Jaguar Feed Enterprises (Pty) Ltd v Sibeko Agri Marketing (Pty) Ltd and Others (18000/2019) [2020] ZAWCHC 176 (7 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 18000/2019

In the matter between:

JAGUAR FEED ENTERPRISES (PTY) LTD Applicant

and

SIBEKO AGRI MARKETING (PTY) LTD First Respondent

THEOPHELUS SIBEKO Second Respondent

MERVYN DORALINGO Third Respondent

Coram: Justice J I Cloete

Heard: 26 November 2020, supplementary notes delivered 1 December 2020

Delivered electronically: 7 December 2020

JUDGMENT

CLOETE J:

[1] On 21 October 2019 the applicant company approached this Court on an urgent basis for orders against the first to third respondents for spoliatory relief, and to interdict them from burning the movable goods purportedly subject to the spoliation as well as making

‘improper threats’ towards the applicant. The evidence established that the second respondent was at all material times the sole director of the first respondent. The third respondent was appointed by the Department of Rural Development and Land Reform in his capacity as Strategic Partner to advise the first and second respondents on turning around the commercial viability of their farming operation. He has no other commercial interest in the first respondent.

[2] The practice note filed by the applicant’s attorney for the hearing on 21 October 2019 recorded that after the application

was served, the first and second respondents agreed to give the applicant access to the premises in question to remove the movables

concerned.

[3] The presiding Judge was also informed that the spoliatory relief would probably become moot by 21 October 2019 and, provided the agreement was honoured, the applicant would only seek orders in terms of prayers A, C and E, subject however to no costs order being sought against the second respondent.

[4] The practice note also recorded that although no notice of opposition was delivered, there had been ‘a threat’ to file answering affidavits on behalf of the first and second respondents and as such, in the applicant’s view, the matter was not ripe for hearing in the motion court. The application was then postponed by Francis AJ to 29 October 2019 with costs to stand over for later determination.

[5] On 29 October 2019 the matter came before Parker J in the motion court. The practice note filed by the applicant’s attorney for the purpose of that hearing recorded that, prior to the matter coming before Francis AJ on 21 October 2019, the spoliatory relief and interdict sought to prevent the burning of the movables in question had already become moot since the first respondent, after service of the application, gave the applicant access to remove these items.

[6] The presiding Judge was also informed that the only outstanding relief sought was to interdict the first and third respondents from making ‘improper threats’ against the applicant, and costs on a punitive scale (prayers C(ii) and E of the notice of motion).

[7] As far as punitive costs were concerned, prayer E limits that relief in respect of the second respondent to his opposition, if any, to the application, as well as to the first respondent alleging that the acts of spoliation, threats to burn and ‘improper threats’ did not occur on its behalf. Costs were not sought against the respondents jointly and severally, but in the form of a blanket costs order. However the draft order annexed to this practice note differed in two material respects from the aforementioned relief contained in the notice of motion.

[8] First, no relief at all was sought against the second respondent in the draft order. Second, the applicant for the first time sought an order that the first and third respondents be jointly and severally liable for the applicant’s costs on the scale as between attorney and client, the one paying, the other to be absolved.

[9] On the day it was heard, Parker J granted no substantive interim relief. He merely granted a rule nisi calling upon the respondents to show cause on 8 November 2019 why a final order should not be granted interdicting the first and third respondents from making ‘improper threats’ towards the applicant, and why the first and third respondents should not be jointly and severally liable for costs on the attorney and client scale. During argument before me it became apparent that the applicant, at least, had since laboured under the misapprehension that the effect of Parker J’s order was to grant an interim interdict against the first and third respondents restraining them from making improper threats.

[10] By 8 November 2019 the third respondent had delivered his answering affidavit. The matter came before Papier J in the motion court. He granted a final interdict restraining the first respondent from making ‘improper threats’ towards the applicant, and to pay the costs of the application on an attorney and client scale.

[11] He further ordered that the rest of the application be postponed to the opposed motion roll; the rule nisi against the third respondent be extended accordingly; and costs pertaining to the third respondent were to stand over for later determination (the remainder of the order is not relevant for present purposes).

[12] More than a year later the extended return date came before me. It is not necessary to traverse the full extent of the allegations and counter-allegations in the papers, since the applicant’s case against the third respondent boils down to the following.

