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[2002] ZAWCHC 5
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Hadjidakis and Others v Hall (2921/2001) [2002] ZAWCHC 5; [2002] 3 All SA 8 (C) (14 February 2002)
Republic
of South Africa
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
No: 2921/2001
In
the matter of
ELIA
HADJIDAKIS
First
Applicant
GEORGE
HADJIDAKIS
Second
Applicant
SEVEN
ELEVEN CORPORATION (PTY) LTD
Third
Applicant
and
ANTHONY
HALL
Respondent
JUDGMENT
DELIVERED : 14 FEBRUARY 2002
MOOSA,
J:
INTRODUCTION:
On
20 April 2001 applicants obtained an interim interdict, restraining
respondent from
publishing
or disseminating certain defamatory allegations. These allegations
were
contained
in a letter dated 14 April 2001 addressed by respondent to the head
office of
third
applicant and for the attention of second applicant (“the
letter”).
DEFAMATORY
ALLEGATIONS:
The
gist of the allegations was to the effect that second applicant
firstly, defeated the
ends
of justice by falsely prosecuting respondent on a charge of theft and
secondly,
interfered
with the administration of justice by unlawfully influencing the
authorities not
to
accept charges of assault allegedly perpetrated by first applicant on
respondent.
More
specifically, respondent alleged that:
(1)
applicants falsely prosecuted him for theft and this they could do
because of the
influence
they exercised over certain members of the police force;
(2)
second applicant stole respondent’s furniture and personal
possessions, but
respondent
could not institute proceedings against second applicant because he
allegedly
lied to the police;
(3)
first applicant became upset and assaulted the respondent when the
former
discovered
that the latter was having an affair with one Pedro, with whom first
applicant
was also having an affair. Respondent attempted to lay a charge of
assault
against first applicant, but it proved fruitless because of second
applicant’s
influence with high ranking police officials;
(4)
second applicant bribed the police with cash and gifts in return for
favours.
DEFENCE:
Respondent
admits publication of the letter and avers that the contents thereof
are true
and
the publication thereof is in the public interest.
REMEDY:
Applicants
obtained an
ex parte
interim
interdict. Applicants are now moving for a
final
interdict. Respondent, who appears in person, opposes the final
interdict.
Respondent
filed opposing papers but applicants elected not to file replying
papers.
The
issues therefore are to be determined in terms of the facts deposed
to in the
founding
and opposing papers. For applicants to succeed, they must establish
that
respondent
is about to publish or to continue the publication and distribution
of the
defamatory
statement; that respondent has no valid defence to the defamation
proceedings
and that applicants will suffer irreparable harm if an interdict is
not granted.
(LAWSA,
Vol 7 para 268.)
It
is common cause that respondent did in fact publish and distribute
and further
intended
publishing and distributing the letter containing the defamatory
allegations.
Two
presumptions in law arise from such publication. Firstly, that the
publication is
prima
facie
unlawful
and secondly that respondent acted
animo
inuriandi
. The
onus
is
on respondent to establish either some justification or excuse for
the defamatory
allegations
or the absence of intent to defame. (See LAWSA,
supra
at para 245.)
However,
if the respondent in interdict proceedings puts up a defence of truth
and public
interest,
the court is not entitled to disregard such defence. A claim for an
interdict is
based
on an actionable wrong which is about to be committed. There can be
no
actionable
wrong if there is justification for the conduct that gave rise to
such wrong.
(
HEILBRON
v BLIGNAUT
1931
WLD 167
at 169;
BUTHELEZI v POORTER &
OTHERS
1974 (4) SA 831
(W) at 834EH.)
THE
APPROACH:
In
my view, the proper procedure applicants had to adopt in this case,
was to obtain a
temporary
interdict, pending the institution of action for defamation. Nothing,
however,
prevented
the applicants from instituting notice of motion proceedings for a
final
interdict.
