About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 200
|
|
Flocutt (Pty) Ltd v Eisenberg (3592/2016) [2016] ZAFSHC 200 (20 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
I
N
THE
HIGH
COURT
OF
SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTE
I
N
CASE
NO : 3592/2016
In
the matter between :
FLOCUTT
(PTY)
LTD
Applicant
and
JOACHEM
EISENBERG
Respondent
CORAM
:
MURRAY AJ
HEARD
ON
:
1 SEPTEMBER 2016
JUDGMENT
BY
:
MURRAY AJ
DELIVERED
ON
:
20 OCTOBER 2016
[1]
In an application for an interdict the Applicant asks that the
Respondent be directed to remove certain posts, directed at the
Applicant's alleged unsavoury business practices, from the Social
Media sites
Facebook
, Hellopeter.com
and
reportacrime.co.za
and that the Respondent be
interdicted from publishing on the internet or in the printed media
any untrue allegations regarding
the Applicant and its business
practices.
[2]
In three posts on the abovementioned Social Media sites, the
Respondent leveled various allegations at the Applicant,
Flocutt (Pty) Ltd
("Flocutt"),
and at its
sole director, Ms Belinda de Beer
("Belinda").
Belinda avers that the posts are defamatory and are harming not
only her good name but also the reputation of her business and are
scaring off potential customers or causing existing customers to
cancel their orders.
[3]
The Respondent opposes the application, denying that the posts
are defamatory, and averring that the
"comments"
are
"reasonable, essentially and
materially
true and
in the
public
interest",
and therefore justified. The
Respondent in fact avers that
"I
stated what
happened
to me
as a
fact. I cannot be
blamed
if my experience
of bad
service,
creates
the
impression the
Applicant alleges".
He avers furthermore, that
"my experience and statement
reflects
the truth.
The mere fact that
the Applicant
does not like the truth being published
does
not
make
my
statements
defamatory".
He
continues:
"My
understanding
is
that
Sec
16
of
our
Constitution guarantees
my
rights
to
freedom of
speech. I
should
surely
be
allowed to speak freely about bad service and my experience".
[4]
Advocate S Raubenheimer appeared for the Applicant and Mr S de Beer
for the Respondent.
[5]
Defamation
has
been
defined
as
the
intentional
infringement
of another
person's
right
to
his
good
name
[1]
,
or
as
a
wrongful
and
intentional
publication
of
defamatory
material
that
refers
to
the
complainant.
[2]
For
defamation
to
exist,
there
must
have
been
publication
of the
posts;
their
contents
must
have
impaired
the
Applicant's
reputation
or good name; they must have wrongfully infringed the Applicant's
personality
right to
reputation;
and the
Respondent
must
have
had
the
intention
(animus
iniuriand
i
)
to
impair
the
Applicant's
reputation.
[3]
[6]
I
t
is trite that
not only
private
individuals,
but
also
legal
persona,
such as the Applicant in
this case,
have a right
to their
good name and unimpaired reputation
[4]
and
that
the
dignitas
of
companies can
also
be
infringed.
It is
trite,
furthermore,
that
the
business
reputation
of
trading
corporations
may
be
protected
by
courts.
[5]
Artificial
persons, like
the
Applicant,
need
not
prove
actual
financial
loss or prejudice
-
only
that such
loss
or
prejudice is likely.
[6]
[7]
Normally
an
Applicant
bears the
onus to
establish
that
the
publication
of defamatory material that refers to the Applicant has infringed his
right to his good name or reputation.
[7]
The Applicant
has to
prove,
furthermore,
that the
Respondent
was
responsible
for
the
publication.
[8]
The
Respondent
then
bears
the
onus
of
rebutting
two
presumptions,
namely
those
of
wrongfulness
and
intention, by establishing a defence. His
failure to
do so, results in liability.
[9]
[8]
In casu
there is neither a dispute about whether the
Respondent indeed published posts on
Facebook, Hel/opeter.com
and
repottacrime.co.za,
nor about whether he
intended to do so. He admits that he did. What he denies is that the
posts were defamatory, wrongful or unjustified.
[9]
It
is
important to note
that not
only a person
from whom a
defamatory remark
originated
is
in
principle
responsible
for
its
publication,
but also
any other
person,
who
repeats,
confirms,
or
even draws attention to it
[10]
.
That is
what the
Respondent in effect
did in this
case by
repeating allegations
in and by
relying on and referring
to
other
people's
internet
posts
regarding
Flocutt,
and even
providing his cell phone number for reference to other posts.
I
t
i
s
no
excuse
to
aver
that
the
information
was
already
in
the public
domain
[11]
as was the case in
Mthembi-Mahan
yele
v Mail
&
Guardian.
[10]
Where
internet
posts
are
concerned,
not
only
the
person
who posted
the
allegations
but
also
the
internet
host,
the
network
provider
and the
service
provider
[12]
may
be sued for
defamatory
posts, as happened in
Tsichlas
v Touchline Media (Pty) Ltd
[13]
on
which
Mr De
Beer
on behalf
of
the
Respondent relied, but
which is
distinguishable from
the
present
case
precisely
because
that
application was
aimed
not at the
person who
made and/or
repeated
the
allegations,
but
at
the
person
or
entity
responsible
for placing
and/or
allowing
other
people's
posts.
