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[2022] ZAECGHC 11
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McKenzie v Gabriel (412/2021) [2022] ZAECGHC 11 (8 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, GRAHAMSTOWN)
Case no: 412/2021
Date heard:19 January 2022
Date
delivered:08 February 2022
NOT
REPORTABLE
In
the matter between
PETER
MCKENZIE PLAINTIFF
and
COLIN
JAMES
GABRIEL DEFENDANT
JUDGMENT
GOVINDJEE,
J
Introduction
[1]
The
plaintiff is an admitted attorney. He alleges that the defendant was
responsible for defamatory publications intended to injure
his
dignity, reputation and standing within the attorney’s
profession. The plaintiff claims damages from the defendant in
the
sum of R500 000,00.
[2]
The
defendant is a former client of the plaintiff. He admits being the
author of the correspondence that the plaintiff considers
defamatory.
That correspondence was addressed, firstly, to Mrs Hanli Glanvill, a
senior assistant state attorney, on 15 October
2020 (‘the
Glanvill e-mail’)
[1]
and, secondly, to the Legal Practice Council (LPC) on 23 November
2020 (‘the LPC complaint’).
[2]
The defendant denies any intention to defame or injure the
plaintiff’s character. He pleads that he merely presented
various
facts to Glanvill, and that he has a right to lodge a
complaint against any legal practitioner to the LPC. The LPC is the
statutory
body overseeing the conduct of legal practitioners.
[3]
The
issues raised include the following:
a.
Whether
the correspondence was defamatory.
b.
Whether
the correspondence should be protected based on qualified privilege.
c.
Whether
the correspondence exceeded the bounds of protection and was
malicious.
d.
If
necessary, the quantum to be awarded in respect of damages for
defamation and the appropriate order as to costs.
Background
[4]
The
plaintiff has been practicing as an attorney since 2006, specialising
in civil claims against the state. The defendant consulted
with him
on 7 February 2020 in respect of such a matter, which had already
been enrolled for trial on 4 March 2020. The plaintiff
advised the
defendant that the matter would not be trial ready. The defendant’s
former legal representative, Chantal du Plessis,
had unsuccessfully
sought a postponement of the matter without tendering costs.
Plaintiff advised the defendant that costs should
be tendered and a
postponement secured and that those costs could be claimed from Du
Plessis based on her late withdrawal. The
matter was roll called on
14 February 2020 and a handwritten draft order, prepared by counsel
for the state attorney, was made
an order of court. That order
resulted in the matter being postponed, the defendant to pay the
wasted costs. The defendant was
present and disputes that he agreed
to a costs order in these terms, based on the promise that Du Plessis
would be held responsible.
[5]
The
plaintiff withdrew as the defendant’s legal representative
during July 2020. The state attorney communicated directly
with the
defendant regarding the costs issue during October 2020, resulting in
the Glanvill email that the plaintiff considers
defamatory. The LPC
complaint followed a month later. The plaintiff summarises the
alleged defamatory portions of the communications
as being the
following:
‘
10.1
that Plaintiff secretly held a private meeting with Senior Assistant
State Attorney, Mrs Hanli Glanvill, and her Counsel and
conspired and
colluded with each other to obtain a costs order against the
Defendant on the 14
th
of February 2020, in respect of his claim against the Minister of
Police and the National Director of Public Prosecutions;
10.2
that Plaintiff made himself guilty of unprofessional conduct by
acting without the Defendant’s instructions, in respect
of the
issue of the tendering of costs pertaining to the trial, which was
set down for hearing on the 4
th
of March 2020 and by
failing to protect confidential documents;
10.3
that Plaintiff, together with … Glanvill, and her Counsel …
deliberately misled the Honourable Justice Van Zyl
DJP in the Port
Elizabeth High Court on the 14
th
of February 2020, in
respect of the agreement pertaining to the issue of costs of the
postponement of the trial proceedings;
10.4
that Plaintiff, together with Advocates … conduct was improper
behaviour, fraudulent, unethical …, misleading,
untruthful and
malicious; and
10.5
that Plaintiff discussed “favours” with …
Glanvill, and her Counsel, to deliberately delay the finality
of the
Defendant’s case.’
