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[2011] ZAGPJHC 76
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Malema v Rampedi and Others (25571/2011) [2011] ZAGPJHC 76; 2011 (5) SA 631 (GSJ) (23 July 2011)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 25571/2011
DATE
: 2011-07-23
In the matter between
JULIUS SELLO
MALEMA
.......................................................................
Applicant
and
PIET RAMPEDI AND FOUR
OTHERS
..................................................
Respondent
J U D G M E N T
LAMONT, J
: Due to the urgency of the matter it is impossible
to prepare a fully reasoned judgment.I merely highlight the principal
factors
upon which I rely for coming to the conclusion which I have.
This is an application brought by the applicant for the following
relief:
“2. Interdicting and restraining the respondent from
publishing the
following about and concerning the applicant.
That a businessman deposited R200 000 into an Absa account under
his control as a reward for having facilitated a tender for
his
company.
That the applicant sent the same businessman the Absa account
number of a Short Message Service (SMS) and gave him 24 hours
to
deposit the money.
That the applicant sent another SMS thanking him after receiving
confirmation of payment.
That the applicant uses the money deposited into the account of the
Ratanang Family Trust to fund his lifestyle.
That the applicant receives cash payments worth "thousands of
Rands" from contractors, individuals and politicians
into the
Trust, in exchange for securing them lucrative tenders, protecting
them politically or pushing their political agendas.
That the applicant charges a fee of at least 45 percent of the
total profit made from a tender that he secured for a contractor".
In addition, the applicant sought the costs of the application.
During the course of the argument the applicant indicated that
to the
extent that I was not prepared to grant final relief the applicant
would seek temporary relief pending the finalisation
of the
application on a later date.
The application arises out of correspondence between the respondents
and the applicant. On 21 July 2011 at approximately 15:30
Adriaan
Basson, who describes himself as the Assistant Editor of City Press
sent an email to various persons directing a series
of questions to
which the City Press wished the applicant to respond. The questions
concerned a series of questions relating to
the Ratanang Family Trust
in paragraphs 1 to 6. There was no response by the applicant to
these questions and there is no relief
sought in relation to these
questions.
In paragraph 7 a question was asked in relation to statements which
had previously been made by the applicant that the state could
look
at "my account" as proof that he was poor. The question
asked pertinently by City Press was whether or not the
reference to
"my account" included a reference to the account of the
Ratanang Family Trust and if not to which other
accounts the
applicant had referred. There was similarly no response to this
question and there is similarly no relief sought
in relation to that
question which was posed.
A question numbered 8 was made of the applicant asking him whether
he had declared any monies received by the Trust to the South
African
Revenue Service. There was no response to that question and
similarly there is no relief sought in relation thereto.
The relief is sought in relation to questions 9 to 13 with which I
shall deal later.
There are four further questions numbered 14 to 18 relating to a
farm which had apparently been purchased by the Ratanang Family
Trust
which was identified and which is apparently bond free. There were
questions concerning the farm which were made of the
applicant.
The final question (18) referred to a payment made by the Trust in
respect of the Seshego Baptist Church and question was directed
as to
who the donor of the funds were into the Trust which were used to
build the church.
In respect of questions 14 to 18 there was no reaction by the
applicant and no relief is sought in relation thereto.
The relevant questions which formed the basis founding the
application are the following.
"9. City Press was told by a businessman that he deposited R200
000 into the Absa account of the Trust as a reward for you
having
facilitated a tender for his company. Comment Query.
The same businessman says you personally sent him the Absa account
number on SMS, gave him 24 hours to deposit the money and
sent
another SMS, thanking him after receiving confirmation of payment?
What is your response to the allegation that you used money
deposited into the account of the Ratanang Family Trust to fund your
lifestyle?
What is your response to the allegation that you received cash
payments worth "thousands of Rands" from contractors,
individuals and politicians into the Trust in exchange for securing
them lucrative tenders, protecting them politically or pushing
their
political agendas?
What is your response to the claim that you charge a fee of at least
45 percent of the total profit made from a tender you secured
for
contractors?"
