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[2019] ZAFSHC 126
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Mayula Procurement and Property Management (Pty) Ltd and Another v Kopane and Others (1885/2019) [2019] ZAFSHC 126 (1 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
1885/2019
In
the matter between:
MAYULA
PROCUREMENT AND PROPERTY
MANAGEMENT
(PTY)
LTD
1
st
Applicant
HANTSI
BHETILDA
MATSEKE
2
nd
Applicant
and
SEMAKALENG PATRICIA
KOPANE
1
st
Respondent
THE DEMOCRATIC
ALLIANCE
2
nd
Respondent
PULANE
CHOANE
3
rd
Respondent
CENTRAL MEDIA GROUP
(PTY) LTD t/a “OFM”
4
th
Respondent
CHARLES
SMITH
5
th
Respondent
MEDIA 24 HOLDINGS
(PTY) LTD t/a “NETWERK 24”
6
th
Respondent
HEARD
ON:
27 JUNE 2019
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
1 AUGUST 2019
[1]
This is an application for a defamation interdict and for the removal
and deletion of a press statement and of news articles
subsequently
published in relation thereto. The application originally came
before the court as an urgent application on
30
April 2019
, but was struck from the roll with
costs for want of urgency by the duty Judge on that day. It was
re-enrolled again to be
heard before me in the ordinary course.
[2]
It is common cause that the First Applicant is a company providing
accommodation to government institutions (in Bloemfontein),
and that
the Second Applicant is the sole director thereof. The First
Respondent is the provincial leader of the Democratic
Alliance in the
Free State Province. The Third to Sixth Respondents are role
players in the media business. The application
has its roots in
a media briefing called on
1 April 2019
by the First Respondent in Bloemfontein in her capacity as provincial
leader of the Second Respondent. At that briefing,
she
allegedly made certain defamatory statements concerning the two
Applicants. It is further common cause that the First
Respondent repeated her statements afterwards in a press release
later on the same day. It is alleged that the third to Sixth
Respondents subsequently published her press release for the benefit
of their listeners and readers.
[3]
The press release in question cannot be repeated here word by word,
because it consists of four typewritten pages. To
summarise,
the existence of a corrupt relationship between Mr Ace Magashule,
Secretary General of the ANC, and the two Applicants
is suggested in
the statement. The following are relevant excerpts from the
statement in this respect:
“
(a)
Magashule ran a well-executed state capture network while receiving
10% share of every government contract in the Free State.
It is
this type of operation which birthed a number of corruption scandals
including the Vrede Estina Dairy project which was used
to enrich the
Gupta family and its associates.
(b)
But there is more: Today we can reveal information pointing to
a scheme in which Ace Magashule during his tenure as premier
has
manipulated the awarding of lease agreements for the offices of
government departments to benefit a few close allies and himself.
We will report this information to the Zondo Commission, in addition
to the dossier we have sent to the Commission earlier this
year, and
which encapsulates the information set out above.
(c)
We also have clear information that at least one of these lease
agreements was structured in such a way that it not only enabled
an
ally of Magashule to purchase a property, but secondly it also
enabled her to renovate this property using rental while the
property
is not being occupied by the Provincial Department of Public Works
and infrastructure.
(d)
This building on the corner of Charlotte Maxeke and Aliwal Streets in
Bloemfontein, formerly the Saambou Building, has been
leased to the
Department since
1 February 2018
at a monthly rental of R 726 167.36 per month, while it is still
being renovated and occupation by the Department is still
months
away.
(e)
We have been informed that this award was made on the insistence of
Magashule during his final days in office as premier.
The
company involved is Mayula Procurement and Property Management (Pty)
Ltd and the person behind this company Ms Hantsi Bhetilda
Mayeza or
Matseke, the Chairperson of the FDC.
(f)
She has in the past been implicated in other scandals involving
Magashule and his daughter, relating to both the Vogelfontein
Housing
Scandal and certain filling station contracts.