However, they did so at their own risk, because they could be forced
to accept
the
factual allegations of respondent if their allegations were disputed
and they had
applied
for a final interdict. (See
PRINSLOO v
SHAW
1938 AD 570
at 576.)
The
general rule is that when a real, genuine or
bona
fide
dispute of
fact arises in
motion
proceedings for a final relief, the matter can be determined on the
papers if the court is satisfied that the allegations
made by
respondent together with the allegations
of
the applicant which were admitted by respondent, justify the relief
claimed. Likewise,
the
contrary is also true, that is, where such allegations do not justify
the relief sought,
the
applicant is not entitled to the relief sought. There are two
exceptions to the general rule. The one is where a denial by
respondent of a fact alleged by applicant may not amount to a real,
genuine or
bona fide
dispute
of fact. The other is where the allegations of and denials by
respondent are so far fetched or clearly untenable or improbable,
that the court is justified in rejecting them on the papers. (See
PLASCONEVANS PAINTS LTD v VAN
RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634H635C.)
The
issue of
onus
in
relation to factual disputes on paper was raised in the matter of
NGQUMBA
& ANDERE v STAATSPRESIDENT & ANDERE
1988
(4) SA 224
(A) at 258
et in fin
269.
In this case the court at 261HJ to 262A referred to a minority
judgment in the matter of
ASSOCIATED
SOUTH AFRICAN BAKERIES (PTY) LTD v ORYX & VEREINIGTE BACKEREIEN
(PTY) LTD & ANDERE
1982
(3) SA 893
(A) and quoted with approval from 923G924B the following:
"As
algemene uitgangspunt
kan
'n applikant in mosieverrigtinge op finale regshulp van die soort wat
hier ter sprake is op die stukke en sonder die aanhoor
van mondelinge
getuienis aanspraak maak slegs as dit blyk dat hy op sodanige
regshulp geregtig is op grondslag van die bewerings
wat gemaak word
deur die respondent en sodanige van die applikant se bewerings as wat
deur die respondent erken word. (Vgl
STELLENBOSCH
FARMERS WINERY LTD v STELLENVALE WINERY (PTY) LTD
1957
(4) SA 234
(K) te 235EG;
BURNKLOOF
CATERERS (PTY) LTD v HORSESHOE CATERERS (GREENPOINT) (PTY) LTD
1976
(2) SA 930
A te 938AC;
TAMARILLO
(PTY) LTD v B N AITKEN
(PTY)
LTD
1982 (1) SA 398
(A) te 430G431A.) Ek sal na hierdie posisie
verwys as die algemene reël wat geld by mosieverrigtinge. Op die
algemene reël
is daar wel uitsonderings, soos bv waar die
bewerings of ontkennings van die respondent so vergesog of
klaarblyklik onhoudbaar
is dat die verwerping daarvan bloot op die
stukke geregverdig is. Vir my doeleindes is dit nie nodig om verder
hierop uit te brei
nie. Van belang is dat die algemene reël na
my mening klaarblyklik ook van toepassing is op verwere wat
respondent teen die
applikant se eise opper in sy beantwoordende
verklaring. As die respondent se bewering 'n verweer openbaar, dan
kan die applikant
op die stukke nie slaag nie, al sou hy sodanige
bewerings in sy repliserende verklaring ontken en al sou die bewyslas
ten opsigte
van die verweer volgens die gewone toepaslike reëls
by die respondent berus."
(My
emphasis.)
The
incidence of the burden of proof, i e
onus
probandi
, is a
matter of substantive law
and
not a question of evidence. (
TREGEA &
ANOTHER v GODART & ANOTHER
1939
(AD) 16 at 32.) By “onus” here is meant the overall onus
of proof which, according
to
substantive or adjective law, rests from the beginning of the
proceedings, upon the
one
or the other of the parties to the litigation and such onus never
shifts. (
MABASO v
FELIX
1981 (3) SA 865
(A) at 871H.) Excuse and justification are generally regarded
as
special defences in the sense of being a confession and avoidance of
applicant’s
claim.
