Dimension Data (Pty) Ltd v Pearton (2388/2020) [2021] ZAECPEHC 54 (5 October 2021)

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[2021] ZAECPEHC 54
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Dimension Data (Pty) Ltd v Pearton (2388/2020) [2021] ZAECPEHC 54 (5 October 2021)

Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: 2388/2020
In
the matter between:
DIMENSION
DATA (PTY)
LTD
First
Applicant
NTT
LTD
Second
Applicant
and
RORY
NIALL
PEARTON
Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
This is an application for an interdict brought by way of urgency on
9 October 2020
by the Applicants seeking to interdict the Respondent
from:
“
2.1
threatening, harassing defaming and and/or abusing the Applicants
and/or any employee of the Applicants;
and/or
2.2
inciting any other person or entity to threaten, harass, defame
and/or abuse the Applicants
and/or any employee of the Applicants;
and/or
2.3
Publishing threatening, defamatory and/or factually untrue
information concerning
the Applicants and/or the Applicant’s
employees on the Respondent’s websites and/or on any other
platform or social
media platform;
3.      The
Respondent is ordered to take down his websites concerning the
Applicants and their employees;
4.
The Respondent is ordered to pay the costs of the application on an
attorney
and client scale”.
[2]
The Respondent opposed the application on various grounds
viz
:
“
2.1
that the application was not urgent and that the Applicants failed to
comply with the peremptory
provisions Rule 61(2) of the Uniform Rules
of Court;
2.2
that the Applicants in their affidavits, have put up objectionable
matter which falls
to be struck out in particular in their replying
affidavit by impermissibly averring new facts in supplementation of
the case put
up by them in their founding affidavit in
material respects;
2.3
that on the facts the Applicants have not established the requisites
for the relief
sought by   them and therefore are not entitled
to such relief”.
[3]
However, on 20 October 2020, the parties by agreement, agreed to
remove the matter
from the roll, put each other on terms and the
Respondent without conceding that the Applicants are entitled to the
order, agreed
to be bound by the provisions of the interim order
pending the determination of the application.  In agreeing along
those
terms, the Respondent, however pertinently alleged in it that
the agreement was made without conceding that the Applicants are
entitled to such relief and purely to enable the dispute raised to
proceed in an orderly manner in accordance with the Uniform Rules
of
Court as agued.
B.
The Parties
:
[4]
The First Applicant is a private company duly registered and
incorporated in terms
of the company laws of South Africa.  It
is the subsidiary of the Second Applicant.
[5]
The Second Respondent is NTT Ltd, a private company duly registered
and incorporated
in terms of the laws of England with its principal
place of business for Middle East and Africa in Sandton, Gauteng.
[6]
The Respondent is Rory Pearton an adult businessperson who trades as
Internet Services
and Technologies or iSAT.  I shall throughout
the judgment refer interchangeably to it as either the Respondent or
iSAT.
Apart from the qualifications, the Respondent states that
he started a software development and support business in 1984 known
as Orion.  During 1988, he started iSAT as an adjunct to Orion
and iSAT grew to a point relative to similar businesses nationally.

Apart from his academic training, the Respondent states that he
regards himself as an expert in the field of software development
and
maintenance as well as the provision of internet and associated
service because of his extensive knowledge and experience.
The
Respondent avers that he proceeded to develop his own virtual
services, which were used for internal and external internet
service
provider systems including his own website and those of his
customers; mail servers, his own administrative requirements
and a
major software development project being undertaken by him.  His
internal ISP systems included data collection, data
storage and data
analysis, backup and reporting for the software project.
C.
Background
:
[7]
The First Applicant and the Respondent, during or about February 2009
concluded a
written contract for Fax to Email services.  On 25
June 2014, (the date the agreement was signed), the Respondent
subscribed
with the First Applicant for its Consumer Virtual Machine
(CVM) which is described in the papers as a cloud-based service that
enable the Respondent to deploy and manage virtual servers for his
client base.  Clause 1 of the agreement reads as follows
[1]
:
“
1.
Description
of Service
1.1
Internet
Solutions Consumer Virtual Machine (CVM).  This CVM service will
provide the Partner with a self-provisioning portal
on a dedicated
multi-tenanted virtualisation platform.  Partners will be able
to acquire a virtual container with which to
provision their
processing needs.  The Partner has access to a self-determined
proof of resources, which can be defined accordingly
to meet
processing requirements.
1.2
The provisioning of CVM services is subject to the terms and
conditions set out in
this Schedule”.
In
terms of the CVM agreement, the Respondent was liable to pay fees
based on usage for the processing, memory and storage capacity

utilised by iSAT for its own purposes and for its customers.
The CVM crashed on 18 March 2019.
D.
The Applicants Case
:
[8]
Apart from the issues of harassment, threats and incitement, the
Applicants state that prior
to the Respondent, joining the First
Applicant’s CVM platform, in an email dated 10 June 2014,
enquired from the First Applicant
as to how the backup of data works
from the CVM.  The First Applicant advised him that by having an
additional service called
Attix 5.  The First Applicant provided
the Respondent with a quotation for the Attix 5 and recommended to
the Respondent that
he should subscribe to it.  The Respondent’s
manager acknowledged receipt thereof.  Despite that, the
Respondent
did not subscribe to Attix 5.
[9]
The CVM crashed and the Respondent and his clients were impacted by
the crash.
The First Applicant avers that after corresponding
with the Respondent about the crash and having categorically denied
negligence
on its part, on 30 September 2019, it received a letter
from the Respondents attorneys alleging gross negligence on its part
in
respect of the failure of the CVM and demanding payment of R21 134
440 865.00 (thirty-one billion, one hundred thirty four million,
four
hundred forty thousand eight hundred and sixty five rand) failing
which summons would be issued against the First Applicant.
The
letter specifically based the gross negligence on the basis that
Icehouse series and Juno series had reached their End of Life
many
years before the crash.  On 9 October 2019, the First Applicant
wrote back and denied liability.  Pursuant to that,
the First
Applicant received a barrage of threating emails from the Respondent.
[10]
The First Applicant states that it did not take kindly to the threats
to an extent that on 28
October 2019, it responded to a request for a
meeting to be held in Port Elizabeth but it insisted that it should
be in Gauteng.
In that letter with reference to the threat, the
First Applicant recorded that:
“
Your
client must be under no illusion that threatening our client with the
press and social media is not only unhelpful, but will
not under any
circumstances be countenanced by our client”.
[11]
The First Applicant says indeed a meeting was held in Gauteng on a
without prejudice basis.
The legal representatives of the First
Applicant made it clear that the First Applicant was denying
liability.  The attorneys
of the Respondent stated clearly that
they shall be issuing summons.  The First Applicant states that
despite the promise
it has yet to receive the summons.
[12]
The First Applicant testifies that consequent upon the meeting, the
Respondent embarked on a
concerted campaign to threaten and harass
the Applicants and their employees seeking payment of the alleged
amount for damages.
The chronology of the threats, harassments
and defamatory statements may summarily be stated as follows:
12.1
The Respondent on 30 September 2019 sent a letter of demand to the
First Applicant alleging gross negligence
on the part of the First
Applicant thus demanding the amount stated
above.
·
The First
Applicant’s response dated 9 October 2019 recorded its denial
of liability
.
12.2    On
25 October 2019, the Respondent’s attorneys penned a letter
again alleging gross negligence on the
part of the First Applicant
and referenced the letter dated 9 October 2019 from the First
Applicant.
12.3    On
6 December 2019, a draft press release statement was sent by the
Respondent to the First Applicant, which
the latter regards as
constituting defamatory statement about it.
12.3.1 In response to the
alleged gross negligence, the First Applicant, per letter dated 11
December 2019, pertinently raised the
following issues:
(a)
that the Respondent was informed by the First Applicant how to
back-up
data but chose not to procure the service;
(b)
that the Respondent was well-aware that back-up data should always be
stored in multiple
copies across multiple locations; and
(c)
he knew or ought to have known the CVM platform was not designed to
run business or enterprise
workloads.
12.4
The First Applicant attached “FII” to its papers, which
it alleged was a copy of the Respondent’s
“press release”
time line from the Respondent’s previous website.  On 29
June 2020, the Respondent sent
an email to the Chief Executive
Officer of the First Applicant (Grant Bodley) in which he included a
link to its previous website.
In the email, the Respondent
referred the CEO to the text on the website.  The First
Applicant alleges that the text in part
contained the following
threat:
“
As
the website clearly shows, Dimension Data have absolutely no defence,
and have also failed to cover up their negligence, it makes

embarrassing reading.  Based on Dimension Data having no
defence, please tell your attorneys not to send me any documents,

they will just be deleted by me, I will not waste my time on
nonsense.  If they do annoy me, I will increase my minimum
settlement
amount.
If
you disagree with any of the context, let me know what you disagree
with and provide proof to back your claim.
You
have until 17h00 Wednesday 1
st
July 2020 to complete this part of the process, and then we will
continue to the next and final stage.  We will shut the website

