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[2010] ZAWCHC 6
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Van Rensburg and Another v Cloete and Another (8270/09) [2010] ZAWCHC 6 (28 January 2010)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA (EASTERN CIRCUIT LOCAL DIVISION)
REPORTABLE
CASE
No: 8270/09
In
the matter between:
JAN
VAN RENSBURG
First
Applicant
BLOMMEKLOOF
ONTWIKKELINGS (PTY) LTD
Second
Applicant
and
DR
ADEO CLOETE
First
Respondent
VIRA
CHRISTENSEN
Second
Respondent
JUDGMENT
DELIVERED IN CAPE TOWN : 28 JANUARY 2010
MOOSA,
J:
The
Scope of the Interdict
[1]
This is an application for an interdict in terms of which the
Applicants seek an order
prohibiting
the Respondents from:
(a)
defaming the Applicants, more particularly by making oral or written
complaints concerning firstly, the zoning rights pertaining
to the
Applicants' farm "Bulida", ("the property");
secondly, Applicants' entitlement to conduct a business from
the
property; thirdly, Respondents' dealings with municipal and other
officials and lastly, the effect of their activities on the
environment ("the defamation complaint");
(b)
entering upon the Applicants' property without the consent of First
Applicant ("the trespass complaint") and
(c)
infringing the Applicants' right to privacy and
dignitas
by
keeping watch or observing their activities on the property ("the
privacy complaint").
The
Defences
[2]
The application is opposed. The Respondents deny that they have
defamed the Applicants; in the alternative they aver that should
the
court find that the complaints were defamatory, they are protected by
the right to freedom of expression, which includes the
right to
receive or impart information or ideas; in the further alternative,
to the extent that the complaints may be regarded as
defamatory and
not protected by freedom of expression, they rely on the doctrine of
qualified privilege for protection, and in any
event, they aver
further that the Applicants have an alternative remedy.
[3]
The Respondents further deny that they have intentionally trespassed
on Applicants' property; in the alternative if it is found
that they
have trespassed on the property in the past, they aver that they have
given the Applicants an unequivocal undertaking that
they will not
trespass on the property in the future; and in any event, they aver
further that the Applicants have an alternative
remedy.
[4]
The Respondents deny that they have invaded or violated the privacy
and
dignitas
of
the Applicants or that the Applicants have any reasonable
apprehension of future infringement or, in any event, they aver
further
that they have an alternative remedy.
The
Application for Striking Out
[5]
The Respondents have applied for the striking out of various
allegations contained in the Applicants' replying affidavit and,
in
one instance, in the founding affidavit, on the basis that such
allegations constitute hearsay evidence and are accordingly
inadmissible. In order to cure this defect, the Applicants filed,
what purported to be supplementary replying affidavits without
the
leave of the Court. They have failed to apply for condonation for
the filing of such affidavits. They have also not provided
any
explanation for such failure to enable the Court to decide whether
or not to admit such supplementary replying affidavits.
The court
agreed to hear argument in respect of these issues, as well as the
merits, and undertook to give a decision on the preliminary
issues
when it delivers judgment in this matter.
The
Relief Sought
[6]
It appears that the Applicants seek a final interdict in respect of
each of the reliefs that they are seeking. The requirements
for a
final interdict are well established. They are firstly, a clear
right; secondly, that such clear right has been infringed
by the
Respondents to the prejudice of the Applicants or that there is a
reasonable apprehension that such right will be infringed,
causing
resultant injury and harm and thirdly, the absence of any other
satisfactory remedy.
[7]
It is a trite principle of our law that in the case of a final
interdict, any disputes of fact must be resolved on the basis
of the
test set out in
Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-G. In this matter, the disputes of fact on
the material issues can be determined on the facts that are common
cause
and are undisputed, together with those facts which do not
raise a
bona
fide
and
genuine dispute of fact and where disputes of facts are raised on
the papers, on the averments of the
Respondents
on the basis of the principles set out in the case of
Plascon-Evans
(supra).
The
Wrongfulness
[8]
The crucial enquiry in the quest for a final interdict in respect of
the "defamation complaint" is whether the complaints
lodged and concerns expressed by the Respondents are wrongful. To
determine whether the conduct is wrongful in the delictual sense,
the court applies the general criterion of reasonableness in
accordance with the legal convictions of the community. This
involves
policy considerations in terms of which it has to evaluate
and balance the conflicting interests of the parties. The test is an
objective one and the court shall apply the standard of a reasonable
person. Policy considerations are primarily determined by
the values
enshrined in the Constitution.
