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[2010] ZAECPEHC 41
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Makwetu v Sharp (3547/2009) [2010] ZAECPEHC 41 (29 June 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO.: 3547/2009
Heard
on: 04 March 2010
Delivered
on: 29 June 2010
In the matter between:
ANTHONY MAZWE MAKWETU
APPLICANT
And
LLEWELLYN FRANCOUIS
SHARP
RESPONDENT
JUDGMENT
SANGONI
J
The
applicant
is the sheriff of the magistrate’s court for the district of
Lady Frere and Whittlesea also serving as an acting
sheriff for the
magistrate’s court Port Elizabeth South.
The respondent is
the sheriff of the magistrate’s court, Port Elizabeth North.
On
10
October 2009 this Court granted the applicant an order by agreement.
The following is the relevant portion of the order:
“
1. That a rule
nisi
do hereby issue calling upon the Respondent to show cause to this
Court on 4 March 2010 at 09h30, or as soon thereafter as the
matter
may be heard, why an order in the following terms should not be
granted:
That the Respondent be interdicted and restrained from
communicating personally or by representation, with any person,
body,
official, department, association, corporation or company,
any opinion, allegation, imputation, innuendo, conclusion or
inference,
concerning the Applicant’s character, personality,
conduct, business activity or personal activity.
That the Respondent pays the costs of this application.
2.
That the provisions
of paragraph 1.1 above operate as an interim interdict and order,
pending the return date of aforementioned.
”
BACKGROUND FACTORS
During
the period between 1 February 2009 and December 2009 there were a
number of instances of disagreement between the parties arising
mainly from their business relationship and subsequent litigation
against each other. It appears what finally led to the institution
of these proceedings is a letter dated 11 November 2009 (Annexure
O), addressed to the Deputy Minister of Justice and Constitutional
Development, Mr A C Nel, by the respondent in which he says, inter
alia, the following:
“
The Trust and CC will in support of our
application and if
Opposing Papers are filed, call upon and, or subpoena:
SARS (South African Revenue Service) to testify in
respect of Makwetu’s present financial status,
as
information has revealed that Makwetu is being investigated for non
payment of Vat or provisional tax and others
.
SABFS (South African Board for Sheriffs) to
testify in respect of Makwetu’s payment history of levies and
other financial
obligations to the Board,
complaints
against his present acting offices and, or all other appointments he
holds presently. Inquiries have revealed that many
attorneys’
firms have complaints against him, but are in some instances
reluctant to forward it to the South African Board
for Sheriffs
,
as they are of the opinion it will be delayed indefinitely.
SANAPS (South African Association of Progressive
Sheriffs) to testify
in respect of
Makwetu’s outstanding membership fees of voluntary
organizatio
n. Makwetu is presently the
deputy chairperson of SANAPS.
Moore Stephens Auditors will testify in respect of
Makwetu’s
income versus
expenditure and that the trust account of his acting office Port
Elizabeth was in a ‘total mess’ and unable
to audit
.
This was due to his refusal to appoint a bookkeeper (accountant)
since his appointment as acting sheriff in 2007.
Only
after intervention and assistance by my office staff (bookkeeper) was
it possible for Moore Stephens to proceed with the annual
audit of
the trust account
. An application was
forwarded to the SABFS and extension was requested for the submission
of the annual financial obligations.
The Trust and CC will call upon SASSETA (Safety
and Security Sector Education and Training Authority)
to
testify that Makwetu is presently being investigated for fraud, in
that he submitted false claims whilst he was a member of the
South
African Board for Sheriffs
and attended
SASSETA meetings. Makwetu served as the representative of the Board
on the legal chamber committee of SASSETA. Attached
hereto annexure
marked
LFSAT6
letter
to the SANAPS chairperson and annexure marked
LFSAT7
a list of the legal chamber committee
members of SASSETA.
It is our respectful submission that Makwetu is
not fit to be a sheriff under these circumstances and should be
suspended immediately
and pending the outcome of the above
investigations
.
It is further respectfully submitted that
his
financial difficulties are due to his own over-spending and luxurious
lifestyle
. Information in our
possession and investigations revealed that Makwetu has drawn huge
salaries for himself in the amount of R744,
000.00 in the last 7
months, from March 2009 – September 2009. This is more than
R100, 000.00 per month.
