IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE , PORT ELIZABETH	)		CASE NO.: 1216/2009

In the matter between:

CHRISTIAAN LOUIS NORTIER				      FIRST APPLICANT
GOLDBERG& DE VILLIERS INC				 SECOND APPLICANT

and

LEONARD RANDALL					             RESPONDENT

					JUDGMENT
______________________________________________________________

MBENENGE AJ:

[1]	The judgment that I penned, delivered on 24 September 2009 in this 	matter, embodies an extensive narrative relative to the interdict  	being sought by the applicants against the respondent.  The 	presentation of that narrative in my initial judgment renders it 	unnecessary for me to present it in this judgment. Apart from 	defining the issues and setting out the parties’ respective contentions 	anent thereto, I also pointed out that the matter of whether the 	applicants are entitled to an order effectively restraining the respondent 	from defaming, insulting and harassing the applicants and/or their 	employees is capable of being resolved on the papers, but did not 	pronounce thereon at that stage.

[2]  	One of the controversial pamphlets that is the subject of my initial 	judgment is annexure “M” to the applicants’ founding papers.  The 	relevant passages of the annexure are copiously referred to in the 	initial  	judgment.  After finding that there was a material dispute of fact 	on the issue of whether the respondent authored and/or distributed the 	controversial pamphlet, I referred the application to the hearing of oral 	evidence for a determination of whether or nor the applicant authored 	and distributed/ disseminated the pamphlet.
  
[3] 	The applicants did not themselves testify at the hearing of oral 	evidence.  They were content to call a staff member of Ikamva Veritas 	Transcribing Services to merely testify and confirm the correctness of 	the transcript of the proceedings of 3 September 2009 during which 	the respondent stated, inter alia, as follows:

“And as a matter of fact, the Counsel for the Applicant states   that this is my type of story, this is my style of writing and my style of the story, which is incorrect.  And when he refers to a certain document on page 74, and I will repeat it.  ‘It was suggested that the  ex-buyer put a bullet in the brain of the instigator’, and its scratched out Nortier, ‘But- dead men feel nothing- he should have every hair ripped out of his skull,’ etcetera, etcetera, etcetera.  I am not going to go into the whole long story, but this does not come from me, these are not my words, these, this suggestion, it comes from a person that I was speaking to.  They asked me with regard to this case. Now  we’re going back to this case, 15 years back and at some stage along the line, this person asked me certain questions, I  explained to him, this is  the story and this is what he commented on.  	These were his words, they not in my words.  In other words, what I’m saying is that this paragraph that was pointed out by the Applicants’ Counsel, does not come directly from me.  These are the words from another person…”( emphasis supplied)

[4]	The respondent testified in pursuit of his opposition to the application, 	distancing himself from the authorship and distribution or dissemination 	of the controversial pamphlet.    When asked who the person referred 	to in the quotation and to whom he claims to have spoken was, he 	said the person was a member of the Estate Agents Board.  Of 	moment in this case is the respondent’s testimony that he will bear a 	grudge against the first applicant for the unbecoming conduct meted 	out to him until he enters the grave.  The respondent never secured for 	himself a pronouncement by any competent tribunal that any one of 	the applicants acted wrongly or unethically towards him.  On the 	contrary ,  on the two occasions that complaints were lodged with the 	Law Society of the 	Cape of Good Hope concerning, inter alia, poor 	service, incompetence and unprofessional conduct on the part of the	first 	applicant, the first applicant was absolved from any 	misdemeanour and/or improper and/or unprofessional conduct.
[5] 	The tone of the letters which, it is common cause, were penned by the 	respondents, is unsavoury in the extreme.  More particularly , the letter 	written by the respondent to Media 24 which eventually landed on the 	desk of the editor of the Express newspaper circulating in Port 	Elizabeth (quoted in paragraph 	[18] of the initial judgment) is 	defamatory of and concerning the applicants.  It tarnishes the 	applicants’ professional integrity.   The statements ade by the 	respondent to Media 24 of and concerning the applicants have no 	foundation, and are 	devoid of merit.  The Bill of Rights enshrined in the 	Constitution of this Country does not grant the respondent the right to 	state 	his views in the reckless and wanton manner he did of and  	concerning the applicants.

[6]	There is yet another pamphlet that must surely have been aimed at 	scandalising the applicants’ name and reputation and that was 	dispatched at one of the offices of a Port Elizabeth Estate Agency, 	Remax, on 21 June 2006.  The pamphlet implied that the first 	applicant was corrupt and had acted fraudulently in dealing with the 	transfer of the property purchased by the respondent in 1994. It 	stated that the first applicant had bribed estate 	agents and bank 	officials for work.  None of those allegations had a basis.  

[7]	What of the controversial pamphlet disseminated on 6 April 2009?  I 	have noted that the font, style and layout of the pamphlet , annexure 	“M” , is similar to others from which the respondent does not distance 	himself.  The tone and language of the documents is 	similar.  Not only 	in his opposing affidavit, but even during his oral testimony before me 	did the respondent justify his conduct and evince a settled 	determination to stop at nothing in informing others of “wrong” and    	“unethical” treatment allegedly meted out to him by the applicants.

[8] 	There is also annexure “O”, addressed to the Nelson Mandela 	Metropolitan Municipality for the attention of Mr Richards, the 	Municipality’s Manager. The document, which was received 	by Mr 	Richards, contains the same defamatory rhetoric and threats 	concerning the applicants.

[9]  	I have also noted, with regret, the persistent conduct by the 	respondent of also engaging in a campaign that effectively  lambasts 	Mr Justice Ludorf for alleged favouritism and improper conduct, 	which is utterly baseless.

[10]  	Apart from the similarities and language style in the documents that 	form the subject of this application, the welter of detail contained 	therein could only have been from the respondent. I am therefore 	satisfied, on a preponderance of probabilities, that the respondent 	authored and distributed the annexures which form the subject of this 	application, including annexure “M”.  The respondent’s denial that he 	has had nothing to do with some of the annexures is rejected. That 	annexure “M” was 	authored by a member of the Estate Agents Board 	is a fiction of the respondent’s own imagination.   I am also satisfied 	that the contents of the annexures are defamatory of and 	concerning the applicants and that some, especially annexure “M”, 	are 	sufficient to instil in the first applicant the fear that the immediate 	family members and  children of the directors and employees of the 	applicants may be molested.

[11]  	The applicants have, in my view, established, with the requisite 	degree of proof, the requisites for the grant of the interdict they are 	seeking.

[12] 	In the result- 
 			(a) 	 the rule nisi granted by this Court on 7 May 				2009 is hereby confirmed: and 

			(b)  	the costs of the application shall include those 				reserved on 3 September 2009.

________________
S M MBENENGE
ACTING JUDGE  OF THE HIGH COURT

Applicants’ Counsel		:		Mr J D Huisamen
Applicants’ Attorneys	:		Spilkin Inc
						15 Rink Street
						Central
						PORT ELIZABETH
						Ref: S P SPILKIN/M Human

Respondent			:		Mr Leonard Randall (in person)
						Flat No 2, Linhope
						Kabega Park
						PORT ELIZABETH

Heard on			:		7 April 2010
Delivered on			:		9 April 2010