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[2016] ZAGPPHC 458
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Barclays Africa Group Limited and Others v Keyter and Others (29512/2015) [2016] ZAGPPHC 458 (7 April 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
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date:
7/4/2016
Case
No.: 29512/2015
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES:YES
In the matter between:
BARCLAYS AFRICA GROUP
LIMITED 1
st
APPLICANT
ABSA BANK
LIMITED 2
nd
APPLICANT
JANSE VAN RENSBURG,
MARTHINUS CHRISTOFFEL 3
rd
APPLICANT
BEGGS,
COLIN 4
th
APPLICANT
CUBA,
YOLANDA 5
th
APPLICANT
DINGAAN,
THEMBISA 6
th
APPLICANT
FAKIE,
SHAUKET 7
th
APPLICANT
HODNETT,
DAVID 8
th
APPLICANT
HUSAIN,
MOHAMED 9
th
APPLICANT
LUCAS-BALL
WENDY 10
th
APPLICANT
MOKGOSl-MWANTEMBE,
THOKO 11
th
APPLICANT
MUNDAY,
TREVOR 12
th
APPLICANT
RAMOS,
MARIA 13
th
APPLICANT
PALMER,
STEVEN 14
th
APPLICANT
DRUTMAN,
NADINE 15
th
APPLICANT
NAIDOO,
SABASHNEE 16
th
APPLICANT
HAMMOND POLE MAJOLA
INC 17
th
APPLICANT
WILLIAMS,
THEA 18
th
APPLICANT
ERASMUS,
CHANTAL 19
th
APPLICANT
THEUNISSEN,
CHANTAL 20
th
APPLICANT
WEST,
LUANNE 21
st
APPLICANT
SCHARNECK,
SALLY 22
nd
APPLICANT
MAKWAKWA,
LEBOHANG 23
rd
APPLICANT
HARTMAN,
ALAN 24
th
APPLICANT
CLEARY,
CHRISTOPHER 25
th
APPLICANT
GERHARD,
ANDREW 26
th
APPLICANT
LABUSCHAGNE,
SALOME 27
th
APPLICANT
MICHIE,
BRENDEN 28
th
APPLICANT
RICHARDS.
KYLE 29
th
APPLICANT
and
KEYTER, BARRY
CHARLES 1st
RESPONDENT
KEYTER, BARRY CHARLES
N.O. 2
nd
RESPONDENT
IN HIS CAPACITY AS
TRUSTEE FOR THE KEYTER TRUST
(REGISTRATION NUMBER
935/1990
KEYTER, ANTHONY
PETER 3
rd
RESPOINDENT
JUDGEMENT
HIEMSTRA AJ
INTRODUCTION
[1]
This is an application for a final interdict, and other relief as set
out later, against the respondents. Hughes J issued an
interim
interdict on 15 May 2015 and extended it to 22 May 2015. On 15
December 2015 the 3
rd
respondent was joined at the
instance of the applicants and the interim interdict was made
applicable to him. The order was further
extended to 4 and 5 February
2016. The application concerns alleged defamation of the applicants
by the respondents.
[2]
The issues in this case arose from a misunderstanding that occurred
between the 17
th
respondent, attorneys Hammond Pole Majola
Inc (Hammond Pole), acting on behalf of ABSA Bank Limited, and the
first respondent,
Mr Barry Charles Keyter (Mr Barry Keyter), over the
question whether the Keyter Trust (the 2nd respondent) had to pay a
certain
amount of costs incurred by ABSA Bank Limited (ABSA) to
Hammond Pole or directly to ABSA. These costs amounted to the sum of
R4
350. The costs were incurred in litigation between the Keyter
Trust and ABSA over the trust's failure to pay its bond instalments
punctually.
[3]
It is not necessary to relate the details of the disagreement or
misunderstanding between Mr Barry Keyter and Hammond Pole and/or
ABSA. The issue in this matter is Mr Barry Keyter's alleged
defamation of the applicants. I refer to Mr Keyter as Mr Barry Keyter
in order to differentiate between him and his twin brother, Mr
Anthony Peter Keyter, the 3
rd
respondent.
[4]
The first applicant is Barclays Africa Group Limited (Barclays),
formerly known as ABSA Group Limited. The second applicant
is ABSA
Bank Limited. The third to 1ath applicants are executive,
non-executive and independent directors of ABSA and/or Barclays.
The
13
th
applicant, Ms Maria Ramos, is also a director of
Barclays Pie. She is a former Director-General of the National
Treasury. The 19
th
applicant is the firm of attorneys,
Hammond Pole. The 20
th
to 29
th
applicants are
directors and employees of Hammond Pole.
[5]
The first respondent is Mr Barry Keyter. The 2nd respondent is Mr
Barry Keyter N.O. in his capacity as trustee for the Keyter
Trust,
registration number 935/1990. The trust is clearly Mr Barry Keyter's
alter ego and it is not necessary to differentiate
further between Mr
Barry Keyter and his trust.
[6]
As mentioned, Mr Anthony Peter Keyter (Mr Anthony Keyter) was joined
as a third respondent at the instance of the applicants.
As
previously mentioned, Mr Anthony Keyter is the twin brother of Mr
Barry Keyter.
[7]
Apart from this application, the applicants brought two other
applications under the above case number. These are an application
to
hold Mr Barry Keyter in contempt of court and an application to join
Mr Barry Keyter's twin brother, Mr Anthony Keyter, as the
third
respondent. These applications form part of the history of this
matter and are relevant in deciding this case. In relating
the facts,
I have regard to the affidavits filed in all the applications.
[8]
Mr Barry Keyter was incensed about the manner in which he had been
treated by Hammond Pole and by ABSA. He embarked on an extensive
and
intemperate attack on the applicants in which he alleged that they
and numerous others had engaged in serious criminal activity.
