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2023
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[2023] ZAFSHC 133
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Ramakarane v Lephoi (4474/2020) [2023] ZAFSHC 133 (21 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
/NO
Of
Interest to other Judges:
YES
/NO
Circulate
to Magistrates:
YES
/NO
Case
number: 4474/2020
In
the matter between:
TSEPISO
RAMAKARANE Plaintiff
and
SELLOANE
LEPHOI Defendant
CORAM: AFRICA,
AJ
HEARD
ON: 25
JANUARY 2023
DELIVERED
ON: This judgment was handed down electronically by circulation to
the parties' legal representatives by email. The date
and time for
hand-down is deemed to have been at 9h00 on 21 April 2023.
INTRODUCTION
[1]
This is an action for defamation, allegedly suffered when the
Defendant made public defamatory statements
against the Plaintiff on
the 25th of June 2020 and the 2nd of October 2020, respectively.
Plaintiff feels aggrieved by the defamatory
statements made, which
has been damaging to his reputation and dignity. Reputational damages
are claimed by Plaintiff as follows:
1.1 Payment
in the amount of R500 000.00 (five hundred thousand rand);
1.2 An
unconditional public apology to be made and broadcasted by the
Defendant on the airways of Sesotho Radio Station;
1.3 Cost of
suit;
BACKGROUND
[2]
Plaintiff submits that on the 25th of June 2020, the Defendant made
an airwaves publication statement at Setsoto
Community Radio Station
whose listenership spans the towns of Ficksburg, Clocolan, Marquad,
Ladybrand and other parts of Lesotho;
that the Plaintiff is corrupt
(doing Mayofonyofo at Setsoto Local Municipality) and specifically
alleging that the "High court
has already ruled that the man has
been corrupt"
[1]
[3]
Further, the Defendant .on the same Radio Station imputed unfounded
allegations of fraud and squandering of
funds intended to
electricity, against the Plaintiff.
[2]
[4]
Again on the 2nd of October 2020, the Defendant was on the airwaves
still imputing allegations "malfeasance"
against Plaintiff
regarding his duties as Municipal Manager of Sesotho Local
Municipality.
[3]
[5]
Plaintiff alleges that the incessant and demeaning public statements
are recalcitrant utterances and Defendant
intend to cause them to be
perceived as rogue character in the purview of the Community he
serves and the broader public.
[4]
[6]
Defendant submits that she is a community activist who was part of
interviews and /or discussions on the Setsoto
Community Radio Station
on or about 25 June 2020 (the first discussion) and 2. October 2020
(second discussion), respectively.
[5]
[7]
The Defendant inter alia referred to a judgment granted by the
Honourable Court in a Review Application under
case number 855/2019,
a copy of which is attached hereto as annexure "PLE5".
[6]
[5]
From the aforesaid Judgment the following is inter alia evident:
[7]
5.1 That
plaintiff is the municipal manager of Setsoto Local Municipality;
5.2 Despite
various deficiencies the plaintiff declared the third respondent in
the application, Sibamwu Building Contractors
(Pty) Ltd (Sibamwu) as
the successful tenderer;
5.3 The court
concluded that the conduct of the plaintiff was ostensibly not in
tandem with the prescripts of the law;
5.4 The court
held that the plaintiff's failure to comply with the clear provisions
of the Supply Chain Management Act
and Regulations demonstrates that
the plaintiff's conduct was unlawful, which rendered the decisions
irregular and invalid;
5.5 The
plaintiff gave Sibamwu an opportunity to transform a non-responsive
tender into a responsive one;
5.6 The court
held that the conduct of the Plaintiff was arbitrary and was at best
an irrational exercise of his mandate,
culminating in a decision not
supported by reports in his possession and a process outside the
parameters of the law;
5.7 The
Plaintiff acted in an unfair and unjust manner, outside the scope of
his powers, so as to guarantee success
in favour of Sibamwu;
5.8 The court
granted a punitive cost order against the Plaintiff, in his personal
capacity, due to his conduct.
[6]
The Defendant accordingly denies that any of the statements made by
her during the first and second discussions
were scandalous, false
and defamatory of the Plaintiff.
[7]
The Defendant further denies that any of the statements made by her
during the first and second discussions
were wrongful and/or were
made with the intention to injure the Plaintiff.
[8]
The Defendant specifically pleads the following:
8.1 The
statements made by the Defendant during the first and the second
discussions were essentially true;
8.2 The
Publication of the statements made by the Defendant during the first
and the second discussions was in the public
interest.
[9]
II is common cause that on 16 September 2020, the Plaintiff through
his attorney of record, Ponoane Attorneys,
issued a letter of demand
requesting the defendant to make a public apology and compensation in
the amount of R250 000.00.
[8]
SUMMARY
OF EVIDENCE
[10]
Tshepiso Ramakarane ("Plaintiff') testified under oath that he
is 60 years of age and has been a civil servant for
34 years. He
commenced as a prosecutor in 1988 and occupied numerous offices,
including:
2000-
Appointed Land Claims Commissioner
2007 -
Appointed HOD in dept. of Agriculture in Free State
2009-
Appointed Head of Commissions
2010 -
Seconded: Acting Head of Department of sports
2011 -
Seconded: Special Advisor to the Mangaung Municipality
2011-
Seconded: Stabilize municipality for 6 months
2012-
Appointed Municipal manager in Setsoto, until June 22
[11]
Mr. Ramakarane feels aggrieved, humiliated and defamed as his dignity
was infringed and his 34 years of public service
tarnished by the
utterances made by the defendant on 25 June 2020, which utterances
was repeated on 22 October 2020. He said that
as Head of
Administration, as Accounting Officer and as part of his fiduciary
duties, he is expected to uphold the law. He regards
himself as a
person of integrity and these utterances repeated on various media
platforms. To this end was Mr. Ramakarane was even
contacted by
people, wanting to get his side of the story. The Sesotho expression
used "Manyofonyofo" is a superlative
of corruption.
