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De Wet and Others v Scheepers (21021/2020) [2022] ZAGPPHC 793 (27 October 2022)

80 Reportability
Defamation Law
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Brief Summary

Defamation — Statements made in complaint — Plaintiffs, attorneys administering deceased estate, sued defendant for defamation following accusations of fraudulent conduct regarding property sale — Defendant, a layperson and sole heir, alleged collusion and misconduct by plaintiffs in public complaints — Court found statements were defamatory per se, with defendant failing to prove truth or fair comment as defenses — Plaintiffs entitled to damages for reputational harm caused by defendant's allegations.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a delictual action for damages based on defamation, brought in the High Court of South Africa, Gauteng Division, Pretoria. The plaintiffs were two practising attorneys, Franco Jacques De Wet and Johan Wilhelm Christiaan Nel, who practised in partnership under the name Nel & De Wet Attorneys (cited as the third plaintiff). The defendant, Ocker Scheepers, was a lay person who acted in person at trial.


The matter arose after the plaintiffs were appointed to administer a deceased estate on behalf of the testamentary executor, and a dispute developed between the defendant (the heir) and the estate administration in relation to the sale of a property forming part of the estate. Following that dispute, the defendant published a series of accusations—directed at the plaintiffs and connected persons—to institutions including Sanlam Trust’s forensic division, the Master of the High Court, and the Legal Practice Council.


Procedurally, the plaintiffs had previously sought an urgent interdict to restrain further defamatory publications. Despite service of the order, the defendant persisted in repeating allegations, including to the Office of the Deputy Judge President during 2022. The present action proceeded to trial, where the plaintiffs and the defendant testified. The plaintiffs also pleaded a claim for loss of profit linked to reduced instructions during an investigation but abandoned that claim at trial, leaving only the defamation claim for determination.


The general subject-matter of the dispute concerned the defendant’s widely publicised allegations of fraud, forgery, collusion, and professional misconduct by the plaintiffs in the course of administering a deceased estate and arranging the sale of the estate property.


2. Material Facts


It was common cause that the first and second plaintiffs practised as attorneys in partnership and were longstanding members of the Legal Practice Council, with a practice specialising in deceased estates. It was also common cause that, in terms of the deceased’s will, Sanlam Trust Limited was appointed testamentary executor and appointed the plaintiffs to administer the estate on its behalf. The court recorded that due process was followed in the plaintiffs’ appointment and administration mandate.


The defendant was the primary heir to his late mother’s estate, the major asset being an immovable property in Pretoria North of which he was the sole beneficiary. After the deceased’s death, the defendant remained in occupation. Being unemployed and unable to afford the ongoing costs, he sought to sell the property. The court accepted that the defendant laboured under a misconception that he owned the property outright immediately upon inheritance; however, the estate had not yet been finalised and the property was not registered in his name. The first plaintiff intervened after learning of the defendant’s attempt to sell the property, informing him that the property formed part of the deceased estate and could not be sold by the defendant in his personal capacity. The first plaintiff allowed a period for the defendant’s estate agent to market the property, failing which the mandate would be cancelled.


When the agreed period elapsed without success, the first plaintiff cancelled the estate agent’s mandate and proceeded to arrange an auction. An auctioneer provided an expected forced-sale value which was lower than the defendant’s expectations, which upset him. At the auction there was only one real bidder, who bid near the expected auction value. The defendant attempted to intervene and refused the offer, but later accepted the offer in writing. During evidence the defendant disputed having signed the email acceptance, but ultimately conceded.


Following the sale process, the defendant accused the bidder, the purchaser, and the first plaintiff of collusion and underhanded conduct. These accusations expanded to include the second and third plaintiffs. The defendant then published allegations to various recipients and institutions. The statements to Sanlam Trust’s forensic services included claims of unlawful conduct by the attorney administering the estate, alleged fraudulent and deceptive acquisition of the property, alleged enrichment of the first plaintiff’s friends behind the defendant’s back, alleged forgery of the purchase agreement, and alleged betrayal of the defendant’s trust while acting on behalf of Sanlam Trust.


