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[2016] ZAGPPHC 64
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Gupta and Others v Malema and Others (9797/16) [2016] ZAGPPHC 64 (11 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: 9797/16
In
the matter between:
AJAY
KUMAR GUPTA
First
Applicant
ATUL
KUMAR
GUPTA
Second
Applicant
RAJESCH
KUMAR
GUPTA
Third
Applicant
and
nine
other applicants
and
JULIUS SELLO
MALEMA
First
Respondent
ECONOMIC
FREEDOM
FIGHTERS
Second
Respondent
NTOBENG
NTOBENG
Third
Respondent
LIEUTENANT
GENERAL
KHOMOTSO
Fourth
Respondent
JUDGMENT
J
W LOUW. J
[1]
On 9 February 2016 Igranted various interdicts in the urgent court
against the first to third respondents after hearing argument
by
counsel for the applicants and for the respondents. I indicated that
I would give my reasons as soon as possible. These are
those reasons.
[2]
The first to third applicants are brothers and are generally referred
to by the media as "the Guptas". They are commercially
active in South Africa and directly or indirectly hold shares
in the companies which are the fourth to
twelfth applicants. The
applicants' founding affidavit has been
deposed
to by a Mr. Nazeem Howa, who states that he is the chief
executive officer of the fifth applicant,
OakbayInvestments
(Pty) Ltd, which is the
holding company of the majority of
the
other applicant companies.It is alleged that
Oakbay has approximately 4 500 employees 'with a monthly payroll of
approximately
R45 million.
[3]
The fourth applicant is the owner of an immovable property situate in
Saxonwold, Johannesburg, which is the residence of the
Gupta
brothers. The sixth applicant, Sahara Computers (Pty) Ltd is an
importer and distributor of computer ware to various end
users, with
a staff compliment of approximately 200. It is alleged
that Sahara has numerous
vehicles and that it has
warehouses stocked with imported computers, components and other
equipment. The seventh
applicant, TNA Media
(Pty) Ltd, is the publisher of a daily newspaper. It is alleged that
TNA has
approximately 180
employees, many of whom
are journalists
who carry expensive equipment in order to cover
the news on a daily basis, and that it has branded vehicles to ensure
that they
are identified as belonging to TNA and to indicate that the
occupants are from the media.
[4]
The eighth applicant isInfinity Media (Pty) Ltd which trades as ANN7
news channel. It is alleged thatInfinity is the owner of
extremely
expensive television equipment and that it frequently hosts national
and international public figures as part of its
news coverage. Like
TNA, it has a fleet of branded vehicles and its journalists are
identified as ANN7 journalists. The ninth to
twelfth applicants
conduct the business of mining, mining services, engineering and
manufacturing. It is a lleged that these applicants
own substantial
property and equipment and that they employ hundreds of people.
[5]
The first to third respondents, against whom the interdicts were
sought and to whom Ishall refer as the respondents, do
not deny any
of t,he abovementioned allegations relating to the applicants. The
fourth respondent, who is the acting commissioner
of police, abided
the decision of the court. The relief sought against him, and which
was granted, was that he be requested to
take the necessary steps to
protect the interests of the applicants in as far as they might
unlawfully be infringed by criminal
activity
resulting from the conduct
of the
first to
third respondents and in particular any non-compliance of the
provisions of the interdicts
granted against the first to third
respondents.
[6]
On 4 February 2016, the first respondent, who is the president
of the second respondent ("the EFF"), appeared
on national
television at a press conference hosted by the EFF. The applicants
say that the first respondent stated during the
press conference that
the Gupta brothers should leave the country, that South Arica was not
for sale over a plate of curry and
that the Gupta brothers and all
their businesses, directly and indirectly, will be removed from South
Africa by whatever means.
These allegations are not denied in the
first to third respondents' answering affidavit which was deposed to
by the first respondent.
The first respondent states, however,
that given the manner in which the Gupta brothers have abused the
generosity and hospitality
of the South African state, it was time
that they vacated the country and left. There was no need to evict
them by force and the
EFF would not be involved in any such
activities. They should be removed lawfully. According to the
applicants, the first respondent
further accused TNA and ANN7 of
being a cartel with the only objective of looting state
resources and he
banned any of their journalists to
cover any events involving the EFF. This is admitted in the answering
affidavit.
[7]
On Saturday 6 February 2016, the
third respondent, who is the
spokesperson of the
EFF
in Gauteng, issued a
press statement from which. I quote the following passages:
"Now
our message is simple, the Guptas, otherwise known as the ZUPTAS must
heed the call of the Commander in Chief
1
of the EFF and vacate South Africa, otherwise, the predictability of
what could happen to them and any of their properties, becomes
a
highly volatile matter. No one can guarantee their safety in Gauteng.
We
are sick and tired of massaging the cheap and thug-like egos of
counter revolutionary neo-capital tendencies of the likes of
the
ZUPTAS.
Jn
short, we are going to physically drive the ZUPTAS out of our
province by any means possible; they cannot have their headquarters
in this province any longer.
We
will mobilise all our branches, especially in the Ekurhuleni,
Johannesburg and Tshwane where we suspect their major activities
are
based.
At
this time we only wish to advise them to start sorting out visas, as
for the airport, OR Tambo International Airport, remains
their only
option for port of exit because Waterkloof must be respected for its
stately and military functions. We cannot have
our public facilities
being bastardised into private playgrounds of the likes of the
ZUPTAS."
