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[2016] ZAGPJHC 256
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Mokhoanatse v Maphatsoe and Another (03042/2016) [2016] ZAGPJHC 256 (23 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 03042/2016
In the
matter between:
MOKHOANATSE
EDWARD
MAHLOMOLA
Applicant
and
MAPHATSOE
RAMANTOANA
EMMANUEL
First Respondent
MTHEMBU
JACKSON
Second Respondent
JUDGMENT
SATCHWELL
J:
INTRODUCTION
1.
This is an opposed application for a finding of
defamation and award of damages. The statements made emanate from and
concern former
political comrades who have become political foes.
Accordingly, this judgment must take into account firstly, the
approach to evidence
led by way of affidavit rather than through
witnesses and secondly, the latitude granted to those engaged in
political debate in
the South African democracy.
2.
It is customary that defamation claims are
pursued by way of trial action which allows litigants to themselves
give evidence and
be tested thereon and also to call other persons to
substantiate or challenge evidence which may be in dispute. In the
present
matter the party who alleges he has been defamed represents
himself. His opponents, who are represented, have pointed out the
disadvantages
of pursuing this claim by way of application but he has
declined the opportunity to convert his litigation into a trial
action.
Accordingly, this matter has proceeded (through a
multiplicity of judges of this division) by way of application and it
was heard
on that basis in the opposed motion court.
3.
I have born in mind the now trite admonition as
set out
in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
(1984) 3 SA 623
(A)
insofar as it pertains to disputes of fact. In the present case there
do not appear to be any such disputes of fact. I have
also constantly
advised applicant that I am limited to what is contained in the
papers, that he cannot give evidence and that I
must have regard to
the version set out by respondents where there is a dispute. This he
has understood.
4.
It is now trite that in the interpretation of
written documents (and I would suggest of verbal utterances) the
starting point is,
of course, the language of the document or
utterance. However, it must fall to be construed by its context, the
apparent purpose
to which it is directed and the material known to
those responsible for its production. As has been stressed in
KPMG
Chartered Accountants (SA) v Securefin Ltd & another
2009
(4) SA 399
(SCA) and
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA) and
Dexgroup (Pty) Ltd v Trustco
Group International (Pty) Ltd & Others
2013
(6) SA 520
(SCA), “context, the purpose of the provision
under consideration and the background to the preparation and
production
of the document in question are not secondary matters
introduced to resolve linguistic uncertainty but are fundamental to
the process
of interpretation from the outset”.
5.
Applicant is a veteran of Umkhonto we Sizwe (MK),
the military wing of the African National Congress who left South
Africa as a
young man in September 1976 and who spent some fourteen
years making his contribution to the liberation of this country from
the
forces of the National Party Apartheid regime and sometime
thereafter assisting in the creation and development of our
democracy.
At the time of deposing to their affidavits, first
respondent was the chairperson of the Umkhonto we Sizwe Military
Veterans
Association (MKMVA) and the Deputy Minister of Defence
whilst second respondent was the chief whip of the African National
Congress
(ANC) in the National Assembly and the former National
Spokesperson of the ANC.
6.
The alleged defamations were committed in 2013
when applicant was involved in setting up an alternative association
for veterans
of MK known as South Africa First (SAF) and respondents
were both expressing their views thereon and opposition thereto.
7.
The background to these political developments
was the involvement of applicant in certain management activities of
MKMVA, his belief
that he (amongst others) had uncovered certain
financial irregularities in the affairs of MKMVA, the reporting of
such alleged
irregularities for investigation to a well-known firm of
accountants, the subsequent findings thereof, complaints laid with
the
Hawks division of the South African Police Services (SAPS) and,
what was believed by applicant, to be the SAPS subsequent inaction
against those responsible for the alleged financial irregularities.
This led, several years later, to the formation of SAF which
was
intended to offer representation and assistance to veterans of MK. It
was the formation of this SAF which led to the publication
by both
respondents of what are alleged to be defamations of applicant.
8.
