Traut v Fiorine and Another (460/04) [2006] ZAWCHC 45; [2007] 4 All SA 1317 (C); 2008 (1) BCLR 84 (C) (24 October 2006)

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[2006] ZAWCHC 45
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Traut v Fiorine and Another (460/04) [2006] ZAWCHC 45; [2007] 4 All SA 1317 (C); 2008 (1) BCLR 84 (C) (24 October 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No.: 460/2004
In this matter between:
WILLEM MYNHARDT TRAUT
Applicant
And
ANNA
GABRIELLA FIORINE
First
Respondent
MR FIORINE
Second Respondent
Coram: Yekiso J
Delivered: 24 October 2006
Summary:
Application for a final interdict
: requirements for the
granting of – principles and requirements for granting of re-stated
Held: on the merits: requirements for the granting of final interdict
not satisfied as an alternative claim for damages is available
Right to freedom of expression
Held: even if applicant would have been successful on the merits, the
order sought, in the form formulated as to time and its operation,
would not satisfy the threshold requirements set out in the
limitation clause – section 36 of the Constitution of the Republic
of South Africa, 1996.
JUDGMENT DELIVERED ON 24 OCTOBER 2006
YEKISO, J
[1] By way of Notice of
Motion issued out of this Court, the applicant seeks various forms of
relief against the first and the second
respondent. The first such
relief, sought against the first respondent in the form of a general
prohibitory interdict, is couched
in the following terms:
“
The First Respondent is interdicted and restrained
from informing members of the public that the Applicant has
misappropriated or
stolen the First Respondent’s money.”
[1.2] The second such
relief, sought against both the first and the second respondent, is
couched in the following terms:
“
Respondents are interdicted and restrained from
displaying any notices, similar to the notice attached hereto and
marked Annexure
“X”, in any place.”
I shall refer to the
notice referred to in this leg of the relief sought later in this
judgment.
[1.3] The last leg of the
relief sought, similarly against both the first and the second
respondent, reads as follows:
“
The Respondents are
interdicted and restrained from placing any notices and/or
advertisements in the media similar to the notice which
appeared in
the Langeberg / Wynland Bulletin of 19 December 2003, a copy of which
is annexed hereto marked Annexure “X1” under
the heading “Privaat
Versoek”.”
The copy of the
publication referred to in the last leg of the relief sought is
similarly attached as annexure “X1” to the Notice
of Motion.
Similarly, I shall refer to this latter annexure later in the course
of this judgment. Both the notices complained
of were allegedly
published during December and, in particular, during the period
preceding 19 December 2003.
[2] Apart from asserting
public interest and truthfulness in relation to the statements
complained about as the basis of their defence,
the respondents
resist the relief sought on the basis that if same is granted in the
form sought and prayed for, same will grossly
curtail the
respondents’ fundamental right to freedom of expression guaranteed
in section 16 of the Constitution of the Republic
of South Africa,
1996 (“The Constitution”).
[3] The Notice of Motion
referred to in paragraph [1] above was issued out of this Court on 26
January 2004. Once the pleadings
were closed, the matter was
enrolled for hearing. In the event, the matter was argued before
me on Wednesday, 2 November 2005.
After hearing argument on behalf
of the parties I reserved judgment. In the paragraphs which follow
is my judgment in the matter.
I should at this stage of this
judgment convey my gratitude to both
Mr Wesley Vos
and
Mr T
A Barnard,
both of the Cape Bar, who appeared for the applicant
and the respondents respectively, for the comprehensive heads of
argument filed.
I venture to say these assisted in no small measure
in the determination of the issues in dispute.
THE PARTIES
[4] In his founding
affidavit, the applicant describes himself as an adult businessman
and financial adviser and, as at the time of
deposing the founding
affidavit, was resident at No 17 Du Toit Street, Kleinbaai, Gansbaai,
Western Cape. He has conducted business
as a financial adviser and
consultant since 1981. He was employed by the Standard Bank of
South Africa, Swellendam ostensibly as
a financial adviser and
investment consultant, from 6 January 1986 up until 2001 when,
according to this version, he resigned.
