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[2021] ZASCA 4
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United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others (1032/2019) [2021] ZASCA 4; [2021] 2 All SA 90 (SCA) (13 January 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1032/2019
In
the matter between:
UNITED DEMOCRATIC
MOVEMENT FIRST
APPELLANT
BANTU
HOLOMISA
SECOND APPELLANT
and
LEBASHE
INVESTMENT GROUP (PTY) LTD FIRST
RESPONDENT
HARITH GENERAL
PARTNERS (PTY) LTD
SECOND RESPONDENT
HARITH FUND
MANAGERS (PTY) LTD THIRD
RESPONDENT
WARREN GREGORY
WHEATLEY
FOURTH
RESPONDENT
TSHEPO DUAN
MAHLOELE FIFTH
RESPONDENT
PHILLIP
JABULANI MOLEKETI SIXTH
RESPONDENT
Neutral
citation:
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
(1032/2019)
[2021] ZASCA 4
(13 January 2021)
Coram:
CACHALIA,
MBHA, MOLEMELA and MAKGOKA JJA and SUTHERLAND AJA
Heard:
16
November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, and by publication
on the
Supreme Court of Appeal website and release to SAFLII. The time and
date for hand down is deemed to be 09h45 on 13 January
2021.
Summary:
Interim
interdict – appealability – whether there is an absence
of irreparable harm – per majority judgment: interests
of
justice do not require that appeal be entertained - per minority
judgments: interests of justice do require appeal to be entertained.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Tlhapi J sitting as court of
first instance):
1.
The appeal is struck from the roll.
2.
The appellants, jointly and severally,
shall bear the respondents’ costs including the costs
of two
counsel.
JUDGMENT
Sutherland AJA
(Cachalia and Mbha JJA concurring):
Introduction
[1]
When this appeal was heard on 16 November 2020, the matter was struck
off the roll. The reason was that
the order of the Gauteng Division
of the High Court, Pretoria (the high court) against which the appeal
lay, was not appealable,
notwithstanding leave to appeal having been
granted by the high court. The order was an interim interdict pending
an action to
be instituted by the respondents. The crux of the
controversy is whether the order was ‘final in effect’
and was therefore,
indeed, appealable, or, even if its true character
was interim, the interests of justice warranted an appeal against it
to be entertained.
[2]
The circumstances giving rise to the litigation have their origin in
a letter sent on 26 June 2018 to
the President of the Republic by the
appellants, the United Democratic Movement (UDM), a political party,
and its leader Mr Bantu
Holomisa. The letter contained allegations
that the several respondents,
[1]
who are in business, had conducted themselves unlawfully in various
ways in relation to the Public Investment Corporation (PIC).
A
request was made to the President to cause these allegations against
the respondents to be investigated. The letter was also
published to
the world on the UDM website. The respondents contend the remarks
were defamatory. As a result, the respondents sought
interim relief
pending an action for damages for the alleged defamation.
The orders a quo
[3]
On 16 July 2018, Tlhapi J, in the high court granted an interdict
against the appellants forbidding
the repetition of certain remarks
they had made publicly about the several respondents.
[2]
The order was in these terms:
‘
1.
Pending the determination of an action to be instituted by the
applicants against the
respondents for damages for defamation and
injuria, and the relief ancillary thereto (“the action”),
the respondents
shall:
1.1
forthwith
cease and desist from making or repeating any allegations (whether
orally or in writing) against the applicants (or any
of them), and/or
from defaming or injuring them in their dignity, in any further
publications or broadcasts in any form, including
but not limited to
internet posts, articles, letters, media interviews, “Twitter”
and other social media posts and
the like, which are the same as, or
similar to, or which negatively reflect upon the applicants (or any
of them) arising from or
based on, any of the allegations or
statements appearing in the letter dated 26 June 2018 addressed by
the second respondent to
the President of the Republic of South
Africa, Mr C M Ramaphosa (a copy of which is annexed to the founding
affidavit therein and
marked “WGW4”, referred to herein
as “the letter”).
1.2
within
three (3) hours of granting of this order, remove and delete the
letter and, in so far as it lies within their power, any
posts
regarding the letter (or any of its contents) or responses thereto,
from the first respondent’s website (
www.udm.org.za
),
from the first respondent’s Twitter account (@UDmRevolution),
and from the second respondent’s Twitter account
(@BantuHolomisa);
2.
Unless the applicants institute the action within one month of the
date of this
order, such order shall lapse and be of no further force
or effect.
3.
. . .
4.
The respondents are ordered to pay the costs of this application on
the scale
as between party and party . . . including the costs
attendant upon the employment of two counsel.’
[4]
Thirteen months later, on 8 August 2019 Tlhapi J heard the
application for leave to appeal and on 26
August 2019 granted leave
to appeal to this Court. The rationale for the order was expressed
thus:
‘
I
am not persuaded that the applicants would have prospects of success
in terms of section 17(1)
(a)
(i)
of the [Superior Courts] Act or that section 96 of the Constitution
was applicable to Mr Moleketi after he resigned as Deputy
Minister
and chairperson of the PIC despite Mr Mpofu’s contention that
an incorrect authority had been cited by Mr Berger.
I am [sic] that a
conflict of interest would not be applicable to Mr Mahloele.
Furthermore, I am also of the view that the privilege
afforded by
section 58 of the Constitution is confined to National Assembly and
not beyond it.
Despite the above
view, Mr Mpofu and Mr Nguckaitobi made compelling submissions why
this interim order was appealable and why leave
to appeal should be
given in terms of section 17(1)
(a)
(ii) of the Act. The general
rule as correctly submitted by Mr Berger was that an interim
interdict was not appealable for reasons
in the authorities he relied
upon, in
Cipla supra
at paragraph [19] Rogers AJA does remark
that such orders are not “
usually appealable”
which
probably makes room for appealability in certain exceptional
circumstances, and that for his reasons such consideration did
not
arise in that matter. In this matter the question is,
is it in the
interest of justice and do special circumstances exist for a court of
appeal to determine whether the interim order
has an element of
finality which would prejudice the applicants (a political party and
Mr Holomisa leader of the UDM) or does the
interim order have the
potential to prejudice them by preventing them to exercise their
rights as protected by sections 16; 19
and 55 of the Constitution.
Mr Mpofu reiterated
the view that Mr Holomisa’s letter to the President was not
defamatory and, he contended that the interim
order had been
prejudicial to the applicants because it had curtailed the
Constitutional right as guaranteed by sections relied
upon to engage
in political activity. It was in the interest of justice to have
certainty on the protection afforded by the Constitution
to political
parties and members of parliament. On the issue of appealability he
relied on
Tshwane City v Afriforum
2016 (6) SA 279
(CC) at
paragraph [40] where Chief Justice Mogoeng stated:
“
The
common law test for appealability has since been denuded of its
somewhat inflexible nature. Unsurprisingly so because the common
law
is not on par with but subservient to the supreme law that prescribes
the interest of justice as the only requirement to be
met for the
grant of leave to appeal.”
The
Chief Justice cited with approval the principle as set out by
Moseneke DCJ in
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012
(6) SA 233
(CC). These authorities establish that the traditional
principle on appealability of interim and interlocutory orders at
common
law has in certain circumstances evolved and that where the
interests of justice demand, leave to appeal should be considered.
