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IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Case No: 4412/08
In the matter between:
LUCKY MAHLALELA PLAINTIFF
v
SABELO MNGOMEZULU 1ST DEFENDANT
PRO TECH HOLDINGS (PTY) LTD 2ND DEFENDANT
Neutral Citation : Lucky Mahlalela v Sabelo Mngomezulu and Pro Tech
Holdings (Pty) Ltd (4412/08) [2015] SZHC 96
(23/10/ 2015)
Coram : Q.M. MABUZA J
Heard : 14/1/2013; 15/1/2013; 3/6/13; 4/6/13; 5/6/13; 6/6/13;
12/6/13; 13/6/13; 5/9/13.
Delivered : 23 OCTOBER 2015
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SUMMARY
CIVIL PROCEDURE: THE PLAINTIFF AN INSURANCE BROKER SUED THE DEFENDANTS FOR
DAMAGES ARISING OUT OF AN ALLEGED DEFAMATORY LETTER WHICH WAS WRITTEN
TO HIS EMPLOYERS AND COPIED TO A MOTOR VEHICLE FINANCER BANK.
CIVIL LAW: DEFAMATION – DEFENCE – TRUTH OF PUBLICATION – PUBLICATION FOR
PUBLIC BENEFIT – GENERAL LEGAL PRINCIPLES PERTAINING TO THE INSURANCE
BUSINESS – SPECIFIC LEGAL PRINCIPLES IN THE INSURANCE ACT 2006 – CODE OF
CONDUCT FOR INSURANCE BROKERS APPLIED – DEFENCE OF TRUTH AND PUBLICATION
FOR THE PUBLIC INTEREST DISCUSSED - CLAIM DISMISSED WITH COSTS.
JUDGMENT
MABUZA -J
[1] The Plaintiff Mr. Lucky Mahlalela, described himself as an insurance broker
of wide experience in the insurance broking industry. He holds a bachelor of
Laws (LLB) degree and has been in the insurance business since 1986.
[2] When he gave his testimony on the 14th January 2013, the Plaintiff testified
that he was a Managing Director of Alexander Forbes and had been employed
by the said brokerage firm for four years. He began working for them during
January 2008 as a deputy managing director. He told the Court that he was
head hunted for the job. The contract of the incumbent expatriate was coming
to an end in 2009 and he was going to take over. Alexander Forbes were
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looking for a Managing Director in compliance with the new Retirement
Pension Act.
[3] He says that he knew Mr. Paul Lewis, the Managing Director of the 2nd
Defendant, Protech Holdings (Pty) Ltd a company registered in terms of the
company laws of the Kingdom of Swaziland and carrying on business as a
security services provider. They had met in local social circles and Mr. Lewis
had intimated that he needed a good broker as he had issues with his current
broker and had been referred to the Plaintiff by a friend of his. Mr. Lewis
engaged the Plaintiff as a representative of Alexander Forbes and after some
time gave him a letter of appointment dated 15th April 2008 (Exhibit P (a).
The contents thereof are as follows:
“15th April 2008
Alexander Forbes Risk Services
P.O. Box 1072
Mbabane
Attention Lucky Mahlalela
RE: APPOINTMENT AS INSURANCE BROKERS
This is to confirm that we hereby appoint Alexander Forbes represented by
Mr. Lucky Mahlalela as our (Pro-Tech Holdings T/A Chubb Electronic
Security) as our insurance brokers with immediate effect.
Yours faithfully,
Paul J Lewis
Director”
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[4] Mr. Paul Lewis in his testimony confirmed the appointment of Messrs
Alexander Forbes as the insurance broker for the 2nd Defendant. He confirmed
the contents of Exhibit P (a). He said that he normally insured the 2nd
Defendant’s motor vehicles with Vista Insurance but that he had decided to
change due to certain challenges he had been having with Vista Insurance. He
says that when he wrote the letter of appointment he did not discuss any terms
and conditions. The letter of appointment was to enable the Plaintiff to obtain
the 2nd Defendant’s insurance policies from Vista Insurance.
[5] Mr. Lewis stated that during April 2008, the 2nd Defendant owned four motor
vehicles which were insured by Vista Insurance. These motor vehicles were
under lease with Wesbank a Kia workhorse truck, a Toyota Hilux, a Toyota
Corolla and a Toyota Auris. He said that the insurance policies over these
motor vehicles were payable by monthly instalments via debit order through
his bank. He could not afford a cash lump sum. The insurance period ran
from 28/8/07 to 31/7/08; the renewal date being 1/8/08. This would mean that
when the Plaintiff on the 15 April 2008 was appointed the stated motor
vehicles were still under cover per courtesy of Vista Insurance.
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[6] Mr. Lewis says that after the Plaintiff was given the letter of appointment he
left the 2nd Defendant’s office. A short time later the Plaintiff returned and
requested payment of E80,000.00 (Eighty thousand Emalangeni) for the
policies of the motor vehicles. Mr. Lewis did not give him this payment
because the Plaintiff had not given him a breakdown (costing) of this amount
and also because he normally paid by monthly debit order. The Plaintiff left
and returned a short while later demanding a cheque for the amount of
E80,000.00 saying that he would not leave the 2nd Defendant’s office until he
had been paid. Mr. Lewis responded that they needed to agree on the cost
first and that any payment would be done by debit order as he could not pay
a lump sum of E80,000.00. The Plaintiff left without presenting Mr. Lewis
with any documentation.
[7] A subsequent meeting took place. Mr. Lewis says that it was at this meeting
that the discussion became heated when the Plaintiff raised his voice insisting
that he wanted his payment and banged his fist on the office desk. Mr. Lewis
says that the Plaintiff threatened to sort him out and that he would close down
the 2nd Defendant. Voices were raised and there was much shouting. The
argument moved from Mr. Lewis’s office to the reception. It was here that
the Plaintiff informed Mr. Lewis that he would report him to the Minister of
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Trade and Commerce that 2nd Defendant’s motor vehicles were not insured
and that he would close the 2nd Defendant down and its employees would lose
their jobs.
[8] It was at this juncture that Mr. Lewis asked the Plaintiff to leave 2nd
defendant’s offices and threw the office keys at him. The Plaintiff left the
premises still shouting and that was the last that was seen of him.
[9] Mr. Lewis further testified that the 2nd Defendant was not in arrears with
regard to the premiums for the cars as he paid monthly by debit order. He was
asked by Mr. Manzini if the Plaintiff had told him that he had delegated the
administration of 2nd Defendant’s portfolio to Nelly Rego in the backroom.
He responded that he had not been told of this factor or that Mr. Lewis would
be dealing directly with Nelly Rego.
[10] Mr. Lewis testified that the 2nd Defendant owned four motor vehicles whose
debit order amounts had increased. When inquiries were made with Wesbank
as to why the amounts had increased by his finance manager, they were
informed that the amounts were paid to Alexander Forbes. Mr. Lewis says
that he did not authorize these payments.
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[11] It would seem that what prompted the writing of the letter to Alexander Forbes
dated 27th October 2008 (Exhibit P (b)) were anomalies found in the accounts
of the 2nd Defendant that it held with Wesbank. The finance manager of 2nd
Defendant when perusing the 2nd Defendant’s accounts found that its
instalments for the payment of insurance had increased. Wesbank had paid
Alexander Forbes certain lump sums in respect of insurance for four of 2nd
Defendant’s vehicles which caused its instalment be higher than usual. These
payments to Alexander Forbes were not authorized by Mr. Lewis.
[12] He says that he expected the Plaintiff to advise him with regard to the cost of
the insurance before he could commit the 2nd Defendant to a contract with
Alexander Forbes and that the 2nd Defendant could only pay its premiums
through monthly debit order, and that it could not afford lump sums.
[13] Mr. Lewis became concerned after he saw certain entries in 2nd Defendant’s
accounts relating to the four motor vehicles. He says that when he wrote the
letter of appointment for the Plaintiff dated 15th April 2008 (Exhibit P (a))
they had not discussed the details of what he was supposed to do. It was just
a letter of appointment which the Plaintiff had requested in order to obtain the
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2nd Defendant’s insurance policies from Vista. They did not discuss any terms
and conditions.
[14] Mr. Lewis was then handed the following:
Exhibit D6. He confirmed that the sum of E24,350.00 was a lump sum in respect of
insurance for a Kia Workhorse truck. Prior to 8/7/08 the monthly instalments were
E3,331.19. This amount increased after 8/7/08 to E5,954.11. The amount of
E24,350.00 was paid to Alexander Forbes by Wesbank. He did not authorize this
payment.
Exhibit D8. He confirmed that the sum of E14,316.38 was a lump sum in respect of
insurance for a Toyota Hilux. That prior to 8/7/2008 the monthly instalments were
E3,372.38 but after 8/7/2008 the instalments increased to E4,914.50. The amount
E14,316.38 was made to Alexander Forbes. He did not authorize this payment. But
once the E14,316.38 was reversed the instalment went back to what it used to be.
Exhibit D10. He confirmed that Exhibit D10 reflects entries of E7,263.00 made on
the 8/7/2008. This was insurance in respect of a Toyota Corolla. That prior to
8/7/2008 the monthly instalment was E3,729.00 but after 8/7/2008 it increased to
E4,510.00. He did not authorize this payment that was made to Alexander Forbes.
Exhibit D12. He confirmed that Exhibit D12 reflects a payment of E9,896.00 made
on the 8/7/2008. This was insurance in respect of a Toyota Auris. That as at 30/6/2008
his instalment was E3,562.00 but during July 2008 it increased to E4,625.61. He did
not authorize the payment of this amount to Alexander Forbes.
Exhibit D9 is a letter written to Wesbank from Alexander Forbes advising the
insurance over the Toyota Hilux (Exhibit D8) to be E15,000.00. The premium was
E14,316.38; Mr. Lewis says that nobody discussed this premium with him from
Alexander Forbes.