According to Mr. Ramakarane, to be accused of corruption denotes:
a)
He acted in bad faith
b)
He acted for personal benefit
c)
Bribery
d)
Everything he always fought against
[12]
Until today, these utterances still cause Mr. Ramakarane distress and
all he needed was an apology, which the Defendant
refused. Mr.
Ramakarane testified that he does not know the Defendant personally,
therefore his recourse was to seek legal assistance
to have the
defamatory statements detracted. He got to know of the publication
soon after it was made, because the Council by then
have placed him
on special leave. Mr. Ramakarane then requested a clip and having
heard the words uttered, it infringed his dignity
and was falsehoods,
hence he sought legal recourse. Mr. Ramakarane confirmed that the
letter sent to Defendant dated 16 September
as appearing on page 93
of plaintiffs bundle and the reply thereto as it appears on page 96.
On 24 June 2020, there would have
been a Council meeting where he was
placed on Special Leave.
[13]
Adv. Groenewaldt objected to the use of Annexure "A" as
annexed to the particulars of claim. The bone of contention
was that
the transcription to the English language was not done by a
Transcriber, hence the issue of authentication was raised.
He argued
that the translations used by the Defendant, has a transcription
certificate annexed thereto. Adv. Groenewaldt argued
that Plaintiff
must prove that annexure "A" is admissible and that the
translation from the Sesotho language to the English
language was
done by a qualified translator.
[14]
The court upheld the objection and ruled that annexure "A"
cannot be used. in the absence of English of the document being
authenticated by a Qualified Translator.
[15]
Adv. Ponoane requested for the services of a court interpreter to be
utilized, who is employed in the service of the
State, in translating
from the Sotho version to the English language.
[16]
The court allowed for the services of the interpreter to be used.
In this instance, a certain Ms. Thembisile Mtwisha (interpreter)
confirmed that her mother tongue is Sesotho and she speaks, write and
read the said language.
[17]
Mr. Ramakarane further testified that in giving context to the
background of this matter, it emanated from a Bid submitted
to the
Municipality for the construction of VIP toilets. Both the Bid
evaluation and the Bid adjudication committee, recommended
that TML
Civils ("TML") was appointed. When the appointment letter
was brought to Plaintiff, all documents relating to
the Bid was not
submitted to him. He then refused to sign the appointment letter and
insisted the documents be brought to him.
Plaintiff in turn contacted
the Chair of the Bid Adjudication Committee to inform that this is a
strange anomaly, that he is just
expected to sign the appointment
letter, without supporting documents.
[18]
The following day all the documents were send to Plaintiff and he saw
that the documents were fraught with inconsistencies.
An unsigned
letter was sent to TML on which basis they approached the court and
on Review it was ruled (on 17 May 2019) that TML,
should have been
afforded the same opportunity, to augment its bid, as Sibamu Building
Contractors (Pty)Ltd ("Sibamu").
[9]
The
court further found that Plaintiff's decision to appoint Sibamu, is
invalid and unlawful. Further, that the tenders must be
evaluated
side by side within 30 days, so that any concerns Plaintiff may have
about misrepresentations, TML should have the opportunity
to respond.
[19]
TML on 25 May, withdrew their participation. The Court find that the
appointment of Sibamu will stand, if they find validation
of fraud or
misrepresentation by TML..
[20]
The Rescission Application was dismissed on two grounds:
1. Counsel
had to Appeal
2. Issues of
fraud by TML had been ventilated and is not new, in the rescission
application.
[21]
Further, that part of the Order made on 17 May 2019, was that
Plaintiff acted unlawfully and a punitive cost order was
made against
Plaintiff, in his personal capacity. Thereafter, the Council sought
to place Plaintiff on Special Leave, on the basis
of the court
judgment. The interview on 25 June 2020, was premised on the Councils
deliberations of 24 June 2020. Plaintiff states
that despite
Defendant's articulation that he is corrupt, dishonest and generally
not morally upright, does he have no doubt that
he acted uprightly.
[22]
Subsequently, both Directors of TML have been arrested and the matter
has been transferred for trial in November 2022.
Plaintiff also
dismissed the Management Supply Chain involved in the TML case. The
three Municipalities confirmed that the completion
certificates
submitted by TML, was not only fraudulent but the completed work was
done by a different Company. The relevant documents
appear as from
pages 89, 90, 91 and 92. (Exhibit Bundle A)
[23]
Plaintiff testified that nowhere in the Court Judgment is there any
implication of corruption made against him.
[24]
Ms. Thembisile Mtwisha was asked to translate from the Sesotho
language as it appears in the Sesotho FM Interview with
MME Selloane
Lephoi (bearing a transcriber certificate) into the English language.
She started translating as from page 58 (Exhibit
Bundle B) from
paragraph 15 and
20. Page 61
, paragraph 20, page 63, paragraph 15,
page 64, paragraph 5 and 20, page 66, from the first line.
[25]
Plaintiff further testified that that the allegations against him of
fraud and corruption were malicious, deeply hurting
and wholly
untruthful. The words Manyofonyofo means corrupt; Bo menemene means
corruption and fraud.
Plaintiff
said that certain allegations are vague but the net effect of it all
is that it has been demeaning and an encroachment
on his dignity.
Plaintiff said that paragraph 5 at page 64 refers to a countersuit,
which he bears no knowledge of as he has never
been sued by anyone
for millions. Plaintiff said that he struggles to find any relevance
with regard to the Eskom issue, except
that what is being said by the
Defendant in this regard is derogatory and demeaning. He said that he
has never been accused of
any cases of fraud pertaining to Eskom or
the selling of Sites. To the contrary, Plaintiff has opened numerous
criminal cases where
Sites were allocated not in line with the law.