Although this was stated in matters before the Constitutional Court,
on issues of appeal before that court,
I
see no reason why considerations in the interests of justice should
not apply to the lower courts when determining the appealability
of
an interim order, which is said affect the rights of parties such as
the applicants to engage in political activity
.
Leave in these circumstances should be granted and I am of the view
that the issues raised are of importance and for purpose of
certainty
the matter should be considered by the Supreme Court of Appeal.’
(Emphasis added.)
[5]
An application for leave to appeal is regulated by
s 17(1)
of the
Superior Courts Act 10 of 2013
which provides:
‘
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)
(i) the
appeal would have a reasonable prospect of success; or
(ii) there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under
consideration;
(b)
the
decision sought on appeal does not fall within the ambit of
section
16(2)
(a)
;
and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.’
[6]
We were told from the bar that the action for defamation has since
been duly instituted and that the
pleadings in that action have
closed. The parties are engaged with the further preparatory steps
which will entitle them to apply
for a trial date.
The law on the
appealability of an order of court
[7]
What is required to render an order appealable is well trodden
judicial turf. It is to the law on appealability
in this regard we
now turn.
[8]
Perhaps the definitive pronouncement is that in
City
of Tshwane Metropolitan Municipality v Afriforum and Another
.
[3]
In that matter the question was whether an interim order granted in
the high court to prevent the city council from changing street
names
pending a review of its decision to do so, was appealable. The
interim order implicated an inhibiting of an organ of state
from
fulfilling its statutory functions and this factor was crucial in
determining, on the facts, whether the interests of justice
required
an appeal. Nevertheless, the Chief Justice’s remarks on
appealability and the criterion of the interests of justice
are of
wider import:
‘
The
appealability of interim orders in terms of the common law depends on
whether they are final in effect. . .
The
common law test for appealability has since been denuded of its
somewhat inflexible nature. Unsurprisingly so because the common
law
is not on par with but subservient to the supreme law that prescribes
the interests of justice as the only requirement to be
met for the
grant of leave to appeal. Unlike before, appealability no longer
depends largely on whether the interim order
appealed against has
final effect or is dispositive of a substantial portion of the relief
claimed in the main application. All
this is now subsumed under the
constitutional interests of justice standard. The over-arching
role of interests of justice
considerations has relativised the final
effect of the order or the disposition of the substantial portion of
what is pending before
the review court, in determining
appealability. The principle was set out in
OUTA
[
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012]
ZACC 18;
2012
(6) SA 223 (CC)
;
2012
(11) BCLR 1148
(CC) para 50], by Moseneke DCJ in these terms:
“
This
court has granted leave to appeal in relation to interim orders
before. It has made it clear that the operative standard is
the
“interests of justice”. To that end, it must have regard
to and weigh carefully all germane circumstances. Whether
an interim
order has a final effect or disposes of a substantial portion of the
relief sought in a pending review is a relevant
and important
consideration. Yet, it is not the only or always decisive
consideration. It is just as important to assess whether
the
temporary restraining order has an immediate and substantial effect,
including whether the harm that flows from it is serious,
immediate,
ongoing and irreparable.”
.
. .
What
the role of interests of justice is in this kind of application [ie
interdicting an organ of state from performing its functions]
again
entails the need to ensure that form never trumps any approach that
would advance the interests of justice. If appealability
or the grant
of leave to appeal would best serve the interests of justice, then
the appeal should be proceeded with no matter what
the
pre-Constitution common law impediments might suggest. . .
Consequently,
although the final effect of the interim order or the disposition of
a substantial portion of issues in the main application
are not
irrelevant to the determination of appealability and the grant of
leave, they are in terms of our constitutional jurisprudence
hardly
ever determinative of appealability or leave. . . .’
[9]
Earlier, in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[4]
the Constitutional Court had dealt with a dispute concerning the
Minister of Trade and Industry promulgating regulations affecting
anti-dumping duties. The appellant had composed recommendations to be
submitted to the Minister to abolish the restraints. The
respondent,
a manufacturer, obtained an interim order interdicting the submission
of the recommendations. Several considerations
led to the successful
appeal. In the course of addressing the controversy about whether the
order was appealable, Moseneke DCJ
remarked:
[5]
‘
.
. . the jurisprudence of the Supreme Court of Appeal on whether a
“judgment or order” is appealable remains an
important consideration
in assessing where the interests of
justice lie. An authoritative restatement of the jurisprudence is to
be found in
Zweni
v Minister of Law and Order
which has laid down that the decision must be final in effect
and not open to alteration by the court of first instance;
it must be
definitive of the rights of the parties; and lastly, it must have the
effect of disposing of at least a substantial
portion of the relief
claimed in the main proceedings. On these general principles the
Supreme Court of Appeal has often held
that the grant of an interim
interdict is not susceptible to an appeal.
The
“policy considerations” that underlie these principles
are self-evident. Courts are loath to encourage wasteful
use of
judicial resources and of legal costs by allowing appeals
against interim orders that have no final effect and
that are
susceptible to reconsideration by a court a quo when final relief is
determined. Also allowing appeals at an interlocutory
stage would
lead to piecemeal adjudication and delay the final determination of
disputes.
After
Zweni
, the
Supreme Court of Appeal has recognised that the general rule against
piecemeal appeals could conflict with the interests
of justice in a
particular case. Howie P, writing for a unanimous court in
S
v Western Areas
, was required to decide, in an application
for leave to appeal in a criminal matter, whether the dismissal of an
objection
to an indictment was appealable in terms of s 21(1) of the
Supreme Court Act. After surveying its case law on the
appealability
of a “judgment or order” in civil and
criminal cases and after referring to the interests of justice test
set by this
Court in
Khumalo v Holomisa
, he concluded
that the general principles enunciated in
Zweni
are
neither exhaustive nor cast in stone. He further held that:
“
(I)t
would accord with the obligation imposed by s 39(2) of the
Constitution to construe the word “decision” in s 21(1)
of the Supreme Court Act to include a judicial pronouncement in
criminal proceedings that is not appealable on the
Zweni
test
but one which the interests of justice require should nevertheless be
subject to an appeal before termination of such
proceedings. The
scope which this extended meaning could have in civil
proceedings is unnecessary to decide. It need hardly
be said
that
what
the interests of justice require
depends
on the facts of each particular case.”
More
recently, in
Philani-Ma-Afrika v Mailula
, the Supreme
Court of Appeal had to decide whether an order of the high court
which puts an eviction order into operation pending
an appeal was
appealable. In a unanimous judgment by Farlam JA, the Court held that
the execution order was susceptible to appeal.
It reasoned that it is
clear from cases such as
S v Western Areas
that
“what is of paramount importance in deciding whether a judgment
is appealable is
the interests of justice
.”
As
we have seen, the Supreme Court of Appeal has adapted the general
principles on the appealability of interim orders, in my respectful
view, correctly so, to accord with the equitable and the
more context-sensitive standard of the interests of justice
favoured
by our Constitution. In any event, the
Zweni
requirements
on when a decision may be appealed against were never without
qualification. For instance, it has been correctly
held that in
determining whether an interim order may be appealed against regard
must be had to the effect of the order rather
than its mere
appellation or form. In
Metlika Trading Ltd and Others v
Commissioner, South African Revenue Service
the Court held,
correctly so, that where an interim order is intended to have an
immediate effect and will not be reconsidered
on the same facts in
the main proceedings it will generally be final in effect.