Evidence
[6]
The
plaintiff and defendant were the only witnesses to testify in the
matter. The documentation presented to the plaintiff by the
defendant
at their first consultation was voluminous, so that the plaintiff
indicated that he would not be in a position to proceed
with the
matter on 4 March 2020. For reasons that follow, I accept the
plaintiff’s evidence that he informed the defendant
about this,
and that he explained to the defendant that he (the defendant) would
have to tender costs which could be recoverable
from the defendant’s
erstwhile attorney. I accept further that the defendant was, at that
stage, willing to accept the plaintiff’s
advice as his chosen
legal representative, and that he accepted this advice and gave
instructions to tender the wasted costs, on
the understanding that
these costs would be recoverable from Du Plessis.
[7]
This
version is supported by the detailed correspondence sent by the
plaintiff to Glanvill on 9 February 2020. That correspondence
follows
the parties’ consultation on 7 February 2020 and confirms that:
a.
The
plaintiff had agreed to represent the defendant;
b.
Glanvill’s
office had previously refused to accede to the defendant’s
request that the matter should be removed from
the trial roll;
c.
The
plaintiff would not be ready to proceed with the trial on 4 March
2020 given the conduct of the defendant’s former attorney;
d.
The
documentation was voluminous and the plaintiff required time to
prepare and to engage counsel;
e.
In
the circumstances, a removal of the matter from the 4 March 2020
trial roll was required, and ‘there is simply no other
option
to make such request and to tender payment of your clients’
wasted party and party costs…’
[8]
The
plaintiff’s recollection of events is further borne out by his
response to correspondence received from Glanvill on 12
February
2020, indicating that the matter could be removed if wasted costs
were tendered, including the costs of preparation up
until 14
February 2020 and the costs of two counsel where so employed. Instead
of instantly agreeing to this, the plaintiff records
that he would
take instructions from his client in respect of the costs issue and
revert to Glanvill at court on the day of the
roll call.
[9]
The
plaintiff explained that he could not consent to Glanvill’s
conditions without taking instructions, and that he obtained
the
defendant’s consent. As Glanvill’s counsel had prepared a
draft order including reference to attorney client costs,
the
plaintiff clarified that this was not what had been tendered. A
handwritten order was drafted to correct that issue. There
is a
dispute of fact as to whether that draft order was shown to the
defendant at the back of the courtroom prior to the matter
being
called in court. That draft was made an order of court by agreement.
[10]
The
parties discussed what had transpired in a passage outside court
after the order had been taken. The plaintiff indicated to
the
defendant that he had forgotten to add that the costs would not be
payable and taxable immediately. Glanvill overheard the
conversation
and made a remark clarifying the position.
[11]
Between
February 2020 and July 2020 the defendant repeatedly requested
information about whether the state’s bill of costs
had been
received, so that action could be taken against Du Plessis. By July
2020 the plaintiff felt undermined and terminated
the brief. He
nevertheless continued to engage in correspondence with the
defendant, also sending him a copy of the Joint Rules
of Practice for
the High Courts of the Eastern Cape Province (‘Joint Practice
Rules).
[12]
On
22 July 2020, the defendant drafted an email to the plaintiff,
apologising if it appeared as if he had been second-guessing the
advice received, explaining that he needed to be updated and seeking
to clear the air:
‘
I
am in no way questioning your integrity. I was merely following up if
you received the bill from the state attorneys
because it
was your decision to agree to costs. You mentioned that you were
going to claim those costs from Chantal du Plessis
attorneys. I was
hoping that we start this process as soon as possible to avoid any
issues at a later stage…I hope that
the above clears any
misinterpretation or miscommunication.’
[13]
Matters
took a turn only once Glanvill provided the defendant with a copy of
the (handwritten) court order, a few months later,
and indicated that
the contents were not in dispute given that the defendant had been in
court on the day the terms of the order
had been agreed. The
defendant responded by indicating that he had been seated at the back
of the court gallery, had not been included
in any discussions and /
or agreements, had been unable to hear what had been said to the
presiding judge and, in the circumstances,
had not agreed to any
payment of costs.
[14]
Glanvill’s
reply reflects that she recalled the plaintiff showing the defendant
the draft order before agreeing to its contents.
She further recalled
the passage discussion between the parties regarding costs, and her
comment at the time that costs would be
taxed and payable
immediately, and that the defendant had not raised the alleged lack
of instruction. The allegedly defamatory
Glanvill email, and
subsequent LPC complaint, followed.
[15]
The
defendant’s version of events, as put to the plaintiff,
differed mainly in respect of a subtle point. The costs order
agreed
to on 14 February 2020 should have reflected the plaintiff’s
promise that Du Plessis would be held responsible for
wasted costs
given her late withdrawal from the matter. The plaintiff was obliged
to have informed the court of Du Plessis’
conduct at the time
of the roll call, particularly given Rule 7(c) of the Joint Practice
Rules.