Having regard to the political alignments
of both applicant and respondents, that their disputes had political
character and that
they were all perceived as leaders of oppositional
political entities, I think it is appropriate to note that I am
mindful of that
which was said in both
Argus
Printing and Publishing Co Ltd v IFP
[1992] ZASCA 63
;
1992 (3)
SA 579
(A) and also in
Mangope v Asmal and
Another
1997 (4) SA 277
(T).
9.
In
Argus supra
,
the court was concerned with whether or not a political body could
sue for defamation. The court commented that “political
debate
should be unfettered. People
should
not be restrained in their political utterances by the fear of being
subjected to claims for defamation”. “Mere
debate on
political questions, or expressions of disagreement with an
opponent's political views, would clearly not be actionable.
Even
personal criticisms of a political opponent are not readily
regarded as defamatory”. The court affirmed that which
was said
in an earlier judgment that “courts must not avoid the reality
that in South Africa political matters are usually
discussed in
forthright terms. Strong epithets are used and accusations come
readily to the tongue. I think, too, that the
public and readers
of newspapers that debate political matters are aware of this.”
Part of the rationale for the law’s
reluctance to regard
political utterances as defamatory stems from the “recognition
that right-thinking people are not likely
to be greatly influenced in their esteem of a politician by
derogatory statements made
about him by other politicians or
political commentators”. Accordingly, the Supreme Court of
Appeal endorsed the general
approach that “wide latitude”
should be allowed in public debate on political matters”.
10.
In the subsequent
Mangope
supra
decision, the court said that, although
even politicians can be defamed, they should not be “overhasty
to complain about
slatings against them unless it is really serious”.
A distinction should be drawn between an attack against the “dignity
and reputation of a politician” and “an attack upon his
political views, policies and conduct”. In respect of
an attack
on the latter, the court would be slower to come to the assistance of
a politician. The court cautioned that it was not
accepted that “
the
Constitution legalises character assassination of individuals merely
because they are politicians”.
11.
In the present case I note that applicant was not
a ‘politician’ as understood in the above cases. He
occupied no political
position in any party contesting elections at
that time and he was not a public figure accountable to an electorate
or constituents.
At that time, applicant was one of the former
members of MK, struggle veterans and community leaders in organizing
the entity known
as SAF which he says was to “further the cause
of our people for total emancipation”. That entity did not
compete in
the national elections in 2014, a year after the alleged
defamations.
PUBLICATION
BY FIRST RESPONDENT
12.
On 30
th
April 2013, first respondent in his capacity as Chairman of the MKMVA
issued a three page typed press release entitled ‘
South
Africa First an organ of the counter-revolution – MKMVA’
.
It also announces that it is the “STATEMENT OF MKMVA ON THE
FORMATION OF THE NEW POLITICAL PARTY BY DISGRUNTLED FORMERS
MEMBERS
OF UMKHONTO WE SIZWE”. Accordingly, there can be no doubt as to
the subject matter of the document.
13.
In the main it comprises outdated Sino-Soviet
jargon which enjoys little place in a modern democracy and is
offensive to no one
except those who are political or philosophical
scholars, adherents of democratic principles and discourse and those
who wish
to uphold standards in use of the English language.
14.
I must have regard to the context in which this
statement was composed, prepared and issued. In summary, it may be
regarded as challenging
the right of any entity which comprises
former MK combatants to exist within any organization other than
MKMVA. That challenge
is based on the existence of MKMVA as the only
legitimate voice of ex-combatants within the ANC, that the formation
of any other
entity is a counter revolutionary endeavor, that the
launch of this SAF entity is yet another attempt by enemy forces upon
the
liberation movement, and that there are persons who parade with
fake credentials to betray the struggle in order to form this new
entity.
15.
None of these general averments are the subject
matter of the present complaint. But they do provide the
context to
that which is allegedly the defamatory statements.
Deserter
16.
Paragraph 3 of page 1 states that
“
Eddie
Mokhoanatse and his fellow travelers, have no right to associate the
creation of his power hungry imagination with former
combatants of
the glorious peoples’ army, Umkhonto we Sizwe”.
