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[2021] ZANCHC 30
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Engelbrecht v Van Der Merwe (2415/18) [2021] ZANCHC 30 (23 July 2021)
Reportable/Not
reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case
No: 2415/18
Heard
On: 12/05/2021
Delivered:
23/07/2021
In
the matter between:
FRANKEL
ENGELBRECHT
Applicant
and
FREDERICK
LODEWIKUS VAN DER MERWE
Respondent
Coram:
MOSES AJ
JUDGMENT
MOSES
AJ
Introduction
1.
The genesis of this action can be traced back, on the voluminous
papers at this
Court's disposal, to as far back as 2007, when the
Defendant's late father and owner of a farm, called Onder Ongeluk,
the late Mr
van der Merwe, and the latter's wife, also deceased now,
drew up a joint will to regulate the distribution of their assets,
namely
the said farm, upon their death (the deceased couple).
2.
The deceased couple had five (5) children altogether, two (2) sons
and three (3)
daughters. Four of these children turned out to become
medical doctors, and
one them,
apparently the youngest, became a linguist, having studied languages,
according to the oral evidence tendered by Mr Frankel
Engelbrecht,
the Plaintiff herein, during his testimony in Court on or about 13
May 2021. I return to his evidence in more detail
hereunder.
3.
The Defendant, Frederick Lodewikus van der Merwe, who is a specialist
medical practitioner,
a Neurosurgeon, having his main surgery
currently at Christiaan Barnard Memorial Hospital in Foreshore, Cape
Town, South Africa,
is the middle child of these five children. His
other siblings are Ian, his younger brother, and also a medical
doctor, his sisters
Lente van der Merwe, also a medical doctor, and
Almerie and Anina.
4.
In terms of the will of the deceased as above-stated, a trust must be
created (the
testamentary trust) to which the said farm, Onder
Ongeluk and everything on the farm, including farming equipment,
animals and other
moveable assets were bequeathed. The will also made
provision that the wife, the Defendant's mother would have a usufruct
in respect
of the said farm, and everything on the farm, for the
remainder of her life, where-after, the two brothers, the Defendant
and his
younger brother, would have a usufruct in respect of the said
farm and everything on it, for a period of two (2) years, following
the death of their mother.
5.
According
to the evidence of the Plaintiff herein, the Defendant's father
passed
away
in and around 2007, and following that, the IV van der Merwe
Testamentary Trust - the testamentary trust - was created in
accordance
with the will of the deceased Mr van der Merwe (senior).
Finlac Risk and Legal Management (Pty) Ltd, (hereafter Finlac Trust),
of
which one Mr Nicolas Renier
Van
Gijsen was the Managing Director at the time, and who assisted and
advised the deceased with regards to their will at all relevant
times
[1]
, was appointed as
Executor and Trustee of the said testamentary trust, in accordance
with the said will. One Louise Danielz was subsequently
appointed by
the executor of the estate of the late Mr van der Merwe, as the
nominee of Finlac Trust.
6.
The Plaintiff testified that in and around December 2012, he was
approached
by the secretary of one of his partners at their legal
firm
,
Engelsman
Magabane Inc., namely Mr van Niekerk, who was appointed subsequently
as Trustee of the said testamentary trust, for his
assistance to open
a bank account for the said trust, as that was needed to register the
Trust for income tax, which he did.
7.
However, in and around beginning of December 2012, his partner, Mr
van Niekerk
passed away due to injuries he sustained in a motor
vehicle accident, whereupon he, the Plaintiff, then informed the
Master of this
Court, about that passing and furnished them - the
Master's Office, with Mr van Niekerk's death certificate as well as
his original
letter of appointment as trustee of the said
testamentary trust.
8.
Later, in January 2013, the Master contacted him (the Plaintiff) and
enquired
whether he would be willing to accept to be appointed and
act as Trustee of the said testamentary trust, because they - the
Master's
office - were struggling to find willing persons to take up
that position. He then agreed to do that and subsequently was
formally
so appointed by the Master of this Division as Trustee of
the said testamentary trust.
9.
I interpose to point out, based on the Plaintiff's evidence in Court,
that the
Defendant's mother passed away in and around 2010. Thus
according to the will of the late Mr van der Merwe the usufruct,
would then
accrue to the Trust and/or the two (2) brothers, namely
the Defendant and Dr Ian van der Merwe ("Dr Ian"), which
would
only be for two (2) years thereafter, i.e. until 2012. So when
he, the Plaintiff, was appointed in and around 2013, that usufruct
had already lapsed. Finlac Trust, in the meantime had renounced their
appointment as executors and trustee due to the quarrels between
the
Defendant and his brother, Dr Ian, at the time. Thereafter the Master
appointed one Mr Henrie Venter of Duncan & Rothman
Attorney's,
and one Mr Werner Hauptfleish, who was the Managing Director of Price
Waterhouse Coopers (PWC) in Kimberley at the time,
as executors of
the estate.
10.
As it turned out, both of them also resigned later because of the
quarrels between the two
Van der Merwe brothers.
11.
Shortly after his appointment as Trustee in 2013, he was contacted by
the executors who enquired
about the transfer of the assets to the
Trust, and when that could happen, because there was a shortfall (in
money) in the Trust
which had to be paid, before the Trust, and
aspects regarding its administration, could be finalised.
12.
In the circumstances they, the executors and Trustee, were faced with
two options: 1) the Trust
must pay the shortfall, which it could not
do because it did not have the necessary funds; or 2) that the
executors of the estate
had to liquidate the assets, to sell it, to
use the proceeds thereof to pay the shortfall, and the rest thereof
to be distributed
to the Trust as heir and beneficiaries of the
estate.
13.
The executors then applied to the Master for permission and
authorisation to sell the assets, because
of the continuous quarrels
and animosity between the two brothers and, as a result whereof, no
meaningful cooperation was forthcoming
from either of them. Having
received the requested permission from the Master, they - the
executors - proceeded to sell the assets
of the estate, including the
farm with implements and livestock, by public auction. He, the
Plaintiff, was not involved in, nor,
present at the said public
auction, but he later learnt, and as it turned out, the said assets
were sold to the Defendant's brother,
Dr Ian, who posted the highest
bid for the said assets at the auction. Their sister, Dr Lente van
der Merwe ("Dr Lente"),
was also present at this public
auction, with a power of attorney from and on behalf of her brother,
the Defendant, to also bid at
the said auction.
14.
The executors then accepted that highest bid by Dr Ian.
15.
However
subsequent to this public auction and acceptance of the bid of Dr
Ian,
by
the executors, the Defendant then launched an application in this
Court wherein he sought,
inter
alia,
the
rescission of the deed of sale of the assets to his
brother,
Dr Ian, and that his offer which he made in a letter to the executors
and/or
the auctioneers, which apparently was kept
,
and
presented to them by his sister, Dr Lente, who held his proxy at the
time, be accepted as a valid offer.
In
essence therefore he, the Defendant, challenged the legality and
validity of that public auction and the outcome thereof and wanted
to
have it set aside. He
,
the
Plaintiff, was cited as the Fourth Respondent in that case. This is
what became known as the subject matter of the "Olivier
Judgment
[2]
". I return to
this judgment briefly hereunder
.
16.
After the Olivier Judgment, an agreement was reached between the
executors and the purchaser of
the assets, Dr Ian, along the terms
that they would cancel the sale agreements and would have a "new"
auction. This new
auction was agreed upon and arranged, with his
(Plaintiff) consent as well. After a date was set for this auction,
he (Plaintiff)
informed the Defendant thereof to ensure that he
(Defendant) was aware thereof, should he be interested, which he
(Plaintiff) had
done up to and including the day prior to that
auction.
17.
On the day of that auction he, the Plaintiff, personally drove to the
farm where the auction was
held and attended it together with his
attorney of record, and to ensure that there were no irregularities
regarding the auction.
18.
Those present at that auction on that day, included himself together
with his attorney, the Defendant's
brother Dr Ian, his sister Dr
Lente, the auctioneer and his assistant, and three (3) unknown men
who were also interested in bidding
at the auction, which in this
instance was a private auction. The Defendant was not present at the
auction, and just before commencement
of the bidding, the Defendant's
sister, Dr Lente, informed them that she is/was recording the whole
proceedings. He (Plaintiff) then
asked her whether she had a power of
attorney to bid on behalf of Dr Fred, the Defendant, whereupon she
answered "No
"
.
