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[2020] ZASCA 26
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Tau v Mashaba and Others (335/2019) [2020] ZASCA 26; 2020 (5) SA 135 (SCA) (26 March 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 335/2019
In
the matter between:
PARKS
TAU
APPELLANT
and
HERMAN
MASHABA
RESPONDENT
AFRICAN NATIONAL
CONGRESS
WOMEN’S
LEAGUE
SECOND
RESPONDENT
CONGRESS OF SOUTH
AFRICAN
TRADE
UNIONS
THIRD RESPONDENT
Neutral
citation:
Tau v
Mashaba and Others
(335/2019)
[2020] ZASCA 26
(26 March 2020)
Coram:
MAYA
P,
ZONDI, MOLEMELA
AND SCHIPPERS JJA AND GORVEN AJA
Heard:
4
March 2020
Delivered:
26
March 2020
Summary:
Civil
Procedure – motion proceedings – parties to define and
court to adjudicate dispute – court not empowered
to grant
relief not sought – interdict pending defamation action
infrequently granted – defence of justification –
sustainable foundation in papers – interdict not justified.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (Van der Linde J sitting as
court of first instance):
1
The
appeal is upheld with costs, including the costs of two counsel.
2
The
order of the high court is set aside and replaced with the following:
‘
The
application is dismissed with costs, including the costs of two
counsel where so employed.’
JUDGMENT
Schippers
JA (Maya P,
Zondi
and Molemela JJA and Gorven AJA
concurring):
[1]
It
is often said that one has to be thick-skinned to survive as a
politician. But harsh criticism does not include unlawful action.
In
this case it was alleged that the appellant, a member of the African
National Congress (ANC) and the former Mayor of the City
of
Johannesburg Metropolitan Municipality (the Municipality), had acted
unlawfully by making defamatory statements concerning Mr
Herman
Mashaba (the respondent), his political rival and a member of the
Democratic Alliance (DA), who succeeded him as the Mayor
of
Johannesburg.
[2]
In
an address at the funeral of a fellow councillor on 28 August 2016,
the appellant said the following concerning the respondent:
‘
The
City of Johannesburg is today led by a man that believes that the
women who are senior executives in the City of Johannesburg
prostituted themselves to be in the jobs that they are in. He says
that in fact for them to earn the positions that they are in
they had
to sleep with the leadership … .
We
have heard views from the Mayor Herman Mashaba who says that in fact
if it were up to him he would not want to be black.’
(The
initial statements.)
[3]
Pursuant
to the publication of the initial statements, on 7 October 2016, the
third respondent, the Congress of South African Trade
Unions
(COSATU), delivered a memorandum of grievances to the respondent’s
office in which it noted his ‘ill-informed
comments’
which it said were ‘sexist in regard to women leadership in our
country and the City of Johannesburg in particular’.
Contrary
to the respondent’s assertion, COSATU did not repeat the
initial statements. COSATU urged the respondent to desist
from making
sexist comments that undermined women; and demanded that his
administration treat women with dignity and respect, and
that he
issue a public apology for his sexist statements. On the same day the
second respondent, the African National Congress
Women’s League
(ANCWL), issued a media statement in which it repeated the initial
statement to the effect that women had
to sleep with the leadership
in order to be appointed to their positions. The ANCWL called on
political parties in the Municipality
who valued women as equal
citizens of this country, to pass a vote of no confidence in the then
coalition government of the Municipality.
The statement recorded that
it would be embarrassing for political parties in the Municipality
‘to allow the City to be led
by a person who views women as
nothing else but sex traders in exchange for positions’.
[4]
Two
months after the appellant had uttered the initial statements, on 1
November 2016, the respondent launched an application in
the Gauteng
Division of the High Court, Johannesburg, for the following relief:
‘
Pending
the institution of an action for defamation and damages, which must
be instituted against the first respondent within 60
days of the
granting of the order herein:
1.
