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[2018] ZAFSHC 195
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Wealth 4 All Solutions v Ntoaleng (4425/2018) [2018] ZAFSHC 195 (30 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
4425/2018
In the
matter between:
WEALTH
4 ALL
SOLUTIONS
APPLICANT
and
NTAOLENG
MARIA
HANONG
RESPONDENT
CORAM
:
I VAN RHYN, A J
JUDGMENT
BY:
I VAN RHYN, AJ
HEARD
ON:
29 NOVEMBER 2018
DELIVERED
ON:
30 NOVEMBER 2018
BACKGROUND
[1]
On 23
rd
May 2018, under case number 2554/2018, a rule nisi
was issued in terms whereof, inter alia the Respondent in the present
application,
was called up to show cause why a final order
interdicting and prohibiting her from making any unlawful and
defamatory statements
regarding the business and business affairs of
the Applicant should not be made final. The application was not
opposed by the Respondent
and the rule nisi was confirmed on 12
th
July 2018.
[2]
Ex facie
the notice of motion the Applicant now seeks the
following relief which is quoted
verbatim
:
“
1. That the
Respondent is restrained, interdict and prohibited from making
unlawful and defamatory statements to the public regarding
the
business affairs of the Applicant.
2. That the Respondent
is prohibited and interdicted from dissuading members of the public
both current and potential customers
from investing and continuing to
invest in the Applicant’s trading business.
3. That the Respondent
is hereby ordered to return and hand over the Applicant FNB Card and
all Business Financial Books of the
Applicant currently in her
possession.
4. The Respondent is
restrained and interdicted from taunting her own business pamphlets
within the business area of the Applicant’s
business.
5. Cost of suit.”
[3]
What gave rise to the application is a failed business venture
between the directors of Applicant, a forex trading investment
company situated at the Setsing Shopping Complex in Phuthaditjhaba
and the Respondent, a former director of the Applicant.
[4]
The Respondent opposed the application on the following bases: the
Respondent denies having any intention of defaming the Applicant;
that she has not made any unlawful and defamatory statements
regarding the business of the Applicant in the past, or since the
order granted in the previous application under Case No: 2445/2018 in
May 2018. The Respondent denies that she has ever dissuaded
members
of the public from investing with the Applicant and contends that she
has destroyed the FNB bank card provided to her when
she was a
director of the Applicant.
[5]
The Applicant has never, prior to this application requested the
Respondent to hand back the financial books of the Applicant
and the
Respondent tenders to hand back the financial documents and books as
well as the remains of the bank card before the hearing
of this
application. She furthermore denies that she went to the premises of
the Applicant where she distributed pamphlets to promote
her business
or to inform the Applicant’s clients to invest with her
business.
FINAL
RELIEF
[6]
The nature of the remedy is that of a final and permanent
interdict. In prayer 3 of the notice of motion the Applicant
seeks
mandatory relief in terms whereof the performance of certain
action is required and in prayers 1, 2, and 4, prohibitory interdicts
are sought. Interdict procedure is a remedy of a summary and
extra-ordinary nature, allowed in cases where a person requires
protection against an unlawful interference or threatened
interference with his or her rights.
[7]
The requirements for a final interdict are well established. They are
firstly, a clear right; secondly, that such clear right
has been
infringed by the Respondent to the prejudice of the Applicant or that
there is a reasonable apprehension that such right
will be infringed,
causing resultant injury and harm and thirdly, the absence of any
other satisfactory remedy
[1]
.
[8]
It
is a trite principle of our law that in the case of a final
interdict, any disputes of fact must be resolved on the basis of
the
test set out in
Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
,
recently approved and considered in more depth in Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
[3]
.
I quote from para [12]:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the papers”
[9]
The
difference between an interim and final interdict is well known.
The test for the grant of the one is quite different
to the test for
the grant of the other. Since the balance of convenience plays
no role in the grant of a permanent interdict,
such an interdict is
not usually sought on notice of motion, although of course it might
be if no dispute of fact is anticipated.
[4]
A final interdict is a final determination of the rights of the
parties to the litigation.
[10]
The Applicant’s founding affidavit is deposed to by Portia
Tshangela, an adult female director of the Applicant. A company,
as
an artificial person can act only through its agents and any person
who acts on behalf of a company must allege that he or she
is
authorized by the company to bring the proceedings. The deponent to
the founding affidavit does not state that she has been
authorized to
bring the application on behalf of the Applicant. The Respondent
questions the deponent’s authorization and
states that prior to
her resignation as a director of the Applicant there were two other
directors, namely Mr Monwabisi Bebeza
and Mr Thabo Peter Mathunjwa.