Paragraph
4 of the same page goes on to state
“
It
is important to note that Eddie Mokhoanatse aka Alex Mashinini,
deserted the ANC in the eighties. While he was deployed
in the
German Democratic Republic, he skipped to the Federal Republic of
Germany attracted by the shine of good life and bright
life, while
the rest of the comrades stood firm in their posts”.
17.
In short,
applicant in this litigation is a ‘deserter’ from his
post as a combatant in MK and his desertion was occasioned
by his
desire to live a life of luxury. He is a soldier who has
deserted his post in a time when his military organization
was at
war. I do not need to take judicial notice of this fact since
the South African Law Reports record cases where members
of the ANC
who had not taken up any military positions were charged with and
convicted of High Treason on the grounds of the armed
state of
affairs between the ANC and the then Government of the Republic of
South Africa.
[1]
It is trite
that, in military codes of conduct, the penalty for desertion by a
combatant from a military posting is frequently
death.
18.
First respondent is clear in his answering
affidavit that he did not know applicant when he was in exile and
first met him during
2010. First respondent gives no indication from
whom he obtained any information about or concerning applicant. There
is no indication
how first respondent ascertained the truth of such
information or that he checked his facts before or after making this
statement.
19.
It is common cause that applicant was deployed
over a period of years to East Berlin (which was then in the German
Democratic Republic),
to Zambia and then to Budapest.
20.
The only area where there is a different
understanding of events is the return of applicant to Berlin. On his
version he returned
to Berlin where his German wife owned a residence
on the very day that the Berlin Wall fell (i.e. 9
th
October 1989) thereby rendering the previous divisions of Berlin no
longer extant. He states in his replying affidavit that “a
few
days after my arrival in Berlin, I visited the office of the ANC and
informed the then Chief Representative, Auria Mokeba,
that I would be
in Berlin to look after my family. I did not hear a word from the ANC
in Berlin thereafter”.
21.
First respondent, in his answering affidavit,
says that “instead of returning to East Berlin the applicant
defied the ANC
and decided to settle with his wife in West Berlin. He
did so without the knowledge or consent of the ANC. In violation of
his
oath of loyalty, the applicant abandoned the ANC. In military
terms he deserted”. First respondent is at pains to point out
that “despite the collapse of the Berlin Wall, the ANC
diplomatic office in East Germany remained intact” and that
the
collapse of the Wall and the unification of East and West Germany
“did not translate into the collapse of the ANC”.
22.
First respondent has no firsthand knowledge of
applicant’s doings or whereabouts. He gives no indication of
how and in what
manner applicant “defied” the ANC. Who
was defied? In what manner? Was there an instruction ignored or
refused? It
appears he does not know.
23.
The only apparent defiance to which he may be
making reference is that applicant decided to “settle in West
Berlin”.
It is difficult to see how this could amount to
defiance of any sort. There is nothing in the papers to suggest that
ANC or MK
cadres were not permitted to live in any suburb of the now
united city of Berlin - at this time one suburb was much like another
– they were both part of a united city without any political or
legal or military obstruction between Mitte, Wedding,
Friedrichschain,
Charlottenburg or Pankow.
24.
In short the averment of “desertion”
is solely based on place of residence in a now united city –
Berlin.
25.
To call a soldier a deserter is a serious
allegation. It goes beyond robust critique of views or attitudes. It
strikes at the very
heart of an individual’s good name and
reputation. It directly alleges cowardice, disloyalty, abandonment of
comrades, and
defiance of authority. In this particular case the
desertion is claimed to have been motivated by personal desire to
enjoy a life
of luxury whilst loyal combatants continued in a life of
austerity.
26.
Applicant’s activities subsequent to his
return to the Republic of South Africa in 1990 do not appear to
support first respondent’s
allegation of “desertion”.
After engaging in business affairs, he was appointed to a position in
the Commissariat of
MKMVA and headed up the 50
th
Anniversary Task Team as well as appointed the Secretary of the
Gauteng Provincial Preparatory Team for the Centenary of the ANC
in
2012. As to these activities there is no dispute but first respondent
seeks to contextualize this involvement as an act of charity
on his
part. But the facts do not support this context. It was not first
respondent who approached applicant to work on the MK
anniversary
task team and neither was it first respondent who appointed applicant
secretary of the Provincial team.