During the course of argument it became apparent that the principal
complaint of the applicant concerning the proposed publication
of the
facts set out supra was the linking of the
causa
for the
deposit as having been the applicant's facilitation of a tender for
his company. During argument it became apparent that
the principal
complaint of the applicant concerning the allegations made in
paragraph 10 did not relate to the fact that a businessman
had been
given an account number at Absa on SMS and had received thanks after
the monies had been deposited. The complaint related
to the action
of the applicant in relation thereto.
Insofar as question 11 is concerned during argument it became
apparent that the complaint was linked to the applicant having formed
the view that the use of the money deposited related to the R200 000
deposited rather than to the general use of monies in the
Trust
i.e.
there was no complaint concerning the applicant's use of monies from
the Trust but rather to the allegation that the applicant
had used
the R200 000 from the Trust to fund his lifestyle. The inference
which the applicant drew in this regard that the query
related to the
R200 000 does not appear in my view to be warranted. During
argument the complaint concerning paragraphs 12
and 13
supra
remained.
The submission was made that these were
prima facie
defamatory and that publication of those allegations should not be
made.
The response of the applicant to the set of queries which were made
in the email which he was sent on 21 July 2011 are contained
within
the letter of the attorneys Mpoyana Ledwaba Inc of 22 July 2011. The
relevant portion of the letter is the following.
"Further to our earlier letter and subsequent further
consultation our final instructions are that we act for and behalf of
Mr Malema our client…..Our client's response to the questions
9 to 13 of your questions is that the information you received
in
respect thereof is false. The publication thereof will defame our
client. Our instructions are to demand from your client
as we hereby
do an undertaking that you will not publish such defamatory
information…"
It is immediately apparent from the response of the applicant that
he was sufficiently apprised of the factual data in the letter
of 21
July 2011 to be able to assess the data and identify the facts to
which the data related. There is no complaint that the
information
which he was given and in respect of which he was to provide his
comment was so vaguely supplied to him that he was
unable to deal
with the allegations which were being made. Hence I find that he was
in a position to properly answer the letter
and properly set forward
facts which would cast a different light upon the issue should he
have wished to do so.
The position is that the applicant well knew what the questions
related to, well was able to deal with them, and stated that
they
were false.
This matter came before me as a matter of extreme urgency and under
severe time pressures. Affidavits were prepared both by the
applicant
and by the respondent. The respondent when it filed the answering
affidavit simultaneously filed an application in the
following terms:
"1. That the applicant be ordered to disclose the interest that
this Trust has (with reference to the Ratanang Family Trust)
directly
or indirectly in companies, corporations or properties and the income
derived from these sources.
That the applicant in his capacity as the sole trustee of the
Ratanang Family Trust furnish to the respondent all bank statements
relating to the said Trust from May 2008 to date hereof.
That the applicant be ordered to state on oath what the sources of
income for the Ratanang Family Trust are.
Cost of suit".
The applicant has not been afforded any opportunity to deal on
affidavit with the application. The application however, highlights
to the applicant an issue with which he could had he wished to have
dealt namely the disclosure of further information concerning
the
issues forming the subject matter of the proposed publication.
The applicant has declined to furnish any further information and
relies on his right in due course to deal with the application.
The
application is not urgent. It does however have a bearing upon the
present application in that it affords the applicant an
opportunity
to make further disclosure should he wish to do so.
In my view and I propose in due course to make the appropriate order
that application should be postponed with the parties being
placed on
appropriate terms to file answering and replying affidavits and in
due course it can be heard.
The respondent in its answering affidavit relied upon the fact that
it had obtained information underlying the questions which
it had
posed to the applicant and hence underlying the proposed publication
(the precise wording of which does not appear). However,
it is
anticipated by the applicant legitimately so because the respondent
has undertaken its defence on this basis that the publication
will
publish the facts and matters relating to the questions which have
been asked.
The respondents have relied upon sources whose identities are not
revealed on the basis that they fear victimisation as the applicant
is a powerful political figure and whether correctly or incorrectly
they fear retaliation.
