Levi and another v Bankitny and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Adhikari AJ
• Judgment Date: 13 June 2023
• Citation: 2023 JDR 2167 (WCC)
• Hearing Date: 13 June 2023
• Docket Number: 2611/2022
• Court: Western Cape High Court, Cape Town

Adhikari AJ:

[1]

The first applicant ('Levi') and the second respondent ('Asaf') have known each other since they were 16 years of age, and were close childhood friends.

[2]

During 2015 Levi and the first respondent ('Zvi'), Asaf's father, started a company known as Byl Diamonds (Pty) Ltd ('Byl Diamonds'), based in Cape Town, which traded in polished diamonds and sold manufactured jewellery.

[3]

By 2019 the business relationship between Zvi and Levi started to deteriorate. The onset of the Covid-19 pandemic appears to have been the proverbial straw that broke the camel's back and by August 2020 their business relationship had completely broken down.

2023 JDR 2167 p2

Adhikari AJ

[4]

Consequently, Zvi and Levi sought to terminate their business relationship by entering into a settlement agreement during April 2021. However, the settlement agreement did not resolve all of the disputes between Zvi and Levi, and it is the ongoing conflict between the parties that resulted in the incidents which gave rise to these proceedings.

[5]

The applicants contend that the respondents attended at the business premises of Byl Diamonds, and at an unnamed coffee shop in Greenpoint during April 2021 and engaged in verbal and physical altercations with Levi as well as with certain staff members of Byl Diamonds. The respondents dispute these allegations.

[6]

In addition, the applicants contend that in the period between April 2021 and August 2021, the respondents engaged in a campaign of harassment and intimidation by sending threatening and abusive communications via email and WhatsApp to Levi, the second applicant ('Arnsmeyer'), [1] Levi's family in Israel, and to the accountants of Byl Diamonds. The applicants further contend that Asaf posted a message on the Property24 website, addressed to Arnsmeyer who works in the property industry, identifying Levi as Arnsmeyer's husband and accusing Arnsmeyer of wearing jewellery stolen by Levi.

[7]

The respondents do not dispute sending and publishing the offending communications, nor is the content of the offending communications in dispute. The respondents, however, state that the communications were sent and published because they (the respondents) were angry at having been, in their view, defrauded by Levi.

[8]

It is not in dispute that in the offending communications the respondents, inter alia, wished ill on Arnsmeyer's pregnancy, referred to Levi, Arnsmeyer and their children in crude and derogatory terms, threatened Levi and Arnsmeyer, and accused Levi and Arnsmeyer of theft and dishonesty. The respondents further threatened to contact Levi's clients (presumably to convey their allegations of dishonesty and theft to Levi's clients).

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Adhikari AJ

[9]

The communications published by the respondents accusing Levi and his family of dishonesty and theft are prima facie defamatory in that such communications are likely to injure the good esteem in which Levi is held by the reasonable or average person to whom the communications had been published. [2] The remaining communications sent by the respondents to Levi and his family are abusive and clearly constitute harassment.

[10]

The respondents admit to having been extremely upset by what they regarded as the dishonest conduct of Levi, however, the manner in which they chose to express their anger is inappropriate in any society that respects human dignity.

[11]

Unsurprisingly, on 26 August 2021 the applicants' attorneys, Friedrich Incorporated ('Friedrich Inc.') addressed correspondence to the respondents in which they demanded on behalf of the applicants, a written undertaking that the respondents would refrain from engaging in further abusive and defamatory conduct directed at the applicants ('the cease-and-desist letter').

[12]

There was no response to the cease-and-desist letter. Consequently, the applicants on 14 February 2022 applied to this court, as a matter of urgency, for a rule nisi operating as an interim interdict restraining the respondents from:

[11.1]

Committing any act which may be prejudicial to the applicants, including, inter alia, harassment, intimidation, threatening, and making derogatory comments;

[11.2]

Sending any communications including text messages, WhatsApp messages, and emails, which may be prejudicial to the applicants, including inter alia, harassment, intimidation, threatening, and making derogatory comments;

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Adhikari AJ

[11.3]

Posting on any public domain and/or social media platform, any statements which may be prejudicial to the applicants, including inter alia, harassment, intimidation, threatening, and making derogatory comments;

[11.4]

Instructing any other person/s to harass, intimidate, threaten, and make derogatory comments in respect of the applicants;

[11.5]

Entering the applicants' place of employment;

[11.6]

Writing to or communicating with the applicants in any manner whatsoever save through an attorney; and

[11.7]

Writing to or communicating with any other person about or in connection with the applicants, save through an attorney.