27.
Furthermore, first respondent has chosen not to
deal with or dispute applicant’s averment that he was appointed
Special Advisor
to the then minister of Human Settlement, Mr Tokyo
Sexwale, in early 2012. Minister Sexwale was himself a member of MK,
a veteran,
and a political prisoner sentenced to serve a term of 18
years imprisonment. It would be surprising that he would choose to
employ
a “deserter” from MK or the ANC – whether or
not disciplinary action had been taken against applicant, which it
had not.
Agent
Provocateur
[2]
28.
The press statement issued under the name of
first respondent makes reference on several occasions to “agent
provocateurs”:
a.
“
It is the wider strategy of the Democratic
Alliance and the international monopoly capital to use agents
provocateurs such as these
ones who use their fake credentials
to rewrite the history of liberation struggles of our country”
b.
“
There is no group of agent provocateurs
with the capacity to stand against our forward march to liberate our
people from the painful
past imposed by the acrimonious and vicious
apartheid racist regime”.
c.
“
From the first day this group of agent
provocateurs were never genuine members of our movement. Their
brief has been to infiltrate
and destroy the ANC and the struggles
for our liberation”.
29.
First respondent maintains that these comments
should not be interpreted as meaning that applicant joined the ANC
under instructions
to infiltrate and destroy the ANC. But he gives no
reason why the statement should not be read in this way. It is “from
the
first day” that there was this lack of openness and truth
about membership. That “first day” can only be the day
when the persons about whom first respondent is writing joined the
ANC and MK. It from the very beginning. It was not a slow process
of
disillusionment. According to first respondent, these persons were
deceitful persons acting for and on behalf of others with
the
intention or purpose of sabotage of a political movement – and
they were such from the very beginning.
30.
First respondent now maintains that his comments
were not meant to be interpreted literally because they were uttered
“in
the spirit of robust political debate”. After all, he
says “those in opposition to the ANC are regarded as enemies of
the ANC”. However, he gives no reason why a written document is
composed, created, edited, authored and published and disseminated
but is not meant to be taken to mean what it says. He also offers no
alternative understanding or interpretation or meaning of
this
document.
31.
On a careful reading of the document it is quite
clear that applicant is one of these agent provocateurs. He is the
only person
(apart from the “heroes and heroines of our
struggle”) who is mentioned by name in the three page document.
The entire
document is a response to the formation of SAF which is
described as a “splinter group”. It is the formation of
“the
so called political party” which is yet another
attempt by the enemies of the revolution who are agent provocateurs
using
their fake credentials to rewrite history.
32.
First respondent has attacked the character of
applicant in most important respects. His entire life as a youth and
young man was
bound up in his service to the liberation movement. He
served in Germany, Zambia and Budapest. He fell in love but left his
wife
and family to serve the movement in Zambia. He suffered exile
from home, lived in strange countries where foreign languages were
spoken, and he was at risk from injury or assassination by the agents
of apartheid. He has devoted years of his life to the liberation
of
his country.
33.
First respondent has attempted to negate this
entire period of his life by stating that he was an agent provocateur
from the beginning.
A dishonest man who pretended to be that which he
was not. A man who worked for the apartheid government which
oppressed his own
people and waged war on those (such as the ANC, MK,
SACP, APLA and others) who would not acquiesce in their
subjection. A
man who sought to be accepted by MK and the ANC in
order to betray those organisations. A man whose very purpose in
purporting
to join MK and the ANC was to sabotage or ruin or divert
their programmes and campaigns.
34.
The existence of such persons was widely reported
on in the general press and regrettably features widely in the South
African Law
Reports. They were known as “askaris” or
“impimpi”. From the early 1960’s they gave evidence
in political
trials and frequently met the fate of traitors –
they were assassinated. In the years of the various States of
Emergency
during the 1980’s persons suspected of such
disloyalty and behavior were “necklaced” or, at the very
least ostracized.