ALLEGED
DEFAMATION
[9]
It is impossible to deal with all the correspondence containing the
alleged defamatory statements made by the brothers Keyter.
The
deponent to the applicants' affidavits, the 3
rd
applicant,
Mr M.C. Janse van Ransburg, has comprehensively dealt with all the
correspondence and events. His affidavits are contained
in three
related applications, i.e. the main application, the joinder
application and the contempt application. They comprise hundreds
of
pages.
[10]
Mr Barry Keyter, in the course of the dispute over the trust's
liability for costs, referred to above, wrote a number of impertinent
e-mails to employees and directors of Hammond Pole and had
confrontational discussions with them.
[11]
On 18 February 2015 Mr Barry Keyter addressed certain e-mails to
directors and employees of Hammond Pole. The first e-mail
to
directors and employees of Hammond Pole was for the attention of Mr
Alan Hartman, the 24th applicant. Me Barry Keyter accused
Hammond
Pole of
"irregular, unethical and illegal conduct' .
On
the same date he addressed an e-mail to the 21st applicant, Ms Luanne
West, an employee of Hammond Pole, wherein he said that
Hammond Pole
had conducted itself in an
"erratic, confusing and unethical
manner."
[12]
In another e-mail to Hammond Pole on 22 February 2015 Mr Barry Keyter
said that Mr Kyle Richards, the 29
th
applicant, had
"without lawful reason made a threat against me with intent
to induce me to comply with the company's demand for extortion money.
Mr Richards, speaking on behalf of the company, stated to me in
a
telephone call that, quote:
"we will get you one
way or another".
I further assert that those words
were meant as a threat to kill, assault, injure or cause me damage.
His
words, spoken on behalf of the law firm and others in the
firm working in concert with him (using the word 'we), had the effect
of me fearing for my safety and the safety of my lawful property. The
malevolent act violates Section (1)(1) of the
Intimidation Act 72 of
1982
and should be reported to the police."
[13]
In the e-mail, Mr Barry Keyter continues to assert that Hammond Pole,
through its employees and directors, had also committed
attempted
extortion, fraud, attempted theft and conspiracy to commit a crime.
He demanded that Hammond Pole report these crimes
to the South
African Police Service (SAPS) and to advise him by 12:30 on Monday 23
February 2015 that they had done so. He reminded
them that failure to
do so renders them and director Richards guilty as accessories after
the fact to criminal offences.
[14]
Mr Hartman, on 23 February 2015, addressed an e-mail to Mr Barry
Keyter in an endeavour to rectify the misunderstanding. He
explained
that Hammond Pole had met all Mr Barry Keyter's demands and confessed
that he and the staff of Hammond Pole had misunderstood
Mr Barry
Keyter's position. They had understood that Mr Barry Keyter had
objected to paying the legal costs. He now realised that
Mr Barry
Keyter's complaint related to whether he should pay the costs to
Hammond Pole or to ABSA directly. Mr Barry Keyter responded
per
even-dated e-mail, saying:
"Yes, I too refer to your
obscenely ill-mannered, interrupting, overbearing, one-way
discussion, which clearly had other motives
than to resolve the
issues, should I judge from your deceitful email below."
He
continued to address each point made by Mr Hartman sarcastically.
[15]
On 24 February 2015 Mr Barry Keyter addressed an e-mail to Ms
Sabashnee Naidoo (16th respondent), senior legal counsel for
Barclays, wherein he asserted that Hammond Pole had committed the
following crimes: intimidation, attempted extortion, fraud, attempted
theft, conspiracy to commit a crime, violation of the Consumer
Protection Act, and violation of the Prevention and Combating of
Corrupt Activities Act (PRECCA). In paragraph 8 of the letter, he
wrote:
"In
committing these crimes,
this
Hammond Pole hid behind their
principal, ABSA Bank, stating that ABSA Bank insisted on their
conduct. For instance, the managing
partner, Allan Hartman states
that ABSA requires of them, Hammond Pole, and I paraphrase "to
illegally embezzle funds from
the Keyter Trust funds without
permission and by deceitful means" and without there being any
amount legally due to Hammond
Pole by the Keyter Trust. From my
discussion earlier with Thea Williams
(17
th
respondent)
of ABSA, it appears that the allegations by the
managing partner of Hammond Pole are false, but I nevertheless
request ABSA to investigate
its own culpability."
[16]
On 2 March 2015, Ms Naidoo advised Mr Barry Keyter that the matter
would be handed to ABSA's forensics department for investigation.
[17)
In an e-mail to Ms Naidoo, dated 5 March 2015, Mr Barry Keyter
asserted, and I paraphrase, that -
1.
ABSA's internal forensic investigation did not satisfy the dictates
of the law, and that the crimes had to be reported in accordance
with
the provisions of PRECCA, and that ABSA's failure to do so was
preventing justice from being done;
2.
He had received two accounts from Hammond Pole, despite there being
no contractual relationship between himself and Hammond Pole;
3.
Hammond Pole, together with its staff members, had committed various
crimes. He said that having been instructed to attend to
the
cancellation of the bond, Hammond Pole requested him to provide it
with the trust's banking details. He concluded that this
was in order
to access the Keyter Trust funds, and not to reimburse the Keyter
Trust for monies that had been overpaid in relation
to the bond
cancellation; and
4.
Hammond Pole was to be precluded from handling the bond cancellation.
[18]
Mr Barry Keyter attached a report, titled
"Criminal
Complaint”.
The report reiterates and elaborates on the
crimes allegedly committed by Hammond Pole.
