ENX Group Limited v Spilkin (2296/2022) [2022] ZAECQBHC 42 (8 November 2022)

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[2022] ZAECQBHC 42
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ENX Group Limited v Spilkin (2296/2022) [2022] ZAECQBHC 42 (8 November 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
CASE NO: 2296/2022
In the matter between:
ENX GROUP
LIMITED

Applicant
and
BRIAN LEONARD
SPILKIN

Respondent
JUDGMENT
LOWE J
INTRODUCTION
1.
Applicant issued an urgent application
seeking that a Rule Nisi issue calling upon Respondent to show cause
why a final order should
not be granted in the following terms:
“
2.
That the Respondent be interdicted forthwith from harassing the
Directors, staff and shareholders of
the Applicant, and in particular
the CEO of the Applicant – Mr. Andrew James Hannington
(“Hannington”) –
by committing, inter alia, the
following acts of harassment in respect of “the aforementioned
persons”:
2.1.1 Repeatedly making
telephone calls or inducing another person to make telephone calls to
the aforementioned persons, whether
or not conversation ensures;
2.1.2 Repeatedly sending,
delivering or causing the delivery of letters, telegrams, packages,
facsimiles, electronic mail, WhatsApp
messages and or any other
electronic text messages to the aforementioned persons;
2.1.3
Repeatedly making telephone calls to
persons known to the aforementioned with a view of indirectly issuing
threats of harm and otherwise
against the aforementioned persons.
3.
That the Respondent be interdicted from
defaming the Applicant and Hannington and or otherwise attempting to
spread false narratives
which would bring the Applicant and
Hannington into disrepute;
4.
That the Respondent be interdicted from
publishing any false narratives in respect of the Applicant and
Hannington.”
2.
It should be said immediately that in
argument Applicant conceded that a good deal of what was asked for
could not be granted on
the papers as not being substantiated and at
the end of the day Applicant in essence seeks an order that the
Respondent be interdicted
from harassing the directors and CEO of
Applicant, Mr. Hannington (“Hannington”), by way of
electronic mail, WhatsApp
messages and any other electronic text
messages, and that Respondent be interdicted from defaming Applicant
and Hannington and/or
otherwise attempting to spread “
narratives
”
which would bring Applicant and Hannington into disrepute.
3.
It should also be pointed out that the Mr.
Hannington referred to is not an Applicant, which having regard to
the entire matter
and the nature of the relief sought is difficult to
understand.
4.
It should be said immediately that it is
also difficult to understand why the much broader original relief
referred to was sought
in the context of what was set out in the
papers which simply at a glance disclosed that there was no basis
herefor.
5.
The matter originally came before Hartle J
who granted an order by agreement between the parties (as interim
relief) restraining
Respondent in much the same terms as the notice
of motion, this to serve as an interim interdict pending the
finalisation of the
matter which came before me.
6.
The matter is hotly contested by
Respondent, it being alleged that the truth “
is
distorted to portray a particular narrative
”.
In short it is suggested that the Applicant’s case does not
meet the test for defamation, extortion, compounding
or harassment
and that in essence what is sought is to restrict Respondent from
“
both enforcing his rights and
telling the truth
”. Respondent,
in addition, complains about the “
severe
prejudice”
that he has suffered
and which is occasioned by the manner in which the proceedings have
been brought. It is alleged that Applicant
has failed to place the
entire set of facts and the full background before the court and is
“
cherry picking
.”
In the result Respondent contends that Applicant has failed to make
out a case for the relief sought and that the application
should be
dismissed with costs on an attorney and client scale.
7.
Whilst urgency remained in issue when the
matter came before me being, says Respondent, not urgent or brought
with self-created
urgency, being also an abuse of the court process,
nevertheless there was before me a full set of the papers filed in
accordance
with the time table set by Hartle J and this by agreement
between the parties.
8.
Nevertheless, I will also deal with the
question of urgency herein.
URGENCY
9.
Urgency
must be judged against the background of Rule 6(12) of the Uniform
Rules of Court and Rule 12(d) of the Eastern Cape Practice

Directions
[1]
.
10.
Urgent applications require an Applicant to
persuade the Court that non-compliance with the Rules, and the extent
thereof, is justified
on the grounds of urgency. Applicant must
demonstrate
inter alia
that it will suffer real loss or damage were it to rely on normal
procedure.
11.
The Rules adopted by an Applicant in such
an application must, as far as practicable, be in accordance with the
existing Rules both
as to procedure and time periods applicable.
12.
A
Respondent faced with an urgent application, and to avoid the risk of
judgment being given against it by default, is obliged provisionally

to accept the Rules set by Applicant and then, when the matter is
heard, make its objections thereto if any
[2]
.
13.
In
Nelson
Mandela Metropolitan Municipality & Others v Greyvenouw CC and
Others
[3]
Plasket AJ (as he then was) said as follows:
“
[37]
It is trite that Applicants in urgent applications must give proper
consideration to the degree of urgency and tailor
the notice of
motion to that degree of urgency. It is also true that when Courts
are enjoined by Rule 6(12) to deal with urgent
applications in
accordance with procedures that follow the Rules as far as possible,
this involves the exercise of a judicial discretion
by a Court
'concerning which deviations it will tolerate in a specific case'.
[38]
… it is not in every case in which the Applicant may have
departed from the Rules to an unwarranted extent
that the appropriate
remedy is the dismissal of the application. Each case depends on its
special facts and circumstances. This
is implicitly recognised by
Kroon J in the
Caledon Street Restaurants CC
case
when he held - looking at the issue from the other perspective, as it
were - that the 'approach should rather be that
there are times
where, by way of non-suiting an Applicant, the point must clearly be
made that the Rules should be obeyed and that
the interest of the
other party and his lawyers should be accorded proper respect, and
the matter must be looked at to consider
whether the case is such a
time or not'.
…
[40]
… Indeed, the erstwhile Appellate Division has on a number of
occasions turned its back on such formalism
in the application of the
Rules. For instance, in
Trans-African
Insurance Co Ltd v Maluleka
Schreiner
JA held that 'technical objections to less than perfect
procedural steps should not be permitted, in the absence
of
prejudice, to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits'. …
in
D
F Scott (EP) (Pty) Ltd v Golden Valley Supermarket,
Harms JA held that the Rules 'are designed to ensure a fair
hearing and should be interpreted in such a way as to advance,
and
not reduce, the scope of the entrenched fair trial right' contained
in s 34 of the Constitution.”
[4]
14.
There are degrees of urgency of course. An
Applicant must set out explicitly the circumstances which render the
matter urgent such
as to justify the curtailment of the Rules,
procedures and time periods adopted. That there will be a loss of
substantial redress,
if not heard on the basis chosen, must be shown.
15.
An
Applicant cannot create its own urgency by simply waiting till the
normal rules can no longer be applied.
[5]
16.
If the above is satisfied other issues come
to be considered, some of which are:
16.1  Whether
Respondent can adequately present its case in the time given;
16.2  Other
prejudice to Respondent and the administration of justice;
16.3  The strength
of Applicant’s case and any delay in asserting its rights
(self-created urgency).
THE APPROACH TO
APPLICATIONS
17.
In general terms then the Court can
entertain motion proceedings when there are no genuine disputes of
fact.
18.
Disputes of fact which are discerned in any
application are dealt with in terms of Rule 6(5)(g) which permits the
hearing of oral
evidence in appropriate circumstances.
19.
It is clear from the authorities that
whilst undesirable to settle disputed facts on affidavit, the first
step in considering this
issue is to carefully examine such alleged
disputes to determine if these are real,
bona
fide
and material.
20.
A
real, genuine dispute of fact is a question of fact for the Court to
decide
[6]
.
21.
There must also be an enquiry as to whether
such dispute, if established, is relevant and material to the issue
to be decided.
22.
A
real dispute usually arises where Respondent denies material
allegations by Applicant and produces positive contrary evidence.