”
As from 1 February 2009, following
his appointment as sheriff of the magistrate’s court, Port
Elizabeth South, the applicant agreed with the respondent to
share
premises and the relevant infrastructure as sheriffs. The idea
behind was to share operational costs. The same arrangement
was
made with the ad hoc sheriff of Port Elizabeth West, Ms Soga. The
respondent or his Trust was managing the sharing of the
operating
expenses and issuing invoices to recover such expenses from the
applicant and Ms Soga. The applicant and Ms Soga fell
into arrears
with the payment of their pro rata share of the operating costs. As
a result the applicant was called upon by the
respondent to cede his
book debts to the Trust and Close Corporation of which the
respondent was trustee and member respectively.
The Trust is known
as L F Sharp Admin Trust and the Close Corporation as Ratelskloof
Transport CC. The applicant did that but
reserved his rights to
scrutinise and verify, the amounts recorded as owing by him. Before
the applicant did the verification,
and on 18 September 2009, the
respondent acting on his behalf and on behalf of the Trust and the
CC brought an application for
the sequestration of the joint estate
of the applicant and his wife. The applicant opposed the
application, maintaining it was
not insolvent and had committed no
act of insolvency.
On 12 October 2009
the
respondent wrote a letter to the South African National Association
of Progressive Sheriffs (SANAPS) (Annexure E), and copied
it to Mr
Mohammed, a member of the Executive Committee of SANAPS, SABS (South
African Board for Sheriffs), as well as to the
following:
▪
Cheslan American, the Chief Executive Officer of
SABS;
▪
Thaka Seboka, a Member of the
Board of SABS and Provincial Leader of SANAPS who was present at the
meeting of the Executive Committee
of SANAPS held on the 7
th
of October 2009;
▪
Charmaine Mabuza, the Deputy
Chairperson of SABS and a member of the Executive Committee of
SANAPS, who was present at the meeting
of the Executive Committee of
SANAPS held on the 7
th
of October 2009; and
▪
Bruce Rose-Innis, a Member of the Board of SABS
and a member of SANAPS.
Attached to the said letter
(Annexure E) was a memorandum compiled by the respondent (Annexure
F). In the letter the respondent
purports to send the annexed
memorandum to the persons to whom it is addressed or copied for the
purpose of rectifying ‘incorrect
information or rumours’
forwarded presumably by the applicant, to ‘various roleplayers
and /or stakeholders’
pertaining to the pending sequestration
proceedings against the applicant and Ms Soga. The said role players
and stake holders
are not mentioned. The incorrect information or
rumours is also not disclosed of note is paragraph 67 of Annexure F.
I will refer
to it later. It reads as follows:
“
It is evident, both Makwetu and Soga were
appointed as acting Sheriffs by the Department of Justice, in
consultation with the South
African Board for Sheriffs (SABFS),
without consulting their financial
ability to start or finance an office in an urban area, or the
so-called larger Sheriff office
.
”
On 10 No
vember
2009 the respondent addressed a letter (Annexure K) to Attorneys
Gerald Friedman, his attorneys, complaining that a Mr
de Vos from
the firm of attorneys failed to give due attention to his matter.
He further stated “I am further aware of
the fact that SARS is
conducting an investigation against Mr Makwethu, or SARS is in the
process of doing so, or will be doing
so in the very near future.
If this is indeed the case and being aware SARS is always a
preferent creditor, we as trustees and
members stand to lose all our
monies”. A copy of this letter was forwarded to the
applicant’s attorney for response
and also to Mr I. D.
Mahomed. The respondent threatened to report his attorneys to the
Law Society if the matter was not attended
to before close of
business on 11 November 2009.
On 16 November 2009 the applicant’s
attorneys raised issue with the allegation in
Annexure
K to the effect that the applicant was being investigated by the
South African Revenue Service, arguing that such an
allegation was
defamatory. A demand was made to the respondent to desist from the
conduct of disseminating malicious rumours
of and about the
applicant.
There is yet another statement made
by the respondent about the applicant in his letter addressed to the
chairperson of SANAPS
on 27 October 2009 (Annexure S) that letter is
of course marked ‘confidential’ in the same way as the
letter of 11
November 2009 (Annexure O) already r
eferred
to above. In Annexure S, the respondent writes:
“
It has come to
my
personal attention that the Safety and Security Sector Education and
Training Authority (SASSETA) is investigating the deputy
chairperson
of our organisation, Mr A. M. Makwetu for possible fraud
.
The deputy chairperson,
I
am informed submitted false or fraudulent claims in respect of
travelling and, or accommodation
when
he served on the legal chamber committee of SASSETA, whilst he was a
member of the SA Board for Sheriffs (SABFS).