The
Broadcasting
Act
is
not applicable
to the
Respondent
who
is
not a
part
of the
media,
but
merely
a
private
citizen
who
took
it
upon
himself
to 'warn'
others
against
the
Applicant.
[11]
Contrary to private citizens, the mass media has an obligation to
provide citizens both
with
information and
with the
platform for the
exchange of
ideas.
As
"primary agents of
the
dissemination of
the
information
and
ideas
.
.
. they have
a
constitutional
duty
to
act
with
vigour courage, integrity and responsibility".
The media
has been cautioned
to be
scrupulous
and reliable in
the
performance of
their
constitutional obligations.
The
Constitution protects
the
media
in
the
performance
of their
obligations
to
the
broader
society
principally
through
the
provisions
of
Section
16.
[14]
[12]
Section 16(1) of the Constitution provides that :
"Everyone
has the right to freedom of expression, which includes:
a.
Freedom of the press and other media;
b.
Freedom to receive or impart information or ideas;
c.
Freedom of artistic creativity; and
d.
Academic freedom and freedom of scientific research."
[13]
However,
although
freedom
of
expression
is
fundamental
to
our
democratic
society, it
is not a paramount value.
I
t
must be construed
in the
context
of
other
values
enshrined
in
the
Constitution
[15]
.
In
particular the values of human dignity
.
.. In
that
regard, it has long been recognised
that the
law
of
defamation lies
at
the
intersection
of
the
freedom
of
speech
and
protection
of
reputation or
good
name.
As
Corbett
CJ
[16]
said :
"I
agree,
and
I firmly
believe,
that
freedom
of
expression
and
of the
press are potent and indispensable
instruments
for the creation
and
maintenance of
a
democratic society, but it is
trite that
such
freedom is
not,
and cannot
be
permitted to be, totally
u
nrestrained.
The law does
not
allow
the
unjustified
savaging
of an
i
individual’s
r
eputation.
The right
of
free
expression
enjoyed
by all
persons,
including
the press,
must
yield
to
the
individual's
r
ight,
which
is
just as
important,
not to
be
unlawfully d
efamed.
I
emphasize
the word
"unlawfully"
for, in
striving
to
achieve an
equitable
balance
between
the
right
to speak
your mind and
the right
not
to
be harmed by
whatever
another
says about you, the law
has devised
a number of defences, such
as
fair
comment,
justification
(i.e.
truth
and
public
benefit)
and privilege,
which if
successfully
invoked
render
lawful the
publication
of
matter
which
is
prima
facie
defamatory."
[17]
(my emphasis]
[14]
In
Solidarity
v SABC
[18]
the Court stated that, given the
breadth of
the right
to
freedom of
expression
and
"the
right
of the public to be
informed",
it
is
clear
that
particular
focus
should
be
placed
on
ensuring
that
accurate
information
is broadcast to the public
...
To
that
end, all journalists
have
ethical and
constitutional
obligations
which they
must at least aspire to, which are found in the !CASA
Code
of
Conduct;
the BCCSA Code; and
the
Press
Council
Code
which
circumscribes the
Ethics
and
Conduct
for
South
African
Print and
Online
Media.
Both
the
!CASA Code
and the
BCCSA
Code state that
"news
must be reported truthfully,
accurately
and
fairly".
They
further provide
that
the
news
must
be
"presented
in the correct context and in a fair manner, without intentional or
negligent departure from the facts, whether
by : distortion,
exaggeration, or misinterpretation; material omissions; or
summarisation"
[15]
These duties have also
been ascribed to
journalists
in
the
Constitutiona Court judgment
Khumalo
and Others v Holomisa
[19]
The
media relies
on
freedom of
expression
and must foster it. In
this sense
they are both bearers of rights and bearers
of
constitutional
obligations
in
relation
to
freedom
of
expression.
As
Joffe
J
said
in
Government
of
the
Republic
of
South
Africa
v
Sunday Times
Newspaper
and
Another
[20]
:
"It
is the function of
the
press
to ferret out
corruption, dishonesty and graft wherever it may occur and to expose
the perpetrators. The press must reveal disorhonest
ma!- and inept
administration..." [my emphasis]
[16] The
significant and obvious difference between those cases, on which Mr
De Beer for the Respondent relies, and the facts in
this case, is
that the Respondent is not part of the media. He is not a journalist.
He is neither subject to, nor protected by
the abovementioned codes
of conduct. He is not protected by the Electronic and Communications
and Transactions Act, 25 of 2002,
either, which Act provides for the
protection of so-called
"service providers"
who are
regarded as conduits rather than as principles in the dissemination
of information. The Respondent
in casu
is not a service
provider. On all evidence in the papers before the Court he is the
principal creator/repeater of the information
in the posts, and is
not entitled to the protection afforded by the Act to service
providers. He does not have an unfettered right
to freedom of speech.
It is trite that the s 16 right to freedom of speech is not
unlimited.
[17]
To determine
whether
the
Respondent's
remarks are
prima
facie
wrongful
an objective two-stage enquiry must be
followed.