[5] The first respondent
is an adult female person of Belgian origin, whose ordinary place of
residence at the time of deposing her
answering affidavit was Zeedijk
127, Oostende, Belgium. She, together with the second respondent,
has a holiday home at 7 Cannon
Street, Swellendam, Western Cape.
The second respondent is the spouse of the first respondent and both
are Belgian nationals.
THE APPLICANT’S
OCCUPATION AND BUSINESS ACTIVITIES
[6] The applicant alleges
in his founding affidavit, that over the years he had built up an
excellent name and reputation as a financial
adviser and an
investment consultant in the Overberg area. The area of his
business activities at the time included the agricultural
towns of
Swellendam, Riversdal, Caledon and the surrounding areas, including
Hermanus. The applicant goes on to say that he had,
in the course
of his business activities, established himself as a reputable
financial adviser with an excellent track record and
good name in
towns in and around the Overberg area and as well as the surrounding
agricultural sector. He had, in the course of
time, built up a
substantial client base. The substantial client base referred to
would obviously be made up of members of the
public.
[7] During 2000, and this
is according to the applicant’s version, he was approached by the
first respondent to advise her with
regard to certain investments
which she wished to make. Arising from this approach, the applicant
advised the first respondent
with regard to possible investments
opportunities which she could make. The applicant thereafter
advised the first respondent to
invest certain monies with Momentum
Life, Old Mutual and the Standard Bank. The applicant goes on to
say in his founding affidavit
that the first respondent, in total,
invested an amount of approximately R220,000-00. The applicant does
not state in his founding
affidavit whether he himself gave the first
respondent an account with regards to the performance of these
investments and, if he
did not do so, whether the institutions at
which such funds were invested gave the first respondent an account
with regards to the
performance of the investments concerned.
[8] During or about 2000,
so the applicant further states in his founding affidavit, the first
respondent expressed dissatisfaction
with the performance of these
investments. The dissatisfaction arose out of a decrease in
capital, and accordingly, the value
of these investments. The
explanation by the applicant that the first respondent did not need
to be alarmed by a temporary fluctuation
in the value of her
investment as she initially took a long term view with regards to the
funds she had invested, did not allay the
first respondent’s fears.
[9] On 5 February 2002,
so the applicant goes on to state in his founding affidavit, the
first respondent deposed an affidavit (the
SAP affidavit) in which
she requested the S A Police Service, Swellendam, to investigate and
press criminal charges against the applicant,
ostensibly for theft or
fraud. The matter was investigated under the Swellendam SA Police
Service reference number: MAS 39/12/2002.
During July 2003 the
applicant was informed by the SA Police Service, Swellendam that the
Senior State Prosecutor, Swellendam had
declined to prosecute.
It appears that the
matter of the first respondent’s complaint was also referred to the
Director of Public Prosecutions who similarly
declined to prosecute.
ALLEGED DEFAMATORY
CONDUCT: FIRST RESPONDENT
[10] The applicant
further states in his founding affidavit that the first respondent,
and probably assisted by the second respondent,
put up defamatory
notices of and concerning the applicant at various prominent places
in and around Swellendam. The places whereat
such notices were put
up included the Spar Supermarket, the Municipal Offices, a hardware
store and the Sentraal-Suid Koöperatief
Beperk, the latter being the
headquarters of the farmers’ Co-operative Society.
[11] The content of the
notices complained of and to which reference is made in the preceding
paragraph, read as follows:
“
Die polisie ondersoek
met betrekking tot die praktyke van die voormalige beleggingsagent
van Standard Bank, ene Willie Traut, is huidiglik
aan die gang.
Indien u op enige manier deur hierdie persoon verlies of skade gelei
het, moet u my dringend kontak by the volgende
nommer: 028 514 2447.”
The notices, a sample
whereof is annexed as annexure “4” to the applicant’s founding
affidavit, is the same document referred
to as annexure “X” to
the Notice of Motion. Depicted in this notice is the face of a
pirate who clutches a dagger between his
teeth.