This can only arise where the party raising the dispute has seriously
and unambiguously addressed the disputed fact in the answering

affidavit
[7]
. For a genuine
dispute to arise Respondent must satisfy the Court that there are
reasonable grounds that he would be able to establish
a defence in
action proceedings
[8]
.
23.
In
simple terms a motion proceeding will not be referred to oral
evidence or cross-examination unless it is clear that there is
a
material, real or genuine dispute of fact on the affidavits
[9]
,
and will then be decided on the papers.
24.
However
oral evidence should be allowed if there are reasonable grounds for
doubting the correctness of the allegations relevant
[10]
,
and if this is not sought the application will be dismissed.
25.
It
must be remembered that even where facts are in dispute on the
papers, but the Court is satisfied nevertheless, that on Respondent’s

facts, with those of Applicant which are admitted by Respondent (or
at least not denied) that Applicant is entitled to relief,
it will
make such an order
[11]
.
26.
If
there is no positive evidence to contradict Applicant’s
assertions, but a Respondent denies these and Respondent alleges
that
Applicant’s witnesses are biased and untruthful, seeking a
referral to oral evidence or arguing that the matter should
have been
by way of action, Respondent must set out the importance of the
evidence it proposes to elicit (by cross-examination
of Applicant’s
deponents) and explain why the evidence is not available. Respondent
must, to be successful in the argument,
satisfy the Court that there
are reasonable grounds such as to establish the defence relied on.
Such cases are rare indeed as pointed
out in
Minister
of Land Affairs and Agriculture v D & F Wevell Trust & Others
[12]
.
27.
It
is Applicant, not Respondent, who runs a risk by bringing the claim
on motion. That is because, as with any motion proceedings,
to the
extent that any facts are genuinely in dispute, they must be resolved
in favour of Respondent
[13]
.
This much was clearly conceded by Applicant.
28.
The SCA has accordingly held that:
“
It
may be assumed… that an Applicant who presses for a decision
on the papers in the face of a factual dispute, by necessary

implication consents to the matter being decided on the basis that
the Applicant is prepared to have the matter decided on the
basis set
out in
Plascon
Evans
…”.
[14]
29.
The
Court went on to say that “
although
there are evidently disputes of facts these are not ‘real’
disputes of fact if either party can succeed on
the version of the
other party”.
[15]
30.
The
Plascon
Evans
rule is well known:
“
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits, a
final order
can be granted only if the facts averred in the Applicant’s …
affidavits, which have been admitted by
the Respondent…,
together with the facts alleged by the latter, justify such order. It
may be different if the Respondent’s
version consists of bald
or uncreditworthy denials, raises fictitious disputes of facts, is
palpably implausible, far-fetched or
so clearly untenable that the
court is justified in rejecting them merely on the papers”.
[16]
31.
That
is the legal context in which on the
Herbal
Zone
case must be understood. The SCA affirmed that defamation claims,
which include an order for final interdictory relief, can be
brought
on paper (at paragraphs 36 and 37). However, a Respondent can ask for
a case to be referred to trial, if he meets certain
requirements. The
Court held that “
the
mere ipse dixit of a Respondent would [not] suffice to prevent a
court from granting an interdict. … It is not sufficient

simply to state that at a trial the Respondent will prove that the
statements were true and made in the public interest, or some
other
defence to a claim for defamation, without providing a factual basis
therefor”.
In
fact, what is required is that “
a
sustainable foundation be laid by way of evidence that a defence as
truth and public interest or fair comment is available to
be pursued
by the Respondent”.
[17]
32.
Perhaps it is worth restating that on the
Plascon
approach, the authorities are clear that a defamation claim may be
advanced on motion, including a matter seeking final relief.
In this
regard whilst there may be somewhat different considerations in such
an application in defamation, as opposed to non-defamation
matters,
the principles applicable to applications are themselves no
different. That is not to say that a Respondent in appropriate

circumstances cannot ask for the matter to be referred to trial (or
argue that it should have been brought by action) and the Court
held
in
Herbal Zone
in
this regard that:
“…
the
mere ipse dixit of a Respondent would [not] suffice to prevent a
court from granting an interdict …” [I]t is not

sufficient simply to state that at the trial the Respondent will
prove that the statements were true and made in the public interest,

without providing a factual basis therefore”.
[18]
33.
In
fact, what is required is that “
a
substantial foundation be laid by way of evidence that a defence such
as truth and public interest or fair comment is available
to be
pursued by the Respondent”.
[19]
34.
Hix Networking
dealt
with an interim interdict where it suffices to establish a prima
facie right. In this matter the application is for a final
interdict
and accordingly applicant had to show a clear right and its
infringement on a balance of probabilities.
35.
The
court in
Hix
Networking
dealt with the proper approach of a court to an application for an
interdict to restrain the publication of defamatory matter in
that
context. It was importantly pointed out that in cases involving an
attempt to restrain publication these must be approached
with caution
having regard to the fact that freedom of speech is a right not to be
overwritten lightly. In
Hix
Networking
the court stated that “
The
appropriate stage for this consideration would in most cases be the
point at which the balance of convenience is determined.
It is at
that stage that consideration should be given to the fact that the
person allegedly defamed
…
will,
if the interdict is refused, nonetheless have a cause of action which
will result in an award for damages. This should be
weighed against
the possibility, on the other hand, that a denial of a right to
publish is likely to be the end of the matter as
far as the press is
concerned
”.
[20]
36.
As this matter is one in which a final
order is required, as I have already set out above, there must be
clear right and an infringement
of that right on a balance of
probabilities.
37.
Again,
in
Herbal
Zone
(
supra
)
it was emphasised that an interdict of the nature sought in this
matter (to prevent the publication of defamatory matter) is directed

at preventing the party interdicted from making statements in the
future. If granted the court pointed out, it impinges upon the

parties’ constitutionally protected right to freedom of speech.
“
For
that reason such an interdict is only infrequently granted, the party
claiming that they will be injured by such breach ordinarily
being
left to their remedy of claim for damages in due course.
”
[21]
38.
In
Midi
Television (Pty) Ltd v Director of Public Prosecutions
[22]
Nugent JA said:
“
Where
it is alleged, for example, that a publication is defamatory, but it
has yet to be established that the defamation is unlawful,
an award
of damages is usually capable of vindicating the right to reputation
if it is later found to have been infringed, and
an anticipatory ban
on publication will seldom be necessary for that purpose.”
39.
Having set this out in
Herbal
Zone
the court continued:
“
A
corporate entity such as Herbs Oils is entitled to claim damages
based on defamation. This includes both pecuniary damages for
actual
financial loss and general damages for harm to its commercial
reputation. No attempt was made to show that Herbs Oils had
suffered
loss as a result of the publication of the advertisement and
circular, much less that it would suffer irreparable harm
in the
future by further publication of such material. Nor did it allege
that damages would not be an adequate remedy for such
publication.
Indeed the third respondent’s founding affidavit entirely lack
allegations in regard to these two elements of
the claim for an
interdict.”
[23]
40.
I will deal later herewith relevant to this
matter.
41.
The
above approach has been supported recently in
Manuel
v EFF
[24]
;
Gqubule
Mbeki v EFF
[25]
and
Hanekom
v Zuma
[26]
.
42.
In
Manuel
(
supra)
,
final interdictory relief was sought on motion relating to the
publication of defamatory material. Applicant sought a declarator

that the statements were false and defamatory and an order that these
be removed. Further relief sought was an interdict preventing
further
defamatory statements, the publication of an apology and damages.
BACKGROUND
43.
The founding affidavit for Applicant
company is given by Brent Hean (“Hean”) the CEO of the
West African Subsidiary
of Applicant. There is no supporting
affidavit by Hannington the main protagonist.
44.
It is immediately apparent that the thrust
of the application is purportedly aimed at Respondent seeking to
interdict him from “
harassing the
directors, staff and shareholders of the Applicant”
and particularly Hannington. As already pointed out above much of
what is sought to be interdicted is unsubstantiated on the facts