Once authorization has been placed in issue, the onus to establish
upon a balance of probabilities
that the application was duly
authorized by the Applicant’s board of directors rest upon the
Applicant.
[5]
[11]
Appended to the Applicant’s replying affidavit, again deposed
to by the said Portia Tshangela, is a copy of the registration
certificate of the Applicant. Apart from the two directors mentioned
by the Respondent, the third director is Kobane, Portia Mamapele.
Save for the name “Portia” the other name and surname do
not resemble the name and surname of the deponent to the Applicant’s
affidavits. The best evidence that an application has been properly
authorized would be provided by an affidavit made by an official
of
the company annexing a copy of a directors’ resolution.
[6]
No resolution was attached to the replying affidavit and I am not
convinced that the deponent to the founding and replying
affidavits
has been properly authorized to launch the present application.
DISPUTED
FACTS
[12]
Since defamation is a wrong done to the reputation of a person, every
person who is recognised by law as having a reputation
and whose
reputation is unlawfully injured, will have a cause of action. A
trading corporation may also sue for defamation if the
defamatory
statements was calculated to injure its business reputation or to
affect the trade of the business which it was formed
to carry on.
[7]
[13]
The Applicant must set out the words alleged to have been used by the
Respondent and must prove them. It is not necessary to
state the
exact words used by the Respondent, but it is of utmost importance to
state more or less the statements or words used
by the Respondent ‘
of
and concerning’
the Applicant in order for the court to decide on the effect
and meaning of the words. The Applicant does not disclose the
nature
of the statements allegedly made by the Respondent. Although the
Applicant alleges that the statements made by the Respondent
were
defamatory, it is a question of law whether the words complained of
are reasonably capable of conveying to the reasonable
person or
reader a meaning which defames the Applicant
[8]
.
[14]
The Respondent appended as “Annexure J” to the opposing
papers, an original handwritten note she received subsequent
to
handing out pamphlets to advertise her business. A copy of the
pamphlet was appended to the founding affidavit marked “Annexure
E1”. From “Annexure J” I quote the following
paragraph:
“
I’m
warning you because your people dish out the pamphlets of
Matsebetsebe on the que of the FNB at the expense of my name
as well
as the name of my company…”
[15]
The content of the pamphlet, “Annexure E1” does not refer
to the business of the Applicant or its directors and/or
employees.
In fact no mention is made of the Applicant. This has been conceded
by Mr Ponoane appearing on behalf of the Applicant.
The author of the
note however threatens the Respondent in the following way:
“…
Just a
reminder that the court said you should not (refrain) from talking
bad about Wealth 4 all. You should not open a business
similar to it
altogether.’
And
further:
“
I will go back
to High Court so that it closes Matsebetsebe. Also you should incur
the costs. I am advising you I am not playing.”
[16]
The Applicant must allege and prove that the statement complained of
refers to the reputation, moral character, imputing for
example
dishonesty or unethical or unprincipled behaviour by the employees or
directors of the Applicant. The Respondent denies
spreading lies,
badmouthing or defaming the Applicant. On behalf of the Respondent it
was argued that the application was brought
to intimidate and to
prevent the Respondent from conducting a business in direct
competition with the Applicant. I tend to agree
with this
observation.
Clear
right
[17]
In LAWSA
[9]
the first requisite
to be established for the granting of a final interdict is proof of a
clear right.
“
Whether an
applicant has a right is a matter of substantive law. Whether
that right is clear is a matter of evidence.
In order therefore
to establish a clear right the applicant has to prove on a balance of
probabilities facts which in terms of
substantive law establish the
right relied upon.”
[18]
Insofar as Applicant seeks a final interdict it has to prove an
unlawful state of affairs and the right to secure a permanent
cessation thereof. In saying this, an interdict is not a remedy
for the past invasion of rights, but is concerned with present
or
future infringements. By failing to state the alleged defamatory
statements made by the Respondent and in light of the Respondent’s
version that she, being aware of the order granted by this court,
severed all ties with the Applicant and has not made any unlawful
and
defamatory statements to the public regarding the business affairs of
the Applicant, the Applicant has not made out a case
for the relief
claimed in prayer 1 of the notice of motion.
[19]
The Applicant contends that the Respondent is not entitled to be in
possession of the FNB bank card and the financial books
of the
Applicant and therefore this court should order the Respondent to
hand same back to the Applicant. Respondent indicated
that the FNB
bank card is useless as her access to the Applicant’s account
has been blocked on her request. The order obtained
in under case
number 4425/2018 directed FNB bank to cancel any authorization
whereby the Respondent is allowed to deal with the
account of the
Applicant. On behalf of the Applicant it was argued that the FNB bank
card is used by the Respondent as a “marketing
tool” and
to indicate to members of the public that the business of the
Applicant has been closed down. How a cancelled bank
card can be used
to obtain these results are beyond me and I fail to understand the
reasoning. It was not necessary to obtain an
order against the
Respondent to return the FNB card to the Applicant.
