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2017
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[2017] ZAFSHC 119
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Bainsvlei Lodges (Pty) Ltd t/a Bains Game Lodge and Others v Lessing and Another (6215/2016) [2017] ZAFSHC 119 (27 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6215/2016
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
BAINSVLEI
LODGES (PTY) LTD T/A BAINS
GAME
LODGE
1
St
Applicant
SANGIRO
LODGE (PTY)
LTD
2
nd
Applicant
BASFOUR
2532 (PTY)
LTD
3
rd
Applicant
MARIUS
STRYDOM
4
th
Applicant
and
CHRIS
LESSING
1
st
Respondent
SIMPLETHNIC
CC
2
nd
Respondent
HEARD
ON:
23 DECEMBER 2016
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
27 JULY 2017
I.
INTRODUCTION
[1]
The only issue to be adjudicated at this stage of the proceedings is
who to be held liable for the costs incurred as a result
of an urgent
application brought by the applicants. In order to exercise my
discretion pertaining to costs, it is necessary
to deal with the
evidence presented to me.
II.
THE PARTIES
[2]
Four applicants feature in this application, to wit Bainsvlei Lodges
(Pty) Ltd t/a Bains Game Lodge, Sangiro Lodge (Pty) Ltd,
Basfour
2532 (Pty) Ltd and Marius Strydom (“Strydom”), cited as
first to fourth applicants respectively.
Strydom is the sole
director of first and second applicants and a co-director of third
applicant. The Bains Game Lodge is
situated
on
the old Kimberley Road
to the west of the
Bloemfontein
City Centre. Sangiro Lodge is situated to the north of the
Bloemfontein City Centre along the extention of Eeufees
Road, next to
the N1 freeway. Third applicant’s principal place of
business is at the Bains Game Lodge. Adv AP
Berry appeared for
applicants, instructed by Rossouws Attorneys.
[3]
Mr Chris Lessing (“Lessing”) is cited in his personal
capacity as the first respondent and his close corporation,
Simplethnic CC, is cited as the second respondent. Adv LA Roux
appeared on behalf of the two respondents, instructed by Peyper
Buitendag Inc.
III.
THE APPLICATION
[4]
On 21 December 2016 an application was issued in terms whereof
applicants gave notice of their intention to launch an urgent
application on 23 December 2016.
[5]
Prayer one contains the usual prayer for condonation for
non-compliance with the rules of court and prayers two and three read
as follows:
“
2.
That a
RULE NISI
be issued, calling upon the Respondents to show cause (if any) on
Thursday, 09 February 2017
at
09:30
,
or as soon as counsel may be heard, why a final order in the
following terms should not be granted:
2.1
The 1
st
Respondent is directed and ordered to remove all
references to the 1
st
, 2
nd
and 4
th
Applicants, from his Facebook Page (CHRIS LESSING), the Facebook
Group (BLOEMFONTEIN BUSINESS – BAD AND NON PAYERS), the
Facebook Group BLOEMFONTEIN – KOOP/RUIL/ADVERTEER, all the
other profiles with whom he shared these posts on FACEBOOK, any
other
social media, webpage, website, and/or any internet based platform;
2.2
The Respondents are interdicted and restrained from publishing or
posting any information
pertaining to the 1
st
to 4
th
Applicants on FACEBOOK, and other social media, webpage, website,
and/or any internet based platform;
2.3
The Respondents pay the costs of the Application, the one paying the
other to be absolved.
3.
The Relief set out in prayers 2.1 and 2.2 shall serve as an interim
interdict
with immediate effect, pending the finalisation of the
matter.”
IV.
THE EVENTS ON 23 DECEMBER 2016
[6]
On the morning of 23 December 2016 and just before the matter was to
be heard, respondents filed an answering affidavit deposed
to by
Lessing.
[7]
Applicants’ counsel indicated that they were prepared to pursue
the application without filing replying affidavits.
