SAFLII Note: Certai n 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
CASE NO: 27518/2021
HEARD: 14 – 15 MARCH, 27 OCTOBER 2023, 23 JANUARY, 07 OCTOBER
& 26 NOVEMBER 2024
DECIDED:1 2 MARCH 2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
12 March 2025
In the matter between:
SELLO ISAAC MAKHAFOLA
Identity Number: 7[…] Plaintiff
And
ESCHEL HEIN WIESE First Defendant
WIESE & WIESE ATTORNEYS & COST
CONSULTANTS Second Defendant
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TRANSUNION ITC Third Defendant
EXPERIAN INFORMATION SOLUTIONS
INC. Fourth Defendant
This judgement has been handed down remotely and shall be circulated to the
parties by way of email / uploading on Caselines. The date of hand down shall
be deemed to be 12 March 2025.
ORDER
1. The plaintiff’s case is dismissed;
2. Each party pays their own costs.
JUDGMENT
BAM J
Introduction 1. This is a claim for damages arising from a publication of an alleged
defamatory matter. The plaintiff, an attorney and officer of this court, alleges that
the first to the fourth defendants, unlawfully and intentionally published false and
malicious information to the effect that he was indebted to the first and second
defendants in the amount of R11 467. As a consequence of the defendants’
conduct of publishing his name in the various credit bureaus, the plaintiff claims
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his good name has been injured, his reputation was violated, and so were his
rights to dignity, trade, occupation, property and housing. He seeks damages in
the amount of R 6 712 000.00 (Six Million Seven Hundred and Twelve
Thousand Rand) from the first to the third defendants, in respect of the alleged
injury caused to his name, loss of rentals arising from a contract of sale that fell
through, and constitutional damages.
2. The defendants deny liability. The first and second defendants, whom I
shall for convenience refer to as W&W , deny acting unlawfully with malicious
intent. They deny publishing any information about the plaintiff. They say that
the judgment they obtained against Stoltz Inc. cannot reasonably be construed
as a judgment against a natural person, much less a judgment against the
plaintiff. W&W further submit that the plaintiff failed to lead evidence of the
alleged injury to his name and further failed to establish the causal link between
their conduct and the alleged listing. The third defendant denies publishing any
defamatory matter or statement about the plaintiff. They deny having acted
wrongfully with malicious intent. The third defendant says, bar the common
cause fact that the judgement was listed on the plaintiff’s profile between 18
March 2018 to 10 July 2019, the plaintiff has simply failed to make a case to
sustain his cause of action and failed to lead any evidence regarding his
damages. The fourth defendant took no part in these proceedings.
Parties
3. The plaintiff, Mr Sello Isaac Makhafola, is a male legal practitioner and an
officer of this court. He practices for his own cause under the name and style,
Makhafola & Verster Incorporated. His address is recorded in the papers as
Francis Baard, Pretoria.
4. The first defendant is Eschel Hein Wiese, a male legal practitioner and an
officer of this court. He practices under the name and style Wiese and Wiese
Attorneys and Cost Consultants. His address is recorded as Stanza Bopape,
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Hatfield, Pretoria. The second defendant is Wiese and Wiese Attorneys and
Cost Consultants with the same address as the first defendant.
5. The third defendant is Transunion Credit Bureau (Pty) Ltd, a private
company duly incorporated in terms of South African laws with its principal place
of business located at Wanderers Office, Collet Drive, Illovo. The third defendant
is a registered credit bureau as envisaged in section 43(1) of the National Credit
Act1 (NCA). I refer to the first and second defendants collectively as W&W and
specify where necessary. The plaintiff testified in his own case. The first and
second defendants called Mr Wiese, while the third defendant led Ms Joline
Diana Rahim, a data compliance officer who has been in the employ of the third
defendant for nineteen years and deals with disputes relating to consumer credit
profiles.
