n20 above, at [8]
[22]
Fakie,
n20
above, at [22]
[23]
Fakie
,
n20 above, at [22]
[24]
Executive
Officer of the Financial Services Board (the FSB) v Cadac Pension
Fund; In Re: Executive Officer of the Financial Services
Board v
Cadac Pension Fund and Others
[2013]
ZAGPJHC 401
[25]
Matojane judgment, para 71
[26]
Mostert
and Another v Nash and Others
at
para 69
[27]
Mostert
and Another v Nash and Others
at
para 69
[28]
Matojane judgment, para 63
[29]
Matojane judgment, para 74
[30]
Para 90
[31]
Fakie
,
n20
above,
para
39
[32]
Fakie
,
n20
above,
para
38
[33]
Victoria
Park Ratepayers Association v Greyvenouw
[2004]
3 All SA 623
(SE) at para 5