In his complaint to the Master, the defendant similarly alleged that the sale was illegal; that the sale agreement was forged with criminal intent; that shell identities or a front company were used (allegedly created by the third plaintiff); and that the purchase agreement was forged to enrich identified individuals and the first plaintiff. The judgment recorded the identities and roles of the individuals mentioned: Leon Smith bid at the auction as representative of the true purchaser, Esther Nel, and Dirk Pienaar acted as auctioneer on behalf of the auction entity.


The plaintiffs testified that Leon Smith was not their client and that they were unaware of him until the auction; that evidence was not challenged. The defendant also made extensive further statements to the Legal Practice Council, including allegations that the first and second plaintiffs deceived and blackmailed him; that the first plaintiff had a criminal character; that the plaintiffs rigged auctions; that they submitted falsified papers to the Master; and that they should be struck from the roll of attorneys.


In the pleadings and evidence, the defendant admitted publication to Sanlam Trust (in his plea), and at trial admitted publication to the Master, the Legal Practice Council, and other individuals. He pleaded, in relation to the Sanlam Trust publication, that the statements were true and published for the benefit of all parties, alternatively that they were fair comment, necessary for investigation, and not malicious. The court found that the defendant failed to prove the truth of the statements or any recognised defence. The Sanlam forensic investigation absolved the plaintiffs of wrongdoing; the Master complaint was pending; and the Legal Practice Council complaint apparently did not proceed after receipt of the plaintiffs’ responses.


Critically, the defendant admitted at trial that the statements were defamatory and were made with an intention to harm the plaintiffs’ esteem, reputation, and professional reputation, and he refused to apologise.


3. Legal Issues


The central legal questions concerned whether the plaintiffs had established defamation against the defendant, and whether any pleaded or implied defence displaced liability. Although the defendant conceded defamatory intent during evidence, the court still had to assess the existence of the elements of defamation and consider whether any defence such as truth and public benefit, fair comment, lack of wrongfulness, lack of knowledge of wrongfulness, or publication in the public interest had been proven by the defendant on the facts.


A further central issue was the appropriate quantum of damages for defamation, assessed as a solatium for impairment of personality interests, particularly in circumstances where the publications were directed at professional bodies and institutions integral to the plaintiffs’ professional standing.


The dispute therefore concerned primarily the application of legal principles to largely common-cause publication facts, together with an evaluative judgment on the seriousness of the defamation and the appropriate measure of damages. The costs issue additionally required a value-based assessment of the appropriate scale, given the court’s view that the matter could have been instituted within the magistrates’ court jurisdiction.


4. Court’s Reasoning


The court approached the matter on the basis that the defendant’s statements were per se defamatory. The judgment characterised the accusations—fraud, forgery, collusion, criminality, auction rigging, and unfitness to practise—as inherently injurious to reputation, particularly given the plaintiffs’ status as attorneys. The court emphasised that such allegations were wrongful in that they were likely to diminish the plaintiffs’ esteem in the eyes of reasonable persons to whom they were published, and especially damaging where professional reputation was implicated.


On publication, the court relied on the defendant’s admissions in pleadings and evidence. The defendant admitted authoring the statements and publishing them to Sanlam Trust, and later admitted publication to the Master and the Legal Practice Council as well as others. The court noted that the defendant was at sea in conducting his defence, but nonetheless evaluated his pleaded defences against the evidence.


The court found that the defendant failed to prove that any of the statements were true or constituted fair comment, and further failed to establish defences based on the absence of wrongfulness, absence of knowledge of wrongfulness, or publication in the public interest. The judgment took account of the Sanlam forensic investigation, which absolved the plaintiffs. In addition, the court noted that the Legal Practice Council complaint did not apparently proceed once the plaintiffs responded, which was consistent with the court’s conclusion that the allegations were unfounded.


The judgment addressed the defendant’s attempt during argument to explain his conduct by anger at the sale price. The court noted that the defence of rixa had not been pleaded or properly raised in evidence, and in any event the statements were made long after the sale, when the defendant had time to reflect. The court also considered the defendant’s persistence in repeating allegations even after an interim interdict, and regarded that conduct as inconsistent with any attempted reliance on a spur-of-the-moment loss of temper.