[9]
In
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) para (28)
Ngcobo
J
(as
he then
was)
says the following:
"..
.Public policy represents the legal convictions of the community; it
represents those values that are held most dear by
the society.
Determining the content of public policy was once fraught with
difficulties. That is no longer the case. Since the
advent of our
constitutional democracy, public policy is now deeply rooted in our
Constitution and the values that underlie it.
Indeed, the founding
provisions of our Constitution make it plain: our constitutional
democracy is founded on, among other values,
the values of human
dignity, the achievement of equality and the advancement of human
rights and freedoms, and the rule of law.
And the Bill of Rights, as
the Constitution proclaims, 'is a cornerstone' of that democracy;
'it enshrines the rights of all people
in our country and affirms
the democratic [founding] values of human dignity, equality and
freedom'."
[10]
These rights are not absolute. Where the constitutional rights
have the potential of being mutually limiting, they need
to be
balanced against each other and to be reconciled either by limiting
the exercise of the one right to the extent necessary
to accommodate
the exercise of the other right, or by limiting the exercise of both
rights as required by the particular circumstances
of the case and
within the constraints imposed by section 36 of the Constitution
(Midi
Television t/a E-tv v Director of Public Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA) paras (9)-(11)).
[11]
The limitations envisaged in section 36, on the exercise and
enjoyment of the constitutional rights can only be imposed by
the
law of general application, which can either be statutory law or
common law. The courts, however, can perform such function
to a
limited extent when developing the common law under section 8(3) of
the Constitution. In the present case, it will entail
an enquiry
into the nature and scope of "the defamation complaints"
to determine whether they constitute an infringement
in terms of the
common law of general application relating to defamation and whether
such law reasonably and justifiably limits
the application of the
constitutional right of freedom of expression.
[12]
Section 36 postulates a two stage enquiry. The first stage of the
enquiry is to determine whether the right has been infringed.
This
entails a two phased approach. The first is to determine the
boundary of the right, that is, the nature, scope and extent
of the
right. The second is to ascertain whether the action or conduct has
crossed the threshold of that boundary, that is, whether
there has
been an infringement of the right. Should it be found that there has
been an infringement, the second stage of the enquiry
kicks in,
namely, whether the infringement can be justified as a reasonable
limitation of the right. In such enquiry, the court
has to do a
balancing exercise in respect of the respective rights and apply the
proportionality test. It would not be necessary
to embark on the
second stage of the enquiry if it is found that there has been no
infringement of the right. If it is found that
the defamatory
complaints are not protected by the right to freedom of expression,
the usual defences in connection with defamatory
claims, such as
truth of the complaints and public interests and qualified
privilege, can be raised to escape liability.
[13]
The relief sought by the Applicants is an extraordinary and
exceptional remedy and unprecedented in our legal history. It is
rooted essentially in complaints made by the Respondent firstly, to
various authorities such as the Municipality, the Department
of
Water Affairs and Forestry, Department of Environmental Affairs and
the Public Protector and secondly, the communication of
these
complaints to neighbours and the media. These complaints, among
others, included the zoning of the property, the validity
of the
licence to conduct an abattoir, and the pollution of rivers and the
atmosphere.
[14]
With that prelude, I am proceeding to evaluate the evidence to
determine whether the Applicants have made out a case for an
interdict. I will first deal with the "defamation complaint";
secondly, I will deal with the "trespass complaint"
and
lastly, I will deal with the "invasion of privacy"
complaint.
The
Defamation Complaint
[15]
The parties in this matter own and/or occupy neighbouring farms. The
First Applicant carries on farming operations on the farm
known as
"Bulida" and, more particularly, stock-farming. He also
operates an abattoir and a compost factory from the
farm. The
Respondents complained about the bad, noxious and offensive smells
emanating from the property, the unhygienic conditions
which
prevailed at the farm, and the severe fly breeding problem which was
created by the compost factory. These conditions are
exacerbated by
the two sewage dams which are situated on the marshy area near the
confluence of the rivers which proximate their
farm and from which
the first Applicant floodirrigates portions of the farm which
creates the overpowering stench.
[16]
A further complaint is that reject material from the abattoir such
as blood, intestines and offal is not handled properly.
It is
transported in a small tanker trailer to the municipal dumping site.