First of
all
the
Court needs
to
establish
the
ordinary
meaning
of
the
relevant posts, alternatively whether there is
an
innuendo, in
other
words
whether
the
posts
imply
another
meaning
than
what
is
expressly stated.
[21]
Secondly,
it needs to determine whether that
meaning
or
innuendo
is
defamatory.
[18]
The test
is whether
in the
opinion
of the
reasonable
person with
normal intelligence and
development
the reputation of
the person
I
business
concerned,
in this
case
Belinda
and
Flocutt,
has
been
injured.
[22]
If
it
has,
the
posts
are
defamator
y
[23]
and
prime
facie
wrongful
as against
Belinda and
Flocutt,
unless the
Respondent
can
prove
a
ground
of
justification
which cancels
the
wrongfulness.
In
other
word,
unless
the
Respondent
rebuts
the
prima
facie
wrongfulness
of
the
comments
by
establishing
that
they
were
justified.
[24]
[19]
In casu
the
Respondent attempted to
justify his
posts by relying on his Constitutional
right to
freedom of speech and by averring that his
posts were
the truth
and
in the
public
interest.
According
to
Neethling
et
al,
though,
it is not
an element
of
defamation that a defamatory
allegation
needs
to
be
false
[25]
since
even
true
defamatory
words can be actionable.
[26]
The defence of truth and public
benefit
operates
only
in
circumstances
where
a
Respondent
makes factual
allegations
(not
comments):
a statement
is either
true or not true,
irrespective
of what
it
might have been meant to convey.
The truth,
therefore,
is a
matter
of fact
and
needs
to
be
proved
just
like
any
other
factual
allegation :
by
providing
evidence
to
that
e
ffect.
[27]
The
Applicant
avers that his
statements
are
factually
correct. He
therefore
needs to provide reliable proof that
they
are.
The
background:
[20]
The Applicant is registered with the Companies and Intellectual
Property Commission as a private company with one active director,
Belinda de Beer. Allmotive Trading
("AMT")
was
a company of which Belinda's sister, Samantha de Beer, was one of the
two directors, the other one being their grandmother,
Barbara. AMT
has been liquidated. Although both companies traded in automotive
parts, they did so from two different shops in a
retail centre which
houses five different shops at 20 Cable Road, Dundee, in
KwaZulu-Natal. Belinda and Samantha's father, Malcolm
de Beer, used
to own a business, Dynamite Diesel, which was once the subject of a
Carte
Blanche
investigation.
[21]
It is not in dispute that the Respondent has never had any business
dealings with Flocutt and that the allegations in the three
posts
therefore do not stem from his personal experience. The basis for his
allegations, rather, is that he ordered a Nissan FE6
cylinder head
from AMT during November 2015 for R15,000.00. He paid the full amount
prior to delivery. According to him, when he
informed AMT that the
cylinder head was cracked, returned the unit and requested that it be
replaced, Samantha de Beer telephonically
undertook to do so, but
never did.
[22]
From two applications annexed to his opposing affidavit, it appears
that the Respondent harassed both Samantha and her sister
Belinda to
the point that they instituted proceedings against him in the Glencoe
Magistrates Court under the Protection of Harassment
Act, 2011 in May
2016. Both sisters filed affidavits in support of the said protection
proceedings. From Samantha's affidavit it
appears that when AMT
Components refused to refund Genuine Motors to which the Respondent
is connected, because a different cylinder
head was returned to them
or, alternatively, the head was so badly damaged that it wasn't
recognisable as the same one they had
sold to Genuine Motors, the
Respondent started to complain and defame AMT Components on the
website known as
"Hello
Peter",
as
well as to harass her and her family members on the same website. She
stated under oath that the Respondent has, on numerous
occasions,
contacted her and used foul vulgar and abusive language to express
his unhappiness.
[23]
She stated that he also threatened to send
people to AMT Components to "sort us out". She annexed
to
her affidavit the posts about AMT which Respondent placed on
hellopeter.com
on 10 May 2016 where he stated :
"This
company and Samantha de Beer
as
well
as
Belinda
and
Dewald
situated
in
Dundee
will
defraud
you
.
You
will not receive
any items
or items is
damaged. They
will
not
refund
you. Contact
me
on
[0....]
prior
to doing any dealing with these people".
On 12 May 2016 he posted on
reportacrime.co.za
regarding
AMT a similar post to the one that he has now posted regarding
Flocutt. The annexures to his opposing affidavit preceding
Samantha's
affidavit, namely emails, order forms and letters and which were
presumable annexed to prove his allegations against
Flocutt, are all
with reference to his dealings with AMT and not with Flocutt.
[24]
Belinda, as the Applicant's sole director, also filed protection
proceedings against the Respondent in the Glencoe Magistrates
Court
on 13 June 2016, which proceedings are annexed to his opposing
affidavit. Belinda also states under oath that the Respondent
began
to use vulgar language towards her on the telephone and called her a
variety of vulgar names. She alleged that he slashed
her tyres and
scratched her car's body paint before calling her and telling her
that that was
'just the beginning
and that
"the tyres
could easily be her neck slashed open".