[13] In paragraph 10 of the founding affidavit the applicant’s deponent, Mr Alan McLachlan (who is its sole director) asserted that it had cited the third respondent for two reasons. First, relief was sought against the third respondent only to the extent that the first respondent might allege that the threats purportedly made by the third respondent were not advanced on its behalf; and second, since the second and third respondents had previously described the third respondent as a ‘partner’ of the first respondent (in the farming venture on the property on which the alleged acts of spoliation arose) ‘in such circumstances he will be jointly and severally liable with the first respondent and by reason of the fact that he made the threats described below’. Given that the first respondent did not allege that the threats purportedly made by the third respondent were not advanced on its

behalf, it is only necessary to focus on the second basis upon which the applicant cited the third respondent as a party to these

proceedings and sought relief against him.

[14] The threats relied upon essentially fell into two categories. The first pertained to an incident on the property when the third

respondent is alleged, not to have threatened the applicant itself in the sense of an infringement of its personality rights, but rather one of its employees, a Mr Van Wyk, and four casual labourers hired by the applicant to assist for the day. These individuals were not co-applicants and they personally have not sought any relief against the third respondent.

[15] Four threats were purportedly made during that incident. First, the third respondent is alleged to have insisted that Van Wyk and his assistants immediately offload a trailer which the applicant had rented from a third party. Second, when they refused he threatened to burn the trailer. Third, he repeatedly swore at Van Wyk and said that he and the labourers were ‘skelms’. Fourth, he pointed his finger at Van Wyk in an aggressive, threatening and demeaning manner, in close proximity to his face. Self-evidently,

even if this were true (which the third respondent denies) they could not have constituted threats against the applicant itself. This much was conceded during argument by Mr Kulenkampff, the applicant’s attorney, and he abandoned any reliance thereon save for “contextual” purposes.

[16] The second category is found in two emails from the third respondent to the applicant’s attorney, dated 8 and 9 October 2019. McLachlan claimed that the contents of these emails ‘clearly lend credence to the level of threats which the third respondent felt at liberty to utter… the email [of 8 October 2019] also carried the imprint of being in terrorem and is most improper’.

[17] In order to properly contextualise the applicant’s case it is necessary to bear in mind that the applicant did not rely on the impropriety of the third respondent’s utterances in those emails as a self-standing basis for the relief sought, but rather that they constituted what McLachlan termed ‘improper threats’.

[18] It is thus the threats which the applicant seeks to interdict the third respondent from making. On a plain reading of the email of 8 October 2019 the threat, and I will assume for present purposes that it was a threat, was the second respondent’s threat to ‘unleash the authorities’ on the applicant for tax evasion and exploitation of its workers. The second respondent would also lay criminal charges if his property, allegedly unlawfully removed by the applicant, was not returned within 24 hours.

[19] Put differently, in most of the email the third respondent conveyed to the applicant’s attorney threats made by the second

respondent. However the email did conclude with a recommendation that the dispute be settled in an amicable matter and that the applicant desist ‘from his continued exploitation of vulnerable people’ in order to avoid ‘total embarrassment’ to it. Apropos the third respondent personally, this is the sum total of the ‘improper threat’.

[20] In response, the applicant’s attorney on the same day informed the third respondent that he considered these communications to be improper on the ground that the third respondent (a non-practising advocate) had breached the legal code of ethics in conveying them. In return the third respondent again proposed an amicable resolution of the real dispute.

[21] The applicant’s attorney presumably realised that the third respondent might not be acting as a legal representative of the first and second respondents after all, because the next email he despatched sought clarity on this issue. However he proceeded to accuse the third respondent personally of extortion, and threatened that his client would seek an interdict against him personally.

[22] Thereafter the third respondent telephoned the applicant’s attorney and subsequently sent the second email, dated 9 October

2019. He informed the applicant’s attorney that ‘I have just spoken to Mr Sibeko [i.e. the second respondent] and he has asked me to convey the following … Mr Sibeko also reserves his right to ask for investigations into your client’s dodging taxes, violating employment laws, tampering with the municipality’s electrical systems and exposing/advertising information given to him implicating your client in other wrongdoing’.

[23] That the applicant’s attorney must have realised by then that the threats were in fact being made by the second respondent, through the third respondent, is evident from his subsequent email to the first and second respondents of the same day, in which he informed them that ‘you would be well advised to withdraw the threats made’. These were referred to earlier in that email as ‘extortionary threats… made against our client and… a threat to burn the trailer…’.

[24] Nonetheless, in a separate email to the third respondent, the applicant’s attorney implicitly accused him of extortion by demanding that ‘you and your clients will have to undertake… not to make any further extortionary threats…’.

