Forever Resorts SA (Pty) Ltd and Others v Manala and Others (29228/15) [2015] ZAGPPHC 842 (9 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

9/12/2015

CASE NO: 29228/15

DATE OF HEARING: 2 NOVEMBER 2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

FOREVER RESORTS SA (PTY) LTD 1st Applicant

JACOBUS TAIT 2nd Applicant

PENTAGON SECURITY CONSULTANTS CC 3rd Applicant

and

DINGAAN PHINEAS MANALA 1st Respondent

TITUS MALAZA 2nd Respondent

BEERMAN MOLELE 3rd Respondent

GRACE PHOKU 4th Respondent

FOREVER RESORTS BROAD BASED BLACK

EMPOWERMENT WORKPLACE FORUM 5th Respondent

MINISTER OF TRADE AND INDUSTRY 6th Respondent

MINISTER OF PUBLIC ENTERPRISES 7th Respondent

JUDGMENT

OLIVIER, AJ

Introduction

1. The applicants seek an interdict against the first to fifth respondents prohibiting them from:

a. Publishing statements that are defamatory to the applicants;

b. Disclosing and utilising confidential and proprietary information of the first and third applicants without their consent

c. Contacting and convening meetings with the first applicant's employees, for the purpose of discussing the business of the first applicant in the pursuit of the fifth respondent's aims and objectives

d. Entering any of the premises where the first and third applicants conduct their businesses, for the purpose of perpetuating the activities of the fifth respondent, or to mobilise the workers of the first applicant for the purpose of achieving any of the aims or objectives of the fifth respondent

e. Making any media statements, written or otherwise, of a defamatory and/or racist nature in relation to the applicants;

f. Making use of the registered name and trademark of the first applicant without the authorisation or consent of the first applicant, when purporting to be a workplace forum representing employees of the first applicant through the fifth respondent, or in any other manner.

Background

2. First applicant (formerly known as Aventura Resorts) is a private company owning and managing several holiday resorts across South Africa. Second applicant is the Managing Director of the first applicant. The third applicant is a security company of which the second applicant is the sole member.

3. First respondent, Dingaan Manala, is a former employee of the first applicant. He is cited personally as well as in his capacity as an office holder of fifth respondent, a purported workplace forum. The second to fourth respondents are current employees of the first applicant and are cited in their representative capacities as office holders of the fifth respondent. The last two respondents are the Ministers of Trade and Industry, and Public Enterprises, respectively, but no order is sought against them.

4. Mr Manala represented respondents one to five in court ('the respondents'). Respondents five and six were not represented. Applicants were represented by counsel.

5. The matter has a long history, commencing with the dismissal of Mr Manala, in 2009, as Human Resources Manager,

Badplaas, for making racist remarks and using abusive language towards employees.

6. Applicants' concern about first respondent's conduct commenced in 2010 when Mr Manala wrote a letter to the Minister of Public

Enterprises in which he made certain allegations about the BEE status of First Applicant. At issue was the sale by Siyonwaba Leisure (Pty) Ltd, a former BEE partner of the first applicant, in 2008, of its 30% stake in the first applicant. This stake was not taken over by a black­ owned company, but by first applicant. This led to an investigation into first applicant's BEE status, but the matter was not pursued further by the Department of Trade and Industry following its meeting with the second applicant in which it was indicated that first applicant was considering devolving those shares in favour of its employees in a share ownership scheme. In the process, applicants contend, he disclosed confidential information of first applicant which was not in the public domain.

7. In 2013 first respondent sought and gained access - unlawfully, it is alleged - to the premises of first applicant under the pretence of being a member of the National Democratic Democratic Change and Allied Workers Union (NDCAWU) to meet with employees. Upon enquiries by first applicant, it became apparent that Mr Manala was not a Union employee at all.

8. In February 2014 first respondent convened a meeting with various employees of first applicant. During the course of this meeting,

applicants claim, first respondent again unlawfully disclosed confidential proprietary information of the first applicant to its employees.

