Van Gijsen v Van Der Merwe (14860/13) [2016] ZAWCHC 85 (24 June 2016)

Key Facts

Tax Type

Issues

• The court examined whether the defendant's publication of the emails was intentional, given his repeated and escalating defamatory claims, and his refusal to retract or apologize despite legal warnings and court orders.
• The court assessed whether the emails sent by the defendant to multiple authorities and officials contained defamatory allegations, such as accusations of theft, fraud, tax evasion, and mismanagement of the deceased's estate, which damaged the plaintiff's reputation.
• The court determined that the defendant failed to establish any valid defense, as he did not prove the truth of his allegations, nor did his claims fall under privileged communication or fair comment, and his arguments regarding the Licences Act were deemed irrelevant and opportunistic.

Date of Death

Holdings

• The court found the defendant guilty of defamation for making false and malicious statements against the plaintiff, including allegations of dishonesty, fraud, and tax evasion. The court awarded R250,000 in damages for each of the two claims, with interest, and ordered the defendant to pay the plaintiff's costs for the action and the interim interdict application.
• The court determined that the defendant's actions were willful and lacked any valid defense, including claims related to the Licences Act. The defendant was found to have repeatedly violated the court's interdict order and showed no remorse for his conduct, which was deemed to have caused significant harm to the plaintiff's reputation.

Remedies

• The defendant is ordered to pay the costs of the action.
• The plaintiff has succeeded in his claims on both claim 1 and claim 2 as per the court's ruling.
• The defendant is ordered to pay R250,000 to the plaintiff for the second claim, with 15.5% interest per annum from the date of default.
• The defendant is ordered to pay the costs of the application under case number 17249/14.
• The defendant is ordered to pay R250,000 to the plaintiff for the first claim, with 15.5% interest per annum from the date of default.

Will Type

Tax Issue Category

Monetary Damages

Legal Principles

• The plaintiff must initially prove publication of defamatory matter concerning themselves. Once this is established, it is presumed that the statement was both wrongful and intentional, shifting the burden to the defendant to rebut these presumptions by proving a defense such as truth, public interest, or fair comment.
• The defendant must prove a valid defense (e.g., truth, public interest, fair comment) to exclude liability for defamation. A bare denial is insufficient; facts must be pleaded and proved to establish the defense.
• After establishing publication of defamatory statements, the court presumes both wrongfulness and intent. The defendant must then raise a defense to exclude either wrongfulness or intent, requiring a full onus to discharge this burden on a preponderance of probabilities.

Succession Regime

Precedent Name

• Moolman v Slovo
• Tsedu and Others v Lekota and Another
• Buthelezi v Poorter and Others
• Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd
• Le Roux and Others v Dey
• Khumalo v Others v Holomisa

Executor Name

• Finlac Trust Ltd
• Louise Danielz

Cited Statute

• Licences Act of 1962
• Constitution of the Republic of South Africa

Executor Appointment

• Appointed by Finlac Trust as executor of the deceased's estate on 21 November 2007.
• Appointed by the will of the deceased as executor and trustee of the testamentary trust.

Judge Name

• Olivier
• Salie-Samuels
• Riley

Passage Text

• Bygevolg, bevind ek dat daar geen regverdigingsgronde bestaan vir die verweerder se onregmatige optrede teenoor die eiser nie. Ek bevind verder dat die publikasie van die e-posse nie beskerm word deur enige priviliggie nie, en dat die bewerings wat verweerder oor die eiser daarin maak nie waar is nie, nie in die openbare belang is nie, en dat dit nie neerkom op billike kommentaar nie.
• Ek is tevrede dat die verweerder in hierdie saak homself skuldig gemaak het aan 'n erge graad van laster en dat hy dit met uiterste vernyn en kwaadwilligheid gepleeg het.
• Die verweerder word beveel om die eiser die bedrag van R250 000,00 te betaal ten opsigte van die eerste eis met 15.5% rente per jaar daarop a tempore morae;

Beneficiary Classes

• Spouse / Civil Partner
• Other
• Child / Issue