Having found liability established, the court turned to damages. It applied the principle that defamation damages are compensatory and constitute a solatium for injury to personality interests, and that courts are generally not generous in such awards. The court recognised the difficulty in proving quantum and treated the seriousness of the defamation as the main factor, supplemented by the nature and extent of publication, the plaintiffs’ reputation and character, and the defendant’s motives and conduct.


On seriousness and extent, the court placed particular weight on the fact that the publications were directed to institutions that regularly dealt with the plaintiffs and relied on their integrity and professionalism, namely Sanlam Trust and the Master. The publication to the Legal Practice Council was treated as especially grave because it directly implicated the plaintiffs’ fitness to remain on the roll of attorneys, and the court regarded the damage to professional reputation as severe and potentially enduring.


While the plaintiffs argued for R300 000 each with reference to comparable cases, the court considered the principle that defamation awards should vindicate reputation and not constitute a road to riches. The court nevertheless recognised that vindication is especially difficult where professional standing is questioned before core institutions. Against this, it considered the defendant’s personal circumstances and the fact that an apology could have avoided litigation, and it took into account that the plaintiffs would have been satisfied with an apology. Balancing these considerations, the court concluded that an award of R50 000 to each of the first and second plaintiffs was fair and reasonable.


On costs, while the court held that costs should follow the event, it considered that the plaintiffs could have instituted the action within the appropriate magistrates’ court jurisdiction, and therefore confined the costs order to the magistrates’ scale.


5. Outcome and Relief


The court granted judgment for defamation in favour of the plaintiffs and awarded damages as follows. The defendant was ordered to pay R50 000 to the first plaintiff and R50 000 to the second plaintiff. The defendant was further ordered to pay the costs of suit on the appropriate magistrates’ court scale. The plaintiffs’ separate claim for loss of profit was abandoned at trial and was not adjudicated.


Cases Cited


Mohamed v Jassiem 1996(1) SA 673 (SCA).


Tsedu v Lekota 2009(4) SA 372 (SCA).


Benson v Robinson & Co (Pty) Ltd 1967(1) SA 420 (A).


Khumalo v Holomisa 2002(5) SA 401 (CC).


Mogale et al v Seima 2008(5) SA 673 (SCA).


Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992(3) SA 579 (AD).


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the accusations published by the defendant, alleging fraud, forgery, collusion, and serious professional misconduct by the plaintiffs, were per se defamatory and were wrongfully published to multiple recipients, including institutions central to the plaintiffs’ professional standing.


It further held that the defendant failed to prove any defence of truth and public benefit, fair comment, or any basis to negate wrongfulness or fault on the facts. The court found the defamation to be serious, particularly due to publication to Sanlam Trust, the Master of the High Court, and the Legal Practice Council.


On damages, the court held that compensation for defamation is a solatium and that, despite the serious professional harm, a fair and reasonable award in the circumstances was R50 000 to each of the first and second plaintiffs. Costs were awarded against the defendant on the magistrates’ scale, as the action could have been instituted within that jurisdiction.


LEGAL PRINCIPLES


Damages for defamation serve a compensatory function and operate as a solatium for injury to personality interests arising from reputational harm, rather than as a mechanism for enrichment. The quantification of such damages is inherently difficult and is guided by evaluative factors rather than strict proof.


In assessing quantum, the seriousness of the defamation is central. Additional relevant considerations include the nature and extent of publication, the plaintiff’s reputation and character, and the defendant’s motives and conduct. Publication to professional oversight bodies and institutions integral to a plaintiff’s professional standing may aggravate the seriousness of defamation because such publication directly affects professional reputation and perceived fitness to practise.


A defendant who pleads defences such as truth in the public benefit or fair comment bears the burden of establishing the factual basis for those defences. Where such defences are not proven on the evidence, liability for defamatory publication follows.