The pertinent point of the affidavit filed by the respondent is that
they have a source who has disclosed the information to them
which
underlies the questions which were asked and which will found the
publication.
There is corroborative evidence of the existence of the source. I
was given an attenuated transcript of the evidence and I was
informed
by counsel that there is a tape recording of the source's evidence.
The respondent declined to produce except to me alone
both the tape
recording and the transcript. There is however and I accept
counsel's word in this regard the existence of such
evidence. I saw
the attenuated transcript and superficially looked at it.
Superficially it appears to deal with the issues which
are set out in
paragraph 9 to 13 of the request.
The further fact upon which the applicant relies is that the source
is reliable. It tenders as evidence for the reliability of
the
source the fact that various additional matters which are not
contested by the applicant emanated from the source and it has
proved
to be correct. This matter included for example the existence of the
Trust and the ownership by the Trust of the property.
The respondent
accordingly states that it has a proper and reasonable set of facts
upon which the article can be founded.
The test which I should apply to the question of whether or not the
publication should be allowed is set out in
National Media Limited
and Others v Bogoshi
1998(4) (SA) 1196 SCA at 1212G-1213A where
the following appears.
"The publication in the press of false defamatory allegations of
fact will not be regarded as unlawful if upon a consideration
of all
the circumstances of the case it is found to have been reasonable to
publish the particular facts in the particular way
at the particular
time".
The first question which I must answer is whether or not the
allegations of fact made by the respondent in the form of questions
are supported by fact. That involves a consideration of both the
source and the response of the applicant to the questions which
were
made. As I have set out previously the applicant dealt very
superficially with fairly detailed allegations which were made,
allegations which he could understand, and with which, had he wished
to deal in more detail he could have.
There is no requirement upon him to have dealt with it in more
detail, however, it is a factor which I take into account that
he
failed to deal with the matter in more detail than he did.
I weigh that fact against the fact that there is a witness who has
provided detailed information some of which to date has been
proven
to be correct.
While I do not find that the allegations are true, I approach the
whole matter on the basis that there is some substance to the
claims
of the respondent that the source is reliable.
The applicant has a right not to be defamed. I however must take
into account also the right of the public to receive information.
The applicant in the present matter is a high profile public figure.
He has made controversial statements at times. At present
there is a
discussion in the press concerning whether or not his income
justifies his expenses. The question of the income of
the applicant
is topical and is relevant to that issue.
The public is entitled in general terms to have full disclosures
concerning persons who stand in a public position and who are
high
profile personalities, who invite comment about themselves. As was
said in
Argus Printing and Publishing and Company Limited and
Others v Esselins Estate
1994(2) SA 1 (A) at 25B-E by Corbett CJ:
"I agree and I firmly believe that the freedom of expression of
the press is a potent and indispensable instrument for the
creation
and maintenance of a democratic society but it is trite that such
freedom is not and cannot be permitted to be totally
unrestrained.
The law does not allow the unjustified savaging of an individual's
reputation. The right of free expression enjoyed
by all persons
including the press must yield to an individual's right which is just
as important not to be unlawfully defamed.
I emphasise the word
unlawfully for in striving to achieve an equitable balance between
the right to speak your mind and the right
not to be harmed by what
others say about you the law has devised a number of defences…"
The relevant defence is that which I have referred to supra and
which is set out in
Bogoshi
and subsequent decisions.
In the matter of
Lieberthal and Primedia Broadcasting
2003(5)
SA 45 Cachalia J stated (in a judgment which is convenient to cite
having regard to the short time available to me) that
the law of
defamation strikes an appropriate balance between the protection of
freedom on the one hand and the value of human dignity
encompassing
good name and reputation on the other.
