Manuel v Crawford-Browne (2471/08) [2008] ZAWCHC 13; [2008] 3 All SA 468 (C) (6 March 2008)

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[2008] ZAWCHC 13
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Manuel v Crawford-Browne (2471/08) [2008] ZAWCHC 13; [2008] 3 All SA 468 (C) (6 March 2008)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: 2471/08
[Reportable]
In the matter between:
TREVOR
ANDREW MANUEL Applicant
and
TERRY CRAWFORD-BROWNE
Respondent
JUDGMENT: 6
MARCH 2008
Le
Grange J
:
[1]    The decision of
the South African Government to embark upon an arms procurement
process
(the arms deal)
and the subsequent acquisition of arms and related equipment for the
defence capability of the National Defence Force has been the
subject
matter of much debate in recent years.
[2] This application, on an urgent
basis, is a direct result of this ongoing debate. The Applicant in
this matter, who is also the
Minister of Finance since 1996 and a
senior member of Cabinet, gave effect to the consequential financial
arrangements which included
the raising of loan capital. These loan
agreements between various International Banks and the South African
Government was signed
by the Applicant in his capacity as Minister of
Finance in 2001, in terms of the provisions of the Exchequer Act, no.
66 of 1975.
[3] The Respondent, a retired banker
and member of Economists Allied for Arms Reduction (ECAAR), a
non-governmental organization,
opposed the arms deal. It is not in
dispute, that ECAAR is opposed to military spending and military
approaches to conflict resolution
and took a stand against the arms
deal. The Respondent himself, has written extensively on the subject
matter and recently published
a book “
Eye
on the Money”
to express
his views and criticism on the arms deal. It would not be incorrect
to describe the Respondent as a fierce critic of
the South African
Government, including
inter
alia
the Applicant, the
State President, Mr Mbeki, and the Minister of Public Enterprises,
Alec Erwin for the roles they played in the
decision to proceed with
the arms deal.
[4] The attack on the Applicant
briefly stated, is that as Finance Minister, when he signed the
foreign loan agreements, he violated
the Public Finance Management
Act, (PFMA) as these agreements have never been referred to
Parliament for authority. Furthermore,
the Applicant relinquished
control over South Africa’s future financial and economic policies
to international banks,
inter
alia
Barclays Bank and the
Commerzbank and “prostituted himself for the sake of political
perks and power” and that the National Prosecuting
Authority (NPA)
should prosecute the Applicant with corruption and related criminal
offences.
[5] The substratum of Applicant’s
complaint is that the Respondent in two publications dated 24
December 2007 and 3 January 2008,
which he recently became aware of,
defamed him by stating that he has committed the crime of corruption
relating to the arms deal
and should be prosecuted by the NPA,
without providing any proof or evidence to support these defamatory
remarks. The fact that the
Respondent has repeatedly criticized the
Applicant and widely published the alleged defamatory statements is
not in dispute.
[6] The Respondent denies that the
particular statements, that are the subject of this application, are
defamatory. He argues that
freedom of expression in political
discourse is necessary in order for members of government to be
accountable to the public and
that he should not be prohibited from
participating in a debate on a matter that is under scrutiny and of
public importance.
[7] Mr.
B Pincus, SC assisted by Ms S Cowen, who appeared on behalf of the
Applicant, argued that the Respondent is properly entitled
to
question the role of the Applicant as Minister of Finance in the arms
deal and to engage in robust political debate about it.
The issue is
whether the Respondent is entitled to publish articles and post it on
his website, which states that the Applicant must
be prosecuted with
criminal conduct without providing any proof or foundation to the NPA
to charge the Applicant.
[8] Mr P Hawthorne, counsel for the
Respondent, argued that section 16 of the Constitution would be
grossly curtailed if the relief
sought by the Applicant is granted.
Furthermore, there is no basis at common law to grant such an order
as sought by the Applicant.
For this contention reliance was placed
on the dictum in
Tsichlas
and Another v Touch Line Media (Pty) Ltd
2004 (2) SA 112
W at 129 B – C. Moreover, Mr Hawthorne argued that
even if the statements complained of by the Applicant are defamatory,
there
can be no point in suppressing the publication of those
statements on the respondent’s website. The continued publication
of the
statements by the Respondent on the Independent Newspaper
Website which is more widely read than the Respondent’s, according
to
him, defeats any claim the Applicant might have had to a well
grounded apprehension of irreparable harm if the relief sought is
not
granted.