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Exhibit D11 is a letter written to Wesbank from Alexander Forbes advising that the
insurance over the Toyota Corolla (Exhibit D10) was E167,120.00. The premium was
E7,263.00.
Exhibit D13 is a letter written to Wesbank from Alexander Forbes advising that the
insurance cover over the Toyota Auris was E159,477.00 and a premium of E9,896.00
(Exhibit D12).
[15] All these letters were signed by Nelisiwe Rego or Nelly Rego and Mr. Lewis
denies authorizing Alexander Forbes to write these letters. He denies that the
letter of appointment of the Plaintiff (Exhibit P (a)) authorizes any of the terms
and conditions found in Exhibit D9, D11 and D13. He also denies that the
Plaintiff or Nelly Rego discussed the terms and conditions with him.
[16] He says that the total amount of these payments is the sum of E55,825.38
made to Alexander Forbes without his knowledge and authorisation. The
amounts were lump sum payments for the annual premiums and yet his
preferred method of payment was monthly debit orders.
[17] Mr. Lewis testified that the four vehicles mentioned above namely the work
horse truck, Toyota Hilux, Toyota Corolla and the Toyota Auris were leased
by the 2nd Defendant through Wesbank. He then handed in the Lease
Agreement for each vehicle.
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[18] Mr. Lewis testified that the Kia Workhorse truck and the Toyota Hilux were
old cars and that when Alexander Forbes took over the insurance policies
which had been taken out by Vista insurance were still in subsistence. Even
the new cars namely the Toyota Corolla and Toyota Auris would have been
covered by Vista and they were not in arrears.
[19] He also stated that he did not receive invoices or statements from Alexander
Forbes. He confirmed that he did not fail to pay any premiums that were due
for 1/8/2008. Meanwhile the Plaintiff said that when Wesbank contacted him
he suspected that the monthly debits were not going through. Mr. Lewis on
the other hand says that he never received any letter from Wesbank regarding
the policies nor did he receive any request for cover.
[20] The Plaintiff stated that as soon as they obtained the account from the 2nd
Defendant, he delegated the portfolio to Nelly Rego but she approached him
and told him that the premiums were not being paid. Upon receipt of that
information he went to the 2nd Defendant’s offices. Nelly did not call Mr.
Lewis about the non-payment of the premiums nor did officers from
Alexander Forbes. The Plaintiff’s visit to the 2nd Defendant’s offices was in
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respect of the premiums that were not being paid. Mr. Lewis denied that the
premiums were not being paid.
[21] Mr. Lewis stated that when he discovered that the monthly premiums had been
increased his financial manager telephoned Wesbank and the latter confirmed
that the payments were made to Alexander Forbes. He did not know about
this. He stated that all these activities on his account upset him. His precise
words were: “I was upset and that is putting it mildly that there were
approaches made to me for this money …”
[22] He says that when he asked Wesbank to produce authorization from him to
pay this money they failed to do so. He stated in evidence:
“I was fed up with my dealing with Mr. Mahlalela so I decided that
the money must be taken back. I was angry with Mr. Mahlalela so
I sat down and recalled and documented all my dealings with him
and forwarded it to Mr. Mngomezulu.”
He says that is how the letter to Mkhwanazi Attorneys dated 22 October 2008
(Exhibit D 18) came about and he wanted his attorneys to take legal action
against the Plaintiff.
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[23] The contents of Exhibit D 18 are reproduced hereunder:
“(22nd October 2008
Mkhwanazi Attorneys
P.O. Box 5888
Mbabane
Attention: Mr. S.M. Mngomezulu URGENT ACTION REQUESTED
RE: FRAUDULENT TRANSACTIONS.
1. I refer to our conversation yesterday re: the illegal activities committed against
our company (Pro-Tech), by Mr. Lucky Mahlalela of Alexander Forbes Insurance
Brokers, which has resulted in Wesbank illegally debiting monies from our bank
account without any written agreement whatsoever signed by myself as the Managing
Director of Pro-Tech Holdings.
2. Back Ground Information
Our company was not receiving the service level from Vista Insurance Brokers a
company that has handled all our insurance portfolios for many years. Lucky
Mahlalela approached me stating that he would resolve all my problems and give our
company a good deal with all insurances required. Unfortunately he persuaded me
under duress to issue a letter giving Him (Lucky) representing Alexander Forbes as
our authorized insurance brokers.
3. The Problems Commence.
A week or more past, then we started getting calls from Lucky.
He was demanding that we sign certain documents relating to our vehicle insurances.
We refused, stating we need to read the documents and we need a quotation.
A quotation was brought to our offices, where he again demanded a cheque for +/-
E80,000.00.
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I again refused, stating that we had not agreed with his quotation and that payment
would be done via debit order, once all documents were signed.
He began insulting and threatening my finance manager Happy, he then made threats
against me and our company. He stated that he would inform the Royal insurance
that we were not insured, that he would make sure our company would not get any
insurance cover locally, and that we would close. He then left.
4. The phone calls, visits to our offices, the insults, threats and demands for money
continued against Happy, me and our company. Things became so bad, that we
reported this to Wesbank. Wesbank intervened to try and resolve the problem, they
failed. Lucky then sent malicious emails to our bankers (Nedbank) this can be
confirmed by Nedbank. Nedbank did not take kindly to being threatened by Lucky
Mahlalela and they informed our office of the email.
It was agreed with Nedbank and Wesbank that we would move back to Vista
Insurance Brokers.
A letter rescinding Alexander Forbes appointment was sent to Lucky Mahlalela.
Mandla Simelane the Managing Director of Vista Insurance Brokers dealt with our
issue. He spoke with Wesbank and Nedbank and we thought that every thing was
fine.
New Insurance policies as agreed with our bankers would be issued by Vista
Insurance Brokers, payment by debit order.
Happy our Finance Manager recently noticed unknown debit orders being taken
from our bank account. Upon investigation, she discovered that Wesbank was
debiting our account for vehicle insurance policies, policies that we had not agreed
too, seen, read, or signed. The debits were been done illegally.
Wesbank was contacted, they stated that they had been forced by Lucky Mahlalela
to accept insurance policies from Alexander Forbes and they further stated that they
had again been forced to pay over E100,000.00 +/- to Lucky.
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Nedbank was contacted by Wesbank to reimburse them for the money that they had
paid out to Alexander Forbes (Lucky Mahlalela).
Nedbank have been contacted and they will not pay over any monies.
Legal Action.
I now required the following
Wesbank to reimburse with interest the unauthorized insurance debits.
Action taken against Lucky Mahlalela and Alexander Forbes for the fraudulent acts
perpetrated against our company.
A claim for damages made against Lucky Mahlalela and alexander Forbes.
A formal letter of complaint sent to the Royal Insurance.
Should you require any further information please contact myself direct on 602-7951.
Yours faithfully,
Paul J. Lewis
Director”
[24] Indeed in response to Exhibit D18, Mkhwanazi Attorneys through the pen of
Mr. Mngomezulu, the 1st Defendant, a letter of demand (Exhibit P (b)) was
written to Alexander Forbes. The 1st Defendant is an attorney of this Court
who at the material time acted for the 2nd Defendant while practicing with
Mkhwanazi attorneys but on his own account. The contents of Exhibit P (b)
are reproduced hereunder:
“THE MANAGING DIRECTOR
ALEXANDRA FORBES
INSURANCE BROKERS
Dear Sirs,
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RE: PRO-TECH HOLDINGS (PTY) LTD/ALEXANDRA FORBES INSURANCE
BROKERS
1. The above matter refers wherein we act on the instructions of Pro-tech Holdings
(Pty) Ltd hereinafter referred to as client.
2. Client instructs us that your Company was duly engaged as their insurance
brokers. We are instructed that the professional relationship between our client
and yourselves irretrievably broke down due to the conduct of one Lucky
Mahlalela who is under your employ. The said Mr. Mahlalela verbally attacked
our client’s Managing Director and further attempted to extort a sum of
E80,000.00 from client.
3. We are further instructed that client duly terminated your company’s mandate to
act as their insurance brokers and engaged Vista Insurance.
4. Client notes with grave concern that notwithstanding the termination of your
company’s services, your Mr. Lucky Mahlalela unilaterally and without client’s
consent proceeded to present certain insurance policies to Wesbank and
fraudulently misrepresented to the bank that he was mandated by client. We
place on record that client has never even seen the aforesaid insurance policies
nor did he instruct yourselves to prepare the same hence he never appended his
signature on same.
5. Due and consequent to your client’s misrepresentation, Wesbank paid to
yourselves a sum of E80,000.00 for such policies and clients account is being
periodically debited by Wesbank to recover the aforesaid amount.
6. In the premises, we advise that your Mr. Mahlalela acted unlawfully and client
has duly suffered damages in the sum of E80,000.00 which was paid over to
yourselves. We are therefore instructed to demand, as we hereby do, payment of
the sum of E80,000.00 at our offices within seven days from date hereof. Should
you refuse, neglect and or omit to timeously heed to this demand, the necessary
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legal action shall be instituted against yourselves without any further notice to
yourselves.
7. In the meantime all our client’s rights are strictly reserved.
Yours faithfully,
Mkhwanazi Attorneys
Per:
cc. Wesbank
Mbabane”
[25] The Plaintiff testified that when Messrs Alexander Forbes received Exhibit P
(b), his boss showed the letter to him. The contents of the letter were reported
to the Board and the attorneys for Alexander Forbes were instructed to liaise
with Messrs Mkhwanazi Attorneys in order to investigate the circumstances
recorded therein.