Plaintiff said that it is his belief that anyone with whistleblowing
allegations
to come forward and at no stage was he charged.
[26]
On 24 June 2020, Plaintiff was already on Special Leave and suspended
in November. In March 2021, Plaintiff obtained
an interdict for
unlawful suspension and the CCMA made an award and Plaintiff served
out his contract until it came to an end on
30 June. Plaintiff states
that he has dedicated his entire life to work in public service and
he feels aggrieved and humiliated
by the utterances made that he is
unethical and corrupt. Plaintiff says that no amount of money can
undo the harm done to his name
but he simply wants redress and
justice. He requests a retraction of the statement in the community
where it was made and the costs
incurred in respect of bringing this
application.
[27]
During cross examination, Plaintiff was referred to the letter of
demand as appearing on page 93 of Plaintiff's Bundle,
where at
paragraph 7, the demand is a public apology and an amount of R250
000. It was put to Plaintiff that the main issue is
the Review
Judgment and he was requested to read the 8 clauses of the said order
verbatim into the record. It was put to Plaintiff
that in his
evidence in Chief, he never said that he "favoured" the
Third Respondent. Plaintiff said that when he testified
he did not
give an annotation of all 8 clauses, but only states what was said in
the main.
[28]
Plaintiff conceded that nowhere in the order is he ordered to
adjudicate the bids "side by side". Plaintiff
conceded that
a personal cost order was made against him. Plaintiff conceded as at
page 145, paragraph 4, that "... only four
(4) bids were found
to be compliant and proceeded to the next level for functionality
scoring. The bid of the third respondent
was not among the four".
With reference to page 146, paragraph 5, it was put to Plaintiff that
he was untruthful, because
the BEG
[10]
and the BAG
[11]
recommended
the bid. Plaintiff replied that he understood. It was put to
Plaintiff that paragraphs 7,8,9,10,14,15,16,17,18,19,20,21,24,25,28,
implies that Plaintiff broke the law and compromised procurement
policies to facilitate the success of the third respondent and
that
means that plaintiff did not act honestly. Plaintiff responded that
during Review proceedings you cannot give oral. evidence
but his
suspicions was confirmed by all three (3) municipalities and it was
conclusively found that fraud was done by TML. Plaintiff
said that on
24 May, TML withdrew from all court processes after plaintiff
complied with the court order to invite them to the
re-assessment.
[29]
Plaintiff was again referred to page 155-156, paragraphs 28 and 29
and the fact that he did not answer the question whether
that was the
conduct of an honest person. And further that the cost order against
him in his personal capacity, is at the very
least indicative of
gross negligence. Plaintiff responded: "I see that".
Paragraph 32, page 157 was put to plaintiff
that he was not bona fide
and his behaviour in covering his tracks meant that he did not act
fair. Plaintiff responded: "I
see that".
[30]
It was put to Plaintiff that he helped an unresponsive bidder and he
bypassed by BEG and BAG, in his conduct. Plaintiff
responded that he
does not agree because he is not here to challenge the judgment of
Judge Mathebula. Plaintiff maintains that
he acted in accordance with
the Regulations which empowered him as an accounting officer to refer
the matter back. Further that
clause 6 of the Order states that once
the BEG found that the decision to reject is correct, then the
acceptance of the third respondent'
tender will stand. Plaintiff
states that there is no way that the court would implement something
that is corrupt. And subsequently,
Plaintiff's suspicions were
validated by the three (3) municipalities, which according to
Plaintiff vindicated him, in that TML
acted fraudulently. Plaintiff
says that if the paying of a punitive cost order is the price he had
to pay to prevent a fraudulent
company from doing business with the
State, then he will do it again. Plaintiff concedes that he did not
act in accordance with
Regulation 14, in giving TML an opportunity.
Plaintiff re- iterated again that he is not here to deal with the
judgment but the
allegations made against him in the media, by
Defendant, which is spurious.
[31]
It was put to Plaintiff that he nevertheless tried to have the
judgment of Judge Mathebula rescinded. Further that paragraph
51,
page 120 (Exhibit B) states that Plaintiff's success was based on the
fact that the wrong Regulation was used, therefore the
Court did not
say that Plaintiff was innocent. Further that Plaintiff's success in
the CCMA was on a technical point and no finding
was made on the
merits that he was innocent. Plaintiff responded that there was no
court finding stating that he was guilty.
[32]
It was put to Plaintiff that during the Radio Interview he did not
disclose the content of the Court Order fully and
that he made it
seem all technical and not that he did something wrong. It was put to
Plaintiff that he was on Radio to respond
to the Court Order but he
failed to inform the listeners of the material findings of the court
order. Plaintiff responded that
he is not here to argue the Judgement
and in his view he gave the tenets of the Order namely:
1. That he
did not comply with the procurement framework;
2. That
despite the punitive cost order, plaintiff has a clear conscious.
Plaintiff
says that it is now an undisputed fact that TML did not do work in
the three municipalities, and Plaintiff had the Supply
Chain Managers
dismissed and he will keep fighting those who seek an unfair
advantage.
[33]
It was put to Plaintiff that despite having a second opportunity to
disclose the Court Order, he did not and that he
maintained to the
public on the airways that his decision was correct, despite the
wording of ·the Court Order. Plaintiff
responded that Clause 6
of the Oder meant that his decision stood. Plaintiff said that the
R5Million rand that was paid was not
an upfront payment but was for
material and Site establishment and as it stands, the project was
executed and completed. Plaintiff
is of the view that had the
validation of the fraud on the part of TML been before the Review
Court, then a different decision
would have been reached.