[12] At the bottom of the
notice there is written several telephone numbers on perforated
tearsheets designed to make it easy to tear
off from the notice
itself and to make contact with the person soliciting a response to
such notice. The telephone number 028-514
2447 written on the
several tearsheets appended to the notice, is that of the
respondents. It is evident that several telephone
numbers were torn
off and that, probably, the persons who may have torn off such
tearsheets, may have made telephonic contact with
the respondents.
[13] The applicant thus
alleges in his founding affidavit that the aforementioned notice and,
in particular, the contents thereof,
are defamatory in that the
applicant is depicted as a pirate; that on basis of this notice an
impression is created that the applicant
had caused persons to suffer
loss; that the notice creates an impression to the reader that the
applicant was being investigated
and that the depiction of a picture
of a pirate thereon suggests that the applicant steals from innocent
people.
[14] Also annexed to the
applicant’s affidavit is an affidavit by one Joy Patricia Webber in
which she states that she was informed
by the first respondent that
the applicant had misappropriated her (the first respondent’s)
money. The affidavit by one Hugo
Carstens, an attorney practising
in Gansbaai, also annexed to the applicant’s founding affidavit,
confirms a telephonic conversation
Carstens had with the first
respondent in which she (the first respondent) informed Carstens that
the applicant had indeed stolen
her money and that he (the applicant)
was being investigated by the police.
[15] On 19 December 2003,
there was published, ostensibly by the second respondent, in The
Langeberg / Wynland Bulletin, the latter
being a newspaper
circulating in Swellendam and surrounding areas a notice concerning
the applicant. The notice, under the heading
“Privaat Versoek”,
reads as follows:
“
Persone wat met Mnr
Willie Traut besigheid gedoen het tydens sy tyd as beleggingsagent by
Standard Bank, Swellendam, word versoek
om dringend met my in
verbinding te tree by die volgende nommer:
028-5142447 (Mnr
Fiorine).”
This notice is annexed as
annexure “6” to the applicant’s founding affidavit and is the
same document annexed and referred to
as annexure “X1” to the
applicant’s Notice of Motion.
[16] The applicant
similarly complains that the aforementioned advertisement is
defamatory in that it creates an impression that the
applicant was
being investigated, which impression impacts negatively to the
applicant’s right to dignity, good name and reputation.
A letter
addressed to the first respondent by the applicant’s attorneys
dated 21 January 2004 demanding that the first respondent
desist from
making defamatory statements of and concerning the applicant, coupled
with an undertaking to desist from the conduct
complained of, did not
elicit any response.
[17] There is no evidence
to suggest that any further defamatory material was published after
19 December 2003 or that any defamatory
statements were made after 19
December 2003. Indeed, there is no evidence to suggest that any
defamatory conduct was committed
during the whole of the period
leading to the hearing of the matter on 2 November 2005. There does
not appear to be evidence to
suggest that during the whole of the
aforementioned period, to use the words of Kuny AJ in
Tshichlas
and Another v Touch Line Media (Pty) Ltd
2004(3) SA 112 (WLD) at
126H that the applicant was subjected to a continuing and ongoing
campaign of vilification and defamation
by the respondents.
[18] In
paragraph [9] above a reference is made to the SAP affidavit deposed
to by the first respondent in which she requests the
police,
Swellendam, to investigate charges against the applicant. That
affidavit, deposed to on 5 December 2002, and not on 5 February
2002
as stated in the applicant’s founding affidavit, is annexed as
annexure “1” to the applicant’s founding affidavit.
In
paragraph 6 of the SAP affidavit the first respondent states that, at
her own initiative, she had the applicant call at her home
and that
the applicant did in fact call at her home on approximately four
separate occasions. The idea was to find out from the
applicant
with regards to what had become of the funds she had entrusted to him
to invest on her behalf. She states in the aforementioned
affidavit
that on each such occasion the applicant “
was elke slag
dronk gewees en het dan net begin sing”
so that
nothing could eventually be discussed. Neither in the founding
affidavit nor in the replying affidavit does the applicant
present
evidence to gainsay this assertion.
[19] In
paragraph 9 of the SAP affidavit, the first respondent alleges that
the applicant redirected all correspondence relating to
her
investments to his own (the applicant’s) address without the
authority of the first respondent. Further, in paragraph 12
of such
affidavit the first respondent states that on several occasions large
sums of money were withdrawn from her investment account
only to be
redeposited later into her investment account without her knowledge.