[3]
The plaintiff had never discussed the handwritten draft order with
the defendant before the order was granted. The defendant accepted,
however, that his payment of costs and subsequent recovery from Du
Plessis was discussed after the order had been granted.
[16]
An
application for absolution from the instance was dismissed at the
close of the plaintiff’s case.
The
legal position and analysis
[17]
Defamation
is the intentional infringement of another person’s right to a
good name. The elements are
(a)
the wrongful and
(b)
intentional
(c)
publication
of
(d)
a
defamatory statement
(e)
concerning
the plaintiff.
[4]
[18]
The
plaintiff must prove the publication of defamatory material
concerning himself. The defendant accepts that he was the author
of
the disputed publications, their publication and, for the most part,
that they relate to the plaintiff. To prove that the publications
constitute defamatory material, the ordinary meaning of the
statements in question must be established, before considering
whether
that meaning is, objectively speaking, defamatory.
[5]
[19]
In
establishing the ordinary meaning of the statement, the court is not
concerned with the meaning which the defendant intended
to convey.
Nor is it concerned with the meaning given to it by the persons to
whom it was published, irrespective of whether or
not they considered
the statements to be true or whether the statements diminished their
view of the plaintiff.
[6]
An objective test must be applied in order to consider the meaning
that a reasonable reader of ordinary intelligence would attribute
to
the statements. A reasonable reader understands statements in their
context and would consider any implications of what has
been
expressly stated.
[7]
[20]
The
Glanvill email must be read in the context of the defendant disputing
his liability to the state for the costs of his matter
being
postponed. It includes the following:
‘
I
was not involved in any cost conversations nor did I give any
instructions concerning costs…A private meeting was held
without my knowledge between your counsel including yourself and
Peter Mckenzie…Your allegation of Peter Mckenzie showing
me
the cost order before court appearance is misleading and untruthful.’
Read
in context, a reasonable reader of ordinary intelligence would
conclude that the plaintiff proceeded in the absence of instructions
from his client and entered into an agreement in respect of costs
behind his client’s back.
[21]
The
LPC complaint must be read in the context of the defendant’s
objection to the plaintiff making decisions without his consent,
and
his failure to protect the defendant’s confidential
documentation. It includes the following remarks:
‘
I
have a civil claim of R12 145 847 against the Minister of
Police and The National Director of Public Prosecutions…According
to a source, it is believed that “favours” are being
discussed between the parties which is delaying the finality of
this
case.’
Regarding the costs issue:
‘
In
my belief, this handwritten agreement was drafted to mislead the
honourable judge / court in believing that I agreed to such
costs.
Peter Mckenzie, together with the defendants’ counsel must have
known that their conduct was improper behaviour, fraudulent,
unethical tactics, misleading, untruthful and malicious.
[22]
The
meaning that a reasonable reader of ordinary intelligence would
attribute to these statements is self-explanatory, namely that
the
plaintiff was involved in unbecoming conduct, designed even to
mislead the presiding judge, broadly labelled as ‘improper’,
‘fraudulent’, ‘unethical’, ‘misleading’,
‘untruthful’ and ‘malicious’.
[23]
Are
these statements, and the meanings established, objectively speaking,
defamatory? A statement is defamatory of a plaintiff if
it is likely
to injure the good esteem in which he or she is held by the
reasonable or average person to whom it has been published.
[8]
Examples of defamatory statements cited in
Le
Roux
include those attributing to a plaintiff that he or she has been
guilty of dishonest, immoral or otherwise dishonourable conduct.
[9]
From an objective point of view, both the Glanvill email and
the LPC complaint, pointing to unconscionable conduct on the
part of
the plaintiff and amounting to a slur on his reputation, fit this
description and must be considered to be defamatory,
undermining
respect for the plaintiff and the esteem in which he is held by other
members of his profession.
[10]
[24]
Given
that the plaintiff has successfully proved the publication of
defamatory material concerning himself, it is presumed that
the
statements in question are both wrongful and intentional. This
despite the defendant’s assertion that he lacked the intention
to injure the plaintiff’s reputation. It is then for the
defendant to raise a defence, to be discharged on a preponderance
of
probabilities, which excludes either wrongfulness or intent in order
to avoid liability.
[11]
A bare denial by the defendant is insufficient and facts must be
pleaded and proved that will be sufficient to establish the
defence.