9. In October 2014 an application for recognition of the fifth respondent as a workplace forum was made to the CCMA by the first

respondent. However, this application was declined as it was not a representative trade union. Following this decision, first respondent

again met with employees in which he made statements that applicants consider defamatory and/or racist.

10. First applicant attempted to resolve the issue before resorting to court. In December 2014 the first applicant wrote to fifth

respondent, demanding that first respondent desist from defaming it and from calling meetings with employees during office hours and on the premises of first applicant. First respondent failed to abide by the demand. Thereafter, he sent an 'open memorandum' by e-mail on behalf of fifth respondent to various recipients, including the Department of Public Enterprises, senior members of government as well as some employees of the first applicant's. Again, this contained a number of statements deemed defamatory by the applicants.

11. Further escalation occurred in 2015, with the first respondent sending letters to the Minister of Public Enterprises in February

and March 2015, followed by further communications to various other persons, all of which contained statements deemed

defamatory/and or racist by the applicants.

12. This application was served on respondents at the end of April 2015. In May another communication was dispatched to a range of recipients. Again, applicants contend that it contained defamatory and/or racist statements.

Interdict

13. The purpose of an interdict is either to prevent an impending wrongful act, or to prevent the continuation of an already-existing

wrongful act. This case is about the latter.

14. Although applicants do not specify it, it is clear that they are praying for a final interdict. The requirements for the granting of final interdict are well established in our law: first, a clear right must exist; second, the respondent must have infringed such right or a reasonable apprehension exists that such right will be infringed; and third, that there is no other satisfactory remedy.

15. In respect of the third requirement, from the papers and applicants' submissions in court, it is clear that applicants do not consider a damages action to be appropriate under the circumstances as it would not provide them with the required relief considering the continuing behaviour of the respondents complained of by applicants. Also, they claim that the first respondent is impecunious and would not be able to satisfy any damages award.

The first and second requirements will be addressed below.

Defamation

16. It is well established in our law that a corporation can be defamed. It was stated by the Supreme Court of Appeal, per Brand JA, in Media24 Limited and others v SA Taxi Securitisation (Pty) Ltd (Case no 437/2010) [para 49), that

" ... the reputation of a corporation is worthy of protection. Moreover, I believe that the common law rule protecting that reputation is in tum recognised by s 39(3) of the Constitution. In Khumalo the Constitutional Court considered our common law of defamation and concluded that it strikes a proper balance between the protection of the right to freedom of expression, on the one hand, and the right to reputation, on the other: As I see it this also applies to the reputation of corporations."

17. The applicants need to establish the defamatory nature of the statements. Once this has been done, the onus shifts to the respondent.

18. Applicants submit that the statements of the respondents are per se defamatory, in that statements of this

nature tend to lower the applicants in the estimation of right thinking members of society generally. They say that the business reputations of first and third applicants are being damaged, and that in respect of the second applicant, both his reputation and dignity are being infringed on. Applicants contend that the first and fifth respondents are spreading injurious falsehoods by making unfounded statements without any proof.

19. Some serious allegations are made in the first and fifth respondents' communications, according to applicants, including ones of racism, corruption, intimidation, fraudulent and criminal conduct. A pertinent question is whether they are factually founded or not.

20. Here is a selection of some of the statements. A more detailed list is provided on p 18-23 of applicants' heads of argument.

"Forever Soyonwaba (sic) fraudulently mislead the Cabinet and the Minister of Public Enterprise" and that first applicant was committing "corruption within the group against black employees".

Second applicant is part of a management team that promotes the "idea [that] whites only are allowed in the Ex-Aventura Resorts) and went the extra mile by circling all the swimming pool facilities, with the aim of preventing Africans to use the facilities of the Resorts and fathering aims and objectives of the apartheid Nationalist Party. Your actions as the Managing Director reveal that you, in medical terms perform the CPR (Cardiac Pulmonary Resuscitation to the practices of apartheid, which was declared by the International World Organisation a crime to human kind" [sic].

There is one particular phrase that applicants say "resonates throughout the meetings that [first respondent] conducts and the letters that he writes": "White Economic Empowerment triumph over Black Economic Empowerment."