He (Plaintiff) then requested the said Dr Lente to phone him (the
Defendant) so as to enable him (Defendant) to make a bid over
the
telephone if he so wanted,
and also
because there were so few present. According to the Plaintiff he also
did that - encouraging the Defendant's sister
to phone him at
the time - so as to protect the Defendant's rights and so that the
Defendant could not complain afterwards that he
was prejudiced by the
way in which the auction was conducted at the time. The Defendant's
sister, Dr Lente rejected that request
of/by the Plaintiff to call
her brother, the Defendant, and the auction proceeded.
19.
Dr Lente then put in the first bid at the auction of R1.2 million for
the assets of the estate.
This was followed by a counter and higher
bid by her brother, Dr Ian of R1.5 million. Dr Lente did not put in
any further bids and
there were also no further offers/bids placed in
respect of those assets. Before the conclusion of the auction, the
auctioneer asked
Dr Ian if he would not consider increasing his bid,
which he then did, by increasing it to approximately over R2 million.
20.
The Plaintiff further pointed out in his evidence that the auction
and sale of the assets, were
not done by the Trust, that it was a
sale by the executors of the estate, and that he (Plaintiff) just
attended to ensure that there
were no irregularities, of which there
were none.
21.
After having been informed of the outcome of the auction, the
Defendant was not happy, stating,
inter
alia,
that the selling price was far
below the value of the farm. According to the Plaintiff that was from
then onwards that the insults,
aimed at him, started by the
Defendant, with every email sent by the Defendant to him, and which
he received, containing insults
and defamatory remarks, which became
progressively harsher in its tone and wording as it continued.
22.
The Plaintiff testified,
inter
alia:
"There are hundreds
and
hundreds
of emails...
I stopped counting .... At
some
point
I
stopped
reading,
printing
it
my colleague, my attorney, would read
it... those emails referred to in the particulars of claim, are by
far not all the insults hurled
at me".
He
further testified that he asked the Defendant on numerous occasions
to stop his conduct, that his emails (the contents thereof)
were
defamatory and that it must stop, but the Defendant never stopped.
23.
The Plaintiff then caused a letter of demand (in Afrikaans) to be
issued and directed to the
Defendant dated 20 September 2018.
24.
Thereafter, and or about 02 October 2018 the Plaintiff issued and
served summons on the Defendant,
alleging in his particulars of
claim,
inter alia,
the
existence and publication of various emails, copies whereof are/were
annexed to the said particulars of claim, and that the contents
thereof were/are defamatory of the Plaintiff's dignity, character and
reputation, and initially sued the Defendant for the total
amount of
R800,000.00 as, and for damages suffered based on initially two
emails dated 13 August 2018 and 22 August 2018. The particulars
of
claim were subsequently amended, on or about 29 May 2019 to include
more emails of a defamatory nature, and
increasing
the claim to R1 million.
25.
The Plaintiff also testified that despite the letter of demand and
the summons being issued against
the Defendant, the latter persisted
with his slanderous and defamatory emails addressed and sent, not
only to him, the Plaintiff,
but also to various other people,
including his brother and sister as afore-stated, members of the
Plaintiff's staff, court personnel
attached to the Registrar's Office
of this Court, and officials of the Master's Office, amongst others.
In the circumstances he was
driven to apply to the Magistrate's
Court, Kimberley for a protection order to be issued against the
Defendant herein. That order
was subsequently granted by the
Magistrate's Court, Kimberley, dated 4 October 2018, and would, by
order of that Court, remain in
force, against the Defendant herein,
for a period of five (5) years from date of issue, i.e. until 4
October 2023, unless it is withdrawn
or set aside. The terms of that
order are along the following lines:
"Particulars
of final protection order
The
Respondent is prohibited by this court from-
a)
Engaging in or attempting to engage
in harassment of:
(i)
The Complainant
b)
Enlisting the help of another person
to engage in harassment of the
complainant and/or
c)
Committing any of the following
act/s:
(i)
Not to insult and/or to attempt to
insult and/or in any way to verbally
abuse the complainant;
(ii)
Not to contact the complainant
physically, telephonically, per email
and/or through any social media;
(iii)
Not defame the complainant in any
way."
26.
According to the Plaintiff this order was duly served on the
Defendant, and he personally
also advised the Defendant of this Court
order, and furthermore that he must stop with his emails, and liaise
with his (Plaintiff's)
attorney if and when necessary. This court
order was never anticipated, nor set aside, and therefore still exist
and continue to
be in force and effect, until 4 October 2023. Despite
this protection order having been granted against him, the Defendant
persisted
with his unlawful conduct in sending him -the Plaintiff,
insulting and defamatory emails, which the Defendant also circulated
widely
and thereby publishing it, in violation of the said court
order.
27.
Between 29 May 2019 and 24 July 2019, the Plaintiff gave notice of
his intention to amend
his particulars of claim, which were
subsequently filed and served on 24 July 2019. The essence of the
amended particulars of claim,
signed and dated 29 May 2019, is
firstly that it refers to, and includes more emails, the contents
whereof are of a defamatory nature,
and secondly, it increased the
quantum of the claim for damages to R1 million.
The
Pleadin
g
s
28.
On 13 August 2019, the matter was certified as trial ready on Merits
and Quantum.
29.
The matter was previously set down for hearing on 9 March 2020. The
Defendant did not file
a notice of intention to defend and/or plea
and attended to the hearing "in person". On 9 March 2020,
the matter was postponed
to 15 and 16 October 2020 by Court Order
dated 09 March 2020.
30.
On
16 March 2020, the Defendant filed a notice of intention to defend,
indicating that he would accept service of all pleadings and
notices
in these proceedings
via
email at
fredles@iafrica.com
in
accordance with the provisions of Rule 4A(1).
31.
On
15 October 2020, the Defendant did not attend the Court proceedings
and the matter was postponed to 12 and 13 May 2021
.
32.
On 16 October 2020, the Defendant was notified that the matter has
been postponed for hearing
to 12 and 13 May 2021.
33.
On 28 April 2021, the Defendant was reminded by the Plaintiff's
attorneys of the fact that
the matter is set down for hearing on 12
and 13 May 2021
.
34.
It is the Plaintiff's case that the Defendant made statements
concerning the Plaintiff
via
emails
to third parties as set out in Annexures "A" to "G"
annexed to the Plaintiff's Particulars of Claim, in
which inter alia
the following was stated:
34.1
"5
.
U doen weereens 'n verdere
wanvoorstelling dat U slegs Tweede Respondent 'gehelp' het, ses jaar
terug met Dr Ian se Boedel-Eis wat
natuurlik die KONTANTTEKORT
geskep HET.
"6........
maar U gruwelik versuim as
"Professionele Trustee",
om
in die belang van die
juridiese Trustbegunstigdels op te tree."
This
is contained in Annexure "A".
34.2
".......
were in complicit and
maleficent manner ignored and even further an incompetent lawyer was
given socalled 'locus standi'.....
"
.....
I
confirm
that
a
CRIMINAL,
FRAUD
+
CORRUPTION
+
MONEY
LAUNDERING
+
RACKETEERING
Case has been opened and find
proof
of SAPS Part 3 as stamped
by SAPS
and NDPP
.
"
This is contained in Annexure "B".
34.3
"...
moes dit impliseer dat
ons hier die verdere bewys sou en kon aanbied van die grootste
KORRUPSIE en GELDWASSERY in die regsgeskiedenis
van RSA.
Ek sluit die Redakteur van RAPPORT
in aangesien my naam ernstig beswadder is in hierdie boedelsaak
waarby ernstige BEDROG betrokke
is."
This is contained in
Annexure "C".
34.4
"It seems that the 4th round
"trustees" of this purported "Testamentary Trust (Sham
trust) is out of office (again)
and it is uncertain whether his
excurtious are been paid with 'trust money" possibly received."
This is contained in Annexure "D"
.
34.5
This
is needed to perhaps confirm your competency as a diligent and
impartial
trustee."
This is contained in Annexure "E".
34.6
"...-like Mr Frankel
Engelbrecht= i.e. director at same firm but Mr Engelbrecht cannot
produce the "SARS TRANSFER CERT/FICA
TE" (ma/a fide) and is
mind-blowing that this attorney cannot understand the
relevance of the GU/LTY FINDING BY
EAAB of the AUCTIONEER (with
Principal listed as FINLAC) and/or as alternative 'pass the
buck' back to the FINLAC".
This
is contained in Annexure "F".