Lastly,
when we decide what is in the interests of justice, we will have to
keep in mind what this Court said in
Machele and Others v
Mailula and Others
. In that case, the Court had to decide whether
to grant leave to appeal against an order of the High Court
authorising execution
of an eviction order pending an appeal. In
granting leave to appeal, Skweyiya J, relying on what this Court
held in
TAC (1)
, reaffirmed the importance of
“irreparable harm” as a factor in assessing whether to
hear an appeal against an
interim order, albeit an order of
execution:
“
The
primary consideration in determining whether it is in the
interests of justice for a litigant to be granted leave to
appeal
against an interim order of execution is, therefore, whether
irreparable harm would result if leave to appeal is not granted”.’
(Emphasis added.)
Analysis
[10]
Applying these norms to the facts relevant to the order in this
matter, it may be asked how might the interests
of justice be
thwarted if the interim order stands until trial and, potentially, is
then held to have been inappropriate because
either there was no
defamation after all, or that the appellants conduct is held to be
justifiable?
[11]
Whether or not a cogent debate can be conducted about the character
of the allegations being defamatory, is at
this stage, an open
question. The very point of the letter could not avoid being
contentious if it was to serve any useful purpose.
Indeed, the
appellants’ case is that the purpose was to report serious
unlawful conduct and demand a public enquiry. Whether
or not the
contentious remarks in the letter are indeed defamatory of the
respondents is a matter to be decided by the trial court
in due
course, and of course, were they to be held by that court, to be
defamatory, the question of whether or not the appellants
were
justified in making them will be decided. The appellants advance a
thesis, which they contend, satisfies the legal requirements
for
justifiability. However, neither in the court a quo, nor in this
Court, in these proceedings, was it, and is it, necessary
to express
a firm view about whether the allegations are indeed defamatory and
whether the appellants have a proper justification
for making them.
[12]
Before Tlhapi J, a quo
,
the question to be decided was simply
whether,
prima facie
, the appellants’ published remarks
were defamatory and whether an interim interdict inhibiting the
repetition of those remarks
pending a trial was appropriate. The
order granted cannot plausibly be interpreted as having ‘final
effect’ in any
accepted sense of that concept. In
Zweni v
Minister of Law and Order
, Harms JA held:
‘
A
“judgment or order” is a decision which, as a general
principle, has three attributes, first, the decision must be
final in
effect and not susceptible of alteration by the Court of first
instance; second, it must be definitive of the rights of
the parties;
and, third, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the
main
proceedings
(Van
Streepen & Germs (Pty) Ltd
case
supra
at
586I-587B;
Marsay
v Dilley
1992
(3) SA 944 (A)
at
962C-F). The second is the same as the oft-stated requirement that a
decision, in order to qualify as a judgment or order, must
grant
definite and distinct relief
(Willis
Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another
1992
(4) SA 202 (A)
at
214D-G).’
[6]
[13]
The decision in
Tau
v Mashaba
[7]
was invoked in support of the contention that the order of Tlhapi J
is appealable. That contention is misplaced. Rather, the order
of
Thlapi J can be contrasted with the order granted in
Tau
v Mashaba.
The
relevant facts were that Mr Tau, a member of the African National
Congress (ANC) and a former Mayor of Johannesburg, in a public
meeting, made disparaging remarks about Mr Mashaba, a member of the
rival Democratic Alliance who was the then serving Mayor and
Mr Tau’s
immediate successor. Mr Tau made remarks, among others, that Mr
Mashaba had indecently accused women in the Johannesburg
city
hierarchy of prostituting themselves to get their jobs from the ANC
and also that Mr Mashaba, a Black man, wished that he
was not Black.
[14] Mr
Mashaba was aggrieved and sued for an order in these terms:
‘
Pending
the institution of an action for defamation and damages, which must
be instituted against the first respondent within 60
days of the
granting of the order herein:
1. Ordering
the respondents:
1.1 forthwith
to retract the offending remarks;
1.2 to
refrain from repeating such and/or similar remarks concerning the
applicant in future;
1.3 to
issue an unconditional apology to the applicant framed along agreed
terms; alternatively terms to be imposed by the
court;
1.4 to
ensure the widest possible publication of the retraction and/or
apology envisaged in 1.1 to 1.3 above.’
[8]
[15] An
order as prayed was not made. Instead, an order was made as follows:
‘
(a)
It
is declared that the statement made by the 1
st
respondent on 28
th
August 2016 is defamatory of the applicant.
(b)
The
1
st
respondent is interdicted and restrained from repeating the
statement, or statements to the same effect.
(c)
All
other issues relating to relief arising in the present application
are deferred for decision in the pending action instituted
by the
applicant against the 1
st
respondent for damages for defamation.
(d)
The
1
st
respondent is directed to pay the costs of the application, including
the costs of two counsel.’
[9]
[16]
Plainly, the declarator in (a) and the interdict in (b) are
undoubtedly final in effect, unlike the order made
by Tlhapi J in
this matter. The order in
Tau
v Mashaba
was therefore unquestionably appealable. Moreover, the question of
appealability was not argued, and thus the decision is unhelpful
to
resolve the controversy in this case.
[17]
As regards other characteristics of the order granted by Tlhapi J, it
is notable that the effect of the high court’s
order prevents
merely a repeated publication of the allegations for a time, but not
permanently. Significantly, the contentious
remarks were already in
the public domain. The order, for this reason, cannot be described as
a ‘gagging order’. The
appellants were successful in
getting their message out to the public. Moreover, although only of
marginal relevance, the President
responded positively to the letter
and caused the issues raised in it to be examined by the commission
of enquiry, chaired by retired
Justice Mpati, which had already been
appointed to investigate other supposedly undesirable activities
concerning the PIC. The
treatment by that commission of the
allegations is not information on record before this Court.
[18]
The rationale for the grant of leave to appeal accepted by the court
a quo, as cited above, was again embraced
by the appellants in
argument before this Court.
[10]
It was contended that the interests of justice required an appeal
against the order to be entertained. The thesis advanced was
twofold.
First, it was alleged that that certain constitutional rights were
infringed by the order. These were the rights of freedom
of
expression in s 16(1),
[11]
and
political rights as framed in s 19(1)
(c)
[12]
‘to campaign for a political party or cause’. Second, the
lengthy elapse of time – 27 months which had passed
between the
grant of the interim interdict and the hearing before this Court –
demonstrated, so the argument ran, a type
of ‘final effect’
because during this period they could not ‘advocate’ for
the cause of anti-corruption
with reference to the respondents’
conduct. The two contentions are grounded on the same notion, ie,
that political actors
whose very function it is to engage in public
discourse are severely prejudiced by even an interim order which
temporarily silences
them while the legitimacy and lawfulness of
their controversial utterances are the subject matter of litigation.
[19]
Therefore, the sting in the argument is that a reason exists, or
ought to exist, which would exempt a class of
persons, being
political actors, from being subjected to interim orders inhibiting
the freedom to express speech of their own choosing,
albeit
temporarily, during periods while the legitimacy and lawfulness of
that speech is being tested. The essence of this
thesis is that
political actors are in a special class subject to rules different
from the rest of the population.
[20]
It may be supposed that this peculiar status might conceivably be
upheld by a court in trial proceedings determining
final relief,
where the issue may be explored in full, the myriad consequences
examined, and the appropriate policy choices made
to develop the law
and nourish democratic discourse. However, the proper approach to
delve into such questions is not by appealing
against an interim
order. Were an appeal against the interim order to be entertained on
such grounds, the findings would unavoidably
pre-empt the very
enquiry that the trial court is required to examine: ie, whether the
appellants, being political actors, were
justified in their conduct.
