Note: The Sunday Times reported this week that Ronald Suresh Roberts had failed, on Tuesday, to convince the Cape High Court "to stop the sheriff from selling goods from his home. The goods were attached after an order was granted to the Sunday Times, which wants to recover R105,102 in interest from the writer who famously sued the newspaper for defamation but lost - and was left with a R1-million legal bill." The newspaper stated that Judge Anton Veldhuizen had dismissed "Roberts's application to stop the execution process. But the fight continues: Roberts has launched another application, disputing his liability to pay the interest."

Below is Roberts' founding affidavit in the matter:

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

Case No.: /2010

RONALD SURESH ROBERTS

and

Applicant

JOHNCOM MEDIA IN VESTMENTS LIMITED

Respondent

FOUNDING AFFIDAVIT

I, the undersigned

RONALD SURESH ROBERTS

hereby make oath and say that:

1. I am an adult male author, residing at 308 Westside Studios, 139 Buitengracht Street, Cape Town. I am the Applicant herein.

2. The contents of this affidavit are within my personal knowledge, unless the context indicates otherwise, and are true and correct. Where I refer to information conveyed to me by others, I specify the source of such information, which I verily believe to be true and correct. Where I make submissions of a legal nature, I do so upon the advice of my legal representatives, which I believe to be correct.

INTRODUCTION & BASIS FOR URGENCY

3. The purpose of this application is to obtain interim relief on an urgent basis, in the form of a stay of a warrant of execution issued out of this division on 3 April 2009 to attach my movable property, pending final determination of an application for a declaratory order that I have discharged the debt constituting the underlying causa of the aforesaid warrant. (A copy of the writ of execution is attached hereto and marked Annexure ‘RSR1'.)

4. This matter is of its nature urgent. Absent a stay of the warrant. my movable property stands to be seized forthwith, notwithstanding (hat I have settled in full the judgment debt that constituted causa for the warrant.

5. I say that such seizure is imminent, because:

5.1. On 22 January 2010, I was notified by the Sheriff for Cape Town that, absent my co-operation, he intended to employ the service of a locksmith to gain access to my residence and remove the - movable assets on the premises without further notice. (A copy of the 21 January notice is attached hereto and marked Annexure "RSR2".)

5.2. I promptly responded to the aforesaid notice by contacting the Sheriff telephonically at around 08h30 on 22 January 2010 to arrange for his attendance on my residence later that day. The Sheriff attached certain of my movable assets, which are listed on the Notice of Attachment of Execution. (A copy of this Notice is attached hereto as Annexure ‘RSR3".) I pause to note that this notice indicates that the Sheriff is required to raise the sum of R 1,000,000.00 of my property, notwithstanding that I paid Respondent an amount of R 1 million in lull and final settlement of their claim for costs as far back as June 2009. The notice contains a handwritten note, indicating the amount of R 105,102.74 in brackets. This note appears to be a reference to the interest amount Respondent alleges remains due and payable.

5.3. In a letter dated 1 7 February 2010, my attorney of record requested clarification as to whether Respondent intended to procure execution of the warrant on Thursday, 18 February 2010. If so, my attorney of record indicated, failing an undertaking that Respondent would refrain from executing the warrant in the interim, I would institute an urgent application seeking a stay of execution of the warrant pending an application on the merits.

5.4. Respondent's attorney responded n an email message on 18 February 2010, confirming he would defer execution of the warrant for a month. However, "if I did nothing in that time", Respondent's attorney of record would instruct his Cape Town correspondent to cause he execution to proceed. (A copy of the email message is attached hereto and marked Annexure "RSR4'.)

5.5. Aforesaid deadline expires on Monday, 22 March 2010. I am advised and verily believe that I will, from that day, be exposed to execution of the warrant.

6. I submit that the allegations contained herein establish that this matter is urgent insofar as I stand to suffer irredeemable loss, for which I could not be compensated in the ordinary course, if the relief sought is not granted.

FACTS

7. This Court granted an order under case number 8677/04, directing that I pay the costs of Respondent herein in an action I had lodged against it.