34.7
"Mr Engelbrecht would agree that
he is/was never an independent neither an impartial testamentary
trustee, even the Master has
stated that Mr Engelbrecht acts in the
interest of "Finlac Trust". He certainly was NOT
recommended by
me
and
most definitely would NOT be my choice as he did NOT even declare his
interest/and acted as the attorney for Dr Ian
See
Attachment from COURT affidavits "FE
FOOIE". With all respect Mr Engelbrecht and I put it on record
(please
see
"Betoogshoofde').
The "CARE, SKILL and DILIGENCE" that you have shown are a
LEGAL FICTION."
This is
contained in Annexure "F".
34.8
"The amount that Mr Engelbrecht
is claiming is absurd for his negligence as a "TRUSTEE" and
collusion with "Finlac
Trust" (confirmed
by Master) and as attorney of Dr
Ian..."
This is contained in
Annexure "F".
34.9
"This 'impartial" trustee
DOES NOT apply any 'CARE, SKILL and DILIGENCE".
This
is contained in Annexure "F".
34.10
"...
therefor Mr
Engelbrecht is once again caught out red-handed to be lying as
NO EFT proof of payment was attached
to Dr Ian
"
This
is contained in Annexure "F".
34.11
"Mr Engelbrecht has joined the
long list of totally untrustworthy, dishonourable and despicable
attorneys with NO 'CERT/FICATE
OF GOOD STANDING" obtainable from
the CAPE LAW SOCIETY
... " This
is contained in Annexure "G".
34.12
"Mr Engelbrecht has NOT only
proven himself as with NO DILIGENCE, with NO SKILL or competency nor
CARE but to be
a
liar
by all definitions
...
"
This is contained in Annexure "G".
34.13
"It has been pointed out already
that Mr Engelbrecht is misrepresenting the facts (again) under Point
9 in his letter dated
20 July 2018..
.." This is also contained in Annexure "G".
35.
It is the Plaintiff's case that these statements were made by the
Defendant with the intention to
defame the Plaintiff and to injure
his reputation as a result of the fact that the statements were
understood by the addressees and
were intended by the Defendant to
mean that:
35.1
The Plaintiff is unfit and incompetent to practice as an attorney;
35.2
The Plaintiff is unfit and incompetent to be appointed and act as a
Trustee;
35.3
The Plaintiff had committed a criminal offence;
35.4
The Plaintiff is unfit to act as a director;
35.5
The Plaintiff acted negligently with no skill, no diligence,
competency
or care;
35.6
The Plaintiff's has no insight, understanding and judgment in acting
as
an Attorney, Trustee or Director;
35.7
The Plaintiff extort money to enrich himself;
35.8
The Plaintiff has no skill or competency to be an attorney, to act as
a
Trustee or a Director and is a liar; and
35.9
The Plaintiff colluded with third parties to the detriment of the
estate,
trust and trust beneficiaries.
35.10
In the circumstances, so it is alleged, these statements made by the
Defendant are wrongful
and defamatory of the Plaintiff and as a
result of the defamation, Plaintiff has been damaged in his
reputation and has suffered
damages in the sum of R1,000,000.00 (R1
million).
36.
The Defendant elected to represent himself and filed a Special Plea
and Pleading and Counterclaim
in respect of the Plaintiff's claim.
The Defendant's Special Plea dated 16 March 2020 and filed 19 March
2020, was set aside on 15
October 2020, by order of this Court.
37.
On 8 April 2020 the Defendant filed and served, via email, his
"Pleading and Counterclaim",
consisting of section A
("Introduction: Questions and Points of Contention:",
section B ("Particulars of Claim: signed
28 September 2018"),
section C ("Important Material Proof From Court Documents as
Indexed and obtained on day of Set Down:"),
section D("Amended
Particulars of Claim: 24
July 2019")
section E ("Plaintiff's Email Letter dated the 05 of April
2020:") section F("Counterclaim")
and section
G("Prayer TO A COMPETENT AND NON CORRUPT COURT:"))
38.
On 19 February 2021, sections B, C, E, F and G of the Defendant's
Pleading and Counterclaim
dated 8 April 2020 were struck out, by
order of this Court.
39.
According to section D of the Defendant's Plea he denies that this
Court has the necessary
jurisdiction to adjudicate this action.
40.
The Defendant admits that the emails were sent by him (the
Defendant), which is annexed to
the Plaintiff's amended Particulars
of Claim. He admits that "detailed Email train (started 6 May
2016) was sent by him to,
inter a/ia,
the Plaintiff.
41.
According to paragraph 10 (section D) of the Defendant's Plea, the
Defendant admits that he
has
"a
moral and legal duty to the South African public to have made the
statements (based on facts and/or misrepresentation) to
report crimes
and to protect and raise awareness amongst the public, against the
failure of fiduciary duties, contravention of several
laws and money
laundering and attempts to interference as documented in the SAPS
investigation diary."
He
specifically pleads the following:
"Defendant
only admit that detailed E MAIL TRAINS (must be seen in context,
which is self explanatory), were sent to authorities
to report and
put PLAINTIFF to proof otherwise
and to proof the contents as incorrect."
(sic)
42.
The Defendant denies having any intention to harm the "fama"
of the Plaintiff in
any way and/or to have cause any injury or
damages.
A
Brief Summary of the Evidence by the Witnesses
43.
At the commencement of the hearing of this matter on 12 May 2021 the
Defendant was absent.
But a few days before the trial date, on 6 May
2021, he filed and served a voluminous bundle of documents consisting
of a five (5)
page
"filing notice",
a ten (10) page "Urgent Notice" and long "Affidavit"
to which various documents were
annexed
.
44.
Having
read those additional documents filed by the Defendant and after
having heard counsel for the Plaintiff, I gave an
ex
tempore
ruling
directing that the hearing proceeds and the Plaintiff may present his
case as is his right.
[3]
45.
The Plaintiff tendered the oral evidence of two witnesses and
himself.
46.
The first witness called on behalf of the Plaintiff was Wayne van
Rensburg ("Van Rensburg").
He testified that he is
currently employed by the Department of Justice, at the Master's
Office in Kimberley, where he had been working
for the last 14 years.
47.
As the Assistant Master he has to attend to all the core functions,
including the Guardian Fund,
insolvencies, deceased estates and
curatorship matters.
48.
He knows the Plaintiff on a professional basis for the last 14 years
since he started working
at the Master's Office, as an attorney of
this Court, as executor, curator and as a liquidator for insolvent
estates. There is not
a month that passes without him (Van Rensburg)
and the Plaintiff corresponding and/or interacting with each other
regarding the above-stated
work related matters.
49.
He also knows the Defendant in this matter, whose late father's
estate was registered at their
Kimberley Master's Office. He also has
knowledge about that estate.
50.
He was referred to a long email, a print-out copy whereof is annexed
to the Plaintiff's Particulars
of Claim, marked annexure "F",
and which was/is dated 24 July 2018
.
51.
The email emanated from the Defendant and was addressed and sent to
numerous persons and entities,
including,
inter
alia,
the Plaintiff herein, the
Master's Office in Kimberley with email address
"Masterkimberley@justice.gov.za:, which he received
and read at
the time. This email also contains the following email addresses:
elzaan
@
en
g
elsman.co.za;
mariandri
@
en
g
elsman.co.za
;
madeleinvw
@
en
q
elsman.co.za
;
fredles
@
iafrica.com
;
louiseDa
@
Nedbank.co.za
;
jaw@caf.co.za;
it
j
vv
@
iafrica.com;
louis
@
finlac.com;
wc.d
p
co.
p
rovhead.secreta
ry@
sa
p
s.
g
ov.za
wc.investo
p
s
@
sa
p
s.
g
ov.za
;
MasterKimberle
y@j
u
stice.
g
ov.za;
WenSithole
@j
ustice.
g
ov.za
;
contact.central
@
sars.
g
ov.za
;
fkellerman
@
sars.
g
ov.za;
skabrahams
@
n
p
a.
g
ov.za,
Ministry@justice.gov.za
;
lentevdmerwe
@
mweb.co.za
almarievdm
@g
mail.com
anina.
duiwelskloof
@g
mail.com
glemmetjies@justice.gov.za
As
is evident from the aforesaid email addresses, the Defendant also
copied himself and his sisters, Lente, Almerie and Anina.
52.
He
explained that the email address included herein namely
"Wensithole@justice.gov.za",
is
that of the Deputy Master at the Pretoria Office. According to him he
was not aware of any such indication or allegation as reflected
in
the said email regarding the Plaintiff which emanated from their
Master's Office, or any other office of the Master. No one of
their
staff, including
himself,
was
ever approached
to
investigate
the
actions of the Plaintiff regarding
any
irregularities or allegations in the latter's professional dealings
and interactions with the Master's Office, for as long as
he is/was
working at the Masters office. There is also no criminal
investigation currently against the Plaintiff regarding anything
in
their office including the deceased estate of the Defendant's late
father or any irregularities being investigated by their office
against the Plaintiff.