down at 17h00 on Wednesday 1
st
July 2020.
I
recommend that you email me directly for confidentiality sake for
[the First Applicant], and to avoid any misunderstandings or
delays
that might prove detrimental to you”.
12.4.1 The First
Applicant contends that the Respondents previous website contains the
press release the latter sent to his customers
as well as extracts of
a letter addressed to the Respondent by the First Applicant to which
the Respondent had appended his comments.
12.5    On
1 July 2020, the Applicant’s attorneys addressed a letter to
the Respondent and his attorney.
In the letter, the First
Applicant highlighted material inaccuracies to the Respondent’s
letter to the First Applicant’s
CEO.  The First Applicant
once again denied liability to the Respondent and made it clear that
it did not accept the threat
especially of increasing the settlement
amount.
12.6
Upon receipt of that letter, the Respondent on 1 July 2020 sent an
email to the First Applicant’s CEO
and copied the First
Applicant in which he recorded that (emphasis added by the First
Applicant):
“
I
just received a nonsense email from your attorneys.
As
I warned, our minimum claim has now gone up by 10%.
You
still have until 17h00 this evening to point out anything you feel is
incorrect on the
https://www.isat-vs-is-and-dd.net/
Web site
,
with
some proof.  The website will be disabled shortly after 17h00”.
12.7
On 13 July 2020, the Respondent sent an email to the First Applicant
stating as follows:
“
Less
than 8 days to D day for Dimension Data, but still no response from
you.  It would seem you are not taking this very seriously?”
12.8    On
20 July 2020, the Respondent sent yet another email to the First
Applicant stating:
“
Just
a reminder, this is the last day for a negotiated settlement, before
publication and marketing of the
https://www.isat-vs-is-and-dd.net/
Web
site
as
well as a new press release, which also references the site.
We
have had no response on the matter from Dimension Data at all, this
will of course be documented on the Web site.  It gives
some
indication on how seriously Dimension Data takes its business and its
future.
This
behaviour certainly will not inspire any confidence in Dimension Data
from existing and potential new customers and business
partners.
Dimension
Data staff, who knows about the situation, should be getting nervous
about their continued job security at this point”.
12.9    On
21 July 2020, the Respondent sent another email detailing the
following:
“
We
do understand that the settlement amount will be substantial.
We are open to the idea of a payment plan settlement, if
Dimension
Data does not have the financial resources for a once off
settlement.  You would need to contact me within the next
couple
of days though to discuss the possibility.
We
also understand that
the
disclosure of the information on the Web site will have dire
consequences for Dimension Data nationally and internationally,
and
many staff will lose their jobs, including yourself.  Dimension
Data itself might not actually survive; maybe the remnants
will be
absorbed into NTT Ltd,
similarly
like Internet Solutions was absorbed into Dimension Data.  This
responsibility rests entirely on your shoulders though,
and it is
something you and your future career will have to live with.
Dimension Data needs to act responsibly and be accountable.
In
the meantime, we have republished
https://www.isat-vs-is-and-dd.net/Web
site
.
It has
not been indexed for SEO yet.  There has been some changes and
updates made to the site.
Please
check through the site, either yourself and/or people from your
management team.  You have until 17h00 Thursday 23
rd
of July to reply with details of any content you deem to be
incorrect, and why.
Please
remember that if you do not personally respond, we take that to mean
that you entirely agree with the content of the Web
site.  And
this will be noted on the Web site.
From
Monday the 27
th
of July we will index the Web site at various search engines and
allow the content to propagate, and then also send out a new press

release, and begin the Web site marketing processes described in a
previous email.  And you, the rest of the management team
and
Dimension Data itself will immediately be in the news for all the
wrong reasons”.
.
. .
12.10  On 25 August
2020, the Respondent wrote again to the First Applicant and stated
the following:
“
We
have made some changes and republished the
h
ttps://www.isat-vs-is-a
nd-
dd.net/ Web site
.
It has
not been indexed for SEO yet.
Please
check through the site, either yourself and/or people from your
management team.  You have until 17h00 Thursday 27
th
August to reply with details of any content you deem to be incorrect,
and why.
Please
remember that if you do not personally respond, we take that to mean
that you entirely agree with the content of the Web
site. . .”.
12.11  The First
Applicant avers that the Respondent sought to extend his harassment
of it by addressing an email dated 2 September
2020 to the Second
Applicant notwithstanding that the latter was, a separate entity and
had nothing to do with the operations of
the First Applicant.
The contents are as follows:
“
I
am not sure if you are aware of the major issue iSAT has with
Dimension Data in South Africa.
I
have been trying to contact and alert anyone from NTT Ltd leadership
via the Contract page on NTT Ltd Web site, but to no avail.
Please
see the Web site
https://www.isat-vs-is-and-dd.net/
and guide Dimension Data
management to take responsibility for its actions and save it from
seemingly want to destroy itself.
And
of course protect NTT Ltd, and NTT Ltd brands from extremely bad
publicity.
If
Dimension Data considers any of the information on the Web site to be
inaccurate, they must notify me via email.  That being
said
Grant Bodley has not come up with anything he disagrees on, after
being asked to check on three different occasions.
Unfortunately,
Dimension Data attorneys are way out of their depth as well, which is
certainly not helping their clients, and maybe
adding to Dimension
Data confusion.
Have
a look at the Web site, and you will soon agree that Dimension Data
are in terrible trouble, and they do not seem to realise
it, or they
are trying to keep this from NTT Ltd”.
12.12  The First
Applicant states that on 9 September 2020, its attorneys accessed the
Respondent’s website and copied
some extracts, which the First
Applicant contextualised as containing false, misleading and
defamatory statements about the applicants
inter alia
as
following:
“
The
allegation that the First Applicant is guilty of and has admitted to
gross corporate negligence;
The
allegation that the Second Applicant is preparing to shut down the
First Applicant globally and has no interest in the First
Applicant’s
future.
The
allegation that the First Applicant is “self-destructing”
and that the Second Applicant has no interest therein;
The
allegation that the First Applicant has attempted to “cover up
its terrible failings; and
The
allegation that the Respondent “feels morally obliged to inform
Dimension Data’s clients and those thinking of working
with
Dimension Data to take incredible care” and that “the
potential risks for corporate institutions and businesses
of any
size, in South Africa or anywhere else in the world, when using
Dimension Data’s products and services, may be great”.
[13]
The Applicant’s attorneys once more wrote a letter to the
Respondent demanding that it
must decease with its conduct of
harassing, defaming, threating and inciting its employees and
customers.
[14]
On 14 September 2020, the Applicant’s attorneys wrote a letter
detailing the history of
the matter and the chronological unlawful
campaign of harassment against the Applicants by the Respondent.
In it, the Applicants’
attorneys sought a written undertaking
from the Respondent that he shall decease from such conduct failing
such undertaking, by
18 September 2020, the Applicants shall bring an
application in court for an appropriate relief.  The Respondent,
instead
sent an email to the First Applicant stating that he was to
make his (Respondent’s) website live on 16 September 2020 and

would also send the press release on the same day.  Again, the
Respondent sent an email to the First Applicant stating that
if it or
its employees or attorneys do not respond to the context of his
website by Monday 21 September 2020, he would “understand
that
to mean that there are no disagreements with the text”.
Simultaneously, the First Applicant received communication
from the
Respondent’s attorneys denying that they threatened, published
threatening and distributing factually untrue information
about the
First Applicant.
E.
Undertakings and flouting thereof by the Respondents
:
[15]
The First Applicant states that eventually, on 25 September 2020, the
Respondent sent an undertaking
(which was accepted by the Applicant’s
on 28 September 2020) to the following effect:
“
Our client
undertakes that he will not:
1.
deliver threatening, defamatory and factually untrue correspondence
to your client’s
Senior Executives;
2.
publish threatening defamatory and factually untrue information about
your clients
on the website;
3.
distribute press releases to his client base which contains
threatening and factually
untrue information about your clients.
Without
conceding any obligation to do so, our client will take down the
website as an interim measure.  Our client will provide
your
client within 5 days’ notice should he intend putting the
website up again.
.
. .
Our
client’s rights are reserved”.
[16]
The First Applicant avers that despite the above undertaking, the
Respondent sent a barrage of
emails to it and to its Executives
repeating the same defamatory and threatening material like:
·
“
That
the First Applicant has admitted to gross negligence and that the
First Applicant and its attorneys have found no fault with
the
Respondents website”.
[17]
On 2 October 2020, the Respondent sent an email to the First
Applicant.  I shall refer to
experts relied on by the First
Applicant as constituting threats and thus deviating from the
undertaking.  The Respondent
writes:
“
My patience with
this process has finally runout”.
. . .
The time is now 12h00.
The new website is now available at a new VRL.  At this time
search engine, indexing on the website
is still disabled.
At 14h00 today:
1.
The search engine indexing will be enabled for the new website.
2.
The press release will also start going out to our contact database,
made up
of about 800 000 South African Contacts and just
over 500 000 International Contacts.  The sending
process
is load balanced over two servers, it will send 10 000
press releases in the first hour and increment by 10 000 an

hour, until it reaches full capacity of about 100 000 per hour.
3.
iSat will send out the press release manually, to selected press
contracts from
online computer technical news websites, and upper
management contracts in  the industry.  If duly authorised
Dimension
Data Management representative advices me, in writing
(email) that the company is willing in good faith to enter

into settlement negotiations with me, I will suspend the above
outlined process”.
[18]
Again on 20 October 2020 at 3:20pm, the Respondent sent an email to
the First Applicant hoping
that the First Applicant appreciates the
repercussions of the press release and that the cut off for sending
the press release
was 17h00 that day.
[19]
The First Applicant attests that the Respondent erroneously alleged
that, “it had consented
to the press release something’
which was wrong.  The respondent despite that being brought to
his attention continued
to send two emails, similarly making a point
that the “
press
release to go out shortly
”
and
containing the following threatening statements.
“
The
Applicant’s attorneys are playing with the survival of
Dimension Data, and they do not   seem to realise it, or care.