[26] Due to the fact that he was under investigation the Plaintiff testified that he
was asked to slow down in seeing clients as circumstances of this nature do
not fit the insurance and brokerage industry. The Plaintiff says that he
operated a company in South Africa and he could not renew his personal
professional indemnity there because of the investigation. As a result he had
to abandon his business in South Africa. The profit from the South African
business was E4,000.00 per month during poor seasons and E15,000.00 per
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month during good seasons. He says because he was headhunted to succeed
the Managing Director at Alexander Forbes, this appointment was delayed for
a year because he was under investigation.
[27] The Plaintiff was shown Exhibit P (b) by his attorney. He denied that he
verbally attacked Mr. Lewis. He says that after the appointment by the 2nd
Defendant he had to interact with Mr. Lewis for premiums in respect of
insurance policies for the motor vehicles of the 2nd Defendant. After the
appointment the Plaintiff delegated the portfolio Nelly Rego. She is the one
who arranged the policies. She asked the Plaintiff to get the premiums paid.
He contacted Mr. Lewis by phone and made follow-up visits to his office
about the premiums. He denies that there were altercations between him and
Mr. Lewis. The only person who showed any hostility to him was the
receptionist Miss Happy Dlamini.
[28] He denied extorting any money from Mr. Lewis. He stated that he was not
aware that his mandate had been withdrawn at the time he went to 2nd
Defendant’s office to request that the premiums be paid. He denied that he
unilaterally and without 2nd Defendant’s consent proceeded to present certain
insurance policies to Wesbank thereby fraudulently misrepresenting to the
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bank that he was mandated by the 2nd Defendant. He denied that he got any
benefit from the E80,000.00 allegedly paid by Wesbank to Alexander Forbes.
He said that there was nothing sinister in Wesbank paying an insurance
premium and then debiting from the insured party because where a bank has
an interest in an asset (motor vehicles) they have an interest in the insurance
cover over the asset remaining in force to the extent that they would pay on
behalf of a client.
[29] The Plaintiff was cross-examined by Mr. Manzini who asked him questions
about the provisions of the Insurance Act of 2005. He was asked if it was
correct that the Insurance Act had among its objects to make regulations for
insurance companies and their intermediaries in Swaziland. And that the
Registrar’s surveillance over these bodies was for the benefit of policy holders
and the general public. He agreed. He was asked if a code of conduct for
insurance brokers was also promulgated in terms of the Act. He agreed. He
was shown Exhibit D4 which is entitled: “Code of Conduct for insurance
brokers” and he agreed that this was the code of conduct.
[30] The Plaintiff was referred to the following clauses:
3.2 Knowledge and skill
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“The public regards registration as an insurance broker an indication of
competence. Competence is not limited to the legal qualification as an
insurance broker. It is also the broker’s ability to competently provide the
services needed by the client. It calls for a clear understanding of insurance
principles, and it requires sound knowledge of practices and procedures to
apply them effectively in the best interest of the client.
A registered insurance broker should be knowledgeable, skilled and
capable of performing as an insurance intermediary. The client is
entitled to assume that the broker has the ability and capacity to deal
adequately with insurance matters on the client’s behalf.
A broker should not undertake to arrange insurance without
being satisfied that the broker is competent to handle the
arrangements without causing the client unnecessary delay, risk
or expense. This becomes an ethical question relating to
transparent, just and fair dealings with the client, and is
important since an incompetent broker can impair the
credibility and perception of the industry. A broker should
therefore act honestly and fairly, with due skill, care and
diligence, in the interests of clients and the integrity of the
insurance industry.” (emphasis added)
4. Integrity and professionalism
“In all dealings with the public, a broker will act with integrity,
professionalism and utmost good faith.
A broker will apply knowledge and skill to provide a client with those
products and services which will best fulfil that client’s particular
needs, with specific reference to:
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(a) the client’s financial circumstances;
(b) the client’s existing coverage;
(c) the client’s ability to afford the product or servie
concerned, and
(d) the client’s objectives in relation to the insurance
service required.
Should any product or service be marketed to a client, the advantages
as well as limitations of the relevant product or service must be
explained to the client, so that the client can make an informed decision
regarding the product or service. The client’s needs must be
determined by means of a thourough analysis of the client’s relevant
affairs”. (emphasis added)
4.2 Disclosure of markets.
“Brokers are generally obliged to present to a client quotes from more
than one insurer. If a broker can offer only one company’s quote to a
prospective client, there is a duty upon the broker to make this
limitation known before accepting and placing any business on behalf
of the client. Similarly, an obligation exists to be open and honest with
clients where a broker is able to place insurance with only a single
insurer or with a limited number of insurers that may not be
representative of the entire market. Since these facts may influence the
judgment of a client or prospective client, disclosure is required”.
(emphasis added)
4.3 Product Disclosure and Comparisons
“… any proposal to enter into a contract of insurance or to make any
alterations or additions to or cancel a policy shall be made in the best
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interests of the policyholder and shall not be motivated by the
additional compensation that might be received by the broker”.
[31] He was asked if it was true that the office of the Registrar was among other
services ensuring consumer education and he agreed. He was shown Exhibit
3 which is entitled consumer education and was downloaded from the
Registrar of Insurance and Retirement Funds (RIRF) Website. Item 6 thereof
was read into the record and it states:
“You have a right to be informed in writing if your policy is not
being renewed, cancelled or altered”.
The Plaintiff agreed with the provisions of item 6.
[32] He was shown Exhibit D1, which is a letter addressed to Vista Insurance
Brokers from Alexander Forbes dated 21/4/2008. The Plaintiff agreed that he
was the author and signatory thereof. It reads:
“Attention: MV Vilakati
Dear Sir,
RE- PRO TECH HOLDINGS (PTY) LTD
1. We enclose a letter of appointment signed by client for your information
and records.
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2. We also advise that your letter dated 28th March 2008 to client has been
forwarded to us.
3. The following policies have been copied to us by insurers:
Motor Policy Number MB MAA0052503
Motor Policy Number MB MVA0037114
Public Liability Policy Number MB LLA3022682
Workmen’s Compensation Policy Number MB LWA3022987
4. Please advise if there are any policies we need to be aware of and advise
the status of payments in respect of each one of them.
5. We look forward to your feedback”.
[33] He was shown Exhibit D2, which is a letter addressed to Pro-Tech Holdings
(Pty) Ltd from Vista Insurance Brokers dated 28/3/2008. He was asked if that
was the letter referred to in Exhibit D1 and he agreed. The contents of Exhibit
D2 were read to the Plaintiff and are reproduced herein:
“PRIVATE MOTOR POLICY NO. MB MAA 0052503
1. You will recall that this policy falls due for renewal on 1st April 2008.
2. Accordingly we have pleasure in enclosing your insurer’s Renewal
Invitation showing the monthly premium payable as from renewal
date.
3. As you are aware, vehicle values fluctuate from time to time. It is
therefore prudent to review insured values periodically to ensure that
the vehicle is neither over-insured nor under-insured.
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4. In this instance the renewal premium is based on the following vehicle
values:
1. 2002 BMW X5 3.0 SD 911 RL : E300,00
2. 2002 Isuzu KB 320 D/C LX SD 530 OF : E113,000
3. 2005 Opel Corsa 140i Club SD 287 OS : E 88,000
5. According to the March 2008 edition of Mead and McGrouther’s Auto
& Commercial dealers’ Guide, the “book” values of your vehicles for
insurance purposes are as follows:
1. 2002 BMW X5 3.0 SD 911 RL : E209,00
2. 2002 Isuzu KB 320 D/C LX SD 530 OF : E 94,000
3. 2005 Opel Corsa 140i Club SD 287 OS : E 66,000
6. Please bear in mind that these suggested values exclude the value of any
optional extras that may be fitted to the vehicle.
7. In the circumstances we would recommend that you review the sums
insured in line with prevailing market values, of course with suitable
adjustment for any optional extras that may be fitted to the vehicle.”
[34] It was put to him that Exhibit D2 talked about the renewal of the policy, that
the premiums were payable monthly, and that a policy holder had an option
whether to pay monthly or in a lump sum, that the policy holder has a final
say in the sum insured, that policy holder had a final say as to whether to pay
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the premiums to the broker or directly to insurer. Save for the last named he
agreed with Mr. Manzini.
[35] He was referred to the last sentence in Exhibit D2 and asked if this was not in
line with a broker’s duty to provide information to a policy holder who would
then make an informed decision thereon. He agreed.
[36] The Plaintiff was shown Exhibits 9, 10, 11 and 12. He recognized these
statements but said that he did not personally authorize the payments made to
Alexander Forbes by Wesbank. He decried the fact that Mr. Lewis as soon as
he discovered the error or omission on the part of the broker in restructuring
the portfolio failed to bring this fact to Alexander Forbes for correction. Had
he brought this anomaly to their attention the anomaly would have been
corrected and any payment would have been reversed where necessary.
However, Mr. Manzini countered by putting to the Plaintiff that the mistake
that the Plaintiff was referring to could have been simply avoided by
discussing the terms and conditions with Mr. Lewis who would have informed
the Plaintiff that he preferred to pay premiums in monthly instalments instead
of a once off yearly lump sum.
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[37] It was put to the Plaintiff that Mr. Lewis did not authorize the lump sum
payment or debits of E9,896.00; E7,263.00; E24,350.00 and E14,316.86
totalling E55,825.38. The Plaintiff responded by saying that these payments
were not paid to him. He did acknowledge that he delegated the portfolio to
Nelly Re go the idea being that he would remain the face of Alexander Forbes
to Paul Lewis because the latter had appointed Alexander Forbes through him.
The Plaintiff conceded that he never informed Mr. Lewis that he had delegated
the 2nd Defendant’s portfolio to Nelly Rego. He further conceded that as the
face of Alexander Forbes whatever was done by Alexander Forbes was being
done by him as far as Mr. Lewis was concerned and he had no problem with
that because he was also the conduit to what was either going to be a good or
bad relationship with the 2nd Defendant. His gripe was that after Mr. Lewis
discovered that payments were made without his authorization, he should
have come to talk to him about the matter especially because of the friendly
relationship he believed existed between him and Mr. Lewis.