[34]
Plaintiff was referred to the Radio Interview dated the 2nd of
October 2020 at page 70 (Exhibit B) at the bottom where
defendant
gives her definition of corruption. Further at page 72 where it reads
"Those are the two definitions that I wanted
to give so that
listeners can understand when I said that this man is full of
corruption in the municipality". In this regard
Plaintiff was
referred to page 288 which reads:
Chapter- Auditor General Audit
Findings.
At
page 292:
46 Irregular expenditure 2019 2018
41826512:
49 813134
SCM
processes and procedures
not
followed
71
394 787
Cashiers
short banking 1030
[35]
Plaintiff said that despite the shortfall of R1030, it does not mean
that the money was stolen, only that there was non-compliance.
It is
fruitless expenditure that is more problematic. Plaintiff says that
procurement without inviting bids is not a crime. He
said that a
finding of criminality must be reported by the AG, which in this
instance was never done. When asked to explain the
overpayment of
531145, Plaintiff said that there was a historical miscalculation
that there was an overpayment and they issued
letters that the monies
must be recouped. In respect of the Unauthorized expenditure, it is a
non-cash item.
44
Unauthorized expenditure 2019 2018
855
835 944 262 833 219
[36]
It was put that Defendant will say that places like Zone 8 and ext.
11 in Ficksburg are mostly populated by Lesotho citizens
and that
they live in the RDP houses. In Site 6, an RDP house was given to a
certain Mr Mkampapo, who is a Lesotho National. Also
in Zone 8, RDP
houses were being occupied by illegal Lesotho Nationals and Zone 8 is
said to be the murder capital of the Free
State. Plaintiff said that
he bears no knowledge and that it has nothing to do with the
Municipality. If a Site had to be allocated,
then Housing and Human
Settlements works in tandem. Further, that (at page 72) Themba Zondo
possesses a diploma, whilst someone
with a Social Science Degree, was
required. Plaintiff replied that a NQ Level 8 = Post Matric
qualification, therefore a 3-year
degree. When he applied as
Director, Zondo had already served as LED Manager and had an NQ Level
7 and an Application for waiver
was done and accepted.
[37]
It was put to Plaintiff that Defendant will say that everything she
said in both interviews are the truth and in the
interest of the
community. At page 163 it reads "The accounting officer was
notified of the material irregularity on 30 March
2021 and was
invited to make written submission on the actions taken and those
that will be taken to address this matter".
The late payment
resulted in interest of R2 837 021.Plainitff conceded that at times
they did not pay Eskom on time.
[38]
Page 165 is a letter addressed to the Sesotho Local Municipality and
page 166 is Plaintiff's response. Page 152 is a
Lease Agreement, yet
5.1 reads "The Lease Contract is rent free.in all four units,
this is to counter the costs incurred by
the lessee for the
renovation made on the old post office building prior to occupation".
The Lease was for a period of 36
months and clause 5.1 does not set
out the renovations that has to be done. Plaintiff responded that
they used a derelict building
and the lessee had to renovate the
building.
[39]
It was put that Defendant never used the word "fraud" and
that she gave her definition of corruption. Plaintiff
said that "bo
menemene Manyofonyofo" is a superlative, the extreme.
It
was put to Plaintiff that when Defendant used the word "thing"
it was used as a filler word and not meant to describe
the AG or
Zonda. Plaintiff said it is derogatory.
[40]
Paka Mavaleliso ("Mr. Mavaleliso") testified under oath
that he is employed as the Speaker of the Sesotho Municipality.
He
confirms plaintiff assumed responsibilities at the Sesotho
Municipality as a Municipal Manager in 2018. Mr. Mavaleliso states
that there was turmoil before the Plaintiff arrived, which led to the
death of Andries Tatane. The people were fighting due to
service
delivery issues and Plaintiff was send to assist with the challenges.
Plaintiff was seconded as Municipal Manager and later
appointed.
Prior to Plaintiff's appointment, in terms of the Audit outcome, the
Municipality was on a disclaimer but since his
appointment, they had
a positive outcome.
[41]
Mr. Mavaleliso said that he knows the Defendant as she is a resident
of Ficksburg, just like him. She is a person who
fights for lack of
service delivery in Sesotho and is often on the community radio
station. After Plaintiff's contract expired,
did he not re-apply and
his post was advertised. Defendant was one of the applicants.
Defendant did not make the shortlist and
a certain Malatjie was
appointed. Mr. Mavaleliso states that as Speaker, he was given the
list of people who applied. He said that
Defendant most of the time
made allegations on radio that things had gone from bad to worse,
which was totally incorrect. In the
respect of the last Audit Report,
the municipality improved from a disclaimer to being unqualified. He
further said that Plaintiff
was totally against corruption and
quickly took steps in referring people to the financial board for
disciplinary steps. Mr Mavaleliso
states that what he knows as the
Council about TML, is that Plaintiff brought it to the Council's
attention immediately and he
was given authority to file a criminal
case. The Council were told that the appointment of TML was not
properly done.
[42]
Mr Mavaleliso said that he is not aware of Plaintiff being involved
in "Manyofonyofo" and that such will be
a very unfortunate
statement against him. If there is a complainant against the
accounting Officer, then it must be brought to
the attention of the
Executive Mayor and the Defendant did not approach the executive
mayor, that he knows of. Previously the Municipality
had a disclaimer
and it improved to unqualified for three (3) consecutive years;
2012-2013; 2014- 2015; 2016-2017.
At
some point the Council took a resolution to suspend Plaintiff and
they regressed. This year again, the municipality had an unqualified
audit.
[43]
During cross examination, Mr Mavaleliso said that he was aware of
Defendant fighting for a lack of service delivery.
He confirmed that
Defendant applied for the post in May 2022 but stated that the advert
was clear with regard to the requirements
and the Defendant did not
make the top five. Mr Mavaleliso said that he did not know of any
wrongdoing when Plaintiff was Municipal
Manager. He said that the
Judgment of Judge Mathebula was brought to the attention of the
Council but he has not read it recently.