which disconnect is at no time explained.
45.
That being as it may be the crux of what is
aimed at is in fact that Respondent be interdicted from “
defaming
the Applicant and Hannington … or otherwise attempting to
spread false narratives which would bring the Applicant
and
Hannington into disrepute.
”
46.
In the “
synopsis
”
referred to in the founding affidavit the crux of the complaint is
that Respondent seeks to “
utilise
instances which arose as a consequence of the business relationship
between the Respondent and one of the Applicant’s
employees, in
relation to a completely unrelated entity, in an effort to extort the
Applicant and alternatively its employee into
payment of a
substantial sum of money by close of business 15 August 2022”.
The employee referred to is Hannington.
47.
The founding affidavit then sets out that
the business relationship referred to is one which relates to “
a
business relationship external to the relationship between Hannington
and Applicant, emanating from both parties’ involvement
in the
entity Buffelsfontein (Pty) Ltd …
“.
48.
Whilst not easy to follow in the founding
affidavit it is alleged that on 21 May 2021 as a result of
a business interest
of one of the subsidiary companies of the
Applicant (EIE Group) Hannington engaged the services of the
Respondent to obtain an
extension of a lease agreement. It is unclear
whether this was Hannington personally or acting on behalf of the
Applicant. It is
then alleged that inasmuch as the EIE Group was a
subsidiary of the Applicant Respondent was paid out of the accounts
of two other
entities within the group of companies – this
without explaining why. It is then alleged that subsequently in
March 2022
a dispute arose between Hannington and the Respondent
(again it is not clear whether this was Hannington personally or for
Applicant)
“
in respect of the
management of the Buffelsfontein entity
”.
Applicant says that Respondent alleged that he was owed funds in
respect of services rendered under a loan account in the

Buffelsfontein entity which he alleged had not been settled, a
contention disputed by “
the
co-shareholders of the Respondent in the Buffelsfontein entity
”.
49.
It is thus contended thereafter that the
relationship between “
Hannington
and Respondent
” deteriorated
drastically and that Respondent proceeded to harass and threaten
Hannington. It is alleged that during March
2022 the “
true
colours of the Respondent
” became
apparent when he was alleged to have claimed an entitlement to funds
which says Applicant were not due to him in
respect of the
Buffelsfontein entity.
50.
Explaining this further Applicant contends
that Respondent’s allegation was that he was owed money by the
Buffelsfontein entity
but in a disingenuous fashion imputed such
alleged indebtedness to Applicant in circumstances in which Applicant
had discharged
its obligations to him and had nothing to do with the
Buffelsfontein entity.
51.
It follows that Applicant alleges that
Respondent held out that Hannington had commercially blackmailed him
and had misappropriate
company funds of the Applicant. This it was
said was untrue.
52.
It will be noted that up to now, there
seems to be a confusing lack of clarity as to the position of
Hannington and Applicant and
whether what is said relates to one or
the other or both.
53.
It followed says Applicant that the
relationship between Hannington and Respondent deteriorated
drastically and Respondent proceeded
to “
harass
and threaten Hannington
”.
54.
Applicant alleges that the allegations were
unsubstantiated and that Respondent had been fully paid in terms of
the Respondent’s
performance in obtaining the extension of the
“
lease agreement
”.
55.
Again this is confusing to say the least.
56.
In
any event it is alleged that on 13 August 2022 after Respondent had
been fully paid nearly a year before, Respondent issued an
invoice in
the sum of R1 400 000,00 to Applicant and Hannington which was
not due or payable. The invoice saying that if payment
was not
received by 16h00 14 August 2022 that a series of steps would be
taken. The affidavit fails to deal with the origin of
this claim in
any way setting out simply that this was false and giving no
background to it bar that this claim was being made.
[27]
57.
In fact it would seem to be that an email
from Respondent of 13 August 2022 (BH23) in fact forms the crux of
the complaint by Applicant
(and apparently Hannington) and is quoted
below:
“
I
will lodge affidavits and report your conduct to all of, The
Registrar of SA Companies, ENX Board, EIE Board, Board of new EIE