[38] The Plaintiff was asked how much did he say to Mr. Lewis was due as
premiums when he went to talk to him. His response was that he did not recall
what figure he may have asked for as his was to discuss the general principle
of non-payment of premiums. He conceded that he did not specify the motor
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vehicles in respect of which premiums were not being paid. Among other
things it was put to the Plaintiff that he demanded a cheque payment in the
region of E80,000.00 (Eighty thousand Emalangeni) from Mr. Lewis and Mr.
Lewis refused to pay this figure as that time he did not know what the money
was for because there were no proposals or quotations with regard to the
premiums. The Plaintiff denied having demanded this amount.
[39] The Plaintiff was asked about a second visit he paid to Mr. Lewis when it was
alleged that he banged the table and threatened to inform Nedbank and
Wesbank that the 2nd Defendant’s motor vehicles were not insured; that the
Plaintiff threatened to ensure that the 2nd Defendant would close down; that
Mr. Lewis’ family would suffer because of non-payment of the money that
the Plaintiff was demanding; that the argument moved from Mr. Lewis’ office
to the reception where it was witnessed by Happy Dlamini and Takhona
Magongo; that Happy placed her hands over her ears to shut out the argument;
that Mr. Lewis who was by then very agitated and angry threw a bunch of
keys at the Plaintiff. The Plaintiff denied all the above accusations and
responded that as far as he knew his relationship with Mr. Lewis was good
until he was shown the contentious letter (Exhibit P (b)).
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[40] The Plaintiff says that Exhibit P (b) was faxed to the offices of Alexander
Forbes and that the fax machine is in an open plan office and the closest desk
is that of the cleaner. He says that at the time Exhibit P (b) was sent he was
deputy managing director of an entity known as Tibiyo Insurance Brokers
which was housed in a separate area of the building which also housed the
offices of Alexander Forbes. The entities were separated by partitioned
corridors. Exhibit P (b) was faxed to Alexander Forbes financial services
trading as Swaziland Employee Benefit Consultants.
[41] The Plaintiff was shown a letter from the 2nd Defendant to Messrs Alexander
Forbes Risk Services, Mbabane (Exhibit D14). The contents read as follows:
“28th July 2008
Alexander Forbes Risk Services
P.O. Box 1072
Mbabane
Attention: Lucky Mahlalela
RE: REPRESENTATION AS INSURANCE BROKER
You are hereby informed that the letter issued to you – “Appointment as
Insurance Broker” is hereby rescinded with immediate effect.
Yours
Paul J. Lewis
Director
For & on behalf of
Pro-Tech Holdings T/A Chubb Electronic Security”
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He confirmed that he had seen Exhibit D14 some two or three months after
the 28th July 2008, the date on which it was written. It is scripted to: “attention
Lucky Mahlalela.” The Plaintiff confirmed that Exhibit D14 terminated the
mandate given by the 2nd Defendant. It was put to the Plaintiff that Exhibit
D 14 was delivered on the date on which it was written, that is on the 28th July
2008.
[42] It was suggested to the Plaintiff that payment of the four premiums totalling
E55,825.38 was made after delivery of Exhibit D 14. To buttress this point
the Plaintiff was handed Exhibit D15. Exhibit D15 has a list of insured clients
who include the 2nd Defendant. Alongside the 2nd Defendant’s name appears
the figures E9,896.00; E24,350.00; E14,316.38; E7,236.00.00. It is dated
5/8/2008 and a cheque for the amount of E182,153.42 is fused to the bottom
half made out to Alexander Forbes. The amounts mentioned above are
included in the cheque payment.
[43] The Plaintiff explained that Exhibit D15 was a document called a borderaux
which is used to remit agreements. It is prepared at the end of the month to
list clients and the premiums that are being transferred from one party to
another in the insurance industry. Where for instance the company has a
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number of clients who have taken out insurance for example during the month
of July, instead of paying everyday a schedule is prepared at the end of the
month of all the clients and a payment is made as a lump sum and the
premiums are remitted during the first seven days of the following month.
That would explain the date of 5/8/2008 on Exhibit D15. The list was
prepared at the end of July 2008 and payment remitted on 5/8/2008 i.e.
Wesbank is remitting premiums to Alexander Forbes for July 2008 in Exhibit
D15. He did not know who completed Exhibit D15 nor who provided the
information reflected therein. He confirmed that the figures reflected next to
the 2nd Defendant are also reflected in Exhibit D10, 11, 12 and 13. He
explained further that liability for the premiums would have arisen before the
28/7/2008 and 5/8/2008.
[44] When he was re-examined the Plaintiff stated that Exhibit D15 is not the
document that triggers payment of a premium but Exhibit D11. In this case
Exhibit D11 is dated 4/7/2008 and Alexander Forbes was mandated to
generate it as their mandate was only terminated on 28/7/2008. That the same
applied to Exhibit D6 which was dated 8/7/2008.
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[45] After reading the meaning of extort from the Oxford University press
dictionary as meaning “to obtain by force, threats or other unfair means”
the Plaintiff stated that he did not issue any threats to Mr. Lewis for the
payment of the premium, nor did he apply force nor did he enlist any unfair
means.
[46] The Plaintiff stated that the allegations contained in Exhibit P (b) prompted
him to take legal action against the Defendants. He instructed his attorneys
who instituted action against the Defendants during November 2009 seeking
damages for defamation in the amount of E1,300,000.00 (One million three
hundred thousand). He also sought interest on the said sum at the rate of 9%
per annum; costs of suit; further and alternative relief.
[47] At the beginning of the trial the Plaintiff indicated that he would be seeking
damages in the amount of E400,000.00 (Four hundred thousand Emalangeni)
and was abandoning the amount in excess of that figure.
[48] The contents of Exhibit P (b) were put to Mr. Lewis by Mr. Manzini. His
response to Item (4) was that the contents thereof were correct because the
Plaintiff no longer had a mandate from him and had made a fraudulent
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misrepresentation. That he had never seen the insurance policies. His
response to Item (5) was that the contents thereof were correct even though at
that point he did not know the exact amount and the E80,000.00 was the only
amount that the Plaintiff had requested. His response to Item (6) was that
these were his instructions to his attorneys.
[49] He was asked to show any portion of Exhibit P (b) that stated that the Plaintiff
wanted personal reward for professional services rendered through extortion.
He notably responded ‘none’ notwithstanding the contents of Item (1) thereof.
In short it was his evidence that the contents of Exhibit P (b) were not
defamatory.
[50] When he was cross-examined he was shown Exhibit D and E which are
invoices from Leites Motors in respect of the Toyota Auris and Toyota
Corolla. He confirmed that these were invoiced on the same day that he had
appointed the Plaintiff. When further asked whether he had ascertained from
the business account of the 2nd Defendant whether the monthly debits in
respect of April, May, June and July for the vehicle insurance were reflected.
He said that he had not checked. On further questioning whether he knew for
a fact that these monthly debits had gone through he said that he did not know.
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[51] When further cross-examined he did concede that extortion meant “being
dishonest” and was not a good thing. He also stated that he understood that
fraudulent misrepresentation meant “telling a half-truth”, in acting as if he
were still the 2nd Defendant’s broker when he was not and presented the
policies without his knowledge or permission. He was asked on what basis
he used the term “fraudulently misrepresented” at paragraph 4, he
responded that he used the terminology on the basis that the Plaintiff acted
without his knowledge or consent.
[52] He was cross-examined about the contents of Exhibit D18 particularly on the
meaning of duress as defined by the Oxford Dictionary. He was asked if the
Plaintiff had used “compulsion illegally, or imprisonment or forcible
restraint” to force him to sign Exhibit P (a). His response was: “No”; but
that the Plaintiff would not leave without the letter and was forceful in
demanding it.
[53] Next was a challenge about Mr. Lewis having stated that he did not receive
any quotation in his evidence in chief but that in Exhibit D18 he stated that he
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had received a quotation. His response was that he had assumed that there
was a quotation at the time but discovered later that there was no quotation.
[54] He was asked about Exhibit D18 which mentions that the threats, insults and
demands for money by the Plaintiff were made to the finance manager Happy
Dlamini. He stated that this was correct. With regard to the question about
threatening e-mails sent by the Plaintiff to Nedbank he said that the bank had
refused to release these.
[55] With regard to the unauthorized payments it was put to Mr. Lewis that by the
28/10/2008 when Exhibit P (b) was written to Messrs Alexander Forbes, he
already knew that the debits in 2nd Defendant’s accounts were in respect of
insurance payments. He agreed. He also agreed that he had failed to obtain a
printout to see whether 2nd Defendant had been double debited. He was asked
why after the Plaintiff had threatened him he waited two months to terminate
his mandate per letter dated 28/7/2008. It was put to him that the Plaintiff
denied any bad blood between then he denied this.
[56] He was referred to the lease agreement’s Exhibit D16 and D17 which he
signed in particular paragraphs 5.1, 5.4 and 5.5 of Exhibit D16 which state:
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5.1 Lessee shall, before taking delivery of the goods and until all his
obligations hereunder have been discharged, register, licence
(and if a motor vehicle, insure it against third party claims in
terms of the Motor Vehicle Accident Number 13 of 1991) and in
addition insure the goods against all insurable risks, against all
loss and damage with The Royal Swaziland Insurance
Corporation for the full value thereof or for such sum as advised
by Lessor from time to time.
5.4 Lessee shall within 7 days of Lessor so requesting, exhibit and/or
deliver to Lessor proof of payment of the obligations undertaken
in terms of this clause and in addition exhibit and/or deliver to
Lessor such insurance policies as may be required to be taken out
in terms of this clause.
