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[2024] ZAKZPHC 97
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Nortje v Du Toit (AR414/2023) [2024] ZAKZPHC 97 (1 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal Case no:
AR414/2023
Court below case no:
1491/2021
In
the matter between:
FRANCOIS
NORTJE
APPELLANT
and
HENNING
JOHANNES DU TOIT
RESPONDENT
JUDGMENT
Shapiro
AJ (Olsen J concurring):
[1]
The respondent instituted an action against the appellant in the
KwaDukuza Magistrate’s
Court, claiming damages of R50,000. His
claim arises from an incident that occurred on 2 June 2021 when the
appellant allegedly
forced his way into a disciplinary hearing being
chaired by the respondent and, in the presence of others, called the
respondent
“a f..king racist”.
[2]
Although the respondent’s claim is based on the
actio
iniuriarum
,
the appellant delivered a lengthy special plea attacking the
respondent’s legal standing and a plea that is more akin to
a
defence to a claim of defamation
[1]
.
[3]
The appellant baldly denies the allegation that he “gate
crashed” a disciplinary hearing,
refused to leave that he
repeatedly used the words alleged. He then advances a number of
alternative defences to the effect that
if it is found that he did
make the accusation described above, the words were true, and
publication was for the public benefit.
[4]
The appellant also discovered a myriad of documents, including
various emails, tax invoices issued
by the firm of attorneys of which
the respondent was a partner to its client, the Body Corporate of Sea
Haven on whose instruction
the two disciplinary enquiries were
convened, the outcome of the enquiries together with ancillary
documents and documents referring
a dispute to the Commission for
Conciliation, Mediation and Arbitration.
[5]
In February 2022, and in the face of the respondent’s discovery
affidavit, the appellant
delivered a Notice in terms of Rule 23(3)
calling upon the respondent to make further and better discovery.
[6]
In amongst the documents sought were documents relating to the
authority of the respondent to
conduct the disciplinary enquiries and
any other work for the Body Corporate, the record of proceedings of
the enquiries about
alleged misconduct by the two implicated
employees, the disciplinary enquiries that were chaired by the
respondent on 24 and 25
May 2021 in respect of those employees, any
findings that he made and any and all correspondence between the
respondent and any
other partner of his firm and the trustees of the
body corporate in relation to the enquiries and any invoices and
statements of
account submitted in respect of services rendered
arising out of those enquiries.
[7]
When those documents were not delivered, the appellant launched an
application to compel discovery,
which was opposed by the respondent.
The respondent argued that the documents sought were not relevant to
the action and were not
necessary to enable the appellant to prepare
for trial.
[8]
On 21 July 2023, the court below delivered a written judgement
dismissing the appellant’s
application to compel, with costs.
It is against that order that the appellant appeals.
[9]
The first question to be determined is the court below's order is
appealable.
[10]
In terms of section 83(b) of the Magistrates Court Act 32 of 1944,
parties are entitled to appeal any order
made in proceedings that has
the effect of a final judgment.
[11]
This accords with the principles set out in
Zweni
v Minister of Law and Order
[2]
which
holds that a non-appealable decision is a decision which is not final
(because the court of first instance is entitled to
alter it), nor
definitive of the rights of the parties nor has the effect of
disposing of at least a substantial portion of the
relief claimed in
the main proceedings.
[12]
In general, interlocutory orders are incidental to a pending action
and are orders made in the course of
that litigation which do not
determine the main issue in the action. Policy considerations
underlying this principle include discouraging
piecemeal appeals and
orders for discovery are not generally appealable for this reason
[3]
.
[13]
The appellant has relied on a judgement of the Full Court of this
Division in
Santam
Ltd v Segal
[4]
,
where it was held that a dismissal of an application to compel
further discovery had been finally determinative of the party's
rights in that case and was therefore appealable. However, the Court
made clear that it was not laying down an invariable rule
in this
regard and that each case had to be judged on its own facts.
[14]
The respondent, acting in his personal capacity, sued the appellant
because the appellant allegedly insulted
him and made an allegation
that in the South African context is both serious and hurtful, if
true. Either the appellant said those
words, or he did not. If he
did, the utterance was either injurious or it was not.
[15]
Mr Reddy, who appeared for the appellant, argued that the court below
had made a finding that the respondent
launched the action in his
personal capacity and, in effect, determined the special plea he
submitted that this finding was finally
determinative of the issue
and therefore appealable.
[16]
I disagree. The court below stated only that the respondent issued
summons in his personal capacity therefore
the documents sought were
not relevant. The court noted that the issue of standing would be
dealt with at the appropriate time,
and that it could not adjudicate
on this issue at the discovery stage.
[17]
It is precisely because the respondent issued summons in his personal
capacity that the appellant attacked
his standing to do so. The
respondent has not disputed that he acted as an attorney or that he
is a partner in his firm. The question
of whether he has standing to
sue in his personal capacity for an insult directed at him is a legal
one based on facts that do
not appear to be challenged.
[18]
In my view, the court below was correct in its assessment that this
issue would be resolved at trial and
that no further documents were
relevant to its determination. Its accurate observation is neither a
finding nor an order.
[19]
An order refusing to compel discovery of the first class of documents
sought is therefore neither finally
determinative of the appellant’s
rights nor has the effect of disposing of a substantial portion of
the relief claimed.