Where a successful party could have instituted proceedings within a lower court’s monetary jurisdiction, a costs order may nonetheless be confined to the appropriate magistrates’ court scale, notwithstanding success in the High Court.

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[2022] ZAGPPHC 793
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De Wet and Others v Scheepers (21021/2020) [2022] ZAGPPHC 793 (27 October 2022)

IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 21021/2020
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
In the matter between:
FRANCO JACQUES DE WET

First plaintiff
JOHAN WILHELM CHRISTIAAN
NEL

Second plaintiff
NEL & DE WET
ATTORNEYS

Third plaintiff
And
OCKER
SCHEEPERS

Defendant
JUDGMENT
van
der Westhuizen, J
[1]
It is trite that one must endure the everyday hustle and bustle to
one’s character,
but not to the extent that one’s
reputation is tarnished as a result. In particular where one’s
professional reputation
is at stake.
[2]
The first and second plaintiffs practise as attorneys in a
partnership under the name
and style of the third plaintiff. They are
longstanding members of the South African Legal Practice Council.
They specialise in
deceased estates.
[3]
The defendant is a lay person, who holds that which is his, dearly
and close to his
heart. He was the primary heir to his late mother’s
estate on her passing. That estate has one particular valuable
property,
namely immovable property situated in Pretoria North, of
which the defendant was the sole beneficiary. It was this property,
or
rather the manner in which it was allegedly dealt with by the
executor of the estate that gave rise to the unfortunate events
leading
up to this action.
[4]
The plaintiffs instituted this action for damages suffered as a
result of accusations
levelled against them, which the plaintiffs
alleged were defamatory in nature and which were publicised widely by
the defendant.
[5]
The first and second plaintiffs testified and the defendant, who
acted in person,
also testified. The defendant was clearly at sea in
putting his defence forward and managing his defence. He could not
afford legal
representation and was apparently unsuccessful in
obtaining either Legal Aid, or
pro bono
representation.
[6]
In terms of the last will and testament of the defendant’s late
mother, Sanlam
Trust Limited was appointed the testamentary executor.
The latter appointed the plaintiffs to administer the deceased estate
on
behalf of Sanlam Trust. Due process was followed in that regard.
That is common cause. Sanlam Trust is a client of the third
respondent
and has it on its panel for appointment as administrator
of estates where Sanlam Trust is appointed as testamentary executor.
[7]
As recorded, the defendant is a lay person, not knowledgeable of the
law and the intricacies
of legal principles, in particular those
relating to deceased estates. He lived with his late mother in the
aforesaid property
prior to her passing. His late mother took care of
him. He remained in the property after her passing. However, being
unemployed,
with no real expectation of being gainfully employed, he
could not afford the property rates and the relevant costs applicable
to the property. He decided to place the property on the market for
sale. He had the misconception that, having inherited it from
his
late mother on her passing, he owned the property. It was common
cause that the estate had not yet been finalised and thus
the
property was not registered in his name. The defendant had no
appreciation that the property was to have been registered in
his
name before he could offer it for sale in his personal capacity.
[8]
The first plaintiff, who dealt with the administering of the deceased
estate on behalf
of Sanlam Trust, caught wind of the defendant’s
attempt to sell the property on the open market. At that stage, the
defendant
had already engaged the services of an estate agent to
advertise and sell the property. The first plaintiff informed the
defendant
that the property fell within the deceased estate, and was
not the defendant’s property, albeit that the defendant was the