Background 6. Evidence led during the trial established that sometime during 30 May
2018, in the course of conducting his annual credit check by way of a telephone
call, with the third defendant, the plaintiff learnt of a judgment granted against
him in favour of W&W for the amount of R11 467. Upon his request, he was
furnished with copies of the summons, return of service, and request for default
judgment pertaining to the listing. At that very point, the plaintiff and the person
who was assisting him, a lady by the name Muriel, in the employ of the third
defendant, realised the bungling up that had led to the listing of the judgment
against his name. The details for present purposes may be summarised thus:
6.1 During 2017, in the process of preparing a summons against two
individuals, Stoltz Incorporated Attorneys, (Stoltz Inc.) and a certain
Johan Stoltz, in a lawsuit that had no connection with the plaintiff, a
candidate attorney at W&W, using a template of a summons with the
plaintiff’s name and identity number, inadvertently failed to remove the
1 Act 34 of 2005.
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plaintiff’s identity number, resulting in Johan Stoltz being cited with the
plaintiff’s identity number. As to how W&W came to be in possession of
the plaintiff’s identity number, it was common cause that W&W had once
issued a summons to be issued against the plaintiff, in 2015, in respect of
an unpaid debt that was due to them. This matter was eventually
resolved between the plaintiff and W&W during 2017.
6.2 Following a request for default judgment against Stoltz Inc. and Johan
Stoltz, the court authorised judgment only against Stoltz Inc during
February 2018. The court was not satisfied of the effectiveness of service
against Johan Stoltz.
6.3 There occured a further error in the process of capturing the judgment
details from the court file, for purposes of uploading on a portal accessed
by credit bureaus. That error, it was common cause, occured by the hand
of a third party by the name of e4 Strategic, whom is not connected to
any of the parties presently before this court. As a result of that error, the
judgment which should have been recorded against Stoltz Inc., was
recorded against the person of Johan Stoltz. As the plaintiff’s identity
number was included in the summons as the identity number of Johan
Stoltz, the judgment featured in the plaintiff’s profile as a judgment
against him.
7. During their conversation, Muriel offered to transfer the plaintiff to the
department that deals with consumer complaints known as JudgeConfirm. It
would appear that the plaintiff did not take up the offer. However, upon receipt of
the information relating to the judgment
2, the plaintiff immediately caused a letter
to be issued to W&W asking for the very same information. After much
confusion3, the plaintiff ended up furnishing W&W with the details of the
2 Copies of the summons, return of service and request for default judgment .
3 W&W, not realising the error pertaining to the plaintiff’s ID, initially maintained they had taken
judgment against the plaintiff only in case number 36833/15 (This was a judgment pertaining to
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judgment. With the necessary information in hand, W&W took up the matter with
Transunion, making repeated phone calls to resolve the matter. They were
informed by Transunion that the judgment had been removed from the plaintiff's
profile, on 10 July 2019. What further became clear is that while the plaintiff
exchanged correspondence with W&W complaining about the judgment, he was
alive to the listing of two further judgments in his profile, in favour of Massmart in
the amount of R115 000, and a further judgment in favour of SAB.
Applicable legal principles
8. The elements of a claim founded on defamation were espoused by the
Constitutional Court in Le Roux and Others v Dey as:
‘(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.’
4
9. The court in LeRoux further noted that the plaintiff need prove only the
publication of a defamatory matter concerning themselves. Once the plaintiff has
succeeded in proving publication, it is presumed that the statement was both
wrongful and intentional. In order for the defendant to avoid liability, he must first
plead and prove facts that are sufficient to establish his defence which must
exclude either wrongfulness or intent. The onus placed on the defendant is a full
onus which must be discharged on a preponderance of probabilities
5.
interests and costs and it was resolved. At the time of receiving the plaintiff’s letter, W&W were
not aware of their mistake in the Stoltz Inc. and Stoltz case, case number 23516/17.
4 (CCT 45/10) [2011] ZACC 4; 2011 (3) SA 274 (CC) ; 2011 (6) BCLR 577 (CC) (8 March 2011),
paragraph 84.
5 Id, paragraph 85.
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Publication is described as the act of ‘communication or making known to at
least one person other than the plaintiff. It may take many forms.’6
Establishing the meaning of the statement
10. The question whether a statement or article is defamatory in its ordinary
meaning, involves a two-stage enquiry
7. 'The first is to establish the natural or
ordinary meaning of the article. The second is whether that meaning is
defamatory.’8 In order to establish the meaning, the court applies the standard
of a reasonable reader of ordinary intelligence and asks what meaning such
reader would ascribe to the statement9. The reasonable reader, it is accepted,
would read such statement with the context and would have regard to not only
what is expressly stated but what is implied10. The second stage is concerned
with whether the meaning established through stage one is defamatory. In this
regard, our courts accept that a statement is defamatory of a plaintiff if it is likely
to injure the good esteem in which they are held by a reasonable person to
whom it is published. In this regard, the following falls to be noted:
‘(a) Because we are employing the legal construct of the “reasonable”,
person, the question is whether the statement was “calculated [in the
sense of likelihood] to expose a person to hatred, contempt or ridicule”.