[20]
I turn to deal with the second class of documents, being related to
the disciplinary process undertaken by
the respondent and services
rendered to the body corporate.
[21]
The further discovery must be assessed against the legal position
that applies to
iniuriarum
claims:
a degrading, humiliating or ignominious insult which does not amount
to defamation is a recognised example of
iniuria
[5]
;
a plaintiff seeking damages must allege and prove
animus
iniuriandi
(the
intention to injure the plaintiff), which can be implied from other
allegations and need not be pleaded expressly; the test
of whether
animus
iniuriandi
can
be inferred is objective and
dolus
eventualis
is
sufficient; although the plaintiff bears the onus of proving
animus
iniuriandi
,
a defendant cannot place the allegation in dispute by a bald denial
unless he denies the act complained of. He must go further
and allege
the factual basis for the absence of the required
animus
.
Malice is not an element of the wrong
[6]
.
[22]
The appellant therefore must either deny that he said the words
imputed to him or he must set out the factual
basis to demonstrate
that he lacked
animus iniuriandi
.
[23]
If the appellant did not utter the words alleged, the remaining
documents sought by him are of no consequence
to his defence.
[24]
Conversely, if he did utter those words, he must then have formed a
view by the time that he made the statement
that the respondent was
racist and that he did not therefore possess the intention to injure
the respondent. Put differently, if
those comments were not
injurious, the appellant must have been in possession of sufficient
material or knowledge to lead him to
make such a statement.
[25]
The appellant has also discovered many documents in the same class as
the further documents sought, and which
have enabled him to advance
alternative defences to the claim that are akin to grounds of review
against the respondent's decision.
[26]
I am not persuaded that documents relating to events that occurred
after the injurious statement was allegedly
made by the appellant are
relevant to whether the appellant was entitled to accuse the
respondent of being racist at the time that
he did so.
[27]
I do not consider that the remaining documents sought by the
appellant are so fundamental to his ability
to advance his defence
that a refusal to order their discovery is finally determinative of
his rights, and an order in his favour
would not have had the effect
of disposing of a substantial portion of the relief claimed.
[28]
In my view, the order of the court below was not appealable, and I
would dismiss the appeal on this ground
alone.
[29]
However, and if I am wrong in this conclusion, I would nevertheless
dismiss the appeal for the reasons set
out below.
[30]
I have already found that documents relating to the respondent's
appointment or his mandate in his capacity
as an attorney are
irrelevant to the legal question of whether he, in his personal
capacity, suffered the harm alleged or whether
the utterances were
made.
[31]
The court below's refusal to compel discovery of these documents was
correct.
[32]
Similarly, the appellant either uttered the allegedly injurious words
or he did not. If he did, he was either
entitled to make the
statement at the time that he made it or he was not. The documents
sought by the appellant are irrelevant
to either scenario and appear
to be calculated to demonstrate that the decisions taken by the
respondent were not defensible.
[33]
Whether or not that was true is a separate question from whether the
respondent, himself, was a racist or
whether the appellant lacked
animus iniuriandi
when he made those statements.
[34]
The court below was therefore correct in refusing to compel the
respondent to discover the documents as well.
[35]
Turning to the issue of costs, the respondent has sought a punitive
costs order against the appellant if
the appeal is dismissed.
[36]
In my view, the application to compel and this appeal lacked merit
and the appellant's prosecution of both
has caused a significant
waste of judicial resources. Both the court below and this Court have
been burdened with opposed hearings
in respect of an interlocutory
application that should never have been brought in the first place.
[37]
The appellant has caused unnecessary costs to be incurred and has
delayed an action that has been pending
for too long. This appeal is
a clear example of the kind of piecemeal appeal that section 83(b)
was intended to avoid. The appellant’s
conduct is to be
deprecated, and I agree that a punitive costs order is warranted.
[38]
I propose that the following order be granted:
The
appeal is dismissed with costs on the scale as between attorney and
client, such costs to be taxed on Scale B as contemplated
in Rule
69(7) of this Court’s Rules.
SHAPIRO
AJ
OLSEN
J
JUDGMENT
RESERVED:
11 OCTOBER 2024
JUDGMENT
DELIVERED:
1 NOVEMBER 2024
For
Appellant:
Mr
T Q Reddy
Instructed
by:
W
P Steyn Attorney
Email:
wpsatt@iafrica.com
Care
of:
Viv
Greene Attorneys
132
Roberts Road
Clarendon,
Pietermaritzburg
For
Respondent:
Ms
L J Whittal
Instructed
by:
Pearce,
Du Toit and Moodie Attorneys
Suite
5, Sutton Square
310
Mathews Meyiwa Road
Durban
Email:
pearce@pdtm.co.za
[1]
It
is not clear why the respondent did not seek to strike out these
defences – but that is an issue for the action, and
not this
appeal.
[2]
1993 (1) SA 523
(A) at 536A-C
[3]
Dube
v Minister of Police and Others
(A031723-2022) [2023] ZAGPJHC 931 (21 August 2023) at paras [11] and
[12]
[4]
2010
(2) SA 160
(N) at para [7]
[5]
There
can be little doubt that calling someone a racist in the South
African context is degrading and insulting, if untrue or
unjustified.
[6]
Amler’s
Precedents of Pleadings, Ninth Edition 2016, ed: LTC Harms, pages
206 to 209