[8]
I entertained counsel’s arguments on behalf of the parties who,
due to the urgency of the matter and lack of time did
not present me
with written heads of argument. I indicated to them during
argument that it might be a convenient matter to
be settled, bearing
in mind that money was apparently due and payable to second
respondent where after I adjourned for counsel
to obtain
instructions.
[9]
I was later informed in chambers that the following agreement was
reached which could be made an order of court which I did:
“
1.
Second respondent shall immediately issue an amended invoice to
Silkblaze 11, trading as CSN (Christo Strydom Nutrition).
2.
Payment of the invoice shall be made
within 24 hours of receipt of the invoice by means of electronic
transfer.
3.
The posts pertaining to applicants
placed by respondents on social media shall be removed immediately.
4.
No further posts pertaining to
applicants shall be posted by respondents.”
[10]
The parties could not reach an agreement in respect of the costs of
the application and requested me to adjudicate same, although
not on
an urgent basis. They undertook to file written heads of
argument. I confirm that I have received these heads
of
argument for which I thank counsel.
V.
COMMON CAUSE FACTS
[11]
The following facts are common cause:
1.
An employee of Sangiro Lodge, Mr JP
Kruger, requested a quotation for security guard uniforms from second
respondent, represented
at all times by Lessing.
2.
Second respondent delivered security
guard uniforms and other equipment in the amount of R12 271.64
to Sangiro Lodge at its
aforesaid business address for which it
issued an invoice to Sangiro Lodge on 4 November 2016.
3.
Delivery was accepted, but no payment
was forthcoming and when the application was heard on 23 December
2016 the amount was still
outstanding.
4.
On or about 25 November 2016 Lessing
placed posts about non-payment of an account by first and second
applicants on Facebook, but
after a telephonic conversation between
him and fourth applicant, the posts were removed.
[12]
However, on 29 November 2016 and again on 2 December 2016 further
Facebook postings were created by Lessing, also using the
logo of
second respondent. These postings were created on the Facebook
page of Lessing and Bloemfontein Businesses - Bad
and Non-payers.
No doubt many people would be able to access the Facebook accounts
and take cognisance of what was posted.
Several postings by
third parties appear on the documents attached by the applicants,
e.g. a certain Mac Fourie posted the following:
“
Ag
nee SIES Bains Lodge!!!! ‘n Prokerower met regskoste te gaan
sien oor ‘n paar uniforms. ‘n Groot haan
kraai met
kronkel stap op sy eie mishoop lyk dit nou. Oijoijoi!
Grootmanskap is ‘n pillose siekte. Betaal broer
betaal.”
[13]
Portions of the first posts of 29 November 2016 are quoted:
“
Ek
wil graag dit baie duidelik maak dat Bains Lodge weier om Simplethnic
Designs CC te betaal nadat die rekening 30 dae uitstaande
is!
Hiermee rig e kook (sic) ‘n waarskuwing aan ander om eerder
versigtig te wees in die vervolg.
Dit
was ‘n eenvoudige order vir 4 stelle uniforms vir Sangiro Lodge
wat besig is om op te grader (sic) …
Ek sal
die post SLEGS afhaal sodra ek betaling ontvang!
Tot
dan weier ek om enige gesprek met hulle te voer, en los ek die post
op Facebook.”
[14]
Two untruths appear from the quoted portion. The invoice of
second respondent was issued to Sangiro Lodge, a totally
different
business and legal person from Bains Game Lodge and situated
kilometres from the latter and therefor, the suggestion
that Bains
Game Lodge was bound to pay, but refused, is a lie. Secondly,
at that stage, i.e. on 29 November 2016, payment
was not due as a
period of thirty days had not expired as the invoice is dated 4
November 2016.