(g)
The ANC leaders are getting richer and richer than the country they
are supposedly governing through corruption and looting
of state
resources. It is nothing new that Magashule is an incorrigible
crook and the DA wants him and his entire cabal in
the ANC get locked
up for committing these crimes against the South African state.
(h)
As stated above, we will refer this information … to the Zondo
Commission. Our hope is on this Commission to summons
Magashule
to come and testify at the Commission.
(i)
On
8
May 2019
, the
people of the Free State will vote for change and choose a DA
government that will put them first.”
[4]
The first three prayers in the Notice of Motion concern relief
relating to the urgency of the application, which relief is no
longer
relevant in view of the court’s decision of
30
April 2019
. The remaining prayers,
which now have to be decided, read as follows:
“
4.
The Applicants also, furthermore, pray that the Respondents be
interdicted 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 broadcast in any form, including but not limited to
internet posts, articles, letters, media interviews, “Facebook”,
“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:
4.1
in the press statement issued by the First Respondent on
1
April 2019
(a copy of which is annexed to the
founding affidavit as “HBM5”);
4.2
in the news article published by the Third Respondent on
1
April 2019
(a copy of which is annexed to the
founding affidavit as “HBM6”); and
4.3
in the news article published by the Fifth Respondent on
2
April 2019
(a copy of which is annexed to the
founding affidavit as “HBM7”).
5.
The Applicants also, furthermore, pray that within three (3) hours of
the granting of this order:
5.1
First and Second Respondents be directed to remove and delete the
press statement issued by the First Respondent in relation
to the
Applicants on
1 April 2019
and, in so far as it lies within their power, any posts regarding the
press statement (or any of its contents) or responses thereto,
from
the Second Respondent’s website, “Facebook”,
“Twitter” and other social media posts and the
like;
5.2
Third and Fourth Respondents be directed to remove and delete the
news article published by the Third and Fourth Respondents
in
relation to the Applicants on
1 April 2019
and, in so far as it lies within their power, any posts regarding the
news article (or any of its contents) or responses thereto,
form the
Second Respondent’s website, “Facebook”, “Twitter”
and other social media posts and the
like; and
5.3
Fifth and Sixth Respondents be directed to remove and delete the news
article published by the Fifth and Sixth Respondents in
relation to
the Applicants on
2 April 2019
and, in so far as it lies within their power, any posts regarding the
news article (or any of its contents) or responses thereto,
from the
Second Respondent’s website, “Facebook”, “Twitter”
and other social media posts and the
like.
6.
Costs of this application to be borne by the Respondents.”
[5]
The papers filed in this application were ultimately substantial,
comprising of more than 400 pages. The four counsel
representing the respective parties, submitted extensive heads of
argument, and files containing copies of a large number of
authorities
were presented. I am indebted to counsel for their
thorough arguments and their general contribution in this matter.
The fact that I may not refer in this judgement many of the cases
cited, does not mean that I have not paid proper consideration
to
them.
[6]
In a nutshell, it is the case for the Applicants that they were
defamed by the First Respondent at the press briefing as part
of a
smear campaign against the Second Applicant and the entities she
controls, which smear campaign was already under way as of
last
year. They state that there is no truth in the statement of the
First Respondent that they have been receiving rental
income in
connection with the building in question while the building was not
yet ready for occupation. In this respect,
the Applicants
annexed correspondence received from the Department concerned to
prove that no rental payments were received by
the Applicants, as
alleged. They submit that they have a clear right not to be
defamed by statements that are false.
They further point out
that the First Applicant is no longer receiving financial support
from some of its key funders, due to the
negative publicity following
the press release by the First Respondent. As a direct result,
the First Applicant had to retrench
some of its employees. If
the media reports are allowed to persist, then there is a real
likelihood that further retrenchments
would follow.