5.5 Should Lessee fail to fulfil his obligations as set forth in this
clause 5, Lessor shall be entitled, but not obliged to carry out, on
behalf of Lessee, such obligations and to that end expend such
sums of money as Lessor in its sole discretion may consider
necessary or desirable and to recover sums so expended from
Lesseee, either on demand or by adding such sums to the
principal debt.
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He agreed with the provisions therein. It was put to him that the
termination of the mandate occurred on the 28/7/08 but that as at
8/7/2008 when the amounts complained of were already paid to
Alexander Forbes the mandate had not been withdrawn. That the
Plaintiff did not personally present any premium to the bank; that the
bank loaded the premiums in terms of clause 5.5 of the lease agreement.
[57] He reiterated that he perceived the fraudulent misrepresentation to Wesbank
was that when Exhibit P (b) was drafted he knew of a payment that Wesbank
had made, but at that stage did not know what payment had been made.
[58] He was presented with the meaning of fraud from the Compact Oxford
dictionary and asked where he thought the fraud in respect of the Plaintiff
emanated from. He replied that it was the presentation of the policies. That
when he issued Exhibit P (a) it was to enable the Plaintiff as his broker to take
on his portfolio and nothing else was discussed at that time. And that he did
not authorize the Plaintiff or Alexander Forbes to alter or change the structure
of the portfolio.
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[59] He further stated that at the time he instructed the 1st Defendant he was not
aware that payment had been made to Alexander Forbes nor that Exhibits D9,
D11 and D13 had been sent to Wesbank nor was he aware on which date
Wesbank had loaded the insurance premiums on 2nd Defendant’s account.
[60] The 1st Defendant Mr. M.S. Mngomezulu (DW2) next gave evidence. He
testified that he was the author of Exhibit P (b) and confirmed his signature
thereon. He told the court that after he received Exhibit D18 he went to
interview Mr. Lewis and Happy Dlamini. Thereafter he wrote Exhibit P (b).
He explained that he understood the word “extort” to mean something not
due to you through threats or any other unfair means.
[61] He confirmed that his use of the word “extort” in his letter was true as per his
instructions and that the contents of Exhibit P (b) were per his client’s
instructions. He said that he understood the word “fraudulent” to mean any
intention to deceive and does not necessarily entail fraud. And the word
“misrepresented” meant to give a false account of something.
[62] Asked what message paragraph 2 of Exhibit P (b) would convey to an ordinary
person he replied that it would convey that a professional relationship had
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broken down between them and that the Plaintiff had attempted to get a benefit
that was not due to him at that time. He stated that the contents amounted to
fair comment and were not defamatory. Equally the same reaction would
obtain in terms of paragraph 4 of Exhibit P (b), the comment was fair and
justified because it was based on the truth.
[63] Certain pertinent paragraphs of the particulars of claim were put to him
namely:
AD Paragraph 4
“On the 27th October 2008 the 1st Defendant acting on the
instructions of the 2nd Defendant wrote a defamatory letter to the
Managing Director of Alexander Forbes.”
His response was that this was fair comment and that he had taken reasonable
steps to investigate the truth of what had happened.
[64] AD Paragraph 5:
“The letter was written with the intention to defame Plaintiff and
to injure his reputation.”
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His response was to deny any intention to attack the Plaintiff’s reputation and
that in the plea where the 2nd Defendant held itself vicariously liable; meant
that it stood by its instructions which were based on the truth.
[65] AD Paragraph 6.1:
“The Plaintiff is a dishonest person;”
He disagreed with this allegation and stated that there was nothing remotely
suggesting that the Plaintiff was dishonest in paragraph 2 of the letter of
demand.
[66] AD Paragraph 6.2:
“The Plaintiff wants personal reward for professional services
rendered through extortion.”
He responded that he disagreed with the said conclusion because the word
“extort” meant that the Plaintiff was deriving something not yet due.
[67] AD Paragraph 6.3
“That the Plaintiff did not have a mandate to act on behalf of the
2nd Defendant.”
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He responded that he was instructed that the Plaintiff’s mandate had been
terminated.
[68] The witness agreed that he had faxed Exhibit P (b) to Swaziland Employee
Benefits consultants and copied it to Wesbank, Mbabane as well as to the
Plaintiff’s employers. This he said was on the instructions of his client, the
2nd Defendant.
[69] AD Paragraph 8:
The Plaintiff is a Senior Executive in a prestigious brokerage and a
member of a close corporate in South Africa, Plaintiff is the key
person in compliance with the financial services Board, Plaintiff is
also a Director of a Financial Services Company in Swaziland.”
His response was that he did not know any of the allegations therein only that
the Plaintiff was a broker employed by Alexander Forbes as instructed by the
2nd Defendant.
[70] AD Paragraph 9:
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“As a result of the defamatory letter Plaintiff has been damaged to
his reputation, good name and relationship with his employer and
Associates.”
He responded that he did not agree with the stated allegation and concluded
by praying that the claim be dismissed with costs.
[71] When the witness was cross-examined he conceded that pleading the truth in
a defamatory action was required and that the Defendants had pleaded same.
He further conceded that pleading dissemination of such information should
be in the public interest and that he had not pleaded same but had stated in
evidence in chief that insurance is in the public domain. It was put to him that
he did not state in Exhibit (P) (b) what the E80,000.00 alleged to be extorted
was for. He replied that he could not state what it was for because his client
did not tell him what it was for.
[72] It was put to him that a person reading the demand for E80,000.00 would get
the impression that the Plaintiff wanted the money for himself. The witness
responded that he did not agree because the Plaintiff was acting on behalf of
his employers. The witness had mentioned in his evidence in chief that the
money and commissions were not due until later and asked whether he was
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suggesting that the Plaintiff was pushing the payment of premiums because
of the commissions he said no.
[73] Following his definition of the word “extort” he was asked what benefit the
Plaintiff was trying to extort from the 2nd Defendant, he responded that the
benefit would be the payment to Alexander Forbes and that when he
demanded it, it was an attempt to get payment when it was not due. It was put
to him that contrary to what he had led in evidence in chief he did not take
diligent steps to find out the truth otherwise he would have found out that the
premiums were due because the policy had started during April and the
deductions were only made in June.
[74] He was referred to paragraph 4 of Exhibit P (b) where he accused the Plaintiff
of fraudulently misrepresenting to the bank that he was mandated by the 2nd
Defendant to present certain insurance policies. He was asked if he believed
the Plaintiff to be a fraudster, he denied this.
[75] Asked why he did not tender an apology he responded that there was no
opportunity to apologise because the Plaintiff sent a summons and there was
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no letter of demand preceding the summons. There was no courtesy extended
to him to retract, apologise or even to engage the Plaintiff.
[76] Given the appointment letter dated 15 April 2008 and the termination letter
dated 28 July 2008, the witness was asked when the Plaintiff presented the
policies to the bank. He responded that he was instructed by his clients that
they did not know that as a fact, they were only aware a month down the line.
[77] He was informed that the Plaintiff never approached Wesbank, he responded
that his client had advised him that the Plaintiff had approached the bank. He
conceded that he did not verify this information.
[78] It was put to him that the Plaintiff had given evidence to the effect that if
premiums are not paid the insurer is obliged to advise the bank that premiums
have not been paid. He was further informed that the bank has an insurable
interest over a motor vehicle and that Mr. Lewis had entered into an insurance
agreement over vehicles that he was obliged to pay premiums for and if he did
not, the bank was entitled to load the premiums on 2nd Defendant’s account.
[79] He was further referred to clause 5.3 – 5.5 of Exhibit D17.
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Clause 5.3 states:
“Lessee shall insure that Lessor’s interest is endorsed on the
aforesaid insurance policies. Lessee shall pay all insurance
premiums punctually and shall at all times comply with all the
conditions of the policies.”
Clauses 5.4 and 5.5 are set out supra in paragraph 56.
[80] The witness was asked that if Wesbank did not ask Mr. Lewis for proof that
he was insured and the bank loaded the premiums on the 2nd Defendant’s
account was that the Plaintiff’s fault if the bank did not invoke clause 5.4
before clause 5.5. The witness denied this saying that the bank would not
have loaded the amounts without proof but he had not checked with the bank
before writing Exhibit P (b). He says that he merely asked Mr. Lewis for the
policies and Mr. Lewis could not produce them. This failure to produce the
policies would have triggered the loading of 2nd Defendant’s account and not
the invoking clause 5.5.
[81] It was put to him that Mr. Lewis when challenged did not produce any
evidence to show that he had been paying the premiums and that he did not
cancel the premiums but allowed them to continue after not getting the
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E80,000.00, did the witness maintain the allegation that Plaintiff acted
fraudulently.
[82] The witness responded that when he authored Exhibit P (b) he did not know
the facts as put to him. The witness was also asked whether he had seen the
“malicious” e-mail allegedly sent by the Plaintiff to his clients and he
responded that he had seen it, Happiness had shown him but they had not
printed it. He denied that it was malicious and that he had not alleged it to
have been malicious.
[83] He was asked that if a person is accused of acting fraudulently were they were
acting dishonestly? The witness preferred “deceitful” instead of dishonest and
stated that that was what he meant when the wrote Exhibit P (b).
[84] It was put to the witness that Exhibit P (a) was a mandate to act for the 2nd
Defendant, the witness confirmed it to be so but qualified same by saying that
the mandate was not open ended. It was put to him that even if the Plaintiff
had overstepped his mandate and had made a representation, there were
different types of representation namely innocent negligent and fraudulent
what had made him rush to “fraudulent misrepresentation” and to skip
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innocent and negligent misrepresentation when he wrote Exhibit P (b). He
replied that the choice of “fraudulent misrepresentation” came from Exhibit
D 18 (see paragraph 23 supra) and interviews with his clients. That even if
the phrase was exaggerated, that would not detract from the truthfulness of
the contents of the letter and that when he wrote it he had no intention of
defaming the Plaintiff who was not known to him at the time and he had
nothing against him.