sole heir thereto. The defendant was also informed that the executor,
and by parity of reasoning the administrator of the estate,
held the
property in terms of the principles relating to deceased estates. The
first plaintiff agreed to grant the appointed estate
agent a period
within which to promote and advertise the sale of the property, or
alternatively to arrange for the sale thereof
on auction.
[9]
The agreed period having elapsed with no progress in the sale of the
property, either
on the open market or on auction, the first
plaintiff cancelled the mandate of the defendant’s appointed
estate agent as
he was entitled to do. Thereafter, the first
plaintiff instructed a potential auctioneer to provide a value of the
property should
it be sold on an auction. The probable value that the
property would reach on auction was less than that which the
defendant was
promised by his erstwhile appointed estate agent. This
upset the defendant. He wanted more. The defendant was not alive to
the
realities of selling a property on auction and in the persisting
economic climate.
[10]
The first plaintiff arranged for the auction to be held. At the
auction there was only one real
bidder who represented the only
possible purchaser. The latter offered an amount close to the value
provided by the auctioneer
prior to his appointment to undertake the
auction. This irked the defendant. He attempted to intervene at the
auction and refused
the offer outright.
[11]
After the auction, the defendant was under the impression that the
bidder was the true purchaser,
and that he did not represent someone
else. After much toing and froing, the defendant, in writing,
accepted the offer. This was
disputed by the defendant during the
leading of evidence. His defence was that he did not sign the e-mail
which contained the acceptance.
Reluctantly the defendant conceded
the point.
[12]
The defendant remained irked. He accused the bidder, the true
purchaser and the first plaintiff
of collusion and underhandedness in
the process of the auction and the sale of the property. Those
accusations were eventually
extended and levelled at the second and
third plaintiffs.
[13]
The accusations were repeated in complaints to Sanlam Trust -
Forensic Services, the Master of
the High Court, the South African
Legal Practice Council, and to various other individuals.
[14]
The complaint to Sanlam Trust - Forensic Services, contained the
following statements:
(a)
The unlawful conduct was perpetrated by the
lawyer appointed to administer the deceased estate;
(b)
The said unlawful conduct comprised of the
illegal unauthorised acquisition of the deceased estate to an
unauthorised buyer through
fraudulent and deceptive means;
(c)
The first plaintiff was implicated in
fraudulent dealings that resulted in the property being sold;
(d)
The first plaintiff was involved in
fraudulent dealings to enrich his friends behind the defendant’s
back and without his
knowledge in order to acquire the property at a
reduced price;
(e)
The purchase agreement was forged with
criminal intent in the defendant’s absence;
(f)
The first plaintiff betrayed the
defendant’s trust while acting on behalf of Sanlam Trust.
[15]
The defendant in his complaint lodged with the Master of the High
Court, Pretoria, raised similar
statements and included the
following:
(a)
The sale of the property was illegal and
the sale agreement was forged with criminal intent, suing falsified
buyer’s information;
(b)
The sale agreement was forged using shell
names to create two identities, one which is nothing more than a
front company, most likely
created by the third plaintiff for their
client, Leon Smith, to illegally seize and occupy the property;
(c)
The sale agreement, signed by the first
plaintiff, was forged without any written agreement between the
defendant and Leon Smith;
(d)
The purchase agreement was forged with
criminal intent to enrich Leon Smith, Dirk Pienaar and the first
plaintiff.
[16]
Leon Smith, who did the bidding at the aforesaid auction, was the
representative of the true
buyer, one Esther Nel. Dirk Pienaar was
the auctioneer who acted on behalf of Root, the auctioneering entity
and who had provided
a forced sale value that could be expected at an
auction of the property.
[17]
The plaintiffs denied that Leon Smith was their client and they were
unaware of his existence
until the auction. That evidence was not
challenged by the defendant at the trial.
[18]
The statements made by the defendant to the Legal Practice Council
that related to all the plaintiffs
were as follows:
(a)
The first plaintiff and Dirk Pienaar took
steps to derail and de-route the investigation launched by Sanlam;
(b)
The first plaintiff deceived the defendant
with falsified information, lied to the defendant in his face to
acquire the property.
This statement was further disclosed to Ms
Linda Duvenhage, the first plaintiff’s personal assistant;
(c)
The first plaintiff has a criminal
character;
(d)
The first and second plaintiffs intended to
make a profit from an illegally acquired property sale transaction
based on falsified
buyer’s information;
(e)
The first and second plaintiffs blackmailed
the defendant;
(f)
The second plaintiff admitted to being an
accessory to the illegal acquisition of the property;
(g)
The first plaintiff admitted to fraud and
theft in an attempt to steal the property from the defendant;
(h)
The first and second plaintiffs were in the
pocket of Leon Smith, who directs the first and second plaintiffs and
uses them to acquire
property to the detriment of beneficiaries of
deceased estates;
(i)
The first and second plaintiffs conduct
themselves without any care about the deceased estates or their
beneficiaries. The first
and second plaintiffs render professional
services in an unprofessional manner and that they, through the
rendering of services,
benefit their clients by handing valuable
properties to them for “an apple and onion”;
(j)
The first and second plaintiffs rigs
property sales at auctions;
(k)
The first and second plaintiffs are a
greedy duo that submit falsified registration papers to the Master of
the High Court on such
frequent scale that they are over-confident
and arrogant in their malpractice to rip off deceased estate
inheritors;
(l)
The first and second plaintiffs should be
struck from the roll of attorneys;
(m)
The first and second plaintiffs blackmailed
and bullied the defendant.
[19]
It is clear from the foregoing statements that the accusations
levelled against the plaintiffs
by the defendant, were
per
se
defamatory.
[1]
It was wrongful.
The intention of the defendant was clearly likely to injure the good
esteem of the plaintiffs held by the reasonable
or average person to
whom the statements were published.
[2]
The plaintiffs denied the allegations.
[20]
In his plea, the defendant admitted publication to Sanlam Trust. In
his evidence in defence,
the defendant admitted the publication to
the Master of the High Court and the Legal Practice Council as well
as to various other
individuals. In respect of the publication to
Sanlam Trust, the defendant in his plea raised the defence that the
statements were
true and that the publication was for the benefit of
all parties, alternatively that it was fair comment, true, necessary
for the
purposes of investigating the complaint and that it was not
made with malicious intent. The defendant pled in his plea that the

