High Court warning to homeowners in estates who use WhatsApp groups
South African homeowners and residents in estates are being warned that comments made on WhatsApp groups can have serious legal consequences.
This comes after a recent High Court ruling involving a homeowners’ association in Ballito, KwaZulu-Natal.
This is the feedback from Marina Constas, director at BBM Attorneys, who explained that it stemmed from a dispute involving a homewoner whose unit suffered significant water ingress following heavy rains.
According to Constas, the resident became increasingly frustrated with the homeowners’ association and its directors, eventually launching what she described as a campaign against them.
“He started forming a campaign against the directors’ association in Ballito and the homeowners association itself, certain owners in the association,” she said.
The dispute ultimately ended up before the High Court after the association’s directors sought an interdict against the man.
Constas said the purpose of the application was to stop him from “publishing or uttering any false and defamatory statements” on platforms including Facebook and WhatsApp.
The court found in favour of the directors and granted the interdict. “The judge actually issued an interdict and found that the statements were defamatory,” Constas said.
She cited several examples of the comments that appeared on the Ballito estate’s WhatsApp group for residents.
These included statements such as: “My aim is to prevent the looting on the estate of our hard-earned money,” “They are a dishonest bunch,” and “These guys are snakes, these crooks are cleaning us out.”
Constas said the ruling serves as an important reminder that messages shared in WhatsApp groups are not protected simply because they are sent in what users regard as a private forum.
“Saying things on a WhatsApp group, even if you publish one thing to one person, it can be held to be a defamatory statement,” she said.
The respondent argued that the comments were not defamatory and that the group was relatively private. However, the court disagreed.
Far-reaching consequences
She said the judgment should serve as a warning to homeowners who use estate WhatsApp groups to air grievances. “There’s a huge caution which needs to be given to owners on these groups,” she said.
Constas noted that the interdict prevented the respondent from continuing to make allegations relating to ethics, corruption and the management of the estate.
In addition, the court ordered him to pay attorney-and-client costs, one of the most punitive costs orders available.
“The judge awarded an attorney-client cost order against him, which would have been very heavy in the High Court, because of a sort of relentless campaign to malign directors and the association,” she said.
While the ruling does not prevent residents from raising legitimate concerns about the management of their schemes, Constas said there is an important distinction between asking questions and making allegations.
According to Constas, courts will assess whether a reasonable reader would take it that you are demeaning and undermining the integrity and that reputation of the person concerned.
“If you’re imputing certain conduct to somebody, which a reasonable person would think, ‘Oh, they think he’s a crook, or they think she’s a crook’, then that could be defamatory,” she said.
The judgment also extended beyond the reputation of individual directors. Constas said the Judge found that the homeowners’ association itself could rely on common-law protections against defamation.
“The directors could sue the respondent for defamation and the homeowners association could sue him for defamation.”
According to Constas, the court recognised that associations have the right to protect the reputation of the scheme and the actual association.
This highlighted the potentially far-reaching consequences of defamatory comments made in estate WhatsApp groups.
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