SANAPS interact with various stakeholders, the
Department of Justice and Constitutional Development
(DOJCD),
the office of the Deputy Minister, Rules Board, Banking Council,
Master of the High Court, Labor Court and SASSETA.
I am of the opinion the EXCO of SANAPS, and not only the chairperson,
should urgently requests the deputy chairperson, Mr Makwetu,
to
resign as member of the EXCO.
Failure to comply with the request of the EXCO, the EXCO should
suspend Makwetu pending the outcome of the fraud charges and, or
investigation.
It is not in the interest of our new organization, if we are
associated with issues like these.
I await to receive your advice”.
Annexure S
was sent to SANAPS with a list (Annexure T). Setting out the names
of 14 board members of SANAPS, the organisation’s and
contact
details.
In another letter on 12 November
2009 (Annexure
N) the
respondent forwards a copy of Annexure O to the SABS. He warns in
the letter that confidentiality should apply as he would
not like to
jeopardise any present or future investigations. The heading in
Annexure N that denotes the subject matter to be
discussed therein
is “A. M. Makwetu: Application for sequestration”. A
similar heading appears also in Annexure
O and K. It appears
reasonable to say that the respondent must have been feeling
frustrated by the fact that the sequestration
proceedings did not go
swiftly and as fast as he thought they would. This comes out from
the lack of patience displayed by him
to his attorneys in Annexure
K. The motive in Annexures K, N and O appears to have something to
do with the sequestration proceedings.
The applicant contends that the
accusations
highlighted
in Annexures N, O and K are defamatory and injurious of him. They
violate his constitutional rights and dignity.
They are either
untrue and/or constitute a malicious unfair comment.
The respondent admits his conduct in
the sense that he made repo
rts
to the Deputy Minister per Annexures O and T to the founding
affidavit and to the SABS per Annexures N, O and S. His defence
is
that whilst he did that with the aim and purpose to have the
applicant removed as sheriff and to have him declared unfit to
hold
office in such capacity, he did that within the ambit of qualified
privilege. He had a duty, he claims, to bring the conduct
of the
applicant to the attention of the Deputy Minister and SABS who had
the right to receive same. He however denies he had
an interest to
relay the applicant’s conduct, as he perceives it, to anyone
else and accordingly he denies he did so.
The respondent places reliance on the provisions of the
Sheriff’s Act, 90 of 1986 (The Act), particularly section
45(1)
where it is recorded that the Board (SABS) may on its own
initiative or upon the lodging of a complaint, accusation or
allegation,
charge a sheriff with improper conduct. The Minister
may, if in his opinion, sound reasons exist for doing so authorize
any
person to charge any sheriff with improper conduct and to
enquire into the charge. That is the fundamental basis for the
respondent,
also a sheriff, for claiming that he himself would have
been in breach of the sheriff’s code of conduct and ethical
duty
if he had failed to make such reports.
The respondent also contends that it would not be
appropriate for the Court to grant the relief sought as that would
interfere
with his legal obligation to bring the applicant’s
conduct to the attention of the Deputy Minister, SANAPS and SARS as
he is duty bound to do. For purposes of authorising an
investigation in terms of section 4(3)(b) and 16(k) of the Act. The
respondent further states that he has no intention to unnecessarily
publicise allegations as against the applicant and there is
thus no
apprehension of further harm and prejudice to the applicant which
necessitates the applicant to seek the relief.
The respondent
admits forwarding Annexures E and F to various people as alleged.
He however avers that he found that step proper in order to
reverse
a perception created to the effect that the association he had with
the applicant was based on mentorship program and
not a pure
business deal. He believed the perception came from the applicant
trying to justify the fact that he was in financial
difficulties.
The respondent denies
that he made allegations to various members of the public that the
applicant was under investigation by the South African Revenue
Services. He dismisses that also as being inadmissible on the basis
of the hearsay rule. This kind of approach by the respondent
is not
consistent with what is recorded in Annexure K wherein he says “I
am further aware of the fact that SARS is conducting
an
investigation against Mr Makwetu, or SARS is in the process of doing
so, or will be doing so in the very near future”.
Though this
annexure was addressed to his attorneys but it was copied to Mr
Randall and Mr I. Mahomed. There is thus no question
of hearsay.
