UNHAPPY CUSTOMER AND DEFAMATION
Du Toit v Coetzee [2022] ZAFSHC 105
Ms Du Toit is a travel agent and after preparing a quote for Mr Coetzee he paid for flights and accommodation arrangements for a trip to Spain. In the evening of the day on which he paid, Mr Coetzee asked her if he could cancel the bookings, so she said she would look into it and later told him that the bookings could not be cancelled. Mr Coetzee became angry and uttered accusing words and later sent a WhatsApp message. She says that it was the first time in her 20 years’ career as a travel agent that she had been insulted by a client in that manner. She later heard from her colleague, her brother, her sister, her mother and her fiancé that Mr Coetzee had spoken to them and had said that she is a crook, she stole money from him and that he would never do business with her or the agency anymore. The magistrate’s court dismissed her clam for damages for the infringement of her dignity and reputation.
Litheko AJ discusses the requirements for defamation; Mr Coetzee’s grounds of justification: that he did not have the intention to cause the Ms Du Toit any harm; that he apologised for his actions; that the statements were communicated to Ms DuToit’s family members and colleagues and that they are his family friends, knew the kind of language that he speaks and that when he uttered and wrote the defamatory statements, they knew that he meant no harm. He also attempted to justify his conduct by attributing it to Ms Du Toit’s failure to carry out his instructions despite her knowledge of his financial situation. The court discusses the court a quo’s finding that Mr Coetzee did not have the necessary intention and did not act unlawfully and that there was no evidence that the esteem held by any of the witnesses of Ms Du Toit had been diminished. This was inconsistent with the finding that there was proof that the words complained of were published and that they were defamatory per se, casting upon him a duty to prove on a balance of probabilities that he did not act wrongfully or with animo injuriandi. He did not succeed in rebutting the presumption that he had animus injuriandi or that he acted wrongfully when he published the defamatory matter.
The appeal is upheld and the defendant is ordered to pay the plaintiff R30,000 as damages for defamation and R20,000 as damages for injuria.
(Mathebula J concurred.)
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ROAD ACCIDENT FUND AND RESCISSION
Road Accident Fund v McDonnell [2022] ZAWCHC 116
The plaintiff, Ms McDonnell, was injured in a motor accident and the Road Accident Fund contended that the injury was a whiplash injury and that she was able to return to work and even started her own consultancy. The plaintiff claimed that her quality of her life had been significantly and permanently compromised by the injury and some 30 % of her energy was consumed in managing her pain. It was disputed whether her injuries were serious, qualifying for general damages, and also in dispute was her loss of earning capacity. The matter was set down for trial, but due to the Fund having discontinued its panel of attorneys, there was no representation for it. Judgment was made in default and the order included payment of R6,7 million. The Fund now seeks have this order, made on 7 December 2020, rescinded and seeks that the common law be developed in accordance with the provisions of sections 39(2) and 173 of the Constitution.
Thulare J discusses rescission and quotes from the Zuma v Judicial Commission of Inquiry case where it was stated that “where a litigant, given notice of the case against them and given sufficient opportunities to participate, elects to be absent, this absence does not fall within the scope of the requirement of Rule 42(1)(a).” And that “our law, through the doctrine of peremption, expressly prohibits litigants from acquiescing in a court’s decision and then later challenging that same decision”. The court discusses the Fund’s electronic systems which are designed to avoid fruitless and wasteful expenditure and that the assessment, evaluation and monitoring of claims are all internal milestones within a system which require skills and structures, and should happen as soon as a claim is lodged and not after judgment. There was no basis to convert our law of rescission to a new purpose and to especially construct new principles which will start to exist, simply to accommodate RAF’s failure to attend court and deal with a disputed claim. The application is dismissed.
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UNDERTAKING BY ATTORNEYS
BC of Candice Glades v Derrocks Attorneys [2022] ZAGPJHC 383
The executrix of a deceased estate appointed Derrocks Attorneys to assist in the administration of the estate and Derrocks was appointed as a conveyancer to register and transfer of the property to the new owner. But transfer could not pass to the new purchaser because a levy clearance certificate was required and the body corporate of the complex withheld the levy clearance certificate until the outstanding levies were paid. Derrocks wrote a letter to the body corporate where it informed them of being the attorneys attending to the transfer of the property, as well as the estate, and stating that: “We are prepared to provide you with an irrevocable undertaking to make payment in the amount of R270 639.02.” The managing agents for the body corporate accepted the undertaking and Derrocks replied with: “We will pay the total outstanding on the day of registration.” It emerged that the estate did not have enough cash to cover the expense. The body corporate now seeks the money from Derrocks, contending that the attorneys provided an irrevocable guarantee to pay the amount.
Siwendu J discusses Derrocks’ contention that the claim against them is based on a misconstruction of the correspondence because at all times the body corporate were alive to the fact that they acted as agents of the Estate Late Magubane; and that the subject matter of the correspondence expressly related Estate Late Magubane’s account for levies. The body corporate contended that the attorney himself was liable, jointly and severally, with the firm, such liability arising from section 34(7)(c)(i) of the Legal Practice Act 28 of 2014 because he was a director of the law firm. The court discusses whether there was a binding undertaking; whether Derrocks could resile from it on account of an alleged misrepresentation and a lack of debatement of the account; the application of section 34(7)(c)(i) of the Legal Practice Act; that the only condition the undertaking was subject to was the registration of the property and that occurred. The court finds that the undertaking was unqualified and bound Derrocks and that there was a contractual debt created in favour of the body corporate. The application succeeds.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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