8. Pursuant to the aforesaid order, the Respondent referred the bill of costs for taxation, which was set down for 22 September 2008.

9. No formal taxation process took place. Respondent's bills were taxed by consent. An amount of R 1 million was allowed.

10. I point out that, but for my consent, the taxation proceedings may well have extended for more than a year. I submit that my co-operation in resolving the taxation expeditiously undermines any claim by Respondent that I have been unduly recalcitrant in addressing its claim.

11. Respondent agreed that the amount of R 1 million could be paid by 31 March 2009, provided that interest run on the debt at the legal rate from 22 September 2008. (A copy of Respondent's letter dated 22 September 2008 is attached as Annexure "RSR5".)

12. Correspondence followed between the parties regarding payment of this amount, which may be summarized as follows:

12.1. 17 April 2009: My attorney proposed payment of R 750,000.00 within three weeks as "full and final payment" of Respondent's claim. (A copy of the relevant letter is attached as Annexure
‘RS R6".)

12.2. 20 April 2009: Respondent rejected the proposal, alleging it had been agreed I would be liable for interest on the sum of R 1 million from date of taxation. Respondent advised it would proceed with steps to execute against my movable property and, in due course, immovable property. (A copy of the relevant letter is attached as Annexure RSR7)

12.3. 21 April 2009: My attorney requested an undertaking from Respondent that, pending the then imminent registration of a bond against my immovable property, it would not proceed with execution. I intended to use such loan amount to settle Respondent's taxed costs. (A copy of the relevant letter is attached as Annexure "RSR8".)

12.4. 24 April 2009: Respondent refused to give such undertaking. (A ) copy of the relevant letter is attached as Annexure "RSR9".)

12.5. 30 April 2009: My attorney once again requested an undertaking that Respondent would stay execution, and furnished a signed letter of guarantee for an amount of R 750,000.00. (A copy of the relevant letter is attached as Annexure ‘RSR 10".)

12.6. 4 May 2009: Respondent refused my attorney's aforesaid request, advising it was preparing to launch an application interdicting me from registering a further mortgage bond until proper arrangements had been made in respect of the outstanding capital and interest amount. Respondent rejected my tender on the basis that 1 would effectively "short-pay" by R 250,000.00 in respect of the capital amount and "would have paid nothing in respect of interest". (A copy of the relevant letter is attached as Annexure "RSR11".)

12.7. 4 May 2009: My attorney advised that there was no good faith basis for Respondent's proposed interdict application, because the anticipated bond amount would cover the additional R 250,000.00. (A copy of the relevant letter is attached as Annexure °RSR12".)

12.8. 5 May 2009: Respondent advised that it would suspend interdict proceedings, provided I furnish them with a bank guarantee for the full capital sum. Alternatively, Respondent demanded immediate payment of the difference in the capital being R 250,000.00. Respondent demanded compliance by 16h00 that day. I pause to note that Respondent's letter was transmitted by telefax at 15h36. (A copy of the relevant letter is attached as Annexure "RSR 13".)

12.9. 5 May 2009: My attorney confirmed his earlier telephonic advice to Respondent that my bank was in fact willing to extend a guarantee in respect of the full capital amount of R 1 million, but that it would take longer than the 20 minutes afforded us to furnish said guarantee, or to deposit an amount of R 250,000.00. Accordingly, my attorney requested that Respondent hold its interdict application in abeyance until they received the aforesaid bank guarantee in two days' time. (A copy of the relevant letter is attached as Annexure "RSR14".)

12.10. 6 May 2009: Respondent confirmed that it would not proceed with interdict proceedings while awaiting the aforesaid bank guarantee. Respondent enquired as to my position in respect of the outstanding interest. (A copy of the relevant letter is attached as Annexure "RSR1 5".)

12.11. On or about 7 May 2009: My attorney furnished Respondent's attorney with a letter of guarantee issued by Invesfec confirming that it held at my disposal the sum of R 750,000.00. (A copy of the letter of guarantee is attached as Annexure "RSRI 6".)

