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[2018] ZAFSHC 99
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Fichardt v Potgieter and Others (797/2018) [2018] ZAFSHC 99 (7 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 797/2018
In
the matter between:
NEIL
FICHARDT
Applicant
and
PHILLIP
POTGIETER
1
st
Respondent
RENIER
FOURIE
2
nd
Respondent
WALTER
GILFILLAN
3
rd
Respondent
ANN
STRYDOM
4
th
Respondent
HEARD
ON:
10 MAY 2018
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
7 JUNE 2018
[I]
INTRODUCTION
[1]
On 16
th
February 2018 Reinders, J issued an interim order on an urgent and
ex
parte
basis, calling on the respondents to show cause on a certain date why
the following relief,
inter
alia
should not be made a final order of court:
3.1
That the respondents are interdicted and restrained from posting
any
information pertaining to the applicant and/or the applicant’s
immediate family on Facebook, or any other social media
or any other
website.
3.2
That the respondents are ordered to remove any postings and
or
comments on such postings pertaining to the applicant and/or the
applicant’s immediate family on Facebook or any other
social
media or website it might have been so posted.
[2]
The interim relief was ordered to operate as an interim interdict
with immediate effect. On the return date of the
rule
nisi
,
the matter came before me. Mr. Ploos van Amstel, appearing for
the applicant, informed the court that the whereabouts of
the 4
th
respondent are unknown and that the applicant is no longer interested
in a confirmation of the order against her.
[II]
THE FACTS
[3]
The applicant is a businessman from Reitz in the Free State
Province. The 1
st
,
2
nd
and 3
rd
respondents are all residing in Louis Trichardt, Limpopo Province.
The applicant is the sole member of a close corporation
which
specialises in the manufacturing and production of bio-diesel and
bio-fuel as a re-useable energy and as a viable alternative
to fossil
fuels.
[4]
Many years ago, during the course of 2004, the 1
st
respondent and his father bought the first oil press from the
applicant’s CC on behalf of their company, Potgieter Boerdery.
The CC concluded a similar transaction with the company “Green
Farms” in the Louis Trichardt district. Due to
financial
constraints, the CC was unable to import the oil press machine
earmarked for Green Farms, and they made a loan of some
R300 000-00
from Potgieter Boerdery to fulfil its obligations towards Green
Farms. Eventually, the CC was able to pay
back only R37 000-00
of this loan, but the applicant also entered into a settlement
agreement with the 1
st
respondent to pay back the balance of the loan.
[5]
Thereafter the CC again defaulted in repaying the balance of the
loan, and in September 2017 the 1
st
respondent issued summons against the applicant. The action was
not defended and the 1
st
respondent apparently obtained default judgment against the applicant
subsequently.
[6]
Against this background, the applicant avers that he was shocked to
discover defamatory comments made by the 1
st
respondent on Facebook, a social network site, about him on 10
February 2018 at Reitz. According to the applicant, the posting
was made by the 1
st
,
the 2
nd
and the 3
rd
respondents. It reads as follows:
“
Graag waarsku
ek almal teen die man op die foto, Mnr. Neil Fichardt van Reitz.
Hy skuld my al vir meer as ‘n jaar R368 000-00,
asook
ander boere in Limpopo. Tans ignoreer hy my oproepe en het my
op alle vlakke geblok. Hy gaan aan met sy lewe
en hou vakansies
en doen besigheid. Wees versigtig, Hy is seepglad.
Indien iemand weet waar hy hom bevind, sal
ek dit opreg waardeer as u
my in kennis kan stel. Dankie Phillip Potgieter.”
[7]
This posting was followed by a comment by the 2
nd
respondent, also on Facebook, stating that the applicant is being
investigated by the Hawks and that he is a habitual offender.
In a further comment posted by the 3
rd
respondent, the applicant is referred to as “
gemors
”
(trash).
[8]
These comments by the respondents concerned were tagged or shared to
various other Facebook pages, including Noordoos Vrystaat
Advertensies, Bethlehem Advertensies and Bethlehem Volkswagen.
They were soon followed by two voice notes coming from the
1
st
respondent wherein it is stated that the 1
st
respondent wants his money.
“
As hy my betaal
maak ek sy naam skoon. Ek sê vir hom op sosiale media:
Neil, baie dankie, jy is ‘n eerbare mens,
gaan aan met jou
besigheid, ek waardeer, jy het my terug betaal, maar as hy my nie
betaal nie, gaan ek hom nie uitlos nie.
Ek is besig met fase
2. Hy moet dit mooi verstaan. Kry die geld by jou ma, jou
pa, jou broers, leen ‘n bietjie
by almal! Skuld hulle
eerder, maar betaal my, my geld! Ek soek my geld! Ek soek
dit!
”
[9]
The second voice note came from the 2
nd
respondent.
