Defamatory statements injure the reputation of persons especially when it has been published. There are many cases to date that led to lawsuits for alleged remarks that were made to demean the status, reputation, good name, and character of persons on social media and during court proceedings. Further, there are many legal professionals and public figures who have been accused of fraudulent activities without such evidence to substantiate this claim.
In the recent judgement of Rapp Van Zyl Inc and Others v First Rand Bank and Others before the High Court of the Western Cape, two attorneys were defamed by First Rand Bank who allegedly accused the attorneys of being involved in fraudulent activities. In June 2012 the Defendants made certain defamatory statements in its founding affidavit for an application brought to the court for an interdict against the two attorneys. The Defendants solely denied that the statements were defamatory and were not unlawful as it was made during legal proceedings in the discharge of their right and legal duty to seek relief sought by the court that was made on a privileged occasion. The Defendants alleged in their founding affidavit that the two attorneys were involved in fraudulent activities.
Accordingly, one of the Defendants (Mr Meintjies) noticed during his assessments that certain required information was not published in the Government Gazette to affect the section 4 (1) notice in respect of the Insolvency Act and that the applications were not being moved on the appointed dates as it has not been enrolled. Resultantly, the bank was faced with unnecessary expenses and considerable inconvenience which resulted in the sales being closed. During this time the two attorneys only informed the bank of prior publications and never received instructions from law firms to surrender any debtor’s estates. The two attorneys were unaware that the law firms did not have instructions to proceed with the surrender applications and withdrew as attorneys in August 2011.
The court found that the plaintiffs participated in an unlawful and fraudulent scheme involving the perpetration of many separate acts of fraud on the Defendants and the Insolvency Act. Further, such allegations could serve to lower the reputation of the Plaintiff’s reputation in the mind of any member of society and is therefore defamatory. It is submitted that the onus was on the Defendants to establish on a balance of probabilities that the defence of qualified privilege exists and can be relied on. The court further found that qualified privilege can only be raised as a defence conferred on members of parliament and provincial legislatures and councillors of municipal councils.
As a result, the court held that the defence of qualified privilege should not be upheld. Further, the plaintiffs must succeed in their claim as they did not intentionally and deliberately participate in the false representations made to the Defendants that the debtors they intended to be acting for surrendered their estates and did so only in pursuit of fees. The Defendants are liable, jointly and severally for such damages in the sum of R7.8 million for defamation.
Kindly contact our office if your reputation, good name, character and/or status has been defamed and you acquire further information or advice.
Shervona Tia Marshall