[9] In this matter, two
constitutional rights, freedom of expression and dignity, are at odds
and have to be balanced against each
other. That balancing process
has to be undertaken in a constitutional context. Our Courts have
consistently held that, though circumstances
may sometimes dictate
otherwise, freedom of speech is a right not to be overridden lightly
and at the point which the balance of
convenience is determined
consideration should be given to the fact that the person allegedly
defamed will, if the interdict is refused,
nonetheless have a cause
of action which will result in an award of damages. This should be
weighed against the possibility, on
the other hand, that a denial of
a right to publish is likely to be the end of the matter as far as
the press is concerned. And
in the exercise of the discretion in
granting or refusing an interim interdict, regard should be had
inter
alia
to the strength of
the applicant’s case; the seriousness of the defamation, the
difficulty a respondent has in proving a defence
which it wishes to
raise, within the limited time afforded to it in cases of urgency,
and the fact that the order may, in substance
though not in form,
amount to a permanent interdict. (See
Hix
Networking Technologies
, supra
at 402 D –F).
[10] It is thus generally accepted
that cases involving an attempt to restrain publication, must be
approached with the necessary
caution. Even where there is a risk to
rights that are not capable of subsequent vindication, a narrow ban
might be all that is required
if any ban is called for at all. (See
Midi Television t/a E-TV v
Director of Public Prosecutions
[2007] ZASCA 56
;
2007
(5) SA 540
SCA at 548 G.)
[11] The
legal principles applicable in the context of an Applicant seeking to
prevent alleged defamatory matter being published,
is the ordinary
rules governing interim interdicts. These requisites are:
a) A
prima facie right;
b) a well-grounded apprehension of
irreparable harm if the relief is not granted;
c) that
the balance of convenience favours the granting of an interim
interdict; and
d) that the applicant has no other
satisfactory remedy.
[12] In
casu
,
it is not in dispute that in November 2001, the Respondent and ECAAR
instituted legal proceedings to have the loan agreements,
which
Applicant as Minister of Finance was party to, set aside. The grounds
upon which it was contended that the agreements were
unlawful
included the allegations that the Applicant allegedly acted
arbitrarily and irrationally and did not comply with the provisions
of the Exchequer Act and the PFMA. It appears that the Respondent
did not allege during these proceedings that the Applicant was
corrupt or guilty of corruption.
[13] It
needs to be mentioned that during the same proceedings, the
Respondent was pertinently asked by the State’s attorneys to
specify which provisions of the PFMA and Exchequer Act, the Applicant
had breached. The Respondent’s attorneys replied in writing
during
January 2002, that the Respondent would not persist with the attack
based on the Exchequer Act and the PFMA as he accepts
that the PMFA
was not applicable at the time that the loan agreements were
concluded. The loan agreements were signed in January
2000 and the
PFMA came into effect in April 2000.
[14] Judgment with costs was granted
against the Respondent. An application for leave to appeal to the
Supreme Court of Appeal by
the Respondent was also dismissed with
costs. In an effort to recover the two costs orders, an application
was launched by the Minister
of Finance to provisionally sequestrate
the Respondent’s estate. In that matter (5811/2005), the Sheriff in
terms of the warrants
of execution rendered firstly, a
nulla
bona
return and secondly
attached a vehicle valued at R 7000. Cleaver J, who presided, held
that there was no
prima
facie
prove that a
provisional sequestration order will be to the financial advantage of
creditors and dismissed the application. At paragraph
[11] and [12]
Cleaver J held that:-
“
[11] The
respondent states on oath that he has no financial resources and
explains how it came that he spent approximately R5 million.
His
affidavit, while containing much that is irrelevant and even
vexatious, contains additional information about the fruitless
campaign which he embarked upon and which appears to have ruined him
financially.
[12] As
I have mentioned, the respondent’s answers contained much that was
irrelevant, as well as averments that were clearly vexatious.
Not
surprisingly, counsel for the applicant moved for the offending
portions of the affidavit to be struck out. The paragraphs
referred
to by counsel are indeed irrelevant and/or vexatious and/or malicious
and/or defamatory and will be struck out. The paragraphs
in question
are paragraphs 1.3 – 1.5, paragraph 2.1, paragraphs 3.1 – 3.6,
and paragraphs 4.1 – 6.16.”
[15] Applicant’s founding affidavit
at paragraph (21) states that, one such matter that was struck out,
contains the accusations
that he committed fraud, perjury and
grievously abused the powers of his office.