. . .  Our final cut off for sending out the press release is
17h00 today, unless we hear something positive from someone
in
authority at Dimension Data.  If Dimension Data’s
attorneys contact me again in between thoughts, we will send out
the
press release immediately”.
[20]
The Applicant contends that on 5 October 2020, the Respondent began
distributing the defamatory
and factually untrue press release about
the Applicants to over one million national and international
recipients and continues
to do so.  The First Applicant alleges
that the Respondent distributed the press release to contacts in its
database as well
as Executives in the industry.
F.
The Respondents Case
:
[21]
The Respondent states that in June 2014 he decided to supply virtual
servers to his clients by
means of the First Applicant’s CVM
product.  The Respondent attests to its long-standing
relationship with the First
Applicant.  The CVM provided the
Respondent with a platform to enable it to deploy and manage virtual
servers for its client
base.  The Respondent defines a virtual
server as a means which a user may store its data and run its systems
and applications
without itself having to acquire the necessary
hardware and thereafter having to maintain both.
[22]
The Respondent testifies that prior to opting to subscribe to CVM,
his General Manager, Ms Michelle
Pieterse enquired from the First
Applicant’s, Michele Brink regarding the means by which a
client could back up data from
CVM.  The response was that the
Respondent would have to acquire an additional service called Attix
5.  The Respondent
made investigations about Attix 5 and found
that the applications’ programmers’ interface (that is
the means by which
the software developer would gain access to the
CVM platform) would not provide sufficient capacity to enable it,
without more
to provide a virtual server to each customer.  To
do so, would have required iSAT to create and configure each virtual
server
for each customer and to maintain a firewall interface for
each such customer.  iSAT would have required the use of time
and
resources, which it hoped the CVM platform would save.  For
those reasons, the Respondent opted not to consider the Attix 5’s

proposal.  On 25 June 2014, the Respondent signed the agreement
and proceeded to develop its virtual servers.
[23]
Approximately two months after the conclusion of the CVM, Ms Pieterse
communicated with Mrs Brink,
the General Manager of the First
Applicant, in order to obtain an updated price on Attix 5.  The
reason was that iSAT was
considering providing its customers with a
data backup solution whereby they would be able to back up their data
to a virtual server
on CVM platform.  Seemingly, iSAT did not
opt to subscribe to Attix 5 and instead made use of the scheduled
backup option
in Microsoft SQL Server to back up vital database data
and other automated systems used to backup customer and other iSAT
business
data.
[24]
The Respondent states that on 18 March 2019, CVM platform crashed
without warning and without
subsequent meaningful communication from
the First Applicant as to what caused it and whether there was any
prospect of restoring
it.  The Respondent makes the point that
he communicated on numerous occasions with the First Applicant
enquiring as to the
actual cause of the crash to no avail.  At
first, all that the Respondent received was an email dated 19 March
2019 from the
First Applicant.  The subject matter was:
“
Major
impact, cloud CVM, Randview, reflecting the affected service as
“Consumer Virtual Machine”; the grade of service
impact
was reflected as “Major”.  An updated message
revealed that “is engineers still attending, no ETA”.”
[25]
The Respondent says this information was not sufficient for iSAT to
enable to plan a response
to convey to and inform its customers.
The Respondent continued to receive similar emails about 75 times.
The emails
were of no assistance to the Respondent in that it lacked
detail about what the problem was, the steps taken to resolve it and
if possible what was being done to assist the customers.
[26]
The impact the crash had on iSAT, according to the Respondent, was
that iSAT systems were down,
its website was down together with those
of its customers and its online helpdesk service was unavailable with
the implication
that any customer who wished to top up its data, make
payment, implement and update its services with iSAT or to carry out
any
transaction requiring the internet and other services was unable
to do so.  The result was that the iSAT’s customer support

telephone lines were flooded with enquiries for customers and the
emails received from.
[27]
As the consequence of the crash, iSAT had to rebuild customer data
from a variety of services
and requested its website customers to
republish their sites, which in some instances proved to be
impossible.  The Respondent
defines its loss thus:
“
iSAT however,
irretrievably lost all of the data related to the major software
development project on which I and development staff
had been engaged for in
excess of 4 years.  The consequences of the CVM crash were
devastating, not only from a technical,
customer relations and data
loss   perspective but also in human terms.  A number of
iSAT’s staff members continue
to require
treatment and medication to this day as a consequence of the stress
caused thereby”.
G.
OpenStack Software
:
[28]
The Respondent intimates that prior to the CVM agreement; he and his
staff were able to establish
that CVM was based on OpenStack
Software.  The Respondent states that OpenStack is the leading
open source cloud solution
available in the world and is supported by
major information technology organisations internationally.  The
Respondent described
OpenStack Software as follows:
“
Software
(in particular open source software) is not and cannot be a static
commodity.    OpenStack is via a constant
state of
development, with various versions (or series) as they are
developed, being allocated a name and being released in six
month
cycles.  After the initial release date of each series, the
series in question continues to be maintained and additional
stable
point releases will be made over a period approximately 18 months,
where after the series in question will reach what
is referred to as
its “End of Life” date from which point no further
maintenance will be concluded”.
[29]
In support, the Respondent annexed as AA9, a document reflecting such
information and his knowledge
about OpenStack led iSAT to have
sufficient confidence to conclude that current and stored data would
be safe on the CVM platform
hence he concluded the agreement.
Even the First Applicant characterised OpenStack to iSAT as “the
best of breed product”.
[30]
In his
post facto
enquiries, the Respondent found that the
First Applicant, being such a reputable service provider, did not act
in accordance with
the above stated protocols in maintaining its
OpenStack Software.  Because of the crash, the Respondent penned
an email dated
16 April 2019 enquiring:
“
(a)
which version of OpenStack was CVM running on when it crashed;
(b)
which version of OpenStack was CVM running on currently;
(c)
how many instances were impacted; and
(d)
how many customers were impacted”.
[31]
On 23 April 2019, the Respondent sent a further copy of the email to
the email addresses of Andrew
Green, Michelle Brink and Basha Pillay
because he did not receive a response from the First Applicant.
That was followed
by other emails to the same persons on 30 April
2019.  On 3 May 2019, Michelle Brink responded as follows to the
enquiries
raised above,
“
CVM
had been
running on the Icehouse version (or series)
of
OpenStack
and when it crashed, it was running on Juno series”.
[32]
The Respondent alleges that the response by Ms Brink, confirmed the
suspicions the Respondent
had about the cause of the crash.  The
Respondent says in terms of the schedule, the Icehouse series of
OpenStack was released
on 17 April 2014 and had reached its End of
Life on 2 July 2019 (and it would have been unmaintained for a period
of some six months
prior thereto) and Juno, its successors had been
released on 16 October 2019 and had reached its End of Life on 7
December 2019.
The inexorable conclusion the Respondent arrived
at was that the First Applicant had continued to operate its CVM
platform and
to offer and sell it to customers without conducting
essential maintenance to the underpinning OpenStack Software and
continuously
upgrading it to the latest series as these became
available.
[33]
The Respondent avers that it is beyond doubt that the negligent
conduct of the First Applicant
described above was the cause of the
collapse and the extensive adverse consequences to iSAT and to large
numbers of other customers.
Furthermore, the Respondent alleges
that the First Applicant consistently refused to disclose to him the
technical details of the
collapse of the CVM platform and has
consistently attempted (through the medium of this application), to
frustrate the publication
of the true facts.
[34]
The Respondent admits, to most if not all, of the
communication/emails he sent to the Applicants
and the contents
thereof.  Regarding the press release, the Respondent says he
sent it to the First Applicant for it to comment.
The
Respondent states that he saw fit that the negligence of the First
Applicant should be brought to attention of its clients
and potential
clients and the public at large.  Furthermore, the Respondent
alleges that he formed the view that there was
at least a possibility
that the negligent approach by the First Applicant with regard to the
use of OpenStack could have occurred
elsewhere in its operations and
to other products supplied by it as well.
[35]
The Respondent argues that he stands by the press release and
provided the First Applicant with
an opportunity to provide an
alternative version of events or to take responsibility and to inform
the public what steps were taken
to avoid recurrence.  The
Respondent therefore denies that the information contained in the
press release was factually untrue
and defamatory.  Such facts
were in the public interests and to the benefit of the public.
[36]
The Respondent admits that on 29 June 2020 he did send the letter
FA12 to the Chief Executive
Officer of the First Applicant in which
he included a link to its previous website.  The Respondent
states that the reason
was to alert the First Applicant’s CEO
to the fact that he was intending to make the information in the
website generally
available in order to again afford the First
Applicant an opportunity to provide any comment it might have.
However, the
Respondent admits that in retrospect, and duly advised,
he should not have suggested that should the First Applicant again
merely
hand the correspondence to its attorneys for response, he
would “increase my minimum settlement amount”.  The
Respondent admits further that that was an inappropriate way of
attempting to gain a response, which he now regretted.  The