[12]
[25]
Grounds
of justification challenge the wrongfulness of the publication.
[13]
Publishing a statement on a privileged occasion is one such ground,
effectively granting a person the legal right to injure another’s
good name and in so doing setting aside the prima facie wrongfulness
of his conduct if proved.
[14]
It is accepted that the defendant’s case rested solely on this
particular ground and that the defendant bears a full onus
to
establish the justificatory defence relied upon.
[15]
As part of the analysis to determine whether conduct is adjudged
lawful or not, consideration must be given to the balancing of
the
constitutionally enshrined right of dignity, including as the right
to reputation, and the right to freedom of speech, as well
as the
underpinning constitutional values.
[16]
[26]
As
part of this onus, it is for the defendant to prove, on a balance of
probabilities,
[17]
that both parties had a corresponding duty or interest so that a
privileged occasion existed. A situation of qualified privilege
arises when one person publishes a statement in the discharge of a
duty or the protection of a legitimate interest to another person
who
has a similar duty or interest to receive it. The test to determine
the existence of the reciprocal duties or interests is
the objective
test of the reasonable person.
[18]
Plaintiff’s counsel conceded, correctly in my view, that the
correspondence in question fell within the realm of a (qualified)
privileged occasion.
[19]
It is important that members of the public are entitled, and even
encouraged, to raise their concerns to the LPC when they believe
that
legal practitioners have conducted themselves in an unacceptable
manner.
[20]
This will ultimately assist the LPC in regulating the legal
profession and maintaining standards.
[21]
More specifically, it may be accepted that the defendant had a
legitimate interest in addressing the Glanvill email and the LPC
complaint in furtherance of his interests in attempting to avoid the
costs order and in laying a complaint with the LPC as the
appropriate
body to deal with the conduct of legal practitioners. Both Glanvill
and the LPC had a corresponding duty or interest
to learn of his
assertions.
[22]
[27]
The
defendant must also show that he acted within the scope or limits of
the privilege.
[23]
To do so, the defendant must demonstrate that the defamatory
assertions were relevant to, or reasonably connected with the
discharge
of the duty or the furtherance of the interest.
[24]
The question of relevance should be liberally interpreted
[25]
but objectively evaluated according to the reasonable person
criterion, considering whether the defamatory matter could fairly
be
regarded as reasonably necessary to protect the interest or discharge
the duty which was the foundation of the privilege.
[26]
This aspect requires a value judgment, giving due weight to all
matters which can properly be regarded as bearing upon it.
[27]
[28]
In
Borgin
,
[28]
Corbett JA held as follows:
‘
The
defence of qualified privilege is, however, not concerned with the
truthfulness or otherwise of the publication, though proof
that the
defendant did not believe that the facts stated by him were true may
give rise to the inference that he was actuated by
express malice.
But the truthfulness or otherwise of the statements has no bearing on
whether they were germane to the occasion
or not.’
[29]
Froneman
J explained two core reasons for this approach in
Yazbek
v Seymour
.
[29]
Firstly, it is the occasion, not the statement, that is privileged.
There are occasions when the recipient of the statement has
a special
interest in learning honestly held views of another person, even if
those views are defamatory and cannot be proven.
When the interest is
sufficiently important to outweigh the protection of reputation, the
occasion is considered to be privileged.
[30]
Secondly, complete factual accuracy is difficult to achieve and
distinctions between what is fact and innuendo and comment are
sometimes difficult to delineate in a way that leaves no room for
disagreement or honest.
[31]
‘
The
free discussion of opinions and the freedom to comment are inevitably
liable to overlap with factual assumptions and implications.
Some
degree of tolerance for factual inaccuracy has to be accepted; hence
the need for a law of privilege.’
[30]
The
general view of the courts appears to be that untrue statements do
not exclude the privilege provided that the defendant had
a bona fide
belief in the truth thereof, whether or not this belief was based on
reasonable grounds.
[32]
Nevertheless, if it is shown that a statement was made with knowledge
of its untruthfulness, the inference that would arise, in
the absence
of any indication to the contrary, would be that the statement was
actuated by malice.
[33]
[31]
The
defendant’s plea confirms that his defence is based on a right
to lodge a dispute pertaining to a legal practitioner to
the LPC.