12.12. 7 May 2009: Respondent's attorney advised that it did not accept the aforesaid letter of guarantee, as it did not reflect an instruction that Investec must pay over the stated amount to Respondent.

Respondent's attorney threatened to seek an interdict application in the event that I failed to produce a letter of guarantee to its satisfaction. (A copy of the relevant letter is attached hereto and marked Annexure RSR17".)

12.13. 11 May 2009: My attorney confirmed that the full capital amount was secured, as the bond amount covered such amount. (A copy of the relevant letter is attached as Annexure "RSR18'.)

13. On 26 May 2009, my attorney personally deposited a cheque for an amount of R 750,000.00 into the trust account of Respondent's attorney held at Standard Bank. This deposit was confirmed in a letter of even date, enclosing a copy of the date-stamped bank deposit slip. (A copy of the relevant letter is attached hereto and marked Annexure "RSR19".)

14. Because my attorney's trust account (out of which account the cheque was issued), is held at another bank, namely Nedbank, I am advised and verily believe that in the normal course it could take 10 working days for Respondent's bank to clear the cheque.

15. The 26 May 2009 payment was followed by another payment of R 250,000.00 on 1 June 2009, which was deposited in the same manner as the former payment. In a letter of even date, Applicant's attorney confirmed such payment and provided Respondent's attorney with proof of payment, once again in the form of a date-stamped deposit slip. (A copy of the relevant letter is attached hereto and marked Annexure RSR2O".) The letter stated as follows:

"We confirm that this amount represents the full and final payment of your clients taxed costs in terms of the Taxing Master's Allacatur dated 22 September 2008".

16. In a letter dated 2 June 2009, Respondent's attorneys confirmed receipt of Applicant's payment of R 1 million ‘din respect of the taxed costs". However, it alleged that a further amount of R 105,102.73 remained outstanding in respect of interest. (A copy of the relevant letter is attached hereto and marked Annexure "RSR21".)

17. As noted previously, without further notice, the Sheriff for Cape Town judicially attached certain movable property at my residence on 22 January 2010. (A copy of the Notice of Attachment in Execution is )attached above as Annexure "RSR3".)

18. I was subsequently notified by the Sheriff for Cape Town that, failing my response, he intended to employ the service of a locksmith to gain access to my residence and remove the movable assets on the premises without any further notice. (A copy of the relevant notice is attached above as Ann exure ‘RSR2'.)

19. In a letter dated 26 January 2010, my attorney advised Respondent that the attachment was unlawful, inter alia, because the notice of attachment (Annexure RSR3" above), states that he is required to raise an amount of R 1 million, notwithstanding that I had already paid that amount in full and final settlement of Respondent's claim. My attorney demanded that Respondent instruct the Sheriff to desist from taking any further steps in execution against my movable and immovable property, and to release all my assets under attachment. (A copy of the relevant letter is attached hereto and marked Annexure ‘RSR22".)

20. In a letter dated 28 January 2010, Respondent's attorney advised that notwithstanding my attorney's demand, he would instruct the Sheriff to arrange a sale. (A copy of the relevant letter is attached hereto and marked Annexure "RSR23".)

21. On 2 February 2010, my attorney responded, reiterating that my payment of R 1 million was in full and final settlement of Respondent's claim. He pointed out, that if Respondent wished to reject my tender it should have returned the amount thus paid. (A copy of the relevant letter is attached hereto and marked Annexure "RSR24".)

22. In a letter dated 8 February 2010, Respondent's attorney demanded payment of an amount of R 105,102.73 in respect of interest within 7 days, failing which he would cause the removal of my assets. (A copy of the relevant letter is attached hereto and marked Annexure "RSR25".)

23. It was only as a result of my attorney's letter of 17 February 2010, advising of my intention to institute urgent proceedings to stay execution of the warrant that Respondent agreed to postpone execution of the warrant by one month. (See Annexure "RSR4".)

DECLARATORY RELIEF

24. I am advised and verily believe that in the circumstances, I am entitled to a declarator to the effect that the judgment debt has been discharged and an order setting aside the warrant ofexecution.