common thread in the responses proffered by the Respondent in respect
of repeated emails to the First Applicant and its CEO is
that “given
the First Applicant’s continued silence on the real issues, it
was important that I continue to push for
a response”.  In
respect of the repeated claims about the minimum amount and its
increase, the Respondent regretted
doing so.
[37]
In respect of FA19, which is the letter dated 21
July 2020 referred to above, the Respondent alleges that
the letter
does not constitute a threat.  However, he states that he
formulated the letter without taking legal advice.
In
retrospect and having received such advice, he regrets any
implication that his intent to publicise the background to the crash

of the CVM platform and the consistent failure of the First Applicant
to address that, was linked to the payment of damages.
The
Respondent concedes that the use of his potential claim as a means of
eliciting comment was ill advised and would not be repeated.
[38]
The Respondent defends the inclusion of the Second Applicant,
especially the contents of FA12,
by stating that the First Applicant
is a subsidiary of the Second Applicant and part of the group of
companies of which the latter
is the holding company.
Therefore, the Respondent argues that it was and still is in the
interests of the Second Applicant
in that capacity to be informed of
the events dealt with in “FA22”.  The Respondent
denies that such communication
constitutes harassment.
[39]
In a summary form, the Respondent submits that none of the extracts
from the press release threatening,
false, misleading or defamatory
especially that such extracts are not accurately reproduced in the
founding affidavit, and no material
context was pointed out.
The Respondent makes the point that the statements were correct in
that:
(a)
the First Applicant does not dispute the cause of the crash imputed
by the Respondent;
(b)
the conclusion arrived at by the Respondent that the First Applicant
was grossly negligent
is legitimate and inexorable particularly in
the absence of any comment from the First Applicant as to the cause
of the system
failure;
(c)
the website does not contain the positive assertions (that the Second
Applicant is
preparing to shut down the First Applicant globally and
has no interest in the First Applicant’s future and further
that
the First Applicant is “self-destructing” and the
Second Applicant has no interest herein) but rather queries put up

for debate as to whether the facts related might not lead to those
conclusions;
(d)
the only conclusion based on the facts and the absence of an
explanation is that the
First Applicant was grossly negligent in
conducting its business;
(e)
it is correct to state that “in iSAT’s opinion the First
Applicant has
also tried to cover up its terrible failings”
because it failed to provide an explanation for the crash;
(f)
its failure to allow the Respondent access to the First Applicant’s
Head
of Cloud Services, Basha Pillay; and
(g)
because none of the principal employees responsible for the CVM
platform remain in
the services of the First Applicant.
H.
Urgency
:
[40]
The First Applicant submits on urgency, that it became aware of the
press release on 6 October
2020, when members of the press and other
interested parties began calling in for comments.  The Applicant
started drafting
papers on 2 October 2020 and had to update its
papers daily having regard to the most recent harassment by the
Respondent.
The First Applicant further submits that the
actions of the Respondent caused it to suffer real and irreparable
harm to their business
and shall continue to do so unless the
Respondent is interdicted from doing so.  The First Applicant
states that there is
no other form of substantial redress available
to it in due course.
[41]
The parties agreed on an interim order by agreement as reflected
above in paragraph 3.
Based on the terms of the interim order,
the First Applicant submits that urgency is no longer an issue.
The First Applicant
distinguishes the facts of this matter from those
in
Caledon
Street Restaurants CC v D’Aviera
[2]
.
The First Applicant argues that the decision to bring the matter on
an urgency basis was triggered by the Respondent’s
conduct of
distributing the press release on 5 October 2020.  As stated,
the issue of the distribution of the press release
is not disputed by
the Respondent.  The First Applicant states that the curtailment
of the times, was not drastic in that
it only allowed for a period of
a week for the Respondent to file the answering affidavit (inclusive
of weekends).  The First
Applicant, however, accepted that the
only prejudice would have been in respect of the filing of the Notice
to Oppose.  Nevertheless,
the First Applicant avers that the
truncation of the times was reasonable in the circumstances of this
matter because it was urgent
anyway.
[42]
The Respondent argues that the application lacks averments to
establish urgency.  The press
release (the publication and
distribution) had already occurred therefore no prejudice would be
suffered further, so the argument
goes.  The Respondent argues
further that the Applicants have not set out facts or reasons why
they contend that they could
not have been afforded substantial
relief at a hearing in due course.  The Respondents contends
that the statements in the
publication are true and for the benefit
of the public especially those who are in the industry.  Mr
Rorke, for the Respondent,
argued that the Applicants waited for a
period of a year before they brought the application and despite
that, they gave the Respondent
seven (7) days within which to file an
answering affidavit, something that is ill considered and
ill-conceived in the circumstances.
[43]
Rule 6(12)(a) of the Uniform Rules of Court provides that in urgent
applications a  court
or a judge may dispense with forms and
service provided for in the Uniform Rules of Court and dispose of
such matter at such time
and place and in such manner and in
accordance with such procedure as it deems meet.
[44]
Rule 6(12)(b) stipulates that in any affidavit in support of an
urgent application, the deponent
must set forth explicitly the
circumstances which render the matter urgent and the reasons why the
applicant claims that he could
not be afforded substantial redress at
a hearing in due course.
[45]
Following the procedure in Rule 6(12)(a), the Applicant gave the
Respondents a period of three
(3) days to file his Notice to Oppose
and seven (7) days to file his Answering Affidavit.  Ordinarily,
if the application
was not brought by way of urgency, the Respondents
would have been (in terms of Rule 6(5)(b)(iii)) required to file his
notice
of opposition within five (5) days of service of the papers on
him and 15 days to file its answering papers.  This is not an