(
MABASO v FELIX
,
supra
at
876AB.) It is now trite that when an applicant approaches a court, in
an application for final relief, and respondent discloses
a defence
irrespective of the onus, the rule enunciated in the
PLASCONEVANS
case,
supra
,
will still apply.
THE
FACTS:
Respondent
admits the authorship of the letter and the publication thereof. The
contents of the letter are
per se
defamatory. His defence is one of lawful justification or
excuse and the absence of
animus
inuriandi
. He alleges that the allegations are true and
the publication thereof is in the public interest. Applicants in
their founding affidavit,
fail to deal in detail with the allegations
in the letter. At the time of drafting the founding affidavit, the
applicants were
in possession of such letter as it formed an annexure
to their founding papers. Applicants also failed to reply to
respondent’s
opposing affidavit. Applicants’ response in
the founding affidavit to the alleged defamatory allegations in the
letter is
basically a denial. First applicant states that the
allegations are baseless. Second applicant confirms the correctness
of first
applicant’s affidavit and states that the allegations
are unjustified. A great deal of the founding papers are taken up
with
marginal issues and not with the substance of the allegations. I
will deal with the allegations
in
seriatim
.
THE
PROSECUTION:
Respondent
alleges that applicants falsely prosecuted him for theft. He was
accused of
obtaining
monies from franchisees of third applicant. He further alleges that
first applicant and his brotherinlaw, Robert Goff,
were informed by
two police officers that it was a civil and not a criminal matter.
Despite such advice, applicants proceeded with
the prosecution
because of their influence with the police. The respondent
reluctantly sold his jewellery to repay third applicant
the monies
paid to him by the franchisees. The court accepted his version and he
was acquitted of any charges.
THE
FURNITURE:
Respondent
alleges that second applicant stole his furniture and personal
possessions
to
the value of R20 000. First applicant in his founding affidavit which
is confirmed by
the
second applicant, states that the furniture and personal possessions
were a bed, a
cupboard
and a chair. According to them these items were removed from the
premises
by
respondent shortly after his dismissal from third respondent’s
employment. In his
opposing
affidavit, respondent states that he was denied the right to remove
his
furniture
and personal possessions from the premises. He claims that he has
witnesses
to
substantiate his allegation and alleges that first applicant is
telling a blatant lie.
THE
ASSAULT:
In
the letter respondent claims that he was assaulted by first applicant
in the presence
of
his brotherinlaw,
because
of his affair with Pedro. The police refused to accept
charges
because of the influence of second applicant with high ranking police
officers.
Respondent
in his opposing affidavit states that first applicant is a womaniser
and had
an
affair with Pedro. Because of respondent’s affair with Pedro,
first applicant assaulted
respondent.
THE
BRIBERY:
In
the letter respondent claims that second applicant instructed
respondent to pay the
police,
which he did, so that they could patrol the 711 stores. He also
recalls delivering
alcohol
to all the local police stations at Christmas time. Second applicant
further
instructed
him to load the superintendent’s vehicle with alcohol, which he
did. He can
identify
the police officers in question.
In
his opposing affidavit, respondent repeats most of the allegations
made by him in the
letter.
Respondent alleges that the alcohol was supplied to certain police
stations and
the
Liquor Squad officers. He further alleges that it was a regular
occurrence over the
Christmas
period to take them alcohol parcels. Respondent also claims to have
given
drinks
to SAPS members to patrol and protect 711 stores. The assumption is
that it
was
done at second applicant’s instance. Respondent claims that he
has witnesses to
substantiate
these allegations. Respondent alleges further that because of the
tremendous
power and influence second applicant wields over high ranking police
officers,
respondent was prosecuted falsely for theft and the police refused to
accept
charges
of assault from respondent against first applicant.
THE
RESPONSE:
The
applicants do not deal adequately with the substance of these
allegations in their
founding
papers, nor did they elect to file replying affidavits. Their
response to the allegations was basically a denial and a
general
averment that they were unjustified. In my view therefore, no
substantial and
bona fide
dispute
of fact arises concerning these allegations.