53.
His understanding of these accusations by the Defendant against the
Plaintiff is that they are slanderous.
It paints a picture of the
Plaintiff as being incompetent, incapable and unethical. He also
regards the Defendant's reference to,
and description of, the
judgments of this Court (referring to the "Olivier judgment")
as disrespectful. He also understood
these slanderous statements by
the Defendant to refer directly to the Plaintiff.
54.
The other witness who testified was one Mariandri Smit. She is an
adult female who knows the Plaintiff
herein. She has known him since
2012 when she started to work at the Plaintiff's legal firm in
Kimberley as partly a secretary and
partly an article clerk
.
From 2016 onwards she was working
directly with and for the Plaintiff in that legal firm, until
February 2021, when she relocated
to Upington, where she is currently
residing and working for Hein Duvenhage Attorneys.
55.
She
had seen and received the emails in Kimberley at all relevant times,
sent by the Defendant to the Plaintiff and other people and
entities
including herself, all of which were annexed to the Plaintiffs
Particulars of Claim, marked "A", dated and sent
on 6 June
2016, annexure "B" dated 19 April 2018, annexure "C",
dated 12 June 2018, annexure "D" dated
12 July 2018,
annexure "E" dated
19
July 2018, annexure "F" dated 24 and 25 July 2018 and
annexure "G" dated
13
August 2018. She had personally received all these emails, except the
last one, annexure "G", which was not personally
addressed
and sent to her, but inter alia, to a colleague of hers who worked as
the Registrar of the Judge President of this
Division at the
time, with email address
glemmetjies@justice.gov.za."
She
had however seen and read this email whilst still residing here in
Kimberley and working for the Plaintiff. I return to these
annexures
and
their contents hereunder
.
56.
Having seen and read all these emails, her understanding thereof
was/is that it is directed to the
Plaintiff, saying that he is
dishonest, fraudulent, corrupt.
"In
effect accusing him of being
a
criminal'.
57.
Having worked very closely with the Plaintiff at the time she could
see what effect these emails
had on him. He was very upset and she
saw him sometimes lying down on the couch in the office after having
received and read these
emails. She had never seen anything like this
coming from any client or colleagues since she started to work there.
58.
The Plaintiff testified that professionally, he is an attorney of the
High Court of South Africa,
with his offices situated within this
Court's jurisdiction in Kimberley. He is a director of the legal firm
Engelsman Magabane Inc.
Attorneys. He used to stay in Kimberley, but
recently, in 2021, relocated to Boshof, Free State.
59.
He started his article clerkship here in Kimberley in 1994 and
completed it in 1995. He was admitted
as an attorney in 1996 and
started to work as such at the legal firm Coetzee & Honiball
Attorneys, and he then became a director
of the then legal firm known
as Engelsman Benade & Van Der Walt Attorneys.
60.
In and around 2005 the name of the legal firm changed to Engelsman
Magabane Attorneys when
a black partner joined the firm, and he has
remained a director of the firm. He started the estate department at
the firm where he
dealt with deceased and insolvent estates, which
later expanded to include curator estates. As such he handled large
amounts of money
for curatorships, involving the Road Accident Fund
(RAF), as Trustee, and where insurance companies, had to pay out
large amounts
of money in respect of minors where there were no
wills. All of this was done under the auspices and directives of the
Master of
the High Court, and not only in Kimberley, but all over the
country, including Cape Town, Port Elizabeth, Grahamstown, Pretoria,
Gauteng, Mahikeng, Nelspruit, Durban and Pietermaritzburg.
61.
His professional duties caused him to travel widely attending to,
inter a/ia,
patients
who were injured, and assisting them where needed. He specialised in
this field, namely trusts, curatorships, estates, etc.
all of which
involve money to be administered on behalf of others- his clients.
Sometimes it involved amounts of up to R6 million
in respect of one
case.
62.
As a student, he studied at the University of Stellenbosch(US) after
having matriculated in Paarl.
At school level he was involved in
rugby, and became captain of the Western Province School Team, as
well as for the South African
Schools Team. At university level he
proceeded to play rugby for the Western Province under-20 team and
later became the captain
of the Maties rugby team (of US), a position
he held for three (3) consecutive years.
63.
After his law studies at US, having graduated with B.Com and
LLB
degrees, he moved to Kimberley,
where he continued his rugby career, playing for the Griqua rugby
team from 1994 to 1998, earning
around 68 caps. In 1994 their team
reached the C-Division, and in 1996 was elevated to the Currie Cup
Division, wherein they beat
all the major provincial rugby teams. The
only team they could not beat at the time was the All-Blacks from New
Zealand, which rugby
match ended in a draw. In 1998, as captain of
the Griqua rugby team, they beat the Irish rugby team by more than 50
points. He then
retired from rugby.
64.
After his retirement he started the schools rugby project and was
subsequently awarded a coaching
contract for the Leopards Rugby Union
from 2002 until 2004. After that contract expired, he returned to
fulltime legal practice.
65.
I have already referred to his testimony regarding the background of
this case and his eventual
appointment as Trustee of the Testamentary
trust hereinabove.
66.
I have also referred to the various email correspondence he received
from, and exchanged with the
Defendant herein; and the steps he - the
Plaintiff took in an effort to stop the Defendant from continuing his
insulting and slanderous
emails directed towards/at the Plaintiff,
including a protection order issued by the
Kimberley
Magistrate's Court against the Defendant, in October 2018, and which
is valid and enforceable for a period of five(5) years
from date of
issue, which will end in 2023.
67.
The Plaintiff also explained his involvement in the "Olivier
Judgment" referred to above.
He said that he did not, in his
capacity as Trustee at the time, seek to oppose the application then
brought by the Defendant, as
Applicant therein, in this Court. What
happened was that that Court (per Olivier J) subsequently requested
the parties concerned
to deal with and answer certain questions
directed by the Court. He was present at Court on that day and he was
also requested to
file an Affidavit regarding those questions
directed by the Court, in his capacity as Trustee, who had been cited
as the Fourth Respondent
therein. The Master was also similarly
requested to file an affidavit. He then duly filed and served his
affidavit in his stated
capacity, wherein he referred to a letter
that he came across in terms whereof he, as Trustee, gave the
executors permission for
the sale of the assets of the Trust. The
other parties also filed their affidavits. Thereafter, and after
having heard arguments
by and/or on behalf of the parties, that Court
gave its judgment (as referred to previously).
68.
As it turned out, and the crux of the judgment, that Court found that
the Trust was the lawful and
only heir, in terms of the will of the
deceased (referred to above), and as such could give permission to
the executor to sell the
assets, lawfully so qua Trustee, and need
not the permission of either the Master or the beneficiaries of the
Trust, which included
the Defendant herein, and his brother Dr Ian,
as above stated.
69.
In
this regard the Plaintiff referred this Court to the judgment of
Olivier J as afore stated and more particularly to paragraph
[108] thereof
[4]
wherein the
learned Judge referred to the affidavit and correspondence by the
Defendant herein, who was the Applicant in that matter
regarding the
Plaintiff herein, and admonished and rebuked the Defendant for,
inter
alia,
making
insulting remarks regarding the Plaintiff, under oath, to the effect
that the Plaintiff is incapable to
ct
as a trustee of a trust whose beneficiaries (i.e. the Defendant and
his brother) are possessed of high academic qualifications.
In his
footnote regarding this statement, the learned Olivier J pointed out
that the Defendant's affidavits and correspondence regarding
the
Plaintiff "... is
oor
die algemeen gekenmerk deur venyn, beledigings en ernstige
beskuldigings".
70.
According to the Plaintiff, these findings regarding the Defendant,
by that Court were fully
justified and correct, but the fact that the
Defendant herein totally ignored those findings, and in effect
referred to it contemptuously,
as he does and continued to do with
his insulting and slanderous remarks and statements in his emails to
the Plaintiff, despite the
judgment, was the proverbial last straw
for him. Hence he decided to issue summons against the Defendant and
sue him for damages
based on these clearly defamatory remarks and
statements regarding him (the Plaintiff).
71.
I now turn to the evidence by the Plaintiff regarding the specific
allegations made by him
in the pleadings filed of record, and in
particular the annexures referred to above.
72.