[16] Freedom
of expression is fundamental to our democratic society, however, it
is not a paramount value. It must be construed in
the context of the
other values enshrined in the Constitution, in particular the value
of human dignity. Under our new constitutional
order the recognition
and protection of human dignity is a foundational constitutional
value.
[17] The Applicant, as Minister of
Finance and member of Cabinet, has like any other person of civil
society, a legitimate right to
protect his reputation and good name
against defamatory statements that injures his person and lowers him
in the estimation of ordinary,
intelligent or right-thinking members
of society generally. (See
Mohamed
and Another v Jassiem
[1995] ZASCA 115
;
1996
(1) SA 673
(A) at 703 G- 704 D.)
[18] In the article dated 27 December
2007, the Respondent states as fact that the Applicant, as Minister
of Finance, signed the foreign
loan agreements in violation of the
PFMA, the agreements was never referred to Parliament as required,
bribes were paid to secure
certain contracts and the Applicant
“
prostituted himself for
the sake of political perks and power
”
and that he should be charge with corruption. In the second
publication dated 3 January 2008, the attack on the Applicant was
of
similar content. The Respondent stated that the Applicant acted in
contravention of the PMFA, bribes were paid, he sold the country
out
to foreign banks and that he should be charged for corruption, fraud
money laundering, racketeering and tax evasion plus for
the
deliberate and systematic obstruction of justice. Both articles were
posted on the Respondent’s website. The December-article
was also
published on the Independent Newspaper website which it appears has a
much wider reading audience.
[19] As
to the sting of these articles or in other words their defamatory
nature, there is little doubt in my mind, it lies in the
allegations
that the Applicant has contravened the Public Finance Management Act,
(PFMA) when signing the foreign loan agreements
as these agreements
have never been referred to Parliament for authority, bribes were
paid by certain preferred contractors, the
Applicant is corrupt and
that he and other Cabinet Ministers, including the State President
should be charged with corruption.
[20] In
my view, to say a person, in particular a Minister of Finance, who is
charged with the responsibility of the National Treasury
and fiscal
policy of a Country, is corrupt and should be prosecuted with
corruption and similar offences, without providing a shred
of
evidence pointing to his/her involvement, is defamatory and aimed to
lower such person in the estimation of right-thinking members
of
society.
[21] The
repeated attack on the Applicant that he has contravened the Public
Finance Management Act, (PFMA) when signing the foreign
loan
agreements, whilst the Respondent is well aware since February 2002,
that the PFMA was not applicable, clearly demonstrates
malice and not
an intention of boisterous political discourse associated with
freedom of expression which is so vital in our democracy.
[22] The
Respondent makes reference in his replying affidavit that the alleged
defamatory statements were made within the context
of an enormously
complex arms deal process, which is still the subject of ongoing
investigations and the full ramifications of which
is yet to be
determined. Moreover, within the limited time afforded to him, being
10 days to prepare, he could not brief his legal
representatives
fully and file comprehensive opposing affidavits and limited his
opposition to two grounds. First, that the relief
sought by Applicant
is incompetent and secondly that a well-grounded apprehension of
irreparable harm if the interim relief sought
is not granted, has not
been established in the Applicants founding papers.
[23] On the papers filed, the
Respondent initially failed to seek a postponement of the hearing to
afford him more time to prepare.
Even when he did so, during the
proceedings, he failed to tender therewith a satisfactorily
undertaking. But more importantly the
Respondent does not divulge or
give any explanation for his assertions that the Applicant is corrupt
and has committed the crime
of corruption. I deem it not appropriate
in the circumstances of this matter to grant the postponement as the
Respondent failed to
show
prima
facie
that if granted the
indulgence of a postponement it will place facts before the Court
which will constitute a ground of opposition
to the relief claimed.
(see
Manufacturers
Development Co (Pty) Ltd v Diesel & Auto Engineering Co and
Others
1975 (2) SA 776
(C
) at 777E.