In another letter written by the
respondent
, that is
Annexure O, the respondent writes that “… information
has revealed that Makwetu is being investigated for
non-payment of
VAT or provisional tax and others”. The respondent draws
attention to annexure LFS 21 a document addressed
by SARS Assessment
Centre to the Acting Sheriff for the magistrate’s court PE,
West. The addressee is not the applicant
but Ms Soga as she was
acting sheriff for PE West. The respondent also refers to another
document LFS 22, allegedly by the applicant’s
bookkeeper
wherein it is explained that sheriffs for PE South and West used the
same Vat No. as the applicant had been appointed
for PE, West, as
well up to April 2009. In any event LFS 21 what is revealed is
“SARS are in process of reconciling the
above account. In
order for SARS to finalise this, the following is required”.
The information required is proof of payment
of PAYE in respect of
certain payments received.
The respondent also avers that he phoned SARS, “in
order to assure that my letters do not record any falsehood”.
It was confirmed, according to him, that the applicant was being
investigated in relation to non-payment of VAT and provisional
Tax.
The applicant disputes he was ever investigated by SARS. In
annexure LFS 21 no reference is made to VAT or provisional
tax. As
submitted by the respondent, I agree that it is highly unlikely that
SARS would have disclosed confidential information
to a person other
than the relevant tax payer.
The issue of non-payment of
membership
fees of
SANAP, as reflected in Annexure O, explained by the respondent as
follows. He, Deputy Secretary of SANAPS, was privy
to the financial
printouts of SANAPS. He then observe that as at 6 October 2009 the
applicant was owing to SANAPS as membership
was outstanding in
excess of 120 days.
The respondent reported in Annexure
O
that the trust
account conducted by the applicant was in a ‘total mess’
because an auditor, Craig Killian from auditors
Moore Stephen, so
advised the applicant in his presence. Killian’s confirmatory
affidavit has not been secured as the
respondent, in his
explanation, cannot force him. Defence Strydom, assisted the
applicant’s office at the request of the
respondent, to render
the account auditable and an unqualified report was rendered by the
auditor Killian. It is not clear when
the unqualified report was
made. The question is whether that remark of “in a mess”
made in the circumstances would
justify a report to the Deputy
Minister and the SABS. In my view that would not be a matter
warranting the attention of such
persons more especially that 1) it
was not a different report and 2) it was not even a final report.
The allegation that the applicant
was being invest
igated
for fraud by SASSETA relates to alleged claims by the applicant in
respect of overstated mileage usage and unnecessarily
expensive
accommodation. This is the version of the respondent. Such
complaint which was internal in nature, was allegedly
by Dr N.
Maharaj who allegedly instructed the applicant to refrain from
submitting overstated claims for travelling and for accommodation.
What purports to be an affidavit by Dr N. Maharaj was not signed for
reasons given by the respondent. Even approaching it on
the basis
that it had been signed all it does is to confirm the content and
correctness of the affidavit by the respondent.
In his affidavit
the respondent does not say, as he says in Annexure O, the applicant
was being investigated for fraud, based
on false claims. So the
information in Annexure O is devoid of truth.
DEFENCE OF PRIVILEGE
It is perhaps appropriate to first
examine the defence of privilege before applying it to the facts of
this case. It implies
that the person who publicises a defamatory
statement has a duty
to
make the publication on an occasion that is privileged. In other
words privilege attaches to the occasion. Whether or not
the
occasion is privileged depends on the circumstances of the case,
viewed objectively. That is whether in eyes of a reasonable
man the
circumstances create a duty which entitles the defendant to speak.
The state of mind of the defendant becomes relevant
when the enquiry
is about whether or not the privileged occasion was abused.
1
The defendant bears the onus to prove that the occasion was
privileged and that the publication was relevant thereto
2
.
Truthfulness of the publication has no bearing on the defence of
qualified privilege but may only be relevant to an enquiry
as to
whether the publication was actuated by malice or not.
Section 8 of the Act sets out the
objects of the Board for sheriffs to be the maintenance of the
esteem of the enhancement of
the status of, and improvement of the
standard of training and functions performed by, sheriffs. Section
43 provides that a
sheriff shall be guilty of an offence i
f
he/she makes fraudulent or misleading representations. Whenever
there is a complaint, accusation or allegation against a sheriff
it
is to be lodged with the Board in the prescribed manner.
3
The various publications in this case do not appear to have
complied with section 44(1) as far as the requirement of lodging
in
a prescribed manner is concerned.