The trailer is frequently overloaded resulting in spillage
from the
tanker onto the public road. They are also subjected to the
squealing of the pigs 24 hours a day. The Respondents complained
that these conditions constituted a health hazard and a nuisance
that affected the well-being and quality of life of the Respondents.
[17]
The authorities and instances instituted an investigation arising
from these complaints and prepared reports. From these reports
it
appears that at least six of the complaints made by the Respondents
were well-founded:
(a)
In February 2006, it was found that waste water and sawdust in
a dirt canal was creating pollution and certain remedial
measures
were directed;
(b)
In January 2008 it was reported that there was a slight smell
emanating from the southern shed and fly problems could exist
in the
compost storing area;
(c)
In February 2008 it was recommended that grass in and around the
waste dump be sprayed with weed-killer;
(d)
In June 2008 the George Municipality informed the First Respondent
that it is not in possession of approved building plans in
respect
of the structural improvements at "Bulida";
(e)
In August 2008 a municipal official, Ms Fernold, detected a sharp
manure smell ("skerp misreuk") coming from the direction
of the abattoir and
(f)
In December 2008 it was found the first applicant was slaughtering
more animals than permitted in terms of the
Meat Safety Act, 2000
and the regulations promulgated thereunder.
[18]
Due to the persistent complaints spanning over periods of time,
certain authorities took self-regulatory measures to avoid
investigating any further complaints from the Respondents. The
following is the case in point;
Dr
M.J. Wolhuter, the Deputy-Director in the Department of
Agriculture, said that
"in
the light of the thorough investigation done by this office into
the complaints and the fact that no substantiation could
be found,
I gave instruction that the Department no longer reacts on his
letters, since responding to them constitutes misapplication
of
official time and resources";
The
Minister of Environmental Affairs and Development, after responding
to the complaints of the Respondents, informed them that
should
there be any further problems, they should approach the court for
necessary relief;
The
various government departments decided not to handle any further
complaints from the Respondents as they had put into place
mechanisms to monitor the situation at the abattoir and
According
to the Applicants, as a result of the fact that the Respondents
received no further assistance or reaction from the
various
departments concerning the complaints, they approached
Die
Burger
with
the complaints, but after it received the version of the
Applicants, the report was not published.
[19]
The Applicants effectively seek an injunction to "gag" the
Respondents from lodging any complaints to the relevant
authorities
or the media as they are meant to defame the Applicants. Such order
would have a serious impact on the Respondents'
right to freedom of
expression. It would also impose on the Respondents the onerous task
of self-censorship. In a democracy, citizens,
who are aggrieved, are
entitled to raise their issues with the relevant authorities in the
form of complaints and seek redress
of such issues, whether in their
own interest or the broader interest of society. They are likewise
entitled to raise such issues
for publication and public discourse
in the media.
[20]
Since our new constitutional dispensation, public participation has
been an integral part of the democratic process. The drafting
of the
Constitution itself was accompanied by robust public participation.
The legislature encourages public participation in the
law making
process. Certain laws and regulations promulgated in pursuance
thereto, make public participation in the decision making
process
sine
qua non.
Interaction
with institutions of governance by the citizenry, whether in the
form of making representations, making complaints,
obtaining
information or sharing information or holding such institutions
accountable, forms an important element of a robust and
participatory democracy. Any restriction placed on such interaction
will make our democracy the poorer for it.
[21]
Counsel for the Applicants submitted that the conduct of the
Respondents can be equated to that of a vexatious litigant and
that
the Applicants are entitled to protection against such conduct. The
protection afforded to a victim of vexatious litigation,
is governed
by the Vexatious Proceedings Act 3 of 1956, with certain built in
safeguards for the vexatious litigant. The Act, however,
does not
take away the right of the party to litigate, but places the
institution of litigation of a party who has been declared
as a
vexatious litigant under the supervision of the court. Similar
statutory provisions do not exist in the case of a person who
complains in a vexatious, persistent or querulous manner. The
Respondents deny that their conduct is vexatious,
contra
bono mores
or
actionable.
[22]
As a matter of public policy based on the legal convictions of
the community, and applying the general criterion of reasonableness,
I must determine whether "the defamation complaint" is
wrongful. In such process, I must evaluate and balance the
conflicting
interests of the Applicants and the Respondents in
accordance with the values enshrined in the Constitution. Although
the holder
of the right has the burden of proving that the law
infringes the right, the enquiry into infringement will always be a
question
of the interpretation of the law in order to determine its
reach and ambit.