[19]
On 10 March 2015 Mr Barry Keyter addressed an e-mail to Mr Beggs (4
th
applicant), Ms Cuba (5
th
applicant), Ms Dingaan (6
th
applicant), Mr Fakie (7
th
applicant), Mr Hodnett (8
th
applicant), Mr Hussain (9
th
applicant), Ms Lucas-Ball
(10
th
applicant) Ms Mokgosi-Mwantembe (11
th
applicant), Mr Munday (12
th
applicant) and Ms Ramos (13
th
applicant). These applicants are all members of the boards of
directors of Barclays and/or ABSA and Barclays Pie. In this e-mail
he
repeated that several directors and employees of Hammond Pole had
committed crimes, and now included two further employees of
ABSA, Ms
Drutman (15th applicant) and Ms Naidoo (16
th
applicant).
He said that the latter two persons had
"wilfully neglected
to perform their peremptory moral and statutory duties”
and
were therefore
"liable under section 20 and
21 of the
Prevention and Combating Corrupt Activities Act as accessories after
the fact."
He
demanded that ABSA report the crimes, which he contended involved an
amount in excess of R100 000, to the SAPS.
[20]
Mr Barry Keyter attached to this e-mail a further document titled
"
Criminal Complaint Filed' ,
dated 9 March 2015, which records
that he was filing a criminal com plaint against Ms Makwakwa
(23
rd
applicant), Ms Theunissen (20
th
applicant), Ms West (21
st
applicant), Ms Scharneck (22
nd
applicant), Mr Richards (29
th
applicant), Mr Hartman (24
th
applicant), Mr Cleary (25
th
applicant), Mr Gerhard (26
th
applicant), Ms Labuschagne (27
th
applicant), Mr Michie
(28
th
applicant), Ms Drutman and Ms Naidoo (referred to
above).
[21]
On 8 April 2015, Mr Barry Keyter addressed an e-mail to the board of
directors of Barclays Bank Pie in which he claimed that
Mr Beggs (4
th
applicant), Ms Cuba, Ms Dingaan, Mr Fakie, Mr Hodnett, Mr Hussain, Ms
Lucas-Ball, Ms Mokgosi Mwantembe, Mr Munday, Ms Ramos,
and Mr
M.J. Janse van Ransburg (3rd respondent) and Mr Steven Palmer (14
th
applicant) were all under investigation by the SAPS for the crimes
already mentioned as well as attempted murder, aiding and abetting
criminals to escape justice, incitement, obstruction of justice,
violating the Johannesburg Stock Exchange Regulations and violating
the provisions of the Companies Act. (As already mentioned, Mr Janse
van Ransburg is the deponent to the founding affidavit. He
holds the
position of General Counsel: Enterprise Functions & Legal Shared
Services at ABSA.)
[22]
The alleged attempted murder, which now surfaced, flows from two
attempted burglaries at the residence of Mr Barry Keyter.
He insists
these were not in fact attempted burglaries, but attempts to murder
him in order to make good on the alleged threat
uttered by Mr
Richards to
"get
[him]
one way or another' .
He
says that fortunately he had been able to foil both attempts. In
later communications the number of attempts on his life increased
to
four.
[23]
On 16 April 2015 he repeated the allegations in an e-mail to the CEO
and Executive Committee members of the Johannesburg Stock
Exchange.
On 19 April 2015 he gave permission to the JSE to use his name in
discussing the matter with Barclays Africa Group.
[24]
On 20 April 2015 Mr Barry Keyter wrote to the directors of Barclays
Pie, the directors of Barclays Africa Group and certain
officials in
response to an invitation extended to him by Mr Charles Wheeler,
Group Counsel, Barclays Africa, to discuss an amicable
resolution.
This was met with an irascible response from Mr Barry Keyter. He
said:
"The
last time I spoke to Absa Bank or its agent, you threatened me with
physical violence. Not many days after several threats,
tour armed
men came to murder me. When they failed on the first attempt, they
did not give up. A mere fourteen hours later they
tried again. Not to
belabour the point, but there
is
one dead assailant and two
armed men in detention to take into consideration.
Now
I receive an invitation from you to talk amicable resolution? I
question, are you to be trusted, with one would-be assassin
still on
the loose? However, people do occasionally come to more righteous
insight
-
although not often in my experience, and
then
only through great trauma. Nevertheless, if you and Absa Bank have
genuinely had a change of heart and of mind, then I will
grant you
that noble insight with courtesy. That would be commendable.
However,
you will have to demonstrate that change of heart to me. Once you
have demonstrated good faith, I will enter discussions
with CEO Maria
Ramos and Charles Wheeler in person. And I am of the opinion that
despite the lateness of the hour, such a discussion,
conducted with
better human relations than in the past, will most certainly be of
mutual benefit to me, to BAGL [Barclays Africa
Group Limited] and to
Barclays Limited UK [presumably Barclays Bank Pie], at this
precipitous juncture the banks find themselves
at. And of course it
will be of benefit to you too.
You
can show good faith by:
1.
Advising me what steps you have taken to secure my personal safety
which Absa and its agent have so callously disregarded.
2.
Placing R6m into my bank account as an after tax figure (any tax
liabilities to be borne by the bank). This payment will represent
a
"show of faith only", and not be considered part of any
'resolution' agreement which may be reached during our personal
meeting thereafter. My bank account is held at Absa Cresta."
[25]
On 20 May 2015, Mr Barry Keyter produced a so-called
"Dossier
of Crimes",
comprising 112 pages in which he alleged that
the applicants and others were part of an international crime
network. The original
crimes named above, were now expanded to 240
crimes, all listed in the dossier. The following persons are included
in the alleged
network:
26
ABSA directors and staff;
166
directors and staff of attorneys Webber Wentzel;
10
directors and staff of Hammond Pole;
10
directors of attorneys Friedland, Hart, Solomon & Nicolson;
2
directors of Barclays Africa Group;
15
directors of Barclays Group Limited;
17
officials of the Civil Aviation Authority;
7
officials of the Department of Transport;
67
judges and personnel of the Pretoria High Court;
11
judges of the Constitutional Court;
192
members of the ANC Caucus in Parliament;
36
members of the Office of the President and the Cabinet.