That complaint related to ‘making decisions without my consent
that are
not
in my best interests – Bill of Costs’ and ‘failure
to protect the confidentiality of my case files.’ Immediately
after these matters are listed in the LPC complaint, the defendant
added the paragraph, quoted above, suggesting that ‘“favours”
are being discussed between the parties which is delaying the
finality of this case’. The defendant confirmed, during
cross-examination
that this particular remark related to the
complainant’s erstwhile legal representative, and not to the
plaintiff. Yet it
appeared under a heading, in bold, referring to ‘My
complaints against the legal practitioner, Peter Mckenzie, involves
the
following matters…’ The defendant never rectified or
clarified this matter in response to the plaintiff’s reply
to
the LPC, failed to plead that the issue of ‘favours’ did
not relate to the plaintiff or to put this issue to the
plaintiff
during cross-examination.
[32]
In
these circumstances, I find that the inclusion of the paragraph
addressing “favours” was not relevant or germane
to the
defendant’s complaint to the LPC and is not protected by
qualified privilege for this reason.
[34]
The principle underlying this is that, even while open debate and
access to complaints mechanisms are to be promoted in society,
courts
may not be used as a platform for disseminating defamatory matter
having no relevance to the actual complaint.
[35]
The manner in which the complaint has been framed and arranged, when
read reasonably by an ordinary reader, links the allegation
to the
plaintiff and is defamatory.
[33]
It
is worth considering whether the position would have been different
had that paragraph not been included, or perhaps if it had
been found
to relate clearly to ‘parties’ other than the plaintiff.
This also addresses whether the remaining published
material in issue
is protected by the qualified privilege. Answering that question
requires consideration of possible malice. This
is because, as
indicated, qualified privilege does not afford absolute immunity. The
provisional or conditional protection would
be defeated if the
plaintiff proves that the defendant exceeded the bounds of the
privileged occasion by acting with an improper
motive (malice).
[36]
“Malice” does not mean merely “spite” or
“ill-will” in this context.
[37]
Any motive that does not originate from “a sense of duty or the
desire to protect an interest” gives rise to an improper
motive
or malice.
[38]
[34]
Given
its subjective nature, it is understood that a plaintiff will
struggle to furnish direct evidence of malice. As such, the
existence
of malice may be inferred from other intrinsic or extrinsic
facts.
[39]
Various examples, usefully summarised by Neethling
et
al
,
appear in case authority illustrating “malice”.
[40]
This includes words uttered in a rage, particularly hurtful or
vengeful assertions, hostility between the defamer and defamed,
or
cases where the defendant did not believe in the truth of the
assertions concerned or was reckless as to the truth or falsity
thereof.
[35]
The
defendant’s case is based on a bona fide complaint to the LPC.
The complaint itself stems from the defendant’s version
that
the plaintiff proceeded to enter into an agreement in respect of
costs without instructions. The proven facts suggest the
contrary.
The defendant’s conduct immediately after the court proceedings
on 14 February 2020, and in the months that followed,
fail to support
his version of events. The evidence shows that he was assertive in
controlling his legal proceedings. He would
have immediately taken
issue with the plaintiff if costs had been agreed without his
consent. Considering the credibility of the
witnesses and the
probability of their versions, I am unable to accept that the
defendant genuinely believed the gravamen of his
complaint.
[41]
He appears, on a balance of probabilities, to have raised this
opportunistically as part of an attempt to avoid the payment of
the
costs and only once his relationship with the plaintiff had soured.
Instead of limiting his complaint to a possible misunderstanding
in
respect of the legal process and the scope of his instructions, he
doubled down and proceeded to make serious allegations at
the expense
of the plaintiff, and with the object of injuring his reputation.
[42]
By doing so, the complaint grew in magnitude and suggested that the
plaintiff was not fit for legal practice at all. It is this
demonstration of a lack of ‘positive’ or ‘honest’
belief,
[43]
the inclusion of the paragraph dealing with the erstwhile legal
representative and exaggerated description of the plaintiff’s
conduct that evinces malice, in the absence of an indication to the
contrary. As the court explained in
Chetty
:
[44]
‘
That
these words were used seems to be nothing more than a malicious
attempt to stir up trouble for the respondent and influence
the Law
Society to look beyond the scope of the original complaint made by
the appellant and to find fault, any fault, with the
respondent’s
conduct.’
The
plaintiff has accordingly succeeded in demonstrating malice on the
part of the defendant on a balance of probabilities. This
is a
further reason for the defence of qualified privilege failing.
[45]
I am further of the view that the suggestion that Rule 7(c) of Joint
Practice Rules changes the position is without merit. I do
not read
that rule to have made it obligatory for the plaintiff to inform the
presiding judge of the supposedly late withdrawal
of Du Plessis, in
the context of the defendant having changed his legal representative
and accepted that the plaintiff would require
a postponement in order
to prepare for trial properly.