The fate of such persons resulted in numerous
prosecutions which are also recorded in the South African Law
Reports. In short,
I do not need to take judicial notice of the fate
of such persons – I just need to read reported judgments in the
law reports
and reference therein to the evidence before the courts.
To be a deserter or an agent provocateur in those times was to
warrant
death.
35.
First respondent writes of those times. He writes
“from the first day” which, in the case of applicant, was
1976. The
activities alleged against applicant were purportedly or
allegedly perpetrated during those particularly horrendous decades
when
persons such as applicant would have been regarded as deserving
of death.
Publication
36.
It is not in dispute that this press statement
was distributed.
37.
The extent of dissemination was sought to be
established by applicant through a bundle of news extracts which
indicate publication
quite far afield. Absent proof of such
distribution and publication, I make no finding thereon (save that it
is common cause that
publication is conceded to have happened). I
consider the nature and extent of publication to be more appropriate
when it comes
to the quantum of damages resulting from the
defamation.
Defamation
38.
This is not part of “robust political
debate”. There is no indication whatsoever that these words
were
debate on political
questions or expressions of disagreement with an opponent's political
views or policies as identified in
Argus
and in
Mangope
supra
. First
respondent has far overstepped the mark. He has attempted character
assassination of applicant merely because applicant
dared to follow a
different path.
39.
To quote a Western colonial capitalist phrase,
first respondent has attempted to “play the man and not the
game”.
40.
I have no doubt that the statements made by first
respondent were defamatory. It was open to first respondent to raise
a number
of defences. Fair comment is not available because first
respondent has not sought to rely on “fairness” at all.
In
fact he has attempted to distance himself from the meaning of that
which he wrote. Truth is hardly appropriate since first respondent
has no firsthand knowledge of any events and relies on no authority
therefore. Public benefit has not been shown or argued and
I can see
no basis that these statements were justified on the basis that
publication thereof was necessary to enhance an open
and democratic
society. In short, no defence (other than freedom of robust political
speech) has been suggested.
41.
I must find that the statements were both
wrongful and unlawful.
PUBLICATION
BY SECOND RESPONDENT
42.
Second respondent was approached by journalists.
He states that, at that time, he was National Spokesperson for the
ANC.
43.
He is reported to have said certain things of and
concerning applicant and which were published in the Star newspaper
(a copy of
which report is attached to the founding affidavit).
Absent any supporting affidavit from the Star reporter or evidence
from that
reporter, I am only able to rely upon the answering
affidavit of second respondent in regard to that which he personally
said.
44.
Second respondent confirms that he spoke to
journalists when approached by them. He has not disputed that the
purpose of and import
of the journalists’ queries concerned an
postulated list of “enemy agents” i.e. persons pretending
to be members
of MK or the ANC who were, in fact, working for the
apartheid regime. The context of his remarks is not in dispute.
45.
The only portion of the report which he confirms
emanated from himself is that he “referred to the applicant as
a sell-out”.
Accordingly, I cannot find that the statements
attributed to second respondent about “izimpimpi” and the
list and “double
agents” can be found to have been said
by him.
46.
Second respondent says he expressed this view and
attached this description to applicant for two reasons: that
applicant “deserted”
from the ANC and that “applicant
and other disgruntled former ANC members formed SAF that made the
applicant a sell-out in
the eyes of the ANC”.
47.
I certainly cannot find that second respondent
could seek to justify his comment on the basis that applicant had
deserted. After
all, second respondent says that he did not know
applicant. Such knowledge as he may have had of applicant’s
past was hearsay
obtained third, fourth and sixteenth hand from
unnamed persons. It little behooves him to elaborate as to whether or
not applicant
had ever been a “deserter” as first
respondent maintains.
48.
As far as second respondent’s now stated
view in his answering affidavit that applicant had turned his back on
the ANC and
the official MK veterans association and therefore
regarded him as a “sell out” in the sense that he had
abandoned
the ANC and its structures as well as its policies and was
therefore betraying all which that organization represented, I note
that this was not the context within which the statement was made.
