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[2018] ZAKZDHC 7
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Garbade v Jan Van Niekerk (4987/2016) [2018] ZAKZDHC 7 (28 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO:
4987/2016
In
the matter between:
HEIDI
GARBADE
Applicant
and
TASMYN-JAIN
VAN NIEKERK
Respondent
ORDER
(a)
The respondent is interdicted and restrained from:
(i)
unlawfully interfering with the applicant’s business;
(ii)
unlawfully casting aspersions on the applicant’s character,
personality and
business reputation.
(b)
The respondent is ordered to pay the costs of the application.
JUDGMENT
Delivered
on: 28 March 2018
Ploos
van Amstel J
[1]
On 27 May 2016 Chetty J issued a rule nisi calling upon the
respondent to show cause why an order in the following terms should
not be made final:
(a)
That the respondent be and is hereby interdicted and restrained from
intimidating, harassing,
or in any way unlawfully interfering with
the applicant and her business or in any way communicating with the
applicant;
(b)
Interdicting and restraining the respondent from casting aspersions
on the applicant’s
character and personality and the
applicant’s business reputation;
(c)
That the respondent be and are (sic) hereby forthwith interdicted and
restrained from
contacting, approaching any of the applicant’s
business clientele, sponsors and any other persons or juristic
entities having
an interest in the Gatsby Polo 2016 event scheduled
to commence on 5 June 2016.
(d)
Directing the respondent forthwith to take immediate steps to procure
that the statements,
made and published by the respondent in relation
to the applicant and her business, is withdrawn and ceases to be
published on
hellopeter.com and africacomplaints.com websites
including Facebook and any other media and social media platform.
(e)
Directing that the respondent furnish proof of explain (sic) with 3
(d) within 48 hours
from the granting of this order.
(f)
Costs reserved.
[2]
The learned judge also ordered that subparagraphs (a) to (e) would
operate as interim orders pending the return day of the rule
nisi.
The matter came before me today on the opposed roll, with the
applicant seeking the confirmation of the rule and the respondent
its
discharge.
[3]
It is a reflection on both parties that the dispute between them has
escalated to the point that the matter ends up as an opposed
application in the High Court. My impression from the application
papers is that neither of them can afford to litigate in the
High
Court, and unfortunately they will have to accept the consequences of
their failure to resolve the dispute in a mature and
sensible manner.
[4]
The applicant is Heidi Garbade, who describes herself as a
businesswoman and events organiser and coordinator. The respondent
is
Tasmyn-Jain van Niekerk, who has rendered services to the applicant
with regard to the online marketing of a particular event,
and who
claims that the applicant has not paid her in full for her services.
There is a dispute on the papers as to what had gone
wrong with the
event in question, and whether or not the respondent is entitled to
further payment. It is not necessary to resolve
this dispute as this
is not what the application is about. The applicant’s complaint
is that after the dispute arose the
respondent made numerous
defamatory statements about her and discouraged people from doing
business with her.
[5]
On 24 May 2016, when the applicant was in the process of organising
the Gatsby Polo event, the respondent posted a statement
on a
Facebook page which she had created. It was headed ‘Gatsby Polo
Shongweni’, and read as follows:
‘
A warning for business owners
and jobseekers! After a very quick look around Google, I found that
she has screwed hundred of people
out of thousands of rand! I am
still waiting for this Heidi Garbade to settle the money she owes me…
She tells me to contact
her lawyer, who refuses to respond to my
emails, messages and calls! (Who has now since emailed me but without
resolution). People
be aware – do not do business with this
woman. She is now looking for traders and corporates for the Gatsby
polo event coming
up. Scary stuff. Hold onto your money and sanity
and rather don’t get involved’.
[6]
The applicant also complains that the respondent was the author of an
anonymous ‘warning email’ on 23 May 2016,
which
circulated amongst traders, sponsors and the community at large, in
which defamatory statements are made of her, including
that she is an
expert in fraud. She says as a result numerous traders and sponsors
have withdrawn from the event.
[7]
The respondent admits that she posted the statement on Facebook. She
denies however that she was the author of the anonymous
email. On 24
May 2016, which was the date on which the Facebook post appeared, the
applicant’s attorney wrote to the respondent
as follows:
‘
Our client advises that you
have taken extraordinary steps to publicly defame and sabotage her
Polo event set down for June 2016.