[13]

As the respondents are resident in Israel, the applicants sought the leave of the court to sue the respondents by way of edictal citation for interdictory relief.

[14]

This court, on 13 June 2022, granted the applicants leave to sue the respondents by way of edictal citation and to serve the application by electronic mail on Zvi at his personal email address, and on the respondents' care of their attorneys in Israel, Altshuler Law Firm and Notary ('Altshuler').

[15]

The application and the order of 13 June 2022 ('the edictal citation order') were served on Altshuler, who on 19 June 2022 directed correspondence to Friedrich Inc. advising that Altshuler was not 'authorized to accept any documents in this case on behalf of [the respondents]'.

[16]

The application and the edictal citation order were served on Zvi at his personal email address on 20 September 2022.

[17]

The application came before the unopposed motion court on 13 October 2022 and a rule nisi, returnable on 30 November 2022, coupled with an interim interdict, was issued.

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Adhikari AJ

[18]

The application again came before the unopposed motion court on 30 November 2022. On that date the respondents' legal representatives appeared and indicated that the respondents sought to oppose the confirmation of the rule nisi. Consequently, the matter was postponed by agreement between the parties to the semi-urgent roll for hearing on 11 May 2023, and the parties agreed to a timetable regulating the further conduct of the matter.

[19]

Zvi's answering affidavit was served on 2 February 2023, together with Asaf's confirmatory affidavit. The applicants filed their replying affidavit on 6 March 2023.

[20]

The respondents oppose the confirmation of the rule nisi and raise the following points in limine:

[18.1]

The edictal citation order ought not to have been granted;

[18.2]

The application and interim order were not served on the respondents; and

[18.3]

The court lacks the jurisdiction to grant an interdict against the respondents as they are perigrini.

[21]

On the merits, the respondents raise the following defences:

[19.1]

The applicants delayed unreasonably in instituting proceedings against the respondents;

[19.2]

The order sought by the applicants is too wide;

[19.3]

The applicants have failed to prove that they are suffering harm (whether imminent or ongoing); and

[19.4]

The applicants have alternative remedies, in the form of the Protection from Harassment Act 17 of 2011 ('the Protection from Harassment Act') and the laying of criminal charges.

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Adhikari AJ

[22]

I turn now to deal with the preliminary points raised by the respondents.

The edictal citation order:

[23]

The respondents contend that the edictal citation order ought not to have been granted because:

[21.1]

The applicants were aware of the respondents' address in Israel;

[21.2]

The applicants failed to disclose to the court that Altshuler had advised Friedrich Inc. that they did not hold instructions to accept service of the application on behalf of the respondents;

[21.3]

Although the application for leave to sue by edictal citation referenced service in terms of Article 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ('the Hague Convention'), service on the respondents did not comply with the provisions of The Hague Convention; and

[21.4]

The edictal citation order does not accord with the notice of motion in the application for leave to sue by way of edictal citation.

[24]

Rule 5(1) of the Uniform Rules of Court provides that '[s]ave by leave of the court no process or document whereby proceedings are instituted shall be served outside the Republic.' It is trite that edictal citation is ordered when a respondent is outside of the country. Further, the court has a wide discretion to order that service takes place in any manner that is likely to bring the proceedings concerned to the notice of the party to be served.

[25]

As the application for edictal citation is not before me, it is not open to me to pronounce on the appropriateness of that order. I am constrained to accept that the court was satisfied that it was appropriate to grant the applicants leave to institute these proceedings by edictal citation, and that the manner of service that the court

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Adhikari AJ

ultimately ordered would likely bring the proceedings to the respondents' notice. That ought to be the end of the matter.

[26]

However, one further aspect bears mention.

[27]

The respondents' contention that the applicants failed to draw the...