[21]
The reliance on the systemic delays in the litigation process in
South African courts is, if not on principle,
certainly on these
facts, misplaced.
[13]
The fact
that 27 months has elapsed since the interdict was granted, and the
trial had yet to be set down is not alluded to in
the papers and only
sketchily alluded to in argument. A grim picture was drawn by the
suggestion in argument, not on affidavit,
that the lead-time to get a
trial date in the high court was expected to be not less than a year.
Therefore, it was argued that
for an extensive period, the appellants
could not publicly canvass their views nor disseminate information
they believed was germane
to the allegations of unlawfulness by the
respondents. This outcome was supposedly at odds with the
constitutional guarantees mentioned
above. The argument is untenable.
What little is known of the facts, points at the parties having
leisurely plodded on over the
27 months without any appetite for zeal
or expedition. In the absence of proper evidence, the systemic delay
argument is stillborn.
[22]
It was suggested in argument on behalf of the respondents that it was
open to the appellants, if they could contrive
some serious harm
caused by being subjected to the interim interdict that they were
entitled to invoke s 18(2) and
s 18(3)
of the
Superior Courts Act, to
apply to have the order suspended. It is indeed correct that an
obvious remedy for a litigant who believes it is faced with
irreparable
harm in having to comply with an interim order, is to
invoke
s 18(3).
[14]
No answer
to this proposition was forthcoming. Moreover, to the extent that the
complaint of the appellants is that time forfeited
cannot be revived,
the proposition has consistently been rejected as invalid.
[15]
[23]
The appellants are in addition not denied the opportunity of
repeating the allegations in Parliament because s
58(1)
(a)
of the Constitution secures a right to do so with impunity.
[16]
The counter argument offered in this regard is that s 19 confers a
right to engage in advocacy outside Parliament, no less than
within
it. Ostensibly, this is indeed the scope of the section, but it is
not a cogent answer to why a temporary silence in public
discourse
will be irreparable, as is required by the principles enunciated in
the authorities cited. The appellants do not make
out a case that the
UDM is a one-issue-organisation and that it will wither if its
opinions about the respondents’ alleged
skulduggery are not
constantly heard, while in the meantime, the two parties shuffle
their way towards trial.
[24]
The temporary restraint under which the appellants rankle is
incomparable to the circumstances illustrated in cases
like
Machele
and Others v Mailula
and
Others
[17]
and
Philani-Ma-Afrika
and Others v Mailula
and
Others.
[18]
These two cases dealt with the threat to evict the same body of
persons and potentially render them homeless. In the first case,
the
Constitutional Court entertained an appeal against an order of
eviction which had been put into effect despite a pending appeal.
The
Constitutional Court suspended the execution order. Skweyiya J, after
alluding to case law, concluded:
‘
The
primary consideration in determining whether it is in the interests
of justice for a litigant to be granted leave to appeal
against an
interim order of execution is, therefore, whether irreparable harm
would result if leave to appeal is not granted. The
applicant would
have to show that irreparable harm would result if the interim order
were not to be granted. A court will have
regard to the possibility
of irreparable harm and the balance of convenience
.
’
[19]
In
this Court, in
Philani-Ma-Afrika,
the
conclusion, similarly, was reached that in a case of eviction an
appeal against an interim order was indeed appropriate in the
interests of justice. The underlying rationale of irreparable harm is
plainly demonstrated in such cases.
[25]
The endeavour of the appellants to persist in their efforts to appeal
against the interim order is in truth, an
attempt to entice this
Court to decide issues which lie within the province of the trial
court when determining final relief. The
appellants can invoke no
basis for irreparable harm to support its contentions. A faint
passing allegation in the answering affidavit
that the balance of
convenience favoured the appellants because allegations of corruption
ought to be ventilated adds no weight
to the argument.
Conclusion
[26] In
summary:
(a)
The
order is interim in effect as well as in form.
(b)
The
interests of justice do not require that an appeal be entertained: in
particular:
(i) the
effect of the order does not cause irreparable harm;
(ii) the delay
in prosecuting the action has not been shown to be the result of
circumstances beyond the control of the appellants,
and in any event,
result in irreparable harm;
(iii)
the appellants may articulate their views, in the meantime, in
Parliament with impunity; and
(iv) the
temporary prohibition, for the interim period, to advocate for their
viewpoints on the issue, outside of Parliament,
shall not result in
the appellants becoming obsolescent.
(c)
The
order is indeed not appealable.
The Order
[27] In
the circumstances, it is ordered that:
1.
The appeal is struck from the roll.
2.
The appellants, jointly and severally, shall bear the respondents’
costs including
the costs of two counsel.
__________________________
ROLAND
SUTHERLAND
ACTING
JUDGE OF APPEAL
Molemela
JA (Makgoka JA concurring)
[28]
I have read the judgment of my colleague, Sutherland AJA (the first
judgment), and am unable to agree with either
its reasoning or
conclusion. The appellants’ case, on the merits, was that the
respondents’ application in the court
a quo did not meet all
the requirements for the granting of an interim interdict. I must
mention from the outset that I am mindful
of the fact that the merits
of the interim order were not canvassed during the hearing of the
oral arguments in this matter, as
the appeal was struck off the
roll. I will, therefore, express no views on whether the
respondent’s application met
those requirements or not, but
will allude to aspects that have a bearing on those requirements.
[29]
I am alive to the fact that this Court is not under an obligation to
entertain an appeal against an otherwise unappealable
order merely
because leave to appeal was granted by the High Court. What needs to
be borne in mind is the observation made
in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
[20]
that a court has a wide general discretion in granting leave to
appeal in relation to interim interdicts. Of crucial importance
is
that there is no absolute bar against subjecting interim orders to an
appeal.
In
this section of the judgment, I focus on why I believe that the court
a quo was correct in finding that the interests of justice
called for
this Court to entertain an appeal against its interim order.
[30]
During the exchange with the bench, counsel for the appellants was
asked whether the proposition he was putting
forward was that interim
interdicts relating to defamation matters should always be
appealable. He submitted that whether or not
an interim order is
appealable was an aspect that was fact-specific. That view finds
support in
South
African Informal Traders Forum v City of Johannesburg
,
[21]
where
the Constitutional Court held that when determining whether it is in
the interests of justice to appeal an interim order,
the court must
have regard to and weigh carefully all relevant circumstances.
The factors that are relevant, or decisive
in a particular instance,
will vary from case to case. To my mind, a
clear
example of when it would not be in the interests of justice to grant
leave to appeal an interim order in defamation cases
would be where
such an order had been granted on an unopposed basis, for the court
would not have had the benefit of being apprised
of any defence that
the respondent intended to raise.
[22]
[31]
It
is well-established that
an
interim order may be appealed if the interests of justice, based on
the specific facts of a particular case, so dictate.
[23]
That the overarching constitutional standard for appealability of an
interim order is indeed whether an appeal would best serve
the
interests of justice was re-asserted by the Constitutional
Court in
City
of Tshwane Metropolitan Municipality v Afriforum and Another
,
where
that court also cautioned that ‘[i]f appealability or the grant
of leave to appeal would best serve the interests of
justice, then
the appeal should be proceeded with no matter what the
pre-Constitution common law impediments might suggest.’