49.
I do understand the use of the word “sell-out”
to mean that someone has turned his back on former friends and
associates
and therefore has abandoned them and their cause. A
“sell-out” is more than just a person who has changed his
mind
or his allegiances. There is a necessary inference that someone
has sold his soul and is a “sell-out” because this
abandonment or change of heart took place for financial gain or
corrupt purpose or personal advantage. Such a person is not one
who
has sustained a change of heart – such a person is one who has
made an exchange for advantage or gain or some sort. It
would depend
on the context within which such a description was given to know the
exact sense in which applicant was a sell-out.
That context is found
in the portion of the newspaper articles which is not in dispute.
50.
What is reported in the newspaper is that second
respondent said that “Mokhoanatse was talking about the list
(the list of
double agents) because he probably knows what other
people know that he was a sell-out”. This full context clearly
indicates
that the description of sell-out is related to and linked
to those who were double agents i.e. persons who were working for the
apartheid regime/ the National Party government whilst pretending
they were working for the ANC and MK. The sale of one’s
integrity is in exchange for money, safety for oneself or one’s
family, allegiance to the apartheid regime or any number
of the
inducements which our law reports indicate motivated those identified
therein as “impimpi” or “double
agents’.
51.
Although, I do not have an affidavit from
the journalist who wrote this story and he is not a witness in a
trial who can be
cross-examined, second respondent has not disputed
that he was asked about the list of “double agents” and
that was
the context in which he referred to applicant as a
“sell-out”.
52.
I find that second respondent, as National
Spokesperson of the ANC, was not a flustered and discombobulated
person suddenly confronted
with the novelty of the press. He was then
an experienced public figure whose duties were to deal with the
press. He knew what
he was saying. He intended to say what he said.
His statement was wrongful. He defamed applicant.
53.
My comments in the earlier portion of this
judgment are of application to second respondent as well.
54.
I do note that there is no indication that these
remarks were planned unlike those statements made by first
respondent. There is
every indication that second respondent was
approached by the press and made verbal comments in respect to
questions. This must
certainly go towards the question of damages.
DAMAGES
55.
Applicant has sought an apology and claimed a
substantial sum of money. Absent information which can be tested on
the harm inflicted
upon applicant by reason of the defamation which
requires evidence on the nature and extent of publication, the
response thereto
by persons who knew of or knew applicant, the
position of applicant and his family, his employment and financial
situation and
any impact thereon by the defamations and so on I
cannot make a finding on quantum of damages.
56.
I indicated to the parties that, should I find
any defamation, I would order that the matter be referred to oral
evidence. This
matter will be referred to the Deputy Judge President
who will allocate a judge and a date to hear and determine such
evidence.
ORDER
1.
The application against first respondent
succeeds. He has defamed applicant.
2.
The application against second respondent
succeeds. He has defamed applicant.
3.
First and second respondents are to pay the costs
of the application to date, payment to be made jointly and severally,
the one
paying the other to be absolved, on a party-party basis.
4.
Oral evidence is to be heard to determine the
question of the nature and extent of the quantum of the damages (if
any) sustained
by applicant by reason of the defamations perpetrated
upon him by both first and second respondents. Both applicant and
respondents
may give evidence and any other witness whose evidence on
this issue is determined by the presiding judge to be relevant. No
witness
may be called until reasonable notice has been given of the
intention to call such witness as well as a summary of the proposed
evidence of the witness in sufficient detail to allow an assessment
by the presiding judge of the justification for calling the
witness.
DATED
AT JOHANNESBURG 23
rd
AUGUST 2016
____________________
SATCHWELL
J
Applicant:
In Person
Counsel
for Respondent: Adv K Millard.
Attorneys
for Respondent: MV Gwala & Associates Inc.
Dates
of hearing: 17 August 2016.
Date
of judgment: 23 August 2016.
[1]
See
S
v Hogan
1983 (2) SA 46 (W).
[2]
The
Oxford English Dictionary (2
nd
ed) “An agent employed to induce or incite a suspected person
or group to commit an incriminating act”.