THE saga of a lawyer, an estate agent, and an ex-wife - which culminated in defamatory messages being sent by the estate agent - was the subject of a legal tussle before the Gauteng High Court, Johannesburg.
The respondent, an estate agent who was only identified by the court as BT, sent a WhatsApp text, and two pieces of correspondence (one a letter from his attorney, sent on his instructions, and one an email which he wrote himself), which defamed the applicant, the lawyer, only identified as JW.
The correspondence was also sent to the lawyer’s senior colleagues at the law firm where the applicant works as a conveyancer.
The court was told that previously, the estate agent had an amicable relationship with the lawyer and sent him a lot of conveyancing work.
Things soured when the lawyer started a relationship with the estate agent’s now ex-wife, only identified as Ms T.
The estate agent was aggrieved by the relationship, which led him to send communications that shed a bad light on the lawyer.
At the insistence of the lawyer, the estate agent undertook to stop badmouthing him, but the court was told that the estate agent continued with his conduct.
That caused the lawyer to turn to the court for an order that the estate agent has to honour his undertaking.
Acting Judge Adrian Friedman remarked that the application was cleverly drawn. Instead of seeking a classic interdict based on the respondent’s conduct, the cause of action is found in the contract, the judge said.
The lawyer claimed that there was a contract between him and the estate agent (that the latter would stop defaming him) and that the estate agent had breached that contract.
The controversy between the parties was sparked when the estate agent sent a WhatsApp message to the applicant’s colleagues and the managing director of the firm.
In the message, he enclosed a picture of the lawyer, without his shirt on, in what the judge described as a “mildly controversial, but certainly not shocking, pose”.
The caption on the picture read “This is the man you have working for you”.
He sent the same picture to Ms T and told her “karma was coming” for her and her lover. He also described them as “evil”.
The applicant sought an undertaking from the respondent that he would not defame him further.
It emerged that the estate agent subsequently, in a letter sent to among others, the applicant’s boss, accused the applicant of various forms of misconduct (such as being drunk at company functions hosted by the estate agency).
He also told the applicant’s firm that the latter had a relationship with his (the estate agent’s) wife. The letter accused the applicant of commencing this relationship while the respondent and Ms T were still married.
He made various other allegations in the letter against the lawyer, in which he also called him “a dronkie”.
In defending himself in court, the respondent’s main defence was to say that he was not bound by the undertaking because it reflected an offer (as understood in the law of contract) which was not accepted by the applicant as it was deemed insufficient.
The defendant also pleaded qualified privilege as a defence, in the light that he earlier had a business relationship with the firm.
But Judge Friedman rejected the defences. He said there was no doubt that some of the communications sent by the respondent were malicious and fell outside the scope of qualified privilege.
The court found the respondent was bound by his undertaking not to defame the applicant.