[24]
[32]
It is evident from the judgment of the court a quo that it was alive
to the fact that interim interdicts are not
ordinarily appealable.
Having considered various judgments of this Court and the
Constitutional Court as well as the specific facts
of this case, it,
within its discretion, decided to grant the appellants leave to
appeal to this Court on the basis that the interests
of justice
warranted that its interim order be the subject of an appeal. For the
reasons that follow, I think that the court a
quo correctly found
that the interim order it had granted was appealable. For the same
reasons, I am of the view that, against
a proper exercise of the
court a quo’s discretion on this aspect, it was not open to
this court to second-guess the reasons
advanced by the court a quo
simply because it held a different view on the matter. In my opinion,
it has not been shown that the
court a quo’s discretion on that
aspect was not judicially exercised. I consequently differ with the
first judgment’s
conclusion that the interests of justice do
not require that an appeal be entertained. In the succeeding
paragraphs I show why
I believe that the court a quo, after a
judicial exercise of its discretion, correctly granted leave to
appeal in this matter.
[33]
It is trite that an interim interdict pending action is an
extraordinary remedy;
[25]
such
an interdict is not granted unless all the legal requisites for that
remedy have been met.
[26]
An
interdict of the nature sought in the court a quo is seldom granted.
In
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
,
[27]
this
Court stated as follows:
‘
Where
it is alleged, for example, that a publication is defamatory, but it
has yet to be established that the defamation is unlawful,
an
award of damages is usually capable of vindicating the right to
reputation if it is later found to have been infringed, and
an
anticipatory ban on publication will seldom be necessary for that
purpose.’
[34]
As
regards interim interdicts sought to restrain the publication of
defamatory statements, it is particularly important to note
that one
of the considerations to be weighed in the balance is whether the
factual foundation emanating from the respondent’s
affidavit
discloses a defence of truth and public benefit.
This
Court in
Hix
Networking
Technologies
v System Publishers (Pty) Ltd and Another
,
[28]
approved
the following dictum by Greenberg J in
Heilbron
v
Blignaut
,
subject to clarification:
[29]
‘
If an injury which would give
rise to a claim in law is apprehended, then I think it is clear that
the person against whom the injury
is about to be committed is not
compelled to wait for the damage and sue afterwards for compensation,
but can move the Court to
prevent any damage being done to him. As he
approaches the Court on motion, his facts must be clear and if there
is a dispute as
to whether what is about to be done is actionable, it
cannot be decided on motion.
The result
is that if the injury which is sought to be restrained is said to be
a defamation, then he is not entitled to the intervention
of the
Court by way of interdict, unless it is clear that the defendant has
no defence.
Thus if the defendant sets
up that he can prove truth and public benefit, the Court is not
entitled to disregard his statement
on oath to that effect, because,
if his statement were true, it would be a defence, and the basis of
the claim for an interdict
is that an actionable wrong, i.e. conduct
for which there is no defence in law, is about to be committed.’
(Emphasis added.)
[35]
The clarification of this dictum was explained as follows in
Herbal Zone (Pty)
Limited v Infitech Technologies (Pty) Limited (Herbal Zone)
:
[30]
‘
The
clarification was to point out that Greenberg J did not hold that the
mere ipse dixit of a respondent would suffice to prevent
a court from
granting an interdict
.
What
is required is that a sustainable foundation be laid by way of
evidence that a defence such as truth and public interest or
fair
comment is
available
to be pursued by the respondent.
It
is not sufficient simply to state that at a trial the respondent will
prove that the statements were true and made in the public
interest,
or some other defence to a claim for defamation, without providing a
factual basis therefor.’
The
dicta in these decisions were recently quoted with approval
by
this Court in
Tau
v Mashaba and Others
[31]
in
the context of an appeal against orders considered to have a final
interdict even though they were granted in an application
for interim
relief pending an action for damages.
[36]
The appellants, laid a factual foundation of a defence of truth and
public interest in their answering affidavit.
As to whether that
defence is sustainable can only be established in the trial, which is
the procedure elected by the respondents
in so far as they sought a
temporary interdict pending a defamation action. The fact remains
that, on the correct application of
the principle laid down by this
Court in
Heilbron
v Blignaut
,
an interim order ought not to be granted if a factual foundation of
the defence of truth and public interest had been laid. This
brings
me to the appellants’ contentions regarding why they considered
their utterances to be in the public interest.
[37]
The appellants placed reliance on several provisions of the
Constitution, which they regard as giving an important
context in
this matter. In terms of s 93(2) of the Constitution, Deputy
Ministers are accountable to Parliament for the exercise
of their
powers and the performance of their functions. Section 96 of the
Constitution enjoins Cabinet Ministers and Deputy Ministers
‘not
to act in any way that is inconsistent with their office’ and
not to ‘expose themselves to any situation
involving the risk
of a conflict between their official responsibilities and private
interests’. It also forbids the Executive
from using their
position or any information entrusted to them to enrich themselves or
to improperly benefit others.
[38]
The appellants contended that the utterances were made in the context
of their oversight role on the Executive.
[32]
It is accepted that political parties have
a
significant role to play in uncovering corruption and
maladministration in government entities.
[33]
In
UDM
v Speaker, National Assembly
,
[34]
the Constitutional Court stressed that the powers granted to public
office bearers should not be used for the advancement of personal
or
sectarian interests. The court remarked that ‘public
office-bearers in all the arms of the State must . . . explain how
they have lived up to the promises that inhere in the offices they
occupy’.
[39] It
is also true that public officials have to be held accountable for
the actions they take while holding public
office. A relevant
consideration regarding the appellants’ oversight role is that
one of the respondents is a former member
of the Executive.
Furthermore, one of the respondents is an erstwhile employee of the
Public Investment Corporation, a state-owned
entity. All this is
stated to provide essential context; it should not, in any way, be
considered to suggest that any of the other
respondents had a
diminished right to dignity.
[40]
It is against the background sketched in the preceding paragraph that
the appellants contended that the interim
order granted by the court
a quo would impact on, among others, their responsibility to expose
possible unethical conduct within
the contemplation of s 96 of the
Constitution. The second appellant also asserted that in so far as
the Public Investment Corporation
was a state-owned entity, the
interim order would impact on the appellants’ responsibility to
hold public officials accountable
by exposing possible contraventions
of legislation by those in charge of public funds.
[41]
I noted that the court a quo remarked that the attitude of the
appellants in refusing to retract the letter and
apologise, among
other things, ‘shows a potential for future comment and further
publication’. A retraction and apology
are aspects that relate
to a final interdict as they presuppose the wrongfulness of the
utterances.
[35]
Notably, in
para 1.2, the court a quo ordered the appellants to remove the
allegedly defamatory letter addressed to the President
from the first
appellant’s website. That seems to be putting the cart before
the horse, as an order of that nature is ordinarily
granted when a
court is satisfied that the statement made is unlawful, in other
words, when the factual foundation laid by the
respondent has not
disclosed the defence of truth and public interest.
[36]
[42]
Furthermore, although any patrimonial loss arising from the
defamation is an aspect that could subsequently achieve
redress by
way of an Aquilian action,
[37]
the
commercial loss that could be suffered by the respondents seems to be
a factor that weighed heavily with the court a quo when
assessing
whether there was a reasonable apprehension of harm. This obviously
has a bearing on the proper assessment of the apprehension
of harm as
one of the requirements for the granting of an interim interdict.