[25]
Since then, apparently, the Respondent has taken it upon himself and
has made it his business to
"warn"
people
against Flocutt and the De Beer family on the internet. To that end
he posted the following comments with reference, not
to AMT, but to
Flocutt on Social Media, namely :
25.1
"Dynamite Diesels in Dundee, KZN = Automotive Trading = Flocutt
.... same
address and management. Sarne products and advertising. Do
due diligence before transacting". (on Facebook).
25.2
"Flocutt Dundee KZN.
The
staff
I
owners of this company situated in Dundee trade as
Flocutt or AMT Components. They advertise on the internet that they
have available
spare parts such as engines, gearboxes, etc for trucks
and other vehicles. They request a deposit or full payment via EFT to
'secure'
the item for free delivery countrywide within 3 to 4 days.
When money is paid, the items is
[sic}
not delivered or maybe
delivered after many requests, phone calls, emails, etc, months
later. In the latter case the item delivered
is incorrect or damaged
maybe to such an extent that it is not usable. When the item is
returned for a refund, NO refund is made.
They usually find an excuse
not to refund you. Read this carefully!!! THEY WILL NEVER REFUND
YOU!!!
In
cases where the item is not delivered and the deal cancelled by the
client no refunds are made! The staff members
I
owners are
Belinda de Beer, Samantha de Beer, Patricia de Beer, Malcolm de Beer
and a certain Dewalt. The sister Company and staff
was INVESTIGATE
[sic] by Carte Blanche in May 2012 under the heading 'Dodgy Diesel'
but not followed up. Furthermore AMT Components
was liquidated in
June 2016 but Flocutt still keep [sic] on trading with their usual
tricks. Various complaints has [sic] been
lodged on 'Hello Peter' on
the internet to warn any prospective buyers. Please contact me on
[0....] for further information. Whatever
you do, DO NOT DO."
(in
reportacrime.co.za)
and
25.3
"URGENT WARNING about FLOCUTI in DUNDEE
I
GLENCOE KZN. Be
extremely careful when transacting with this business or its
management - Belinda de Beer, Samantha de Beer or Malcolm
de Beer.
They advertise on large scale that they have for sale engines,
gearboxes, etc for heavy vehicle and trucks - these items
they do not
have. When after weeks the deal is cancelled by the client and a
refund requested, they will inform you that it will
take 15 days to
process - eventually you will not be refunded and all your calls and
requests will be ignored. The sister companies
of FLOCUTI (AMT
Components
I
Dynamite Diesels) were liquidated causing huge
financial loss to many clients. Be sure to check all the listings on
hellopeter.com
and
stopacrime.co.za
including Facebook.
You will find these people
are renowned
for
non-delivery
and
no
refunds.
If in doubt, please
contact me on *********913 for a reference or further information".
(in hellopeter.com).
[26]
The Applicant regards these remarks as defamatory and as such as
detrimental to Flocutt's good name and reputation, and as
prejudicial
to its business, and seeks an order to not only have the existing
posts removed from Social Media, but also for the
Respondent to be
prohibited from posting any future untrue material regarding the
Applicant on Social Media.
[27]
The
Respondent,
on the
other
hand,
avers that
he has a
right to
publish
such
posts
on
the
internet
because,
allegedly,
his
comments
are
factually
and
materially
correct
and
in the
public
interest since the companies are interrelated and connected.
He
bases
his
right
to
comment
furthermore
on
the
constitutionally
protected
right
to
freedom
of
expressio
n
[28]
.
[28]
The
Constitutional
Court
[29]
held
that
:
"The
Jaw of defamation lies at the intersection of the freedom of speech
and the protection of human dignity, both rights protected
by the
Bill of Rights" and
"The
common Jaw accepts that truth is central to the balance between
dignity and free expression. It does so by recognising
truth as a
defence to defamation. It puts the burden of proving truth on the
defendant'.
[29]
In
deciding
this
application
the
Court
needs
to
determine,
therefore,
whether
the
posts
complained
of,
are indeed
defamatory,
and,
i
f
so, whether
the
posting is
justified
in that the
Respondent
has proved
that
they are
true and in
the
interest of
the general
public, and/or fair.
The
Court can
only do so
by
taking
into consideration all
the
surrounding
circumstances, such
as
the
interest of
the public
in being informed;
the manner
of publication;
the
nature and
tone
of
the
published
posts;
the
reliability
of the
source of
the
information;
the steps
taken to verify the truth of
the
allegations;
and
whether the
person defamed has been given an opportunity
to
comment
on
the
statements
before
publication.
[30]
[30]
One needs
to keep in
mind in
this regard
the warning
by
Brand
JA
in
Modiri v
Minister
of
Safety and Security
[31]
that
"
a
defamatory
publication
which
is
untrue
or
only partly
true
can never be in
the
public interest"
which
warning
echoed
that of
Hefer JA
in National
Media
Ltd
v
Bogoshi
[32]
,
namely
that
"ultimately
there
can
be
no
justification
for
the
publication
of
untruths".
This
sentiment
is reflected in the various codes of conduct
to
which
journalists
are bound.
Significantly, the Respondent is a private citizen. He
does
not enjoy
media
or
political
privilege
and
is
not,
like
journalists, news
media,
or
politicians,
allowed
to
make
reasonable
publication
of
false
or untrue defamatory statements. Neither does he have a legal or
moral duty
to ferret
out
corruption,
dishonesty
and graft
and
expose
the perpetrators
to
bring
to
the
attention of
the general
public
the
type
of
allegations
which
he
aimed
at
Belinda
and Flocutt
in
the
internet posts, without ascertaining that the facts on which his
allegations
are
based
are
indeed
correct
and
true.