complaint was lodged with Sanlam and would be understood by Sanlam
that the third plaintiff acted improperly and irregular. It
was
common cause that the defendant was the author of the statements
recorded above.
[21]
At the trial the defendant failed to prove that any, or all of his
aforesaid statements published,
were true or constituted fair
comment. The defendant further failed to prove lack of wrongfulness,
lack of knowledge of wrongfulness,
or in the public interest. The
investigation by Sanlam Trust - Forensic Services absolved the
plaintiffs from any wrong doing.
The complaint to the Master of the
High Court is pending. The complaint lodged with the Legal Practice
Council apparently did not
result in an investigation on receiving
the plaintiffs’ responses to the complaint lodged by the
defendant.
[22]
The defendant admitted at the trial that the statements were
defamatory and were made with an
intent to harm the esteem,
reputation and professional reputation of the plaintiffs. The
defendant was nonplussed about his conduct
and the effect thereof. He
simply admitted to what he had done and accepted that it was
wrongful. He merely shrugged his shoulders
and repeatedly stated that
what was done was done.
[23]
In argument, the defendant proffered sublimely that he was angry at
the manner in which the property
was sold and not obtaining as a high
purchase price as he had hoped. In my view, at the trial the
defendant still did not appreciate
or understand the principles
relating to deceased estates and the administering thereof. The
defence of
rixa
was not raised in the defendant’s plea, nor in his evidence at
the trial.
[3]
His sublime
mentioning of anger did not comply with the requirements of such
defence. The statements were made long after the sale
of the
property, when he had time to reflect thereon. The plaintiffs
attempted to obtain an apology from the defendant before embarking
on
an action. The defendant blatantly and obtusely refused to apologise,
even at the trial.
[24]
In an attempt to compel the defendant from continuing with his
defamatory statements, the plaintiffs
brought an urgent application
for an interdict to that effect. After the serving of the order
granted, the defendant persisted
with his wrongful and injurious
conduct. Further in that regard, during the course of this year, the
defendant repeated some of
the statements to the Office of the Deputy
Judge President of this Division and in the face of the interim court
order granted
against him during 2021. In my view, such conduct
cannot sustain a defence of
rixa
, should such defence have
been raised in the proper manner.
[25]
It follows that the plaintiffs are entitled to a finding of
defamation, all the elements thereof
having been proven by the
plaintiffs.
[4]
[26]
The issue of damages requires consideration and determination. The
purpose of awarding damages
in respect of defamation, is to
compensate a person for the diminution of his or her personality
interest due to the damage-causing
event.
[5]
In effect it is a mere
solatium
for the injury to the personality interests of the defamed plaintiff.
It is trite that the courts are not generous in their awards
for
solatia
.
[6]
[27]
It is notorious to prove the quantum of such damages.
[7]
The main factor in determining the quantum relates to the seriousness
of the defamation. There are other factors that are relevant
in such
determination, namely, the nature and extent of the publication, the
reputation and character and conduct of the plaintiff,
and the