“
Jy’s
skelm. Green Farm het ‘n saak oopgemaak teen jou en jy’s
‘n skelm. Jy is ‘n oneerlike
skelm met jou sob
stories wat jy vertel.”
[10]
The contents of the Facebook messages are not disputed by the
respondents, but they contend that this court has no jurisdiction
to
hear the matter and that the posting were in any event the truth and
in the public interest. The applicant alleges that,
at the time
the postings were made, it were shared 1315 times by Facebook
memebers and that 88 people have made comments thereon.
[III]
JURISDICTION
[11]
In defamation cases a court has jurisdiction if the words complained
of were published within the court’s area of jurisdiction.
See
for instance:
Simmonds
v White 1980(1) SA 755 (C) and Tsichlas and Another v Touchline Media
2004 (2) SA 112
(W)
.
Mr.
Jooste, appearing for the respondents, submitted that publication of
defamatory material must be made to third parties regarding
the
status of the plaintiff or the applicant, and not to the plaintiff or
applicant himself in order to establish liability for
the publisher.
In this case, he submitted, the applicant himself accessed the
postings in Reitz, and since the publication
was not made to third
parties regarding the applicant, in the Free State Province, the
delict of defamation was not shown to have
been committed in the area
of jurisdiction of this court.
[12]
I do not agree with this submission. Having regard to the names
of the Facebook pages where the words have been posted,
as mentioned
earlier, it is obvious on a balance of probabilities that the
postings have been published in the Free State amongst
others.
And on top of it all, the applicant was able to access the postings
at Reitz in the Free State, which means that
the publication indeed
took place in the Free State for anyone to read. In this
respect the present facts are on all fours
with the findings of Kuny,
AJ in the Tsichlas – case,
supra
,
referred to earlier. I therefore find that this court has the
necessary jurisdiction to adjudicate the present application.
[IV]
DEFAMATION
[13]
The words published by the 1
st
,
2
nd
and 3
rd
respondents concerning the applicant and in particular the words
“seepglad”, habitual offender, “gemors”
and
“skelm” need little further explanation. The word
“seepglad” certainly indicates dishonesty and
deceitfulness on the part of the applicant. In my view, there
can be no doubt that these words are reasonably capable of
conveying
to the reasonable reader a meaning which defames the applicant.
[
The only remaining question is then whether the respondents have
succeeded in dispelling the wrongfulness of their defamatory
statements. The respondents bear a full onus in this regard,
and are required to prove, for instance, the truth of their
statements or the public interest pertaining thereto.
See:
National
Media Ltd vs Bogoshi
1998 (4) SA 1196
(SCA) and Neethling v Du Preez;
Neethling v The Weekly Mail
[1993] ZASCA 203
;
1994 (1) SA 708
(A)
.
[15]
As far as the truth of the statements are concerned, it is common
cause that the applicant owes the 1
st
respondent a substantial amount of money. Having regard to the
application papers as a whole, the applicant apparently owes
a number
of other people some money as well. But as far as the 1
st
,
2
nd
and 3
rd
respondents are concerned, that is where the full truth ends.
The full truth is that the 1
st
respondent has instituted action against the applicant already, which
action the applicant did not defend. Therefore it can
be
assumed that default judgment was granted against the applicant.
These facts are not mentioned in the postings published
by the
respondents, and they make it look as if the whereabouts of the
applicant are unknown, as if he is eluding them, and if
he is only a
scoundrel who defrauds people with the intention of stealing their
money. Had the respondents bothered to mention
the court case
against the applicant and what followed in the wake thereof, it could
have given a different context to their postings.
[16]
It is also doubtful whether the postings were made in the public
interest. It is apparent that the 1
st
respondent made his comments, and caused the 2
nd
and 3
rd
respondents to make their further comments, with the sole intention
of forcing the applicant to pay. If this was not so,
he would
not have said that he would clear the applicant’s name on the
social media as soon as he pays.
[17]
In the premises, I am of the view that the applicant is entitled to a
confirmation of paragraph 3.2 of the interim Court Order
dated 16
February 2018. Mr. Ploos van Amstel, for the applicant, did not
insist that paragraph 3.1 of the interim order also
be confirmed.
Because the applicant is for all practical purposes successful with
his application, I can think of no reason
to deviate from the general
rule that costs are awarded to the successful party.
[18]
The following order is made:
18.1
Paragraph 3.2 of the interim order dated 16 February 2018 is made a
final
order of court as concerns the 1
st
,
2
nd
and 3
rd
respondents.
18.2
The 1
st
, 2
nd
and 3
rd
respondents are
ordered to pay the costs of the application jointly and severally,
the one paying the other to be absolved.
___________________
P. J. LOUBSER, J
On
behalf of the applicant:
Adv. P. C. Ploos van Amstel
Instructed
by:
Christo Dippenaar Attorneys
BLOEMFONTEIN
On
behalf of the respondents:
Adv. T. J. Jooste
Instructed
by:
Rossouws Attorneys
BLOEMFONTEIN