It was put to Mr Mavaleliso
that what Defendant said on radio was the truth and it was in the
public interest to tell the truth
as an activist. Mr Mavaleliso
responded that some of the things mentioned by the Defendant was
simply untrue.
THAT
CONCLUDED PLAINTIFF'S CASE
[44]
Selloane Elizabeth Lephoi ("Defendant") testified under
oath that she lives in Ficksburg and is a business
consultant and
community activist. She is involved in many Forums and various
projects/organisations such as;
1.
Chairperson of Ficksburg my home
2. Executive
member for Sesotho delivery forum
3. Sechaba Sa
Ficksburg
Defendant
states that on 25 June 2020 she was on Sesotho FM Radio station.
Defendant read page 32 starting from the word "Presenter",
into the record. She confirmed that the Plaintiff was given an
opportunity to give his version to the listeners. Defendant then
decided to call in that day, because the community needed to know the
truth. Defendant then read page 47, paragraph 30 until page
48, into
the record. She said nowhere did she say that the court found the
Plaintiff guilty of corruption.
[45]
Page 69, refers to the interview on 2 October 2020. Defendant said
that she was called by the news producer about a letter
she had
received. (letter of demand page 93 of Bundle). Defendant read page
70 from paragraph 15 into the record. She said that
she gave a
definition of what corruption is on page 71, from paragraph 5. At
page 72, paragraph 15, Defendant refers to the Auditor
General and
the findings of the AG on page 288, 291,292 (Bundle B). Defendant
read into the records:
1. Irregular
expenditure
2.
Unauthorised expenditure
3. Fruitless
and wasteful expenditure
4.
Shortcomings in 2018 and 2019
5.
Procurement without inviting competitive bids
6. Cashier's
short banking-under investigation
[46]
Defendant in explaining the appointment of Themba Zondo("Zondo")
said that the advertisement called for Degree
in Social Development
or equivalent. When the appointment was done, Zondo did not have a
degree, yet he was appointed as Director.
[47]
Defendant said that Ole (Power System) page 153, according to the
documents is situated in Vanderbilj Park, and Plaintiff
said that is
his hometown and this company was awarded the job.· Further,
is the issue with the RDP houses, which should
be issued to the poor
citizens of the country but when you go to the physical addresses,
the house is occupied by illegal immigrants
or the landlord of the
property is an illegal immigrant and rent is paid to Lesotho
nationals. Defendant read page 74 paragraph
5 into the record. She
explained that page 165 refers to an application for a business site
and page 166 is the response from the
municipality and stated that no
tender was issued for sites in Ficksburg, yet the sites are occupied.
Page 152 refers to a Lease
Agreement and there was no tender process
in respect of this lease agreement and it is not known what the value
of the renovation
is, according to the agreement.
[48]
Defendant said that page 85 is the judgment she referred to, whilst
on air. She said that she is the one that came to
the conclusion that
plaintiff is corrupt and not that the court said so. Defendant said
that the actual wording is to be found
on page 99, paragraph 30 and
on page 100, paragraph 32 and 33. Defendant said that the reason for
the cost order was for the high-handed
manner Plaintiff used and the
fact that he downplayed his actions. Defendant said that she wanted
the truth to come out. Defendant
further read into the records at
page 95, paragraphs 21,22,25 and 28 and said all this was never
disclosed during the interview
on air. Defendant maintained that
during both interviews, her words used was the truth.
[49]
Defendant stated that the word "nthwena" was used as a
filler word, when she could not find the right word.
Defendant
conceded that she did apply for the position of Municipal Manager
because she could not sit by and let her hometown sink
in filth. She
said that she did write a letter to the mayor and a meeting was
requested where she spoke of the conditions of the
roads, water and
sanitation. Defendant confirms that she did give a definition of
corruption in the interview and the reason she
called-in, was because
she wanted to tell the community the truth.
[50]
During cross examination, Defendant explained that she was the
Chairperson of Ficksburg my Home, Spokesperson of Sesotho
Service
Delivery and a committee member of Seshaba Ficksburg. Defendant said
that she was aware of The Prevention and Combating
of Corrupt
Activities Act 12/2004 (PCCA), however she did not in terms of
Section 34 (h) which creates a duty to report corrupt
transactions,
report anything to the police. Defendant also did not report these
alleged allegations of corruption to the public
protector. Defendant
denied that she went on air at Sesotho FM Radio, to profile herself
for personal interest. She however confirms
that she applied for the
position of Municipal Manger, when Plaintiff did not renew his
contract. Defendant said that she holds
various degrees and occupied
various positions. Defendant said that it makes no sense that she
would be fighting Plaintiff simply
because he was an outsider of
Ficksburg. She said that investors and _roll-players, will come to
Ficksburg, having acquired knowledge
and skill elsewhere, and if the
people of Ficksburg benefitted from them, then there is no problem.
Defendant confirmed that she
did say that Plaintiff must go home.
Defendant said that the problem she had with the company of
Vanderbilj, is their performance.
The company was supposed to sort
out the issues with electricity but it failed to do so and now monies
are owed to Eskom. Defendant
confirms that she said that this was
corruption. Defendant said that she did not report this to the police
because she told the
people that was being billed that it is
incorrect and they should go and report or open a case. It was
pointed out to Defendant
that this case falls under section 34(h)-
that she was the one who uttered the words that Plaintiff is
"Manyofonyofo".
Defendant conceded.
[51]
When asked why she opted to go on Radio as oppose to reporting this
matter to the police, Defendant said that the issue
of electricity
affected the community and that the people affected by this
mismanagement, should go and report. Defendant said
that she used the
word "corrupt" because whilst being interviewed, the
Plaintiff lied on air to the community and he
should have said what
was in the judgment.