[43]
The first judgment remarks that the order granted by the court a quo
cannot be described as a gagging order, given
that the contentious
remarks were already in the public domain. It is true that the
allegations in question were already in the
public domain as the
second appellant’s utterances had already been covered by the
media, including social media. Bearing
in mind that an interdict is
‘not a remedy for the past invasion of rights, but is concerned
with the present or the future’,
[38]
and that the respondents had opted to pursue their defamation through
action proceedings, it seems to me that an award of damages
could
conceivably have served as a suitable alternative remedy, under the
circumstances.
[39]
[44]
The first judgment correctly observes that the first appellant is not
a one-issue party that would be inclined
to raise the same issue over
and over again in Parliament. An important aspect raised by counsel
for the appellants, is that parliamentary
processes are widely
covered by the media. That would mean that the intended effect of the
interim interdict would simply not be
achievable, under the
circumstances. This is an aspect that ought to have had a bearing in
the exercise of the discretion whether
or not to grant the interdict.
[45]
For all the reasons set out above, I conclude that the interim order
granted by the court a quo was appealable.
The court a quo was
correct when it stated that there was no reason why the
considerations of the interests of justice should not
apply when
determining the appealability of an interim order that was said to
affect the rights of parties to engage in political
activity. It
correctly granted the appellants leave to appeal. It follows that the
appeal should have been entertained by this
Court.
________________________
M B MOLEMELA
JUDGE
OF APPEAL
Makgoka
JA
[46]
I have had the benefit of reading the judgments of my colleagues,
Molemela JA and Sutherland AJA. I agree with
Molemela JA that the
order is appealable. I wish to make the following additional remarks.
[47]
The
Zweni
attributes
have now been subsumed under the context-sensitive and the
constitutionally pliant rubric of the interests of justice.
In
Philani-Ma-Afrika
v Mailula
[40]
this
court adapted the general principles on the appealability of interim
orders and concluded that what is of paramount importance
in deciding
whether a judgment is appealable is the interests of justice. This
approach received the imprimatur of the Constitutional
Court in
International
Trade Administration Commission v SCAW.
[41]
[48]
In
City
of Tshwane v Afriforum
[42]
the
Chief Justice, writing for the majority, explained the relationship
between the common law approach and the Constitution on
the
appealability of judgments:
‘
The common
law test for appealability has since been denuded of its somewhat
inflexible nature. Unsurprisingly so because the
common law is
not on par with but subservient to the supreme law that prescribes
the interests of justice as the only requirement
to be met for the
grant of leave to appeal. Unlike before, appealability no
longer depends largely on whether the interim
order appealed
against
has
final
effect or is dispositive of a substantial portion of the relief
claimed in the main application. All this is now subsumed
under
the constitutional interests of justice standard. The
over-arching role of interests of justice considerations has
relativised the final effect of the order or the disposition of the
substantial portion of what is pending before the review court,
in
determining appealability. The principle was set out in
OUTA
by
Moseneke DCJ in these terms:
“
This
court has granted leave to appeal in relation to interim orders
before. It has made it clear that the operative standard is
the
interests of justice. To that end, it must have regard to and weigh
carefully all germane circumstances. Whether an interim
order has a
final effect or disposes of a substantial portion of the relief
sought in a pending review is a relevant and important
consideration.
Yet, it is not the only or always decisive consideration. It is just
as important to assess whether the temporary
restraining order
has an immediate and substantial effect, including whether the harm
that flows from it is serious, immediate,
ongoing and irreparable.”
.’
[49]
It is with this approach in mind that I consider whether the high
court’s order is appealable. In my view,
the specific factors
which should be considered to answer that question are the following:
the nature of the allegations; the nature
and profile of the parties
involved; whether the appellants raise a prima facie valid defence;
the competing rights; the efficacy
of the high court’s order;
and the weight of the high court’s judgment granting leave to
appeal. I set out these, in
turn.
The nature of the
allegations
[50]
The case concerns allegations of impropriety, corruption and conflict
of interests on the part of a former Deputy
Minister, who is alleged
to have used his position to improperly enrich himself and the
politically connected, ie the remainder
of the respondents. In a
nutshell, the respondents are accused of corruption involving what,
essentially, are public funds. It
is a notorious fact that in the
last decade or so, corruption has taken root in South Africa, both in
the public and private sectors.
But it is the former sector which has
attracted much attention because, in many instances, politicians and
those connected to them,
have enriched themselves with public funds
at the expense of the citizenry. This explains why any allegations of
corruption involving
public funds draw closer scrutiny. Recently, in
Zuma
v Office of the Public Protector
,
[43]
this
court quoted the United Nations 2004 Convention against Corruption,
to which South Africa is a signatory, which describes corruption
in
the following terms:
‘
Corruption
is an insidious plague that has a wide range of corrosive effects on
societies. It undermines democracy and the rule
of law, leads to
violations of human rights, distorts markets, erodes the quality of
life and allows organized crime, terrorism
and other threats to human
security to flourish. This evil phenomenon is found in all countries
– big and small, rich and
poor – but it is in the
developing world that its effects are most destructive. Corruption
hurts the poor disproportionately
by diverting funds intended for
development, undermining a Government’s ability to provide
basic services, feeding inequality
and injustice and discouraging
foreign aid and investment. Corruption is a key element in economic
underperformance and a major
obstacle to poverty alleviation and
development
.’
[44]
The
allegations made by the appellants were sufficient to move the
President of the country to institute a Judicial Commission of
Inquiry to investigate them. There is therefore no doubt that this is
a matter of significant national and public importance.
The parties
[51]
Mr Holomisa is the leader of the second appellant, one of the
opposition parties represented in Parliament. There
is no question
that they raise the issues in the public interest. The sixth
respondent, Mr Moleketi, is a former politician, who,
during the
period relevant to the allegations, served as a Deputy Minister. In
that capacity, he was the chairperson of the PIC.
Reduced to their
bare essence, the allegations by the appellants are that Mr Moleketi
had used his position as the chairperson
of the PIC to enrich himself
and the remainder of the respondents. That is alleged to have endured
beyond his tenure as such.
[52]
The PIC is no ordinary company. It is a wholly state-owned asset
management entity, whose clients are mostly public
sector entities,
which focus on the provision of social security. Amongst these are:
Government Employees Pension Fund (GEPF);
Unemployment Insurance Fund
(UIF); Compensation Commissioner Fund (CC); Compensation Commissioner
Pension Fund (CP); and Associated
Institutions Pension Fund
(AIPF).
[45]
Thus,
the PIC is funded with public moneys, mainly belonging to public
servants. How those moneys are invested and managed, is therefore
undoubtedly of great public interest.
Prima
facie valid defence?
[53] As
I understand the appellants’ defence, it is rooted in truth and
public interest. It is so that the impugned
letter is littered with
outlandish, perhaps exaggerated, claims and comments. But this is
something politicians have to constantly
grapple with, and it is in
this context that the tone of the letter should be understood. As
aptly remarked by Ludorf J in
Pienaar v Argus
:
‘
[T]he
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.’
[46]
[54]
Indeed, when one deals with politicians or political matters, courts
have allowed for a good deal of latitude for
comment. More than a
century ago, Innes CJ remarked in
Crawford v Albu
1917 AD 102
at 105:
‘
People
who occupy a public position or for any other reason have been so
unfortunate as to focus upon themselves the light of public
opinion
must expect to be criticised. And more particularly must those who,
however righteous their motives, place themselves in
determined
opposition to society generally or to a section of society not be
surprised if they find themselves assailed with some
vehemence or
even exaggeration. All this the law does not prohibit. Free speech
and free thought are part of our common inheritance.
