Treatment Action Campaign v Rath and Others (2807/05) [2006] ZAWCHC 8; [2007] 2 All SA 439 (C); 2007 (4) SA 563 (C) (3 March 2006)

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[2006] ZAWCHC 8
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Treatment Action Campaign v Rath and Others (2807/05) [2006] ZAWCHC 8; [2007] 2 All SA 439 (C); 2007 (4) SA 563 (C) (3 March 2006)

Republic of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(Cape of Good Hope
Provincial Division)
Case No:
2807/05
In
the matter between
TREATMENT ACTION
CAMPAIGN
Applicant
and
MATTHIAS
RATH
First Respondent
DR RATH HEALTH
FOUNDATIONS
Second Respondent
TRADITIONAL HEALERS
ORGANISATION
Third Respondent
JUDGMENT DELIVERED
on 3 March 2006
DESAI J:
The relief sought herein
essentially requires the balancing of freedom of expression and other
competing constitutionally guaranteed
interests. The application
relates to the boisterous and, at times, unseemly debate with regard
to the efficacy or otherwise of
anti-retroviral treatment for those
suffering from HIV/AIDS. In the light of the scale of the pandemic
and its frighteningly severe
consequences, this discord is
unsettling. Though the arguments for and against anti-retroviral
treatment have been set out in some
detail on the papers, it is
unnecessary for the purposes of this application to make any decision
in regard thereto. This Court
is, in any event, hardly competent to
do so. It is an issue best left for consensus amongst suitably
qualified medical scientists.
The applicant in these
proceedings is the TREATMENT ACTION CAMPAIGN (“TAC”). The TAC is
a company incorporated in terms of section
21 of the Companies Act
and its principal objectives include campaigning for access to
affordable treatment for all people with HIV/AIDS
and supporting
campaigns for the prevention and elimination of all new HIV
infections. It endeavours to advance its objectives by
means of
litigation, lobbying, advocacy and other forms of social
mobilisation, especially against any perceived barriers that limit
access to treatment for HIV/AIDS in the private and public sector.
The organisation has several thousand individual members and
it seems
that a range of community organisations are associated with it. The
TAC and its national chairperson, Mr
ABDURRAZAK “ZACKIE”
ACHMAT (“ACHMAT”),
have won national and international
acclaim for their work. This is apparent from the many diverse
awards received by them.
The first and second
respondents are DR
MATTHIAS RATH
, a physician, and his
Foundation. The precise legal status of the Foundation is unclear.
It appears that they support the use of
natural and traditional
medicine as the basis of primary health care. The attack upon the
TAC by them, briefly stated, is premised
upon the view that
anti-retroviral drugs are extremely toxic and that in promoting the
use of such drugs the TAC is simply advancing
the interests of the
pharmaceutical industry. Furthermore, they contend that the TAC is
indirectly funded by the said industry.
Their sustained public
criticism of the TAC results in this application.
The third respondent’s
interest in these proceedings is somewhat tenuous. It was not cited
initially as a party by the TAC. The
Traditional Healers
Organisation (“THO”) then brought an application to be joined as
third respondent on the basis,
inter alia
, that it and the
other respondents had been jointly responsible for one or more of the
pamphlets upon which the TAC’s application
is based. It was argued
that if the Court prevented the distribution of the pamphlets by the
first and second respondents, they
too would be prejudiced. The TAC
did not oppose the application and the relief sought by the THO was
granted. It appears that their
principal complaint is about the
TAC’s exclusive reliance upon “Western pharmaceutical drugs”
and their failure to properly
take into account African traditional
medicine in the treatment of HIV/AIDS.
The fact that first and
second respondents have widely published the alleged defamatory
statements is not in dispute. They deny that
the statements are
defamatory and argue that they have a right to freedom of expression
and should not be precluded from participating
in a debate on a
matter of crucial public importance. Mr
G M Budlender
, who
appeared on behalf of the TAC, properly conceded that the respondents
are entitled to hold the view that anti-retrovirals are
toxic, and to
propagate that view energetically. The issue is whether the
respondents are entitled to publish pamphlets, newspaper
advertisements, articles on an internet site, and posters in which
they assert that the TAC is a front for pharmaceutical companies
and
is funded by them in return for promoting anti-retroviral drugs.
The respondents have
indicated that they intend to continue publishing such statements
and, in the circumstances, the TAC intends
instituting an action for
a final interdict, damages and related relief. At this stage an
interim interdict is sought as the respondents
have failed to furnish
an undertaking to cease publishing these statements pending the
determination of the action to be instituted.
The TAC does not seek
an order preventing the respondents from propagating their
contentions as to the nature and consequences of
anti-retroviral
drugs. The relief which is sought is directed at the core allegation
that the TAC is an unscrupulous organisation
which covers up its real
motive – to promote the interests of pharmaceutical companies. The
TAC accordingly seeks in its Notice
of Motion an order interdicting
the respondents from publishing any statement which alleges that :
(i) the applicant is a
front for pharmaceutical companies or the pharmaceutical industry;
(ii) the applicant is
funded by pharmaceutical companies or the pharmaceutical industry;
(iii) the applicant
receives funds from pharmaceutical front organisations in return for
promoting antiretroviral drugs;
(iv) the applicant
organises rented crowds for the drug industry;
(v) the applicant pays
people to participate in demonstrations;
(vi) the applicant
encourages people to take medicine which is harmful to them and will
kill them;
(vii) the applicant
forces the government to spend millions of rands on toxic drugs;
(viii) the applicant
forces the government to spread disease and death among the people of
South Africa;