[52]
Defendant conceded that the Letter of Demand came after the 25th of
June and that on the 2nd of October, defendant said
that she defined
corruption to the community and gave examples of what she said.
Defendant said that she did not take the AG Report
to the police. It
was put to Defendant that Plaintiff was brought to Sesotho and
improvements was made. Defendant responded that
now the sewer
overflows, now there are potholes, now the drains are blocked and it
gets flooded. It was put to Defendant that the
list mentioned is
complainants about service delivery and is not corruption as defined
by the Act. Defendant said that a failure
in service delivery does
not happen in a vacuum and that corruption is a pre-cursor to a
failure in service delivery for example
if funds is not used for
infrastructure, that is breaking the law. And if people serve their
own interest, there is a relationship
between corruption and a
failure to deliver services. Defendant said that she is aware that
Plaintiff opened a case of fraud and
corruption against the TML
officials but he did not act immediately, as he only opened the
criminal case in 2020, yet the information
was given to Plaintiff in
2018. When Plaintiff failed in his court case, he took the
information and approached the three (3) municipalities,
which was
the information he used in his Rescission Application. Only after the
Rescission Application was denied, that is when
Plaintiff opened the
criminal case.
[53]
Defendant said that she stands by her assertion that Plaintiff is
doing "Manyofonyofo" (corruption) with illegal
immigrants,
despite not having reported it. Defendant said that she does not know
whether the Plaintiff received gratification
from those immigrants.
She also does not have information that Plaintiff received money from
the company in Vanderbilj or whether
Plaintiff received any money or
gratification, in the appointment of Zonda. Defendant also do not
know whether Plaintiff received
money in the allocation of business
sites. Defendant said that the AG does not mention that Plaintiff was
given money or gratification.
[54]
It was put to Defendant that her accusations of corruption are not
based on substance but on false information which
is malicious in
serving her own interest, to profile her to later apply for that
position. Defendant responded that none of the
information she
provided is false and that she used the English Dictionary in
defining corruption, which refers to an abuse of
power. It was put to
Defendant that she had a duty to report the corrupt activities when
she became aware of it, but she failed
to report it to the relevant
authorities.
[55]
Defendant concedes that the Judgment did not find the Plaintiff
guilty of corruption because nowhere was the word corruption,
used.
Defendant concedes that her attorney in response to the Letter of
Demand wrote a letter at page 97 (of Exhibit A) stating
that "The
judgment speaks for itself'. Defendant states that Plaintiff is
corrupt and she clearly pointed out why, based on
the words used by
the court, in referring to the position he held. Defendant said that
the Judgement says how the laws were broken
and how an unresponsive
bid became a responsive one. Defendant concedes that Sibamu was
ultimately appointed but that was in terms
of the remedial
action'that had to be taken. She says further that the judgment is
cast in stone and the court had found then that
the appointment of
Sibamu was incorrect, hence the personal cost order. Defendant
further conceded that the court in its judgment
did not use the word
"corrupt" but said that the court found that the Plaintiff
bended the rules. Defendant based her
definition of corruption on the
English Dictionary meaning, in that Plaintiff chopped procedures
which are.clearly outlined. Defendant
said that Bo menemene is
dishonesty but that-dishonesty is not fraud.
[56]
When asked why such a strong word as corruption is used, when
Plaintiff is not responsible for the appointment of Directors,
Defendant said that as the accounting officer, he makes the
recommendation which council approves or disapproves. Asked what was
corrupt or fraudulent in the response letter (page 166) by Plaintiff,
defendant said that the manner in which Sites are allocated
is
dishonest without tender processes taking place.
[57]
When asked how "overspending" amounts to corruption,
Defendant said that the expenditure was "unauthorised";
Plaintiff did not follow the law and that is corruption. It was put
to Defendant that Municipal Finance Management Act 56 of 2003
(MFMA)
would not have allowed for it and Plaintiff would have been jailed
for it. Defendant said that because the Defendant did
not go to the
council, it was unauthorised. Defendant further stated that the AG
Report did not make a finding of corruption against
the Plaintiff,
but the report explains Plaintiff's corruption, which is the
irregular expenditure, shortcomings, deviations, cashiers
short
banking, all which is corruption according to Defendant's
interpretation.
[58]
When asked what corruption was done by Plaintiff if a tender process
was done, in respect of Ole, Defendant said that
she has questions
about the company's appointment and that the matter is presently with
the Hawks. Defendant says that an open
process in terms of the
bidding could have been done and in respect of Eskom, if the monies
collected is not used to pay Eskom,
that is dishonesty and a material
irregularity.
[59]
It was put to Defendant that she has a personal vendetta against the
Plaintiff, even writing to the Minister, complaining
that Plaintiff's
salary was R2M.
Defendant
said that in this regard Plaintiff had to pay back R700 000,00 from
his own pocket and that Plaintiff's version was contested.
THAT
CONCLUDED DEFENDANT'S CASE
[60]
It is prudent for this court at the outset, to deal with the argument
raised that Plaintiff failed to prove the Defendant's
alleged
publications as set out in the particulars of claim. It is indeed so
that this court ruled that Annexure "A"
to the Plaintiff's
particulars of claim, purporting to be the English translation of the
Sesotho Radio interview was inadmissible
as on the face of it, it did
not correspond with the English version, so transcribed by a
qualified translator, who affixed a transcription
certificate to
verify it to be a true and correct transcript of the proceedings
recorded.
[61]
However, as argued by Plaintiff, that there was discovery of the
Sesotho version of the Radio interview and the English
translation
has always been a part of the particulars of claim. To this end,
Defendant even filed an amended pleaded to this document
and
Plaintiff has not taken any issue. This court then ruled that the
Sesotho language interpreter, so employed by the State, can
be
utilized to translate directly from the discovered Sesotho version,
into the English version.