Ordering
the respondents:
1.1
forthwith
to retract the offending remarks;
1.2
to
refrain from repeating such and/or similar remarks concerning the
applicant in future;
1.3
to
issue an unconditional apology to the applicant framed along agreed
terms; alternatively terms to be imposed by the court;
1.4
to
ensure the widest possible publication of the retraction and/or
apology envisaged in 1.1 and 1.2 above.’
[5]
The
respondent alleged that the initial statements were false and were
intended to convey, inter alia, that he was sexist and a
bigot; that
he was racist, anti-black and viewed black people as inferior to
others; and that he believed that female executives
in the
Municipality were prostitutes and otherwise not qualified to hold
their positions. The respondent said that he did not protest
against
similar false statements at the time of the 2016 local government
elections, because he ‘accepted that as part of
their campaign,
parties make all sorts of outrageous statements to attract voters’.
[6]
The
appellant opposed the application. He said that he and the respondent
often made statements and comments about each other’s
political
stances because they were political opponents. The initial statements
had to be viewed in that context. Prior to and
after the 2016 local
government elections, the respondent had publicly criticised the
ANC’s policies in government and in
the Municipality.
Importantly, the appellant alleged that the initial statements were a
response to the following statement made
by the respondent and
published in the media on 10 August 2016:
‘
If
I had a social worker running the police, there’s no way I will
accept that . . .
If
the wrong people are in the wrong positions, they are going to be
purged. I am not apologetic about that. The days when they
allowed
their girlfriends to run state institutions are over.’ (The
offending remark.)
[7]
The
appellant went on to say that the offending remark was a reference to
the employment practices of the Municipality; and that
he understood
it to mean that women appointed to lead entities of the Municipality
during his tenure as mayor, ‘were appointed
purely on the basis
of their romantic or sexual relationships with male superiors’,
which was ‘sexist, demeaning and
disrespectful of women’.
The appellant alleged that the initial statements ‘were a fair
representation of the objectionable
views expressed by the
[respondent]’ in the offending remark; that they did not
falsely represent that remark; and that they
were not defamatory.
[8]
The
appellant presented evidence that members of the public and interest
groups had also interpreted the offending remark as being
sexist and
demeaning of women. He referred to an extract from the electronic
publication, ‘Businesslive’, which had
reported that
pursuant to the publication of the offending remark, a group of
women, supported by various organisations, including
the Black
Management Forum, the Young Women for Business Network, the
#SexismMustFall Women’s Group and the ANCWL had marched
to the
respondent’s office. They demanded that he apologise for and
withdraw the offending remark, which allegedly referred
to the ANC
administration; and that he make a commitment to advance gender
equality in Johannesburg. The #SexismMustFall Women’s
Group
issued a statement that the offending remark was ‘poisonous and
threatened to taint the reputations of women’.
[9]
The
respondent did not deny that he had made the offending remark. In his
capacity as the DA’s mayoral candidate, prior to
the formation
of a coalition government in the Municipality, he had allegedly
demanded documents concerning recent appointments
to key positions in
the Municipality. The respondent however alleged that the offending
remark was not made with reference to employment
practices in the
Municipality under the appellant’s leadership, but that it was,
in his words, ‘a general reference
using the example of South
African Airways, where allegations of a politician’s girlfriend
running a state institution abound’.
[10]
As regards the statement that if it were up to him the respondent
would not want to be black,
the appellant alleged that the respondent
had made various public statements which caused him to comment that
the respondent ‘hates
being Black’. These included an
interview on Radio 702 in January 2016, shortly after his appointment
as Mayor of the City
of Johannesburg, in which the respondent said
that if he had the power, he would do away with racial classification
laws and policies
‘yesterday’. Also, in January 2016, the
respondent was quoted in the City Press newspaper as having said, ‘I
am really intrigued that in South Africa today, I am still regarded
as a black person’. The appellant also referred to the
respondent’s statements concerning the government’s
policies of black economic empowerment and affirmative action,
in an
address to Solidarity’s Shadow Report to the United Nations
Committee on the Elimination of Racial Discrimination in
May 2015, in
which he had said, ‘The notion of empowering previously
disadvantaged blacks is a noble ideal, noble but racist’.
