Joubert and Others v Venter

• Jurisdiction: South Africa
• Judge: Kotzé JA, Hoexter JA, Botha JA, Hefer JA and Vivier AJA
• Judgment Date: 30 November 1984
• Hearing Date: 28 August 1984
• Court: Appellate Division

Kotzé JA:

This appeal by the six appellants raises the question of the immunity conferred upon witnesses (who are also parties to an action), advocates and attorneys with reference to defamatory statements made in the course of judicial proceedings. In a defamation action tried by VAN I REENEN J in the Transvaal Provincial Division a joint and several award of damages in the sum of R5 000 with costs was made in favour of the respondent against the six appellants. I shall, for reasons of convenience, refer to the respondent as Venter and to the appellants as Joubert, Carolina, Emata, Zeiss, Uys and Laubscher respectively.

Collectively I shall refer to the appellants as

Kotzé JA

A the defendants.

It is necessary, at the outset, to provide a chronology of certain legal proceedings and salient features thereof which form an essential part of the background to the appeal. (All references to such proceedings are, except where otherwise stated, references to proceedings in the Transvaal Provincial Division.) On 17 May 1976 Joubert urgently applied B for and obtained (per ESSELEN AJ) provisional winding-up orders against Carolina and Emata, of which companies he was a director and majority shareholder. Three days later the Master of the Supreme Court appointed Venter, a director of Maurice Schwartz, Venter and Associates Ltd and, C as at that date, a professional liquidator for a period in excess of 20 years, as provisional liquidator of Carolina and Emata. On 13 August 1976 CURLEWIS J set aside the provisional winding-up orders on application by Joubert. In consequence the appointments of Venter lapsed. On 22 March 1977 MELAMET J, on application of Joubert, ordered D the calling of meetings in terms of s 311 (1) of the Companies Act 61 of 1973 of preferent and concurrent creditors of Carolina and Emata by one Kotze to consider offers of compromise proposed by Joubert. ELOFF J sanctioned the said offers on 9 August 1977. The said offers nominated Kotze as "receiver" ("ontvanger") on behalf of the creditors. On 27 January 1978 HUMAN J issued rules nisi on application by Kotze E (hereinafter called the Kotze applications) calling upon interested persons and upon Carolina, Emata, all creditors and Joubert (the last four being specially referred to in the rule) to show cause why Kotze should not be released from his offices as receiver and why M J F Potgieter should not be appointed in his stead. A strange and totally F unexplained feature of the Kotze applications was a purported offer of compromise annexed thereto which nominated Kotze and Venter as joint receivers. No such offer of compromise nominating Kotze and Venter as joint receivers had in truth ever been made, and in what follows I shall refer to the said document as "the false offer of compromise". The Master of the Supreme Court (upon whom copies of the rules were served) G filed a report dated 17 February 1978 in which he objected to Potgieter's appointment and, being under the mistaken impression (induced by the false offer of compromise) that Kotze and Venter had been appointed joint receivers commented that he could not say whether all the creditors would support Venter as sole receiver and recommended that

"Venter gelas word om 'n byeenkoms van al die betrokke skuldeisers te H belê... vir die verkiesing van 'n vervangende ontvanger en om verslag aan die agbare Hof te doen sodat die aanstelling bekragtig kan word. Indien nodig, verklaar ek my bereid om as voorsitter op te tree."

During March 1978, Venter filed affidavits in the Kotze applications (served only on the Master and Kotze) which included the following paragraphs: I

"3.0

I have read all the papers filed in the above matter including, in particular, the Master's report and insofar as the above honourable Court sees fit to appoint me as receiver I willingly accept such appointment subject to such terms and conditions as the honourable Court may direct.

5.0

I became aware for the first time on 3 March 1978 that I had been appointed as a joint receiver with certain Gerhardus Dawid Kotze in the above matter pursuant to an order of this honourable Court. At no stage

Kotzé JA

A whatever was I requested so to act as receiver nor did I ever consent either to my nomination as receiver or to my appointment as such.

6.0

My first intimation regarding my involvement in this matter was on 3 March 1978 when I called upon the Master of this honourable Court at his request, when the papers filed in this matter were exhibited to me.

7.0

I would, however, respectfully point out that I had been appointed provisional liquidator of Carolina Trekkers en Implemente (Edms) Bpk by the Master of this honourable Court on 29 May 1976, which B appointment terminated when that company was discharged from the provisional winding-up order by this honourable Court.

7.2

I therefore respectfully submit that I am familiar to a degree with the affairs of the respondent."