[85] The issue over the renewal of premiums in respect of the old cars namely the
Toyota Hilux (2007) and the Kia (2007) arose it being alleged that the Plaintiff
took over premiums that had already been set by Vista and that the two new
cars were added to existing policies but Mr. Manzini successfully objected
saying that the Plaintiff had confirmed in cross-examination and re-
examination that Exhibit D9, D11 and D13 would have triggered payment by
Wesbank. The witness stated that according to his understanding alterations,
amendments and additions to premiums should be made by the client and not
the broker.
[86] Shirley-ray Dlamini (DW3) next gave evidence. She stated that she was
employed at First National Bank under the Wesbank division as an insurance
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officer. Wesbank is a finance institution. Her duties included managing
clients insurances. She was handed Exhibit D15. She said that it was a
document from Wesbank which she had prepared. She was asked to explain
the production of the cheque and how it became fused with the main document
(Exhibit D15) which is headed Alexander-Forbes Mbabane. She stated that
Exhibit D15 was called a borderaux. She explained that Alexander Forbes
would submit renewal documents with a list of clients who have to be paid for
that particular matter. Sometimes it is new business whereby the client
instructs that they pay their broker.
[87] She stated that they compile the list into a single document as reflected in
Exhibit D15. They then issue the cheque as the one fused at the bottom of
Exhibit D15. Exhibit D15 is divided by horizontal columns. Column 3 states
the name of the person on whose behalf the payment is made (insured);
Column 5 states the gross premium or the amount of money which is supposed
to be paid annually for the client. Column 7 is the balance which is remitted
to the broker. Column 8 is an agreement number which refers to the client so
that when they punch it into the computer, the name of the client appears. The
document is taken to the person who issues the cheque which she also co-
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signs. Her signature appears over the figures “S122”. The document and
cheque are then taken to the broker.
[88] She stated that numbers 3, 4, 5 and 6 on Exhibit D15 related to the 2nd
Defendant and that the gross premiums were E9,896.00; E24,350.00;
E14,316.00 and E7,263.00. She stated that these figures were in a letter
brought to her by her superior Phinda Dube and were from Alexander Forbes.
The letter had four motor vehicles listed together with their descriptions,
registration numbers and premiums. She was shown Exhibits D9, D11 and
D13 and she stated that her boss Phinda Dube had brought them to her and
had asked her to take action in regard to them. She went into the computer
and searched for the motor vehicles in order to ascertain the agreement
numbers but discovered that payment for the 2nd Defendant’s vehicles had
never been done before. When she returned to her desk a broker phoned her
about the 2nd Defendant’s motor vehicles.
[89] She went to Alexander Forbes and enquired why they were requesting
payment whereas Vista had also called requesting payment. She was
informed that the 2nd Defendant had left Vista and had joined Alexander
Forbes as their brokers. She spoke to Nelly Rego at Alexander Forbes. She
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captured the information into their system and made payment at the end of the
month.
[90] She was given Exhibits D6, D8, D10 and D12 and she stated that she was
familiar with the said documents. That they were statements from Wesbank
in respect of the 2nd Defendant. She stated that the entry of E24,350.00 in
Exhibit D6 was in respect of a document she had received to make payment
which went through on the 8/7/2008 but was reversed for the shorter period
of 10 months instead of 12 months because of the change of brokers from
Vista to Alexander Forbes. It went through again on the 9/7/2008. She stated
that the entry of E3,331.19 reflected the 2nd Defendant’s instalments without
the insurance amount and that of E5,954.11 reflected the new instalment
which showed that Wesbank had paid to Alexander Forbes. The entry of
E3,154.36 reflects an instalment less the insurance amount.
[91] The entry in respect of Exhibit D8 for E14,316.38 on the 8/7/2008 was
premium for 12 months. She reversed it for the shorter period of 10 months.
She said that the instalment before loading was E3,372.38 and after loading
was E4,914.50.
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[92] The entry in respect of Exhibit D10 was E7,263.00. Before loading the
instalment was E3,729.00 and after loading was E4,510.12. This too was
reversed for a shorter period of 10 months instead of 12 months.
[93] The entry in respect of Exhibit D12 was E9,896.00; before loading the
instalment was E3,562.00 and after loading it was E4,625.61. She confirmed
that the above figures were sourced from a letter(s) from Alexander Forbes.
[94] When she was cross-examined she revealed that she knew the Plaintiff from
the insurance business but that when she went to Alexander Forbes after
getting the call from Vista she did not deal with him in regard to this matter.
[95] Mr. Sibandze tried to elicit her impression about the contents of Exhibit P (b)
in particular about the Plaintiff being accused of acting dishonestly but she
would not be drawn to give her impression except to say that the tone of the
letter suggested that something had happened in a manner that when there is
a change of brokers there are certain agreements which have to be consented
to between the broker and the client. She did concede that the Plaintiff did
not force Wesbank to pay the amounts that she referred to in the transfers and
that the Plaintiff did not present the policies to Wesbank.
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[96] The next witness was Happiness Dlamini (DW4). She testified that she was
employed by the 2nd Defendant and was in charge of finances and
administration. She had been employed for the past ten years. She stated that
the 2nd Defendant’s motor vehicles for the year 2008 had been insured through
Vista brokers and the premiums were paid monthly through a debit order with
Nedbank. She stated that because the payments were made upfront there were
no defaults during the months of February, March, April, May and June 2008.
[97] She said that she knew the Plaintiff. She had seen him for the first time when
he visited Mr. Lewis during 2008. After he left he phoned her and introduced
himself. He asked for a letter of appointment that Mr. Lewis had said he
would leave with her appointing Alexander Forbes as the new broker for the
2nd Defendant. She told him that Mr. Lewis had not left such letter with her.
She said that he phoned several times after that about the issue and ultimately
came physically to the office to collect the letter but she told him that there
was no letter. She informed Mr. Lewis about the matter and left the issue with
him. After that the Plaintiff would phone and she would advise him that there
was no letter.
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[98] She says that on a certain date he came to the office and demanded the letter
from her but she told him that she did not have the letter. She says that his
attitude towards her was as if she was the one frustrating him because he
shouted at her before he left. She informed Mr. Lewis and even though she
did not know how, he eventually got the letter because he phoned her and
asked if Mr. Lewis had left any payment with her and her response was that
there was no payment with her.
[99] He called several times after that like he did with the letter of appointment and
each time she would tell him that she did not have any payment. He came to
the office but she told him that there was no payment. He left and returned
after two days and told her how useless she was that she was a fool and that if
anything happened to the cars she would be liable for all the damages. That
he would talk to Mr. Lewis about her. She told Mr. Lewis about the incident.
[100] On another day the Plaintiff returned and Mr. Lewis was in his office. The
Plaintiff went into Mr. Lewis’s office. Even though she did not know what
they were talking about she could hear them shouting at each other. Her office
is nearby. She saw Mr. Lewis’s office door open and the two men were still
shouting at one another with Mr. Lewis shouting at the Plaintiff to get out of
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his office. The Plaintiff shouted back saying that he would close Mr. Lewis
down; that he would inform the finance banks that 2nd Defendant’s motor
vehicles were not insured; that he would inform Swaziland Royal Insurance
Corporation; that he would make sure that 2nd Defendant’s motor vehicles did
not get insured in future.
[101] She says that Mr. Lewis threw his keys at the Plaintiff and said that he could
have them. That was the last time that she saw the Plaintiff. She did not have
any interactions with him thereafter whether by phone or e-mail. Nor did she
have any interactions with the staff of Alexander Forbes.
[102] She said that the payment he kept asking for was for insurances for the motor
vehicles as he had the appointment letter. She could not recall the amount that
he was demanding. She stated that during that period she did not see any
quotations or correspondence from Alexander Forbes.
[103] When she was cross-examined by Mr. Sibandze, he raised the issue relating
to lack of documentary proof that payments were indeed made during the
period between February to June 2008 in view of the fact that DW3 had
testified that payments were made for a shorter period instead of the full 12
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months. It was put to her that her evidence was a fabrication. She denied this.
She stated that she could not tell the Plaintiff that the 2nd Defendant was up to
date with its monthly premiums because the letter of appointment was done
by Mr. Lewis and she did not know how the cancellation from Vista as brokers
to Alexander Forbes was done.
[104] She stated that during February to March 2008, when the Plaintiff had the
letter of appointment, the 2nd Defendant purchased two new motor vehicles
from Leites. She took the invoices to Vista but discovered that Alexander
Forbes were now the new insurers.
[105] It was put to her that the Plaintiff was introduced to her on the second occasion
and that is when he spoke to her; that he was shocked by her reaction when
Mr. Lewis told her to help the Plaintiff; that she closed her ears with her hands.
Her response was that all the above were not true. It was put to her that the
Plaintiff handed the matter to his junior staff and they followed up. She
responded that it was Plaintiff who phoned and came to 2nd Defendant’s
offices. It was put to her that the Plaintiff only came to 2nd Defendant’s offices
when his staff told him that they were having difficulty in getting payment.
Her response was that she had never spoken to any other member of
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Alexander Forbes except him. It was put to her that her allegations that the
Plaintiff was rude to a client was a fabrication. She denied this and stated he
called her a thing.
[106] She was shown Exhibit D14 and her attention drawn to the 28th July 2008 the
date of termination of the Plaintiff’s mandate. It was put to her that the
incident wherein the Plaintiff was said to have engaged in a shouting match
with Mr. Lewis and threatened to close down his business occurred during
late May to early June 2008. She was asked why Mr. Lewis did not terminate
immediately thereafter instead of waiting until 28 July 2008 to do so. Her
response was that she did not think that it was wrong of Mr. Lewis to wait that
long.
