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2023
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[2023] ZAFSHC 222
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Lephoi v Ramakarane (4474/2020) [2023] ZAFSHC 222 (7 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case No.: 4474/2020
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the matter between:
SELLOANE
LEPHOI
Applicant/Defendant
[1]
and
TSEPISO
RAMAKARANE
Respondent/Plaintiff
[2]
Coram:
Opperman, J
Date
of hearing:
2
June 2023
Date
of judgement:
7
June 2023
Delivered:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to SAFLII
on 7 June 2023. The date and time for hand-down is deemed to be 7
June 2023 at 15h00
JUDGMENT
[1]
The application for leave to appeal that
lies before Court relates to a matter that served on trial
before
Africa, AJ.
[3]
The action was
for defamation allegedly suffered when the applicant made public
defamatory statements against the respondent. Africa,
AJ ordered
a
quo
that:
[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.
[2]
The crux of the application for leave to appeal is,
inter alia
,
in the use of the word “corrupt” by the applicant after a
finding of the High Court of this Division (Mathebula-judgment
dated
12 June 2019). The applicant maintains she was referring to this
judgment against the respondent when she defined and discussed
the
conduct of the respondent and she used the word in the dictionary
meaning thereof. These are the undisputed facts as per the
judgment
a
quo
(The Africa-judgment):
[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".
[5]
From the aforesaid Judgment the following is inter alia evident:
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.
[3]
Slotting in with the above, the grounds for leave to appeal against
the Africa-judgment are now:
1.
The Court erred by not finding that the
publications made by the applicant on the Sesotho Radio Station
regarding the respondent
were essentially true and in public
interest;
2.
The Court erred by failing to duly consider
the context within which the applicant made the publications
regarding the respondent
on the Sesotho Radio Station;
3.
The Court erred by failing to duly consider
the implications of the judgment granted on 12 June 2019 against the
respondent in the
matter between TML Civils (Pty) Ltd v Municipal
Manager of Sesotho Local Municipality and others, case number
855/2019;
4.
The Court erred by failing to duly take
into consideration that corruption is defined in the Google’s
English Dictionary as
“dishonest or fraudulent conduct by those
in power, typically involving bribery”;
5.
The Court erred by failing to duly consider
that the applicant gave a definition and explanation of what she
considered as to be
“corruption”;
6.
The Court erred in granting damages to the
respondent in the amount of R350 000.00;
7.
The Court erred by not granting costs on a
Regional Court scale.
8.
A quo
the
granting of judgment in favour of the respondent was erroneous. The
claim should have been dismissed on the facts and the law.
[4]
The atmosphere of this case reminds of the words of the
Constitutional Court in
Shinga v The State and another (Society of
Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae); S v
O'Connell and others
2007 (2) SACR 28
(CC) that defined the
judicial character of the task conferred upon a presiding officer in
determining whether to grant leave to
appeal. It should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the
ineluctable correctness of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct
to an Appellate Court.
[5]
T
he Supreme Court of Appeal in
Ramakatsa
and others v African National Congress and another
[2021]
JOL 49993
(SCA) in March 2021 ruled that:
[10]
… If a reasonable prospect of success is
established, leave to appeal should be granted. Similarly,
if there
are some other compelling reasons why the appeal should be heard,
leave to appeal should be granted. The test of reasonable
prospects
of success postulates a dispassionate decision based on the facts and
the law that a court of appeal could reasonably
arrive at a
conclusion different to that of the trial court. In other words, the
appellants in this matter need to convince this
court on proper
grounds that they have prospects of success on appeal. Those
prospects of success must not be remote, but there
must exist a
reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must
be shown to
exist.
[6]
The peculiar facts of this case, as correctly surmised by the
applicant in their heads of argument,
direct that the statements of
the applicant might have had some substance. She was guided by the
Mathebula-judgment:
15.15 The Court
held the following:
“
The
inescapable conclusion is that the integrity of the procurement
policies were compromised to facilitate the success of the third
applicant in being awarded the tender. The first respondent
acted in an unfair and unjust manner, outside the scope of his
powers, so as to guarantee the success in favour of the third
respondent.” (paragraph 28);
15.16 The Court
further held that the reasons for his conduct advanced by the
respondent were largely an afterthought and
not supported by the
documents he relied on (paragraph 29);
15.17 The Court
held that in the exercise of his duties as the accounting officer of
the Municipality the respondent displayed,
at the very least, gross
negligence by ignoring and actively bending the said guidelines and
regulations governing matters of that
nature (paragraph 31);
15.18 The Court
further held the following regarding the respondent:
“
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 unreasonably 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 imagination.”
(Paragraph 32);
15.19 The Court
consequently ordered the respondent to pay the costs in his personal
capacity (paragraphs 8 and 31).
[7]
A reasonable prospect of success was established on the grounds and
arguments submitted by the
applicant and leave to appeal should be
granted.
[8]
ORDER
1.
The applicant is granted leave to appeal to
the Full Bench of the Free State High Court, Bloemfontein against the
whole of the order
and judgment granted on 21 April 2023.
2.
Costs to be costs in the appeal.
M OPPERMAN, J
APPEARANCES
For the
applicant
ADVOCATE W
GROENEWALD
Chambers,
Bloemfontein
SYMINGTON DE
KOK ATTORNEYS
Bloemfontein
For the
respondent
MR MJ PONOANE
PONOANE
ATTORNEYS
Bloemfontein
[1]
Selloane
Lephoi will be referred to as the “applicant”.
[2]
Tsepiso
Ramakarane will be referred to as the “respondent”.
[3]
Her
term as acting judge lapsed and the matter is entertained in terms
of
section 17(2)(a)
of the
Superior Courts Act 10 of 2013
read with
Rule 49(1)(e) of the Uniform Rules of Court in that leave to appeal
may be granted by the judge or judges against whose
decision an
appeal is to be made or, if not readily available, by any other
judge or judges of the same Court or Division.