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2011
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[2011] ZAKZDHC 80
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Kentz Overseas Ltd v McGillan (11384/2010) [2011] ZAKZDHC 80 (12 November 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO: 11384/2010
In the matter between:
KENTZ OVERSEAS LTD
…........................................................................
APPLICANT
and
G A McGILLAN
…...................................................................................
RESPONDENT
JUDGMENT
Date: 12 November 2011
PLOOS VAN AMSTEL, J
[1] The applicant seeks
the confirmation of a rule nisi which called upon the respondent to
show cause why a final order should
not be granted in the following
terms:
‘
2.1 that the
respondent is directed not to defame the applicant to any party in
any manner;
2.2 that the respondent is directed
not to communicate in any manner whatsoever with any person employed
by, contracted to or in
any other manner involved with:
2.2.1 Kuwait Oil Company;
2.2.2 Fluor Corporation; or
2.2.3 any subsidiary company or
division within the Fluor Corporation Group
in relation to the business affairs of
the applicant, Kuwait Oil Company and / or the Fluor Corporation or
any of its divisions
or subsidiary companies;
2.3 that the respondent is directed
not to take any action which is designed to interfere with the
business relationship between
the applicant on the one hand and/or
the Fluor Corporation or any of its subsidiary companies and/or
divisions or the Kuwait Oil
Company on the other hand;
2.4 that the respondent is directed to
pay the costs of the application’.
[2] Paragraphs 2.1, 2.2,
2.3 of the rule nisi were ordered to operate as an interim interdicts
with immediate effect.
[3] The applicant is
registered and incorporated in Jersey. It carries on business as
managing consultants, which includes the business
of placement of
employees with construction companies. It often employs the employees
itself and seconds them to construction companies.
In January 2009
the applicant employed the respondent in terms of a written
employment contract as a lead contracts administrator
and placed him
with a company called Fluor Corporation, which is a large
multinational construction company involved in large construction
and
development projects in Kuwait. The contract was terminable upon the
giving of one month’s written notice by either party.
[4] The applicant
terminated the respondent’s employment contract in September
2010. The reasons for the termination and the
validity thereof are in
dispute but are not relevant for present purposes. The application
for an interdict to restrain the respondent
from defaming the
applicant arose out of an email which the respondent addressed to Mr
James Baker, who was Fluor’s project
manager on the project
where the respondent was employed. The email was sent on 22 September
2010 and was copied to a large number
of people employed by Fluor as
well as to a senior employee of Kuwait Oil Company. The part of the
email which contains the defamatory
material complained of reads as
follows:
‘
I don’t
take any advice from you or fraudulent operators like Kentz who have
bribed you and you have accepted their bribes
for years. In collusion
with Tom Cullen you devised this plan to ignore the serious financial
irregularities at Kentz, hell they
even had to fire their accountant
for fraud last month. You think by getting rid of me this fraud will
just smooth over, no ways,
you will be investigated. Your protection
racket for Kentz is over. The enticement of labour under false
pretence to Kuwait is
outlawed in international law, this will be
investigated and action taken to close the practice.’
[5] It was not disputed
that the allegations in the email concerning the applicant are
defamatory. The respondent accused the applicant
of being a
fraudulent operator, bribing people, being a party to serious
financial irregularities, being involved in a protection
racket and
enticing labour to Kuwait under false pretences.
[6] The first point
relied on by the respondent in opposing the confirmation of the rule
is that the applicant failed to show that
the deponent to the
founding affidavit was authorised either to bring the application or
to depose to the affidavit.
[7] The founding
affidavit was deposed to by Eoin Hurley, who describes himself as the
chief operating officer of the Construction
Business Unit of the
applicant. He says he was duly authorised to depose to the affidavit
and make the application on behalf of
the applicant. In his answering
affidavit the respondent denied that Mr Hurley was authorised to
bring the application or to depose
to the affidavit. He says it is
significant that Mr Hurley had not attached any resolutions which
would evidence his authority
to act as aforesaid. He concludes with a
challenge to Mr Hurley to provide such evidence in order for the
court and him to be satisfied
that Mr Hurley was so authorised.
[8] In Ganes and another
v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) Streicher JA said in
paragraph 19 that the deponent to an affidavit in motion proceedings
need not be authorised by the party
concerned to depose to the
affidavit. It is the institution of the proceedings and the
prosecution thereof which must be authorised.
He points out that rule
7 of the Uniform Rules provides a procedure to be followed by a
respondent who wishes to challenge the
authority of an attorney who
instituted motion proceedings on behalf of an applicant.
[9] The application was
launched by the applicant’s attorney in Johannesburg, whose
authority to do so has not been challenged.
As Streicher JA pointed
out in the Ganes case, it is not relevant whether Mr Hurly had been
authorised by the applicant to depose
to the affidavit. The attorney
who launches the application decides which witnesses are to be used
in support of the application.