[15]
On 2 December 2016 Lessing posted the following, bearing in mind that
several people responded to the posts:
“
Ek
raai almal aan wie hy (
the
reference is clearly to Marius Strydom of Bains Lodge)
ook
nog geld skuld om Pieter Peyper by Peyper en Buitenbach te kontak en
die ‘n class action te maak of Rossouw Prokureurs
(wie hy tans
gebruik) ek verneem hy doen dit as ‘n gewoonte maar mense is te
bang om enigiets te doen!”
[16]
Again on 2 December 2016, but a few hours later, Lessing posted the
following on his Facebook page:
“
Update:
Bains Lodge saak - Hulle (Marius Strydom) weier absoluut om betaling
te maak, die volgende stap is ‘n dagvaarding
en dan sal die
Balju maar verder intree om betaling te vorder. WEES GEWAARSKU
indien enigiemand steeds van plan is om besigheid
met hulle te doen!”
[17]
Applicants’ attorney requested Mr Pieter Peyper, representing
respondents, in writing to remove the posts before the
end of
business on 8 December 2016, failing which the court would be
approached. However the posts were removed on Monday
12
December 2016 only and at a stage when Strydom was already consulting
with counsel in order to launch an urgent application.
[18]
At 16h33 on Thursday 15 December (after business hours), the day
before the long weekend, Lessing again created posts on the
Facebook
page of Bloemfontein Business - Bad and Non-payers and I quote:
“
BAINS
GAME LODGE
(SANGIRO LODGE)
PAYMENT DUE”
Underneath
these followed the logo of second respondent. The same evening
Lessing changed his profile picture on his Facebook
page to display
the same message as posted on the Facebook group of Bloemfontein
Business - Bad and Non-payers.
[19]
After the long weekend preparations were made for the urgent
application referred to
supra
.
VI.
RESPONDENTS’ RESPONSES
[20]
As mentioned, Lessing deposed to the answering affidavit. He
not only ferociously attacked the applicants, but simultaneously
sought sympathy from the court and I quote:
“
7.
I find the actions of the Applicants to be distasteful. I do
know that the Applicants, as entities
and the Fourth Applicant
personally is financially very successful and well off. Their
attitude is that to, and I refer to
the First, Second and Fourth
Respondents (sic), rather abuse the processes of Court to intimidate
me with High Court applications
than pay the amount of
R12 271.64
due to the Second Respondent. It is facetious and obstructive.
8.
The Second Respondent operates its business on a much smaller scale.
I am the only
employee of the Second Respondent. I can accept
that the amount of
R12 271.64
is a negligible amount to
the Applicants. It however represents a substantial amount of
money to the Second Respondent.
…
10. The
security equipment and uniforms as set out in annexure “
BG1
”
(that is the invoice issued to Sangiro Lodge) have already been
delivered to the First and Second Applicants.”
[21]
Lessing insisted that the posts were the truth and in the public
interest. Also, as a small company and supplier he was
under a
duty to warn other suppliers in dealing with applicants. He
indicated that he would remove the post on receipt of
payment and
that he would even go so far to state the he had received payment and
that the matter between him and applicants had
become settled.
[22]
Lessing averred that in the past he supplied equipment to Sangiro
Lodge and although invoices were issued to Sangiro Lodge,
Bains Game
Lodge settled those invoices. This version is not denied due to
the failure to file a replying affidavit.
No doubt, the
uniforms and equipment were delivered at the Sangiro Lodge premises
and an invoice was issued to Sangiro Lodge. On
Lessing’s
version, which has to be accepted, he was unaware of the entity,
Silkblaze 11. He never dealt with Silkblaze
11.
VII.
LEGAL PRINCIPLES
[23]
Two different rights contained in the Bill of Rights come into play
in casu
. Firstly, there is the right to human dignity
provided for in s 10 of the Constitution which reads as follows:
“
Everyone
has inherent dignity and the right to have their dignity respected
and protected.”
The
second right, i.e. freedom of expression, is set out in s 16 of the
Constitution.
Section
16(1)(b), which might be relevant
in
casu
provides for “
freedom
to receive or impart information or ideas.”