With regards to Annexure A, the Plaintiff confirmed that it was sent
by the Defendant to him, and
that he received and read it. It was
also sent to his (Plaintiff's)secretary Joan, and to the Defendant's
sister, Dr Lente. The effect
of these slanderous remarks on the
Plaintiff is what he has pleaded in paragraph
14
of the Particulars of Claim.
"In
the premise the statements were defamatory per se, alternatively
carried the additional sting that:
1.
The Plaintiff is not fit to be an
attorney, trustee, director and or executor;
2.
The Plaintiff is not to be trusted
with Trust/Estate money, has no insight in the administration of
Trusts/Estates and has no understanding
of Trusts/Estates;
3.
The Plaintiff is untrustworthy and
his judgment is affected;
4.
The Plaintiff is not fit to hold
the office as a
Director/Trustee/Executor/Attorney;
5.
The Plaintiff is not fit to carry
out the functions of a
Director/Trustee/Executor/Attorney;
6.
The
Plaintiff
acted
negligently
with no skill,
diligence,
competency
nor care
7.
The
Plaintiff
colluded
with
third
parties
to the detriment of the estate,
the trust and trust
beneficiaries".
73.
With regards to Annexure B, the Plaintiff testified that, besides the
Defendant referring to the
"corrupf',
"sou
en
moes
uitspraak
handed down by Olivier J',
he
(Defendant) explicitly refers to him (Plaintiff) as an
"incompetent
lawyer'
who "was
given
so
called
locus
standl'.
And
also that he (Plaintiff) and the executors of the estate are
complicit and corrupt, and further that he (Defendant) had laid
criminal
charges of fraud, corruption, money laundering and
racketeering, implying that he (Plaintiff) had committed those
offences.
74.
With regard to Annexure C, the Plaintiff testified that this email,
also directed at him by the
Defendant, also refers to one Louise
Danielz, who was the person handling the deceased's estate at Finlac
Trust, and accused him
(Plaintiff) and the said Louise Danielz, of
fraud ("bedrog").
75.
With
regard to Annexure D the Plaintiff testified that this email dated 12
July 2018, was also directed at, and received
and
read by him, as well as addressed to, and received by their
secretary, Madelaine, to whom the email:
"matty@engelsman.co.za,"
refers,
and to Elzaan, who is an attorney at Engelsman Magabane Inc., and who
is his attorney of record herein. According
to
the Plaintiff he was overseas, on holiday, at the time of this email,
and his secretary would have advised the Defendant accordingly.
Hence
the statement
by
the Defendant in this email suggesting that he (Plaintiff) had gone
overseas
with
other peoples' money which he had stolen.
76.
With
regard to Annexure E sent by the Defendant to the Plaintiff on 19
July 2018, the Plaintiff said that the first sentence of this
email,
which he had also received
and
read, meant to him, and he understands it to mean, that he, the
Plaintiff, is
exploiting
people and is corrupt,
being
part of the
"legal
fraternity".
The
contents of this email also impacted upon his impartiality, his
diligence and competency.
According
to the Plaintiff the Defendant herein requested documents that had
nothing to do with him, but despite that he supplied
the Defendant
with copies of the tax clearance certificate - which you need if you
transfer property - and, which
he
(Plaintiff)
obtained
from
the
executors.
What
the
Defendant
stated
herein,
according to the Plaintiff is a demand with a threat: "if you
don't respond. I will reveal everything". But what
the Defendant
demanded was not in his (Plaintiff's) possession, all these documents
would be with the executors of the
estate,
who might have sent it already to the Master at the time. The effect
of these statements on him, the Plaintiff,
is
what he has pleaded in paragraph
14.7
of the Particulars of Claim.
[5]
77.
With regard to Annexure F, the Plaintiff testified that the Defendant
sent this email to him
on 24 July and 25 July 2018, which was
addressed to, received and read by him, as well as all the people
and/or entities referred
to therein. The Plaintiff confirmed the
letter by him to the Defendant which is referred to in this email,
and further that he knows
the person referred to therein, namely Mr
Jonathan Williams, who is also an attorney in Cape Town. What he
knows and what was confirmed
by the Defendant in the latter's Plea,
is that this Defendant is also presently been sued for defamation and
damages in the Western
Cape High Court, not only by Mr Williams.
78.
The Defendant referred to this case under paragraph 3 of his Plea
dated 8 April 2020, namely:
a)
"Jansen Van Vuuren, Louis
Theunis under case number
"1054/2019";
b)
Pieter
Andries
Venter
Attorney,
under case number "23369/2018";
c)
Jonathan
Andrew
Williams, an attorney,
under
case number "21511/2018";
and
d)
Terence Thomas Matzdorff, an
attorney, under case number
"23267/2018'.
79.
The Plaintiff said that he understood this reference to Mr Williams
and himself as meaning "..
.that
we are acting outside
the
Jaw and not allowed
to
practice",
as attorneys. He
further testified, with reference to the word
"escalated'
mentioned in the email, that the
email will be sent to as many people as possible, including the
media. In this email the Defendant
also referred to him as
misrepresenting facts, and
"legal
rackef'
and
"legal
racketeers"
which he understood
to mean that he, the Plaintiff is/was included therein. The
Defendant's complaint, in the email, about the auctioneer,
did
not/does not
concern him as the
Plaintiff, because the auctioneer was appointed by the executors of
the estate, not by him, the Plaintiff, who
was the Trustee at the
time. The Defendant's reference to money laundering, fraudulent and
corrupt in the email, referred to him,
the Plaintiff. With regards to
subparagraph (j) of point 3 in email wherein it is stated:
"The
"CARE, SKILL AND DILIGENCE" that you have shown
===
a LEGAL FICTION',
meant
to him that whereas the Defendant had initially questioned his
capabilities, it has now been reduced further to a "legal
fiction".
80.
With regards to point 4 of the email, the Defendant implies,
according to the Plaintiff that the
computer printed documents which
was certified by Ms Elzaan Van Wyk of his office, was done so under
pressure from him (Plaintiff)
on her (Ms Van Wyk).
81.
The Defendant is also implying in the email, with reference to an
amount of R283,754.22
("Boedelregskostes")
that he, the Plaintiff was stealing
this money. The Plaintiff explained that the Defendant was, in terms
of to the Olivier Judgment,
ordered to pay the legal costs attendant
upon the application he had brought, and which was dismissed with
costs. These parties in
whose favour the cost order was granted, then
attached a portion of the Defendant's benefit which was in the
testamentary trust,
because the money that was in the Trust, was the
total derived from the auction. This money then had to be divided by
two, between
the Defendant and his brother Dr Ian, being the only
beneficiaries of the trust. He therefore deducted his legal costs,
and divided
the rest between the two of the beneficiaries equally.
According to the Plaintiff he still queried the executors'
calculations of
the costs due by the Defendant at the time, and was
of the opinion that the executors still owed the Defendant some legal
costs which
must be repaid to him. He advised the Master accordingly.
After he had instituted this action against the Defendant, he
resigned
as Trustee. The Defendant however, refused to give him his
banking details to enable him (Plaintiff) to pay the Defendant his
benefit,
which amounted to approximately R1 million. He, the
Plaintiff, therefore had to approach the Master to have that money,
the Defendant's
benefit, paid into the Guardian's Fund, which he did
and which was done. This money therefore is still in the Guardian
Fund. His
brother's money was paid out
to him by the plaintiff, which the brother, Dr Ian accepted at the
time
.
82.
With regards to the allegations that he allegedly overcharged the
Trust, the Plaintiff testified
that he charged in accordance with his
tariff, which he disclosed to both beneficiaries
,
and similarly with his full account
which he disclosed to both and it was never disputed. If a complaint
is laid by any client with
the law society, that then is directed to
the attorney concerned, who must reply thereto within a certain
stipulated time. That reply
is then forwarded to the complainant for
his/her response, and then, if there is merit in the complaint, it
will be investigated
by the particular Law Society. According to him
he was never informed of any complaint against him by the Law
Society, to date hereof.
He regarded this complaint by the Defendant
in this email as one of overreach
,
which
is absurd, and of negligence and of collusion, on his - the
Plaintiff's part.
83.
The Plaintiff furthermore explained, with reference to the bank
accounts referred to in the
email, that, as explained, he opened a
bank account for the Trust. Once Dr Ian's money was paid out to him,
and the Defendant then
refused to take his money as a beneficiary, he
closed that bank account and paid that money over into the Trust
account of their
firm
,
where
it would earn more interest, which would be for the benefit of one's
client, which
in casu,
would
be the beneficiaries, including the Defendant. So for him, the
Plaintiff, this reference to the bank statements reflected that
he
did not have care, skill and diligence as attorney and Trustee.