This
is a total of 592 persons. This number later increased to 600.
[26]
The applicants applied for an interdict against Mr Barry Keyter. The
matter came before Hughes J on 12 May 2015. She granted
an interdict
on 15 May 2015, which was extended to 22 May 2015. I shall deal more
fully with her order in due course. Mr Barry
Keyter appeared in
person and on behalf of the 2nd respondent, the trust.
[27]
On 4 May 2015, before the hearing of the application, Mr Barry Keyter
brought two applications which also came before Hughes
J. They were
styled
"Motion for Application of Laws"
and
"
Urgent Motion for Arrest of Applicants".
As will be seen
from the order granted by Hughes J, these applications were dismissed
with costs on a scale as between attorney
and client, inclusive of
the costs of two counsel.
[28]
At the hearing, Mr Barry Keyter applied for the recusal of Hughes J
and for an order transferring the matter to the Gauteng
Local
Division, Johannesburg. These applications were similarly dismissed.
[29]
The deponent to the founding affidavit, Mr Janse van Ransburg, filed
a supplementary affidavit. He related the following incident
that
occurred during the proceedings before Hughes J on 12 May 2015.
Hughes J had stood the matter down to allow the applicants'
counsel
and Mr Barry Keyter to discuss the enrolment of the matter on the
special motion court with Mr Justice Ledwaba DJP. As
Mr Janse van
Ransburg and Mr Palmer, (the 14m applicant) left the courtroom, Mr
Barry Keyter con fronted them and said he
was
"arresting
[them]
under section 42 of the Criminal Procedure Act' .
He
insisted that they follow him to a court security guard. Ms Erin
Worthington of the applicants' attorneys spoke to Mr Barry Keyter
and
insisted that he speak to her as the applicants' legal
representative. She told him that she differed from his
interpretation
of section 42 of the Criminal Procedure Act and
advised Messrs Janse van Ransburg and Parker not to follow Mr Barry
Keyter. Mr
Barry Keyter then left and said he would fetch a security
guard. Messrs Janse van Ransburg and Palmer moved to a quieter part
of
the building to discuss the situation. Applicants' counsel, Mr
Whitcutt SC and Ms de Witt, proceeded to find Ledwaba DJP to discuss
the enrolment of the matter in the special motion court. Mr Barry
Keyter re fused to accompany them. On their way they saw
Mr
Barry Keyter talking to a security guard. They approached Mr Barry
Keyter. Mr Barry Keyter asked Mr Witcutt whether the
"escapees"
(presumably Messrs Janse van Ransburg and Palmer) had left the
building. Mr Whitcutt said to him that they had not left the
building,
but did not tell him where they were. Thereafter security
guards approached Mr Whitcutt and Ms de Witt and asked them for an
explanation.
They said that Mr Barry Keyter had told them that there
were two
"escaped criminals in the building".
Later
in the day Ms Worthington addressed an e-mail to Mr Barry Keyter and
at 19:45 that evening, she received the following reply:
"I
correct you when you state in your e-mail below that I attempted to
arrest
Messrs
Van Rensburg and Palmer. They were arrested. At
this time they have escaped custody
-
if they wish to
co-operate with the law, they can present themselves to me and I will
take them to Police, or they can hand themselves
over to the
Fair/ands Police Station."
[30]
The order granted by Hughes J is the following:
"1.
The applications for recusal and transfer to the Local Division of
Gauteng are dismissed.
The
matter is referred to the Deputy Judge President to obtain
preferential dates on the special motion court roll.
The
parties are directed to attend at the offices of the Deputy Judge
President on Monday 25 May at 09:00
2.
The 1st and 2nd respondents are hereby interdicted and
restrained pending the outcome of the applicants' main application
from:
(a)
Publishing any defamatory allegations against any of the
applicants;
(b)
Stating, imputing or implying that any or all of the
applicants-
(i)
Have attempted to commit murder;
(ii)
Contravened any of the provisions of the Prevention and
Combating of Corrupt Activities Act 12 of 2004;
(iii)
Committed the crime of aiding and abetting criminals to escape
justice;
(iv)
Are accessories after the fact;
(v)
Have committed the crime of incitement;
(vi)
Have obstructed justice in any way whatsoever;
(vii)
Have contravened the Johannesburg Stock Exchange regulations;
(viii)
Have contravened the provisions of the Companies Act 71 of
2008;
(ix)
Are under investigation by the
SAPS
or any other organ
of the State for having allegedly committed
a
crime(s) and/or
stand to be imminently arrested in relation to any of the
aforementioned crime(s). It is recorded that the respondents
are not
precluded from assisting the NPA and/or
SAPS
in relation to
existing criminal investigations or reporting crime allegedly
committed against the respondents during this period;
3.
Contacting any of the applicants whether in person or by
telephone, electronic mail or by any other means save in relation to
ordinary
existing banking transactions unrelated to the content of
these applications and to include the parties in respect of
directorship
of Webber Wentzel attorneys or attempting to effect a
citizen's arrest or otherwise procuring he arrest of any of the
applicants
and arresting any of the applicants.
The
learned judge recorded the following, which forms part of the order:
4.
Pending the outcome of the applicants' main application
without making any concessions or admissions of liability or
admission of
the correctness of the allegations made by the parties
in the main application each of the applicants un-
dertakes,
and the respondents undertake, not to infringe any of the parties'
constitutional rights.
5.
The applications, which were brought by the applicants (the
respondents in the main application), party are dismissed with costs.
These costs are inclusive of
[the costs of]
15 May 2015, such
costs to be on
a
scale as between attorney and client,
inclusive of the costs of two counsel.
[31]
Despite this order, Mr Barry Keyter continued his crusade. On 27 June
2015 he addressed an e-mail to the board and directors
of Barclays
Bank Pie in which he referred to his correspondence of 8 April 2015
and 14 May 2015
"regarding the violent criminal conspiracy
within Barclays and its South African subsidiary, ABSA Bank."