The test is whether it is more likely, that it is more probable than not, that
the statement will harm the plaintiff.
(b) If it is found that the statement is ambiguous in the sense that it can
bear one meaning which is defamatory and others which are not, the
courts apply the normal standard of proof in civil cases, that is, a
preponderance of probabilities. If the non-defamatory meaning is more
6 Id, paragraph 86.
7 Sindani v Van Der Merwe and Others (212/2000) [2001] ZASCA 130; [2002] 1 All SA 311 (A);
2002 (2) SA 32 (SCA) (27 November 2001), paragraph 10.
8..
9 Footnote 5, paragraph 89.
10 ..
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probable, or where the probabilities are even, the plaintiff has failed to
rebut the onus which he or she bears. Consequently it is accepted as a
fact that the statement is not defamatory.’11
Wrongfulness
11. The enquiry into wrongfulness, as said by the court in Loureiro and
Others v iMvula Quality Protection (Pty) Ltd,
‘[I]s determined by weighing competing norms and competing interests.
Since the landmark Ewels judgment, whether conduct is wrongful is
tested against the legal convictions of the community. These now take on
constitutional contours: the convictions of the community are by necessity
underpinned and informed by the norms and values of our society,
embodied in the Constitution12…’
12. As regards malicious intent, the court in Tuch and Others v Myerson and
Others reasoned that malice is a state of mind, subjective in nature, and often
has to be inferred from intrinsic or extrinsic facts
13.
13. Finally, a plaintiff who seeks to recover special damages arising from a
defamatory matter must allege and prove the elements of liability under an
aquilian action. This the court affirmed in Media 24 Ltd and Others v SA Taxi
Securitisation (Pty) Ltd:
‘[T]he rule of our law, in principle, is that patrimonial damages must be
claimed under the actio legis Aquiliae, while the actio iniuriarum and its
derivative actions, including the action for defamation, are only available
for sentimental damages. In theory, the person injured by a defamatory
publication would therefore have to institute two actions: a defamation
action for general damages and the actio legis Aquiliae for special
11 Footnote 5, paragraph 91.
12 [2014] ZACC 4, paragraph 34.
13 Tuch and Others v Myerson and Others (447/08) [2009] ZASCA 132; 2010 (2) SA 462 (SCA) ;
[2010] 2 All SA 48 (SCA) (30 September 2009), paragraph 13.
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damages… [9] …What this means, of course, is that a plaintiff who seeks
to recover special damages resulting from a defamatory statement, must
allege and prove the elements of the Aquilian action.’14
Absolution from the instance and the legal principles
14. The principle is captured in the Supreme Court of Appeal case of De
Klerk v Absa Bank Ltd and Others and it states:
‘“...(W)hen absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence led by plaintiff
establishes what would finally be required to be established, but whether
there is evidence upon which a Court, applying its mind reasonably to
such evidence, could or might (not should, nor ought to) find for the
plaintiff.’…absolution at the end of a plaintiff’s case, in the ordinary
course of events, will nevertheless be granted sparingly but when the
occasion arises, a court should order it in the interests of justice.’15
15. At the end of the plaintiff’s case, the defence counsel applied for
absolution from the instance. That application was refused. I had undertaken to
provide reasons at the end of the matter and I do so now. The question that
must guide the court in determining whether to grant absolution from the
instance is whether the plaintiff had made a prima facie case on which the court
could, not would, find for the plaintiff. This question must be answered with the
interests of justice in mind. Given the facts conceded in the defendant’s pleas
and the evidence tendered by the plaintiff, the court was of the view that a prima
facie case had been met. On that basis, the application was refused.
The meaning of the publication
14 (437/2010) [2011] ZASCA 117; 2011 (5) SA 329 (SCA); [2011] 4 All SA 9 (SCA) (5 July 2011),
paragraph 8-9.
15 (176/2002) [2003] ZASCA 6; [2003] 1 All SA 651 (SCA); 2003 (4) SA 315 (SCA) (6 March
2003), paragraph 10.