application contemplated in Rule 6(4) of the Uniform Rules in that it
was not brought
ex
parte.
[46]
Coetzee J, in
Luna
Meubel Vervaardigers v Makin and Another
[3]
dealt succinctly with factors which must be taken to account in semi
– urgent applications, like this one.  He listed
four
factors (in their ascending order) which have to be borne in mind.
Kroon J, in
Caledon
Street Restaurant CC v D’Aviera
[4]
added a fifth factor to be taken into account. The
ratio
(which is relevant) in Coetzee J’s judgment has to do with the
abridgement of time periods contemplated in Rule 6(5)(d) as
I stated
above and the setting of the matter down by the Applicant on a day
other than a motion court day.  He laments the
latter.  In
this instance, Bands AJ, having considered the certificate of urgency
in terms of our Practice Manual issued a
directive endorsing the
abridged time lines set by the Applicants and by setting the matter
down on a motion court day i.e. Tuesday
20 October 2020.  She
decided that the matter was sufficiently urgent to merit the
truncated times sought by the Applicant.
[47]
Effectively, Kroon J stated that the fifth factor, which requires
consideration is whether financial
loss, even if irreparable and
serious, can constitute grounds of urgency sufficient to entitle an
applicant to a modification of
the rules.  Such is not
applicable in this matter.  The application was not brought
because of financial considerations.
The interdictory relief
sought was for prevention of the publication of defamatory material
and other reliefs sought.  The
Applicant had been in
correspondence with the Respondent about the publication or press
release and the continued threats of seeking
a reward for the
prescribed negligence of the Applicant in allowing the crash of the
CVM platform.  Prior to the launch of
this application, it is
correct that the Applicant sought permission to serve the papers on
the attorneys of the Respondent to
no avail.  The publication of
the press release occurred on 5 October 2020.  As stated, the
papers were issued on 9 October
2020, by the Registrar and served on
the same day at 11h13.  This, as mentioned above, was after
Bands AJ, on 8 October 2020
had certified that the matter was semi –
urgent and allowed the truncated time periods set by the Applicant.
[48]
The correspondence between the parties, which culminated in the press
release span over a long
time.  The averments on urgency, which
have been averred by the Applicant should also to be viewed in that
background.
The Respondent were advised at the fore of the
dispute between the parties that the Applicant disputes that it was
negligent in
any way alleged by him.  However, his conduct of
threatening and harassing the Applicant continued unabated.  The
culmination
was the press release.  The release inevitably led
to the harm the Applicant suffered.  That the harm had occurred
does
not necessary imply that the conduct of the Respondent need not
be urgently interdicted.  The Respondent and his attorneys
had
not once, undertook not to continue with this conduct.  The
Respondent eventually made good of the threat and such conduct
needed
to be urgently interdicted.
[49]
The Applicant clearly would suffer more harm if the press release as
contained in the website
had allowed remaining.  That, the
publication and distribution had already taken place, does not mean
that an application
interdicting such conduct and the taking down of
the website could not be urgently interdicted.  The existence of
the website
would perpetuate the harm contended for by the
Applicant.  The adverse consequences to the business of the
Applicant as an
International business (something that the Respondent
accepts and contends) would continue to its existing and potential
clients.
To me the truncated times set by the Applicant and
endorsed by Bands AJ were reasonable and did not prejudice the
Respondent.
I.
Striking Out
:
[50]
The Respondent contends that the deponent is a legal adviser who on
the face of it has no technical
expertise in the field of computers
and computer software and has not qualified himself as an expert in
the field.  The Respondent
contends that the events relating to
the crash of the system would not be within the direct knowledge of a
legal adviser and the
latter places in facts from which it may be
concluded that he was directly involved in such events.
[51]
The Respondent attacks some paragraphs of the replying affidavit as
being impermissibly argumentative,
inadmissible hearsay, and contain
new matters, which were not dealt with in the founding affidavit.
In respect of the hearsay
evidence, the Applicant made an application
for the admission of a supplementary affidavit of Mr Green.  In
his application
to strike out the Respondent objected to the
introduction of the further affidavit of Mr Andrew Green for lack of
leave of this
court to file such an affidavit.  Such objection
does not stand since the Applicant has sought such leave, which has
since
been granted.  Furthermore, the Respondent intimates that
the further affidavit should be struck out in its entire for the

reason that it introduces new matter in reply.
[52]
Mr Green filed a confirmatory affidavit in respect of the replying
affidavit.  Mr Green
hereby states thus:
“
I
have read the replying affidavit of Pieter Zwemstra and confirm the
correctness of the allegations therein contained in so far
as they
pertain to me”.
The
Applicants accept the criticism levelled against the confirmatory
affidavit, which had been criticised by the Respondent and
ascribes
that to the slovenly manner in which the Applicants attorneys drafted
the confirmatory affidavit.  To me that is
poor drafting skills
by the Applicant’s attorneys and their nonchalant manner in
which they approached it.  The reason
for filing the attached
confirmatory affidavit was to confirm the contents of the replying
affidavit as far as they pertain to
him and the role he played as the
Operating Officer for Cloud and Comus and as an employer of the First
Applicant.
[53]
The further confirmatory affidavits expatiates on the duties and
responsibilities of Mr Green,
his Curriculum Vitae and that he had
personal first – hand knowledge of how and why the CVM platform
crashed.  Furthermore,
Mr Green sought to confirm the following
paragraphs of Mr Zwenstra, 19, 28, 48.3, 26, 27.3, 32, 40.2, 47.3 and
48.3.
[54]
The filing of further affidavits is in the discretion of a court.
In
Transvaal
Racing Club v Jockey Club of South Africa
[5]
Williamson J, confirming this principle said the following:
“
In
my view the authorities do not restrict the discretion on the Court
in the manner suggested.  I think that if there is an

explanation which negatives
mala
fides
or
culpable remissness as the cause of the facts or information not
being put before the Court at an earlier stage, the Court should

incline towards allowing the affidavits to be filed.  As in the
analogous cases of the late amendment of pleadings or the
leading of
further evidence in a trial, the Court tends to that course which
will allow a party to put his full case before the
Court.  But
there must be a proper and satisfactory explanation as to why it was
not done earlier, and, what is also important,
the Court must be
satisfied that no prejudice is caused to the opposite party which
cannot be remedied by an appropriate order
as to costs.  In the
present instance there is a completely satisfactory explanation as to
why the affidavits containing new
facts were not filed earlier; there
is no suspicion of
mala
fides
and
I find no culpable remissness.  No prejudice to the applicant
which cannot be remedied by wasted costs being awarded, it
has been
suggested”.
[55]
Similarly in this matter no prejudice shall be suffered by the
Respondent if the further confirmatory
affidavit is admitted.
As stated above the further affidavits is attacked basically on the
same grounds as the replying affidavit
is assailed, apart from what
his daily duties entailed.
[56]
Rule 6(15) of the Uniform Rules allows a court to strike out from any
affidavit any matter which
is scandalous, vexations or irrelevant.
The Rule further provides that the court shall not grant the
application unless it
is satisfied that the Applicant will be
prejudiced in his case if it is not granted.  I shall deal with
the impugned paragraphs
as they are categorised in the application to
strike out.
Paragraphs
4 – 10 of the Replying Affidavit
:
[57]
The Respondent submits that these paragraphs are impermissibly
argumentative.  Paragraph
4 of the replying affidavit attacks
the answering affidavit as containing irrelevant issues and avers
these were unfounded conspiracy
theories about the First Applicant.
Paragraph 4 deals with what the First Applicant considers relevant in
this application.
The deponent states as follows in that
regard:
“
The
matter is about the continuous unlawful harassment of the Applicants
by the Respondent and his numerous threats to publish –
and his
eventual act of publishing – defamatory material concerning the
Applicants, notwithstanding the Respondents express
written
undertakings not to do so”.
[58]
I find no argument being proffered in this paragraph.  This is a
rehash of the case the
First Applicant made out in its found
affidavit.  Furthermore, paragraph 4 contains a global overview
of the facts made out
in the founding affidavit, the answering
affidavit and the order sought by the Applicants.
[59]
Paragraph 5 in essence highlights the admissions made and the
defences raised in the answering
affidavit.  In that regard, the
deponents state as follows:
“
These
allegations are farfetched and untenable and must be rejected.
Indeed, the context of the Respondent’s numerous
e-mails, press
releases and website contradict these spacious excuses and
Respondent’s clear goal from the outset has always
been to
extract some form of payment from the First Applicant”.
The
excerpt encapsulates what has been contended in the founding
affidavit.
[60]
Similarly, paragraphs 6 and 7 re-iterate the conduct complained of
and talk to the issue of the
payment of the billions of Rands in
damages made by the Respondent without raising any argument in
relation to those issues.
Paragraph 7 merely mentions that past
the granting of the interim order (by agreement between the parties)
the Respondent refrained
from continuing with the conduct complained
off.
[61]
Paragraph 8 merely regurgitates the provisions of the interim order
granted and the attachment
is a copy of such order.  In
paragraph 9, the deponent asserts that the issue of urgency is
academic in the light of the interim
order and argument in that
regard would be made at the hearing.
[62]
Paragraph 10 is brief and reads:
“
In
any event, in light of the interim order, there is no longer an issue
of urgency so long as the Respondent abides by the interim
interdict
set out therein”.
This
paragraph deals with what the deponent perceives to be that urgency
is no longer an issue, it does not argue the point at all.

Paragraphs 9 and 10 do not pose an argument on urgency.  Even if
I am wrong, there is no prejudice that the Respondent suffers
as a
result thereof as envisaged by Rule 6(15).
Paragraph
19
:
[63]
The Respondent contends that this paragraph consists of entirely
hearsay evidence, which is irrelevant
and falls to be struck out.
Regarding sub-paragraphs 19.2–19.4, the attack is that they
constitute new evidence material
to the case sought to be made in the
founding affidavit.  For this reason, I shall refer to paragraph
19 in its entirety.
Paragraph 19 reads:
“
19.
AD PARAGRAPH 13 TO 15
19.1
In computing, a “virtual machine” or VM is an emulation
of a computer system.
In other words, it is ‘a computer
within a computer’.  Virtual machines are based on
computer architectures and
provide the functionality of a physical
computer.  A physical piece of computer hardware can run many
virtual machines with
all of the virtual machines sharing the
physical computer’s hardware resources.
19.2
The First Applicant’s Consumer Virtual Machine (“
CVM”
)
service was precisely that a virtual machine for the consumer
market.  The service was “consumer” class and as