In paragraph 12 of the same affidavit the first
respondent states
that the manager of Standard Bank, Swellendam did “
erken dat
hy
(the manager, Standard Bank)
verantwoordelik
voel vir die aangeleentheid aangesien hy
(the manager,
Standard Bank)
die afgelope twee jaar vir Mnr Traut ‘gedek’
het
” and that, as a result Standard Bank had to apply
pressure on the applicant to resign as an investment consultant at
the Swellendam
branch of the Standard Bank.
[20] The applicant does
not deny or deal with the aforementioned allegations, serious as they
are, in his founding and replying affidavit
despite a clear
impression being created in the said affidavit that the applicant had
made himself guilty of some improper conduct.
THE FIRST
RESPONDENT’S ANSWERING AFFIDAVIT
[21] There is no dispute
that the notices that the applicant is complaining about were put up
at places indicated in the applicant’s
founding affidavit. The
first respondent alleges though in her answering affidavit that she
did not put up the notices complained
about although she knew about
such notices. The first respondent goes so far as to say in her
answering affidavit that their friends
(the first and the second
respondent’s friends) who had knowledge of the problem the first
respondent had with the applicant, put
up the notices.
[22] As to the notice
published in the Langebaan / Wynland Bulletin of 19 December 2003,
the first respondent states that the second
respondent did place the
notice in the aforementioned publication. However, she denies that
the notice is defamatory nor that it
impairs the applicant’s
dignity, good name and personality. The second respondent does
confirm in his opposing affidavit that
he is responsible for placing
the notice complained about in the aforementioned publication. He
(the second respondent) states
in his opposing affidavit that the
sole purpose of placing the notice in the publication concerned was
to solicit information from
the members of the public which would
assist him and the first respondent with the investigation they had
then launched against the
applicant, that such information would
assist them with the completion of such investigation which was
intended to protect their
rights and interests and thus, by
implication, the notice was not published with the purpose of
impairing the applicant’s dignity,
good name and personality.
[23] The first respondent
makes several allegations in her answering affidavit to which
allegations the applicant, in his replying
affidavit, either responds
by way of a bare denial of such allegation or lack of recollection of
events in relation to such allegations
without any form of
elaboration or substantiation.
[23.1] One of those
allegations relates to cheques which the first respondent gave to the
applicant. The first respondent alleges
in her answering affidavit
that the applicant required her, in drawing cheques for the purpose
of the proposed investments, to omit
details relating to the
particulars of the payee and the date on which such cheques ought to
have been drawn. The first respondent
states that the applicant had
explained to her that particulars relating to the payee and the dates
on such cheques would be inserted
as and when the institution at
which such funds would be invested would have become known. The
applicant, in response to this allegation,
states that he does not
recall this arrangement nor does he recall how he dealt with the
cheques the first respondent had given to
him. It is implicit in
the first respondent’s answering affidavit that no account was
given to her as regards where such funds
were invested and also that
no account was given to her relating to the performance of such
investments.
[23.2] In paragraph
3.5.10 of her answering affidavit, the first respondent states that
the total amount given to the applicant
for purposes of the proposed
investment was in an amount of R 230,000-00. The applicant’s
response to this allegation is that
same is incorrect, once again,
without any form of elaboration.
[23.3] On 16 October
2002, the applicant addressed a letter to the first respondent in
which it is stated that the total amount
invested from the period 1
February 2000, ostensibly up to 16 October 2002, was in an amount of
R 100,000-00 and that any withdrawal
from the amount so invested
would only be possible in February 2005. The letter does not give
an account of the rest of the funds
entrusted to the applicant, does
not give an account of how the rest of the funds were invested and
also no account is given of the
performance of such investments. A
clear impression created on basis of the contents of this letter is
that only an amount of R
100,000-00 was entrusted to the applicant
for purposes of the investment.