He
also wrote to the applicants' attorneys, Webber Wentzel in which he
accused them of being co-members of the criminal network.
In addition
he wrote to Judge President Mlambo and Deputy Judge President Ledwaba
and made scandalous al legations against
them and other judges
of the Pretoria High Court. This prompted the applicants to bring a
contempt of court application. This application
has not yet been
adjudicated and is now before me.
[32]
The matter came before Keightley AJ (as she then was) on 28 July 2015
for final determination. During the proceedings Mr Barry
Keyter
applied for her recusal on the grounds that she allegedly had
personal relationships with either or both counsel for the
applicants, Mr Whitcutt and Ms de Witt. That application was
dismissed with costs. Argument was advanced in the main application
on behalf of the applicants, but before Mr Barry Keyter could answer,
he absented himself, alleging chest pains.
The
matter was eventually postponed to a date to be determined by the
Deputy Judge President on the special motion court.
[33]
After the interim order was obtained, Mr Barry Keyter's identical
twin brother, Mr Anthony Peter Keyter, entered the fray.
On 31 July
2015 the applicants wrote to Ledwaba DJP as ordered by Keightlley AJ
on 31 July 2015 to arrange for the matter to be
set down on the
special motion court. Ledwaba DJP directed the applicants and Mr
Barry Keyter to meet with him on 20 November 2015.
Mr Barry Keyter
did not attend the meeting, but Mr Anthony Keyter presented himself,
and claimed to represent Mr Barry Keyter.
[34]
Mr Janse van Rensburg (3rd applicant) conducted Internet research and
made an astounding discovery. Mr Anthony Keyter had conducted
an
almost identical campaign in the United States of America. Mr Janse
van Rensburg came across articles, blogs, posts and law
reports
concerning what he calls
"the spiralling process of
litigation proceedings instituted by Mr Anthony Keyter in the USA."
His claims were even more outlandish than those of Mr Barry
Keyter. It appears that the trigger to that campaign was an adverse
order against Mr Anthony Keyter in his divorce proceedings. Mr
Anthony Keyter repeatedly instituted action against persons and
institutions in the USA alleging, amongst other things, large-scale
governmental and corporate corruption including a conspiracy
to
kidnap and murder him.
[35)
Mr Janse van Rensburg referred to three a cases, apparently heard
together,
Anthony P. Keyter v Air India,
Case
No.
C09-897RAJ; Anthony P. Keyter v Ford Mo tor Company,
Case
No. C09-897RAJ; Anthony P. Keyter v Boeing Company
Case
No
C09-962RAJ (Air India Case},
a United States District Court
judge, the Honourable Richard A. Jones said at page 2 of his
judgment:
"
Mr. Keyter was dissatisfied with the result of his divorce, and
blamed the presiding judge, his former wife, and her attorney
for the
outcome. He then embarked on a campaign of communicating with
government officials in an effort to correct what he believed
to be a
miscarriage of justice. When his efforts were unsuccessful, he named
each of the officials with whom he communicated as
a co-conspirator.
Numerous iterations of this process have led to Mr Keyter's current
allegations, contained in a three-volume
"Dossier of Crimes"
which he has filed in each of these cases. The Dossier of Crimes
alleges that more than 14 000 officials
at all levels of state and
federal government are "known insurgents" guilty of various
"crimes." Among the
"known insurgents" are
members of the United States armed forces, the entire United States
Cabinet, thousands of state
and federal judges, entire Congresses of
the United States, state executive officials, state legislatures,
prosecuting attorneys
and a few Washington city officials for good
measure."
As
part of his campaign, he instituted criminal charges against
President Obama, President George W. Bush, Senators and
Representatives
of the 111th Congress of the USA and the Justices of
the US Supreme Court. There are attached to the papers copies of
judgments
in the USA in
Keyter v 230 Government Officials; A.P.
Keyter v John McCain et al; Keyter v George W. Bush, Chief Justice
John
G.
Roberts; Attorney-Genera/ Alberto Gonzales and FBI
Director Robert Mueller.
[36]
On 10 November 2015 Mr Anthony Keyter sent an e-mail to the board of
Barclays. He referred to the e-mails which Mr Barry Keyter
had sent
them and attached them. He expanded on the allegations of Mr Barry
Keyter, claiming that ABSA, its directors and legal
representatives
had, amongst other things, and I paraphrase:
1.
failed to report the criminal conduct alleged in accordance with
their statutory and fiduciary duties;
2.
perpetrated fraud, including claiming fees from Mr Barry Keyter
"for a non-existent motion";
3.
threatened Mr Barry Keyter with violence and attempted to
"silence
his testi- mony";
4.
made four attempts on Mr Barry Keyter's life;
5.
have obtained an illegal court order to
"muzzle"
Mr
Barry Keyter;
6.
attempted to imprison Mr Barry Keyter falsely;
7.
"conspired with corrupt judges, corrupt attorneys and corrupt
counsel to facilitate their illegal objectives";
8.acted
in concert with an organised crime network, which includes 22 members
of the SAPS and the South African
"police chief' ;
9.
gathered 593 people under their corrupt influence, acting in
contravention of the Prevention of Organised Crime Act; and
10.
committed the crime of kidnapping. He further -
1.
insinuated that Ms Ramos is corrupt and has used the political
influence of her husband to solicit corrupt government officials
to
"facilitate
[ABSA's]
lawless campaign";
2.
claimed that he had alerted the
"authorities",
including
" Interpol, UK Police and the British Government; and in
South Africa: the South African Police Services, the National
Prosecuting
Authority, the Public Protector, the Chief Justice,
Judges of the Constitutional Court and High Court, the President of
South Africa
and his Cabinet and the South African Parliament'
to
the alleged criminal conduct of ABSA, its legal representatives and
agents;
3.
claimed that the authorities had been provided with a 300-page
"Dossier of Crimes";
4.
insisted that the directors of Barclays have
"a fiduciary and
statutory duty to terminate the ongoing crimes being committed by
Barclays through its subsidiary, Absa Bank'
and to alert the
investing public, relevant authorities, including the London Stock
Exchange and the UK Police of the situation.