[20]
The Respondent tendered the return of the financial books of the
Applicant and contends that if the return of the said books
were
requested earlier, she would have handed the books back to the
Applicant. Mr Ponoane did not understand the Respondent
to have
tendered the return of the financial books of the Applicant and has
not made contact with the attorney acting on behalf
of the Respondent
to obtain the books. Therefore it was unnecessary to obtain a court
order in this regard.
Whether
a clear right has been infringed by the Respondent
[21]
In the absence of special legal restrictions a person may freely
exercise his or her trade profession or calling and this right
has
been enshrined in Section 22 of the Constitution
[10]
of our country, unless the person has bound him or herself to the
contrary. In the business world competitors is of course subject
to
fair and honest competition and such competitive conduct will often
in one way or another lead to interference by rivals about
which he
or she cannot legitimately complain. The competition, as with all
activities, must itself remain within lawful bounds
[11]
.
[22]
The Applicant avers that the Respondent is dissuading members of the
public from investing and continuing to invest in the
Applicant’s
trading business. The Applicant furthermore contends that the
Respondent, while within the premises of the Applicant’s
business tried to persuade potential customers to invest in her
business as the Applicant’s business has been closed down.
This
statement does not make sense. The Respondent denies the allegation.
[23]
In motion proceedings the affidavits constitute both the pleadings
and the evidence and the issues and averments in support
of the
parties’ cases should appear clearly therefrom
[12]
.
The Applicant did not provide any further information regarding the
conduct of the Respondent or whether the Applicant lost any
potential
investment business due to the Respondent’s conduct. Contained
in Annexure J, referred to above is an allegation
that the Respondent
distributed pamphlets advertising her investment business to members
of the public who waited in the queue
at the FNB Bank. There is
nothing unlawful in distributing pamphlets to advertise a business.
The evidence before court is not
clear and comprehensive regarding
the unlawful conduct of the Respondent. The Applicant failed to place
any evidence before this
court to substantiate the granting of
prayers 2, 4 and 5 of the notice of motion.
[24]
These
are disputes of fact, which Applicant should have foreseen. The
authorities are to the effect that an application may
be dismissed
where a dispute of fact which cannot be resolved on paper should have
been anticipated by an Applicant. In the
present case the
Applicant could have brought an application for an interim interdict
pending an action for a permanent interdict
but he chose not to do
so.
[13]
[25]
The Applicant obtained a previous court order in similar terms to
prayer 1 of the notice of motion during July 2018. The Applicant
however, even though it is argued that the Respondent is in contempt
of court specifically in relation to this aspect, fails to
bring a
contempt of court application, but launched a further application to
obtain a similar order.
[26]
Even if I am wrong in those conclusions, I am of
the view that the Applicant has failed to satisfy the third
requirement of an interdict,
namely, that it does not have a
satisfactory alternative remedy.
[27]
Order
In
the result the application is dismissed with costs.
_________________
I VAN RHYN, AJ
On
behalf of the Applicant: Mr. M. J. PONOANE
Instructed
by: PONOANE ATTORNEYS
On
behalf of the Respondent: ADV.G S J VAN RENSBURG
Instructed
by: McHARDY & HERBST INC
(Mr
J M M Verwey)
[1]
Setlogelo v Setlogelo 1914AD 221 at 227
[2]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-G
[3]
2008 (3) SA 371 (SCA)
[4]
Hall
and Another v Heyns and Others 1991 (1) SA 381 (CPD) 395 D-E.
[5]
Griffiths & Inglis (Pty) Ltd v Southern Cape Blasters (Pty) Ltd
1972 (4) SA 249 (C)
[6]
Mall (Cape) (Pty) Ltd v Merino Ko Operasie Bpk.
1957 (2) SA
347
(C) at 352A
[7]
Dhlomo NO v Natal Newspaper (PTY) Ltd and another 1989 (1) SA
945 (A)
[8]
Le Roux v Dey
2010 (4) SA 210
(SCA) para 15
[9]
Second
Edition
VOL
11 para[397]
[10]
Constitution of the Republic of South Africa 108 of 1996
[11]
Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty)
Ltd 1991 (2) SA 455 (W) 475
[12]
Minister of Land Affairs and Agriculture v D & F Wevell
Trust
2008 (2) SA 184
(SCA) at 200 D
[13]
Hall
and Another at 397.