The
respondent had also publicly stated that poor people could not be
trusted. The respondent did not deny that he had made these
public
statements, but alleged that his views did not render him
‘anti-black’, a racist’; nor did they imply
that he
was ‘in denial about [his] obvious blackness’, as he had
named his company ‘Black Like Me’.
[11]
The appellant also referred to the reaction of members of the public
and social media commentators
concerning the respondent’s
objections to being labelled as a black person. These included
opinions that the respondent’s
thinking allowed politicians ‘to
divide South Africans along tribal lines’; and that the
racially based policies in
government were intended to redress the
injustices of the past.
[12]
The application came before Van der Linde J who issued the following
order:
‘
(a)
It is declared that the statement made by the 1
st
respondent on the 28
th
August 2016 is defamatory of the applicant.
(b)
The 1
st
respondent is interdicted and restrained from
repeating the statement, or statements to the same effect.
(c)
All other issues relating to relief arising in the present
application are deferred
for decision in the pending action
instituted by the applicant against the 1
st
respondent for
damages for defamation.
(d)
The 1
st
respondent is directed to pay the costs of the application, including
the costs of two counsel.’
[13]
The judge said that he came to the conclusion that the initial
statements were defamatory ‘on
the basis of such material as is
relevant and admissible to found a final order’; and held that
there was no scope for holding
that the said conclusion was merely
prima facie. Then the judge said:
‘
The
relief claimed, final in nature, includes a retraction, apology, and
publication of these. The trial action and the intended
damages claim
there are pending. Whether the applicant would in addition to damages
be entitled to a retraction and an apology
should be considered
together, and should appropriately be resolved in that forum.
Therefore,
acting in terms of rule 33(4), I separate from the issues that I will
have decided, all further issues that arise in
this application
concerning the applicant’s entitlement to relief and defer them
for decision in the pending action.’
[1]
[14]
Subsequently, in the judgment granting leave to appeal to this court,
the judge acknowledged
that the separation and referral of the
remaining issues for trial, purportedly in terms of rule 33(4) of the
Uniform Rules of
Court, was an error. He said:
‘
In
separating the relief granted from the relief deferred, I purported
to act under rule 33(4). That was an error as the definition
of
“action” in the uniform rules does not include
“application”. It may be that I had the power in any
event to defer the other forms of relief claimed – retraction,
apology – for determination in the pending action; in
particular, the entitlement to such relief could conceivably simply
have been referred for the hearing of oral evidence. But that
was not
the formal approach I adopted.’
[15]
By reason of the conclusion to which I have come, it is unnecessary
to decide whether the referral
of the relief sought in paragraphs
1.1, 1.3 and 1.4 of the notice of motion for hearing in the
defamation action, in terms of rule
33(4), was appropriate. On this
score it suffices to say that Wallis JA, on behalf of the majority in
Theron
,
[2]
stated that it is undesirable to dispose of an application piecemeal:
'In
general, however, the desirable course to be followed in application
proceedings, where the affidavits are both the evidence
and the
pleadings, is for all the affidavits to be delivered and the entire
application to be disposed of in a single hearing.'
[16]
I turn now to the central issue in this appeal: whether the high
court should have granted final
relief in the form of a declaratory
order that the initial statements were defamatory, and an order
restraining the appellant from
repeating them. The starting point for
any analysis of this issue is the relief sought by the respondent, as
‘the pleadings
– including in motion proceedings, not
only the formal terminology of the notice of motion, but also the
contents of the
supporting affidavits – must be interpreted to
establish what the legal basis of the applicant’s claim is’.
[3]
[17]
The respondent sought the interdicts in paragraphs 1.1 to 1.4 of the
notice of motion quoted
above, on the basis that the initial
statements were false, defamatory and aimed at belittling and
discrediting him, ‘[p]ending
the institution of an action for
defamation and damages’. Whether an interdict is interim or
final depends on its effect
on the issue, not on its form.