[37]
On 24 November 2015 Mr Anthony Keyter sent further e-mails to
Friedland Hart Solomon & Nicolson, the directors of Hammond
Pole,
the applicants' counsel and the partners, directors and management of
Webber Wentzel wherein he continued with his harangue
about ABSA and
its agents and legal representatives and claimed they were guilty of
a
"seditious conspiracy''
against the State and the
people of the RSA and insurrection against the laws of South Africa.
Friedland Hart Solomon & Nicolson
acted as correspondent
attorneys for Webber Wentzel and did nothing more than to file papers
with the High Court.
[38]
The above discourse relates to only part of the defamatory statements
made by the Keyter brothers against a large and ever-expanding
group
of people. The affidavits of Mr Janse van Ransburg, as deponent to
applicants set of affidavits, comprise hundreds of pages
that are
impossible to summarise here in a judgment.
[39]
On 15 December 2015 Fourie J duly joined Mr Anthony Keyter as a
respondent and extended the order to 4 and 5 February 2016
on the
special motion court.
VEXATIOUS
PROCEEDINGS
[40]
Counsel for the applicants argued that I should declare Mr Barry
Keyter and Mr Anthony Keyter vexations litigants.
[41]
Section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956 provides
the following:
(b)
If, on an application made by any person against whom legal
proceedings have been instituted by any other person or who has
reason to believe that the institution of legal proceedings against
him is contemplated by any other person, the court is satisfied
that
the said person has persistently and without any reasonable ground
instituted legal proceedings in any court or in any inferior
court,
whether against the same person or against different persons, the
court may, after hearing that person or giving him an
opportunity of
being heard, order that no legal proceedings shall be instituted by
him against any person in any court or any inferior
court without the
leave of the court, or any judge thereof, or that inferior court, as
the case may be, and such leave shall not
be granted unless the court
or judge or the inferior court, as the case may be, is satisfied that
the proceedings are not an abuse
of the process of the court and that
there is prima facie ground for the proceedings.
[42]
The Act requires an application and that the respondent should be
given an opportunity to be heard. On the facts before me
I would have
made such an order. However, there is no application before me and
the Keyter brothers have not been given the opportunity
to be heard.
The request for such an order was made in the applicants' heads of
argument and oral argument. It seems to be an afterthought.
This
request can therefore not be granted.
COUNTER
APPLICATION
("APPLICATION IN RECONVENTION”)
[43]
On 2 February 2016, two days before the hearing of this application,
Mr Barry Keyter and Mr Anthony Keyter filed a
"Claim in
Reconvention"
in which they cited 227 respondents.
They
are:
1.
The 29 applicants;
2.
19 directors of Barclays Pie;
3.
ABSA's legal agents:
3
advocates: Whitcutt, Christopher; De Witt, Claire; Steenekamp, A; 166
directors and employees of attorneys Webber Wentzel; 10
directors and
employees of Friedland Hart Solomon & Nicolson.
[44]
The only indication of service on the newly added respondents is an
e-mail sent to
SMiniki@iustice.gov.za,
and copied to Erin Warmington and
Jisa.lines@barclays.com.
The
founding affidavit in my file is signed by Mr Barry Keyter, but not
attested.
[45]
They seek the following relief:
AWARDING
"
1. Awarding The Keyters damages for mental anguish, pain and
suffering and loss of income in an amount to be disclosed during
the
court hearing.
2.
Awarding The Keyters punitive damages from each of The Bank
conspirators, as appropriate, for the mental and emotional suffering
caused by the lawless actions of The Bank; in an amount to be
disclosed during the court hearing.
3.
Awarding The Keyters additional Punitive Damages from each
Bank conspirator who holds/held
a
position of trust in
society, commensurate with:
3.1.
The status and influence of that Bank conspirator's position in
society;
3.2
The severity of their breach of the laws and their
breach of the public's trust;
3.3
The denigration they brought upon this court, upon the
legal system, and upon the State, by their insurrection against the
laws
and their seditions conspiracy against the authority of the
Republic of South Africa.
4.
Awarding The Keyters interest on the above amounts from the
date of the or der to the date of payment thereof
5.
Awarding the Keyters, and assess against The Bank conspirators,
their litigation cost as
costs of their time spent over nine
months at professional rates.
6.
Awarding The Keyters such other and further relief
as
is just.
COMPELLING
1.
Compelling The Bank conspirators to comply with and execute
his/her particular statutory duties, and particularly duties pursuant
to the PRECCA Act, with respect to the particular parcel of
allegations of corrupt activities and multiple crimes presented to
him/her by The Keyters.
2.
Compelling The Bank conspirators to comply with and execute
his/her particular statutory duties with respect to Stock Exchanges
and Securities Exchange
Commission
Regulations, concerning the particular parcel of allegations of
corrupt activities and multiple crimes presented to him/her
by The
Keyters.
ADMINISTRATION
OF THE LAW
The
Court is compelled by law to administer the laws and to terminate the
criminal conspiracy by The Bank conspirators, as reported
and
detailed in the
'Dossier of Crimes'
filed herewith."[sic]
[46]
The "affidavif' supporting the Notice of Motion is a repetition
of the allegations that gave rise to this litigation and
inclusion of
the
"Dossier of Crimes".
THE
ISSUES TO BE DECIDED
[47]
The issues that fall to be determined are the following:
1.
Whether the interim interdict granted by Hughes J (as extended by
Fourie J) should be made final against the brothers Keyter;
2.