[23]
On the one hand we have "the defamation complaint" of the
Respondents, some of which were well-founded and others
were found
to be without merit. It appears that at least six complaints made by
the Respondents were found to have had merit and
remedial and
corrective steps were recommended to address them. The Respondents
contend that section 24 of the Constitution guarantees
them the
right to an environment that is not harmful to their health and
well-being and section 16 of the Constitution guarantees
them the
right to freedom of expression, which includes the freedom to
receive and or impart information and ideas. They maintain
that they
are constitutionally entitled to complain about the conduct and
activities that are illegal and harmful to the environment
or
inimical to their health and well-being and engage the media and the
public in the discourse of such complaints. They state
that they
have a
bona
fide
belief
in the truth of the allegations making up the various complaints and
accordingly deny the wrongfulness of their complaints.
[24]
On the other hand, the Applicants regard these complaints as
injuring them in their good name, reputation, trade and business
and
are designed to expose them to enmity, ridicule and contempt. Many
of the complaints have been found by the authorities to
be without
any merit, but the Respondents have refused to accept such findings
and persist with such complaints. Because of the
complaints spanning
over a period of time, certain authorities, as mentioned earlier,
took self-regulatory measures to avoid investigating
any further
complaints from the Respondents concerning the Applicants. The
Minister of Environmental Affairs and Development, after
responding
to certain complaints of the Respondents, advised them that should
they have any further complaints, they should approach
the court for
the necessary relief.
[25]
In
Dikoko
v Mokhatla
2007
(1) BCLR 1
CC, the Constitutional Court held that the purpose of
limiting the right to dignity by the immunity of civil liability for
defamation
of members of the legislatures, is to advance democracy
through open and free expression. However, it is said that such
privileged
statements may
not
contain personal attacks.
The
court held (at para 40) that a defamatory statement by a municipal
councillor that
"a
chief executive officer of the municipality changed procedures to
get the councillor so indebted",
was
not covered by the privilege, because it was a personal attack which
did not qualify as something said in conducting the real
and
legitimate business of the council.
[26]
In my view the principal set out in the case of
Dikoko
v Mokihatla
(supra),
also
applies to the complaints in this case. They do not infringe on the
Applicants right to dignity as this does not contain any
personal
attacks upon the Applicants, but, in fact, relates to the nature of
the farming operations, the nuisance and potential
environmental
damage. The persistent complaints, some of which were found to have
merit to them, were made out of a legitimate
concern and are not of
a personal nature.
[27]
I do not think that the persistent complaints warrant the
curtailment of the Applicants' constitutional right to freedom of
expression. Insofar as such right may overlap with the rights to
dignity and privacy, the latter two rights must, in the interest
of
democracy, give way to the former right. The effective and
reasonable way to deal with persistent complaints, that may be
unjustified,
is for the relevant authorities to refuse to
investigate them and inform the Respondents accordingly. Should the
Respondents feel
aggrieved by such decision, they would be entitled
to approach the court for the necessary relief. That would obviate a
blanket
prohibition which would be secured by a final interdict.
Such ban would have serious and unintended consequences for the
Respondents
and adversely affect and compromise their constitutional
right to freedom of expression.
[28]
Taking into account policy considerations according to the legal
convictions of the community on the basis of the criterion
of
reasonableness, I find that the right to freedom of expression and
the right to an environment which is not harmful to the health
and
well-being of a person outweigh the nature, scope and extent of "the
defamation complaint". I accordingly conclude
that "the
defamation complaint" of the Respondents does not constitute an
infringement of the right of the Applicants
not to be defamed in
terms of the common law and are accordingly not unlawful. That
disposes of the first stage of the two stage
enquiry mentioned
above. As a result of my findings, it is unnecessary to embark on
the second stage of the enquiry i.e. the section
36 limitation
inquiry. It is also unnecessary to deal with the possible defences
raised in connection with the claim of defamation.
[29]
My findings also impact on the first requirement of a final
interdict, namely, a clear right. By virtue of my finding on the
question of wrongfulness, the Applicants have failed to establish a
clear right as a prerequisite to the granting of a final interdict
in respect of the defamatory complaint. In
Midi
Television t/a E-tv v Director of Public Prosecutions
(supra)
para
26 the court stated that::
"...In
the absence of a law obliging E-tv to furnish the documentary film
to the Director of Public Prosecutions before it
was broadcast, the
first requirement
for
the grant of a final interdict - a clear right - was not met and the
interdict ought to have been refused...
