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2021
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[2021] ZAKZDHC 50
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South African Farmers Development Association v Annette Steyn MP and Another (D3109/2021) [2021] ZAKZDHC 50 (12 May 2021)
OFFICE
OF THE CHIEF JUSTICE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NUMBER: D3109/2021
In
the matter between:
SOUTH
AFRICAN FARMERS DEVELOPMENT ASSOCIATION
APPLICANT
and
ANNETTE
STEYN MP
FIRST RESPONDENT
DEMOCRATIC
ALLIANCE
SECOND RESPONDENT
ORDER
1.
The
application
is
dismissed.
2.
The applicant is to
pay the
costs
of
the
application.
JUDGMENT
Judgment
was handed down electronically by circulation to the parties' legal
representatives by email. Date and time for hand down
is deemed to be
on 12 May 2021
Date
Delivered: 12 May 2021
McIntosh AJ:
[1]
This is an urgent application
launched by the South African Farmers Development Association, a
voluntary association with a constitution
which conducts business
from 170 Flanders Drive, Mount
Edgecombe,
KwaZulu-Natal.
[2]
The first respondent is Annette
Steyn, an adult female, member of parliament whose place of
employment is at the Parliament of the
Republic of South Africa, 120
Plein Street, Cape Town, Western Cape.
[3]
The Democratic Alliance, a political
party, is cited as the second respondent, with its head office at 2nd
Floor Theba Hoskin House,
16 Mill Street, Gardens, Cape Town, Western
Cape.
Relief Sought
[4]
The applicant
sought rule
nisi
in
the
following terms:
a)
Interdicting the first and/or second
respondents, including any person acting for and on behalf of the
second respondent, from making
or repeating allegations whether
orally or in writing against the applicant of the same or similar
nature to those contained on
the second respondent's newsroom
briefing published on 7 April 2021, annexed to the founding affidavit
marked "F" and
annexed hereto as
"
X"
,
namely:
(i)
that the applicant is a middle-man
arrangement with the Department of Agriculture, Land Reform and Rural
Development (DALRRD) and
is not in any way beneficial to
the livelihoods and wellbeing of farmers on
the
ground;
(ii)
that the applicant is in an unconventional
relationship with the DALRRD and/or minister Thoko Didiza;
(iii)
that members of the Melmoth community
including members of the Mtonjaneni community and/or the lsizwe Sakwa
Dludla community are
in an illegal partnership with the
applicant;
(iv)
that the DALRRD and/or minister Thoko
Didiza is in an illegal partnership with the applicant;
(v)
that the applicant was appointed by the
DALRRD and/or minister Thoko Didiza in a materially irregular manner
and that the applicant
has benefitted by the grant of One Hundred and
Fifty Eight Million Rand (R158,000,000.00).
b)
Interdicting the respondents from defaming
and/or injuring the applicant in its dignity in any publication or in
any broadcast in
any form including but not limited to internet
posts, articles, letters, media interviews, social media posts and
the like which
negatively reflect upon the applicant arising from or
based on any of the allegations or statements, including of a similar
nature,
appearing from annexure "F" o r as referred to in
[4]
above.
c)
Directing the respondents within
twenty-four (24) hours of the grant of this order to remove and to
delete annexure "F"
from the second respondent's website or
from any other social media posts where the respondents have caused
annexure "F"
or any posting of a similar nature to be
published.
d)
Directing the first and second respondents
within
twenty-four
(24)
hours
of grant of this order to retract the offending remarks in writing
including by the publication of such a retraction on the
second
respondent's website, and by the delivery of a further written
retraction to the applicant's attorneys of record.
e)Directing
the first and second respondents to pay the costs of this application
including the costs of two counsel where so
employed.
f)
Further and/or alternative relief.
[5]
The urgent application was initially launched as a rule
nisi
with
interim relief. After argument, in light of the all-encompassing
interim relief sought by the applicant, the applicant sought
a final
order on the same terms as the interim relief initially requested in
the notice of motion.
[6]
The applicant indicated that it
would be instituting an action for defamation against the first and
second respondents and part
of the order sought would be to direct
the applicant to institute the aforesaid action within 60 days of the
granting of the interdict
sought.
Submissions regarding
Jurisdiction
[7]
The issue of the court's
jurisdiction was directly challenged by the respondents in their
answering affidavit.
[8]
In its founding affidavit, the
applicant contends that the purpose of the application is to
interdict and restrain from making defamatory
statements regarding
the applicant and to compel the respondents and to retract such
defamatory statements already made against
the applicant and which
remain in the public domain.
(9]
Further, in its founding affidavit, the applicant submits that the
statements made by the respondents are all primarily directed
at or
for the attention of local communities within the Melmoth area. It is
submitted by the applicant that the first respondent's
statements are
both defamatory and designed to incite animosity towards the
applicant, particularly in Melmoth, which falls under
the
jurisdiction of this court.
[10]
In the respondents' answering affidavit this respondent confirms that
she is a member of parliament for the second respondent
and is duly
authorised to depose to the answering affidavit. The first respondent
confirms that the second respondent is the main
opposition party in
parliament and that she is the current shadow minister for
Agriculture, Forestry and Fisheries and served previously
as deputy
shadow minister for Rural Development and Land Reform. The first
respondent states that she acts in her own interest
and in the
interests of members and voters with a mandate to disseminate
information about public spending and to hold the government
to
account.
[11]
The respondents specifically deny that it
was proper to launch these proceedings in the Durban High Court. The
first respondent
states that she is a member of parliament residing
and working in Cape Town and the second respondent is a political
party with
its head office and principal place of business in Cape
Town. Furthermore, the publication complained of occurred on the
second
respondent's website which is hosted in Cape
Town.