21. In Ce// C (Pty) Ltd and others v Prokas and another [Case no 40902/2014], Weiner J said (at paras 38-41) the following on whether a statement is defamatory:

Whether the statement is per se defamatory or defamatory in its ordinary meaning, involves a two stage enquiry- 1) the ordinary meaning of the statement must be ascertained; and 2) once the ordinary meaning has been ascertained, it must be determined whether that meaning is defamatory.[1] At the first stage, an objective test is applied when determining the ordinary meaning of a statement.[2] The test entails determining what meaning a reasonable reader of ordinary intelligence would attribute to the statement in its

context.[3]

At the second stage, the meaning which should be ascribed to a statement is considered. As was set out in Simm v Stretch[4]

" ...a statement is defamatory if it would tend to lower the plaintiff in the estimation of right thinking members of society generally"

A right thinking member of society has been held to be a reasonable person of normal understanding and development and "society

should be understood to mean a respectable section of the community".[5].

22. In my opinion it is clear that at least some of the many statements of the first respondent are defamatory. In the mind of a right­ thinking person, the words would be understood by the reader as derogatory and in some instances racist. In respect of the second leg, I think that such statements would tend to lower the applicants in the estimation of right members of society generally. It follows in my opinion that these statements are defamatory.

23. Now, two presumptions arise. The first is that of wrongfulness and the second is intent. The respondents bear the onus to rebut these presumptions.

24. The presumption of animus iniuriandi can be rebutted by showing that respondents did not intend to injure applicants' reputation.

25. The presumption of wrongfulness can be rebutted in different ways. One justification is that a statement which is defamatory may be published provided it is fair comment on true facts that are in the public interest.

26. The respondent averred during argument that the statements were true and that publication was in the public

interest. Applicants contend that the statements are untruths and amount to unsubstantiated allegations.

27. A fundamental question is whether the statements amounted to fair comment or opinion on true facts, or whether they were put forward true as facts while in fact they were not.

28. ln respect of fair comment, Weiner J expressed herself as follows [para50]:

In regards to the grounds of justification and more particularly the defence of fair comment or protected comment, in Citizen (1978) (Pty) Ltd v McBride[6] the Constitutional Court held that the defence protects criticism, comments or expressions of opinion on facts which are true, and which relate to matters of public interest, and if they are such that any fair man might make them on those facts.

29. Truth is therefore crucial to this enquiry. The SCA dictum in Delta Motors is helpful in this regard:

"For the defence of fair comment to succeed, the respondent must prove that the statement in question was a comment or opinion and not an allegation of fact; that it was fair; that the a/legations of fact commented on were true and accurately stated; and that the comment was about a matter of public interest." (my emphasis)

30. In my opinion the respondent failed to discharge this onus. In his submission on behalf of respondents, first respondent simply

insisted on the truth of the statements without providing convincing factual information to prove that they were true and

accurately stated. Save from alleging that the statements were in the public interest

or for public benefit, no factual information was put before the court or alleged that was so. No proper factual foundation

was therefore laid.

Essentially, in court, first respondent reiterated the claims made in the various communications. It was contended by him that this interdict application was a tactic to silence the respondents and to prevent them from telling the truth. He maintained that employment equity was not being practised and that applicant had been misleading the government and public at large.

31. The first respondent alleged that it was in fact the first and second respondent who was defaming him, and that dismissal of first respondent had been for fabricated reasons. In para 14 of his answering affidavit he states that the affidavit's purpose is to interdict the applicants from "engaging in or continuing to engage in corruption, misleading and misdirecting the first, second, third, fourth and fifth respondents;" and then "second, allowing discussions in relation the alleged corruption activities by the respondents, be trialed in a High Court of South Africa Gauteng Division Pretoria and bind by the verdict thereof." [sic) However, there was nothing before the court to substantiate these claims.