owners, Gary Neubert, SA Chartered Accounts Board as well as all and
any other interested entity or party. I will report what I
believe to
be a commercial blackmail crime as well as fraudulent
misappropriation of ENX funds to SAPS and request them to open
a
docket and lay a criminal charge against you to be investigated and
prosecuted.”
58.
It is then alleged that Respondent
proceeded to harass and threaten Hannington by way of sending
innumerable text messages to him
in one of which the following
“
unlawful threat
”
is alleged:
“
Maybe
you would like to start off by thinking about how you going to
explain that to the people I will be sending my affidavits
and
statements to.
Then after that, consider
what else I have up my sleeve …”
59.
It is thus alleged that not only is there
no basis for the impropriety alleged against Hannington but that both
Applicant and Hannington
now stand to suffer severe reputational harm
should the conduct of Respondent not be interdicted.
60.
It is repeated that this was simply
Respondent’s attempt to “
extort
"
Applicant into paying monies that were not due to him.
61.
The papers then continue to attempt to
distinguish the transactions relevant to the Buffelsfontein entity
dispute and what is referred
to as the “
EIE
Group
incident
”.
62.
Put shortly, it is alleged that the
Buffelsfontein dispute stretches over the period May 2021 to March
2022 being the period within
which the business relationship between
Respondent and Hannington (in his capacity as director of the
Buffelsfontein entity) soured
which it is alleged gave rise to the
alleged unlawful conduct of Respondent. This dispute arose between
the Buffelsfontein entity
and the Walmer Country Club, Respondent
alleging that he was instrumental in resolving the dispute which
“
resulted in the shareholders of
the Buffelsfontein entity being paid
”.
Respondent alleges, says Applicant, that he was entitled to a 5% fee
in respect of the facilitation of the settlement.
63.
In
respect of the EIE Group incident it is alleged that in May 2021 the
EIE Group was experiencing difficulty in having the lease
agreement
in respect of its Eastern Cape business premises extended. Hannington
it is said asked Respondent for assistance mandating
Respondent
accordingly and Respondent was successful in speedily obtaining the
extension sought, there developing however, says
Applicant a dispute
regarding the scope of Respondent’s brief. It is alleged that
this dispute formed the basis of the ill-founded
allegation of
commercial blackmail by Respondent with reference to a particular
text message BH10A.
[28]
BH10A
is in fact a lengthy series of text messages between Hannington and
Respondent. Respondent alleges that not only were the
allegations
false but that the dispute was resolved and Hannington authorised
payment of R250 000,00 to Respondent. Applicant
concedes that
the incident was not flattering (presumably to Applicant and or
Hannington), when taken out of context but does not
constitute
anything unlawful as is averred by Respondent who it is alleged
mischievously misinterpreted the statement of Hannington.
One has to
guess at the statement referred to in the context of the pages of
text messages annexed. This approach is of course
impermissible and
if a part of an annexure is to be referred to this should be
expressly and specifically referred to in the papers.
It is then
alleged that a further transaction was concluded (it is not said
between whom) in respect of which Respondent was paid
a sum of
approximately R60 000,00 which marked the end of the relationship
between Respondent and the EIE Group.
64.
It is alleged that Respondent confuses the
5% “
collection fee
”
agreed to between himself and Hannington in respect of the
Buffelsfontein entity (nothing to do with Applicant) with the
R250
000,00 payable in terms of a separate agreement as a service fee for
Applicant in respect of its Eastern Cape premises lease
agreement
extension. It is alleged that the Respondent then attempts to allege
an indebtedness to him by Applicant, which is false,
referring to the
claim for R1 400 000,00.
65.
It is said that this is what precipitated
the application being Respondent’s “
unlawful
acts
” relating to unsolicited
WhatsApp messages to Hannington annexed marked BH14 to BH20. Again
Applicant fails to mostly set
out any part of these messages in the
body of the affidavit to which there is a complaint. The only
allegations made arises from
the following as set out in the Hean
affidavit:
Annexure BH21 in which
there is a message demanding payment: ‘
Yes, I told Bobby I
will walk away from Buffelsfontein then an hour later I find out EIE
deal done, not rented. Pay me and it all
goes away. Don’t pay
and wear it all’
.
Annexure BH22 a message
which reads: ‘
I saved EIE millions. If you don’t pay
me I will expose the entire house of cards Step by Step … THE
END
.’
An email of 13 August
2022 (BH23) from Respondent to Applicant at his ENX Group email as
follows:
“
Andrew
This offer supersedes
all previously sent offers and is submitted
WITHOUT PREJUDICE.
I will accept the
following terms in full and final settlement.
1.
Payment of attached R1.4 mil invoice
before COB 15
th
August 2022.
2.
Unconditional full confidentiality
and non-disclosure of settlement terms by both parties.
3.
All and any issues/details
pertaining to any related matters hereto and between us, will remain
undisclosed and never be revisited
by either party ever.
4.
No further actions can ever be
brought against either party by either party in this matter.
Failing the above
being accepted …
1.
The above proposed offer is hereby
withdrawn and terminated as of COB on Monday 15 august 2022.
2.
I reserve my rights in law.
3.
I will institute civil proceedings
and issue summons for the full 5R fee of the entire EIE sale amount,
with costs and apply for
a summary judgment on an urgent basis.
4.
I will sue for irreparable
professional reputational damages I have suffered as a direct result
of your conduct, or seek alternative
relief thereto.
5.
I will lodge affidavits and report
your conduct to all of, The Registrar of SA Companies, ENX Board, EIE
Board, Board of new EIE
owners, Gary Neubert, SA Chartered
Accountants Board as well as all and any other interested entity or
party.
6.
I will report what I believe to be a
commercial blackmail crime as well as fraudulent misappropriate of
ENX funds to SAPS and request
them to open a docket and lay a
criminal charge against you to be investigated and prosecuted.
I am done playing your
games when the wellbeing of my family is on the line.
I saved EIE millions
and am entitled to be paid. Piss or get off the pot!”
66.
Thereafter Applicant complains of the
“
most chilling
”
message of 15 August 2022 as follows:
“
Andrew.
Your intentions are now abundantly clear, so let me set out mine.
Later today I will email you my draft affidavit. We both
know exactly
what transpired and what you did to me and why, so you will be fully
aware of the factual accuracy contained therein.
My affidavit is not
my civil claim, to which my legal team are currently busy working on,
which will be served soon after COB today
if no payment is made
today, should it be necessary.
My affidavit is aimed at
doing to your professional reputation exactly what you and Brent
collectively managed to do to mine with
both your antics. The only
major difference is that you managed to collectively destroy my
professional reputation irreparably
based on lies, whereas I can and
will destroy yours with the factual truth. I have previously made you
aware of who will receive
my affidavit but subsequently added many
others involved in all ENX structures and our common circles. Should
payment not be effected
by COB today will proceed to the nearest SAP
station and sign my final draft affidavit under oath and begin
distributing it first
thing tomorrow morning to all and sundry. In
parallel thereto, will instruct my legal team to initiate all related
civil and criminal
legal proceedings I have preciously alluded to. I
have already incurred legal costs which I will also claim from you. I
further
record that my latest acceptable settlement offer as emailed
to you is to be retracted and expires at COB today failing EFT being

done. We both know that I effectively save ENX millions and also what
you did to me and why. I have given you a fair and equitable
chance
of settling this issue like a man. I am happy to take half the comm
and settle and move on without any repercussions. COB
today I push
the button and won’t deviate from my course of action nor ever
communicate with you again. Piss or get off the
pot. BS.”
67.
That forms the crux of the entire matter as
set out in the founding affidavit and which is aimed at Hannington
not Applicant and
to which Hannington does not respond by affidavit
in this application as I will set out more fully in due course.
68.
Respondent’s answer casts
considerable light on the real issues between the parties which were
far from clear in the founding
papers to say the least. How this was
not all set out and disclosed is difficult to understand.
69.
The fundamental issue which Respondent
highlights in answer is that Respondent is attempting to obtain
payment from Applicant through
Hannington in respect of an amount
alleged to be owing to him in what he refers to as settlement
negotiations with Applicant or
its CEO Hannington.
70.
It should immediately be said that the
papers disclose that Hannington made a settlement offer to Respondent
of R500 000,00 in this
regard which Respondent did not accept.
71.
Respondent set out that in summary
Respondent alleges an indebtedness by Applicant to himself denies
that he has made threats or
harassed anyone save to threaten to
expose the “
factually true conduct
of [Hannington], to the board of the Applicant
”.
72.
Again in summary the following appears in
respect of the alleged business dealings referred to by Applicant.
73.
In respect of the Buffelsfontein entity,
this related to that entity acquiring ownership of a certain portion
of land situated on
the Walmer golf course in Port Elizabeth. This
was to be developed and sold at a profit. Respondent was paid a
salary by the Buffelsfontein
entity for the work he was doing on
behalf of the project and accrued the loan accounts for unpaid salary
of which Hannington was
aware. The sale agreement, however, was
cancelled and the entity then had to set about recovering funds it
had paid to the seller
of the land. Respondent alleges that he was
nominated as the managing director the Buffelsfontein entity and
given the task of
recovering the money from the seller to receive a
5% fee of whatever was recovered. The money was recovered and the
R250 000,00
referred by Applicant was, says Respondent, 5% of the
total amount recovered by the Buffelsfontein entity. Respondent
alleges that
the shareholders or some of them were not happy with his
appointment and the collection fee and he was asked to step away from
the issue and let Hannington handle things as incoming managing
director. Hannington, he says, told him that he, Hannington, would

find a way of paying the amount to make up the losses this to be paid
through Applicant. This gave rise, says Respondent, to Hannington

engaging with him on the idea of extending the lease on one of
Applicant’s properties this being his way of paying him the

R250 000,00 fee that was due on the Buffelsfontein entity issue.
Having secured the lease extension Respondent refers to a WhatsApp

message from Hannington stating “
you
have just got a replacement fee of the R250K”
.
He then invoiced Hannington for the payment of the R250 000,00. On 26
May 2021 it appears that Hannington in response instructed
Respondent
to issue two invoices each for R125 000,00 dated May 2021 and
June 2021. This was done. The invoices clearly state
that this
relates to the lease extension matter. Resigning from Buffelsfontein,
as a condition of the above, Hannington before
payment insisted that
the resolution relevant to his resignation from Buffelsfontein was
signed by all the shareholders. The first
R125 000,00 was paid from
ENX Leasing Investments Company, the second tranche however being
delayed as Hannington had texted to
say that this would be regarded
as being for a full payment review of properties in PE for EIE.
Respondent says that this was a
manipulation but that he was finally
paid by an entity called SAFICON in July 2021.
74.
Respondent then continues to set out the
basis of his now claim against Applicant.
75.
Respondent states that when submitting the
original property proposal linked to the sum of R125 000,00 he saw an
opportunity for
Applicant to save what he refers to as a vast sum of
money. In fact, it turns out that this precipitated the entire
dispute between
the parties that remains relevant to this matter.
Respondent worked out a proposal advising Applicant to by-pass all
third parties
and property developers and by a particular property at
Kempston Road, Port Elizabeth, directly from the owner via Respondent
contracting
Respondent to manage a new/build turnkey project for them
which would on Respondent’s estimate save over R10 million on
the
other quotes that Applicant had, to achieve the same goal.
Respondent alleges that he and Hannington discussed this and agreed
to a fee of 5% which equated to around R2.6 million to Respondent.
There followed a series of negotiations and email exchanges relating

to the project and Respondent’s fee. Herein lies the dispute.
It would seem that Applicant went ahead with the deal proposed
by
Respondent (denied by Hean) at the time Hannington (alleges
Respondent) misleading Respondent at the time as to whether the
deal
had been done or not, suspecting that EIE was circumventing
Respondent and had concluded the deal behind his back as it were