[107] She was asked if she had any personal knowledge whether the Plaintiff had
committed any dishonest act against the 2nd Defendant and she said yes. She
stated that the previous broker used to give the 2nd Defendant quotations which
they would discuss including payments to be made but that did not happen
with the Plaintiff. And that according to her was bad and dishonest. In re-
examination she confirmed that around April – May 2nd Defendant purchased
two new motor vehicles but that neither the Plaintiff nor Alexander Forbes
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informed the 2nd Defendant the premiums in respect of these two motor
vehicles. She also confirmed that when the Plaintiff came looking for
premiums he did not state the amounts that he wanted nor the assets being
covered. The defence closed its case after her evidence.
[108] The Plaintiff’s claim for damages arises out of Exhibit P (b) which was
annexed to the Plaintiff’s summons and marked “A”. The Defendants do not
dispute the authorship of the letter nor that the letter was addressed to the
Managing Director of the Plaintiff’s employer at the time Messrs Alexander
Forbes and copies to Wesbank, Swaziland. The Plaintiff states that Exhibit P
(b) was written with the intention to defame him and injure his reputation.
[109] It has been contended on behalf of the Plaintiff that it is clear from a proper
reading of paragraph 6 of the summons that the Plaintiff was not limiting the
defamatory nature of the allegations made by the Defendants to paragraph 2
of the letter but to the letter in general albeit with emphasis on paragraph 2.
That the Plaintiff stated that portions of the letter in particular paragraph 2 of
same is wrongful and unlawful and defamatory to the Plaintiff.
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[110] The Plaintiff has in my view specified the “stings” of the alleged defamation
in paragraph 6, 6.1, 6.2 and 6.3 of his particulars of claim and is consequently
bound by them because he has not pleaded them in the alternative to a mere
allegation of defamation. See Marais v Steyn en ‘n ander 1975 (3) SA 479
where the headnote reads as follows:
“A plaintiff in an action for defamation who specified the stings of
the alleged defamation in his pleadings is bound thereby (if he does
not do so in the alternative to a mere allegation of defamation) in
the sense that he cannot at the trial fall back on any other
defamatory meaning without amending his pleadings. The
allegation of stings is not merely tautologous and without legal
consequences”.
Clearly the Plaintiff is bound by the specified stings and it is immaterial
whether the court’s attention is directed to portions of the letter or its entire
contents, the Plaintiff is bound by the stings alleged in his summons.
[111] It has further been argued on behalf of the Plaintiff that in the event that the
pleadings gave the impression that it was only paragraph 2 that was the source
of the Plaintiff’s complaint, then the Plaintiff has ex abundante cautela
applied for an amendment to paragraph 6 on the basis that the entire letter and
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various aspects of the letter which the Plaintiff contends are defamatory were
fully canvassed with both the 1st Defendant and Mr. Lewis who was the one
who gave instructions to the 1st Defendant to publish the allegations against
the Plaintiff.
[112] The counter argument with which I agree is that it was clear from the
Plaintiff’s testimony and line of cross-examination that its case is effectively
centered on paragraphs 2 and 4 of the particulars of claim. The gist of
paragraph 2 is the allegation of “an attempt to extort a sum of E80,000.00
from the 2nd Defendant.” The gist of paragraph 4 is the allegation of
“fraudulent mis-representation.”
[113] The Plaintiff complained in his evidence that the letter was defamatory of him
in several respects; the Plaintiff complained that in paragraph 2 thereof it was
alleged that the Plaintiff threatened to extort the sum of E80,000.00 from the
2nd Defendant and verbally attacked the 2nd Defendant’s managing director.
[114] He further states that the defamatory portion is the allegation of extortion. He
also denied having verbally attacked Mr. Lewis and insisted that the
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relationship between the service provider such as Alexander Forbes and its
client did not have scope for him to act in that manner.
[115] The submissions made on his behalf were that the use of the word “extort”
according to the Concise Oxford Dictionary 8th edition meant to “obtain by
force, threats, persistence demands etc”. This Court was further directed
to the meaning ascribed to the term “extortion” by the online Encyclopaedia
Wikipedia which reads as follows:
“Extortion [also called shake down, outwrestling and exaction] is a
criminal offence of obtaining money, property or services from a
person entity or institution through coercion … extortion is
commonly practiced by organized crime groups. The actual
obtainment of money or property is not required to commit the
offence. Making a threat of violence which refers to a requirement
of a payment of money or property to halt future violence sufficient
to commit the offence.”
[116] It was further submitted on behalf of the Plaintiff that in everyday use, the
ordinary person on the street would understand this term in its normal
everyday usage to mean blackmail. That the Encyclopaedia Wikipedia states:
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“In blackmail, which always involves extortion, the extortionists
threats to reveal information about a victim or his family members
that is potentially embarrassing, socially damaging or
incriminating unless a demand for money, property, or services is
met”.
[117] During the hearing of the evidence it became clear that the money’s being
referred to by the Defendants were in respect of the premiums for the
insurance policies being administered by Alexander Forbes on behalf of the
2nd Defendant.
[118] It was contended on behalf of the Plaintiff that the ordinary person reading the
letter as a recipient on behalf of either Alexander Forbes or Wesbank would
not have received that impression. Because if the premiums were due to
Alexander Forbes why would the Defendants need to inform Alexander
Forbes that such money’s were being sought by the Plaintiff.
[119] It was contended by the Plaintiff that the meaning to the reasonable average
person in the contentious letter was that the Plaintiff was trying to obtain the
moneys for himself. Because the letter complained of was written by an
attorney on behalf of the 2nd Defendant, the Court was directed to the legal
meaning or definition of extortion as espoused by the learned author PMA
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Hunt in his work “The South African Criminal Law and Procedure” Vol
2, 1970 page 652 where he states:
“extortion consists in the taking from another some advantage by
intentionally and unlawfully subjecting him to pressure, which
induces him to submit to the taking”.
[120] And that Hunt sets out 5 requirements for the offence of extortion at page 653
which are:
some advantage;
intention;
pressure;
unlawful subjection to pressure and
inducement.
[121] It was contended on behalf of the Plaintiff that there was no evidence that the
Plaintiff stood to gain an advantage from payment of the premiums.
[122] The Defendant’s defence to the claim on the other hand is that the letter in
question is not defamatory to the Plaintiff and the contents thereof are true or
substantially true, and the publication was for the public interest. They have
further submitted that the meaning which the Plaintiff seeks to give to the
word “extort” does not accord with the reasonable man test who is:
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“fictitious, normal, balanced, right-thinking and reasonable person
who is neither hypercritical (such as a sharp witted lawyer) nor
over-sensitive, but is someone with normal emotional reactions.”
[123] And that the reasonable man is a member of the society as a whole and not a
particular group or segment of the society such as a recipient of the letter on
behalf of either Alexander Forbes or Wesbank.
[124] It was argued on behalf of the Defendants that the Compact Oxford English
Dictionary defines the word “extort” as follows:
“obtain something by force, threats, or unfair means .”
That the meaning contained in Wikipedia Encyclopedia is far-fetched and not
applicable to our community. I agree with the Defendants with regard to the
far fetched meaning. That the word “fraudulent” is defined as:
“done by or involving fraud; intended to deceive” and
“misrepresent” “to give a false or misleading account of someone
or something.”
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[125] It is the Defendant’s submission that the Plaintiff’s conduct accords with the
definitions referred to above. I am in agreement with the Defendant’s
submissions herein and turn now to the Defendant’s plea.
[126] The Plaintiff contends that the above Honourable Court should consider the
Defendant’s defence as set out or contained in the Plea. The Plaintiff further
contends that there is no allegation in the Plea that the attempted extortion was
true or in the public interest. It is further contended that “the Defendants must
stand or fall on whether the words complained of are defamatory and whether
there was animus injuriandi.”
[127] I am in agreement with the Defendant’s contentions that the Court should look
at the substantial issues between the parties and not blindly follow the
ipsissima verba of the pleadings. Furthermore, during the course of the trial
the Defendants fully traversed the defence of truth and public interest in
relation to both paragraphs 2 and 4 of the letter complained of. The
Defendant’s witnesses were cross-examined at length in relation to the
truthfulness of these allegations.
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[128] I am further supported by the principle set out in Robinson v Randfontein
Estates GM Co Ltd. 1925 AD 173 in which it was stated at 198:
“The object of pleading is to define the issues; and parties will be
kept strictly to their pleas where any departure would cause
prejudice or would prevent full enquiry. But within those limits
the Court has a wide discretion. For pleadings are made for the
Court, not the Court for pleadings. And where a party has had
every facility to place all facts before the trial Court and the
investigation into all the circumstances has been thorough and as
patient as in this instance, there is no justification for interference
by an appeal tribunal, merely because of the opponent has not been
as explicit as it might have been.”
See also Imprefed (Pty) v National Transport Commission 1993 (3) SA 94
(A) 108.
[129] The letter which forms the basis of the complaint arises out of a mandate given
by the 2nd Defendant to the Plaintiff as insurance broker. It is therefore
apposite to lay a foundation for the defence of truth and public benefit by
setting out the duties of a broker to its client (the insured).
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[130] In Lenaerts v JSN Motors (Pty) Ltd and another [2002] All SA 337 (W) at
paragraph 34 the Court stated the following:
“On general principles it seems clear enough that the position in
South African law is that an insurance broker performs a mandate
on behalf of the insured. Accordingly, he/she owes the insured a
duty of care and skill in the execution of the mandate … This is the
fundamental quality of the general duty owed. It stands to reason
that in order to perform the general duty the broker will have to
take reasonable steps, depending on the circumstances.
35. The nature of the steps to be taken will differ from case to case.
They have not been the topic of much discussion in reported South
African decisions. Some of the steps have been judicially identified
by the English courts (which recognize the same fundamental duty
by the broker) to include the following:
35.1 (i) He must ascertain his client’s needs by instruction
or otherwise.