84.
In this email the Defendant also directly accused him of
ma/a
fide,
lack of impartiality, not
acting with any care, skill and diligence and not acting in the
interest of the Trust, but in the interest
of Finlac Trust, which he,
the Plaintiff denies.
The
effect of these slanderous and defamatory remarks and statements by
the
Defendant
on him is as set out and pleaded in paragraph 14 to 14.8 of his
Particulars of Claim.
[6]
85.
In
the same email the Defendant is also accusing him of being a liar.
This was in
circumstances
where his office (the Plaintiff) omitted, by error, to attach the
proof of payment, as was demanded by the Defendant
at the time. He
explained that after having received this email, and having realised
that they have omitted
to
attach that proof of payment, they immediately sent it via email to
the Defendant, although it did not have anything to do with
him.
There was in any event no query raised in this regard by the
Defendant's brother, Dr Ian.
86.
The Defendant also in this email, referred to him as a criminal, who
has committed serious commercial
crimes. According to the Plaintiff,
to the best of his knowledge, he is not aware of any criminal
investigation, either by the National
Prosecuting Authority (NPA) or
the Directorate of Special Investigations (the HAWKS) against him
with regards to anything that he
had done, as an attorney and/or as
Trustee of the testamentary trust, to date hereof.
87.
With regards to Annexure G, dated 13 August 2018, the Plaintiff
testified that, as with the other
emails, this was directed by the
Defendant, towards him, and similarly also sent to various other
people. These emails started off
with the suggestion that he, the
Plaintiff, had no skill and diligence. Initially it was approximately
once a month, but then the
frequency of these emails increased, and
the tone of its contents became harsher and direct, as can be seen
from the contents of
this email where every sentence, with reference
to him is out rightly defamatory. The Defendant was also clearly
!"10t only
referring to him (Plaintiff), but also the Judges as
"dishonourable attorneys...
and
others".
88.
In the circumstances, the Plaintiff testified, the substance and
effect of the contents of these
emails are as set out and pleaded in
paragraphs 11 to 17 inclusive of his particulars of claim, wherein it
states:
"11.
The statements made by the Defendant were wrongful and
defamatory of the Plaintiff.
12.
The statements were made by the
Defendant with the intention to
defame the Plaintiff and to injure
his reputation.
13.
The
statements
were
understood by
the
addressees
and
were
intended by the Defendant to mean
that
"13.1.
the Plaintiff is unfit and incompetent to practice as an
attorney
13.2.
the Plaintiff is unfit and
incompetent to be appointed and act as a Trustee;
13.3.
the
Plaintiff
had committed
a criminal
offence;
13.4
the
Plaintiff is unfit to act
as a director;
13.5
the Plaintiff acted negligently with
no skill, no diligence, competency nor care;
13.6
the Plaintiff has no insight
understanding and judgment in acting as an Attorney Trustee or
Director;
13.7
the Plaintiff
has
dyslexia;
13.8
the Plaintiff extort to enrich
himself;
13.9.
the Plaintiff has no skill or
competency to be an attorney,
to act as a Trustee or a Director and
is a liar;
13.10.
the Plaintiff colluded with third
parties to the detriment of the estate and trust and
trust beneficiaries;
14.
In the premise the
statements were defamatory
per
se,
alternatively
carried the additional sting that:
14.1
The Plaintiff is not fit to be an
attorney, trustee, director and or executor;
14.2
The
Plaintiff is not to be trusted with Trust/Estate money, has no
insight in the administration of Trusts/Estates and
has
no understanding of Trusts/Estates;
14.3
The Plaintiff
is untrustworthy
and his judgment
is
affected;
14.4
The Plaintiff is not fit
to hold the
office as a Director/Trustee
/Executor/
Attorney;
14.5
The Plaintiff is not fit to carry out
the functions of a Director/Trustee/ Executor/Attorney;
14.6
The Plaintiff acted negligently with
no skill, diligence, competency nor care
14.7
The Plaintiff colluded with third
parties to the detriment of
the
estate, the trust and
trust
beneficiaries".
15.
The statements made by the defendant
are wrongful and
defamatory
of the plaintiff.
16.
The statements were made with the
intention to defame the plaintiff and to injure his reputation.
17.
The statements were understood by
the addressee and was intended by defendant to mean that plaintiff is
dishonest, incompetent and
an attorney with no skill"."
The
impact of these statements by the Defendant on the Plaintiff
89.
The Plaintiff testified that after he had been sent, and after he
received Annexure G, dated 13
August 2018, around 11h29, and saw and
read the contents thereof, he had enough of these defamatory remarks
by the Defendant. According
to him (Plaintiff) whereas initially the
Defendant attacked his lack of skill and diligence as a Trustee and
an attorney, the tenor
of these attacks on his dignity and reputation
had increased to the level where he was said and made out to be,
"a
dishonourable
attorney".
90.
The Plaintiff said he was still having heart palpitations as he was
reading and recalling these
statements in Court during his testimony.
After having shared his sentiments with his partners at their law
firm, it was unanimously
agreed that he should institute this
defamation action for damages against the Defendant, which he
subsequently did.
91.
Due to the impact of these defamatory statements by the Defendant
regarding him, he had since
been medically diagnosed with depression,
and since then he is on medication for the treatment thereof. He
testified that that on
any particular day, after having received one
of the Defendant's emails, his whole working day would be turned
upside down. These
statements had a huge impact on him, making him
doubt himself, personally and professionally.
92.
The Plaintiff testified that the Defendant's statements as reflected
in these emails, regarding
him also negatively impacted him and his
practice. Since he started and built their Estate Department of their
legal firm, he would
get numerous instructions from smaller attorney
firms, but also from big financial entities such as SANLAM and FNB.
For the last
two (2) years he had not reserved
any new instructions from attorneys in the Northern Cape, nor from
SANLAM and FNB. Prior to 2018 and 2019, the Master of the High
Court
accepted surety from himself and his colleagues, but since 2019 the
Master started to insist on insurance. He however conceded
that he
cannot directly link it to this case. Subsequently their office
provided the Master with bonds of security in respect of
wills where
security was necessary.
93.
This case and his name are also referred to on the social media
platforms. Thus if people google
his name, they would see these
statements about him and the cases wherein his name would appear. He
worked with the Master's office
all over the country, and did High
Court litigation work from other attorneys who would sometimes
instruct him directly to act professionally
for them, or as
corresponding attorney. He also has a business in Zimbabwe which he
is operating together with his son and where
those business partners
know him very well and where his reputation and integrity are well
respected. As a result of these statements,
which are accessible on
some of these social media platforms, people could question his
honesty and integrity, since one does not
always know what other
people think.
94.
He testified that in his over 26 years in legal practice, he had not
once instituted an action
such as this, since it was never necessary
to do it. He recalled only one (1) case where he issued summons, but
which was based on
a contract, where monies were owed, but that
matter was settled, soon thereafter.
95.
He testified that as a result of certain complaints lodged against
him by the Defendant, regarding
certain alleged irregularities in his
capacity as Trustee of the testamentary trust, with the Table Bay
SAPS in Cape Town in and
around 2018, he was contacted by the said
SAPS and informed about these allegations and that he was required to
respond to, either
by way of a consultation with the investigator of
those complaint and/or the prosecutor assigned to the case by the
OPP, Western
Cape. They subsequently advised him just to make and
submit a statement regarding these allegations, which he did. He
subsequently
never heard anything from either the SAPS and/or the
DPP's office regarding these allegations. He is also not aware of any
other
criminal charges and/or cllegations being investigated against
him by the NPA and/or the Special Investigation Unit (SIU). According
to him, to the best of his knowledge and belief, he is/was not
criminally implicated in any alleged criminal act by, and/or
investigation,
against him.
The
Defendant's case:
96.
I now turn to the Defendant's case as pleaded, to which I have
already referred hereinabove,
and which I endeavour to summarize
hereunder, amidst the voluminous documents filed and submitted by
him, as indicated hereinabove.
97.
The Defendant elected to represent himself and filed a Special Plea
and Pleading and Counterclaim
in respect of the Plaintiff's claim.
The Defendant's Special Plea dated 16 March 2020 was set aside on 15
October 2020.
98.
On 19 February 2020, sections B, C, E, F and G of the Defendant's
Pleading and Counterclaim
dated 8 April 2020 were struck out.
99.