Respondent attended the site and had saw that a building project had
commenced. He says that on 11 August 2022 he found out through
a
reliable source that Applicant had in fact done the deal at his price
of R53 million and was taking transfer of the property,
thereby in
Respondent’s mind, this justifying his fee which was then
earned. He says he was the effective cause of saving
the Applicant
millions of rand and that Applicant effectively admitted this by
paying him R63 800,00 for his disbursements relevant.
It is this deal
that Respondent says Hannington responded to when offering him R500
000,00 as a settlement. Applicant, however,
in its founding affidavit
version does not mention this in any detail at all, save to allege
that there was no basis for the underlying
invoice.
76.
In reply to these allegations a technical
point is taken by Applicant that Respondent was not registered with
the Property Practitioners
Regulatory Authority and continues to say
that this do not justify the threats and extortion upon which
Applicant relies. Applicant
says that the payment of the R63 800,00
was made under “
duress
”.
Whilst not denying the Kempston Road project Applicant (having not
mentioned this in any detail in its founding affidavit)
does not
admit Respondent’s role as the effective cause thereof.
77.
It suffices to say that the reply is very
brief in this regard and fails to join issue with the detail alleged,
in any meaningful
way.
78.
Whatever the position in this regard, there
can be no doubt that the real crux of the dispute between the parties
surrounds Respondent’s
claim to the sum of R1, 4 million.
The correspondence and WhatsApp messages amply support the fact that
this was the cause
of the real dispute between the parties and the
reasons for the exchange of text messages and emails.
79.
Respondent insist that these funds were
owing to him and admits reacting in an “
emotive
fashion
” having just saved
Applicant millions of rands but it (Hannington) refusing to pay his
share of the money to which he was
entitled.
80.
Indeed, in argument, as I understand it,
Applicant’s counsel did not contend that this subsequent
property transaction was
not the entire cause of the now dispute and
alleged threats.
81.
This remains, however, overlaid by the
previous disputes which had developed with Hannington and
transactions, the alleged misleading
of the Board of Directors says
Respondent, by Hannington attached to the R250 000,00 transactions
split into two payments of R125
000,00 each.
82.
In short Respondent contends that the R1.4
million as per his invoice arose from the Kempston Road property,
Hannington having made
it clear to him that he would be paid a fee
irrespective whether he was to act as project manager of the process
or whether this
was done on the basis of the proposal as Respondent
refers to it. Respondent sets out that Hannington “
almost
immediately
” offered him R500
000,00 in settlement after he had made Applicant and Hannington aware
that he had become party to the information
that the deal was done.
83.
Respondent denies having harassed
Hannington saying his intention was always to have the matter settled
without going to court but
that he was not satisfied with the R500
000,00 offer. He says that what followed was “
without
prejudice negotiations in an attempt to get what was his due
”.
84.
Having offered Respondent a settlement of
R500 000,00 Hannington then informed Respondent who had not yet
accepted same that the
offer was withdrawn.
85.
In WhatsApp messages attached to the answer
it is clear that on 12 August 2022 Respondent having demanded R1 325
000,00 Hannington
responded as to whether he was prepared to give a
discount after some exchange, Hannington messaging “
how
does R500K sound
”.
86.
Later on 15 August 2022 Hannington texted
“
my offer is off the table because
you did not accept it
”.
87.
It will be appreciated, that it is quite
extraordinary that Applicant did not deal with this fully in its
founding papers as it
is clearly the origin of much of what passed
between Hannington and Respondent.
88.
The real essence of the matter then comes
down to whether, against this full background, there is any
legitimate legal basis for
the relief sought.
89.
That Applicant now contends that no monies
were due to Respondent in respect of the Kempston Road deal, there is
also no doubt that
Hannington offered to settle same seemingly
accepting that some monies were due.
THE BASIS OF
APPLICANT’S COMPLAINTS
90.
The basis upon which the Applicant
proceeds commences with the relief sought which, when trimmed of all
unsupported in the affidavits,
comes down to Respondent being
interdicted from harassing Applicant and the CEO (Hannington) and
from “
defaming the Applicant and
Hannington and or otherwise attempting to spread false narratives
which would bring Applicant and Hannington
into disrepute
”
.
91.
This must be seen against the legal
background.
92.
Dealing
firstly with the allegation that Respondent seeks to “
extort
”
it must be remembered that this crime is committed when a person
unlawfully and intentionally obtains some advantage, which
may be
patrimonial, from another by subjecting the latter to pressure which
induces that person to hand over the advantage. The
threat or
pressure required as an element of extortion may be for example, one
of defamation or as frequently happens of arrest
or prosecution
[29]
.
This threat may be express or implied by words or deeds. The
unlawfulness required for extortion is that the threat or
intimidation
must have been exercised unlawfully. One must then look
at the way in which the threat was made and the results envisaged. As
an
example if an employer discovers that an employee has stolen money
and threatens to lay a charge of theft with the police unless
the
employee returns the money the pressure is not exercised unlawfully
because the employer is entitled by law to lay a charge
of theft with
the police says Snyman
[30]
.
93.
There
are many circumstances in which it is lawful to exert pressure upon
another person. The unlawfulness lies in the way the pressure
is used
rather than the nature of pressure as explained in Principles of
Criminal Law, Jonathan Burchell
[31]
.
Burchell suggests that it must be unlawful to use that pressure for
the purpose for which it is used. This depends on the nature
and
circumstances of the threat. The example given is that in instances
of blackmail (a form of extortion) the mere revelation
of the
information that may be embarrassing to another is not self-evidently
unlawful. It is only unlawful if the objective of
the threat is to
exact some advantage which is not due to the extortioner, that
becoming unlawful. This makes it clear that in
this matter
Respondent’s version he was not attempting to gain an advantage
which was not due to him – on the contrary
he was on his
version attempting to extract the R1.4 million due. This immediately
discloses that the Applicant’s reliance
on extortion cannot
succeed.
[32]
This accords with
decisions such as
Mahomed
[33]
and
Mntonintshi
[34]
and I do not agree with
Snyman
(
supra
)
418 that these decisions are wrong and I following the authority in
this division which I am persuaded is clearly wrong.
94.
Burchell points out that it is not unlawful
to institute legal proceedings in order to assert one’s rights.
It is thus, in
principle, not necessarily unlawful to threaten that
legal proceedings will be instituted unless some advantage is
obtained. It
is only unlawful if the advantage was not due.
95.
The question at all times in this matter,
is that on Respondent’s version what he sought to obtain, (the
payment of the R1.4
million), was a sum due to him and therefore not
an advantage not due which he attempted to obtain by extortion. That
this was
not due is insufficiently dealt with not only in the
founding affidavit but also in reply.
96.
As previously said the unlawfulness lies in
the way that the pressure is used rather than its nature and it must
be found to be
unlawful to use that pressure for the purpose for
which it is used. This is determined largely by the nature and
circumstances
of the threat.
97.
This
overlaps somewhat with the crime of compounding. This consists in
unlawfully and intentionally agreeing, for reward, not to
prosecute a
crime which is punishable otherwise than by a fine only. In essence,
compounding arises where someone agrees not to
prosecute on condition
that a reward is paid to him. The obtaining of a reward means an
advantage which operates as a
quid
pro quo
.
The question was posed as to whether someone obtains a “
reward
”
if what he gets is his own property, Kuper J holding that he does not
in
Du
Ploy NO v National Industrial Credit Corporation Ltd
[35]
.
The reasoning was that what is “
reprobated
by the law
”
in punishing compounding is “
the
taint
”
of extortion which is attached to the transaction when someone
receives anything to which that person is entitled to. A
person is
entitled to return of his own property, therefor in agreeing not to
prosecute in consideration for its return is not
receiving something
to which he is not entitled to.
98.
At the end of the day, it must be
appreciated, that there is a major distinction between extortion and
compounding where a party
seeks to negotiate payment of what he
believes is and may well be due to him threatening consequences.
Those consequences must
be linked to an unlawful threat as set out
above which it seems to me is not established in papers and proper
approach thereto.
The compounding argument also does not assist
Applicant as there is insufficient on the papers to establish that
the “
crime
”
was one punishable by a fine only nor was the “
reward
”
one not due, on the proper approach to the papers.
99.
Turning to defamation. Defamation is the
intentional infringement of another person’s right to his good
name being the wrongful,
intentional, publication of words or
behaviour concerning another which has the effect of injuring that
other’s status, good
name or reputation.
100.
The person who proves that the publication
is defamatory and that it refers to that person provides
prima
facie
proof of wrongfulness, a
presumption of wrongfulness then arising which places the onus on a
defendant to rebut it. A defendant
may do so by proving a ground of
justification these being both the traditional grounds of
justification in defamation cases and
the so-called new grounds of
justification as may be developed in accordance with the
boni
mores
of our constitutional democracy.
The traditional grounds are usually regarded as privilege, truth in
the public interest, fair
comment, private defence provocation and
consent, the new grounds being usually media privilege, any political
privilege.
101.
A trading corporation is entitled to claim
for general damages caused by defamatory statements injuring its
reputation as a business.
102.
A
statement is defamatory if it has a tendency, or is calculated to,
undermine the status, good name or reputation of the person

