Janse Van Vuuren and others v Van der Merwe
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Grobbelaar AJ |
| Judgment Date | 29 August 2023 |
| Citation | 2023 JDR 3276 (WCC) |
| Hearing Date | 03 March 2023 |
| Docket Number | 1054/2019 |
| Court | Western Cape Division, Cape Town |
Grobbelaar AJ:
INTRODUCTION
The first to fourth plaintiffs are claiming damages due to alleged widely published defamatory statements made by defendant regarding them. The four actions were consolidated for hearing before this Court.
The plaintiffs were represented by counsel and the defendant insisted on representing himself. He practices as a neurosurgeon and is obviously an intelligent person but is untrained in law.
The defendant’s plea contains several complaints about the case against him and is not a model of clarity but appear to plead that the statements made by defendant regarding the plaintiffs are true (and presumably for the public benefit).
2023 JDR 3276 p3
Grobbelaar AJ
The defendant brought several counterclaims against the plaintiffs ranging from prayers to have them incarcerated, struck from the roll of attorneys or advocates to claiming damages caused by defamation.
The defendant’s plea incorporated several applications, they were argued before any evidence was lead. The applications were opposed, the Court dismissed them and provided ex tempore reasons for the orders made. At this stage the Court do not propose to provide further reasons.
The fourth plaintiff brought an application to amend his particulars of claim to include further alleged defamatory statements made about him by defendant after summons was served on him. The Court granted the application and provided ex tempore reasons for the order made. At this stage the Court do not propose to provide further reasons.
The fourth plaintiff’s amended particulars of claim were delivered and despite the dies expiring the defendant did not adjust his plea.
Mr Matzdorff, initially the second plaintiff, passed away after litis constetatio but before the matter was heard. He is now represented by the executor of his deceased estate. For the sake of convenience, the Court will refer to him as “the second plaintiff”.
2023 JDR 3276 p4
Grobbelaar AJ
The second plaintiff brought an application to allow hearsay evidence of the second plaintiff’s daughter, Michelle Matzdorff and the third and fourth plaintiffs because the second plaintiff had passed away before he could testify. The defendant opposed the application but did not appear in court to argue the application despite being informed of the date that the application will be argued.
The Court has heard the hearsay evidence but have not made a finding on its admissibility. The Court will deal with it later in the judgment.
The defendant argued his abovementioned applications in court but except for filing notices and papers opposing the applications by the second and fourth plaintiffs he did not further attend or participate in the trial itself.
He was fully apprised of the further progression of the case by the plaintiff’s attorney and repeatedly invited to return and participate in the proceedings. He declined to return to the court, instead he wrote several e-mails with annexures to the plaintiff’s attorneys and the Court but did not bring any further applications before the Court. These e-mails contained further highly unflattering statements regarding the plaintiffs and their legal representatives.
The first, third and fourth plaintiffs testified as well as Michelle Matzdorff and Mr Viljoen, the attorney for the first to fourth plaintiffs.
The defendant presented no evidence to the Court.
2023 JDR 3276 p5
Grobbelaar AJ
On behalf of the plaintiffs, it was argued that evidence presented on their behalf exposed the allegations made against them by defendant as being:
defamatory.
entirely bereft of substance or foundation;
reckless in the extreme; and
malicious.
HEARSAY EVIDENCE
As mentioned above an application in terms of Section 3 of the Law of Evidence Amendment Act, 45 of 1988 (“the Hearsay Act”) was brought on behalf of second plaintiff to have the hearsay evidence of Michelle Matzdorff and the third and fourth plaintiffs allowed as evidence in the trial.
Section 3(1)(a) of the Hearsay Act provides that hearsay evidence is inadmissible.
Section 3(1)(c) of the Hearsay Act provides that hearsay evidence will be admissible if the court having regard to the seven factors set out in that Section is of the opinion that the evidence should be admitted in the interests of justice.
2023 JDR 3276 p6
Grobbelaar AJ
The Court will refer to each factor individually and then consider their cumulative effect.
The nature of the proceedings
The use of hearsay evidence in a civil trial are more readily allowed than evidence in a criminal trial.