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16. In this analysis, it will be demonstrated that the plaintiff failed to prove
that W&W published the judgment against him. For present purposes, I shall
assume in favour of the plaintiff that the act of filing for default judgment
amounts to publication. During cross examination, the plaintiff accepted that
judgment was granted against Stoltz Inc. He further conceded that a reasonable
reader would in all likelihood not understand the judgment as referring to the
person of Johan Stoltz, much less the plaintiff. To these concessions must be
added the concession that as early as 30 May 2019, the plaintiff was aware that
the error in capturing the judgment as referring to the person of Johan Stolz
(whereas the judgment was granted against Stolz Inc.) was made by e4
Strategic, a person not cited in the present proceedings. On these concessions,
the allegations in the particulars of claim that the published matter of default
judgment against Stoltz Inc. conveys that the plaintiff is indebted to W&W, is
unable to pay his debts, and not worthy of credit, must consequently fail.
Whether the publication is defamatory of the plaintiff
17. Despite having conceded that the default judgment was granted against
Stoltz Inc, the question must still be asked whether the publication of the default
judgment against Stoltz Inc. was calculated to expose the plaintiff to ridicule,
contempt or hatred. I emphasise here that the test is whether it is more likely (in
the sense of more probable than not)
16 that the publication of the default
judgment would harm the plaintiff. In the event the court finds the publication to
be ambiguous, then the civil standard of proof, i.e the preponderance of
probabilities must be applied. In that event, the plaintiff would have failed to
prove that the article/statement/default judgment as it stood at the time, is more
likely to harm him.
18. Here we have a request for default judgment sought against two
individuals but ultimately granted against one, the firm Stoltz Inc. Through the
16 Footnote 11.
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error that has been canvassed elsewhere in this judgment, the judgment was
erroneously recorded against the plaintiff. Both W&W and Transunion pointed
out that the plaintiff had deliberately disregarded the fact that there were, even
at the time of discovering the W&W judgment, always three judgments, namely,
the judgment in favour of W&W, that of Massmart and SAB. The plaintiff testified
that where a person lists another on the credit bureau, the effect is to render the
listed person uncredited worthy as would be credit granters would see the
person listed as a risk.
19. When asked why the Massmart judgment, which was rescinded as far
back as 30 April in 2020, and SAB judgment of 2016, which has never been
paid, which continue to show randomly in his profile, posed less risk as opposed
to W&W judgment, his response was that a judgment taken four years ago
would pose less risk than a freshly listed judgment. This is incorrect. The
plaintiff’s own testimony showed that the institutions he had contacted enquiring
about credit facilities referred to all three judgments as an impediment to
granting credit facilities. To this end, FNB (in March 2020), Nedbank (in August
2021) and Vox (in November 2021), all three institutions referred to judgments
listed against the plaintiff’s name and not merely the judgment concerning
W&W.
20. In summation, the Massmart judgment, notwithstanding the rescission,
featured in the plaintiff’s profile, at exactly the same time he began querying the
W&W judgment. The plaintiff further conceded that the SAB judgment, relating
to a matter in which he stood suretyship, had never been paid. I accordingly
conclude in these circumstances that the plaintiff failed to prove that the
judgment aimed at Stoltz Inc. which was erroneously captured against his name,
caused him harm.
21. I need add on the question of the allegation that the defendants acted
with malicious intent that the evidence led by all three defendants and accepted
by this court negates the conclusion that they acted with malicious intent. I
commence with the evidence led by the third defendant through Ms Rahim. Ms
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Rahim was taken through the plaintiff’s profile which recorded his interactions
with the third defendant as of 30 May 2019.
22. Ms Rahim, using documented evidence of screen grabs, testified about
the plaintiff’s interactions from 30 May. The system showed that each of the
interactions the plaintiff had with Transunion were documented. That is not all,
she further demonstrated that as of 10 July 2019 the judgment was no longer
listed on the third defendant’s screens. Moreover, other than the enquiries made
by the plaintiff himself and the intervention of W&W resolving the erroneous
judgment, no one had made enquiries regarding the plaintiff in a period of 24
months, calculated up to the date of the hearing in 2024. There was no record of
any of the credit providers mentioned in paragraph 19 of this judgment making
enquir ies regarding the plaintiff.