Mr Barry Keyter's application for the arrest of the applicants and
for the application of laws; and
3.
The contempt of court application against Mr Barry Keyter.
4.
The "Application in Reconvention".
[48]
The applicants also seek to have the relief extended so as to include
two additional grounds for restraint against the brothers
Keyter so
as to interdict and restrain them from laying any new criminal
charges with the South African Police Service (SAPS) and/or
from
reporting any new complaints to any authoritative body or
organisation against any person, including, but not limited to the
applicants, in relation to the factual circumstances pertaining to
this matter without the leave of this court.
DEFENCE
[49]
Mr Anthony Keyter did not file an answering affidavit. Mr Barry
Keyter raised the defence, or justification, of qualified or
relative
privilege to rebut the inference of wrongfulness. It seems that he
raised this defence on his own and on Mr Anthony Keyter's
behalf.
Relative, or qualified privilege, exists where someone has a right,
duty or interest to make a defamatory assertion and
the person or
persons to whom the assertion is made, have a corresponding right,
duty or interest to learn of such assertions.
[1]
The Keyters' case is that they are victims of numerous crimes
committed by the applicants and that they therefore have an interest
and duty to communicate that to persons who have an interest and a
duty to learn of them.
[50]
This is a typical case where a justification of relative privilege
might apply. How ever, the victim of the crimes must
act within
the scope or limits of the privilege. To do so, they must establish
that the assertions are reasonably connected with
the dis charge
of the duty or furtherance of the interest. That is not the case
here. The statements of the Keyter brothers
are outrageous and
far-fetched figments of their imagination. They have been published
to a wide range of influential and authoritative
persons and
institutions, both national and international. I find therefore that
qualified privilege does not avail the Keyters.
They have exceeded
the limits of the privilege.
RELATED
APPLICATIONS
Contempt
of Court
[51]
Mr Barry Keyter not only continued his campaign against the
applicants after the interim order was granted by Hughes J, but
he
intensified it. He is clearly in contempt thereof.
Arrest
and Application of Laws
[52]
Mr Barry Keyter has made no case whatsoever for the arrest of the
applicants and this application stands to be dismissed. The
Application for Application of Laws
is simply misconceived and
has no merit.
CONCLUSION
ON DEFAMATION
[53]
In order to establish defamation, the applicants must prove the
following elements: (i) That the averments have been made,
(ii) that
they concerned the applicants, (iii) that they have the effect of
injuring the good name and reputation of the applicants,
(iv) that
they have been made and published intentionally, and (v) that the
utterance and publication had been wrongful. The respondents
have not
disputed that they had made the assertions. Mr Barry Keyter merely
repeated them and insisted that they were true, in
the public
interest and that he made them in circumstances of privilege. I have
already dealt with the submission of privilege.
[54]
That the allegations and assertions made by the brothers Keyter are
defamatory is axiomatic. The applicants are clearly entitled
to a
final interdict.
[55]
Counsel for the applicants applied in terms of Rule 28 of the Rules
of this court for amendment of the Notice of Motion. I
have granted
the amendment and I incorporate the amended Notice of Motions in my
order insofar as appropriate.
In
the result I make the following order:
1.
The interim order granted by Hughes J on 15 May 2015, as extended
from time to time, is confirmed. For the sake of ease of reading,
the
order is repeated here
2.
The 1st and 2nd respondents are hereby interdicted and restrained
from:
(a)
Publishing any defamatory allegations against any of the applicants;
(b)
Stating, imputing or implying that any or all of the applicants-
(i)
Have attempted to commit murder;
(ii)
Contravened any of the provisions of the Prevention and Com
bating of Corrupt Activities Act 12 of 2004;
(iii)
Committed the crime of aiding and abetting criminals to escape
justice;
(iv)
Are accessories after the fact;
(v)
Have committed the crime of incitement;
(vi)
Have obstructed justice in any way whatsoever;
(vii)
Have contravened the Johannesburg Stock Exchange regulations;
(viii)
Have contravened the provisions of the Companies Act 71 of 2008;
(ix)
Are under investigation by the SAPS or any other organ of the State
for having allegedly committed a crime(s) and/or stand
to be
imminently arrested in relation to any of the aforementioned
crime(s). It is recorded that the respondents are not precluded
from
assisting the NPA and/or SAPS in relation to existing criminal
investigations or reporting crimes allegedly committed against
the
respondents during this period;
3.
Contacting any of the applicants whether in person or by telephone,
electronic mail or by any other means save in relation to
ordinary
existing banking transactions unrelated to the content of these
applications and to include the parties in respect of
directorship of
Webber Wentzel attorneys or attempting to effect a citizen's arrest
or otherwise procuring the arrest of any of
the applicants and
arresting any of the applicants.
4.
The following additional orders are made:
4.1
The first, second and third respondents are restrained and
interdicted from:
4.
1.1 attempting to effect a citizen's arrest or procuring the arrest
of any of the applicants, or their agents (including their
legal
representatives) and from harassing any of the applicants or their
agents (including their legal representatives); or
4.
1.2 attempting, by disclosing to any person the allegations referred
to in the interim order granted by Hughes J on 15 May 2015
as
extended from time to time, thereby to impose upon such person a
duty
to report any of the allegations referred to in the said interim
order and/or stating, imputing or implying that such person
is an
accessory to such activity solely by reason of their failure to
report the allegations referred to in the interim order;
4.1.3
laying any new criminal charges with the SAPS against any person,
including but not limited to the applicants, in relation
to or
arising from the factual circumstances of the alleged fraudulent at
tempt by the first, second and seventeenth applicants
(and their
employees and associates) to extort monies from Mr Barry Keyter
and/or the Keyter Family Trust, without first having
obtained leave
of this court or any judge thereof to do so.