The
defendant suggested for the first time during his cross-examination
that the plaintiff had told him that he would raise the
issue of Du
Plessis’ withdrawal and responsibility for costs with the
presiding judge. That version (which later changed
to indicate that
the defendant was ‘under the impression’ that this would
occur) was never put to the plaintiff and,
on a balance of
probabilities, cannot be accepted.
I
consider that rule to be designed to address a distinguishable kind
of situation. In any event, its existence does not, in my
view,
change the position in respect of the defamatory statements that
followed.
Quantum
[36]
Various
factors are usually considered in determining a suitable award of
damages. These factors include: the nature and seriousness
of the
defamatory statement; the nature and extent of the publication; the
reputation, character and conduct of the plaintiff;
and the motives
and conduct of the defendant.
[37]
The
defamatory material contains statements that question the plaintiff’s
professional integrity and reputation. The legal
profession is
stringently regulated and courts have deprecated instances where
unethical and dishonest conduct is alleged without
foundation.
[46]
As Holmes AJA held in
Gelb
:
[47]
‘…
it
is a grave and ugly thing falsely to say of an attorney that he
deliberately deceived the Court…’
[38]
I
accept that the publication was made to a restricted class of
persons, and indeed to a limited number of persons (Glanvill and
persons processing complaints at the offices of the LPC).
[48]
There is no evidence that the plaintiff has been lowered in the
esteem of professional clients, colleagues or other people.
[49]
In fact, it is clear from Glanvill’s e-mail response, in
particular, that she immediately took the plaintiff’s part
and
questioned the defendant’s conduct and attitude, rather than
the plaintiff’s behaviour. Similarly, the evidence
suggested
that the LPC complaint has come to nothing. It may nevertheless
remain part of the records of the LPC
[50]
and require disclosure by the plaintiff in future, for example if he
was considered for judicial training or appointment. The plaintiff
testified to this effect, and was clearly upset by the allegations
levelled against him, and had the ‘sword of disciplinary
proceedings’ hanging over him.
[51]
[39]
While
the defendant denied that he had made the statements with the
intention to defame the plaintiff, he remained unapologetic.
[52]
His motive, once the plaintiff had discontinued provision of legal
services, was to land the plaintiff in hot water with the LPC
and to
try to escape payment of the wasted costs tendered.
[40]
I am
in support of the view that large sums of damages ought not to be
awarded in such cases, also because of the effect this may
have on
freedom of speech and future litigation based on intolerance.
[53]
The award must depend upon the facts of this case, rather than cases
in the past of a roughly similar nature,
[54]
and this must be viewed against the background of prevailing
attitudes in the community.
[55]
I am also mindful of the remarks of the Supreme Court of Appeal in
Mogale
:
‘…life is robust and oversensitivity does not require
legal protection…’; and in
Van
der Berg
:
[56]
‘
The
fact that the appellant, as an experienced trial lawyer who is used
to the rough and tumble of litigation and can
give as
good as he gets, may be able to bear the defamation more readily than
someone perhaps more sensitive than he is does not
detract from the
sting of the accusation.’
[41]
Ultimately,
a court must try to make a realistic assessment of what will be just
and fair in all the circumstances, in order to
assuage the wounded
feelings of the plaintiff in cases where his dignity has been
unlawfully impugned.
[57]
The defendant should not be punished by the award, which should not
create a disproportionate burden on him.
[58]
While the Constitution of the Republic of South Africa, 1996, places
a great value on human dignity (including reputation), it
also
emphasises the right to freedom of expression. In my estimation, and
having considered all the applicable factors, an amount
of R40 000
is appropriate.
Interest
[42]
Counsel
for the plaintiff argued that there was no reason to depart from the
default position that interest should run from date
of demand or date
of service of summons. I did not understand the defendant’s
counsel to suggest otherwise and am of the
view that interest should
accrue from date of service of summons.
Costs
[43]
It
was argued on behalf of the plaintiff that costs should follow the
result, and that costs on the High Court scale was warranted,
given
that the plaintiff’s dignity had been impinged. While the
parties were in agreement, in their pre-trial minute, that
the matter
should not be transferred to another court, the matter could well
have proceeded in the magistrate’s court given
the typical
damages awards in such matters and the monetary jurisdiction of that
court.
[59]
[44]
The
remarks in
Mogale
appear to be apposite. The idea that defamation and other
injuria
claims
may, without regard to their monetary value, of right be instituted
in the high courts is outdated.