[10] The second point
relied upon by the respondent is that the launching of the
application was an abuse of the process of the
court. He says he had
made a tender, with prejudice, in the light of which the relief
sought became unnecessary. The point is the
following. On 22
September 2010 an email was sent to the respondent in which an
employee of the applicant stated the following:
‘
We have been
made aware of Email and SMS correspondence that has been sent by you
since your departure from the State of Kuwait.
The Company views the
content of the correspondence and the fact that they have been public
as being defamatory and as a consequence
we require that you
unconditionally withdraw the accusations made in the correspondence
in so far as they may relate to Kentz Group,
its subsidiary in the
State of Kuwait and its Officers. We also require a written
undertaking on your part that you will cease
and desist from future
correspondence of this type to our client. Failure to act on this
request will result in the company taking
legal action against you
without any further notice.’
The respondent points out
that the founding affidavit was deposed to on the following day, on
23 September 2010, that the application
papers were issued by the
registrar on 24 September 2010 and that the rule nisi together with
the interim order was granted on
27 September 2010. The tender on
which the respondent relies is dated 13 October 2010. It was
telefaxed to the applicant’s
attorney, presumably on that day.
The relevant part of it reads as follows:
6. ‘Without conceding that there
is any urgency or basis for the application as sought and, reserving
the right to argue urgency
and the merits (should the need arise),
our instructions are to make the following proposal in order to avoid
taking up unnecessary
time in the urgent court or any other court for
that matter: -
6.1 That our client’s
undertakings, as set out below, be agreed to, alternatively be made
an order of court:-
6.1.1 Our client will not communicate
in any manner whatsoever with any person/s employed by or contracted
to in any manner involved
with the Kuwait Oil Company, Fluor
Corporation and any other subsidiary group or division within the
Fluor Corporation Group, in
specific relation to the business affairs
of the applicant, Kuwait Oil Company and/or Fluor Corporation or any
of its divisions
or subsidiary companies;
6.1.2 our client will not take any
action which will in any way interfere with the business relationship
between the applicant on
the one hand and/or Fluor Corporation or any
of its subsidiary companies and/or divisions or the Kuwait Oil
Company on the other
hand.
7. The aforesaid undertaking does not
encompass a tender for costs because, notwithstanding the aforesaid
proposal, our client believes
that your client was not entitled to
have brought this application.’
[11] There are two
obvious shortcomings in the tender. Firstly, there was no tender with
regard to paragraph 2.1 of the notice of
motion, in other words a
tender or undertaking that the respondent would not defame the
applicant. Secondly, the tender expressly
did not include the costs
of the application, which in itself would have entitled the applicant
to persist with the application
and seek an order for costs. There is
no basis for the contention that the application was an abuse of the
process of the court,
or that the tender protects the respondent in
any way.
[12] The third point
relied on by the respondent is his assertion that the allegations in
the offending email are true and in the
public interest,
alternatively that they constituted fair comment. He tried to
demonstrate the truth of the allegations regarding
fraud by referring
to discrepancies between his letter of appointment and his employment
contract. This evidence does not establish
fraud. In any event, if
one reads his allegations of fraud in the emails in context it seems
clear that he was not referring to
his employment contract. He was
referring to fraud in connection with the applicant’s
operations. He has provided no evidence
to establish the truth of
this. The same goes for his allegations of bribery, serious financial
irregularities, a protection racket
and the enticement of labour
under false pretences. Not only has he not established the truth of
the allegations, he has made no
case whatsoever to show that the
publication of the allegations was in the public interest.
[13] In January 2011 the
respondent, in spite of the interim order, defamed the applicant
again in an email to a friend, in which
he referred to the ‘fraud
being conducted by Kentz’, and in an email to another senior
employee of Kuwait Oil Company.
He has also insisted in his answering
affidavit that the allegations in his emails are true. I am satisfied
that the applicant
is entitled to interdictory relief.
[14] I however do not
think that the whole of the rule nisi should be confirmed. Paragraph
2.2 does not seem to me to refer to unlawful
conduct. It seeks to
prevent the respondent from communicating with any person employed by
any of the companies referred to in
relation to their business
affairs. That will also cover communications which are perfectly
lawful. I think the applicant’s
rights will be adequately
protected if paragraphs 2.1 and 2.3 are confirmed. I prefer to change
the wording slightly.
[15] I accordingly make
the following order:
(i) The respondent is
interdicted from defaming the applicant;
(ii) The respondent is
interdicted from interfering unlawfully with the business
relationship between the applicant and Fluor Corporation
or any of
its subsidiary companies or divisions, or Kuwait Oil Company;
(iii) The respondent is
ordered to pay the costs of the application, including all the costs
which have been reserved;
(iv) The remainder of the
rule nisi is discharged.
______________________
PLOOS VAN AMSTEL J
Appearances:
For
the Applicant :
P J Wallis
Instructed
by :
Van Heerden Attorneys
Durban
For
the Respondent :
Mr K Ioulianou
Instructed
by
:
Cowen-Harper Attorneys
Durban
Date
of Hearing :
8 November 2011
Date
of Judgment :
12November 2011