[31]
Fair comment is another ground of
justification
which may
negate the
prima
facie
wrongfulness
of
a
defamatory
publication
and which
was referred to in his affidavit.
To succeed
with that ground
of
justification,
the
Respondent
would have
had
to
meet
four
requirements:
He
would have
needed
to prove
that
the
defamation
formed
part
of
a
fair
comment
on
facts
that
are
true
and
in
the
public
interest.
[33]
(
1) The
defamation
had to
amount
to
comment
and
to
the
assertion
of
an
independent
fact
(in the
eyes
of
the
reasonable
person);
(2)
The
comment
had
to
be
fair
(which
is
usually
dependent on
the
convictions of
the
community, that is
the
boni
more
s
);
and
could have been critical, exaggerated,
biased,
ill-considered
or
unbalanced
provided
that
the
facts
commented
on
are
not
false
[34]
and
provided that the remarks were
not
prompted
by
spite or malice.
[35]
But even
if the comments were relevant and
made in the
honest belief that they were true, the Applicant
could
nevertheless prove
that
the
Respondent exceeded the limits of
the defence
by
reason
of
his
improper
motives.
[36]
(3)
The
facts
on
which the
comment was based must have been
true and
known
to
the person
to whom
publication was made. (4)
These facts
had
to
be in
the
public
interest.
[37]
[32]
There is, first of all, no evidence that Flocutt was given an
opportunity to comment on any of the allegations before they
were
posted, which impacts on fairness of the publication. Secondly, the
facts upon which the allegations are based, are not proved
with
reliable evidence but are mostly based on allegations made by other
persons. The Respondent annexed to his opposing affidavit,
in support
of his allegations, for example, a post by "a person (not known
to me)" who described his dealings with Flocutt.
That post is
used as one of the grounds for the Respondent's averments against
Flocutt. The other so-called
"proof"
of his
allegations against Flocutt are either posts by other people or the
annexures regarding his dealings with AMT annexed to
his founding
affidavit. That is, apart from an affidavit by his aunt, Mrs De Waal,
who has according to her, ceded her claim against
the Applicant to
the Respondent. He did obtain statements from a Mr Govender and a
George Graham who averred that they had paid
the Applicant for
products not received. But these are exactly the type of allegations
that should have been presented to the Applicant
for comment before
publishing the posts.
[33]
The
prima
facie
wrongfulness
of the Respondent's conduct will be cancelled
i
f
he proves that the defamatory remarks were
true
and
in
the
public
interest.
[38]
A
Respondent
need
only
prove that
the
remarks
are
substantially
(and
not
literally)
true, i.e.
that
the
"sting"
of the
charge is true
[39]
,
as the
Respondent alleged in his opposing
affidavit.
But that is the case only if the allegations
do not
allege
fraudulent
conduct,
dishonesty
or
criminal
conduct
as
a
fact, as
the
Respondent does in
the instant
matter.
When such
is
the
nature
of
the
allegations
every
aspect
of
such
an
allegation
must
be
true.
[40]
[34]
It is clear that not all the facts addressed in the three relevant
posts are true. The Respondent, for example, alleged in
post 1
("Dynamite Diesels
....
=
Automotive
Trading
=
Flocutt"
.....
"same address
and same
management"
... ..
"same products"
);
in post
2
("The
staff
I
owners
of
this
company
[Flocutt]
trade
as
Flocutt
or
AMT Components"
.....
"The staff
members
I
owners
are
B
elinda
de Beer,
Samantha
de Beer,
Malcolm
de
Beer and
a
certain Dewalt
"
);
and in post 3
(
"Be extremely
careful
when
transacting
with this
business
[Flocutt]
or its management
-
Belinda
de
Beer, Samantha
de
Beer
or
Malcolm
de Beer
"
),
which
the Respondent averred was a factually and materially correct
averment since it stated that the companies are interrelated
and
connected. In his own post on
hellopeter.com
on 23 May 2016 he
stated that Flocutt is
'a different
legal
entity
from
Dynamite
Diesels
and AMT.
In his post about
both AMT and Flocutt on 12 May 2016 in
reportacrime.co.za
he stated
"all of these
companies
are different legal entities".
Yet in the
three posts serving before the court now he represented them as one
interrelated entity, now embodied in the Applicant,
"which
still keep on trading with their usual tricks".
[35]
However, the Applicant proved, with registration certificates for
Flocutt and AMT, that the two were separate companies with
different
directors. The Respondent even admits in his opposing affidavit that
they are two companies. While the Applicant admits
that Samantha, a
former director of AMT, is now an employee of Flocutt, that does not,
without more, make her part of Flocutt's
management. Nor does it
prove that the two are the same entities if Samantha sometimes
answers the phone at Flocutt, and if Belinda
sometimes answered the
phone at AMT. Neither does the mere fact that Mr
Malcolm de Beer
on Belinda's
admission sometimes advises her, make him part of Flocutt's
management.
