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[2011] ZAECPEHC 14
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Van Rooyen v Vodacom Service Provider Company Ltd (Pty) (3652/2010) [2011] ZAECPEHC 14 (24 March 2011)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE
NO: 3652/2010
IN
THE MATTER BETWEEN:
RENEE
PAUL VAN ROOYEN
….........................................
PLAINTIFF
And
VODACOM
SERVICE PROVIDER COMPANY (PTY)
…....................
DEFENDANT
JUDGMENT
ANDREWS,
AJ
[1]
The plaintiff applies for the following order by default judgment:
a) an order that the
defendant shall forthwith take the necessary steps to remove the
plaintiffs name from any listing with the
National Credit Bureau or
any other institution which indicates that an amount is owing by the
Plaintiff to the Defendant;
b)
payment of the amount of R200,000 as and for damages;
c) costs of suit.
[2]
Background
The
plaintiff's combined summons was issued on 1
st
December
2010 and served on the defendant at its principal place of business
on.the 2
nd
of
December, 2010. The defendant failed to enter an appearance to
defend. The summons indicates the basis of the plaintiff's claim
follows.
[3] The plaintiff is a
senior advocate seeking damages for the defamatory publication of his
name with the National Credit Bureau,
which has indicated that his
name had been listed, and that he had been "handed over,"
As a result of this listing, the
plaintiffs bank refused.to extend
overdraft facilities to him, which he required for the conduct of his
business as an advocate
and for acquiring and developing and letting
properties, which is his business. The plaintiff notified the
defendant that he disputed
the claims and was prepared to litigate
the matter, but no steps to recover the debt were ever taken by the
defendant. Despite
demand, the defendant has failed to remove the
plaintiffs name from the National Credit Bureau listing, and it
remains, published
for perusal to the world, on the internet. Any
bank or credit provider would therefore have access to this
information,
[4] The plaintiff
testified that he has been an advocate since 1977, and a senior
counsel since 1992. Matters handled by him have
been reported in 30
to 40 decisions. He has beep requested to act as a judge in this
court at feast eight times. His judgments
of this court are also
reported. He testified that the listing, through a website in the
USA, did not serve as a notification of
litigation but was a
mechanism to advise the public that he is a bad credit risk, and as
such is a warning to creditors not to
extend credit to him. it states
that he was been "handed over" on 27 April 2010 but this
was untrue information since
he first received a letter suggesting
that this would take place on 25 August 2010. On the same day he
replied by letter disputing
the claim and warning the defendant not
to proceed to list him. However the defendant proceeded to list him
and did not notify
him that it had done so. He discovered that he had
been listed when in August 2010 he was advised by his bank that it
did not intend
extending an overdraft facility to him because of a
negative credit listing. Although this situation had been rectified
with one
of his banks, the other has refused to extend an overdraft
facility to him.
[5] The plaintiff is 62
years old and for his pension is intending to develop certain
properties which he owns, at an estimated
cost of between R3.5 and
R5.5 million.. This will require him to obtain financing and he is
concerned that such financing might
not be forthcoming, and that
contractors may not be willing to contract with him, due to the
defendant's negative publication.
The listing has as a result acutely
embarrassed him,
[6]
The plaintiff averred that the listing was wrongful, unlawful and
defamatory in that it signifies to the world at large that
the
plaintiff is a bad credit risk, does not pay debts which are due,
owing and payable, and that it is necessary for his creditors
to
institute legal action to recover relatively small amounts of money
from him which are due, owing and payable when in fact no
amounts at
all were due, or the existence of the debt is the subject of a
bona
fide
dispute.
The refusal to remove his name from the list was
mala
fide,
wrongful
and unlawful and calculated to cause the damage to the plaintiffs
good name and reputation, and his creditworthiness with
his bankers
and the community at large.
[7]
As a consequence of the defendant's conduct the plaintiff averred
that he had suffered damages in the amount of R200,000. Further,
that
apart from the serious nature of the defamation, and its wide
publication, the defendant had done nothing to mitigate the
damages
caused.
[8] As regards the
quantum of damages, the plaintiff averred that he had a clear right
to the relief which it sought in the first
prayer, namely that the
listing be terminated. The plaintiff justified the quantum of damages
for defamation on the basis of the
fact that he is a professional of
high standing with every right to extend his assets who has been
thwarted to a great extent by
the conduct of the defendant. He is now
precluded from doing a substantial property development. The
publication was extremely
wide and the defendant has done nothing to
mitigate the damage caused. Although the defendant was warned
repeatedly that it was
acting unlawfully it has to date failed to
remove the listing.
[9]
The defendant did
not
enter
an appearance to defend. I
am
satisfied
that the plaintiffs evidence demonstrates that the defendant has in
the past and continues to publish false, damaging
information
regarding his
creditworthiness,
on a globally accessible website indicating that he is a bad credit
risk who does not pay his debts which are
due and that legal steps
were being taken to recover such a debt owning to the defendant. This
informationis not true, and was
published recklessly by the
defendant, after it had been warned not to do so by the plaintiff.