According to section D of the Defendant's Plea he denies this Court
has the necessary jurisdiction
to adjudicate this action.
100.
The Defendant admits that the emails were sent by him, the Defendant,
which is annexed to the Plaintiff's amended
Particulars of Claim. He
admits that "detailed Email train (started 6 May 2016)" was
sent by him.
101.
According to paragraph 10 (section D) of the Defendant's Plea, the
Defendant admits that he has a moral and
legal duty to the South
African public to have made the statements (based on facts and/or
misrepresentation) to report crimes and
to protect and raise
awareness amongst the public, against the failure of fiduciary
duties, contravention of several laws and money
laundering and
attempts to interference as documented in the SAPS investigation
diary. He specifically pleads the following:
"Defendant
only admit that detailed E MAIL TRAINS (must be seen in context,
which is self-explanatory), were sent to authorities
to report and
put PLAINTIFF
to
proof otherwise and to proofthe contents as incorrect."
(sic)
102.
The Defendant denies having any intention to harm the
"fama"
of the Plaintiff in any way and/or
to have cause any injury or damages
.
Applicable
Legal Principles
103.
In the matter of Katz v Welz & Another, the unreported Western
Cape Division judgment of N Mayosi, AJ (Western
Cape High Court Case
No: 22440/2014, dated 26 April 2021), the legal principles applicable
to defamation, were crisply summarised
as follows (Paras 18 - 20 of
the judgment):
"18.
An action for damages is one that seeks to protect one of the
personal rights to which every person is entitled, that is
the right
to a good name, unimpaired reputation and esteem by others. In our
new constitutional order, reputation forms part of the
concept of
human dignity which is a fundamental constitutional value. In the
result, the law of defamation lies at the intersection
of two
fundamental values, both protected by the Constitution, namely the
rights to freedom of expression, including freedom of the
press and
other media, and the protection of
reputation or good name.
19.
The elements of defamation
are (a) the wrongful
and (b) intentional (c)
publication
of
(d) a defamatory
statement
concerning
the plaintiff.
20.
The
question whether a statement is defamatory in its ordinary meaning,
or is per se defamatory involves a two-stage inquiry. The
first is to
establish the natural or ordinary meaning of the statement.
The
second is whether that meaning is defamatory."
104
.
With
regard
to
the question
as
to whether
the
statements
are
defamatory
per
se, the Constitutional Court has indicated it entails a two-stage
enquiry as set out in the matter of
Le
Roux and Others v Dey
[7]
which
reads as follows:
"[89]
Where the plaintiff
is
content
to rely on the proposition that the published statement
is
defamatory per
se,
a two-stage enquiry
is
brought to bear. The first
is
to establish the ordinary meaning of
the statement. The second
is
whether
that meaning
is
defamatory.
In establishing the ordinary meaning
,
the court
is
not concerned with the meaning which
the maker of the statement intended to convey. Nor
is
it concerned with the meaning given
to it by the persons to whom it was published, whether or not they
believed
it
to be true, or whether or not they then thought
less
of the plaintiff. The test to be
applied
is
an
objective one. In accordance
with
this objective test the criterion
is
what meaning
the reasonable
reader
of ordinary
intelligence
would
attribute to the statement. In applying this test it is accepted that
the
reasonable
reader would understand the statement in its context and that he or
she would have had regard not only to what is expressly
stated but
also to what is implied.
[90]
The reasonable reader or observer is
thus a legal construct of an individual utilised by the court to
establish meaning. Because the
test is objective, a court may not
hear evidence of the sense in which the statement was understood by
the actual reader or observer
of the statement or publication
in question.
[91]
At the second stage, that is whether
the meaning thus established is defamatory, our courts accept that 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 had been published."
105.
Publication
must be to a person other than the plaintiff or the plaintiff's
spouse.
It
is not necessary to state the names of all the persons in whose
presence the
defamatory
statement was made, but only those whose identities have been pleaded
may be called as witnesses to prove publication.
The purpose of this
rule is to prevent surprise.
[8]
106.
Publication
of a defamatory statement is prima facie wrongful. The onus rests
on
the Defendant to dispel this prima facie case. This is a full onus
and requires the Defendant to allege and prove facts that dispel
wrongfulness, such
as
truth and public interest.
[9]
107.
In the context of this case, and as a result of the Defendant's
allegations as referred to in paragraph 100 above,
the Defendant must
allege and prove that:
A.
the statements regarding the Plaintiff were true; and
B.
its publication was to the benefit of the public.
108.
Applying these principles to the facts of this case and the
statements made and published by the Defendant regarding the
Plaintiff, a few aspects, at least, are clear to me:
108.1
These statements were made and published within the jurisdiction of
this Court, and hence this Court has the
necessary jurisdiction to
adjudicate upon this action.
[10]
108.2
It is clear from the contents of paragraphs 34, 41 and 101 above that
the statements made by the Defendant
regarding the Plaintiff are
wrongful in that the statements are defamatory and has a tendency or
is calculated to undermine the status,
good name and reputation of
the Plaintiff.
108.3
It is also clear from the contents of the Defendant's Plea as set out
above, that the statements were made
intentionally and "published"
to third parties, other than the Plaintiff
.
108.4
Taking into account the two-stage enquiry referred to and as set out
above, that the statements made by the
Defendant regarding the
Plaintiff as set out in the various emails are defamatory. The
statements made by the Defendant regarding
the Plaintiff are
therefore wrongful, intentional, were published and are defamatory
concerning the Plaintiff.
108.5
The Defendant has failed, given his allegations referred to in
paragraph 101 above, to discharge the onus
of proving a) that the
statements regarding the Plaintiff were true; and b) its publication
was to the benefit of the public.
109.
I find accordingly.
Dama
g
es
110.
As
far as damages are concerned, it is trite that the Plaintiff need not
particularise general damages or provide particulars about
the
Plaintiff's reputation, standing in the community, or character or
the extent of the publication.
[11]
111.
In
the matter of Katz v Welz
[12]
the Court indicated that there is no formula for the determination of
general damages, and that it flows from the infinite number
of
varying
factors that may come into play such as:
111.1
The nature of the defamatory statements written and published
;
111.2
The nature and extent of the publication;
111.3
The reputation, character and conduct of the Plaintiff;
111.4
The motives and conduct of the Defendant.
112.
Although the Defendant is not a legal practitioner, he is well aware
of the consequences of his action in relation
to the publication of
defamatory statements.
113.
The clear impression gained from a reading of the documents filed on
record by the Defendant, voluminous as it was, is
that he is a very
intelligent man, and as stated above, well qualified in his
profession as a neuro-surgeon. He is also not a stranger
to
litigation in the High Courts of South Africa, as is evident form the
judgment of Olivier J to which I have referred to above.
114.
I was also referred to the well written Afrikaans judgment of Riley
AJ, dated 24 June 2016 in the Western Cape High Court,
in the matter
of Nicolas Renier Van Gijsen, as Plaintiff versus Fred van der Merwe,
as Defendant. As I have endeavoured to indicate
above, the genesis of
this matter is intricately intertwined with the geneses of that
matter, more particularly in that the Plaintiff
in that case was also
involved in the will of the Defendant's deceased father, and the
subsequent developments regarding the said
will, similar to the
Plaintiff in this action. That Plaintiff, Gijsen, also sued this same
Defendant out of that Court for defamation
and was awarded eventually
R500,000.00 in damages as a result of defamatory statements contained
in emails regarding him and sent
by the Defendant, Fred van der
Merwe, who is the same Defendant herein.
115.
In the course of his evidence in this court, the Plaintiff has also
referred me to a protection order which he was driven
to apply for
and obtained from the Kimberly Magistrate's Court against the
Defendant, to protect him, the Plaintiff, from the constant
and
ongoing defamatory statements in emails emanating from the Defendant.
That was a final Protection order in terms of the provisions
of the
Protection from Harassment Act, 2011 (Act No 17 of 2011) and dated 4
October 2018, in terms whereof the Respondent therein,
Frederick van
der Merwe (the Defendant herein) was ordered and prohibited by that
Court, from committing any of the followings acts
regarding the
complainant therein (the Plaintiff herein).
"(i)
Not to insult and/or to attempt to insult and/or in any way to
verbally abuse the complainant; (ii) Not to contact the complainant
physically, telephonically, per email and/or through any social
media;
ii)
Not defame the complainant in any way."
In
terms of the said order, dated 4 October 2018, it would last until,
and expire
on
4 October 2023.
[13]
116.