[24] In paragraph 3.7.6
of her answering affidavit, the first respondent further states that
she had in the course of her investigation
established that several
requisitions were made from some of the investment accounts in which
some of the funds were withdrawn through
forgery of her signature on
such requisition forms. Similarly, the applicant does not take
issue with this allegation, except to
refer to the decision of the
Director of Public Prosecutions in declining to prosecute the
applicant. There is no clear indication
on basis of the evidence on
record as regards the basis for the Senior State Prosecutor and the
Director of Public Prosecutions declining
to prosecute. I would
therefore assume that the Prosecution Authorities may have declined
to prosecute on the basis that the State
felt it would have
difficulty to prove its case beyond reasonable doubt as opposed to
the less exacting standard of preponderance
of probabilities
applicable in matters pertaining to civil litigation.
[25] What appears to have
prompted the first respondent to initiate criminal proceedings
against the applicant is the letter of 16
October 2002 addressed to
the first respondent by the applicant purporting to confirm that only
an amount of R 100,000-00 was entrusted
to him for the purpose of the
proposed investment. I have already made a point elsewhere in this
judgment that both the Senior
State Prosecutor, Swellendam and the
Director of Public Prosecutions declined to prosecute the applicant.
It is against the background
of the evidence set out in the
preceding paragraphs that the notices annexed as annexures “X”
and “X1” to the applicant’s
Notice of Motion surfaced and which
ultimately led the applicant to launch these proceedings for the
relief set out in the Notice
of Motion.
[26] In summary, the
applicant’s version in support of the relief sought in terms of the
Notice of Motion is that it is the first
and the second respondent
who are responsible for the publication of the notices marked as
annexures “X” and “X1” to the
Notice of Motion; that the
aforementioned notices are defamatory of the applicant in that the
applicant’s dignity, good name, reputation
as a businessman and
personality is grossly impaired by such notices and that the refusal
by the first respondent to give an unequivocal
undertaking to desist
from such conduct, justified a conclusion that the respondents would
persist with their conduct complained
of. It is for these reasons
that the applicant seeks, as against both the respondents, an
interdict in its final form on such unqualified
terms as contemplated
in his Notice of Motion.
[27] The respondents, on
the other hand, in an attempt to resist the relief sought, and whilst
not denying having had knowledge of
the notices complained about,
contend that the order which the applicant seeks in terms of the
Notice of Motion, unqualified as it
is as to time and operation, will
effectively silence the respondents in perpetuity and, as such, the
order sought, if granted in
the form sought, will significantly
curtail their respective rights to freedom of expression enshrined in
section 16 of the Constitution.
It is further contended on behalf
of the respondents that the order sought, in order to fall short of a
violation of the respondents’
right to freedom of expression, would
have to be justified in terms of the limitation clause contained in
section 36 of the Constitution,
which would require such order to be
“reasonable and justifiable in an open and democratic society based
on human dignity, equality
and freedom.” The respondents thus
contend that the order sought in the form contemplated in the Notice
of Motion, falls short
of the threshold set out in the limitation
clause.
RIGHT TO FREEDOM OF
EXPRESSION
[28] It is trite,
particularly at this stage of our constitutional democracy, that the
right to freedom of expression not only forms
an integral part of our
law, but also forms part of the fundamental rights contained in
numerous international instruments such as
the International Covenant
on Civil and Political Rights, the African Charter on Human and
People’s Rights, to name but a few of
such international
instruments, all of which specifically protect the right to freedom
of expression. To the extent that South
Africa has acceded to those
instruments and to the extent that section 232 of the Constitution
provides that customary international
law is law in the Republic
unless it is inconsistent with the Constitution or an Act of
Parliament, those international instruments
could very well be said
to be part of our law.
[29] In any event section
16 of the Constitution, and under the heading “Freedom of
Expression” provides as follows:
(1) 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.
(2) The right in
subsection (1) does not extend to –
(a) propaganda for war;
(b) incitement of
imminent violence; or
(c) advocacy of hatred
that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
[30] To the extent that
the applicant may wish to rely on section 36 of the Constitution for
purposes of seeking to justify a limitation
of the respondents’
rights to free expression in terms of the orders sought, the
onus
to prove that such limitation is reasonable and justifiable,
rests on the applicant (See
Coetzee v Comitis and Others
2001(1)
SA 1254 (C)
at 1273 para [40]). What I am required to
determine in this regard is whether the respondents’ right to
freedom of expression are
likely to be curtailed by the orders sought
and if the effect of the order sought is likely to effectively limit
the respondents’
right to freedom of expression, whether such
limitation is justified in terms of the limitation clause contained
in section 36 of
the Constitution.