[4]
The relief sought in paragraphs 1.1, 1.3 and 1.4 of the notice of
motion were final interdicts. An order to retract the initial
statements, to issue an unconditional apology for them and to ensure
publication of the retraction and apology, presupposes a finding
that
the initial statements were defamatory of the respondent. That would
involve a final determination of the rights of the parties,
which has
to be made in the defamation action. Further, if such an order were
to be executed, it could not be undone: the notion
of an interim
retraction or apology is untenable.
[18]
The same cannot be said of the relief claimed in paragraph 1.2 of the
notice of motion: an interim
interdict to restrain the appellant from
repeating the initial statements, pending finalisation of the action
for damages. It is
true that the notice of motion states that
paragraph 1.2 is an interdict pending the ‘institution’
of the defamation
action; and the notice does not contain a prayer
that pending the finalisation of that action, paragraph 1.2 would
operate as an
interim interdict. However, it is clear from the papers
that the respondent sought an interim interdict pending the outcome
of
a defamation action: to preserve his interests until the merits of
that action were finally determined.
[5]
[19]
So, on this part of the case, what was before the high court was not
an application for a declaratory
order, much less a final interdict.
The high court erred in disregarding the pleadings and evidence, and
in issuing a declaratory
order, mero motu, that the initial
statements were defamatory of the respondent. In this regard, the
pronouncement by this
court on the nature of civil litigation in our
adversarial system, bears repetition:
‘
[I]t
is for the parties, either in the pleadings or affidavits (which
serve the function of both pleadings and evidence), to set
out and
define the nature of their dispute, and it is for the court to
adjudicate upon those issues. That is so even where the
dispute
involves an issue pertaining to the basic human rights guaranteed by
our Constitution, for “(i)t is impermissible
for a party to
rely on a constitutional complaint that was not pleaded”. There
are cases where the parties may expand those
issues by the way in
which they conduct the proceedings. There may also be instances where
the court may mero motu raise a question
of law that emerges fully
from the evidence and is necessary for the decision of the case. That
is subject to the proviso that
no prejudice will be caused to any
party by its being decided. Beyond that it is for the parties to
identify the dispute and for
the court to determine that dispute and
that dispute alone.’
[6]
[20]
The founding affidavit makes it clear that the dispute between the
parties was whether the respondent
was entitled to a retraction and
apology; and an interdict to prevent the respondents from repeating
the initial statements ‘between
the granting of the interim
order and the finalisation of the action’. That is also how the
appellant understood the case
he was called upon to meet. Both
parties had approached the application on the basis that the trial
court would decide whether
the appellant was liable for damages for
defamation. The papers show that the appellant’s defences were
fair comment, truth
and public benefit and ‘political
commentary’. The order declaring that the initial statements
were defamatory of the
respondent, effectively precludes the
appellant from exercising his right to adduce evidence in defence of
a claim for defamation.
That, in turn, adversely impacts upon his
fundamental right to have a dispute decided in a fair public hearing,
enshrined in s
34 of the Constitution.
[7]
[21]
Had the high court determined the dispute before it as defined by the
parties, it ought to have
decided whether the respondent had met the
requirements for the grant of an interim interdict. These are: a
prima facie right;
a well-grounded apprehension of irreparable harm
if the relief is not granted; that the balance of convenience favours
the granting
of an interim interdict; and the absence of another
satisfactory remedy.
[8]
An
interim interdict pending an action is an extraordinary remedy within
the discretion of the court.
[9]
[22]
As to the proper approach to an application for an interdict to
restrain the publication of defamatory
material, Plewman JA in
Hix
Networking
,
[10]
approved the following dictum by Greenberg J in
Heilbron
:
[11]
‘
If an injury
which would give rise to a claim in law is apprehended, then I think
it is clear that the person against whom the injury
is about to be
committed is not compelled to wait for the damage and sue afterwards
for compensation, but can move the Court to
prevent any damage being
done to him. As he approaches the Court on motion, his facts must be
clear and if there is a dispute as
to whether what is about to be
done is actionable, it cannot be decided on motion. The result is
that if the injury which is sought
to be restrained is said to be a
defamation, then he is not entitled to the intervention of the Court
by way of interdict, unless
it is clear that the defendant has no
defence. Thus if the defendant sets up that he can prove truth and
public benefit, the Court
is not entitled to disregard the statement
on oath to that effect, because, if his statement were true, it would
be a defence,
and the basis of the claim for an interdict is that an
actionable wrong, i.e. conduct for which there is no defence in law,
is
about to be committed.’