such was an extremely economically-priced service (approximately one
tenth the price of an “enterprise” class virtual
machine
service), had no service level agreement and was commonly referred to
as a “best effort service”.
19.3
It did not include a data backup service, as was explained to the
Respondent prior to his having
contracted for the service.
19.4
It was not built or intended for use in business or to host product
type workloads.  It
was designed and priced for non-critical
workloads, development and/or test-type environments.
19.5
Save as aforesaid, the allegations contained herein are denied”.
[64]
The issues addressed in this paragraph are a response in paragraph 13
to 15 (to state the obvious)
which read:
“
13.
The CVM product offered by the First Applicant has precisely that
purpose.  As is stated
in the portion of the contract document
provided by the Applicants (Schedule CVM2 to annexure FA2 to the
founding affidavit) the
CVM product provides the subscriber (referred
to as “the Partner) with a platform to enable it to deploy and
manage virtual
servers for its client.
14.
A virtual server in simple terms is a means by which a user may store
its data and
run its systems and applications without itself having
to acquire the necessary hardware (and concomitant software) and
thereafter
having to maintain both.  A virtual server
accordingly also offers software development capacity (and the
storage capacity
to go with it).
15.
The CVM product accordingly offered iSAT the opportunity, should it
subscribe thereto,
not only to provide its own processing and storage
needs, but to offer and provide a virtual server to each of its
clients”.
Paragraph
19 must be viewed in the backdrop of paragraph 25 and its annexures,
of the founding affidavit.  In paragraph 25
of the founding
affidavit, the deponent talks to the correspondence with the
attorneys who were representing the Respondent about
how to back-up
data and informing them that it was an additional service which the
Respondent chose not to procure.  The deponent
further states in
paragraph 25.2 that the Respondent was well aware that it is common
practice that back-up data should be stored
in multiple copies across
multiple locations.  The Respondent knew or ought to have known
that the CVM platform was not designed
to run business or enterprise
workloads.  The deponent attached an email as Annexure FA9,
which confirms this assertion.
The contents of paragraph 2.2
thereof read:
“
2.2
Furthermore, being a Consumer Virtual Machine, your client knew or
ought to have known that
the platform was not designed to run
business or enterprise workloads”.
[65]
Mr Cross, for the Applicants, further referred to Annexure FA13.2
attached to the founding affidavit
in support of the argument that
the issues raised in this paragraph were dealt with in the founding
papers.  Annexure FA13.2
is an email from Julian Sunker
(previous Executive of the Applicant) to Cristopher Arnold (attorneys
of the Respondent) dated 9
October 2019 reading thus:
“
Please
be advised that your client was fully aware that the VM service is an
infrastructure – as – a service platform
only, and as
such Virtual Machines, applications and data remain the client’s
responsibility.  Due to this and the services
technical nature,
no Service Level Agreement is available and downtime cannot be
prevented”.  (
Sic
)
The
information contained in this paragraph is merely an amplification of
what is stated in Annexure FA9 and FA13.2.  I find
that this
paragraph does not introduce new evidence material.
Paragraph
26
:
[66]
The objection in this regard is that the deponent is not qualified to
express opinion evidence
in this paragraph and therefore the contents
are impermissibly argumentative and further constitute in admissible
hearsay evidence.
The further affidavit of Mr Green has been
admitted confirming the contents of the deponent in the replying
affidavit.  The
issue of hearsay is no longer relevant in the
light thereof.
[67]
Paragraph 26 is a response to paragraph 23 of the answering
affidavit, which states that iSAT
made use of the scheduled back-up
option in Microsoft SOL Server to back-up the vital database data and
other automated systems
used to back-up customers and other iSAT
business data.  Those back-up files were copied to shared
folders, different virtual
servers, or the CVM platform.
[68]
In reply, the deponent says the contents of paragraph 23 make no
sense and denied them.
In paragraphs, 26.2 and 26.3 the
Applicant begins to postulate about what is meant by the Respondent
as follows:
“
26.2
If the Respondent means to state that he used Microsoft SQL Server to
back up “
virtual
database data”
to
the
very same
location,
namely CVM platform, where the data was located, this is simply not
the proper nor an acceptable method of backing up
data, as anyone
proficient in computers should know.  The Respondent effectively
‘placed all of his eggs into one basket’
and did not
backup the data at all but merely made a copy of it in the same
location.
26.3
If the Respondent means to state that he did properly back up his
data, then that data would
have been recoverable by him from the
location that he backed it up and the Respondent’s complaints
make no sense”.
There
is no doubt that in those paragraphs the deponent responds to
paragraph 23 of the answering affidavit in respect of the manner
in
which the Respondent backed-up its vital database data.  It is
not an impermissible argument in the light thereof.
Paragraphs
27.3 and Annexures RA3.1 and RA 3.2
:
[69]
This paragraph is a response to paragraphs 24 – 26 of the
answering affidavit.  Paragraph
24 speaks to the crash on 18
March 2019 of the CVM without warning and there was no subsequent
meaningful communication from the
First Applicant as to what occurred
and whether there was any prospect of it being restored.
[70]
Annexure RA3.1 is an email, which the First Applicant, through its
Executive Basha Pillay, sent
to its clients including the
Respondent.  It reads that at 18h00 on 19 March 2019, an
emergency change, was scheduled to “replace
faulty hard discs”
on the CVM machines.  It notified the recipients that the data
synchronisation was still in progress
and that some machines were
with volumes and others without but by midday that day the full
restoration and resynchronisation would
be complete.
[71]
On 25 March 2019, the First Applicant sent a message to the
Respondent and other clients who
were similarly affected stating as
follows:
“
Following
the initial hard disc failures experienced on Consumer Virtual
Machine last week, a number of recovery initiatives and
efforts to
maintain data integrity have been undertaken.  It has,
unfortunately taken significantly longer than anticipated
to fully
restore optimal operations.  We, therefore, wish to recommend an
immediate alternative measure so that your business
can keep
running”.
[72]
It is common cause that the First Applicant like the Respondent or
even any entity for that matter,
operate through its employees.
Basha Pillay, is the person who communicated with the customers of
the First Applicant.
The reading of the emails speaks to that.
The communication contained therein talks to the cause of the crash
and the efforts
and the time expected to be taken to have the CVM up
and running optimally again.  This information does not need
expert opinion
and it is not necessary that the author should have
confirmed the contents thereof.  Not every communication sent by
an entity
(in proceedings) need confirmation from the person who
authored the communique.  The purpose of RA3.1 and RA3.2 is to
establish,
contrary to what is alleged by the Respondent in
paragraphs 24 – 26, that there was communication and the reason
was stated
as “hard disc failure”.  The purpose is
not to prove the truthfulness of the content, which would invariably
need
confirmation from the person who diagnosed the problem.  I
am not with the Respondent that this introduces new matter material.
Ad
paragraphs 32 and the Confirmatory Affidavit of Green
:
[73]
I have dealt above with the admissibility of the confirmatory
evidence of Mr Green and need not
repeat that here.
[74]
In paragraphs 46 – 51, the Respondent re-iterates his
suspicions about the reason why the
CVM platform crashed.  He
states, as mentioned above, that the Icehouse of Openstack and its
successor Juno had reach their
end of life.  The Respondent
opines that the inexorable conclusion was that the First Applicant
was negligent in that regard
by failing to continuously conducting
essential maintenance of the Openstack software and upgrading it to
the latest series as
those became available.  Further
allegations are made that the First Applicant attempted to resurrect
the CVM platform on
a different series of Openstack which itself, had
many years before, reached its End of Life.
[75]
It is notable that the allegations by the Respondent in the above
regard are stated as a fact.
In that respect, it is incumbent
upon the First Applicant to respond to such factual allegation and by
either denying or accepting
them.  In its response, the First
Applicant denied the allegations as being speculative, untenable and
unfounded.  In
amplification, the First Applicant states that
the cause of the crash as diagnosed by its engineers was a hardware
malfunction
in the storage subsystem that was physically separate
from the Openstack CVM environment.  The First Applicant went on
to
elucidate what that meant and states that, out of the best efforts
to bring the system back online and to save all data, approximately