The more recent statement on the question of the Constitution and
the principles is to be found in
Midi Television (Pty)LTD t/a ETV
v Director of Public Prosecutions (Western Cape)
2007 (5) SA540
SCA. At paragraph 19 and following, Nugent JA stated:
"19. In summary a publication will be unlawful and thus
susceptible to being prohibited only if the prejudice that the
publication
might cause to the administration of justice is
demonstrable and substantial and there is a real risk that prejudice
will occur
of publication takes place. Mere conjectural speculation
that prejudice might occur will not be enough. Even then publication
will not be unlawful unless the court is satisfied the disadvantage
of curtailing the free flow of information outweighs its advantage.
In making that evaluation it is not only the interest of those who
are associated with the publication that needs to be brought
to
account but more important the interest of every person in having
access to information. Applying the ordinary principles that
come
into play when a final interdict is sought, if a risk of that kind is
clearly established and it cannot be prevented from
occurring by
other means a ban on publication that is confined in scope and in
content and in duration to what is necessary to
avoid the risk might
be considered.
20 Those principles which seem to me to be applicable whenever a
court is asked to restrict the exercise of press freedom for
the
protection of the administration of justice whether by a ban on
publication or otherwise they would also seem to me apply with
appropriate adaptation whenever the exercise of press freedom is
sought to be restrained in protection of another right".
Thereafter the court referred to the well known case of
Hixs
Networking Technologies v System Publishers (Pty)Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
A where at 398 was stated that the respondents should
lay a sustainable foundation for their averments that is the words
which
were accepted as being
prima facie
defamatory. There is
a sustainable foundation for the averments made by the respondents.
I must give consideration to the test which is to be applied where
the person who seeks the restricting on the publication is
a public
figure. Professor McQoid-Mason has been quoted by Jajbhay J
Tshabalala-Msimang & Another v Makhanya & Others
2008
(6) SA 118
(WLD) as Layine down the following test.
"In short it is submitted that the test where a person is a
public figure should be: has he by his personality, status or
conduct
exposed himself to such a degree of publicity as to justify an
intrusion into or public discourse on certain aspects of
his private
life? However non actionable intrusions in his privacy should be
limited to those that are in the public interest
or for the public
benefit so that unjustified prying into personal affairs unrelated to
the person's public life may be prevented".
Applying the test in McQoid-Mason as approved by Jajbhay J it is
apparent that the applicant is a public person and that the intrusion
into his private life would be warranted. The aspect of his private
life which are considered are in the public interest in that
they are
topical and concern attempts to cast light upon claimed inconsistency
in the applicants lifestyle.
The only remaining question is whether having regard to the facts
which are before me which I have set out fully supra the test
in
Bogoshi's
case has been met.
In my view sufficient factors have been set out to establish that
there is a reliable source who has disclosed information. That
information was not dealt with issuably. That too there is no
obligation on the applicant to have dealt with it otherwise than
that
he did, however, it leads to the inference being drawn that the
enquiries which have been made by the respondent meet the
test of
reasonableness.
In my view accordingly the application must fail.
During the course of the hearing I indicated that the proceedings
should proceed
in camera
and I excluded the press from the
hearing. I did so as at that stage it was not clear to me whether or
not the publication of
the matter should be prohibited and there
would have been in my view no point in allowing the press to remain
present and to publish
information which the applicant sought to be
prohibited from being published by the third respondent.
When I formed the view that the publication should not be prohibited
I invited the members of the public including the press who
wished to
return to court to return to it and then I delivered the judgment.
The order which I made that the hearing be
in camera
was
withdrawn prior to that. The documents forming the record are
available as public record to whosoever may wish to consult them.
There remains to be considered the question of the further conduct
of the counter application, which was brought by the respondents.
Before I make any orders, I feel it appropriate to raise the issue of
timing with counsel as to the future conduct of that issue.
I accordingly make the following order.
1. Insofar as the application brought by the applicant, Mr Malema,
against the respondents is concerned:
1.1 that application is dismissed with costs.
Insofar as the counter application brought by the respondents is
concerned:
that application is postponed
sine die
.
the applicant in that application is granted leave within 10 days
to supplement the affidavits and amend the notice of motion
in
whatsoever way it deems appropriate and is advised.
the costs of that application to date are reserved.