THE
JUSTIFICATION:
In
the letter respondent states that he is writing the letter to set the
record straight, and
to
clear his name that has been blackened by second applicant. In it he
also requests a
public
apology. He claims that the allegations are true and the publication
thereof is in
the
public interest. Applicants’ attorneys addressed a letter to
respondent, calling upon
him
to retrieve all the letters which have been disseminated, withdraw
the allegations,
apologise
to all recipients of the letter and give an undertaking in writing to
cease his
defamatory
and injurious conduct. The letter from the attorney does not deal
with the
substance
of the allegation, nor with the public apology demanded by respondent
in the
letter.
It appears that respondent did not respond to the demands of
applicants.
Respondent
also disputes the marginal issues raised in the founding papers of
the
applicants
and more particularly the allegation that he is a
“man
of straw”
.
These issues
have
also gone unchallenged by applicants.
REFERRAL
FOR TRIAL:
In
his opposing affidavit respondent states that the matter can go to
trial to determine the truth. He can bring witnesses to testify
that
everything he has said is true and correct. Applicants who are
dominus litis
have asked
the court to determine the issues on the papers and not to refer the
matter for hearing of oral evidence. I am empowered
to refer issues
raised in motion proceedings for hearing if there are substantial
disputes of fact that cannot be resolved on the
papers before me.
However, the court will not
mero motu
refer the matter for oral evidence. In
MEYER
v BRAND
1927 TPD 392
,
Greenberg,
J
concluded:
“
And
as the applicant claims a decision on the matter and does not ask
for
evidence to be heard, I do not think I am justified in ordering the
hearing
of evidence.”
In
my view the issues in this matter can be resolved on the papers and
in the
circumstances
I see no reason why the matter should be referred for hearing of oral
evidence
in terms of Rule 6(5)(g) of the Uniform Rules of Court. The remarks
of
Miller,
JA
in the case of
TAMARILLO (PTY) LTD v B N AITKEN (PTY)
LTD
1982 (1) SA
398
(A) at 430G431A
is
incisive:
“
A
litigant is entitled to seek relief by way of a notice of motion. If
he has
reason
to believe that facts essential to the success of his claim will
probably
be disputed, he chooses that procedural form at his peril, for
the
court in the exercise of its discretion might decide neither to refer
the
matter
for trial nor to direct that oral evidence on the disputed facts be
placed
before it, but to dismiss the application.”
FINDING:
Mr
Donen
for
applicants, submitted that the onus is upon respondent to establish
that
the
allegations are true and the publication thereof is in the public
interest. Respondent
has
failed to discharge such onus and it was accordingly not necessary
for the
applicants
to file replying affidavits. This submission militates against the
authorities to
which
I have referred earlier and is not in accordance with the principles
of our law.
Respondent
has throughout maintained that the allegations are true and its
publication
is
in the public interest. The objective of its publication is in order
to clear his name in
the
absence of a public apology. He has disclosed a defence. On this
ground alone I
could
find in favour of respondent.
However,
I have already found that there are no substantial and
bona
fide
disputes of
fact
in respect of the prosecution, the assault and the bribery
allegations. The court
came
to the conclusion on the basis of the exception to the general rule
referred to
above,
namely that a denial of a fact (and in this case by applicants) may
not amount to
a
real, genuine or
bona fide
dispute
of fact. Applicants in their founding affidavit made
a
blanket denial of the allegations in the letter, without dealing with
the substance of
such
allegations. Even if the court applied the general rule, namely, the
allegations
made
by respondent together with the allegations of applicants admitted by
respondent,
I
would also have come to the same conclusion.
ORDER:
In
the premises, I am satisfied that applicants have not made a case for
final relief. The
rule
nisi
is
accordingly discharged and the application is dismissed.
……………………………
..
E
MOOSA