4.1.4
reporting any new complaints to any authoritative body or
organization against any person, including but not limited to the
applicants, in relation to or arising from the factual circumstances
of the alleged fraudulent attempt by the first, second and
seventeenth applicants (and their employees and associates) to extort
monies from Mr Barry Keyter and/or the Keyter Family Trust,
without
first having obtained the leave of this court, or the relevant judge,
or any judge to do so.
5.
Mr Barry Keyter and the Keyter Trust are declared to be in contempt
of the Court's order in case number 29512/2015 made on 15
May 2015 as
extended from time to time (the Court Order).
6.
Mr Barry Keyter is sentenced to imprisonment for a period of 60 days,
which sentence is subject to paragraphs 7 to 10, below.
7.
In order to give effect to the sentence imposed in terms of paragraph
5 above, the Registrar of this Court is directed to issue
a warrant
of arrest in respect of Mr Barry Keyter, which warrant shall be
effective from 30 days of the date of this order;
8.
The sentence in paragraph 5 is suspended for a period of 30 days from
the date of this order;
9.
Mr Barry Keyter is directed to purge his contempt within 30 days from
the date of this order, by -
9.1
writing to each and every person to whom any of the statements
forming the subject matter of this application have been published,
communicated and/ or disseminated and explaining that his conduct was
in contempt of the Court Order, withdrawing the statements
and
issuing an apology to the applicants in the wording shown in the
apology set out hereunder, and marked "Annexure A";
and
9.2
copying the applicants' appointed legal representative (using e-mail
address erin.warmington@webberwentzel.com) in each and
every such
notification to the recipients.
10.
Should Mr Barry Keyter fail to comply with paragraph 9 of this order
within the period of 30 days stipulated in paragraph 8
above, the
sentence in paragraph 6 hereof will come into effect immediately.
11.
Should Mr Barry Keyter, in any event, fail to comply in any respect
with this order, the sentence in paragraph 6 will come into
effect
immediately.
12.
Mr Barry Keyter is ordered to pay the costs of the application to
hold him in contempt of court on a scale as between an attorney
and
client, which costs shall include the costs of two counsel.
13.
Subject to the provisions of the order set out in paragraph 14 below,
Mr Barry Keyter and the Keyter Trust are ordered to pay
the costs of
this application on the scale as between an attorney and client,
which costs shall include the costs of two counsel.
14.
Mr Anthony Keyter is ordered to pay the costs of all proceedings I
this matter as from 15 December 2015 jointly and severally
with Mr
Barry Keyter and the Keyter Trust.
____________
J. HIEMSTRA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
Date of judgment:
2016-04-07
Date
heard: 2016-02-05
Counsel for the
Applicant:: Adv.
Christopher Witcutt sc
Attorneys for the
Applicant: Adv.
Claire de Witt
Webber
Wentzel
10
Fricker Road
lllovo
Boulevard
Johannesburg
Tel.:
011 530 5352/5312
Fax:
011 530 6352
E-mail:
trevor.versfeld@webberwentzel.com
Ref.:
Mr T. Versfeld
I
Mr M. Straeuli 3000156
c/o
Friedland Hart Solomon & Nicolson
4-301
Monument Office Park
79
Steenbok Avenue Monument Park Pretoria
Tel.:
012 326 3331/0200
Fax:
012 424 0207/0266
E-mail:
painter@fhsn.co.za
Ref.: Mr G.
Painter
Counsel for the
applicants: Mr
Mr Barry Keyter in person 66 […]
Randburg
Email:
[...]B
ANNEXURE
A
APOLOGY
I
was, in terms of an order delivered by the Honourable Justice Hughes
of the High Court of South Africa, Gauteng Division, Pretoria
on 22
May 2015, interdicted and restrained, pending the outcome of
proceedings under case number 29512/2015, from contacting and/or
defaming Barclays Africa Group Limited, ABSA Bank Limited, Marthinus
Christoffel Janse van Ransburg, Colin Beggs, Yolanda Cuba,
Thembisa
Dingaan, Shauket Fakie, David Hodnett, Mohamed Husain, Wendy
Lucas-Bull, Thoko Mokgosi-Mwantembe, Trevor Munday, Maria
Ramos,
Steven Palmer, Nadine Drutman, Sabshnee Naidoo, Hammond Pole Majola
Inc, Thea Williams, Chantal Erasmus, Chantal Theunissen,
Luanne West,
Sally Scharneck, Lebohang Makwakwa, Alan Hartman, Christopher Cleary,
Andrew Gerhard, Salome Labuschagne, Brenden
Michie, Kyle Richards and
their legal representatives by publishing statements to the effect
and/or stating imputing or implying
that they, or any of them -
1.
have attempted to commit murder;
2.
contravened any of the provisions of the Prevention and Combating of
Corrupt Activities Act 12 of 2014·
3.
committed the crime of aiding and abetting criminals to escape
justice.
4.
are accessories after the fact·
5.
have committed the crime of incitement"
6.
have obstructed justice in any way whatsoever;
7.
have contravened the Johannesburg Stock Exchange regulations;
8.
have contravened the provisions of the
Companies Act 71 of 2008
;
9.
Are under investigation by the SAPS or any other organ of state for
having allegedly committed a crime(s) and/or stand to be
immediately
arrested in relation to any of the abovementioned crime(s) except
insofar as such statements were made to members of
the SAPS and/or
NPA and would be relevant to the investigation and/or the potential
prosecution of the charges by members of the
SAPS and/or NPA, and my
co-operation in this regard was sought by members of the SAPS and/or
the NPA.
Recent
statements communicated, published and/or disseminated by me to you
were communicated, published and/or disseminated in contempt
of the
Court's order.
I
hereby unconditionally retract all statements made to such effect and
apologise unreservedly to the abovementioned persons for
having made
such statements.
[1]
See in general
Neethling,
Potgieter and Visser, Neethling's Law of Personality 145