complaining thereof. It is a question of law whether the words
complained of are reasonable capable of conveying to the reasonable

reader or listener a meaning which defames the person complaining
thereof. The intent to defame is necessary the publication of

defamatory material being presumed to have intent, defendant having
the onus of proving the absence thereof.
[36]
103.
It
is trite that a party may obtain an interdict based on defamation but
it has been said that the courts should be slow to grant
interim
interdicts.
[37]
104.
In this particular matter, Applicant in the
context of its founding affidavit and the complaints therein
contained, and the remaining
facts relevant adjudged upon the
Plascon-Evans test will determine the issue as to whether or not an
Applicant has established
sufficient for the relief sought based on
defamation.
105.
It cannot be overlooked, that Applicant, in
my view, failed to set out the full facts relevant to its claim in
its founding papers
virtually ignoring the issues that really
underlie the Respondent’s claim against Applicant and his
attempts to secure payment
to himself, he being visibly angered and
upset by the attitude that it had been adopted by Hannington.
106.
It must also be emphasised that in this
matter Hannington is not an Applicant, it being only the ENX Group
Pty Ltd that is relevant
hereto although it seeks to cast the net
wider relevant to the relief sought in respect of itself and of
Hannington as its CEO.
107.
I will deal more fully herewith as to
whether any case has been made out relevant to Hannington himself in
this regard.
108.
It must also be remembered that Applicant’s
main complaints in fact relate to the correspondence, text messages
and the like
which mostly adhere to Hannington himself as opposed to
and distinguishable from Applicant.
109.
In a set of extremely lengthy heads,
Applicant’s main arguments are that the matter was urgent, that
the hearsay evidence
in the founding affidavit being inadmissible in
respect of the facts making an argument for relief final in nature
and in the context
of Plascon-Evans as elucidated above.
110.
Applicant alleges that on the proper
approach Respondent does not deny the contents of the founding
affidavit insofar as it avers
that he made threats which were
“
unlawful
”
and intended to defame or exert pressure and that in essence the
facts on the correspondence and text messages are common
cause.
Applicant argues that Respondent tenders no explanation for the
choice words uttered by him and particularly in regard to
his threat
to distribute an affidavit (the contents of which remain unknown)
which was drafted and would be distributed with the
sole intention of
“
destroying the reputation of Hean
and Hannington
” (notably not
Applicant); that he would embark upon the civil route of litigation;
that he would pursue the route of criminal
prosecution.
111.
Applicant goes on to argue that the
relationship between Hannington and Respondent (notably not
Applicant) became acrimonious from
March 2022 onwards as a result of
Respondent’s believing that he was owed funds by Applicant. It
is argued that Respondent
maintains that Hannington “
commercially
blackmailed him
” and
misappropriated his funds. Apart from contending that Respondent was
not a registered estate agent and precluded from
acting as one
Applicant submits that regardless of whether there was an
indebtedness or outstanding money due and owing to Respondent
(by
whom is not stated in the heads) that “
his
conduct constitutes harassment, and extortion.
”
112.
Applicant contends that it is uncontested
that on 13 August 2022 Respondent issued an invoice for R1.4 million
to “
Applicant and Hannington
”
stating simultaneously that if payment were not received by 16h00 on
14 August 2022 he would lodge affidavits and report
“
your
conduct
” to all of the Registrar
of SA Companies, EIE Board, Board of new EIE owners, Gary Neubert, SA
Chartered Accounts Board as
well as all and any other interested
entity or parties. That he would report what he believed to be
“
commercial blackmail crime
”
as well as fraudulent misrepresentation of ENX funds to SAPS and
request them to open a docket and lay a criminal charge
“
against
you to be investigated and prosecuted”.
That
Respondent sends a barrage of WhatsApp messages to Hannington
threatening what he had up his sleeve and to summarise that if
he was
not paid he would “
expose the
entire house of cards Step by Step.”
113.
Applicant points out that on 15 August 2022
Applicant sent a further communication to Hannington (paragraph 53 of
the founding affidavit)
stating that the affidavit he referred to was
not his civil claim but was aimed at doing to “
your
professional reputation exactly what you and Brent collectively
managed to do to mine…
”
This indicated that the people referred to above would receive his
affidavit but added that others involved in all ENX structures
and
common circles would be included as he referred to. This repeated the
threat to go to the SAPS sign the affidavit and distribute
this first
thing the next day to all and sundry.
114.
Applicant argues that it has a clear right
not to be defamed and that whilst Respondent was entitled to
legitimate investigations
this did not include the kind of threats
and alleged defamation that were being made. It was argued that
Respondent had no right
to refer to Applicant (presumably meaning
Hannington) as a fraud or dishonest person or businessman. It was
argued that the threat
was to spread this “
narrative
”
far and wide.
115.
It was argued that these threats
constituted harassment referring to the Protection from Harassment
Act, which in my view was unhelpful
the question of harassment not
being raised in the context of the Act but unhelpfully as Applicant
is a company does not fall,
in my view, within the definition of
those subject to that particular Act, nor was I persuaded to the
contrary when I raised this
in argument.
116.
In respect of extortion it is argued that
Respondent committed the common law offence thereof. Appreciating
that Hannington was
not an Applicant (as he should have been)
Applicant argues that this threats were also directed against it as
opposed to Hannington.
In this regard it is pointed out that in the
reply Respondent states that “
the
Applicant
” failed to pay what was
due and owing; that he had saved Applicant money as a big corporate
and that his legal team was in
the process of formulating a claim
against Applicant and Hannington and that the messages sent were sent
without prejudice in negotiation
with Applicant.
117.
In my view this argument falls dismally
short of meeting the mark in justifying Applicant in asserting that
the threats and complaints
were directed against it as well as
Hannington. Indeed, in the argument and on the heads Applicant’s
counsel had difficulty
in my view, in providing any real substance
thereto in this regard.
RESPONDENT’S
ARGUMENT
118.
Respondent argues that Applicant has
launched the application distorting the truth. It is submitted that
the papers do not meet
the test for defamation or harassment and that
in fact it is an attempt to muzzle Respondent.
119.
It is argued that Applicant failed to take
the court into its confidence in not placing the entire facts and
background of the matter
before it, a complaint with some
considerable justification, not even so in not such of itself to be
of great assistance to Respondent
necessarily.
120.
It is pointed out that there is no
supporting affidavit from Hannington and much of what is said falls
outside Hean’s knowledge.
This of course does not meet the
argument that the facts and the correspondence is inevitably common
cause.
121.
It is argued effectively that Respondent
effectively was forced to beg and plead for his payments in every
instance this no different
in respect of the claim for R1.4 million.
122.
In respect of this latter issue which is
central to the entire matter it is argued that it is clear that there
was a contract between
Respondent and Applicant and on the facts as
properly dealt with in terms of Plascon Evans and supported by the
offer to pay him
R500 000,00, it must be accepted that the sum was
indeed owing.
123.
It is argued that Applicant has not set out
what conduct of Respondent defames or impugns its good name and that
it did not know
what Respondent intended to publish or whether it
would in fact be defamatory. It is argued that there is no basis set
out for
an allegation that Applicant would be harmed in its name or
reputation. It was argued that no right thinking person would
attribute
the conduct of Hannington to Applicant nor were the
allegations made by Respondent to be attributed to Applicant. It is
argued
that in effect all Respondent does is inform Hannington that
his conduct (not Applicant’s) would be brought to the attention