[62]
The argument that Plaintiff failed to prove the Defendant's alleged
publication as set out in the particulars of claim,
is not sustained.
The principles governing Exceptions to particulars of claim are
useful mechanisms to weed out cases without legal
merit. These
mechanisms were not employed.
[63]
As stated above, Defendant denies that any of the statements made by
her during the first and the second discussions
were scandalous,
false and defamatory of the Plaintiff. Defendant further denies that
the statements were wrongful and/or were
made to injure the
Plaintiff. Defendant specifically pleads that the statements made
were essentially true and that the publication
of the statements
made, were in the public interest.
[64]
Defendant states that the presenter of the Sesotho community radio
station was initially in conversation with the Plaintiff.
The
presenter referred to the judgment and the Plaintiff was granted an
opportunity to respond to the judgment on air.
[12]
To
the mind of Defendant is was clear from the first conversation that
the Plaintiff failed to convey all the relevant facts to
the judgment
to the listeners during the interview. Once she heard that Plaintiff
did not disclose all the true facts relating
to the judgment to the
listeners, she decided to phone in.
[13]
[65]
In proving her defence that the first and second statements were at
least essentially true and in the public interest,
this court
extensively referred to the judgment of honourable Judge Mathebula,
with Judge Murray concurring.
[66]
Without rehashing the judgment verbatim, is it so that the court
expressed its reservations in relation to the conduct
of Plaintiff,
in no uncertain terms. The court as an example of its reservation,
found that:
"The Plaintiff's
conduct was ostensibly not in tandem with the prescripts of law.
Plaintiff's failure to comply with the clear
provisions of the Supply
Chain Management Act and regulations demonstrated that his conduct
was unlawful, which renders his decisions
irregular and invalid.
(paragraph 20) The court held that the arbitrary conduct of the
Plaintiff did not measure up to that standard
(paragraph 21). The
court found that at best, it was an irrational exercise of
Plaintiff's mandate (paragraph 21). The court held
that the
inescapable conclusion is that the integrity of the procurement
policies was compromised to facilitate the success of
the third
applicant in being awarded the tender (paragraph 28). The court held
that in the exercise of his duties as the accounting
officer of the
Municipality the Plaintiff displayed at the very least, gross
negligence by ignoring and actively bending the said
guidelines and
regulations governing matters of that nature (paragraph 31). The
court further held that his behaviour was that
of a person who
utilised his power regardless of and in contempt of the very laws
that empowered him to act. He did so without
any bona fide reasons
and unreasonable perpetrated his improper actions. His behaviour in
covering his tracks by providing reasons
that were found to be an
afterthought points to a person whose commitment to fairness and
clean governance is found wanting. This
is contrary to the
Constitution of the Republic and cannot be condoned by any stretch of
the imagination. (paragraph 32).
[67]
Even having regard to the personal cost order that the court granted
as a significant tool in combating for example ineptitude
in
government, nowhere in the Judgment as correctly pointed out by the
Defendant, has the court ruled the Plaintiff to be Corrupt.
[68]
So too, does none of the AG reports state that Plaintiff is Corrupt,
despite the Irregular expenditure, SCM processes
not followed;
Cashiers short banking; Unauthorised expenditure, appointment of
Director Zonda, Site allocations; RDP houses being
occupied by
foreign nationals; late payment of Eskom and Lease Agreement with
Ole.
[69]
The Defendant wants this court to believe that based on the wording
of the judgment and having referred to the atiovementioned,
that this
clearly points out that Plaintiff is Corrupt, in line with her
definition of Corruption as per the Oxford Languages Google
Search,
thus labelling plaintiff's conduct as dishonest and being an
individual who is in a position of power, doing his work in
a
dishonest or untruthful manner.
LEGAL
PRINCIPLES OF DEFAMATION
[14]
AND APPLICATION
[70]
Defamation, can be defined as the unlawful publication of a
defamatory statement concerning another statement. Plewman
AJ
[15]
defined defamatory statements as follows:
"...a defamatory
statement is one which injures the person to whom it refers by
lowering him in the estimation of the ordinary
intelligent or
right-thinking members of society..."
[71]
In the case of Mthembi-Mahanyele v Mail & Guardian Ltd and
Another
[16]
, the SCA confirmed
that the test for determining whether words have a defamatory meaning
is whether a reasonable person of ordinary
intelligence might
reasonably understand the words concerned to convey a meaning
defamatory of the litigant concerned.
[72]
The legal principles to be applied were summarised by the
Constitutional Court in the case of Le Roux and Others v Dey
[17]
.
The CC further stated that:
"In establishing the
ordinary meaning, the court is not concerned with the meaning which
the maker of the statement intended
to convey. Nor is it concerned
with the meaning given to it by persons to whom it was published,
whether or not they believed it
to be true, or whether or not they
thought less of the plaintiff. The test to be applied is an objective
one. In accordance with
this objective test the criterion is what
meaning the reasonable reader of ordinary intelligence would
attribute to the statement.
In applying this test, it is accepted
that the reasonable reader would understand the statement in its
context and that he or she
would have had regard not only to what is
expressly stated but also to what is implied." (my emphasis)
[73]
O'Regan J in the case of Khumalo and Others v Holomisa
[18]
described the relationship between the right to freedom of expression
and dignity and held that although freedom of expression
is
fundamental to our democratic society, it is not a paramount value.
O'Regan said that it must be construed in context of other
values
enshrined in our Constitution, particularly the values of human
dignity, freedom and equality.
[74]
The Defendant, just as Plaintiff are no ordinary members of society.
They are both intellectually sophisticated and clearly
occupy a high
standing within the community. The Plaintiff and Defendant was
neither remarkably good or remarkably bad witnesses.
