He, however, admitted that he was aware of the erroneous overpayment and that he, at a later stage, refused to return it . His reason was that he suffered a financial loss in an action that they were embroiled in and later settled as a result of Moretsele’s conduct.
When the criminal case against Louw was withdrawn, he instituted a defamation action against Moretsele in the regional court. He claimed that when laying the complaint of pointing at him with a firearm and crimen injuria against him, Moretsele published a statement in the form of an affidavit to members of SAPS, who understood the said statement to mean that Louw is a criminal who has a tendency of pointing a firearm at other people and is racist.
He further claimed that the statement was defamatory and damaged his reputation. As a result, he suffered R300,000 damages.
Moretsele’s defence to the defamation claim was that he approached the police and reported what he believed was the commission of a crime. He did not intend to tarnish Louw’s name. He said making a statement to the police may never be deemed to be wrongful or defamatory.
The regional court dismissed Louw’s claim. It found that it was satisfied on a balance of probabilities that when Moretsele made the statement to the police it was for the privileged occasion of reporting a crime with the intention to have a criminal investigation being conducted and that there was no basis to find that his intention was to stain Louw’s reputation.
In marking its displeasure at Louw’s conduct regarding the prolonged and unwarranted WhatsApp exchanges between him and Moretsele, as well as his unjustified refusal to refund the R11,462 erroneously paid into his account, the court hit him with a punitive costs order.
Louw appealed the judgment and costs order.
The appeal court found no reason to disturb the judgment of the regional court that Moretsele was able to prove that when he made a statement it was for the privileged occasion of reporting a crime with the intention to have the matter investigated.
The appeal was dismissed with costs.
Judgment: Louw v Moretsele (A44 / 2022) [2023] ZAMPMBHC 30 (18 May 2023)
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TINA HOKWANA | Court slaps farmer with costs as he loses defamation appeal
Determination:
Whether making a statement to the police (as opposed to publishing a statement in the media) with a view of opening a criminal case, amounts to defamation or not in the event that no prosecution follows.
Jack Moretsele bought a piece of land from Fritz Louw and before the registration of this property in his name, he paid occupational rent of R11,462 a month. Moretsele erroneously paid this amount when he was no longer under any obligation to pay.
Louw initially agreed to reverse the money after he was alerted of this error but later refused to refund Moretsele. His reasons were that there were legal fees allegedly owed to him by Moretsele stemming from previous litigation between the two of them. Attempts to recoup the overpaid rental went unheeded, which resulted in Moretsele driving to Louw’s farm on January 24 2020.
According to Moretsele, when he arrived at the farm Louw was not there but eventually met with him on his way back home.
He stopped, approached him and upon demanding his money back, Louw became infuriated and allegedly responded while pointing a firearm at him, with the words: “I will kill you, bloody kaffir.”
Aggrieved by these words and conduct, Moretsele went straight to the police station to lay criminal charges against Louw. A case was opened with the police but was later withdrawn by the public prosecutor.
According to Louw, he was not at his farm on the particular day and indicated that he spent almost the whole day at Klipspruit. He vehemently denied meeting with Moretsele on the way as alleged.
He, however, admitted that he was aware of the erroneous overpayment and that he, at a later stage, refused to return it . His reason was that he suffered a financial loss in an action that they were embroiled in and later settled as a result of Moretsele’s conduct.
When the criminal case against Louw was withdrawn, he instituted a defamation action against Moretsele in the regional court. He claimed that when laying the complaint of pointing at him with a firearm and crimen injuria against him, Moretsele published a statement in the form of an affidavit to members of SAPS, who understood the said statement to mean that Louw is a criminal who has a tendency of pointing a firearm at other people and is racist.
He further claimed that the statement was defamatory and damaged his reputation. As a result, he suffered R300,000 damages.
Moretsele’s defence to the defamation claim was that he approached the police and reported what he believed was the commission of a crime. He did not intend to tarnish Louw’s name. He said making a statement to the police may never be deemed to be wrongful or defamatory.
The regional court dismissed Louw’s claim. It found that it was satisfied on a balance of probabilities that when Moretsele made the statement to the police it was for the privileged occasion of reporting a crime with the intention to have a criminal investigation being conducted and that there was no basis to find that his intention was to stain Louw’s reputation.
In marking its displeasure at Louw’s conduct regarding the prolonged and unwarranted WhatsApp exchanges between him and Moretsele, as well as his unjustified refusal to refund the R11,462 erroneously paid into his account, the court hit him with a punitive costs order.
Louw appealed the judgment and costs order.
The appeal court found no reason to disturb the judgment of the regional court that Moretsele was able to prove that when he made a statement it was for the privileged occasion of reporting a crime with the intention to have the matter investigated.
The appeal was dismissed with costs.
Judgment: Louw v Moretsele (A44 / 2022) [2023] ZAMPMBHC 30 (18 May 2023)