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[2010] ZAECPEHC 13
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Nortier and Another v Randall (1216/2009) [2010] ZAECPEHC 13 (9 April 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE ,
PORT ELIZABETH
) CASE
NO.: 1216/2009
In the matter between:
CHRISTIAAN LOUIS NORTIER
FIRST APPLICANT
GOLDBERG& DE VILLIERS INC
SECOND APPLICANT
and
LEONARD RANDALL
RESPONDENT
JUDGMENT
______________________________________________________________
MBENENGE AJ:
[1] The judgment
that
I penned, delivered on 24 September 2009 in this matter, embodies an
extensive narrative relative to the interdict being
sought by the
applicants against the respondent. The presentation of that
narrative in my initial judgment renders it unnecessary
for me to
present it in this judgment. Apart from defining the issues and
setting out the parties’ respective contentions
anent thereto,
I also pointed out that the matter of whether the applicants are
entitled to an order effectively restraining
the respondent from
defaming, insulting and harassing the applicants and/or their
employees is capable of being resolved on the
papers, but did not
pronounce thereon at that stage.
[2] One of the controversial
pamphlets that is the subject of my initial judgment is annexure “M”
to the applicants’
founding papers. The relevant passages of
the annexure are copiously referred to in the initial judgment.
After finding that
there was a material dispute of fact on the issue
of whether the respondent authored and/or distributed the
controversial pamphlet,
I referred the application to the hearing of
oral evidence for a determination of whether or nor the applicant
authored and distributed/
disseminated the pamphlet.
[3] The applicants
did not themselves testify at the hearing of oral
evidence.
They were content to call a staff member of Ikamva Veritas
Transcribing Services to merely testify and confirm the
correctness
of the transcript of the proceedings of 3 September 2009 during
which the respondent stated,
inter
alia
,
as follows:
“
And
as a matter of fact, the Counsel for the Applicant states that
this is my type of story, this is my style of
writing and my style of
the story, which is incorrect. And when he refers to a certain
document on page 74, and I will repeat
it. ‘
It
was suggested that the ex-buyer put a bullet in the brain of the
instigator
’,
and its scratched out Nortier, ‘
But-
dead men feel nothing- he should have every hair ripped out of his
skull
,’
etcetera,
etcetera, etcetera
.
I am not going to go into the whole long story, but this does not
come from me,
these
are not my words, these, this suggestion, it comes from a person that
I was speaking to
.
They asked me with regard to this case. Now we’re going
back to this case, 15 years back and at some stage along
the line,
this
person asked me certain questions, I explained to him, this is
the story and this is what he commented on. These were
his words,
they not in my words. In other words, what I’m saying is that
this paragraph that was pointed out by the Applicants’
Counsel,
does not come directly from me
.
These
are the words from another person
…”(
emphasis supplied)
[4] The respondent
testified in pursuit of his opposition to the application,
distancing himself from the authorship and distribution or
dissemination
of the controversial pamphlet. When asked who the
person referred to in the quotation and to whom he claims to have
spoken
was, he said the person was a member of the Estate Agents
Board. Of moment in this case is the respondent’s testimony
that he will bear a grudge against the first applicant for the
unbecoming conduct meted out to him until he enters the grave.
The
respondent never secured for himself a pronouncement by any
competent tribunal that any one of the applicants acted wrongly
or
unethically towards him. On the contrary , on the two occasions
that complaints were lodged with the Law Society of the
Cape of
Good Hope concerning
,
inter alia,
poor service, incompetence and unprofessional conduct on the part of
the first applicant, the first applicant was absolved from
any
misdemeanour and/or improper and/or unprofessional conduct.
[5] The tone of
the letters which, it is common c
ause,
were penned by the respondents, is unsavoury in the extreme. More
particularly , the letter written by the respondent to
Media
24
which eventually landed on the desk of the editor of the
Express
newspaper circulating in Port Elizabeth (quoted in paragraph [18]
of the initial judgment) is defamatory of and concerning the
applicants. It tarnishes the applicants’ professional
integrity. The statements ade by the respondent to
Media
24
of and concerning the applicants have no foundation, and are devoid
of merit. The Bill of Rights enshrined in the Constitution
of this
Country does not grant the respondent the right to state his views
in the reckless and wanton manner he did of and
concerning
the applicants.
[6] There is yet another pamphlet that
must surely have been aimed at scandalising the applicants’
name and reputation and
that was dispatched at one of the offices of
a Port Elizabeth Estate Agency, Remax, on 21 June 2006. The
pamphlet implied that
the first applicant was corrupt and had acted
fraudulently in dealing with the transfer of the property purchased
by the respondent
in 1994. It stated that the first applicant had
bribed estate agents and bank officials for work. None of those
allegations
had a basis.
[7] What of the
controversial pamphlet disseminated on 6 April 2009? I have noted
that the font, style and layout of the pamphlet
, annexure “M”
, is similar to others from which the respondent does not distance
himself. The tone and language
of the documents is similar. Not
only in his opposing affidavit, but even during his oral testimony
before me did the respondent
justify his conduct and evince a
settled determination to stop at nothing in informing others of
“
wrong
”
and “
unethical”
treatment allegedly meted out to him by the applicants.
[8
]
There is also annexure “O”, addressed to the Nelson
Mandela Metropolitan Municipality for the attention of Mr Richards,
the Municipality’s Manager. The document, which was received
by Mr Richards, contains the same defamatory rhetoric and
threats
concerning the applicants.
[9] I have also noted, with regret,
the persistent conduct by the respondent of also engaging in a
campaign that effectively
lambasts Mr Justice Ludorf for alleged
favouritism and improper conduct, which is utterly baseless.
[10
]
Apart from the similarities and language style in the documents
that form the subject of this application, the welter of detail
contained therein could only have been from the respondent. I am
therefore satisfied, on a preponderance of probabilities, that
the
respondent authored and distributed the annexures which form the
subject of this application, including annexure “M”.
The respondent’s denial that he has had nothing to do with
some of the annexures is rejected. That annexure “M”
was
authored by a member of the Estate Agents Board is a fiction of the
respondent’s own imagination. I am also satisfied
that the
contents of the annexures are defamatory of and concerning the
applicants and that some, especially annexure “M”,
are
sufficient to instil in the first applicant the fear that the
immediate family members and children of the directors and
employees of the applicants may be molested.
[11] The applicants have, in my
view, established, with the requisite degree of proof, the
requisites for the grant of the interdict
they are seeking.
[12] In the result-
(a)
the
rule
nisi
granted by this Court on 7 May 2009 is hereby confirmed: and
(b) the costs of the
application shall include those reserved on 3 September 2009.
________________
S M MBENENGE
ACTING JUDGE OF THE HIGH COURT
Applicants’ Counsel : Mr J D
Huisamen
Applicants’ Attorneys : Spilkin
Inc
15 Rink Street
Central
PORT
ELIZABETH
Ref: S P SPILKIN/M Human
Respondent :
Mr
Leonard Randall (in person)
Flat No 2, Linhope
Kabega Park
PORT
ELIZABETH
Heard on : 7 April 2010
Delivered on : 9 April 2010