32. The presumption in respect of animus iniuriandi was also not rebutted.

33. There has been wide publication of the statements. E-mails constitute publication for purposes of defamation.

34. It has been established that these statements were made by the first respondent personally or through the fifth respondent. The first respondent does not deny making the statements. In fact, his correspondence and related documents are part of the case documents. His heads of argument as well as his affidavits also repeat many of the statements and accusations complained about.

35. Objectively, on balance, the statements are prima facie defamatory. I think that in the opinion of the reasonable person with normal intelligence and development, the reputation of the applicants has the likelihood of suffering harm, if it has not already suffered such harm.

36. Respondent could not show that his statements are fair comment, or substantially true, or in the public interest.

37. It is true that the relief prayed for would impact significantly on the freedom of expression of the respondents. Such rights, however, is not without limitation and defamation has been recognised by our courts as a justification for limiting someone's freedom of expression. This was also confirmed by the SCA in the Media24 case.

Confidential information, access to premises and use of trade mark

38. First respondent, while employed, became privy to minutes of certain meetings, which he has repeatedly referred to in his communications

according to the applicants.

39. First applicant has a clear right in respect of information that is private and confidential. Such information may not be disclosed by the respondents. The applicants are unsure which other information might be in his possession.

40. Fifth respondent claims to be a workplace forum but its application for recognition was declined by CCMA on the basis that it was not a recognised trade union. Section 14 of the Labour Relations Act 66 of 1995 provides that only a representative trade union may gain access to an employer's premises. Without recognition, the fifth respondent

is not entitled to access to the workplace or to convene meetings on site. Also, as it is not a registered or recognised union, it may not use the name or registered trade mark of first applicant when purporting to be a workplace forum representing employees of the first applicant. First applicant has a clear right to this trade mark.

41. The interdict in favour of first and third applicants is only requested to prevent the respondents for conducting or advancing the business of fifth respondent. Access to the workplace of second to fourth respondents to perform their employment duties cannot and should not be limited.

42. First applicant alleges that fifth respondent continues to insist on access to the premises during work hours, despite not being

registered either as a trade union or a workplace forum. Respondent contests this, saying that most meetings not conducted on premises but off site and outside working hours.

43. Taking into account the past trespass, I consider that there is a reasonable apprehension that the trespass could be repeated.

Conclusion

44. On balance, I am of the opinion that the applicants have satisfied the requirements for an interdict in respect of defamation,

protection of confidential information and access to the workplace.

45. Potentially, continuation of respondents' actions could cause irreparable injury to business reputations of the applicants and their business and associated interests.

46. It seems clear to me that a damages claim would not be appropriate under the circumstances. The harm incurred by applicants cannot be cured by this remedy in the normal course. The harm is immediate and continuous and waiting for the outcome of a damages claim will not offer sufficient or appropriate redress.

47. In respect of prayer 3, it would be unnecessarily restrictive to prevent any of the respondents from contacting or meeting with the first applicant's employees outside of working hours and away from the work premises. The protections offered by the terms of the interdict are sufficient to counter any potential harm that could result from not granting prayer 3.

Order

48. The first to fifth respondents are interdicted and prohibited from:

b. Disclosing and utilising confidential and proprietary information of the first and third applicants without their consent

c. Entering any of the premises where the first and third applicants conduct their businesses, for the purpose of perpetuating the activities of the fifth respondent, or to mobilise the workers of the first applicant for the purpose of achieving any of the aims or objectives of the fifth respondent

d. Making any media statements, written or otherwise, of a defamatory and/or racist nature in relation to the applicants;

e. Making use of the registered name and trademark of the first applicant without the authorisation or consent of the first applicant, when purporting to be a workplace forum representing employees of the first applicant through the fifth respondent, or in any other manner.

49. There is no order as to costs.

__________________________

M OLIVIER

ACTING JUDGE OF THE HIGH COURT

[1] Sindani v Van der Merwe 2002 (2) SA 32 (SCA) at 368-C

[2] Crawford v Albu 1917 AD 102 119

[3] Sindani v Van der Merwe supra

[4] 1936(2) All England LR 1237 HL 1240

[5] LAWSA, vo17, p235, para237

[6] 2011 (4) SA 191 CC, 217E-F, [80]