And the law will
not interfere with them. But still there are limits which must not be
transgressed. Comment to be fair must not
distort or misrepresent
facts.’
[55]
As pointed out in
Argus
v Inkatha Freedom Party
,
[47]
there is common law reluctance to regard political utterances as
defamatory. This reluctance stems from the fact that it is recognised
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, in a political context, the traditional test
of
determining whether the words complained of tend to lower the
plaintiff ‘in the estimation of right-thinking people’
is
not easily straddled.
[56]
Although the high court referred to
Herbal Zone
, it failed to
apply the following trenchant passage in that judgment:
‘
[A]n
interdict to prevent the publication of defamatory matter … is
directed at preventing the party interdicted from making
statements
in the future. If granted it impinges upon that party’s
constitutionally protected right to freedom of speech.
For that
reason such an interdict is only infrequently granted, the party
claiming that they will be injured by such speech ordinarily
being
left to their remedy of a claim for damages in due course. Nugent JA
said in this court:
“
Where
it is alleged, for example, that a publication is defamatory, but it
has yet to be established that the defamation is unlawful,
an award
of damages is usually capable of vindicating the right to reputation
if it is later found to have been infringed, and
an anticipatory ban
on publication will seldom be necessary for that purpose.”
.’
[48]
[57]
As stated above, the appellants rely on the defence of truth and
public interest. The appellants do not merely
content themselves with
bold assertions in this regard. They set out facts from which their
allegations can be deduced. Given that,
the high court should have
been more circumspect in granting the interdict. At the level of
principle, I find it disquieting and
deeply troubling that a former
politician and those with whom he is accused of corruption, should
obtain an interim interdict pending
the outcome of a defamation
action, with the ease with which the present one was granted. As I
understand the effect of the passage
in
Herbal
Zone
referred to above, the threshold for obtaining such an interdict is
not that low. Something more compelling is required. The respondents
have alleged none.
The competing
rights
[58]
A number of constitutionally entrenched rights are at play here, some
potentially pitted against each other. There
is, for example, the
respondents’ rights to privacy and dignity, on the one hand. On
the other, one has the appellants’
right of freedom of
expression, and the public’s right to freedom of access to
information. The interplay between these rights
and how they are
balanced against each other, clearly trigger the interests of
justice.
The efficacy of
the high court’s order
[59]
The purpose of an interim interdict pending the determination of a
defamation action is that the dignity and esteem
which a plaintiff
enjoys in the eyes of the public should not be disturbed in the
interim. This is at least as far as a pre-publication
interdict is
concerned. But where, as is the case here, publication has already
taken place, and widely so, it must be asked what
purpose a
subsequent interdict would serve. To my mind, it would serve little,
if any, purpose. As stated already, the allegations
contained in the
letter have been widely published in the mainstream and social media.
What is more, the respondents have instituted
action for defamation
in which the allegations are set out in full. Since pleadings, like
all court documents, are public documents
to which the media and the
public have access, the allegations would be (and likely have been)
publicly repeated. In addition,
Mr Holomisa is protected by the
privileges he enjoys as a Member of Parliament to repeat the
allegations in Parliament, which the
media would publish, and has
most likely done so.
[60]
Considering the above, the allegations were already in the public
domain in any event. Only the appellants are
not permitted to repeat
them. An interim order under such circumstances is not only impotent,
but artificial. It amounts to no
more than what the law calls a
brutum
fulmen
.
[49]
This
relates to one of the requisites for an interim interdict, namely the
balance of convenience. On this score, it clearly did
not favour the
granting of an interim order, and the interim order should not have
been granted in the first place.
The weight of the
high court’s judgment granting leave to appeal
[61]
It is so that the high court’s conclusion that the order is
appealable, is not binding on this Court. But
this does not mean that
we can, without more, set it aside. Generally,
a
court
to which an application for leave to appeal is made has a wide
general discretion to grant or refuse it. Its decision is not
to be
lightly interfered with, unless we are satisfied that the discretion
was not exercised judiciously, or that it had been influenced
by
wrong principles or a misdirection on the facts, or that the high
court had reached a decision which in the result could not
reasonably
have been made by a court properly directing itself to all the
relevant facts and principles.
[50]
[62] In
the present case, nothing suggests that the high court had not
properly considered the issue of appealability.
To the contrary, the
learned judge gave careful and anxious consideration to the issue.
After noting the overarching considerations
of the interests of
justice as set out in
Afriforum
and other authorities, the
learned judge insightfully said:
‘
[I]
see no reason why considerations in the interests of justice should
not apply to the lower courts when determining the appealability
of
an interim order, which is said to affect the rights of parties as
the applicants, to engage in political activity. Leave in
these
circumstances should be granted and I am of the view that the issues
raised are of importance and for purpose of certainty
the matter
should be considered by the Supreme Court of Appeal.’
One
might not agree with these views, but the learned judge cannot be
faulted for how she applied the principles to the issue.
[63]
Under these circumstances, it is my view that this Court is not at
large to revisit that order. The power of this
Court to interfere
with an order of the high granting leave should be used sparingly,
and only where there is a proper juridical
basis to do so, and in the
clearest cases of an error or misdirection on the part of the high
court in granting such leave. In
this case, there is neither.
Conclusion
[64]
For all the above considerations, I agree with Molemela JA’s
conclusion that the order of the high court
is appealable, and thus
it was in the interests of justice to hear the merits of the appeal.
________________________
T
MAKGOKA
JUDGE
OF APPEAL
Appearances:
For
appellants:
D C Mpofu SC
(with him T Ngcukaitobi SC)
Instructed
by:
Mabuza Attorneys, Pretoria
Matsepes
Inc., Bloemfontein
For
respondents:
D Berger SC (with him B Slon and T B Makgalemele)
Instructed
by:
Nicqui Galaktiou Inc., Johannesburg
Claude
Reid, Bloemfontein
[1]
The
first to sixth respondents are: Lebashe Investment Group (Pty) Ltd,
Harith General Partners (Pty) Ltd, Harith Fund Managers
(Pty) Ltd,
Warren Gregory Wheatley, Tshepo Duan Mahloele and Phillip Jabulani
Molekethi.
[2]
The
proper approach to an order of this nature was considered in
Hix
Networking Technologies CC v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997
(1) SA 391
(A) at 397H-399F. The court a quo adopted this approach
see
Lebashe
Investment Group (Pty) Ltd and Others v United Democratic Movement
and Another
(unreported) (case no 46074/18) paras 41-45.
[3]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
[2016]
ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 (CC).
[4]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6; 2010 (5) BCLR 457 (CC); 2012 (4) SA 618 (CC).
[5]
SCAW
fn 4 paras 50-54.
[6]
Zweni
v Minister of Law and Order
of
the Republic of South Africa
[1993]
1 All SA 365
(A);
1993 (1) SA 523
(A) at 532H-532A.
[7]
Tau
v Mashaba
[2020]
ZASCA 26; 2020 (5) SA 135 (SCA).
[8]
Tau
v Mashaba
fn
7 para 4.
[9]
Tau
v Mashaba
fn 7 para 12.