[36]
Likewise, the Respondent's allegation that the two companies are the
same entity because they use the same resources such as
telephones,
fax and email addresses, was refuted by the Applicant with proof to
the contrary. Their "same
physical
address",
furthermore was explained with an aerial map of the 800 square
meter business complex in the industrial area, annexed to the
replying
affidavit, which shows that number 20 Cable Road in Dundee
houses a retail centre consisting of five different enterprises, in
which Flocutt and AMT were but two of five independent lessees
situated 300 meters from each other, with Tiger Milling between them.
[37]
The Respondent's averment that Belinda's Dundee workshop was not
registered to sell second-hand goods, was likewise refuted
with a
certificate of registration for the shop in Glencoe and an
explanation by Belinda that only the Glencoe shop sells second
hand goods while the Dundee shop sells new items. It is evident
therefore that the allegations made by the Respondent which do
amount
to allegations of fraudulent conduct and/or dishonesty, are not true
in every instance.
[38]
What is in the public interest will depend on the convictions of the
community
(the
boni
more
s
)
and
in
this
regard,
"the
time,
the
manner
and
the
occasion
of
the
publication"
play
an
important
role.
[41]
To
determine
this,
a
Court
should
look
at
the
nature
(in
casu
internet
posts
in
the
form
of
"factual"
statements,
on
the
Respondent's own
admission);
the
extent
(in
casu
on
three
different
Social
Media
websites with
worldwide
reach);
and the
tone
(in
casu
sweeping,
accusatory
statements) of
the
allegations;
the
nature
of
the
information
upon
which
the
allegations
were
based
(in casu
some
other
disgruntled
authors
of internet
posts and
the
Respondent's
bad
experience
with
another
company,
AMT);
the
nature of the mass media used
(in
casu
Social
Media, which is more far-reaching than the printed media);
the extent
of the
distribution
(in
casu
the
posts
were
placed
on
the
internet
where they
were freely
available
to all internet
users: the
distribution
was
therefore
unlimited);
the
sector
of the
public at
which the
publication is
aimed (in
the
present case
anyone
interested in
crime, or
casual
users
of
the Social
Media had
access to
the
relevant
websites);
the
reliability of the information
(in the
present
case
information
was
provided by
a
few
disgruntled customers);
steps taken
to verify the
information
(in the
present
case
a
small
number
of
"complainants"
were
contacted);
the extent
to which other materials support the allegations at the time of
publication
(in
casu
there
is
no
evidence
of
other
materials
supporting
the
allegations,
apart
from
the
abovementioned
internet posts);
the
opportunity given to
the
relevant person to react to the allegations
(in
casu
there
is no
evidence
that Belinda
was given
an opportunity
to react
to
the
allegations and specifically the affidavits
of
three other
clients prior
to
the
posting);
the
necessity or urgency to publish before the truth can be positively
verified (there was no urgency
in posting
the allegations);
the
possibility
that the
same objective
could
be
reached
in
a
less
harmful
way (there
were
several other ways
in which
the Respondent could have obtained his
relief,
especially,
for
instance,
by way
of
litigation);
and
the
presence of a malicious motive
[42]
(from the
affidavits submitted by
Belinda
and
Samantha
it
appears that the
Respondent
harassed
and
threatened
one or both of
them to
such an extent that
they had to
obtain protection orders against him. He
therefore
clearly had a malicious
motive
in
posting
the
allegations
about
Belinda
and Flocutt
especially
since on
his
own
admission
he
never
had
personal dealings with
Flocutt but
was angered when
he did not
receive
a
refund
from
AMT.
[39]
From the
above,
i
t
is clear,
in my view,
that the allegations were unlawful
and
published
with
the
intention
to
impair
Belinda
and
Flocutt's
right
to
a
reputation.
The
posts were
based
largely
on
half-truths or
falsehoods
and can therefore not be regarded as
"in
the
public
interest".
Neither
can comments (reflecting the poster's opinion) be reasonably held
and
fairly
expressed
if
they
are based
upon
false or
distorted
facts.
[43]
Instead
of
being
true
factual
averments, furthermore, the posts contained generalisations and
absolutisms,
such
as
"
when
money
is
paid,
the
items
is
[sic}
not
delivered
or
maybe delivered after many phone calls, emails,
etc,
months
l
ater.
In
the
latter
case
the
item delivered is
incorrect
or
d
amaged,
maybe to the extent that it is not usable.
When
the item
is
returned for
a
refund,
NO refund is made". "Read
this
carefully:
THEY
WILL
NEVER
REFUND
Y
OU!!!."
[40]
What other conclusion can the reasonable person reach from the
contents of the abovementioned posts, than that he/she is being
warned that the Applicant and Belinda are
dishonest
and/or
that the business is conducted in a fraudulent way when it is alleged
that they accept and retain payment but do not deliver
the paid item,
or do deliver, months later, an incorrect or damaged item which they
then refuse to refund. What the Respondent
fails to point out, is
that Flocutt has a
"no refund"
policy which
is clearly and openly stated in its advertisements and invoices.
[41]
In the
hellopeter.com
post the Respondent made similar
allegations which the reasonable person cannot see as anything other
than a warning against Flocutt's
or Belinda's "dishonest"
or even "fraudulent" conduct, e.g.