only 10% of the data was not recoverable and the Respondent was
amongst those affected.
[76]
I do not find the response by the First Applicant in reply to be
constituting new matter material,
which needs to be struck out.
It is a fair response which does not prejudice the Respondent in any
way possible.
Paragraphs
40.2 and 47.3
:
[77]
Similarly, these paragraphs are a direct response to the issues
raised in reply in paragraphs
63.6 and 63.8 of the answering
affidavit and accepted would not prejudice the Respondent in any
conceivable manner.
Ad
Paragraph 48.3
:
[78]
The response in this paragraph is pursuant to paragraph 72.6 of the
answering affidavit where
an assertion is made by the Respondent
disputing that the CVM platform was not designed to run business or
enterprise workloads
as plainly wrong.  Both parties agree with
each other in these paragraphs that Openstack Software is “best
of breed”.
I see no reason why this paragraph should be
struck out as constituting a new matter.
[79]
The application to strike out these paragraphs overlaps as it is
reflected above.  The objection
is premised on one leg on the
basis that the averments made amount to hearsay evidence.  In
the backdrop of the admission
of the further confirmatory affidavit
of Green, such argument falls by the way side.  In the other
leg, the objection is based
on the reason for the collapse/crash of
the CVM mainly.  In the application to strike out, the
complaint, absent the new material
being introduced should be viewed
in the light of the averments in the answering affidavit.
Continuously, in the impugned
paragraphs, the Respondent raises the
issues of Openstack Software having reached “End of Life”.
Running the
risk of repeating myself that is exactly what the reply
addresses and states the reason for the crash as the hardware
malfunction
as opposed to what the Respondent continuously alleges as
the cause.
J.
Harassment
:
[80]
The Applicants enjoy a right not to be harassed and threatened by the
Respondent in any manner.
The Respondent cannot gainsay such
right.  The only issue, which needs determination is whether the
actions of the Respondent
of repeatedly sending emails to the
Applicant actually amounts to harassment.  Coupled with such is
whether those emails contained
threats to the applicants.
[81]
The issue before me in this regard is not what caused the crash
per
se
.
The crash occurred resulting in the Respondent losing data and that
impacted on the latter’s clients.  That is
a fact, which
can never be disputed.  It is apparent from the papers that the
Applicants contend that the cause of the crash
was the hardware
malfunction in the storage sub-system that was separate from the
Openstack CVM platform.  The Respondent,
on the other hand,
alleges that it was because of Openstack Software, which had reached
its “End of Life”.  That
issue is not for me to
resolve at this stage.
[82]
The Respondent, seeks to rely, for its actions of sending emails, on
the failure by the Applicants
to concede that they were at fault and
thus grossly negligent.  The Respondent further justifies its
actions on the assumption
that the First Applicant seeks to avoid
responsibility for the crash.  Mr
Rorke
,
on behalf of the Respondent, argued that the latter was entitled to
demand answers from the First Applicant and to do so pertinently
and
insistently in the face of the First Applicant is stonewalling
tactics.  In the same breath, he conceded that at times,
the
Respondent used firm language in pointing out his entitlement to make
the First Applicant’s negligent conduct public
and in drawing
attention to the possible consequences in the form of negative public
perceptions.  The Respondent, as clearly
demonstrated above,
regretted some of the issues raised in the emails.
[83]
It is exactly the strong language used by the Respondent and the
regretted statements that constitute
the case of the First
Applicant.  The language conceded speaks to the threats
contended by the First Applicant.  The
issue of keeping on
increasing the billions of Rands, which the Respondent threatened to
claim from the Applicants, further speaks
to the threats and the
conduct the Applicants seek a final interdict in respect of.
[84]
The events are chronologically stated in the preceding paragraphs
about the trail of emails between
the parties and the contents
thereof.  I shall, at all costs avoid repeating the contents.
[85]
The crash occurred on 18 March 2019.  There was an exchange of
emails between the parties
regarding the cause of the crash and the
issue of negligence on the part of the First Applicant.  Such
exchange culminated
in an email dated 30 September 2019 wherein the
Respondent demanded R21 134 440 865.00.  On 9
October 2019,
Applicant replied denying liability.  A meeting
was arranged between the parties and it was held in Gauteng on 2
December
2019.  In the meeting, the First Applicant continued to
deny liability.  The Respondents attorneys left the meeting
promising
to issue summons against the First Applicant.
[86]
It is clear to all and sundry that after this meeting the line was
drawn.  It remained with
the Respondent and his attorney to
proceed with the claim and sue the First Applicant as they saw fit.
There was absolutely,
no need to correspond with the First Applicant
either in respect of the cause of the crash nor in respect of any
admissions sought
from it.  The issue of keeping on promising to
increase the damages amount each time if there is no response leaves
much to
be desired.
[87]
“Harass” is defined in the Concise Oxford English
Dictionary, Tenth Edition, Revised
thus:
“
torment by
subjecting to constant interference or intimidation”.
Threat
is defined in the same dictionary as:
“
statement
of an intention to inflict injury, damage, or other hostile action as
retribution . . . the possibility of trouble or
danger”.
[88]
I chronicled the events in paragraph 12 above as stated by the
Applicant and confirmed by the
trail of emails sent by the
respondent.  Despite the fact that the First Applicant indicated
that it denied liability and
would accept summons through his
attorney of record, the Respondent, sent no less than six emails to
the Applicants combined about
the same issue.  This was despite
that the First Applicant reminded the Respondent of its denial of
liability.  The emails
vary from alleging negligence, making an
increase in the amount to be claimed and threatening to issue of a
press release.
The conduct of the Respondent amounts to
harassment of the First Applicant.  There was absolutely no
rhyme no reason why the
Respondent continued to correspond in that
fashion with the First Applicant after the meeting and the consistent
denial of liability.
The First Applicant established that it
had a right not to be harassed and threatened by the Respondent.
[89]
The Respondent, as shown in paragraph 15 above, has made undertakings
not to carry on with his
conduct.  Such undertakings were
floated immediately after they have been made.  It is apparent
in the circumstances
that the First Applicant had no other remedy
available other than to approach this court for an interdict.
The conduct of
the Respondent was harmful to the First Applicant in
the light of the harassment and the ever-increasing threats of
damages claim
amount.
[90]
The highlighted portions of the email dated 21/02/2020 in paragraph
12.6, clearly constitute
harassment and threats.  The First
Applicant had no business of knowing whether the claim he has against
the Applicants has
“now increased”.  He should have
just issued summons as he saw fit.  Similarly, the highlighted
portion of
paragraphs 12.8, 12.9 and 12.11, constitute threats.
[91]
With respect, I do not agree with the submission by the Respondent
that he was entitled to demand
answers from the First Applicant and
to do so persistently and insistently in the face of its stone
walling tactics.  That
cannot be.  Furthermore, the
Respondent had no such entitlement in the wake of repeated denials by
the First Applicant of
negligence.  There was absolutely no
reason for the Respondent to extort money and an admission in that
regard.  It eludes
me for the Respondent to argue that it did
not oblige him to simply terminate his engagement with the First
Applicant merely because
the latter said so.  I say so because
at all given time the Respondent maintained that the First Applicant
was negligent and
liable to pay him billions of Rands.  Then why
did he need a confirmation of the cause of action from the Applicants
when
he had a clear claim instead of issuing summons.  That
conduct certainly needs to be interdicted.
K.
Defamation
:
[92]
The First Applicant makes the point that on 20 December 2019, the
Respondent sent a “press
release” to iSAT’s email
database and annexed a copy of the timeline from the Respondents
previous website.  In
the timeline, First Applicant avers the
following to be defamatory of it:
“
1.
That the First Applicant admits gross corporate negligence by
acknowledging that they have not
been maintaining the CVM Openstack
platform for more than 4 years. (FA11)
2.
Dimension Data continues not to take responsibility for their
admitted gross corporate negligence.
(FA16)
3.        Grant
Bodley did not respond, so thus confirming that Dimension Data agree
(
sic
)
with the facts on the Website, including admission of their guilt,
and their failure to accept responsibility, and an attempted

cover-up.  (FA11)
4.       Up
until now, no response has been received from anyone at NTT Ltd.
Is it possible
that NTT Ltd are fine with Dimension Data
self-destructing? (FA24.2)
5.
Even though Dimension Data has admitted its gross negligence, it is
refusing
to take responsibility for its action.  In iSAT’s
opinion it has also timed to cover up its terrible failings (FA24.4)”
[93]
The Applicants argue that the above statements’ ordinary
objective meaning is self-evidently
defamatory of it.  They
further argue that the rhetorical questions asked by the Respondent
have no factual basis.  The
Applicants submit that there can be
no doubt that the effect of these statements, in the eyes of a
reasonable or average reader
would be to diminish the esteem in which
the Applicants are held.  The argument by the Applicant’s
goes further to suggest
the Respondent has failed to establish facts
to support the defence of truth and public interest and therefore
there is no justification
for publishing untruths.  The First
Applicant submits that the statement by the Respondent that “it
tried to cover up”
its failing is absurd, untenable,
speculative and that there is no basis for it.  No substantial
truth was established by
the Respondent for the publication of the
defamatory statements, so the argument goes.
[94]
The Respondent argues that the statements are not defamatory if
contextualised and a “disinterested
observer” shall read
them as such and in the context of the whole document.  He
further argues that an ordinary reader
would have no difficulty in
following the logic employed by him in concluding that the First
Applicant had admitted to gross corporate
negligence.  Put
plainly, the Respondent avers that the First Applicant had admitted
the facts which gave rise to the inexorable
conclusion that it was
grossly negligent and the ordinary reader would reasonably understand
the statements in that context.
[95]
In his Heads of Argument, Mr
Rorke
submits that the alleged defamatory statements are raised as
rhetorical questions as to the possible reasons why both Applicants