[23]
This court also approved the analysis in
Buthelezi
,
[12]
that Greenberg J ‘did not intend to lay down that a mere
allegation, or a denial under oath, is sufficient “to set
up”
a defence which would be the case if a matter had to be decided on
pleadings alone’.
[13]
Put simply, the mere say-so of a deponent who alleges a defence of
justification should not be accepted at face value: the facts
on
which it is based must be analysed to determine its weight. A factual
foundation for a defence of fair comment or truth and
public benefit
must be established in evidence.
[14]
[24]
Applying these principles to the facts and considering the evidence
outlined above as a whole,
I do not think that it can be said that
the appellant has no defence, or that the facts put up in support of
the defence of justification
may be rejected out of hand. The nub of
the appellant’s defence was that the initial statements had to
be considered in the
context of the political rivalry between him and
the respondent; and that they were a riposte to the offending remark
that the
appellant, and others, had interpreted as being demeaning
and disrespectful of women. Likewise, the appellant’s statement
that the respondent did not want to be black, was made pursuant to
the respondent’s own public statements, which radio and
social
media commentators had weighed into. The appellant’s stance was
that the respondent’s views on affirmative action
were
inconsistent with nation building and the realisation of racial
equality. And the appellant’s comment that the respondent
did
not want to be black, was also a retort to the latter’s public
statement that poor people, or as the appellant put it,
‘[b]lack
people who overwhelmingly comprise the poor’, could not be
trusted.
[25]
This, obviously, is not to say that the appellant’s defence of
justification is likely
to succeed in the defamation action, which is
pending. That is an issue to be decided by the trial court. But where
a factual foundation
for a defence of justification has been set up
in motion proceedings, a court cannot know whether defamation has
been proved until
the trial process has shown where the truth lies.
And of course, if the defence of justification fails, the appellant
will have
to pay damages. The high court thus erred in holding that
as a matter of law, the respondent had established that the appellant
had defamed him.
[26]
On the facts, the respondent also did not establish an apprehension
of harm, in that there was
no evidence the appellant had any
intention of harming his good name and reputation in the future. On
the contrary, the facts point
the other way. The appellant, in terms,
stated that any apprehension of impending harm was unreasonable; that
he had not repeated
the initial statements after 28 August 2016; and
that there was no threat that he intended do so. These allegations
went unchallenged.
And some two and a half years had passed after the
initial statements had been made, without incident or complaint, when
the final
interdict was granted on 8 February 2019. An interdict is
not a remedy for the past invasion of rights: it is concerned with
the
present and the future.
[15]
[27]
Regarding the absence of another satisfactory remedy, the respondent
alleged that his reputation
in politics and his reputation and good
name could not await the outcome of the action, essentially because,
as he put it, he had
been ‘associated with the twin demons of
racism and sexism’. This allegation also, is
insupportable on the facts.
It appears that the members of the public
and commentators had considered the respondent’s stance on
affirmative action as
racist long before publication of the initial
statements. The offending remark made on 10 August 2016, in the
context of appointments
in the Municipality, had also resulted in the
public perception that he was sexist.
[28]
There is no allegation in the founding affidavit why an award of
damages for defamation would
not vindicate the respondent’s
right to his good name and reputation. In my view,
the
following passage in
Herbal
Zone
[16]
provides
a complete answer to the alleged absence of an adequate remedy:
‘
[A]n interdict to prevent the publication of
defamatory matter … is directed at preventing the party
interdicted from making
statements in the future. If granted it
impinges upon that party’s constitutionally protected right to
freedom of speech.