[12]
In the applicant's replying affidavit,
various submissions are made regarding the respondents' challenge to
the court's jurisdiction.
The applicant states in reply that the
Durban High Court has jurisdiction "by virtue of where and to
whom the respondents'
statements were made, together with where the
applicant suffered its damages and the respondents' national
presence."
[13]
The applicant goes on to state, "It is
true that this Honourable Court will best understand issues arising
in Melmoth since
its jurisdiction includes Melmoth. This is the very
reason why the address of the defendants is not the only basis upon
which to
found jurisdiction. This application, which arises in
KwaZulu-Nata,l is best dealt with by this division. There is nothing
untoward
about the applicant making these allegations."
[14]
The applicant replies to the respondents'
submissions on jurisdiction in its replying affidavit. More
specifically, the applicant
states:
'108.
The applicant quite clearly sets out that this Honourable Court has
jurisdiction by virtue of where and to whom the respondents'
statements were made, together with where the applicant suffered its
damages and the second respondent's national presence.
109.
The applicant annexes an
article to its founding affidavit in which it is reported that the
first respondent addressed Me/moth community
members in Me/moth.
110.
The applicant is not 'forum
shopping'. It is set out in the founding affidavit the reason that it
believes that this Honourable
Court has jurisdiction over the matter.
111.
It is true that this
Honourable Court will best understand issues arising in Me/moth ,
since its jurisdiction includes Me/moth.
This is the very reason why
the address of the defendants is not the only basis upon which to
found jurisdiction. This application,
which arises in KwaZulu-Natal,
is best dealt with by this division. There is nothing untoward about
the applicant making these
allegations.'
[15]
Due to the nature of the proceedings, the
parties made submissions on the numerous aspects pertaining to the
application, including
urgency and the relief sought. After argument
was concluded, the parties submitted a combined bundle of authorities
upon which
they relied.
[16]
Due to the queries raised by the court
regarding the Durban High Court's jurisdiction to hear the matter,
the parties made brief
written submissions on 10 May 2021.
[17]
It would appear that the submissions made
by the applicant regarding Melmoth falling within the Durban High
Court's jurisdiction
are correct. The situation is a little confusing
in that Melmoth falls within the Magisterial District of Mthonjaneni.
The first
schedule of the Supreme Court Act 59 of 1959 lists the
various courts and areas of jurisdiction. Under the KwaZulu-Natal
High Court,
Durban, various magisterial districts are listed but that
list does not include Mthonjaneni. The aforesaid schedule does
include
Entonjaneni which appears to be an error. For the purposes of
this judgment, the parties agree the Durban High Court's does have
jurisdiction over Melmoth.
Jurisdiction
of the Durban High Court
[18]
Section 21
of the
Superior Courts Act 2013
states the
following:
' 21 Persons over
whom and matters in relation to which Divisions have jurisdiction
(1)
A Division has jurisdiction over all
persons residing or being in, and in relation to all causes arising
and all offences triable
within, its area of jurisdiction and all
other matters of which it may according to law take cognisance, and
has the power-
(a)
to hear and determine appeals from
all Magistrates' Courts within its area of jurisdiction;
(b)
to review the proceedings of all
such courts;
(c)
in its discretion, and at the
instance of any interested person, to enquire into and determine any
existing, future or contingent
right or obligation, notwithstanding
that such person cannot claim any relief consequential upon the
determination.
(2)
A Division also has jurisdiction
over any person residing or being outside its area of jurisdiction
who is joined as a party to
any cause in relation to which such court
has jurisdiction or who in terms of a third party notice becomes a
party to such a cause,
if the said person resides or is within the
area of jurisdiction of any other Division.
(3)
Subject to
section 28
and the powers
granted under section 4 of the Admiralty Jurisdiction Regulation Act,
1983 (Act 105 of 1983), any Division may issue
an order for
attachment of property to confirm jurisdiction.'
[19]
The applicant has not placed sufficient
facts before the court to show that the Durban High Court has the
jurisdiction to grant
the orders sought by the applicant.
[20]
The relief sought by the applicant is to
interdict the first respondent who lives and works in Cape Town. The
relief sought by the
applicant against the second respondent
necessitates the second respondent taking certain steps in relation
to the second respondent's
website, which is hosted in Cape
Town.
[21]
The further submission by the applicant
that the first respondent is a member of the National Assembly, which
is a public body which
represents the entire country,
and
on that basis the Durban High Court has jurisdiction over her
actions, is without any persuasive authority.
[22]
The applicant also submitted that since the
offending article is "on the internet", the Durban High
Court has jurisdiction.
There are no averments in the applicant's
affidavits
that
justify
this
conclusion,
particularly when
the
relief
sought
by
the
applicant is analyse
d
.
[23]
In the premises, despite hearing argument
on the numerous issues raised in the urgent application papers it is
not necessary for
this court to adjudicate those issues. The Durban
High Court does not have jurisdiction to adjudicate this application
and it is
dismissed.
Costs
[24]
The applicant is ordered to pay the costs
of the application.
MCINTOSH
AJ
CASE
INFORMATION
APPEARANCES
Counsel
for the
Applicant:
Adv. I. Pillay SC
Attorney
for the Applicant:
Cox Yeats
Ncondo
Chambers
Vuna
Close
Umhlanga
Ridge
Email:
pillayi@law.co.za
Counsel
for the Respondents:
Adv. S. Pudifin-Jones
Attorney
for the Respondents:
Minde Schapiro & Smith Inc.
Tygervalley Office Park
Bellville
Email:
sarah@ubunyechambers.co.za
Date
of Hearing:
29 April 2021
Date
of written submissions:
6 May 2021 and 11 May 2021
Date
of Judgment
:
12 May 2021