[25] The third respondent replied in a further email of the same day in which he placed on record that he was not the second respondent’s

legal representative but a strategic partner to the first respondent, and that ‘Mr Sibeko [i.e. the second respondent] has requested me to assist him in that capacity’. He again proceeded to convey the second respondent’s stance, which was an undertaking not to damage the applicant’s property, but that the second respondent ‘can unfortunately not give an undertaking that if approached by the authorities… he will not divulge the truth about your client’s actions and unfortunate conduct’. The applicant’s attorney was also informed that the third respondent was ‘unavailable to enter into further discussions with you regarding the matter’ and that ‘Mr Sibeko will from here on attend to all further correspondence with you’.

[26] This concluded the third respondent’s involvement in the matter, and there is no evidence that he subsequently made any threat or attempted to execute the threats made by the second respondent. Somewhat ironically however the applicant has not sought to obtain a final interdict against the second respondent. It only persists against the third respondent whose involvement in the real dispute came to an end on 9 October 2019.

[27] In Media 24 v SA Taxi Securitisation 2011 (5) SA 329 (SCA) it was confirmed by the Supreme Court of Appeal in paragraph [55] that a corporation has a claim for general damages in defamation.

Accordingly, as a logical corollary, a corporation should be entitled to interdictory relief where it persuades the Court that the injury complained of infringes its personality interest. However, the fundamental problem faced by the applicant, as I see it, is that the contents of the third respondent’s emails, properly construed, amount to nothing more than the conveying of a threat or threats by the second respondent against whom the applicant no longer seeks any relief.

[28] The trite elements of the crime of extortion include that the person intentionally making the threat must be the same person who stands to gain the advantage as a result of the threat made.

[29] In a supplementary note the applicant contended that irrespective of whether the third respondent sought to gain a direct benefit for himself, his conduct attracted ‘criminal liability’ by reason of him having made common purpose with the first and second respondents. Reliance was placed on S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC) at paragraphs [18] to [19].

[30] What is relevant is the Constitutional Court’s summary at paragraph [19] of the two categories into which the liability

requirements of a joint criminal enterprise fall. The first is where there is a prior agreement, express or implied, to commit a common offence. The second is where, notwithstanding the absence of a prior agreement, there is active association and participation in a common criminal design ‘with the requisite blameworthy state of mind’.

[31] As regards the element of mens rea, the applicant submitted that dolus eventualis or even negligence suffice, citing S v Khumalo and Others [1991] ZASCA 70; 1991 (4) SA 310 (AD) and Burchell: Principles of Criminal Law 5ed at 483 as authority. In Khumalo the Appellate Division however held that, in cases of group violence (and thus potentially common purpose) no individual accused can be found guilty of the crime unless it is proven that he or she had the intention to commit it. In criminal law a crowd cannot have an intent and if it is attempted to infer a particular accused’s intent from that of a larger group of people, the inference can only be justified where the Court has no reasonable doubt that all the members of the group indeed had such unanimous intent and that the accused was a member of the group in the sense that he or she shared such intent. In turn, Burchell, in referring to Thebus writes at 483 that:

‘The common-purpose rule is invoked in the context of consequence crimes in order to overcome prosecutorial problems of proving the normal causal contribution between the conduct of each and every participant and the unlawful consequence. Strictly speaking, the rule has no application in the context of criminal conduct consisting only of circumstances.’

[32] In Goolabjith v Govender (3477/09) [2009] ZAKZDHC 68 (13 November 2009) Marais AJ held at paragraph [40] that:

‘Unlawful extortion or attempted extortion aimed at obtaining acceleration of an advantage, even if it is due, clearly offends the rights to dignity and access to Courts. As argued by Snyman pressure to obtain a benefit before it is lawfully due (or, I might add) without waiting for the action to take its course through the Courts, in itself may result in obtaining an undue advantage. To demonstrate this, Milton uses the example of the extortionist threatening to assault his victim unless a due debt is paid. The answer, I believe, should be found in the requirements of wrongfulness and intention. In other words, if judged by the boni mores of society the act is regarded as unlawful, and the wrongdoer is shown to have made the threat or exerted the pressure with knowledge of the wrongfulness… The offence is committed, irrespective of whether its object was to obtain an advantage that was due. Such an approach would be consistent with underlying principles and the object of the Constitution.’

[33] At paragraph [44] the Court went on to say:

‘As reflected by the prima facie thinking of Wallis J, a Court should be loath to interdict a party from approaching the authorities to open a criminal investigation. In the circumstances such an order should not, in my view, be granted unless the evidence demonstrates that the person threatening to lay a charge of fraud is motivated by malice and without any reasonable belief in the complaint.’

[34] At paragraph [47] the Court concluded:

‘In the circumstances I find that an innocent party is entitled to interdictory relief (subject to proof of the necessary requirements) where a reasonable apprehension is established that the wrongdoer intends:

(a) maliciously to lay a charge of fraud in the absence of an honest belief properly grounded;

(b) unlawfully and intentionally to extort payment.’