of the relevant parties.
124.
Reliance is made on
Hix
Networking Technologies
CC
(
supra
)
where the court held that:
“
The
result is that if the injury which is sought to be restrained is said
to be a defamation, then he is not entitled to the intervention
of
the Court by way of interdict, unless it is clear that the defendant
has no defence. Thus if the defendant sets up that he can
proof truth
and public benefit, the Court is not entitled to disregard his
statement on oath to that effect, because, if his statement
were
true, it would be a defence, and the basis of a claim for an
interdict is that an actionable wrong, i.e. conduct for which
there
is no defence in law, is about to be committed.”
[38]
125.
In this context it is argued that
Respondent set out a defence presumably his entitlement to be paid as
a defence to defamation
this attributed to Hannington’s
dishonesty and his claim being fully valid and enforceable, what was
said being true and
in the public interest.
126.
It is argued in any event that this does
not constitute harassment or compounding and that no other case has
been made out.
127.
As to urgency it was argued that the matter
was not urgent and had never been urgent and should be dismissed on
that basis alone.
Costs are sought on the scale as between attorney
and client.
CONCLUSION
128.
Having considered the issues as to urgency
and having regard to all matters relevant including the interim order
by agreement I
am satisfied that the matter is sufficiently urgent to
be heard and determined.
129.
As to a final interdict such as that sought
in this matter the position is as follows.
130.
A final interdict may be granted on
application if no bona fide dispute of fact exists.
131.
The requirements are:
a.
A clear right;
b.
An injury actually committed or reasonably
apprehended; and
c.
The absence of similar protection by any
other ordinary remedy.”
132.
Irreparable injury, though relevant in the
context of interim interdict, is not a requirement for the grant of a
final interdict.
133.
A clear right is a matter of substantive
law.
134.
No other adequate remedy must be present
such as to be adequate in the circumstances, ordinary and reasonable
being a legal remedy
giving similar protection.
135.
Applicant faces various difficulties in
this matter being predominantly:
135.1
The
fact that it did not fully disclose in this urgent application
(intended to be
ex
parte
),
the full facts and circumstances as Respondent more than correctly
points out, waiting for Respondent to raise the Kempston Road
issue
which was the fundamental basis for the defamation and harassment
contended for, dealing with that in reply, and hardly
satisfactorily
[39]
;
135.2
The issue as to whether Applicant as
opposed to Hannington, who is not an Applicant, is the subject matter
of the alleged threats
and defamation as summarised and referred to
more fully above attributable to Hannington and not Applicant;
135.3
Whether those attributed to Hannington can
be taken as referring to or referencing or applying to Applicant;
135.4
Whether the statements and threats
complained of amount to defamation, harassment or compounding;
135.5
Whether a proper case has been made out for
the relief sought both in respect of Applicant and Hannington, he not
being an Applicant.
135.6
Specifically, whether in the end seeking a
final interdict, Applicant complied with the necessary requirements
therefor, as I have
already set out above, referring to
Hix
Networking
(
supra
)
and
Herbal Zone
(
supra
) to
succeed Applicant having to show a clear right and its infringement
on the balance of probabilities;
135.7
Further, whether Applicant was not defeated
by the answer put up for Respondent and whether a sustainable
foundation was laid by
way of evidence that a defence such as truth
and public interest or fair comment is available to be pursued by
Respondent;
135.8
Whether Applicant showed a clear right and
its infringement on the balance of probabilities as set out in
Herbal
Zone
.
136.
It is necessary only to deal with the
complaints made in the founding affidavit as that is all Respondent
was obliged to meet, Applicant
not being able to extend or make out
its case in reply.
137.
The first complaint relates to the
communication of 13 August 2022 in which there is, in its
introduction thereto by Applicant,
a passing reference to an invoice
in the amount of R1.4 million stating that this had no link to
Applicant which is patently not
accurate, thereby disclosing
immediately the fact that Applicant was not taking the court into its
confidence in this regard.
138.
The statement referred to already quoted
above refers to the conduct of Hannington (although it is said this
was to Applicant and
Hannington) this lacks a proper basis in my view
on a reading of the communication and in the fact that it was
addressed to Hannington
specifically for attributing this to refer to
Applicant at all. The threat in this communication to institute civil
proceedings
is unobjectionable and the threat to lodge affidavits
with those mentioned adheres to the conduct of Hannington and cannot
at any
stretch be said to be attributable to the Applicant. It is a
reference to what was alleged to be the fraudulent misappropriation