The defendant had done nothing to
mitigate the damage caused to the
plaintiff. It did not take any legal steps to recover any monies
aflegedly owing. As a result
of its publication of the listing
banking institutions had become aware of this information, and had
indicated ttrthe plaintiff
that they were not prepared to extend
credit to him. This position has harmed the plaintiffs potential to
raise funds to develop
his assets. His considerable professional
reputation has been placed in jeopardy. The defamation was serious in
light of the personal,
financial and professional interests that it
coufd, and did damage. The publication was to the whole world,
readily accessible
to anyone at any time who has access to the
internet and the plaintiff was not even notified that such
publication had taken place.
. The plaintiff now faces uncertainty as
to whether he will be able to engage in a planned large scale
development requiring significant
financing and contracts, because he
does not know how the financial community will react to information
tarnishing his creditworthiness
which has been on the internet for
almost a year,The plaintiff has therefore made out a case for the
relief sought in the summons
herein.
Quantum
[10]
Generally speaking as stated by Grosskopf JA in
Argus
Printing & Publishing Co Ltd v inkatha Freedom Party
1
"our
courts have not been generous in their awards of
solatia.
An
action for defamation has been seen as the method whereby a plaintiff
"vindicates his reputation, and not as a road to riches"
2
.
In the case of
De
Flamingh v Pakendorf, De Flaminghv Lake
3
an
advocate was said to have failed in his professional duties. An award
of R2 500 was against each of the defendants, (Equivalent
to an
amount of approximately R55 000 in 2010). In
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd
4
an
allegation was made that a senior advocate had deliberately
perverted- the course of justipe. An award of R30 000 was made.
(Equivalent to an amount of approximately R53 000 in 2010).
Smaiberger, JA stated the following words of caution regarding the
guidance that can be obtained from other reported judgments when ,
evaluating the appropriate quantum of damages in defamation cases:
"Comparisons of the
kind suggested serve a very limited purpose. In the nature of things
no two cases are likely to be identical
or sufficiently similar so
that the award in one can be used as an accurate yardstick in the
other. Nor will the simple application
of an inflationary factor
necessarily lead to an acceptable result. The award in each case must
depend on the facts of the particular
case seen against the
background of prevailing attitudes in the community. Ultimately a
court must, as best it can, make realistic
assessments of what it
considers just and fair in all the circumstances. The result
represents little more than an enlightened
guess. Care must be taken
not to award large sums of damages too readily lest doing so inhibits
freedom of speech or encourages
intolerance to it and thereby fosters
litigation. Having said that does not detract from the fact that a
person whose dignity has
unlawfully been impugned deserves
appropriate financial recompense to assuage his or her wounded
feelings/'
[11]
In the
Van
der Berg
5
case,
the court referred to various factors which were Considered when
making an award of damages in a defamation case involving
an
attorney. These include the extent of the publication, whether the
defamatory statement was believed or the appellant lowered
in the
esteem of colleagues or whether he suffered any consequences as a
result thereof.
[12]
In the present case, the plaintiff clearly suffered consequences of a
financial nature if not to his reputation as a lawyer,
and the
publication was to the world
T
Financial
institutions had no hesitation in acting on the information as if it
was indicative of a truth, namely that the plaintiff
was a credit
risk. The ongoing potential consequences of this publication are as
yet unknown but based on the reactions of financial
institutions to
date could be serious, and the plaintiffs significant business plans
have been placed at risk.
[13] Having regard to the
above cited cases and the factors mentioned an amount of R50 000 is
considered to be an appropriate award
in damages to the Plaintiff.
It is ordered that the
defendant;
(i)
forthwith take the necessary steps to remove the plaintiffs name from
any listing with the National Credit Bureau, and any other
institution which indicates that any amount is owing by the plaintiff
to the defendant;
(ii)
pay the sum of R50 000 to the plaintiff as and for damages;
(iii)
pay costs of suit on a party and party scale.
DATED AT PORT ELIZABETH
ON THIS 24th DAY OF MARCH 2011 ANDREWS, A (Acting Judge)
DATE
HEARD
:
24
th
FEBRUARY
2011
DATE
DELIVERED
:
24
th
MARCH
2011
For
the Plaintiff :
ADV
O Ronaasen
Instructed
by :
FRIEDMAN
SCHECKTER
75
Second Avenue
Newton
Part
PORT
ELIZABETH
NO APPEARANCE FOR THE
DEFENDANT
1
[1992] ZASCA 63
;
1992
3 SA 579
(A)
2
Id
page 590 E
3
1979
3 SA 676
(T)
4
2001(2)
SA 242
5
Parag
46