[7]
The application is vigorously opposed by the Respondents. The
First and Second Respondents point out in their opposing
papers that
the Second Applicant is not merely a business woman but that she is a
public figure who holds public office as the
chairperson of the Free
State Development Corporation, which is a public owned creature of
statute. In the press release,
they did not claim to have
incontrovertible evidence about the alleged lease manipulation, but
according to the statement, they
only had information pointing to
such manipulation, and the intention was clearly that this
information should be thoroughly investigated
by the Zondo Commission
so that conclusive findings in relation thereto could be made, they
say. They further contend that
the lease agreement concerning
the building in question (which is annexed to the papers) clearly
supports the conclusion that the
building was leased as from
1
February 2018
at a monthly rental of R
726 167.36. the First and Second Respondents submit that
the statement is therefore substantially
true, that it constituted
fair comment and that it was in any case also in the public
interest. The remarks of the First
Respondent fall with the
realm of robust and honestly made political speech, coupled with a
dint of electioneering, they say.
They contend that the remarks
were therefore not unlawful, even if they are ever found to be
defamatory.
[8]
Turning now to the determination of this application the point of
departure is no doubt that the Applicants are seeking relief
by way
of final and permanent interdicts against the different Respondents,
as opposed to only interim relief. In this respect
our law is
very clear to the effect that whenever a final interdict is sought,
the applicant would have to establish (a) a clear
right, that (b) he
has suffered injury or that the injury is reasonably apprehended, and
that (c) no other suitable form of relief
is available to the
applicant. The application must therefore be approached on the
basis of these requirements.
[9]
The first question is then whether the Applicants have established a
clear right. This question goes hand in hand with
the principle
that, although a plaintiff must allege that the statement was
defamatory it is a question of law whether the words
complained of
are reasonably capable of conveying to the reasonable reader a
meaning which defames the plaintiff
[1]
.
If
the statement is found to be defamatory, the publication thereof is
prima
facie
wrongful. The onus rests upon the defendant to dispel such a
prima
facie
case. This is a full onus and requires the defendant to allege
and prove facts that dispel wrongfulness, such as truth and
public
interest
[2]
.
[10]
In deciding whether the press release issued by the First and Second
Respondents is defamatory of the Applicants, it needs
to be analysed
more closely in its overall context. Conspicuously, the
information relating to the lease of the building,
is not presented
as an incontrovertible matter of fact. On the contrary, the
statement states that “
we
can reveal information pointing to a scheme
”
and “
we
also have clear information that at least one of these lease
agreements…
”
And
then the statement continues to say that “
we
will report this information to the Zondo Commission, in addition to
the dossier we have sent to the Commission earlier this
year, and
which encapsulates the information set out
above
”
.
The clear impact of the
words used is to the effect that the Respondents in question are only
in possession of certain information
without any final proof thereof,
and that they are referring that information for investigation by the
Zondo Commission.
It is public knowledge that the Commission is
mandated to enquire into matters of state capture and corruption in
high circles,
amongst others. The idea is therefore conveyed in
no uncertain terms that it is the Commission that will ultimately
make
a finding. In my view, this is how reasonable and right
thinking people would interpret the statement. I therefore have
great difficulty in finding that the statement itself and the
subsequent publication thereof is defamatory of the Applicants.
This difficulty no doubt has a direct bearing on the question whether
they have shown a clear right not to be defamed, or to be
protected
by the Bill of Rights, which protects human dignity.
[11]
If I am wrong in this respect, and assuming for the moment that the
statement and the subsequent publication thereof was
prima
facie
defamatory of the Applicants, then the question arises whether the
Respondents have succeeded in rebutting the unlawfulness of
the
statement by relying on the truth thereof, the public interest, the
notion of fair comment, the reasonableness of the publication
thereof
and on certain Constitutional values that may be applicable. In
this respect I find the words of Willis J, as he
then was in
H
v W
[3]
apposite: “
In
our law, it is not good enough, as a defence to or a ground of
justification for a defamation, that the published words may be
true: it must also be to the public benefit or in the public
interest that they be published.
”
In
the present case, the First and Second Respondents rely on the
information they have, coupled with the terms of the lease agreement,
to allege that the statement is substantially true, but they also
rely on the public interest that is served by the publication
of the
statement.
