Cape Town - A judge in the Western Cape High Court has ruled against FirstRand Bank in a case where two Cape Town attorneys sued the bank and others for damages for alleged defamation.
The defamation issue arose from certain statements which were made in the founding affidavit of an application by the bank for an interdict back in June 2012.
Chantel Van Zyl and Renata Rapp, testifying on behalf of their law firm Rapp Van Zyl Incorporated, had sued the defendants, which were the bank, one of its employees, Johanna Lochner, another firm of attorneys, Rorich, Wolmarans & Luderitz Inc, and one of its former directors, Raynault Meintjies.
The defendants denied that the statements were defamatory as they were made during legal proceedings. They claimed the remarks were relevant and made on a privileged occasion.
The problem arose towards the end of 2009 when Rorich, Wolmarans & Luderitz Inc started doing work for FirstRand Bank, following an approach to Meintjies by the bank’s Home Loan Insolvency section manager Johanna Lochner.
Meintjies regularly advised the bank on insolvency applications, including applications for voluntary surrender which were brought by debtors who had mortgage loans with it.
Over the course of time the bank noted a dramatic increase in the number of such applications by debtors against whom it had obtained judgments which remained unsatisfied and in respect of which the bank sought to execute against their immovable properties.
This was picked up from notices of surrender which were published weekly in the Government Gazette in terms of the Insolvency Act. These publications often occurred shortly before sales in execution were due to take place.
Towards the end of 2010-beginning 2011, Meintjies noticed a peculiarity in the wording of certain surrender notices in the Gazette whereby the erf or title deed numbers of the applicants’ immovable properties were being provided, but no contact details, either for the applicants or their agent.
This irregularity ended up delaying the execution of the sales and Meintjies, suspecting that it was part of a deliberate strategy to frustrate judgment creditors, decided to investigate.
In his investigations he came across a case in which Van Zyl and, further down the line, her partner Rapp, were involved together with another law firm and its clients.
On filing his affidavit against these respondents, Meintjies alleged that they were engaged in fraud.
In his ruling, Judge Mark Sher said: “On the information which Meintjies had available to him, given the plaintiffs’ limited involvement, the fact that they had previously participated in the scheme did not necessarily imply that they did so with fraudulent intent.”
He said caution was required and some attempt should have been made to ascertain what the position was before simply making an allegation that they were engaged in fraud.