This court is
mindful that to rely on demeanour alone, would amount to a
misdirection. Plaintiff correctly points out that it is
peculiar for
Defendant as a person who holds a position of authority in various
organisations, aimed at combatting the lack of
service delivery will,
if the information at her disposal concretely points to Corruption on
the part of the Plaintiff, not act
thereupon and report such
information, knowledge or suspicions to the relevant authorities. It
is the view of this court that the
information at the disposal of
Defendant and which she relied upon, provided her with no armor, in
this connection.
[75]
The Defendant conceded that she is the person who came to the
conclusion that Plaintiff was corrupt. This conclusion
is supported
by a statement made in a letter of reply from the Defendant's
attorneys, in which the following is states:
"Your office must
surely agree that the conduct of the Municipal Manager is suspicious
and for a layman, it takes no stretch
of the imagination to conclude
that he may have been or may still be implicated in criminal conduct"
[76]
To the mind of this court, is this exactly the impression that was
sought to be implied to the reasonable listeners of
Sesotho Community
Radio, when the Defendant made the statements of Corruption in the
first and second discussion or interview.
The fact that Defendant
gave a definition of corruption during the second interview, is of no
consequence in light of the fact
that the court is not concerned with
the meaning which the maker of the statement intended to convey but
rather what is expressly
stated and also what is implied. In the
absence of proof of corruption, is it the view of this court that
these utterances or statements
of Corruption is defamatory.
[77]
This court is mindful that the defences raised, protects freedom of
speech and serve the public interest by ensuring
that certain kinds
of defamatory statement can be made with impunity. In this court's
view, the utterances made of Corruption by
the Defendant were harmful
to the good name and reputation of the Plaintiff and amounted to a
violation of Plaintiff's dignity.
This court finds that the Defendant
has failed to prove on a balance of probabilities that the statement
of Corruption made against
Plaintiff, on a public platform, namely
Sesotho Radio, was true and in the public interest.
[78]
Reputation and dignity are discrete concepts. Respect for reputation
and dignity of others is a requirement of our law
with unfortunate
consequences for defaulters. Thus, damages arising from defamation,
fall to be awarded to an injured party thereto.
In the case of
Dikoko
[19]
, the difficulty
that courts face when quantifying damages in defamation cases was
rationalized in the following terms namely:
"There is a further
and deeper problem with damages awards in defamation cases. They
measure something so intrinsic to human
dignity as a person's
reputation and honour as if these were market-place commodities.
Unlike businesses, honour is not quoted
on the stock Exchange. The
true and lasting solace for the person wrongly injured, is the
vindication by the court of his or her
reputation in the
community.·The greatest prize is to walk away with head high,
knowing that even the traducer has acknowledged
the injustice of the
slur..."
[79]
Some of the important factors to be considered to determine the
quantum in defamation actions, was emphasized in the
case of Muller
[20]
, as follows"
"...the character
and status of the Plaintiff, the nature of the words used, the effect
that they are calculated to have upon
him, the extent of the
publication, the subsequent conduct of the Defendant and, in
particular, his attempts and the effectiveness
thereof, to rectify
the harm done"
[80]
Plaintiff is a career public servant, having started as a public
prosecutor in September 1988 and occupied various Senior
Management
positons thorough his career, spanning 34 years. That much was
attested to by Mr Mavaleliso, who testified that he was
not aware of
Plaintiff being involved in Corruption and that such a statement will
be very unfortunate. The Defendant attempted
to justify her
defamatory statements in the way that she orchestrated her defences
during tile trial. Notwithstanding a letter
of demand, the defendant
failed to take any steps to apologize for the defamatory statements
made.
[81]
This court is mindful that awards generally tend to be conservative
because defamation actions should not be embarked
upon for the
purpose of generating income.
[82]
As a general rule, costs are awarded to the successful party.
ORDER
[83]
In the result, this court makes the following order in favour of
Plaintiff, against the Defendant:
1.
That the Plaintiff's claim for damages is granted and Plaintiff is
awarded the amount of R350 000,00
(Three hundred and fifty thousand
rand only);
2.
Defendant is to make an unconditional public apology and it to be
broadcasted on the airwaves of Sesotho
Radio Station;
3.
Defendant is liable for Plaintiff's costs of suit on the scale as
between party and party.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR PLAINTIFF:
Adv.
Ponoane
Instructed
by: Ponoane
Attorneys
COUNSEL
FOR DEFENDANT:
Adv.
Groenewald
Instructed
by: Symington
De Kok Inc.
[1]
Particulars of claim, paragraph 3.
[2]
Particulars of claim, paragraph 4.
[3]
Particulars of claim, paragraph 5.
[4]
Particulars of claim, paragraph 7.3
[5]
Defendant's Amended Plea, paragraph 4
[6]
Defendant's Amended Plea, paragraph 7.1
[7]
Defendants Amended Plea, paragraphs 8.1 to 8.8
[8]
Plaintiff's written heads, page 3, paragraph 11
[9]
Third Respondent in Case number: 855/2019.
[10]
Bid Evaluation Committee.
[11]
Bid Adjudication Committee.
[12]
Record, Defendant's Trial Bundle, p.32, line 1 to 5.
[13]
Paragraph 21, defendant's written heads of argument.
[14]
Article by Alisha Naik, published 12 November 2021.
[15]
Hix Networking Technologies v System Publishers (Ply) and another
1997 (1) SA 391 (A).
[16]
2004 (6) SA 329
(SCA).
[17]
2011 (3) SA 274 (CC).
[18]
[2002] ZACC 12
;
2002 (5) SA 401(CC)
(2002 (8) BCLR 771
; (2002] ZACC 12) para 25.
[19]
2006 (6) SA 235
(CC} at para (109-110].
[20]
1972 (2) SA 589
(C) at 595.