This has been done via social
media and other public platforms. Our instructions are to request
that you remove these unlawful
postings within 24 hours failing which
our client will proceed to the High Court for an urgent interdict
preventing you from persisting
in your conduct together with a
criminal charge of crimen iniuria.’
[8]
The respondent’s response on the same day read as follows:
‘
So lovely to hear from you
considering that you have ignored previous documents and
correspondence sent to you. Please be advised
that your client has
failed to pay monies owing to me as well as various other members. I
have spoken to both an attorney as well
as the police regarding the
links and personal experience I shared with others. Should your
client settle the amounts she owes
me and others I will then remove
the posts. I am under the impression that she will not do this so I
will then be seeing you in
the high court. FYI – Kindly note
that I did not use obscene or racially offensive language or
gestures. I simply shared
many links from many different people on
many different sites so that people know what they are getting
involved (sic) should they
choose to. Bring it on Heidi – I
have all my ducks in a row!!! Do you????’
[9]
Although the respondent’s response suggests that the Facebook
post was not the only statement that she published about
the
applicant, I cannot find on the papers, and without oral evidence,
that the respondent was the author of the so-called ‘warning
email’. In the circumstances of the case, however, I do not
think that this really matters. In the Facebook post, which she
admits she was responsible for, she warns business owners and
jobseekers not to do business with the applicant. She says the
applicant
has ‘screwed’ many people out of thousands of
Rands. One of the meanings of the word ‘screw’ in the
Oxford
South African Concise Dictionary is ‘cheat or swindle’.
In the present context the statement in the post can only mean
that
the applicant has cheated people out of their money. The respondent
then advises people to ‘hold onto’ their money
and sanity
and rather not get involved with the applicant.
[10]
It is by now generally accepted that the posting of a defamatory
statement on social media, such as Facebook, can constitute
publication for the purposes of defamation. See
Heroldt
v Wills
2013 (2) SA 530
(GSJ);
Isparta
v Richter and Another
2013 (6) SA 529
(GNP). People need to be aware that the publication
of a defamatory statement concerning another person on social media
is not
excused by the fact that the statement is true. It also has to
be in the public interest, which is not the same as being
interesting to the public, as Corbett CJ pointed out in
Financial
Mail (Pty) Ltd v Sage Holdings Ltd
[1993] ZASCA 3
;
1993 (2) SA 451
(AD) at 464C.
[11]
I consider the contents of the Facebook post defamatory of the
applicant and an unlawful interference with her business. The
respondent’s
defiant written response seems to me to make it
clear that her attack on the applicant was aimed at ensuring payment
of what she
claimed was owing to her, and had nothing to do with the
public interest or fair comment, as was suggested by her counsel.
[12]
In any event, the respondent has not shown on the papers that the
allegations in her Facebook post are true. It is one thing
to say
that someone has not paid her creditors – it is an entirely
different thing to say that someone has cheated or swindled
‘hundred’
of people out of thousands of Rands and cannot be trusted to do
business with.
[13]
There was therefore no justification for publishing these statements.
Even if they were true, it is difficult to see how they
could have
been in the public interest or fair comment in the context of the law
of defamation.
[14]
Counsel for the respondent submitted that it will not be appropriate
to confirm all of the rule nisi, as some parts of it were
not proved,
such as, for example, the reference to her intimidating or harassing
the applicant. I agree, and I will only confirm
those parts which I
regard as appropriate. The applicant was nevertheless substantially
successful and is entitled to her costs.
[15]
The order that I make is as follows:
(a)
The respondent is interdicted and restrained from:
(i)
unlawfully interfering with the applicant’s business;
(ii)
unlawfully casting aspersions on the applicant’s character,
personality and
business reputation.
(b)
The respondent is ordered to pay the costs of the application.
________________
Ploos
van Amstel J
Appearances:
For
the
Applicant
:
N
Manilal
Instructed
by
:
T Giyapersad Incorporated
c/o Messenger
King
Durban
For
the Respondents
:
M Sponneck
Instructed
by
:
Janssens & Associates Attorneys
c/onM B Pederson &
Associates
Durban
Date
Judgment Reserved
:
22 March 2018
Date
of Judgment
:
28 March 2018