motives and conduct of the defendant.
[8]
[28]
In the present instance, the defamation is serious, the publication
was primarily made to institutions,
Sanlam Trust and the Master of
the High Court, that regularly deal with the plaintiffs and in
particular rely on their professionalism
and good character and
conduct in the plaintiffs’ dealings with those entities. The
defamation published to the Legal Practice
Council is more serious
and damning. The core of the entitlement to remain on the roll of
attorneys is their fitness to practise
as an attorney and as an
officer of the Court. The plaintiffs’ professional reputation
was seriously tarnished and damaged.
It would remain a black spot
against their names in future. No
solatium
could repair that
damage.
[29]
It was submitted on behalf of the plaintiffs, with reference to
alleged comparable cases, that
an amount of R300 000.00 each
would be fair and reasonable in the present circumstances. In
Argus
Printing and Publishing Co Ltd v Inkatha Freedom Party
[9]
the Court held that the purpose of awarding damages for defamation is
a method whereby a plaintiff vindicates his reputation, and
not as a
road to riches. This may be true as a general principle. However,
where the professional reputation of the plaintiff is
tarnished in
the eyes of entities such as the Mater of the High Court and the
Legal Profession Council, and in the eyes of a client
that has the
plaintiff on a specific panel to do its work, the vindication of the
professional reputation may pose difficulty.
[30]
The conduct of the defendant was inexcusable, yet regard must be had
to the defendant’s
particular circumstances. He had the
opportunity to offer an apology, which if provided, would not have
resulted in an action for
defamation against him. Taking into
consideration that the plaintiffs would have been satisfied with an
apology, the
solatium
to be awarded may not justify an
unreasonable high amount in these particular circumstances, despite
the alleged comparable awards.
[31]
In my view, in the present circumstances, a fair and reasonable
solatium
would be R50 000.00 each in respect of the first
and second plaintiffs.
[32]
In their particulars of claim the plaintiffs entered a second claim
that related to the loss
of profit due to the decline in instructions
received from Sanlam Trust whilst the said investigation was
undertaken. However,
at the trial, the plaintiffs abandoned that
claim.
[32]
There is no reason why costs should not follow the event. However,
the plaintiffs could have
instituted the action in the appropriate
magisterial jurisdiction.
I grant the following
order:
1.
The defendant is to pay an amount of
R50 000.00 to the first plaintiff;
2.
The defendant is to pay an amount of
R50 000.00 to the second plaintiff;
3.
The defendant is to pay the costs of suit
on the appropriate Magistrates’ scale.
C
J VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
Date
of Hearing:

5 & 6 October 2022
On
behalf of Applicant:
PP Fereira
Instructed
by:

Nel and De Wet Attorneys
On
behalf of Respondent:      In Person
Judgment
handed down:        27 October
2022
[1]
Mohamed
v Jassiem
1996(1) SA 673 (SCA) at 703-704
[2]
Tsedu v
Lekota
2009(4) SA 372 (SCA)
[3]
Benson
v Robinson & Co (Pty) Ltd
1967(1) SA 420 (A) at 426
[4]
Khumalo
v Holomisa
2002(5) SA 401 (CC)
[5]
See
in general
Mogale
et al v Seima
2008(5) SA 673 (SCA) at [10]-[11]
[6]
Molgale,
supra,
at [18]
[7]
Mogale,
supra,
at [8]
[8]
Mogale,
supra,
at [13]-[16]
[9]
1992(3) SA 579 (AD) at 590E-F

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