[31] Once the issue of
limitation of the respondents’ right to freedom of expression is
resolved, only then shall I proceed to determine
if, on basis of the
evidence on record, the applicant has made out a case for a final
interdict he seeks in terms of the Notice of
Motion.
In order to determine
this issue, I will obviously have to look at the evidence on record
as a whole, more particularly, the curtailing
effect the orders
sought would have on the respondents’ rights to freedom of
expression, and also as to whether such curtailment
or limitation
would be “reasonable and justifiable in an open and democratic
society, based on human dignity, equality and freedom”.
EVIDENCE IN MOTION
PROCEEDINGS
[32] In paragraphs [26]
and [27] I have, in a summary form, set out the respective versions
of the parties. It is on the basis of
those versions that I am
required to determine if the applicant has discharged the
onus
resting on him to make out a case for the orders prayed for in
the Notice of Motion. Such determination, these being motion
proceedings,
will have to be made on basis of evidence on affidavit.
Various allegations and counter allegations, denials and counter
denials
are made in the parties’ respective affidavits.
[33] There are two
versions of evidence on record on basis of which I will have to
determine if the applicant has made out a case
for the relief sought.
Basically, the applicant’s version is that the respondents, in a
manner defamatory of his good name, personality,
reputation and in
violation of his right to dignity, have informed the members of the
public that the applicant has misappropriated
the first respondent’s
money, that such statements are untrue, and that the applicant’s
version of innocence to these allegations
is vindicated by both the
Senior State Prosecutor, Swellendam and the Director of Public
Prosecutions in declining to prosecute the
applicant. On the other
hand, the respondents’ versions amount thereto that the notices
complained about were intended to elicit
the assistance of the
members of the public for purposes of collecting evidence that she
might have wished to use in a civil action
she had then contemplated
instituting against the applicant. The contention by the first
respondent in this regard is that whatever
statements she may have
made that the applicant misappropriated her money, such statements
are true and in the public interest in
as much as the applicant’s
occupation and nature of work at the time, involved dealing with the
public. It is against the background
of these two versions, that I
am required to determine if the applicant has made out a case for the
relief sought in the Notice of
Motion.
[34] In as much as there
are disputed facts based on the parties’ versions as pointed out in
paragraphs [26] and [27] of this judgment,
it therefore follows that
the first determination to be made is on whose version should such
disputed facts be determined. The
approach to be followed in the
determination of upon what evidence the relief sought is to be
determined is set out in a number of
decisions of the High Court and
the Supreme Court of Appeal. The leading case in which this
approach is formulated is
Plascon Evans Paints v Van Riebeeck
Paints
[1984] ZASCA 51
;
1984 (3) SA 623
AD. The approach is formulated as
follows at 634 E:
“
Secondly, the
affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together with ancillary
relief, on the papers and without resort to oral evidence. In such
a case the general rule was stated by Van Wyk J (with whom De
Villiers JP and Rosenow J concurred) in Stellenbosch Farmer’s
Winery Ltd v Stellenwyl Winter (Pty) Ltd 1957(4) SA 234 C at 235
E-G,
to be:
‘…
where there is a
dispute as to the facts a final interdict should only be granted in
Notice of Motion proceedings if the facts stated
by the respondents
together with the admitted facts in applicant’s affidavits, justify
such an order … where it is clear that
facts, though not formally
admitted, cannot be denied, they must be regarded as admitted.”
[35] It is further trite
that, in motion proceedings, evidence that is not denied should be
treated as factually correct and as not
in dispute. The position is
set out as follows in LAWSA, Vol 3(1) (1
st
Re-issue,
paragraph 137):
“
In dealing with the
Applicant’s allegations of fact, the Respondent should bear in mind
that the affidavit is not a pleading and
that a statement of lack of
knowledge coupled with a challenge to Applicant to prove part of his
case does not amount to a denial
of the averments of the Applicant.