[10]
The
appellants did not address the question of appealability in their
heads of arguments. The respondents addressed the
issue at
length. Notwithstanding that, the appellants chose not to respond by
filing supplementary heads. Mr Ngcukaitobi addressed
the court,
orally, on the question.
[11]
‘
Freedom
of expression
16.
(1)
Everyone
has the right to freedom of expression, which includes –
(a)
freedom
of the press and other media;
(b)
freedom
to receive or impart information or ideas.’
[12]
‘
Political
rights
19.
(1)
Every
citizen is free to make political choices, which includes the right
–
(a)
to
form a political party;
(b)
to
participate in the activities of, or recruit members for, a
political party; and
(c)
to
campaign for a political party or cause.’
[13]
See:
in regard to a measure of intrinsic prejudice in the effect of an
interim interdict not being ‘irretrievable’
in all
cases:
Cronshaw
and Another v Coin Security Group (Pty) Ltd
[1996] ZASCA 38
;
[1996]
2 All SA 435
(A);
1996 (3) SA 686
(SCA) at 690G- 691D.
[14]
‘
Suspension
of decision pending appeal
18.
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision
of the application or appeal.
(
2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of
a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application for
leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subsection
(1) or (2), if the party who applied to the court to
order
otherwise, in addition proves on a balance of probabilities that he
or she will suffer irreparable harm if the court does
not so order
and that the other party will not suffer irreparable harm if the
court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1)
–
(i) the
court must immediately record its reasons for doing so;
(ii) the
aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the
court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv) such
order will be automatically suspended, pending the outcome of such
appeal.
(5) For
the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or
of an appeal, as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the
rules.’
[15]
Cipla
Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others
[2017]
ZASCA 134
;
[2017] 4 All SA 605
(SCA);
2018 (6) SA 440
(SCA) para 47.
[16]
‘
Privilege
58.
(1)
Cabinet
members, Deputy Ministers and members of the National Assembly –
(a)
have
freedom of speech in the Assembly and in its committees, subject to
its rules and orders; and
(b)
are
not liable to civil or criminal proceedings, arrest, imprisonment or
damages for –
(i) anything
that they have said in, produced before or submitted to the Assembly
or any of its committees; or
(ii) anything
revealed as a result of anything that they have said in, produced
before or submitted to the
Assembly
or any of its committees.
(2)
Other privileges and immunities of the National Assembly, Cabinet
members and members of the Assembly may be prescribed by
national
legislation. . . .’
[17]
Machele
and Others v Mailula and Others
[2009]
ZACC 7; 2009 (8) BCLR 767 (CC); 2010 (2) SA 257 (CC).
[18]
Philani-Ma-Afrika
and Others v Mailula and Others
[2009]
ZASCA 115
;
[2010] 1 All SA 459
(SCA);
2010 (2) SA 573
(SCA).
[19]
Machele
fn
17 para 24.
[20]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[1977]
4 All SA 53
(A);
1977 (3) SA 534
(A) at 545B-546C.
[21]
South
African Informal Traders Forum and Others v City of Johannesburg and
Others
;
South
African National Traders Retail Association v City of Johannesburg
and Others
[2014] ZACC 8; 2014 (6) BCLR 726 (CC); 2014 (4) SA 371 (CC) Para 20.
[22]
See
Hix
Networking
Technologies
CC v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
[1997]
4
All
SA 675
(A)
;
1997
(1) SA 391
(A) at
399B-E
above
at
399B-E
[23]
Philani-Ma-Afrika
and Others v Mailula
and
Others
[2009]
ZASCA 115
;
2010 (2) SA 573
(SCA) para 20;
South
African Informal Traders Forum and Others v City of Johannesburg and
Others; South African National Traders Retail Association
v City of
Johannesburg and Others
[2014]
ZACC 8
;
2014
(4) SA 371
(CC);
2014
(6) BCLR 726
(CC)
para 20(g).
[24]
City of
Tshwane Metropolitan Municipality v Afriforum and Another
fn
3 para 40-41.
[25]
E
riksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
[1973]
4 All SA 116
(A);
1973
(3) SA 685
(A)
at 691C. In
Economic
Freedom Fighters and Others v Manuel
[2020]
ZASCA 172
para 88, this court re-asserted that whether any interim
relief can be granted will depend on the application of the
well-established
principles applicable to interim interdicts.
[26]
See
Bester
v Bethge
1911 EDL 18
at 19 as cited in J Meyer
Interdicts
and Related Orders
(1993) at 53.
[27]
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007]
ZASCA 56
;
[2007]
3 All SA 318
(SCA);
2007 (9) BCLR 958
(SCA);
2007
(5) SA 540
(SCA)
para 20.
[28]
Hix
Networking
Technologies
fn
22 at 399B-E.
[29]
Heilbron
v
Blignaut
1931
WLD 167
at
169.
[30]
Herbal Zone (Pty)
Limited and Others v Infitech Technologies (Pty) Limited
and
Others
[
2017]
ZASCA 8; [2017] 2 All SA 347 (SCA).
[31]
Tau
v Mashaba and Others
fn
7 para 28.
[32]
Democratic
Alliance v Speaker of The National Assembly and Others
[2016]
ZACC 8; 2016 (5) BCLR 577 (CC); 2016 (3) SA 487 paras 14, 16 And 17.
[33]
Democratic
Alliance v Speaker of the National Assembly and Others
fn
32 above;
EFF
v Manuel
fn
25 para 76.
[34]
United
Democratic Movement v Speaker of the National Assembly and Others
[2017] ZACC 21
;
2017 (5) SA 300
(CC) para 8.
[35]
Tau
v Mashaba and Others
fn
7 para 17.
[36]
Compare
EFF
v Manuel
fn
25.
[37]
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at 567G-576B.
[38]
Lawsa
2
ed para 390;
Philip
Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another
[1991]
2 All SA 177 (A);
1991
(2) SA 720
(A)
at 735B-C, approving
Stauffer
Chemicals Chemical Products Division of Chesebrough-Ponds (Pty) Ltd
v Monsanto Co
[1988]
3 All SA 279
(T);
1988
(1) SA 805
(T)
at 809F-G.
[39]
Compare
Tau
v Mashaba and Others
fn 7 above para 27.
[40]
Philani-Ma-Afrika
and Others v Mailula and Others
[2009]
ZASCA 115; 2010 (2) SA 573 (SCA); [2010] 1 All SA 459 (SCA) para 20.
[41]
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd
[2010]
ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) para 52.
[42]
City
of Tshwane Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
;
2016 (9) BCLR 1133
(CC);
2016 (6) SA 279
(CC) para
40.
[43]
Zuma
v Office of the Public Protector and Others
[2020]
ZASCA 138.
[44]
Zuma
fn
43 para
1.
[45]
https://www.pic.gov.za/.
[46]
Pienaar and Another v
Argus Printing and Publishing Co Ltd
1956 (4) SA 310
(W) at 318C-E.
[47]
Argus
Printing and Publishing Co Ltd v Inkatha Freedom Party
[1992] ZASCA 63
;
1992 (3) SA 579
(A) at 588F-589E.
[48]
Herbal
Zone
fn
30 para 36.
[49]
A
useless thunderbolt.
[50]
Compare
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
para 10;
Trencon
Construction (Pty) Limited v Industrial Development Corporation of
South Africa Limited and Another
[2015]
ZACC 22
;
2015 (5) SA 245
(CC) para 88.