by Hannington of ENX funds and the charge to be laid against
Hannington, not Applicant.
139.
Whether or not it was an objectionable
defamatory communication in respect of Hannington is a different
matter. It is certainly
on the face of it defamatory, but Respondent
alleges that this was true and that he would have had a defence had
Hannington proceeded
against him in this regard at least on the
allegations to be taken into account on the proper approach to the
papers on the usual
test. As to the complaint in para 23 of the
founding affidavit this is clearly not aimed at nor does it attach to
the Applicant
but to Hannington – it is a threat to publish in
this context.
140.
BH23 addressed to Hannington referred to as
“
Andrew
”
is a threat to bring legal proceedings but I repeat what I have
referred to above, with the same result.
141.
There is in BH21 a reference back to the
Buffelsfontein matter and the allegation that in this regard by
innuendo Hannington was
responsible. In BH22 is a reference to the
saving of EIE millions, clearly a reference to the Kempston Road
project and the threat
to expose the entire house of cards step by
step is hardly unlawful, or defamatory in respect of Applicant or
Hannington.
142.
Finally, the so-called “
chilling
message
” of 15 August 2022 was
again addressed to Hannington referring to the intended affidavit
which relates specifically to Hannington’s
professional
reputation in terms and to that of Brent Hean. It is a reference to
the fact that Respondent’s professional
reputation has been
destroyed and referring to the ability to destroy Hannington’s
reputation (not Applicant). It is effectively
a complaint to and
about Hannington personally and with only passing reference to the
“
ENX millions
”.
143.
Again in my view even if defamatory, it is
highly debatable that this refers to Applicant the company, and in my
view this cannot
be accepted.
144.
As I have already set out above, in any
event, an interdict such as that which is sought is infrequently
granted the Applicant needing
to demonstrate that it would be injured
by such publication something that would normally be left to a remedy
in a claim for damages
in due course. In this matter no attempt
whatsoever by Applicant is made to show that it has suffered loss or
that it would suffer
irreparable harm in the future by further
publication of such material nor did it allege that damages would not
be an adequate
remedy for any such publication the founding affidavit
being mainly devoid of any such allegations relevant to these two
elements
of a claim in an interdict.
145.
In any event once again, Respondent puts up
sufficient to establish that he has a potential defence hereto as to
justification relevant
to truth and public benefit, more than
adequately expressed in his answer though not in those exact terms,
the sum on his allegations
being due and claimable.
146.
I am similarly unpersuaded that extortion
or compounding, in respect of which Applicant and Respondent filed
supplementary heads,
has been established and certainly not in
respect of Applicant by reference thereto.
147.
In the result, I am entirely unpersuaded on
the appropriate test with application to the facts stated in the
papers, that Applicant
has made out a case for the relief sought in
any way at all. Not only is this not said or such as to be understood
to refer to
Applicant, there is in each instance effectively a
justification defence of truth and public interest sufficiently
raised, even
if Applicant is implicated, or has put up sufficient to
justify its interdict sought on the facts in respect of Hannington,
this
potential defence being sufficient to meet the allegations of
defamation at this stage of the proceedings on application. As
already
set out there is no need for me to determine whether the
defence will succeed at trial and in the words of
Herbal
Zone
, it seems to be a colourable
defence and a factual basis has been laid for it that cannot be
rejected out of hand.
148.
In short, this being an application for a
final interdict at the end of the day, Applicant has failed to show a
clear right and
its infringement on the balance of probabilities.
149.
In the result the application falls to be
dismissed.
150.
Insofar as costs are concerned, there is no
reason whatsoever nor was any stated in argument as to why the costs
should not follow
the result in the normal way.
151.
In respect of Respondent’s claim for
attorney and client costs, and notwithstanding the fact that there is
some merit in its
submissions that there was inadequate disclosure in
the founding papers concerning the Kempston Road property deal and
the basis
of Respondent’s claim but this, on its own, is in my
view, not such as to establish an entitlement to costs on an attorney

and client basis. The matter is not sufficiently vexatious, to
establish this, nor, in my view, does it meet the well- established

principles relevant in this regard.
ORDER
152.
The following order issues:
1.
The application is dismissed.
2.
Applicant is to pay Respondent’s
costs including those reserved by Hartle J.
M.J. LOWE
JUDGE OF THE HIGH
COURT
Appearing on behalf of
the Applicant:
Mr. N. Jagga
instructed by Jagga Inc Attorneys, Port Elizabeth, Ms.
Carinus.
Appearing on behalf of
the Respondent:         Mr.
Karuaihe instructed by Andrew Miller
& Associates, Mr. Miller.
Date
heard:

15 September 2022.
Date
delivered:

8 November 2022.
[1]
Bobotyana
v Dyanti and Others
1198/20
ECD Mbenenge JP.
[2]
Caledon
Street Restaurants CC v D’Aviera
[1998]
JOL 1832
(SE).
In
re: Several Matters on the Urgent Roll
[2012]
4 All SA 570
(GSJ) [15]
[3]
2004 (2) SA 81
(SE) [37], [38] and [40].
[4]
But see:
Murray
& Others NNO v African Global Holdings (Pty) Ltd & Others
2020
(2) SA 93
(SCA) [35], [38], [39] and [40]
[5]
Lindeque
and Others v Hirsch and Others, In Re: Prepaid24 (Pty) Limited
(2019/8846) [2019] ZAGPJHC 122 (3 May 2019) [10];
Masipa
& Another v Masipa 2020 JDR 1054 (GP); Edrei Investments 9 Ltd
(In Liquidation) v Dis-Chem Pharmacies (Pty) Ltd
2012 (2) SA 553
(ECP); Bandle Investments (Pty) Ltd v Registrar of Deeds and Others
2001 (2) SA 203
(SE) 213; East Rock Trading 7 (Pty) Ltd and Another
v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011]
ZAGPJHC 196
(23 September 2011) [6] and [9] – The fact that
Applicant now wants the matter resolved urgently does not render the
matter
urgent; Ntozini and Others v African National Congress and
Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018) 415.
[6]
Dorbyl
Vehicle Trading and Finance (Pty) Ltd v Northern Cape Tour and
Charter Service CC
[2001]
1 All SA 11 (NC) 123-4.
[7]
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) [13].
[8]
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
2008
(1) SA 184
(SCA) [56].
[9]
Van Wyk
v Botha
[2005]
2 All SA 320
(C) at 328.
[10]
Khumalo
v Director-General of Co-operation and Development and Others
[1990] ZASCA 118
;
1991
(1) SA 158
(A), 167G-168B.
[11]
Transman
(Pty) Ltd v South African Post Office and Another
[2013]
1 All SA 78
(SCA) at [16].
[12]
[2007] ZASCA 153
,
2008 (2) SA 184
(SCA) [56]-[60].
President
of the RSA and Others v M & G Media Ltd
2012
(2) SA 50
(CC) [34];
Hoffman
v Pension Funds Adjudicator and Others
[2012]
2 All SA 198 (WCC) 43
[13]
Reddy
v Siemans Telecommunications (Pty) Ltd
2007
(2) SA 486 (SCA).
[14]
Ngquma
v Staatspresident; Damons NO v Staatspresident; Jooste v
Staatpresident
1988
(4) SA 224
(A0 at p 243 F-H.
[15]
Ngquma
at
p243 D-E.
[16]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para 26.
[17]
Herbal
Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and
Others
[2017]
2 All SA 347
(SCA) at 361D – 362A;
Hix
Networking Technologies v System Publishers (Pty) Ltd and another
1997 (1) SA 391 (A).
[18]
Herbal
Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and
Others
[2017]
2 All SA 347
(SCA) at 361D – 362A.
[19]
Herbal
Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and
Others
[2017]
2 All SA 347
(SCA) at 361D – 362A.
[20]
Again
in the context of an interim interdict.
[21]
Herbal
Zone [36]
[22]
(WC)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para [20]
[23]
Herbal
Zone [36]
[24]
2019 (5) SA 21
0
(GJ)
[25]
[2020] ZAGPJHC 2 24 January 2020
[26]
[2019] ZAKZDHC 16 September 2019
[27]
This
lack of explanation is what was said to be an
ex
parte
application is extraordinary and which indicates either that Hean
was unaware thereof or that he choose not to disclose same.
There is
no version put forward by Hannington.
[28]
The
offending portion of this is not identified or quoted and this is
therefore not properly dealt with as it should have been.
[29]
S v
Lepheana
1956
(1) SA 337 (A).
[30]
Criminal
Law 6
th
Ed LexisNexis page 419 paragraph 8.
[31]
Juta
5
th
Ed 738.
[32]
Applicant,
in supplementary heads, sought to persuade me that extortion is
committed even where the advantage is due where the
act is aimed at
the acceleration of an advantage even if due, referring to
Goolabjith
v Govender
2009 JDR 1278 (KZD) and
Diamond
v O’Sullivan
2015 JDR 0335 (GJ).
[33]
1929
AD 58, 67
[34]
1970
(2) SA 443 (E).
[35]
1961
(3) SA 741
(W) at 746.
[36]
Le
Roux v Dey
2011
(6) BCLR 577
(CC),
2011 (3) SA 274
(CC).
[37]
Hicks
Networking Technologies CC v System Publishers (Pty) Ltd
[1996] ZASCA 107
;
1997
(1) SA 391
(SCA);
Herbal
Zone Pty Ltd and Others v Infitech Technologies (Pty) Ltd and others
[2017] 2 All SA 347 (SCA).
[38]
Hix
Networking
pages
15 – 16.
[39]
Whilst
to be frowned upon this is not by any means necessarily such as to
deprive Applicant of success if otherwise it is entitled
thereto on
all the facts.