[8]
The applicants understood these statements to be a clear message that
the respondents intended to use their members and
their
resources to destroy the businesses of the applicants and would
stop by no means to violently prevent the applicants
from conducting
their businesses. Mr. Moegsien Williams, the editor in chief of TNA
and ANN 7, sent a letter by e-mail to the EFF
on 6 February 2016 in
response to the EFF's press conference of 4 February 2016 and the
press statement of 6 February 2016
referred to in the previous
paragraph. The letter,
inter alia,
reads
as follows:
"Despite
your allegations leveled against The New Age and ANN7, we pride
ourselves in covering news stories without any fear
or favour. We
would like to reiterate our independence and maintain that we are
committed in reporting news which is free and fair.
Having
said the above, we are tremendously concerned about the threats that
you have leveled against our companies, some of our
shareholders and
our employees. You (ought to) know, with respect, that media freedom,
which includes the right to receive information,
is enshrined in our
Constitution. It is unfortunate that you have resorted to violent
intimidation, to such an extent that our
employees (and shareholders)
fear for their safety.
…
...............
In
order to ensure that our employees are afforded the right to continue
with their work, unhindered and without any fear of
violence
against them, we would request you to retract your statements.
Due to the urgency of the
matter, we request you to
provide us with your aforementioned reply before 12 noon
tomorrow afternoon."
[9]
On 7 February 2016, the secretary general of the EFF replied by
letter in which the following,
inter
alia,
is stated:
"The
EFF has reached a conclusion that The New Age (TNA) and ANN7 do not
constitute part of "free media" but instead
they are
criminal enterprises that are used by the Gupta family and Zuma
to engage in money laundering and racketeering.
Our view is that
these are communication entities of the Gupta family that seek to
normalise the corrupt activities of the Gupta
family and Zuma. The
TNA is involved in state corruption and this is reflected in the
unreasonable and unexplained expenditure
of government's
advertisement since its conception.
Finally,
we
restate
our
demand
that
the
Gupta
Family
must
with immediate
effect
disengage
from
all
affairs,
government,
business
and media in South Africa and leave the country.''
[10]
There was no retraction by the respondents of the statements made
during the press conference of 4 February or in the press
statement
issued by the third respondent on 6 February. The applicants then
proceeded to launch the present application on
an urgent basis.
[11]
The first respondent states in his answering affidavit that the
interpretation given by the applicants to the statement in
the press
release that no one could guarantee the applicants' safety in Gauteng
was baseless, that the statement was not equivalent
to calling for
violence against the Guptas and that only the police could guarantee
the safety not only of the Guptas but of everyone.
Adv. NGO Maritz
SC, who appeared for the applicants, submitted, in my view correctly,
that It was not the job of the EFF to guarantee
the safety of the
applicants and that there was no reason for such a statement to be
made except if it was intended as a threat
of violence.
[12]
Adv. Semenya SC, who appeared for the respondents,
submitted that the statement could not be interpreted to be
an
incitement to violence and that the respondents were merely
exercising their constitutional right to campaign for the
upcoming municipal elections. The proposition
merely has to be stated to be rejected. It ignores the preceding
sentence of the press release that
"the ZUPTAS
must
heed
the
call of the Commander
in
Chief
of the EFF and
vacate South Africa, otherwise, the
predictability
of what
could happen
to
them
and any
of their
properties,
becomes a
highly
volatile
matter".
No
reasonable and right-thinking person would consider the statement not
to be a threat of violence and that the respondents were
merely
campaigning for the upcoming elections. Mr. Semenya further submitted
that there was no evidence on the papers of any violence
being
committed. But that is not the applicants' case. They don't allege
that any violence has been committed by any of the respondents.
Their
case is that in view of the statements which have been
made, their right not to be threatened with
violence has
been infringed and that they have a reasonable apprehension that
violence will be committed against them.
[13]
In regard to the statement that the EFF was going to physically drive
the Zuptas out of Gauteng by any means possible, the
first respondent
states in the answering affidavit that the statement does not show
any threat of violence and that the EFF will
act lawfully, which
would include marches, petitions and, if necessary, legal proceedings
to force the Gupta family out of Gauteng,
all of which is lawful. One
must, however, look at the words which were used and not at what the
respondents say what they intended
to convey. The interpretation
contended for by the respondents ignores the word
"physically"
and the words
"by any
means
possible".
No reasonable and right-thinking member of society would consider the
statement to · exclude violence as a means of driving
the
Guptas out of Gauteng.
[14]
The applicants and their employees have a constitutionally protected
right not to be threatened with violence. The statements
made by the
respondents, as they would be understood by a reasonable and right
thinking person, caused the applicants to reasonably
apprehend that
they would be harmed. It was not submitted by the respondents that
the applicants have any alternative remedy. In
the result, I granted
the order sought by the applicants with the amendments which were
suggested by Mr. Maritz.
Counsel
for applicants: Adv. NGO Maritz SC; Adv. PG Cilliers SC; Adv. APJ
Els.
Instructed
by : Vari der Merwe & Associates, Pretoria.
Counsel
for 1
st
to 3
rd
respondents: Adv. AM
Semenya SC.
Instructed
by: Tumi MokwenaIncorporated, Johannesburg.
1
This
is a reference to the first respondent.