[35] In my view the third respondent’s communications to the applicant’s attorney vis-à-vis the third respondent himself fail to meet both the requirements of intention and wrongfulness for purposes of interdictory relief. Careful perusal of the offending words, taken in proper context, amount to nothing more than the conveying of a threat or threats by the second respondent coupled with a recommendation regarding the potential consequence of those threats. Indeed, as pointed out in a supplementary note submitted on behalf of the third respondent, a proper reading of the email of the applicant’s attorney dated 8 October 2019 in response to the first ‘threat’ makes it clear that the first offending email was regarded as no more than an issue pertaining to the ethical responsibilities of the third respondent. It illustrates that despite the offending email both the applicant and its attorney were focused on the return of the goods allegedly spoliated with only a cursory reference to dealing with the other allegations ‘when and if appropriate’.

[36] The applicant’s reliance on the third respondent’s interest as a so-called partner is also misplaced. By the time the matter was argued before me the third respondent’s version on this score was undisputed. The applicant has known this since the third respondent’s answering affidavit was delivered in early November 2019. McLachlan admitted the third respondent’s

averments in this regard in the replying affidavit deposed to on 20 December 2019.

[37] Moreover the applicant relies on no other “advantage” to the third respondent in conveying the second respondent’s

threats, and in addition the evidence established that the applicant did not in fact succumb, or intend to succumb, to any such threat. On the contrary it spurred the applicant to launch the current application, followed by the first and second respondents’

capitulation at a time after any threat could conceivably have been viewed by the applicant as emanating from the third respondent.

[38] In any event, the relief sought by the applicant against the third respondent, even if I were persuaded that it could be granted, is formulated in such broad terms that it would be inappropriate to do so. The effect of such an order would be a recipe for future

litigation, since it would leave open to the applicant, in the sole discretion of McLachlan, to form the view that he regards some or other utterance as an ‘improper threat’; would in turn involve another court having to determine, on a fact specific basis, whether an order for contempt of court is justified in any given circumstances; and would potentially expose the third respondent accordingly.

[39] During argument Mr Kulenkampff invited me to reformulate the order sought to read ‘improper threats amounting to extortion’. I decline to do so, primarily for two reasons. The first is that it would remain overly broad. The second is that the applicant did not establish extortion in the first place. (See also Moyo and Another v Minister of Police and Others 2020 (1) SACR 373 (CC) at paragraph [44] where the Constitutional Court held that the wording for the offence of intimidation in section (1)(1)(b)

of the Intimidation Act 72 of 1972 was too wide, since it depended simply on the experience of fear of another).

[40] As previously stated the applicant misconceived the terms of the order of Parker J dated 29 October 2019. It was argued by Mr Kulenkampff that the third respondent has not provided the applicant with an undertaking that he will not repeat the improper threats complained of in the founding papers, and accordingly, in the event ‘that the restraint imposed by the order dated 29 October 2019 is discharged’ there will be none on the third respondent. The aforementioned order imposed no such restraint on the third respondent. What the parties might have intended in the order of Parker J of 8 November 2019 does not assist the applicant either, since it is not my function to attempt to interpret that order in the abstract.

[41] The applicant seeks final interdictory relief. It thus had to establish a clear right, an injury actually committed or reasonably

apprehended, and the absence of an adequate alternative remedy.

[42] As pointed out by Mr Van der Schyff who appeared for the third respondent, the applicant did not deem the second respondent’s threats sufficiently serious to pursue any relief against him. The unanswered question that arises is why the applicant nonetheless decided that those communications which could properly be attributed to the third respondent, set out above, were however so serious that final interdictory relief in the broadest possible terms was appropriate.

[43] There is also no evidence of any continuing harm at the instance of the third respondent, and interdicts are not available for only past conduct: National Council of SPCA v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at paragraph [22]. Although the applicant contended that it has no alternative satisfactory remedy, it simultaneously expects this court to assume, in its favour and without any evidence, that laying a criminal charge against the third respondent for what, at a stretch, could be attempted extortion, would not have achieved the desired result.

[44] This is not to say that the third respondent’s communication was appropriate, but an inappropriate communication is a far cry from constituting a basis to grant widely cast final interdictory relief. The applicant’s persistence against the third respondent, in these circumstances, was ill-considered.

[45] The following order is made:

‘The application against the third respondent is dismissed with costs, including all reserved costs orders (to the extent that such costs are not dealt with in the order of Papier J dated 8 November 2019).’

____________________

J I CLOETE