I did not understand the version of
the applicant
, either
on the papers or as argued by counsel Mr Scott, to be that the
respondent would have no duty in normal circumstances
to communicate
the applicant’s misconduct, if and when it exists, to SABS or
the Minister of Justice. The applicant’s
case in respect of
which he bears onus is that the respondent was motivated by malice
and had no reasonable grounds to believe
in the truth of the
publication.
4
What I also have to consider is whether the publication was germane
to the matter in issue. In my view the respondent would
be
justified in accusing the applicant of misconducting himself even
without complying with section 44(1) which relates to compliance
with a prescribed manner.
In examining the evidence placed
before court there are factors that clearly show that the re
spondent
was actuated by malice in making the publication. I will refer to
the following.
It is
no
wonder that some of the annexures complained of capture the heading
“application for sequestration.” That is
obviously
irrelevant to the relief sought by the respondent. That is an
indication, in my view, that the respondent was not
acting in good
faith. So much has been said in these papers that relate to the
sequestration proceedings. It appears the
parties got an
opportunity, more so the respondent, to advance their respective
versions in the sequestration proceedings.
Issues related to such
proceedings dominate the real issues relevant to the current
proceedings.
In as much as
the
defence of qualified privilege is not dependant on the truthfulness
or otherwise of the publication
5
,
it is, however, helpful to establish whether the respondent did or
did not believe the facts stated by him were true. If
untrue that
may lead to an inference of malice. All that is complained of
which is highlighted in Annexures O, K, F, S either
constitutes
falsehood or an unfair comment. It is difficult to understand how,
if he believed his statements were true, he
would make such
statements as if they are statements of fact. To say, just to
mention a few, the applicant was being investigated
for fraud in
submitting false claims for travelling and in another instance for
non-payment of VAT, given the impression that
the respondent did
not believe the statements were true. This leaves one to conclude
that the respondent was actuated by malice.
It is also difficult
to understand the relevance of reporting not only to the Minister
and SABS but also to SANAPS and others
who had nothing to do with
the disciplinary measures that could be taken against the
applicant. All that would not be covered
under the defence of
privilege.
THE RELIEF SOUGHT
While I find
it
reasonable and appropriate to restrain further defamatory
publication in a deserving situation I agree that the order sought,
as it now stands, is wide and indeed appears to be seeking to
restrain all conduct, unlawful and lawful. I would expect the relief
sought to be directed at restraining the publication of defamatory
information or injurious material concerning the applicant.
That is
not the relief sought. The confirmation of the Rule would thus have
disastrous consequences which would encroach on the
right to freedom
of expression. I find it unnecessary to enter the debate which
features in a number of cases. Suffice to say
I am of the view that
in appropriate circumstances a respondent may be interdicted from
publishing defamatory or derogatory statements
and therefore an
applicant “is not compelled to wait for the damage and sue
afterwards for compensation, but can move the
Court to prevent any
damage being done to him”. In any event the applicant has
recourse against the respondent for the
alleged past misconduct by
way of a claim for damages.
6
In view of that potential I also find it prudent to steer clear of
making a finding as to whether the previous publication is
privileged communication or not.
As regards the issue of urgency I
find that the applicant has established the circumstances of
urgency. In a situation where
the respondent would continue
disseminating information of and concurring the applicant the
latter would be justifiably apprehensive that it would not stop.
In the light of my conclusions
reflected above the application must fail.
The rule
nisi
is discharged.
The application is dismissed with costs.
C T SANGONI
JUDGE OF THE HIGH COURT
F
OR
APPLICANT : ADV. P. W. A. SCOTT
Instructed by : Michael Randell Attorneys
FOR RESPONDENT
: ADV.
P. E. JOOSTER
Instructed by :
Friedman
Scheckter Attorneys
Anthony
Mazwe Makwetu and L F Sharp Case no 3547/2009
1
De Waal v Ziervogel 1938 (AD) 112 at 122 –
123: Mahomed and Another v Jassiem
1996 (1) SA 672
(A) at 710 E to
D.
2
Yazbek v Seymour
2001 (3) SA 695
(E) at 702 G
3
Section 44 (1) of the Act.
4
Joubert & Others v Venter
1985 (1) SA 654
(A)
at 702B
5
Borgin v De Villiers & Another
1980 (3) SA
556
(A)
6
Heilbron v Blignaut
1931WLD 167;
Roberts v The Critic Ltd
and Others
1919 WLD 26
;
Cleghorn
& Harris Ltd v National Union Distributive Workers
1940 CPD 409
and
Hix Networking
Technologies v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A).