The nature of the evidence
This factor concerns the reliability of the evidence. The evidence given concern the conduct of the second plaintiff in his dealings with the third plaintiff when the second plaintiff was instructed by the defendant and his conduct when the second plaintiff later instructed the third plaintiff as well as his reputation and integrity. It was given under oath and there is no indication that the evidence is unreliable.
The purpose for which the evidence is tendered
The evidence is tendered to establish the truth of its content.
The probative value of the evidence
2023 JDR 3276 p7
Grobbelaar AJ
The probative value means not only what the hearsay evidence will prove if admitted but also if it will do so reliably [1] .
As mentioned above there is no indication that the evidence is unreliable.
The reason why the evidence is not given by the person upon whose credibility the probative value of the evidence depends
The evidence could not be given by the second plaintiff because he passed away before he could testify, this is a justified ground.
Any prejudice to a party which the admission of the evidence might entail
There is no apparent prejudice to the defendant if the evidence is admitted and he has raised no such prejudice.
Any other relevant factor
No other relevant factor has been brought to the attention of the Court.
If the Court take all of the above factors into consideration the Court finds that it is in the interest of justice that the evidence of the third and fourth plaintiffs
2023 JDR 3276 p8
Grobbelaar AJ
and Michelle Matzdorff be admissible in the action against the defendant, and it is ruled that the evidence is admissible.
HISTORY OF EVENTS
It is appropriate to at this stage provide a short history of the events leading to the plaintiffs instituting the defamation actions against the defendant.
The genesis of these defamation actions is the passing of the defendant’s parents and the administration of their estates.
A trust company, Finlac Trust Limited (“Finlac Trust”), was appointed in the wills of defendant’s parents to administer the estates of his parents. Finlac Trust acted as executor, and one Louise Danielz as Finlac Trust’s nominee.
After the death of the defendant’s father, and in the administration of his estate, a family farm was sold at auction to the defendant’s brother, Dr Ian van der Merwe.
The defendant, considering that the sale of the farm was unlawful, instituted application proceedings in the Kimberley High court seeking to have the sale on auction set aside (the “Kimberley matter”).
In those proceedings:
2023 JDR 3276 p9
Grobbelaar AJ
the fourth plaintiff acted as attorney of record for Finlac Trust and Ms Danielz;
an attorney, Mr Frankel Engelbrecht, was cited in his capacity as trustee in a trust created in relation to the deceased estates of the defendant’s parents; and
the third plaintiff was mentioned as having drawn a draft deed of sale, which had been presented to the defendant’s father before his death, but which was never signed.
It is the defendant’s contention that Finlac Trust is disqualified from administering estates, more particularly the deceased estates of his parents by virtue of the provisions of a certain Regulation 910. According to him this is the “original sin”, which in the defendant’s narrative appears to found the contention that Finlac Trust has acted fraudulently in the administration of the said deceased estates.
The defendant’s application was dismissed, primarily due to a finding, on a point raised by the presiding judge, that the defendant did not have standing in this application because the testamentary trust was the beneficiary of the wills.
It is apposite to point out that, at that early stage, the Court in its judgement said the following:
2023 JDR 3276 p10
Grobbelaar AJ
Die magdom van ernstige en selfs lasterlike beweringe van die applikant teen die eerste en derde respondente [Finlac Trust and Danielz] het hulle, veral toe hulle aanvanklik bereid was om buite-om hierdie hofproses daarmee te handel maar gekonfronteer is daarmee dat ‘n kostebevel versoek sou word, eintlik geen ander keuse gelaat as om daarop te antwoord.
. . .
Wat die vierde respondent [Engelbrecht] betref, en selfs al sou die applikant suksesvol gewees het, sou daar geen rede gewees het waarom hy in sy hodanigheid as trustee enige koste moet dra nie. Hy het ook nooit opponeer nie, dalk gelukkig vir die applikant. Ek sê dat dit dalk gelukkig vir die applikant is, want veral nadat die vierde respondent op uitnodiging van die hof ‘n eedsverklaring geliasseer het, en die inhoud daarvan duidelik nie was wat die applikant wou hoor nie, het die vierde respondent ook nie die applikant se skerp tong ook nie gespaar gebly nie. [In the orginal judgement, footnote 38 records as follows: “Die applikant se verklarings en korrespondensie is oor die algemeen gekenmerk deur venyn, beledigings en ernstige beskuldigings.”] Ek...
To continue reading
Request your trial