For that reason such an interdict is only
infrequently granted, the party claiming that they will be injured by
such speech ordinarily
being left to their remedy of a claim for
damages in due course. Nugent JA said in this court:
[17]
“
Where it is alleged, for
example, that a publication is defamatory, but it has yet to be
established that the defamation is unlawful,
an award of damages
is usually capable of vindicating the right to reputation if it is
later found to have been infringed, and
an anticipatory ban on
publication will seldom be necessary for that purpose.” ’.
[29]
For these reasons the following order is made:
1
The
appeal is upheld with costs, including the costs of two counsel.
2
The
order of the high court is set aside and replaced with the following:
‘
The
application is dismissed with costs, including the costs of two
counsel where so employed.’
__________________
A
Schippers
Judge
of Appeal
APPEARANCES
For
Appellant: I Semenya SC
M
Ndiweni
Instructed
by: Ntanga Nkuhlu Inc. Attorneys,
Sandton
Phatsoane
Henney Attorneys, Bloemfontein
For
Respondent: D C Mpofu SC
Y
Peer
Instructed
by: Mabuza Attorneys, Johannesburg
Matsepes
Inc., Bloemfontein
[1]
Rule
33(4) of the Uniform Rules of Court provides:
‘
If,
in any pending action, it appears to the court
mero
motu
that there is a question of law or fact which may conveniently be
decided either before any evidence is led or separately from
any
other question, the court may make an order directing the disposal
of such question in such manner as it may deem fit and
may order
that all further proceedings be stayed until such question has been
disposed of, and the court shall on the application
of any party
make such order unless it appears that the questions cannot
conveniently be decided separately.’
[2]
Theron
and
Another NNO v Loubser NO and Others
2014
(3) SA 323
(SCA)
para
26. Ponnan JA,
after
reviewing the relevant authorities, concluded that there was
authority for the proposition that a high court, in the exercise
of
its inherent jurisdiction, may separate issues in application
proceedings. However, the correctness of that proposition was
left
open. See also
Louis Pasteur
Holdings
(Pty) Ltd and Others v Absa Bank Ltd and Others
[2018]
ZASCA 163
;
2019 (3) SA 97
(SCA) paras 32-33.
[3]
Gcaba
v Minister for Safety and Security and Others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC) para 75.
[4]
See 11
Lawsa
2
ed at 418 para 401 and the authorities cited in footnote 2.
[5]
Airoadexpress
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban and
Others
[1986] ZASCA 6
;
1986
(2) SA 663
(A) at 681E
;
Apleni v
Minister of Law and Order and Others; Lamani v Minister of Law and
Order and Others
1989
(1) SA 195
(A) at 201B.
[6]
Fischer
and Another v Ramahlele and Others
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA);
[2014] 3 All SA 395
(SCA)
para 13, footnotes omitted.
[7]
Section 34
of the Constitution provides:
‘
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.’
[8]
Lawsa
fn
6 at 419 para 403;
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685
(A) at 691D.
[9]
Eriksen
fn
9 at 691C.
[10]
Hix
Networking
Technologies
v System Publishers (Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A
)
at
399B-E.
[11]
Heilbron
v Blignaut
1931
WLD 167
at
169.
[12]
Buthelezi
v Poorter and Others
1974 (4) SA 831
(W) at 836A-F.
[13]
Hix
Networking
fn
14 at 399F-G;
Buthelezi
fn 16 at 836C-F.
[14]
Herbal Zone (Pty)
Limited v Infitech Technologies (Pty) Limited
[
2017]
ZASCA 8; [2017] 2 All SA 347 (SCA) para 38.
[15]
Lawsa
fn
6 at 412 para 390;
Philip
Morris Inc v Marlboro Shirt Co SA
1991
(2) SA 720
(A) at 735B-C, approving
Stauffer
Chemicals Chemical Products Division of Cheeseborough-Ponds (Pty)
Ltd v Monsanto Co
1988
(1) SA 806
(T) at 809F-G.
[16]
Herbal
Zone
fn 16 p
ara
36.
[17]
Midi
Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA) para 20.