[60]
It could not have been reasonably expected that an amount in excess
of the monetary jurisdiction of the magistrate’s court
would be
awarded, let alone the actual amount claimed. In these circumstances,
I am of the view that costs of the action on the
magistrate’s
court scale should be awarded. The plaintiff produced three trial
bundles comprising in excess of 250 pages
and containing the entire
complaint to the LPC and response. As was confirmed during the trial,
much of this was unnecessary, and
the plaintiff should only be
entitled to the costs in respect of a third thereof.
Order
[45]
The
following order will issue:
1.
The
defendant is to pay to the plaintiff
a.
R40 000;
b.
Interest
a
tempore morae
calculated
at the appropriate legal rate of interest as from the date of service
of summons to date of payment;
c.
Costs
of the action on the Magistrate’s Court scale, the costs to
include the preparation of a bundle of only 85 pages.
_______________
A.
GOVINDJEE
JUDGE OF
THE HIGH COURT
Appearances:
For
the Plaintiff:
Adv M Du Toit
Instructed
by:
Peter Mckenzie Attorneys
Gqeberha
Email:chantaldp@cdpattorneys.co.za
For
the Defendant: Adv
S Nzuzo and Adv MP Mhlanti
Instructed
by: Mbewana
Attorneys
Gqeberha
Email:ntsikimbwn@gmail.com
Email:ingambewana-attorneys.co.za
[1]
‘
1. I was
not involved in any cost conversations nor did I give any
instructions concerning costs. It is my belief that your
allegations, amongst other things, with regards to me confirming to
costs is malicious.
2. A
private meeting was held without my knowledge between your council
including yourself and Peter Mckenzie. It is believed
that a hand
written agreement was drafted.
3. Your
allegation of Peter Mckenzie showing me the cost order before court
appearance is misleading and untruthful.
4.
Discussions after court appearance is not relevant in this matter
and your comments is based on assumptions.
Kindly
provide proof of your allegations.’
[2]
‘
Making
decisions without consent. Failure to protect confidential documents
. . . This is a high-profile case in Nelson Mandela
Bay. I have a
civil claim of R12 145 847 against the Minister of Police
and The National Director of Public Prosecutions
for unlawful
arrest, detention and malicious prosecution. According to a source,
it is believed that “favours” are
being discussed
between the parties which is delaying the finality of this case . .
. In my belief, this handwritten agreement
was drafted to mislead
the honourable judge / court in believing that I agreed to such
costs. Peter Mckenzie, together with the
defendants’ counsel
must have known that their conduct was improper behaviour,
fraudulent, unethical tactics, misleading,
untruthful and malicious
. . . It is hereby respectfully submitted that Peter Mckenzie did
not act within the limits of the law
and the rules of professional
conduct. I humbly ask the Legal Practice Council to investigate
accordingly.’
[3]
Rule 7(c): ‘As
an officer of the court, it is a matter of an attorney’s duty
not to withdraw at so late a stage that
a matter which has been set
down for hearing cannot proceed on the allocated date. In the event
of the late withdrawal of an
attorney occasioning a postponement,
the judge may require the attorney concerned to explain on affidavit
why he or she did not
withdraw earlier and, if no satisfactory
explanation is forthcoming, the attorney may be ordered to pay any
wasted costs occasioned
by the late withdrawal de bonis propriis.’
[4]
Khumalo and
Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC) para 18.
[5]
Le Roux v Dey
2011 (3) SA 274
(CC) para 89.
[6]
Ibid
.
[7]
Ibid
.
Chetty
v Perumaul
[2021] ZAKZPHC 66 para 12.
[8]
Various principles
have emerged in practice with respect to the application of the
objective reasonable person test: Neethling,
J and Potgieter, JM Law
of Delict (7
th
Ed) (LexisNexis) (2015) 355.
[9]
Le Roux supra
para 91. See
Penn
v Fiddel
1954
(4) SA 498
(C) at 500F-G.
[10]
See
Le
Roux
supra
para 106.
Chetty
supra
para 17.
[11]
Le Roux
supra
para 85.
[12]
Ibid
.
[13]
See
Hardaker
v Phillips
2005 (4) SA 515
(SCA) para 15. A distinction has been drawn between
absolute and relative or qualified privilege, and various
illustrations of
the latter have been recognised:
Dikoko
v Mokhatla
[2006] ZACC 10
para 48.
[14]
Neethling and
Potgieter
supra
358.