[24]
One’s understanding of s 16 can never be unlimited as the
rights of other persons must always be considered as well.
No
one is guaranteed unlimited freedom of speech and/or allowed to speak
freely about untruths. In
Khumalo
and others v Holomisa
2002(5) SA 401
(CC) at para [26] the Constitutional Court, whilst quoting with
approval from the judgment of Corbett CJ in the
Argus
Printing & Publishing
judgment
referred to
infra
,
considered the constitutional value of human dignity and stated it to
be a recognised principle
“
that
the law of defamation lies at the intersection of the freedom of
speech and the protection of reputation or good name.”
It
went further as follows:
“
Under
our new constitutional order, the recognition and protection of human
dignity is a foundational constitutional value.”
[25]
Defamation has been defined as the intentional infringement of
another person’s right to his good name. See: Neethling,
Potgieter and Visser,
Law of Delict,
7
th
ed at
352. It is also described as the wrongful and intentional
publication of defamatory material relating to the complainant.
See: Loubser
et al
,
The Law of Delict in South Africa,
2
nd
ed at 340.
[26]
It is trite that legal
personae
such as the first and second
applicants have a right to their good name and unimpaired reputation
and that the
dignitas
of companies can be infringed as well.
S
ee
: G A Fichardt Ltd v The Friend Newspapers Ltd
1916
AD and
Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk
1979 (1) SA 441
(AD)
at 455E. It is also trite that the
business reputation of businesses such as the first and second
applicants should be protected
by our courts. See:
Dhlomo NO
v Natal Newspapers (Pty) Ltd
1989 (1) SA 945
(AD) at 952.
[27]
In a unanimous judgment Corbett CJ stated in
Argus
Printing and Publishing Co Ltd and Others v Esselen’s Estate
1994 (2) SA 1
(AD) at 25B-E
that
freedom of expression is not and cannot be permitted to be totally
unrestrained as the law does not allow the unjustified
savaging of an
individual’s reputation. The right of freedom of
expression enjoyed by all persons must yield to the
individual’s
right, which is just as important, not to be unlawfully defamed.
As mentioned
,
in
Khumalo v Holomisa supra
the
Constitutional Court adopted this approach.
[28]
A defamatory publication which is untrue, or only partly true, can
never be in the public interest and there can be no justification
for
the publication of untruths. See:
Modiri v Minister of
Safety and Security
2011 (6) SA 370
(SCA) at para [22]
.
See also the judgment of Hefer JA in
National Media Ltd and
others v Bogoshi
1998 (4) SA 1196
(SCA) at 1212 H-J.
[29]
Fair comment as a ground of justification which may negate the
prima
facie
wrongfulness of a defamatory statement can only be relied
upon if the comment is based on true facts. It must be clear
that
the statement in question was a comment – not a fact –
that it was fair, that the allegations of fact commented upon
were
true and accurately stated and that the comment was about a matter of
public interest. See:
Delta Motor Corporation (Pty) Ltd v
Van der Merwe
2004 (6) SA 185
(SCA) at paras [12] and [13]
.
VIII.
EVALUATION OF THE EVIDENCE
[30]
After having read the papers I believed that the matter could be
solved amicable as it was clear that second respondent delivered
equipment to Sangiro Lodge and even if the invoice was issued to the
wrong entity, that it should be paid as there was no dispute
about
the delivery of the equipment and the amount due. Therefore I
suggested to the parties during argument to try and settle.
[31]
Although the businesses of first and second applicants are situated
far apart as mentioned
supra
, it is clear that Strydom is
involved in both these businesses. Strydom’s father, Mr
Christo Strydom who also conducts
a business from the property of
Sangiro Lodge, albeit under the name of Silkblaze 11, trading as CSN
(Christo Strydom Nutrition),
is involved in the management and
operations of both businesses. Whatever Lessing understood and
experienced, the fact remains
that from a legal perspective the
Strydom group of entities cannot be regarded as one legal entity for
tax, VAT or other commercial
purposes.