[12]
As in all matters of this kind, the court has to strike an
appropriate balance between the Constitutional values of the
protection
of freedom of expression on the one hand, and the value of
human dignity on the other. The Constitutional Court has
provided
valuable guidelines in striking such a balance where the
falsity of a statement is at issue. In
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) O’Regan, J
had the following to say
[4]
: “
At
the heart of the Constitutional dispute lies the difficulty of
establishing the truth or falsehood of defamatory statements.
Burdening either plaintiffs of defendants with the onus of proving a
statement to be true or false, in circumstances where proof
one way
or the other is impossible, therefore results in a zero-sum game…
Such a zero-sum result, in whomsoever’s
favour, fits uneasily
with the need to establish an appropriate constitutional balance
between freedom of expression and human
dignity. Were the
Supreme Court of Appeal not to have developed the defence of
reasonable publication in Bogoshi’s
case
[5]
,
a proper application of constitutional principle would have indeed
required the development of the common law to avoid this result
….
It permits a publisher who can establish truth in the public benefit
to do so and avoid liability. But if a publisher
cannot
establish the truth, or finds it disproportionately expensive or
difficult to do so, the publisher may show that in all
the
circumstances the publication was reasonable.
”
[13]
In the present case, the statement was issued by the First and Second
Respondents and published by the further Respondents
at a time when
corruption and underhand dealings in government circles were
investigated on a wide front and discussed extensively
in the media
and on other platforms. It was also a time when the country was
preparing for the national elections, and when
political speech and
electioneering debate focused almost on a daily basis on the need to
root out corruption and questionable
transactions at all levels of
government. In such circumstances, it could be expected that
blows would be levelled at opponents
at every available opportunity.
The Second Applicant, being a public figure for all intents and
purposes, and the first Applicant,
being a business enterprise, which
deals mainly with government agencies, could never expect to be
spared the attention of critics
and opponents in the political arena
in the circumstances prevailing at the time.
[14]
The Supreme Court of Appeal also had occasion to consider defamatory
matter that became published in circumstances of political
discourse
in
Mthembi-Mahanyele
v Mail and Guardian Ltd and Another
2004 (6) SA 329
(SCA)
.
In the judgement, Lewis JA, stated the following
:
“
Political
speech might, depending on the context, be lawful even when false
provided that its publication was reasonable
[6]
.
”
And
elsewhere: “
Errors
of fact should be tolerated, provided that statements were published
justifiably and reasonably. That was with the
reasonable belief
that the statements made were true
[7]
.
”
Further:
“
Admittedly
what was said was stated to be fact, not opinion, but it nevertheless
was clearly proferred as political criticism.
And it concerned
the actions of a public figure in relation to a major political
talking-point
[8]
.”
In
the end the court found that the publication of the defamatory
article was not unlawful since it was justifiable in all the
circumstances, and was not negligent. The defamation was thus
not actionable.
[15]
With these legal principles in mind, I have no hesitation in finding
that the Applicants have not established a clear right.
The
statement was clearly released to the press as political criticism,
and it concerned the actions of public figures (the Second
Applicant
and Mr Magashule) in relation to a major political talking point at
the time. In such circumstances, it was certainly
reasonable
for the press to publish the statement, coming from the leader of a
political party in the province. The public
had a right to be
informed of the information in the hands of the First and Second
Respondents, and it can be safely said that
they and the remaining
Respondents were justified, in the circumstances, to convey the
information as such. I come to the
conclusion that the
publication was therefore in the public interest and not unlawful.
Whether the information is true or
not, cannot be established on the
papers alone and only further investigations will clarify this
issue. What is clear, however,
is that the Applicant cannot
claim a clear right in the circumstances, and the application must
fail on this point alone.
[16]
As far as the requirements of injury suffered or reasonably
apprehended, and no other suitable form of relief available, the
Applicants have, in my view, also not made out a case to meet these
requirements sufficiently. Although the Applicants do
allege
that they have suffered financially as a result of the events in
question, I find their allegations in this regard to be
extremely
vague and cryptic. In order to show that they have suffered a
loss, they annexed to their papers two letters, both
of which were
addressed to entities other than the First Applicant, and both of
which do not even remotely show any resemblance
to the issues in
question. The Applicants also failed to show what injury they
would suffer if the allegations are repeated
or not removed.