[15]
Chetty
supra
para 9.
[16]
Hardaker supra
para 14.
[17]
Le Roux
supra
para 85.
[18]
Yazbek v
Seymour
2001
(3) SA 695
(ECD) at 701G-H.
[19]
See
Clover
SA (Pty) Ltd and Another v Sintwa
[2016] ZAECGHC 77 para 15, 19. See
Chetty
supra
paras 28-29. Also see
Yazbek
supra
at 702I-J.
[20]
See
Vincent
v Long
1988 (3) SA 45
(CPT) at 48B-C and 48H-I.
[21]
Chetty supra
para 27.
[22]
Ibid
.
[23]
Neethling and
Potgieter
supra
358-359. Also see
Clover
supra
para 15.
[24]
Borgin
v De Villiers
and Another
1980
(3) SA 556
(AD) at 578-579. As pointed out by Mbenenge JP in
Clover
supra
para 16, the enquiry is somewhat different in the case of defamatory
statements made during the course of judicial or quasi-judicial
proceedings. There was, correctly, no suggestion on the papers or in
argument that the correspondence could possibly have fallen
under
this ground of justification, or that the applicable enquiry should
follow those lines.
[25]
Vincent supra
at 49B-E.
[26]
Neethling et al Neethling’s Law
of Personality (2
nd
Ed) (LexisNexis) 2005);
Vincent
supra
at 49B-E.
[27]
Van der Berg v
Coopers & Lybrand Trust (Pty) Ltd and Others
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) para 26.
[28]
Supra
at
578H-579A.
[29]
Yazbek supra
at 701J-702E.
[30]
Reynolds v
Times Newspapers Lt and Others
[1999] UKHL 45
;
[1999]
4 All ER 609
(HL) at 615h-j as cited in
Yazbek
supra
702B-C.
[31]
Reynolds
supra
at 657g-i as cited in
Yazbek
supra
at 702C-E.
[32]
Neethling et al
supra
at 149, fn 196.
[33]
Naylor and another v Jansen
[2005] 4 All SA 26
(C) paras 11, 13. Also see
Borgin
supra
at 578H.
[34]
See
Chetty
supra
para 32. Also see
Featherby
v Zulu
(8K11) QOD 1 (KZD) para 22.
[35]
Vincent
supra
49B-E.
[36]
Neethling and
Potgieter
supra
359.
[37]
Neethling
et
al supra
at 149.
[38]
De Waal v
Ziervogel
1938
AD 112
127. See Neethling
et
al supra
at 149, fn 200 and the sources cited there.
[39]
Neethling
et
al supra
at 149.
[40]
Ibid
.
[41]
See
Gishen
v Babu
unreported case no 2005 / 6018 (WLD) (1 November 2007) para 10,
where the court considered as a factor that there was no reason
to
hold that the statement made by the defendant to the Law Society
(concerning alleged deception of the court by the plaintiff)
had any
foundation in fact. Also see
Vincent
supra
at 50B-D.
[42]
Gishen supra
para
32. The defendant admitted, during his evidence, that he had gone so
far as to write a letter to the Deputy Judge President
indicating
that he had not consented to the costs order.
[43]
See
Horrocks
v Lowe
1975
AC 135
(HL) at 150.
[44]
Supra
para 39.
[45]
See
Chetty
supra
para 40.
[46]
See
Gelb
v Hawkins
1960
(3) SA 687 (A).
[47]
Gelb supra
at 693F-G.
[48]
Featherby supra
para 25.
[49]
Gishen supra
para 40;
Van
der Berg supra
para 46.
[50]
See
Gishen
supra
para 39.
[51]
Gishen supra
para 40.
[52]
See
Van
der Berg supra
para 47.
[53]
Van der Berg supra
para
48;
Mogale and Others v
Seima
2008 (5) SA 637
(SCA) paras 9, 18.
[54]
See
Tsedu
and Others v Lekota and Another
2009 (4) SA 372
(SCA) para 25.
[55]
Van der Berg
supra
para
48.
[56]
Van der Berg
supra
para
45.
[57]
Ibid
.
On the purpose of damages awards, see
Meyer
v Basset
[2019]
ZAECGHC 27 para 29, and the cases cited.
[58]
Cronje v
Minister of Police
(unreported
case no. CA 185/2018) (Eastern Cape Division, Grahamstown) para 17.
[59]
For a contrary
view, see
Featherby
supra
para 27. See
Meyer
supra
para 38.
[60]
Mogale supra
para
19.