"be extremely
careful
when transacting with this business or
its management
...
when they are paid for the
item the odds are 100%
that they will
not
be delivered "
and
"you will find these people are
renowned for non-delivery and no refunds",
and what
else is the reasonable person to read into the following remark:
"The
sister
Company
and
staff
was INVEST/GA
TE by Carte Blanche in May 2012
under the heading
'Dodgy Diesel'
but not followed
up. Furthermore
AMT
was
liquidated in June 2016
but Flocutt
still
keep on trading
with
their usual tricks
''.
[42]
In my view the ordinary reader would have understood the contents of
the posts or at least the innuendo to mean that Flocutt
and/or
Belinda are guilty of corrupt behaviour. The posts therefore are
defamatory.
[43]
The posts cannot be justified as constituting
"fair
comment"
either. The allegations are not posted in
the form of comments : they are couched in the form of statements of
fact, without any
indication of whether they describe one person's
subjective perception, or one person's personal experience, or
whether they reflect
the inevitable outcome or result of all dealings
with Belinda and/or Flocutt. The "warnings" are in the form
of purported
factual statements rather than comments, as the
Respondent himself admits in his opposing affidavit. The Respondent
can therefore
not justify the infringement of Flocutt's and Belinda's
reputation and good name ·on the grounds of reasonable and/or
fair
comment, either.
[44]
The posts are not based on strictly true facts, as they have
to be if
fraudulent and dishonest
conduct is
alleged; they
are not in
the
interest of
the general public;
and they
are not
fair or
reasonable comments. The Respondent has no media or political
privilege to utter
non-truth
and
defamatory
averments;
he
does have
a malicious
motive; and he has not complied with the requirement that where
fraudulent or dishonest or criminal conduct is alleged,
he
has
the
onus
of
proving
every
allegation
to
be true
and
not
merely
of
proving
the
"gist"
of
his
averments.
[44]
[45]
Furthermore, he has used Social Media with its unlimited global reach
as a platform to vent his anger at Flocutt with which
he, personally,
has never had any business dealings. He has, therefore, in my view,
overstepped the boundaries of his Constitutional
right to freedom of
speech. The posts are defamatory and since they allege fraudulent or
dishonest conduct the Respondent has not
succeeded in proving that
they are justified because they are true and in the public interest
or that they are justified because
they are fair comment.
[46]
The Applicant's
prayers for
the removal of existing posts and the prohibition
of
future
posting
of
any untrue
material
pertaining
to
the
Applicant,
has the
effect of final interdictory relief.
[45]
Although
the application
started
out
as
an
urgent
application
for
an
interim
interdict
on
4 August
2016
urgency
has since
fallen
away:
The
Respondent has filed opposing papers, the Applicant has replied
and
the matter
was
postponed by
agreement.
Because of
the
final
effect of
the relief
prayed
for,
the
Applicant
needs
to
establish (a)
a clear
right, (b)
that injury
is reasonably apprehended;
and (c)
that no
other
suitable
form
of
relief
is
available.
[47]
I
t
is
indisputable that the Applicant
does
have a
clear
right
to the interdict: it is
a
business
[46]
and as
such its
profits are directly linked
to its
reputation and its business dealings and sales. Belinda is its
sole
director:
as
such
she
has a
direct
interest
in its
profitability
and
the extent
of
i
ts
sales which in
turn is
dependent
upon its
good name.
The
Applicant
in my view
has
proved that
injury
is
reasonably apprehended since its reputation has been damaged, which
would
directly
impact
on
its
'goodwill'
and
turnover,
and
negatively
affect
its
profits.
[48]
The Applicant has also succeeded in proving that it has no other
viable remedy. In this type of case the Applicant would be
unable to
prove its financial damages in order to use the
lex
aquiflia
to claim monetary compensation. An action
for damages is therefore not a viable option and cannot be claimed
under alternative relief.
The way to stop the publications and
continued impairment of its reputation is an interdict to remove
defamatory posts and prevent
publication of untrue allegations.
[49]
In
Tsichlas
the court held that future defamatory posts cannot
be forbidden because it might happen that they could still be
justified in that
they may be true and in public interest. In that
case however the court dealt with the conduit or service provider
rather than
the actual person posting the allegations. In the present
case, the prayer is not for future defamatory posts to be prohibited,
but for future
untrue
allegations. As stated, the Respondent
is not a reporter or a journalist allowed by media or political
privilege to make false statements.
He has control over what he
publishes and over ascertaining the accuracy of his factual averment.
Forbidding him to make future
false or untrue allegations would
therefore in my view not place an unreasonable limitation on his
right to freedom of speech.
[50]
In my view the Applicant has therefore succeeded in proving that the
posts were defamatory and unlawful and the Respondent
has failed to
prove that they are justified because they are the truth and in the
public interest, or because they are fair and
reasonable comment. The
application therefore has to succeed.
[51]
The Applicant was substantially successful and there is no reason for
a cost order to deviate from the normal one that costs
follow the
outcome.
WHEREFORE
THE FOLLOWING ORDER IS MADE :
(1)
The Respondent is directed to remove all references to the Applicant
from his
Facebook-page,
profile/page on
hel/opeter.com
and
his profile/page on
reportacrime.co.za.