continued to maintain their silence and story they (statements)
constituted legitimate comment.  Mr
Rorke
contends that an ordinary reader would not understand the Respondent
to be making firm statements of fact based on admission of
the
underpinning facts by the First Applicant.  The Respondent
argues that in the circumstances, the rhetorical questions

constituted fair comment in the form of an opinion formulated
rhetorically, and they would have been understood by a reasonable

reader as such.
[96]
The Respondent submits that the comment regarding “cover-up”
was in terms stated
to be an opinion and was plainly justified in the
context in which it was made and it would have been so understood by
the reasonable
reader.  Regarding publication of the press
release, the Respondent states that by virtue of the standing of the
First Applicant
in the industry (especially in South Africa) and the
extent to which its products may be relied upon are plainly matters
of interest
to the public at large and the assertions by the
Respondent relate to facts which the public is entitled to and ought
to know about.
[97]
In
Khumalo
and Others v Holomisa
[6]
O’Regan J stated the elements of defamation as:
(a)
the wrongful and
(b)
intentional
(c)
publication of
(d)
a defamatory statement
(e)
concerning the plaintiff.
The
court further stated in the same paragraph:
“
.
. . 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.  A defendant
wishing to avoid liability for defamation must then raise
a defence
which rebuts unlawfulness or intention.  Although not a closed
list, the most commonly raised defences to rebut
unlawfulness are
that the publication was true and in the public benefit that the
publication constituted fair comment and that
the publication was
made on a privileged occasion”.  (Footnotes omitted)
[98]
Dealing with the defence rebutting unlawfulness in a press statement,
Heher JA said in
National
Media Ltd and Others v Bogoshi
[7]
“
In
my judgment we must adopt this approach by stating that the
publication in the press of false defamatory allegations of fact
will
not be regarded as unlawful if, upon a consideration of all the
circumstances of the case,
it
is found to have been reasonable to publish the particular facts
in the particular way and at the particular time.
In
considering the reasonableness of the publication account must
obviously be taken of the nature, extent and tone of the
allegations”.
(Emphasis added)
[99]
In
Modiri
v Minister of Safety and Security
[8]
Brand
JA in dealing with the grounds of justification and the balancing of
conflicting fundamental rights of freedom of expression,
including
freedom of the press on the one hand and the rights freedom of
privacy and dignity had the following to say:
“
Under
the rubric of truth and public benefit, the balancing act turns
mainly on the elements of public interest or benefit.
If a
defamatory
statement is found to be substantially untrue. The law does not
regard its publication as justified.  Publication
of a
defamatory matter which is untrue or only partly true can never be in
the public interest, end of story
. . .”  (Underlining is mine)
.
. .
24.
In performing the balancing act the court must therefore decide the
public benefit issue with specific reference to the facts
of the case
before it.  Needless to say that these factual situations may
vary infinitely . . .”
[100]
A publication is defamatory if it has a “tendency” or is
calculated to undermine the reputation of
the plaintiff and is
prima
facie
wrongful.
[9]
The full onus
is on the Respondent/Defendant to dispel this
prima
facie
wrongfulness by alleging and proving facts that dispel wrongfulness
such as truth and public interest.
[10]
[101]
The test that is applicable (in this instance) in the determination
of a defamatory statement is what meaning
a reasonable reader would
likely to give to the statement in its context and whether that
meaning is defamatory.  The test
is objective
[11]
.
[102]
I dealt above with the genesis of the dispute between the parties.
It is a crash that occurred and led to
dire consequences for the
Respondent.  It is a fact that the Applicants (First Applicant
in particular) did not agree that
it was grossly negligent in the
resultant crash.  The First Applicant from the onset and from
the meeting held between the
parties at the onset recorded that it is
not liable and the Respondent may issue summons against it and have
then served on their
attorneys.  That clearly indicates its
denial of negligence let alone being grossly negligent.  As
alluded to, in paragraph
[39] above the absence of any comment by the
First Applicant as to the cause of the system failure led the
Respondent to opine
and conclude that the First Applicant was trying
to cover up “its terrible failings and therefore admitted gross
negligence.
This makes it abundantly clear that the finding by
the Respondent that the First Applicant was guilty of gross
negligence is based
on the opinion of the Respondent.  It is not
a fact that the Respondent established beyond doubt that the First
Applicant
was guilty of gross negligence and admitted such.  The
publication therefore, of such a finding cannot, in the context be
stated as a proven fact.  Clearly therefore, such a statement of
and about the First Applicant cannot be couched as the truth
and
consequently its publication cannot be regarded as being in the
public interest.
[103]
The statement that the Second Applicant is preparing to shut down the
First Applicant and has no interest in its
future has no factual
basis.  On the face of such an unsubstantiated statement, which
has been distributed throughout the
country, especially to the
customers of the Applicants would be read by an ordinary reader
contextually would be believed to be
the truth.  There is no
semblance of evidence supporting the statement on the facts of this
matter.  It is incorrect
and therefore not in the public
interests.  The submission by the Respondent that these
statements were in any event rhetorical
question cannot hold in the
backdrop of the fact that he did not provide facts in the website,
which would substantiate those questions.
Even on the facts
before me, there is no evidence to suggest that the Second Applicant
was in the process of shutting down the
First Applicant.
[104]
The issue of the First Applicant trying to cover up its failures is
unsubstantiated and therefore defamatory of
the First Applicant.
The First Applicant, as stated before, categorically denied gross
negligence and made it clear that
it shall await summons which was
never issued.  What more was expected by the Applicants in this
regard.
L
.
Injury
Caused or Reasonable Apprehended
:
[105]
The harm that the First Applicant suffered as a result of the
publication of these statements was even foreseeable
to the
Respondent prior to the press release.  The highlighted portions
of paragraph 12.8 and 12.9 speaks to that.  I
need not repeat
them.  Certainly, that is the harm, which the First Applicant
has suffered because of these statements.
The manner in which
the Respondent conducted himself through the emails and the press
release speaks to the fact that if he is
not interdicted, the
possibility of him carrying on cannot be doubted in light of the
unending emails send by the Respondent to
the Applicants.
M.
Suitable Alternative Remedy
:
[106]
I cannot conceive of any other remedy which the Applicants have in
order to curb or stop the behaviour displayed
by the Respondent
starting from the meeting of 2 December 2020 when he promised to
issue summons.  I agree with Mr Cross’s
submission that
relying on damages claim as an alternative would never truly
compensate for the reputational and business loss
which the
Applicants would suffer and suffered as that would not reverse the
harm caused and likely to be caused.  It is never
an easy matter
to prove damages in defamation claims.  The only suitable remedy
is to interdict the Respondent from harassing,
threatening the
Applicants and its employees and to disseminate defamatory matter of
the Applicants.
[107]
I find that the Respondents have satisfied the requirements of a
final interdict and therefore the following order
shall issue.
[108]
In the result the following order is made:
1.
The Respondent is hereby interdicted and restrained from:
1.1
threatening, harassing and/or defaming the Applicants and/or any
employee of the Applicants,
and/or inciting any other person or
entity to do so; and/or
1.2
publishing threating, defamatory and/or factually untrue information
concerning the Applicants
and/or the Applicants’ employees on
the Respondent’s websites and/or on any other platform; and
2.
The Respondent is ordered to pay the costs of the application and the
application
to strike out.
_______________________
M MAKAULA
Judge of the High
Court
Appearances
:
Counsel for
Applicants:

Adv GJA Cross
Instructed
by:

Eversheds Sutherland Attorneys
c/o Joubert Galphin
Searle
Port Elizabeth
Counsel for
Respondent:

Adv SC Rorke SC & Adv JG Richards
Instructed
by:

Rushmere Noach Incorporated
Port Elizabeth
Date judgment
reserved:

18 March 2021
Date judgment
delivered:

05 October 2021
[1]
Page 36 of the papers.
[2]
[1998] JOL 1832 (SE).
[3]
1977 (4) SA 135 (W).
[4]
[1998] JOL 1832 (SE).
[5]
1958 (3) SA 599
(W) at 604B–E.
[6]
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at para 18
[2008] ZACC 6
; ;
(2008 (8) BCLR 771.
[7]
1998 (4) SA 1196
at 1212G–H
[1998] ZASCA 94
; ;
[1998] 4 All SA 347
(A) at
361h-i.
[8]
(581/2010) [2011] ZASCA (28 September
2011); 2011 (6) SA 370
(SCA);
[2012] 1 All SA 154
(SCA) at para 22 and 24.
[9]
Le Roux v Dey
[2010] (3) All SA 497
(SCA) para 8.
[10]
Neethling v Du Preez and Others, Neethling v The Weekly Mail and
Others
[1993] ZASCA 203
;
[1994] (3) All SA 479
(AD),
1994 (1) SA 708
(AD) at
769-780.
[11]
The Law of South Africa: Joubert, First Issue 7, Damages, Deeds,
Defamation to Defence, para 248.