It follows that failure to deal at all with an allegation by the
Applicant amounts to an admission
of such allegation. It is
normally not sufficient for the Respondent to content himself with a
bare and unsubstantiated denial.”
[36] Based
on this approach I shall now proceed to determine which of those
facts stated in the applicant’s founding affidavit are
admitted by
the respondents and which of those facts stated in the respondents’
answering affidavits are not denied by the applicant.
If,
notwithstanding the disputed facts, the facts stated by the
respondents in their respective answering or opposing affidavits,
together with the facts admitted in the applicant’s affidavit
justify the granting of the order, then the applicant will be
entitled
to the sought orders in terms of the Notice of Motion
provided always that such orders do not fall short of the threshold
requirements
contained in the limitation clause.
[37] In
paragraph [23] of this judgment I identified certain allegations
contained in the first respondent’s answering affidavit
which the
applicant neither denies and, in instances where such allegations are
denied, such denials are no more than unsubstantiated
denials and
those facts which the applicant neither deals with in his founding
affidavit nor respond to in his replying affidavit.
At the cost of
repeating myself the allegations identified are the following:
[37.1] In
paragraph 6 of the first respondent’s SAP affidavit, the first
respondent states that she, approximately on four occasions,
had the
applicant call at her home with a view to requesting him to account
for the monies entrusted to him, to advise her of the
institutions
whereat such monies were invested and also an account as regards the
performance of such investments. On each such
occasion, so the
first respondent states in the aforementioned affidavit, the
applicant
“was elke slag dronk gewees en het dan net begin
sing”
. The applicant neither deals with this
allegation in his founding affidavit, to which the SAP affidavit is
attached, nor in his
replying affidavit.
[37.2]
In paragraph 9 of the SAP affidavit, the first respondent further
states that the applicant re-routed all her mail relating
to her
investments to his own (applicant’s) address without having been
authorised to do so.
[37.3]
And in paragraph 12 of the SAP affidavit, the first respondent states
that the manager of the Standard Bank, ostensibly
the Swellendam
branch of the Standard Bank, did
“erken dat hy
verantwoordelik voel vir die aangeleentheid aangesien dat hy
(the
manager)
die afgelope twee jaar vir Mnr Traut ‘gedek’ het
”
and that he (the manager)
“het ook erken dat hulle
(Standard
Bank)
hom
(the applicant)
gedruk het om as
finansiële makelaar te bedank by Standard Bank, Swellendam”
.
The
implication of this allegation is that the applicant did not resign
from the Standard Bank, Swellendam on his own accord as he
seeks to
portray in his founding affidavit, but that he was forced to resign.
As has already been pointed out neither does the
applicant deal with
this issue in any elaborate form in his founding affidavit nor does
he take issue with this allegation in his
replying affidavit.
[37.4]
Neither does the applicant deny nor deal with the aforementioned
evidence which, as has already been pointed out, creates
a clear and
necessary implication that the applicant had been guilty of some or
other improper activities.
[37.5]
There are several other allegations contained in the first
respondent’s answering affidavit which the applicant either
barely
denies without any elaboration or does not deal with, as for an
example, the allegation as regards how the cheques given to
the
applicant had to be drawn, the total amount entrusted to the
applicant to invest, all of which are either met with lack of
recollection
on the part of the applicant or unsubstantiated denial.
[38] As
against those facts, which are either not dealt with or barely denied
by the applicant, are the following facts which the
first respondent
does admit with some qualification, these being the fact that she
knew of the notices put up in and around Swellendam
but had not put
up the notices herself, the conversation she had with Hugo Carstens
and Patricia Webber and the notice published
in the Langeberg /
Wynland Bulletin of 19 December 2003. The first respondent
qualifies such admissions by stating that they are
true or that the
notices complained about were put up to solicit assistance from the
members of the public with a view to gathering
evidence for purposes
of a contemplated civil action.