[24] The proposition by Mr Hawthorne
that the relief sought by the Applicant is incompetent, is without
merit. His reliance on the
dictum in Tsichalas and Another v Touch
Line Media (Pty) Ltd
2004 (2) SA 112
WLD, is misconceived. First, the
facts of the two matters differs significantly. Secondly the present
relief sought by the Applicant
is limited and different from the
Touch Line
case. Thirdly, the Applicant is not seeking an award of damages
against the Respondent in the main action. The head note of the
Touch
Line
matter is
instructive. It properly records the following facts:-
“
The
(first) applicant was the club secretary of the second applicant
football club and the respondent was the owner and publisher
of a
football magazine and Internet website. The 20 selected statements
which formed the basis of the applicant’s complaint had
all
appeared in the ‘chat forum’ of the respondent’s website and
had been contributed by various users of the website. The
applicant
contended that the statements were defamatory of her and sought to
interdict the respondent from publishing on its website
material
which was defamatory of her (prayer 2), ordering the respondent to
remove the 20 selected statements appearing on its website
(prayer 3)
and ordering the respondent to monitor its website and to remove any
defamatory material which might, in the future, be
placed on the
website by participants in its chat forums (prayer 4). The applicant
had not called upon the respondent to withdraw
the statements
remaining on its website chat forum pages prior to launching the
application. Simultaneously with her application,
she instituted an
action for damages for defamation against the respondent (as second
defendant) arising out of certain other material
which had been
published in its magazine.”
[25] The
contention by Mr Hawthorne that the Applicant has alternative
remedies needs closer scrutiny. His principle proposition in
this
regard is that the Applicant can institute, in the main action, a
claim for an apology and nominal damages.
[26] Mr
Pincus, replied that the proposition in this regard is surprising as
the Respondent failed to make any averment in his answering
affidavit
as regards to the alleged alternative remedies. Moreover, the
Respondent is remarkably silent that he would apologise unreservedly,
retract the statements and do so sincerely, in the event that he
failed to justify what the Applicant alleges is malicious defamation.
[27] In Mineworkers Investments Co
(Pty) Ltd v Modimane
2002 (6) SA 512
WLD at 525 E, on the question of
an apology, Willis J held that the
amende
honorable
was not
abrogated by disuse but rather forgotten like a little treasure in a
nook of our legal attic. In Dikoko v Mokhatlala
2006 (6) SA 235
CC at
265 E-F, the majority decision (
per
Moseneke DCJ) did not make a finding on this issue. Moreover, Mokgoro
J (dissenting) held that whether or not the
amende
honorable
technically
still forms part of our law, it is important that, once an apology is
tendered as compensation or part thereof, it should
be sincere and
adequate in the context of each case. (at 260 F).
[28] Even
if the ‘little treasure’ can be recovered from a ‘nook in our
legal attic’ I do not believe that a public apology
in this matter
will be sincere and adequate in the context of this case. In my view
freedom of expression does not include the right
to falsely attack
the integrity of a fellow citizen for selfish reasons or for reasons
which have nothing to do with public benefit.
The Respondent in his
papers is remarkably silent that he would apologize unreservedly,
retract the statements and do so sincerely,
in the event that he
failed to justify what the Applicant alleges is malicious defamation.
[29] On the available evidence, the
statements made by the Respondent are in my view defamatory and part
of an ongoing campaign to
deliberately undermine the Applicant. I am
satisfied that a strong
prima
facie
right to the Court’s
protection has been established.
[30] The
Applicant’s reasonable believe that the Respondent will continue to
make the unlawful defamatory remarks and may increase
the intensity
and frequency thereof unless he has protection of the Court is not
unfounded. The Respondent, as mentioned in paragraph
[21],
persistently made false allegations against the Applicant. No
undertaking was given that the Respondent will stop with the
defamatory remarks pending the action. There seems to be a
well-grounded apprehension of irreparable harm. In this case it is
clear
that the harm cannot be remedied by the payment of damages.
The balance of convenience favours the Applicant.
[31] The limited restraint on free
speech resulting from the order I make is not directed to stop the
Respondent from participating
in a debate of immense public
importance. The restraint is directed at the manner in which the
Respondent has chosen to participate
in the debate and the methods he
chose to employ.
[32] This application is a precursor
to an action which the Applicant intends to institute. I do not
propose making any costs order
at this stage, as it is an issue best
resolved by the Court which hears the action.
[33] In
the result, the following order is made:-
a) Interdicting and restraining the
Respondent from publishing any matter in which it is alleged that the
Applicant is corrupt or
committed the crime of corruption or any
other criminal conduct in connection with the arms deal, pending an
action;
b) that the Respondent remove from
his website all allegations wherein the Respondent has accused the
Applicant or suggested that
the Applicant is guilty of the crime of
corruption or other criminal conduct in connection with the arms
deal, pending the action;
c) that Applicant be ordered to
launch the action within 20 days of date hereof.
______________________
LE GRANGE, J