"
The
Trespass Complaint
[30]
The Respondents deny that they have intentionally trespassed on the
Applicants' property. They aver that they gave a reasonable
explanation for their or their employee's presence on the property
on the occasions complained of. Alternatively, if it found that
the
Respondents had trespassed on the property in the past, the
Respondents maintain that they have given the Applicants an
unequivocal
undertaking that they will not trespass on the property
in future. Moreover, the Respondents contend that the Applicants
have an
alternative remedy, namely, that of laying criminal charges
against the Respondents for trespass.
[31]
It does not appear that the Applicants have pursued this claim, or
for that matter, the trespass claim with any degree of conviction.
An interdict is not a proper remedy for the past invasion of rights.
An interdict will only be granted, when a wrongful act has
already
occurred and the wrongful act is of a continuing nature or there is
a reasonable apprehension that it will be repeated.
(Philip
Morris Inc. v Marlboro Shirt Company SA Ltd
1991
(2) SA 720
(A) at 735B and
Minister
of Law and Order v Nordien
1987
(2) SA
894
(A) at 897E-898J.)
[32]
In this matter there is no evidence that the trespass is of a
continuing nature or that there is a reasonable apprehension
that
the trespass will be repeated. Any such contingency is countenanced
by an unequivocal written undertaking given by the Respondents
to
the Applicants that they will not trespass on Applicants' property
in future. In this regard the following undertaking was given:
"In
the hope that this will set your clients' mind to rest, to the
extent that they have genuine apprehension in this regard,
our
clients undertake that they will not enter your clients' property
without your clients' permission. We trust that this will
dispose of
this aspect of the matter."
[33]
There is no evidence that the undertaking was not accepted or that
it was not believed or that it was inadequate. There is
also no
allegation or indication that the Respondents will not comply with
the undertaking. In any event, the Applicants have an
alternative
remedy either to lay criminal charges for trespass or claim damages
should the Respondents breach their undertaking
in future. I am not
convinced that the Applicants have made out a case for an interdict
arising from the trespass complaint.
The
Privacy Complaint
[34]
The Respondents deny that they have invaded or violated the privacy
and
dignitas
of
the Applicants or that the Applicants have any reasonable
apprehension of future infringements or that they do not have an
alternative
remedy. It is difficult to understand the nature and
scope of this complaint. There is nothing unlawful in a member of
the public
walking or travelling on a public road, to look at or
into the properties abutting such road.
[35]
There is also nothing to show that the Respondents' conduct in this
regard amounts to an intrusion of the rights of the Applicants
or is
vexatious or
mala
fide.
If
the Applicants feel aggrieved by the Respondents or members of the
public watching or looking into the Applicants' property,
they are
entitled to wall the property to protect their privacy. An
interdict, in my view, would not be an appropriate remedy as
it
would have far reaching unintended consequences and would be
difficult to police. In any case, I am not persuaded that the
Applicants have made out a case for an interdict arising from the
privacy complaint.
Conclusion
[36]
In the circumstance, I conclude that the Applicants have failed to
discharge the burden resting on them to show:
(a)
that, as far as "the defamation complaint" is concerned,
the Respondents' conduct constitute an unlawful infringement
of the
Applicants' rights;
(b)
that, as far as "the trespass complaint" is concerned, the
Respondents have trespassed on the property of Applicants
or have a
reasonable apprehension of future infringement and
(c)
that, as far as the privacy complaint is concerned, any such rights
have been infringed or that they have a reasonable apprehension
of
future infringements.
[37]
Even if I am wrong in those conclusions, I am of the view that the
Applicants have failed to satisfy the third requirement
of an
interdict, namely, that they do not have a satisfactory alternative
remedy. The applicants have admitted that they have an
alternative
remedy:
"Ek
het reeds aan applikante se regsverteenwoordigers opdrag gegee om 'n
aksie
vir skadevergoeding teen die respondente in te stel."
(RA
341:84)
[38]
In view of my finding, it is unnecessary to deal with the
application to strike out based on the allegations that they
constitute
hearsay evidence and are accordingly inadmissible.
Order
[39]
In the result the application is dismissed with costs, including the
costs consequent upon the employment of two counsel.
E.MOOSA