[39] Arising
from the analysis of the parties’ respective versions of events, it
seems to me that the version which is more probable
is that offered
by the first respondent. The first respondent entrusted fairly
substantial funds to the applicant to invest on
her behalf; the
applicant failed to give the first respondent or failed to cause that
the first respondent be given a regular account
of the performance of
the proposed investments and that when the first respondent
confronted the applicant, on at least four separate
occasions, the
applicant still failed to give the first respondent an account of
such investment. This, in my view, is what prompted
the first
respondent to pursue a criminal action.
[40] Once the first
respondent became suspicious of the applicant’s activities, she
lodged a complaint with the prosecution authorities.
Once the first
respondent did not derive joy from the prosecution authorities, she
sought to pursue alternative methods of protecting
her rights by way
of a civil action. The applicant chose a career which involves not
only dealing with the members of the public
but also, so it appears
on basis of evidence on record, dealing with funds belonging to the
members of the public. When members
of the public register
dissatisfaction about an unsatisfactory service, the applicant should
be slow to complain that the protected
terrain of his right to
dignity is being violated.
[41] The issues
determinable on basis of the evidence are simple and straightforward
and these are that the first respondent entrusted
an amount of R
230,000-00 to the applicant to invest on her behalf; that the
applicant failed to give a proper account to the first
respondent of
the investment of those funds; that this conduct on the part of the
applicant was enough to justify a suspicion that
the applicant may
have misappropriated the funds entrusted to him and because of such
conduct the first respondent was justified
in having acted in the
manner she did. It is on this basis that I conclude that the
applicant has failed, in my view, to establish
a clear right which
the respondents could have violated.
[42] In his Notice of
Motion, the applicant seeks an order restraining the first respondent
on the terms as set out in the Notice
of Motion. As for the order
sought in terms of prayer 1 of the Notice of Motion, and as correctly
submitted by
Mr Barnard
, the prohibition sought, unqualified
as it is as to time and its operation, would cover all future
conversations between the first
respondent and the general members of
the public, and in my view, would in no doubt constitute an
unreasonable and unjustifiable
limitation of the first respondent’s
right to freedom of expression. It is thus my view that the
applicant failed to discharge
the
onus
resting on him that the
effect the limitation would have on the first respondent’s right to
freedom of expression would be reasonable
and justifiable. These
observations apply,
mutatis mutandis,
to the orders sought in
terms of prayers 2 and 3 of the Notice of Motion.
[43] The law pertaining
to the granting of final interdicts was settled as far back as the
beginning of the 20
th
century in
Setlogelo v Setlogelo
1914 AD 221
at 227 where Innes JA, as he then was, observed:
“
The requisites for the
right to claim an interdict are well-known; a clear right, injury
actually committed or reasonably apprehended
and the absence of
similar protection by any other ordinary remedy.”
In order to be afforded a
final interdict as a form of relief, the applicant, in terms of this
authority, must show and establish
a clear right; that he has
suffered an injury or there is a reasonable apprehension that an
injury would be suffered and that there
is no other alternative
remedy available to him. In the instance of this matter an
alternative action for damages is available
to the applicant and this
is one of the options which the applicant should have pursued as
opposed to the relief he seeks in terms
of the Notice of Motion.
Furthermore, there is no evidence on record to suggest that the
incidents which the applicant is complaining
about are being
committed on an ongoing basis to justify the kind of relief which the
applicant seeks in terms of the Notice of Motion.
[44] In summary, it is my
considered view that the applicant, based on evidence on record,
failed to make out a case for the relief
sought in terms of the
Notice of Motion. Even if I am wrong in this conclusion, the orders
sought by the applicant, in the form
they are currently couched,
would have an unreasonably curtailing effect on the respondents’
right to freedom of expression as
guaranteed in section 16 of the
Constitution and, as has already been pointed out in the preceding
paragraph, the applicant had another
ordinary remedy available to him
which he could pursue.
[45] It is thus my
considered view that the applicant failed to make out a case for the
relief sought in terms of the Notice of Motion.
In the result I
make the following order:
[45.1] The application
is dismissed.
[45.2] The applicant
is ordered to pay first and the second respondents’ costs on a
party and party scale, duly taxed or as agreed.
…………………
..
NJ Yekiso, J