(ii) He must use reasonable skill and care to procure the
cover which client has asked for, either expressly or by
necessary implication.
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(iii) If he cannot obtain what is required, he must report in
what respects he has failed his client and seek his
client’s alternative instructions.”
[131] The court went on to say, at paragraph 36:
“I consider that in our law, as in English law, the duty to exercise
reasonable care and skill in appropriate cases extends to the duty
to take reasonable steps to elicit and convey material information
both from and to the insured. This includes information about
terms of the policy, which, if contravened, might leave the insured
without cover”.
[132] The legal principles stated above apply with legal force in our jurisdiction.
Furthermore, they underpin the Code of Conduct for Insurance Brokers issued
by the industry regulator (Registrar of Insurance Brokers) under the Insurance
Act, 2005. See paragraph 30 supra wherein the pertinent clauses that apply
herein are set out.
[133] I am persuaded that it is on the basis of the above legal principles that the
Defendants contend that notwithstanding the letter of appointment (Exhibit P
(a) the Plaintiff was under a continuing legal duty to obtain instructions from
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the 2nd Defendant and obtain cover on terms which it (2nd Defendant) had
asked for.
[134] It is from that premise that the Defendants argue and I agree that it is true that
the Plaintiff breached its continuing duty notwithstanding the general mandate
contained in Exhibit P (a). and that by virtue of being regulated under the
Insurance Act 2005, the conduct of insurance brokers is in the public domain.
[135] The Act was promulgated “to make provision for the regulation and
supervision of insurance companies and their intermediaries and for matters
incidental thereto”. An insurance broker is an intermediary in terms of the
Act.
[136] It is on this basis that the Plaintiff’s employer, in particular, had an interest in
knowing about the Plaintiff’s breach of his duties to one of its clients.
Furthermore, Wesbank as a motor vehicle financier and the owner of the
motor vehicles which were the object of the insurance cover obtained by
Alexander Forbes, albeit on terms not approved by the 2nd Defendant, had an
interest in knowing the conduct leading up to the payment which they made.
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[137] With regard to the legal requirement for the defence of truth, Neethling states
that:
“The Defendant does not have to prove the literal truth or all the
statements of fact contained in the defamatory matter. All that is
required is that he must show that the defamatory charges are
substantially – and not literally – true, that is, the sting of the
charge or gist of the defamation is true. Consequently, exaggerated
language does not necessarily preclude justification for the
defamatory publication”.
(Neethling J et al. Neethling’s Law of Personality. (1966) Butterworth’s
Publishers (Pty) Ltd at page 165 – 166).
[138] In Kemp and Another v Republican Press (Pty) Ltd 1994 (4) SA 261 (E)
at 264 the following is reported:
“Mr. Lang, who appeared on behalf of the excipients, conceded
that where the defence of truth and in the public benefit was relied
upon, the statement alleged to be true need not be true in every
minute detail …” per Leach J.
[139] In Argus Printing and Publishing Co. Ltd v Inkatha Freedom Party 1992
(3) SA 579 (A) at page 589F-G Grosskopf JA stated the following:
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“I now turn to the defence of justification, which allows a defendant
to escape liability for publishing a statement which is on the face of
it defamatory, if it appears that it is substantially true, and was
published for the public benefit (I deal later with the onus of
establishing these matters). Here again public benefit can hardly
be determined without having regard to questions of legal or public
policy. The publication of true statements about public officials
and figures is generally for the public benefit”.
See also
(i) Joubert (ed) LAWSA Vol. 7 paragraph 245.
(ii) Johnson v Rand Daily Mails 1928 AD 190 204 – 207.
(iii) Yusaf v Bailey 1964 (4) SA 117 (W) 125 – 6.
(iv) Modern Newspapers (Pty) Ltd v Bill 1978 (4) SA 149 (c) 154.
[140] With regard to the legal requirement for the defence of public benefit Joubert
says:
“whether the publication of a particular defamatory statement is
for the public benefit depends on the subject matter of the
statement, and the time, manner and occasion of the publication.
As a general principle, it is for the public benefit and that the truth
about the character or conduct of individuals should be known…”
See: Joubert (ed) LAWSA Vol. 7 paragraph 247 at 245).
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[141] In the Kemp case Leach J. stated the following:
“In deciding the issue of public benefit the trial court will be obliged
to take into account all relevant facts and circumstances. Inter alia,
on the one hand, it will have to take into account the general
principle that it is for the public benefit that the truth as to the
character or conduct of individuals should be known … while, on
the other hand, having regard that care should be taken to extend
protection to the individual against attacks on his character made
from motives of self-interest by persons who trade for profit in the
characters of other people … and that merely to publish old
scandals for the sake of satisfying the salacious appetite of readers
cannot be justified. Thus, at the end of the day, the trial court will
be obliged to weigh up in the scales all relevant considerations
before deciding whether the publication of the matter per se
defamatory of the plaintiffs was lawful and in the public benefit”
(at page 265 – 266).
[142] Having regard to all the circumstances of the matter, the Plaintiff did not deny
or dispute that Paul Lewis informed him that the 2nd Defendant opted or
preferred to pay its insurance premiums by monthly debit order. The Plaintiff
did not testify whether he misunderstood the instructions or had any difficulty
in implementing them.
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[143] The Plaintiff, at least on more than one occasion, personally visited the office
of the 2nd Defendant to obtain what he called payment of premiums. The
Plaintiff denies, however, that he demanded a cheque payment of E80,000.00
but equally failed to tell the Court the amounts which he claimed were due.
[144] The Plaintiff told the Court that the premiums he wanted the 2nd Defendant to
pay were based on invoices which had been generated by his employers
systems and yet he could not produce these invoices. The Defendants argued
that this failure entitles the Court to draw an adverse inference against him.
In Adendorp Municipality v Setzkorn 1960 (4) SA 85 at 90 the Court said
the following:
“The failure by an onus bearing party to produce material
documentary evidence must clearly stand on the same footing as
the failure to produce a material witness …”
[145] The Plaintiff stated that there was none payment of premiums but did not
produce proof to support this assertion.
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[146] The manner in which Alexander Forbes submitted documentation to Wesbank
which triggered the payment of an amount of E55,825.38 without the
knowledge of the 2nd Defendant is consistent with the evidence of Paul Lewis
and Happy Dlamini that the Plaintiff wanted a lump sum payment of the
insurance premiums, contrary to the instruction to continue with the monthly
debit orders.
[147] I accept the evidence of Paul Lewis and Happy Dlamini with regard to the
Plaintiff’s behavior during his visits to the offices of the 2nd Defendant and
reject that of the Plaintiff’s. The Plaintiff may not have demanded the sum of
E80,000.00 but he did demand payment which was not due. This accords with
the meaning of the word “extort” as contended for by the Defendants, namely
that of obtaining something by unfair means.
[148] In relation to the allegation of fraudulent misrepresentation, the lump sum of
E55,825.38 was calculated by Wesbank and paid in accordance with Exhibits
“D9”, “D11”, “D13” and a fourth letter which was not produced by the
Defendants. Shirley Dlamini testified as to its existence and she was not
challenged. The aforesaid documents were prepared by Alexander Forbes
without any input or consultation with the 2nd Defendant.
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[149] Shirley Dlamini stated in her evidence, which remains uncontradicted, that the
payment of the E55,825.38 to Alexander Forbes was triggered by Exhibits
D9, D11, D13 and the fourth missing letter. The Plaintiff’s claim that
Wesbank unilaterally paid the above amount was not put to the witness and is
not supported by any evidence.
[150] She further stated that on receipt of Exhibits D9, D11, D13 and the fourth
missing letter she approached Alexander Forbes to make enquiries. There she
was attended by one Nelly Rego who confirmed the contents of the letters and
that they were acting as the 2nd Defendant’s brokers. All this was done whilst
knowing that the 2nd Defendant had not been consulted on or consented to the
contents of the letters. In doing so, she clearly deceived Wesbank into
believing that she had the 2nd Defendant’s mandate to arrange cover and
payment on the terms that she did.
[151] Shirley Dlamini was forthright in her evidence that the payment was triggered
by the abovementioned letters and that Wesbank was not acting in terms of
clauses 5.1 to 5.5 of the contracts. The Plaintiff did not put it to her that
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Wesbank was acting in terms of the above clauses. There is no basis on which
the court can disbelieve her in this respect.
[152] The Defendants argue that the letter of appointment did not authorize
Alexander Forbes to arrange insurance cover on the terms that it was obtained.
Significantly, the Plaintiff was instructed to obtain cover paid by way of
monthly debit order.
[153] The Defendants also contend that the use of the word “notwithstanding” in
paragraph 4 of the letter does not detract from the fact that Alexander Forbes
did not have the mandate to act as it did.
[154] The Plaintiff admitted that having delegated the administration of the
insurance portfolio to back office staff, without notifying Paul Lewis, it would
be fair to direct all blame for what transpired to him. He stated that he wanted
to “remain the face of Alexander Forbes”. Having made this admission there
is no basis for claiming that he did not personally do what Nelly Rego or other
employees of Alexander Forbes did.
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[155] In light of the foregoing and in all the circumstances of the case, I hold that
the defence of truth and public benefit has been established on a balance of
probabilities.
[156] In the event the Plaintiff’s claim is dismissed with costs.
Q.M. MABUZA
JUDGE OF THE HIGH COURT
FOR THE PLAINTIFF : MR. M. SIBANDZE
FOR THE DEFENDANTS : MR. M.J. MANZINI
![IN THE HIGH COURT OF SWAZILAND · Tornado Construction (PTY) LTD Vs Takhiwo Business Centre & Another, Civil Case Number 1623/2014. [13] This position was put succinctly and in the](https://static.documents.pub/doc/80x56/5f774dc0002b1e5d14393896/in-the-high-court-of-swaziland-tornado-construction-pty-ltd-vs-takhiwo-business.jpg)