23. Ms Rahim’s evidence was not disturbed during cross examination.
Consequently, this court accepts her evidence. To conclude on the question of
the alleged malicious intent, the promptitude with which the third respondent
acted as soon as the error was brought to its attention, undermines the claim
that it had maliciously intended to harm the plaintiff.
24. W&W stand on the same footing as the third defendant on the question of
the alleged animus injuriandi . From the plain meaning of the papers they had
prepared in pursuit of the action against different parties and to their prompt and
active participation in ensuring that the error was addressed without delay to
their constant relaying of information regarding their interactions with the third
defendant to the plaintiff, there is simply no evidence of malicious intent.
Special damages claimed by the plaintiff
25. Not only did the plaintiff fail to plead the elements necessary to found
liability on an aquillian action, he led no such evidence. This closed the door to
the plaintiff seeking any special damages in these proceedings.
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Constitutional damages
26. Having made no attempt to satisfactorily prove its case for sentimental
damages and damages founded on an aquillian action, the question is whether
the plaintiff can realistically claim constitutional damages. The short answer
must be ‘No’. Also, when considering constitutional damages, two overarching
considerations come to the fore. They are, whether an alternative remedy exists
to compensate the plaintiff for the alleged transgressions of his rights and
whether such remedy is adequate or appropriate given the circumstances of the
case17. These questions do not arise in the circumstances of this case.
Conclusion
27. The conclusion I reach is that the plaintiff has failed to prove his case in
its entirety. There remains the question of costs. Evidence led during the trial
demonstrated adequately that the plaintiff acted with frivolity in bringing this
lawsuit. This is so because right from the onset, the plaintiff knew what had
happened. He received co-operation from all the defendants. Indeed, Experian,
against whom the plaintiff seeks no relief, did more than the three defendants.
The third defendant had offered to refer the matter to JudgeConfirm from the
onset in order to resolve it as the papers furnished to the plaintiff demonstrated
overwhelmingly that an error had occured. It is not clear what the plaintiff did to
pursue this avenue. What is clear, and based on his conversations with Muriel of
the third defendant, the plaintiff saw this action as means to achieve his quest of
making money out of the error caused by e4Strategic. But he failed to cite the
very person who had caused the error.
28. The plaintiff conceded during cross examination that had he not withheld
the necessary information from W&W, the matter could have been resolved
17 Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v
Minister of Police and Others (CCT 136/20) [2021] ZACC 37; 2022 (1) BCLR 46 (CC); 2023 (1)
SACR 14 (CC); 2023 (3) SA 329 (CC) (22 October 2021), paragraph 103.
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within the blink of an eyelid. He conceded that with his background and
familiarity in navigating the territory of credit bureaus, he was better placed to
resolve the matter on his own. The plaintiff’s conduct must be deprecated. This
does not mean that the plaintiff is liable for the defendants’ costs as each of the
defendants had on their own version played some role in this mess.
29. As a start, the third respondent is charged, in terms of section 70(2)(c),
with the duty to take reasonable steps to verify information reported to it. What
could be more reasonable in the circumstances of this case than read the
relevant information in the hands of the third defendant. This is the summons,
the request for default judgment and the order finally granted by the Magistrates
Court. It would not have occasioned any cost on the part of the defendant to
read the documents in its possession. Had this been done, it would have been
clear as day that there had been an error in capturing the judgment.
30. W&W used a previous template of a summons and sent it off to court
without checking that the identity number ascribed to Johan Stoltz was the
correct one. On their own version, W&W played a role in the plaintiff’s
predicament. I conclude that the interests of justice would be served with each
party paying their own costs.
Order
1. The plaintiff’s case is dismissed;
2. Each party pays their own costs.
N.N BAM
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION , PRETORIA
Date of Hearing: 14 – 15 March , 27 October 2023, 23 January, 07
October & 26 November 2024
Date of Judgment : 12 March 2025
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Appearances:
Counsel for the Plaintiff: Adv M.R Maphutha with him
Adv A Seshoka
Instructed Makhafola and Verster Inc.
Attorneys
Hatfield, Pretoria
Counsel for First and Second Defendants: Adv S Davies
Instructed by: Wiese and Wiese Attorneys and
Costs Consultants
Lynwood, Pretoria
Counsel for Third Defendant: Adv M Tromp
Instructed by: Schüler Heerschob Pienaar
Attorneys Highveld, Centurion
Pretoria