25. That is because the claim must be deemed to have been compromised That is by virtue of Respondent's failure to reverse payments in the amount of R 750,000.00 and R 250,000.00, respectively, in the face of being expressly advised that such payments were made in full and final settlement of my obligation in respect of Respondent's taxed costs. Respondent's attorney of record had ample time and opportunity to instruct its bank to suspend or reverse clearance of the two relevant cheques. As noted, neither would in the ordinary course have cleared by 1 June 2009, when Respondent's attorney was advised of Applicant's terms of payment.

INTERIM RELIEF

26. I am advised and verily believe that this Honourable Court has the power to suspend the execution of the warrant of execution issued out of this division on 3 April 2009 to attach my movable property, pending until the final determination of my application for declaratory relief.

27. The interest of real and substantial justice warrants such a stay. Put differently, failing suspension of the warrant of execution pending determination of my application for declaratory relief, an injustice will be occasioned.

28. Absent stay of the warrant of execution, my movable property stands to be sold at public auction, notwithstanding the fact that the underlying debt has been extinguished. In the event that I am vindicated in the application for declaratory relief, the sale in execution will have been wholly unnecessary.

29. Moreover, because many of my household effects to be sold at public auction hold sentimental value, I will be unable to replace such items. Examples of items of sentimental value include:

29.1. Matching antique benches purchased as birthday presents by my deceased mother.

29.2, A set of eight Bauhaus era leather chairs, which are irreplaceable.

29.3. Several other items of furniture and miscellaneous effects that I have owned for a considerable period of time and have formed part of my household at various residences within South Africa and the rest of the world.

29.4. A personal library of approximately 1,500 books, accumulated over more than two decades, many of which, being out of print, are for all practical purposes irreplaceable. (Because I am an author, these volumes form, so to speak, the tools of my trade.) I would add that a fair proportion of the books are personally dedicated or inscribed by the authors in their own hands. They furthermore contain marginal annotations that constitute my work produced over many years.

30. It is relevant to point out that the list compiled by the Sheriff (see Annexure "RSR3"), the expected value àf the totality of these effects is no more than a few thousand rand. I submit that it is self-evident that the non-monetary value of these effects to myself greatly exceeds the relatively insignificant value of the items as security for Respondent's claim.

31. Moreover, the sale in execution of my effects will constitute an irreparable injury to my constitutionally protected rights to property and dignity.

32. It is relevant in that regard that the litigation that gave rise to the allacatur was keenly contested and widely ventilated in the media, notably in a Sunday newspaper owned by the Respondent. The conduct of the latter as set forth above, verges on abuse of the process of this Court to satisfy animus against myself. The threat to my dignity and property that is posed by the imminent execution must be understood against that background.

33. The balance of convenience thus clearly favours granting of interim relief. I point out further that:

33.1. Respondent has received an amount equal to the full capital amount of the taxed costs, i.e. R 1 million, which constitutes approximately 90% of the amount to which Respondent is entitled to even on its own account.

33.2. In the event that I am successful in seeking a declarator to the effect that I have discharged the debt underlying the warrant of execution, I will be unable to replace those movable possessions of sentimental value sold at the sale in execution.

34. The inconvenience of being dispossessed of my movable property without adequate recourse in the event that my application for declaratory relief is successful outweighs Respondent's potential inconvenience in that its enforcement of its alleged claim for interest is delayed in the interim.

35. I am advised and verily believe that in a case such as the present, i.e. an application for leave to stay execution of a warrant pending a challenge of the underlying debt, a court is not required to lake the merits of the underlying attack on the causa of the warrant into account. As a matter of law, it suffices that there is a reasonable possibility that the causa underlying the warrant will be vitiated.

CONCLUSION

36. in the premises, there being no adequate alternative remedy, I submit that I am entitled to the relief prayed for in the Notice of Motion.

RONALD SURESH ROBERTS

March 17 2010

(Transcribed from the PDF: As such there may be small errors in the text.)

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