(2)
The Respondent is prohibited from publishing on any webpage, website,
or in any Social or Printed Media forum any untrue
allegations
regarding the Applicant and/or its business practices.
(3)
The Respondent is ordered to pay the costs of the application.
________________________________
H
MURRAY AJ
On
behalf of the Applicant :
Adv S Raubenheimer
Instructed by : Mr R G
Green
Attorney for Applicant
Matsepes
26/28 Aliwal Street
Bloemfontein
On
behalf of the Respondent : Mr S
de Beer
Attorney for Respondent
Hugo & Bruwer
Attorneys
129 Zastron Street
Bloemfontein
[1]
Neethling, Potgieter & Visser :
Law of
Delict, 7th Edition, at 352
[2]
Loubser
et
al,
The
Law of Delict in South Africa, 2
nd
Edition at 340
[3]
Neethling,
et
al, op
cit.;
Loubser
et
al, supra, op cit.
[4]
Universiteit
van
Pretorius
v Tommy
Meyer
Films
(Edms) Bpk
1979 (1)
SA 441
(A)
[5]
Dhlomo v Natal Newspaper (Pty) Ltd
1989 (1) SA 945
(A) at 952-3
[6]
Loubser
et
al, supra,
at
342
[7]
Loubser
et
al, supra,
at
329
[8]
Pretorius v Niehaus
1960 (3) SA
109
(0) at
112
[9]
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at para (26]
[10]
Vengtas v Nydoo
(5)
1963 (4)
SA 358
(D) at 393;
NEHA
WU v
Tsatsi
2006 (6) SA 327
(SCA) at 333
[11]
Loubser
et
al, supra,
at
344;
2004
(6) SA 329 (SCA)
[12]
Loubser et al, supra, at 343
[13]
2004 (2) SA 112
(W) at
[25] and [26] at 342 G-l
[14]
Khumalo v Holomisa, supra, at [23]; Solidarity v SABC, supra, at
[65]
[15]
Khumalo
v
Holomisa,
supra,
at
[25] –[26]
[16]
Argus Printing & Publishing Co. Ltd and Others v Esselen's
Estate
1994 (2) SA 1
(A) at 25 B - E
[17]
Khumalo and Others v Holomisa
2002 (5) SA 40
l (CC) at
417 -418 at paras [24]
to [26]
[18]
26 July 2016 (Labour Court) at p. 13 at [17]
[19]
[2002] ZACC 12
;
2002 (5) SA 401
(CC),
supra
[20]
1995 (2) SA 221
(T) at 227 I - 228 A
[21]
Argus Printing and Publishing Co Ltd and Others v Esselen's Estate
1994 (2)
SA
I
(A).
[22]
Mthembi-Mahanyele
v Mail &
Guardian Ltd
2004
(6) SA 329
(SCA) at 342 - 343
[23]
Tshedu v Lekota
2009 (4) SA 372
(SCA) at 378 - 379
[24]
Neethling
v The
Weekly Mail
1994 (1)
SA 708 (A).
[25]
Khumalo
v
Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) at
414; Sayed v Editor, Cape Times
2004 (1) SA 58
(C) at 6
l.
[26]
Neethling,
Potgieter & Visser :
Neethling's
Law of Personality at 131
[27]
Loubser et al, supra, at 360
[28]
Section 16
of
the
Constitution of
the
Republic of South
Africa,
Act 108
of
1994
[29]
Khumalo v Holomisa, supra, at [26]
[30]
Mthembi-Mahanyele
v Mail &
Guardian Ltd,
supra,
at
[68]
[31]
2011 (6) SA 370
(SCA) at 379
[32]
1998 (4) SA
1196
(SCA)
at
1212
[33]
Johnson v Becket
[1991] ZASCA 175
;
1992 (1) SA 762
(A) at 778 -779; Delta Motor
Corporation (Pty) Ltd v Van der Merwe
2004 (6) SA 185
(SCA) at
193
-
195;
Hardaker v Philips
2005 (4) SA 515
(SCA) at 528
[34]
Hardaker
v
Philips,
2005
(4) SA 515
(SCA) at 529 - 530
[35]
Marais v Richard
1981 (1)
SA
1157
(A) at
1170
[36]
Marais
v
Richard,
supra,
op
cit
[37]
The facts must be
in the
interest of the general public, not just
a small
section thereof.
[38]
Modiri v Minister of Safety and Security,
supra,
at
376
-380;
Ketler Investments CC
t/a
Ketler
Presentations v Internet Service Providers' Association
2014 (2) SA
569
(GJ) at 583
[39]
Neethling
et al,
supra,
at
360
[40]
Loubser et al, supra, at 360
[41]
Modiri v The Minister,
supra,
at 376
-
380
in which
the Court emphasized
that
public interest will depend on the circumstances before the Court,
which may vary infinitely, and that Courts should not
restrict
themselves to
existing
rules or guidelines.
[42]
Neethling
et
al, supra,
at
361
[43]
Loubser
et
al,
supra,
at
363
[44]
Loubser et al, supra, at 360
[45]
Tsichlas v Touchline Media,
supra,
at
124
[46]
Loubser
et
al,
supra,
at
342