Venter, it should be noted, failed to disclose in these affidavits that C Carolina had in the meantime, instituted action against him inter alia for payment of an amount in excess of R16 400 which had allegedly been misappropriated from the company whilst under provisional winding-up and that he, therefore, had a direct interest in the matter. How this action came to be instituted will emerge later.

D On 11 April 1978 McCREATH J, having heard counsel for Kotze and Venter (wrongly referred to in the order as counsel for the creditors), inter alia (a) extended the rules nisi issued pursuant to the Kotze applications to 23 May 1978; (b) discharged Potgieter's provisional appointments; (c) ordered Venter to convene meetings of all known creditors of Carolina and Emata for the purpose of electing a substitute E receiver ("vervangende ontvanger") and to report the outcome of the meetings on 23 May 1978 "sodat die aanstelling bekragtig kan word". McCREATH J furthermore ordered service of the orders on Carolina, Emata, Kotze, Joubert and Potgieter. The lastmentioned orders led to the intervention of Joubert, Carolina and Emata in the Kotze applications. The said intervention took the form of notices of motion served on 18 F May 1978 in which was sought (i) the setting aside of para (c) of the order of McCREATH J; (ii) alternatively to (i), that Venter's appointment as receiver be not confirmed (in the event of such an appointment having been made); (iii) that, in the event of Venter having been elected as substitute receiver at the meetings of creditors, such G election be declared null and void; (iv) that Abram Jacobus Meintjies be appointed receiver and that Venter be ordered forthwith to hand over all books, records and documents which he may have received to Meintjies. The defamatory passages complained of by Venter are contained in the supporting and replying affidavits of Joubert respectively dated 18 May H and 29 June 1978. These passages will be quoted later.

On 2 August 1978 GROSSKOPF AJ (a) confirmed that portion of the rule of 27 January confirming the discharge of Kotze as receiver; (b) appointed Meintjies as receiver in the Carolina and Emata compromises and (c) reserved judgment in regard to a prayer for costs against the Master. On I 26 March 1979, GROSSKOPF AJ delivered his reserved judgment and awarded costs against the Master. On 5 June 1981, this Court in a 3-2 majority judgment (reported as Die Meester v Joubert en Andere 1981 (4) SA 211 (A)) reversed the said order of costs. Carolina's action referred to above was heard by ELOFF J on 16 April 1980. Counsel for Carolina abandoned the claim for payment of the sum of

Kotzé JA

A R16 400 odd. On 16 April 1980 ELOFF J decreed absolution from the instance with costs. Carolina appealed successfully to this Court. So much for the chronology of the lawsuits which forms the background to the litigation which has culminated in the present appeal.

The defamatory passage in Joubert's supporting affidavit reads as B follows:

"(a)

Applikante maak ten sterkste beswaar teen die aanstelling van Gert Hendrik Jacobus Venter (die tweede respondent) as ontvanger in die bestaande kompromie, omrede applikante beweer dat gemelde Venter, terwyl hy provisionele likwidateur van die tweede applikant was, gelde en bates van die tweede applikant verduister en ontvreem het, en voorts die bepalinge van art 394 (1) (a) van die gemelde C Maatskappywet oortree het, deurdat hy 'n totale bedrag van R16 430,48, wat deur hom tydens sy provisionele likwidateurskap ten behoewe van die tweede applikant geïn is, versuim het om in 'n bankrekening te deponeer of enigsins rekenskap te lewer vir vermelde bedrag, en inderdaad vermelde bedrag gehou het.

(b)

Vermelde eise vir betaling van die bedrag van R16 430,48 spruit voort uit die feit dat tweede respondent sekere gelde wat op die D vermelde bedrag te staan kom, uit die besit van Stoffberg Motors - synde 'n besigheid van tweede applikant - ontvreem het en dit gehou het, sonder om dit volgens die bepalings van art 394 (1) (a) van die vermelde Maatskappywet, in 'n bankrekening in te betaal. Gemelde ontvreemding het geskied deur middel van ene Swersky, wat ten alle tersaaklike tye tweede respondent se behoorlike gemagtigde E verteenwoordiger was, en volledige besonderhede van sodanige ontvreemding verskyn in die beëdigde verklaring van Anna Catharina Pitout, hierby aangeheg, gemerk 'C10'. Tweede respondent se versuim om die vermelde bedrag van R16 430,48 of enige deel daarvan, in 'n bankrekening wat hy vir tweede applikant terwyl dit in voorlopige likwidasie was, geopen het, te deponeer, blyk uit die tersaaklike bankstaat, 'n afskrif waarvan hierby aangeheg word gemerk 'C11'. F Uit 'n ontleding van gemelde bankstaat is dit duidelik dat geeneen van die bedrae soos vermeld deur...