The summons in this matter was issued on 2 October 2018. After the
summons was served on the Defendant, the Defendant made
the following
statements regarding the Plaintiff in these proceedings:
116.1
In the Defendant's purported opposing/answering affidavit) dated 25
November 2020) to Plaintiff's
application in terms of Rule 30(2), the
Defendant stated the following regarding the Plaintiff:
"PLEASE
TAKE
NOTICE
that
PLAINTIFF'S
RULE 30(2) APPL/CATION,
as
intended
by
the
PLAINTIFF
on
Friday,
the
27th
of
November
2020...
...
Is
scandalous
and
vexatious,
brought
by a VEXATIOUS
LITIGANT
as
part
of
"SLAP
SUIT"
[14]
"FAILED
to indicate to COURT that PLAINTIFF,
a
DELINQUENT
TRUSTEE
and
DIRECTOR
,
has
NO
DEFENCES
in
this FRAUDULENT CRIMINAL MATTER and could NOT provide
...
.
.
.
that
PLAINTIFF contravened COVID REGULATIONS in a deliberate and
intentional manner, the characteristics of a HABITUAL OFFENDER
..."
[15]
(The
affidavit was emailed (published) to the Chief Registrar and Office
of the Judge President, the Office of the Chief Justice of
South
Africa, The South African Police Services, The Special Investigation
Unit and the State Attorney)
[16]
116.2
In the Defendant's purported opposing/answering affidavit) dated 14
December 2020) to Plaintiff's
application in terms of Rule 30(2), the
Defendant stated the following regarding the Plaintiff:
"PLEASE
TAKE NOTICE
that
PLAINTIFF's Rule 30(2) Application
......
*
are defective in form and substance
and NOT filed timeous/y ito COURT RULES and demonstrate incompetence
and/or negligence and/or
ma/a fide and/or CORRUPT activities...
*
are
wrong in Law (including REGULATIONS 910, TAX etc), involve a
FRAUD-in-LAW"
[17]
"PLEASE
TAKE
NOTE
OF
FAILURES
{not
all
listed)
by
PLAINTIFF and/or
his
legal
team
to
act
ito
UNIFORM
RULES
OF
COURT.
....
.
*.....
...Failed
to act timeously and/or intention to 'ambush' Judicial Officers
and/or act in corrupt manner to 'up/iff' and withhold the
FACT-
in-LAW, the FRAUD-in-LAW"
[18]
"
....FAILED to indicate to Court that PLAINTIFF,
a
DELINQUENT
TRUSTEE
and
DIRECTORS,
has
NO
DEFENCES
in
this
FRAUDULENT
CRIMINAL
MATTER
...
*
Furthermore confirm in Plaintiff's
own AFFIDAVIT to this HONOURABLE COURT that PLAINTIFF contravened
COVID REGULATIONS in a deliberate
and intentional manner, the
characteristics of
a
HABITUAL OFFENDER.
"
(The
affidavit was emailed (published) to the Chief Registrar and Office
of the Judge President, the Office of the Chief Justice of
South
Africa, The South African Police Services, The Special Investigation
Unit and the State Attorney)
116.3
In the Defendant's purported opposing/answering affidavit dated 28
September 2020 to Plaintiff's
application in terms of Rule 30(2), the
Defendant stated the following regarding the Plaintiff:
"......The
Plaintiff has failed the Test what the normal reasonable man would
have done, when appointed and authorised to act
as Trustee of a
Testamentary
Trust.
Another
quote comes to mind: if the litigant "failed to disclose facts
that were material to the truth of evidence that he permitted
to be
placed before the court and without which evidence was misleading"
-
MISLEADING
THE COURT is further serious transgression and should be
reported."
[19]
(The
affidavit was emailed (published) to the Chief Registrar and Office
of the Judge President)
117
.
It
is settled law that, republication by the same person of a defamatory
statement does not necessarily create a new cause of action
but may
aggravate damages.
[20]
118.
As indicated above, the Defendant had the benefit of the caution and
rebuke of Olivier J in the latter's judgment
dated 21 August 2015.
The Defendant nevertheless proceeded with his wrongful conduct and
defamatory statements regarding the Plaintiff.
119.
The Defendant was also on the receiving end in the defamation action
instituted against him by Gijsen in the Western
Cape Division of the
High Court, referred to above, where he was ordered by Riley AJ, to
pay damages in the amount of R500,000.00
for damages to that
Plaintiff, with costs. He narrowly escaped a punitive court order in
that case by virtue of his conduct as stated
therein.
120.
The Defendant had a protection order granted
against him as far back as 04 October
2018, by the Kimberley
Magistrate's Court, ordering and prohibiting him from,
inter
alia,
making any defamatory
statements regarding the Plaintiff, who was the complainant in that
application for a protection order against
the Defendant.
121.
The Defendant literally did not give the Plaintiff any other option
but to institute this High court action against
him, despite the
Plaintiff's various requests and admonitions to him to stop his
wrongful and defamatory conduct and statements regarding
he
Plaintiff. Despite that, and even after that summons was filed and
served upon the Defendant, he continued his wrongful and defamatory
conduct in respect of the Plaintiff, until literally he day before
the hearing of this matter was to start in this Court, as indicated
above.
122.
To date hereof, no apology and/or any apologetic gesture was
forthcoming from the Defendant to the Plaintiff for,
and in respect
of, these defamatory statements regarding him by the Defendant.
123.
I consider these factors to be seriously aggravating factors against
the Defendant in determining a just and equitable
amount of damages
to be awarded to the Plaintiff for the injury to his dignity and
reputation.
124.
I also take into account that there are more cases/actions of a
similar nature, where the Defendant
in
casu,
is being sued for defamation
and damages by at least four (4) other persons, which cases are
pending in the Western Cape Division
of the High Court.
125.
I am also mindful of the fact that the Defendant has access to his
benefit in terms of the testamentary trust in
access of approximately
R1 million as testified by the Plaintiff, which the latter kept in
trust for the benefit of the Defendant
in the Plaintiff's capacity as
erstwhile Trustee of the said trust. After his resignation as
Trustee, and the Defendant's refusal to
provide him - the Plaintiff - with the bank account details of the
Defendant to transfer the
said money to the Defendant, despite many
requests to this effect, the sum total of the benefit was paid to the
Master into the Guardian's
Fund.
THE
ORDER
In
the result the following order is hereby made:
1.
The Defendant is ordered to pay the Plaintiff
the amount of R 800
000.00 as and for damages.
2.
Interest on the said amount a
tempore
morae
from date of judgment until
final payment.
3.
Costs of the suit.
J
J MOSES
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION, KIMBERLEY
For
the Plaintiff:
Adv. A. S. Sieberhagen
Instructed
by:
Engelsman Magabane Inc.
For
the Defendant: No appearance
[1]
See
Riley AJ unreported Judgment Western Cape High Court Case Nuber
14860/13, para [2], [9] to [12].
[2]
Frederick
Lodewikus van der Merwe (Applicant) v Louise Ellen Danielz &
five others
,
Northern
Cape Division Case No 1637/2014, which was heard on 12 August 2015,
Judgment delivered on 21 August 2015 per Olivier J.
[3]
A
transcript of this ruling should be available if needed.
[4]
Which
is in Afrikaans.
[5]
See
para
72 above.
[6]
As
se
t
o
ut
i
n
pa
ra
72 a
b
ov
e.
[7]
(Freedom
of Expression Institute & another as
amici
curiae)
[2011]
JOL 27031
(CC): 2011(3) SA 274 [CC]
.
[8]
See
Crots v Pretorius
2010 (6) SA 512
(SCA)[15])
.
[9]
See
National Media Ltd v Bogoshi [1998] 4 ALL SA 347 (A).
[10]
See
Simmonds v White
[1980] (1) SA 755
(C)
.
[11]
See
Simmonds v White supra
,
at
758.
[12]
See
para 103 above, at paras 205-219 of that judgment.
[13]
See paragraph 25 above.
[14]
Page
8 of indexed papers of application heard on 19 February 2021 -
application
dated 16/10/2020
[15]
Page
10 of indexed papers of application heard on 19 February 2021 -
application dated
16/10/2020.
[16]
Page 7 of indexed papers of application heard on 19 February 2021. â
application dated 16/10/2020
[17]
Page
9 of indexed papers of application heard on 19 February 2021 -
application
dated 8/9/2020
[18]
Page
11 of indexed papers of application heard on 19 February 2021 -
application
dated 8/9/2020
[19]
Page
49 of indexed papers of application heard on 15 October 2020.
[20]
Mograbi
v Miller
[1956] 4 All SA 220
(T)