[32]
There is no doubt in my mind that respondents, through the actions of
first respondent, posted untruths on Facebook.
Respondents
relied on the truth of facts posted and that this was in the public
interest. The issue is thus not whether fair
comment was made
in respect of true facts. In doing so, Bains Game Lodge,
Sangiro Lodge and Strydom’s good name and
reputation were
impaired and their
dignitas
infringed. The defences,
which have to be proven by defendants, are not valid and cannot
succeed. Wrongfulness in particular,
a requirement for a
successful action based on defamation, has been proven. Whether
or not Bains Game Lodge paid invoices
on behalf of Sangiro Lodge in
the past is immaterial. The invoice was issued to second
respondent’s debtor, Sangiro
Lodge and Sangiro Lodge had to pay
if it was satisfied that the goods were purchased by it and that
delivery had taken place.
The invoice is an invoice for
VAT purposes and second respondent is clearly a vendor for purposes
of s 7 of the Value-Added Tax
Act, 89 of 1991. It would be
extremely difficult, if not impossible, for Bains Game Lodge, if it
was registered for VAT purposes,
to settle the invoice and claim back
the tax paid, or even to claim the expense as a deduction for income
tax purposes. There
is nothing untoward to insist on a correct
invoice.
[33]
If the postings are properly considered, respondents had one thing in
mind only and that was to extort Bains Game Lodge to
pay the amount
of just over R12 000. Instead of instituting action in the
Small Claims Court, as would have been expected
of a creditor with
such a small claim, respondents resorted to tactics that have now
become fashion. It is just so easy to
sit before one’s
computer or use one’s cellphone to create postings within a few
minutes that will reach thousands
of people within seconds and which
may have serious consequences for innocent members of society.
People like Lessing must
be made aware that such actions cannot be
countenanced. An undertaking was given that the postings would
be removed immediately
on receipt of payment. This amounted to
blackmail. If it was really in the public interest to create
the postings,
there would be no reason to give such an undertaking.
No doubt, respondents knew that the wealthy Strydom family (Lessing’s
perception) and/or their group of companies might have elected to
settle the invoice on being made aware of the postings.
Obviously this did not happen and applicants eventually decided to
approach the court.
[34]
Applicants have proven all requirements for a final interdict.
As indicated, they proved a clear right. Damages
might clearly
follow if the defamatory posts were allowed to remain on social
media. Applicants had no other satisfactory
remedy, but to
approach the court. There was no way in which the matter could
be solved, although, with the benefit of hindsight,
settlement was
indeed possible if sanity prevailed as indicated
supra.
The initial postings were removed, but respondents’ unlawful
actions proceeded thereafter. The latest postings
were created
by respondents after business hours and just before the long weekend,
well-knowing that it might be very difficult
for applicants to obtain
the services of lawyers in order to seek urgent relief over the
weekend.
[35]
The award of costs is in the discretion of the presiding officer
although the general rule is that the successful party is
entitled to
his/her costs. In exercising my discretion I take cognisance of
the fact that applicants and/or their attorneys
could have informed
respondents that the invoice was incorrectly issued to the wrong
party, insisted on a correct invoice and offered
to make payment
immediately on receipt of the correct invoice. They did not act
accordingly, but this is exactly what transpired
afterwards upon my
intervention. Therefore, applicants should to some extent also
be blamed for the costs incurred and they
should not be granted their
full party and party costs.
IX.
ORDER
[36]
I make the following order:
1.
First and second respondents shall pay
50% of applicants’ costs of the application, jointly and
severally, the one to pay,
the other to be absolved.
_____________
JP
DAFFUE, J
On
behalf of applicants: Adv
AP Berry
Instructed
by:
Rossouws Attorneys
Bloemfontein
On
behalf of respondents: Adv LA Roux
Instructed
by:
Peyper Buitendag Attorneys
Bloemfontein