Such injury, if any, will ordinarily be the subject of a claim for
further damages in due course.
[17]
I am also not persuaded that there were no alternative remedies
available to the Applicants when they decided to approach this
court
for a final interdict by way of motion proceedings. By their
own admission, the Applicants mention in their founding
affidavit
that they have decided not to make use of the mechanisms available
under the Press Code of South Africa. They say
that they
“
simply do not
have any confidence
”
in
those mechanisms, but they fail to explain why they have no such
confidence. As far as an action for damages is concerned,
they
allege that that it would be very difficult, if not impossible, to
quantify such damages. I do not find this allegation
convincing
at all. Since the harm alleged is of a financial nature, it
should not be difficult to provide a court with financial
statements
to show the decline in business and income in order to prove a loss
as a result of the events. In the premises,
there were indeed
other suitable forms of relief available to the Applicants.
[18]
Lastly, it needs to be mentioned that some of the relief sought can
in any event not be granted against the Third to Sixth
Respondents
for different reasons as already traversed hereinbefore. The
Third and Fourth Respondents point out in their
answering papers that
the statement in question was already removed from the Fourth
Respondent’s website some 9 days before
the application was
launched by the Internet Service Providers Association at the
insistence of the Applicants. These facts
are not denied in
reply, and consequently, there is no need for an order for the
removal or deletion of the offending material
against the Respondents
concerned. The Fifth and Sixth Respondents, in turn, point out
that the Fifth Respondent is not employed
by the Sixth Respondent, as
alleged. In addition, they allege that the statement in
question was not published by Netwerk
24, the Sixth Respondent, but
by an entity known as News 24. They point out that neither the
Fifth nor the Sixth Respondent
was responsible for or involved in the
publication on News 24. It therefore appears that the
Applicants are knocking at the
wrong door for the relief that they
seek where these two Respondents are concerned.
[19]
At the hearing of the application, I was requested to award costs
against the Applicants on a punitive scale. Keeping
in mind
that the Applicants are already saddled with an order of costs
pertaining to the striking off from the roll at the end
of
April
2019
, I am not inclined to order costs on a
punitive scale. The Applicants had a right to approach the
court again for the relief
they sought. I was also requested to
award the costs of the condonation application that came
simultaneously with the main
application before me, in favour of the
Respondents. This condonation application concerned the late
filing of the Replying
Affidavit by the Applicants. On the day
of hearing, however, all the Respondents agreed, quite correctly in
my view, that
condonation may be granted so that the main application
could proceed as soon as possible. As a result, I do not
consider
it fair to make an order of costs pertaining to the
condonation application against the Applicants. For the rest, I
find
no reason to deviate from the general rule that costs would
follow the result.
[20]
In the premises, the following order is made:
1.
The application is
dismissed with costs.
____________________
P
J LOUBSER, J
On
behalf of Applicant: T Manchu and S Alcock
Instructed
by: Zikhali Inc. Sandton,
c/o
Moroka Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
& 2
nd
Respondents: HJ
Benadé
Instructed
by: Minde Shapiro & Smith
c/o
Symington & De Kok
BLOEMFONTEIN
On
behalf of the 3
rd
& 4
th
Respondents: AJR
van Rhyn (SC)
Instructed
by: McIntyre & Van der Post
BLOEMFONTEIN
For
the 5
th
& 6
th
Respondents: SJ Reinders
Instructed
by: Phatshoane Henney Inc
BLOEMFONTEIN
[1]
Le Roux v Dey
2010 (4) SA 210
(SCA) par. 15
[2]
National Media Ltd v Bogoshi
1998 (4) SA 1196
(sca)
[3]
(2013) 2 All SA 218
(GSJ) at par. 27
[4]
At par. 42 and 43 of the Judgment
[5]
National Media Ltd v Bogoshi,
supra
[6]
At par. 47
[7]
At par. 65
[8]
At par. 74