(ix) the applicant
destabilises democracy in South Africa; or
(x) in order to promote
the interests of pharmaceutical companies, the applicant targets poor
communities as a market for the drug
industry.
Counsel for first and
second respondents, Mr
J Van der Berg
, submitted that it was
not clear from the facts what irreparable harm the TAC would suffer
if the relief claimed was not granted.
It was a very public
corporation, he stated, which courted the limelight and was not
averse to seeking public confrontation. Accordingly,
he argued, the
TAC cannot claim to fear irreparable harm when it in turn is
criticised in robust terms. Besides suggesting that
the TAC’s
prospects in the main case are open to considerable doubt, Mr
Van
der Berg
also submitted that it has to overcome “the obstacle”
of freedom of expression which is a competing right accruing to the
respondents
under the Constitution.
Though freedom of
expression may be limited by the law of defamation,
“the
constitutional guarantee of free expression is available to all under
the sway of our Constitution, even where others may deem
the
expression unsavoury, unwholesome or degrading”
. [See
LAUGH IT OFF PROMOTIONS CC v SAB INTERNATIONAL (FINANCE) BV
t/a SABMARK INTERNATIONAL
[2005] ZACC 7
;
2005 (8) BCLR 743
(CC) para
55]
. While admitting that freedom of expression is fundamental
to a democratic society, Mr
Budlender
contended that the right
of free expression must yield to an individual’s equally important
right not to be unlawfully defamed
(See
ARGUS PRINTING AND
PUBLISHING CO LTD v ESSELEN’S ESTATE
1994 (2) SA 1
(A) at 25D-E.
) Individuals have a legitimate interest in
their reputation which the law of defamation seeks to protect. [See
KHUMALO AND OTHERS v HOLOMISA
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para 28].
It appears that the two
constitutional rights – dignity and freedom of expression – are
in tension with each other. They have
to be balanced against each
other and that balancing has to be undertaken in a constitutional
context. As Mr
Budlender
has correctly pointed out, the
Constitutional Court has repeatedly emphasised the fundamental
importance of dignity as a value which
must infuse all constitutional
adjudication. Where a defamation is published, the question which
arises is whether there are grounds
of justification which negative
unlawfulness or
animus injuriandi
. These grounds have
to be considered and applied in a manner which is sensitive and
responsive to constitutional principles which
include both the right
to dignity and freedom of expression.
Mr
D Ntsebeza
,
counsel for the third respondent, argued extensively that a juristic
person cannot be the bearer of human dignity. That proposition
is
undoubtedly correct. However, the issue herein is not whether the
TAC has a right to human dignity, it is whether the defamation
impacts upon human dignity. The evidence establishes that the
defamation impacts upon the dignity of the members, volunteers and
staff of the TAC. They say in terms that the defamation upsets them
and is an attempt to destroy their reputation. That being so,
the
right to human dignity comes directly into play.
Mr
Ntsebeza
submitted that the right to dignity is “the plank on which the
applicant’s case is founded”, and that it accordingly cannot
succeed on the basis that its
fama
is affected. It appears that counsel mischaracterises the
application.
Achmat
states, repeatedly and in terms, that the basis of this application
is that the defamatory statements injure the TAC in its reputation
and its work.
Mr
Ntsebeza
does not state in express
terms that a non-trading corporation such as the TAC does not have a
right to reputation, and cannot sue
for defamation. However, if that
is the suggestion, there are several authorities to the contrary.
The remarks of
Corbett CJ
in
FINANCIAL MAIL (PTY) LTD
v SAGE HOLDINGS LTD
[1993] ZASCA 3
;
1993 (2) SA 451
at 462A
are
apposite:
“
Although a
corporation has ‘no feeling to outrage or offend’ (see the
Spoorbond
case at 1011), it has a reputation (or
fama
)
in respect of the business or other activities in which it is engaged
which can be damaged by defamatory statements and it is only
proper
that it should be afforded the usual legal processes for vindicating
that reputation.”
Mr
Ntsebeza
also advanced the argument that the TAC should be
denied a remedy despite being defamed as it has itself committed
defamation. He
stated that whatever the respondents have said has
been neutralised or cancelled by the TAC’s own conduct and that the
absence
of “clean hands” on their part should result in the court
excercising its discretion and refusing the application. In
exercising
its discretion whether to grant an interdict the Court is
entitled to take into account several “disparate and
incommensurable
features”. [See
KNOX D’ARCY LTD AND
OTHERS v JAMIESON AND OTHERS
[1996] ZASCA 58
;
1996 (4) SA 348(A)
361H-I
]. However, this defence was not raised by the first and
second respondents either on their papers or in argument. They
cannot,
and do not, rely on this defence. Third respondent only
raised this issue in argument, thereby depriving the applicant of an
opportunity
of dealing with it in its papers. In any event, the
respondents have not produced any evidence whatsoever that the
applicant has
defamed them. The statement by
Achmat
that
“some traditional healers spread dangerous messages”
is
not remotely defamatory of all or potential members of third
respondent. The abusive remarks which some members of the TAC made
about the Minister of Health are neither factually nor logically
connected to the alleged campaign of defamation by the respondents.

Ultimately Mr
Ntsebeza
places reliance upon this extended
version of the so-called “clean hands” doctrine, namely, that as
a result of the abuse of
the Minister, any other person can now with
impunity make defamatory allegations concerning the TAC and do so
repeatedly. This proposition
is not supported by any authority and
has no foundation in law.
The
first and second respondents do not, for the purpose of this
application, place in issue the TAC’s right to
fama
.
They, however, deny that the right has been infringed and argue that
a
prima facie
right to the court’s protection arises
only when it is established that the statements complained of by the
TAC are defamatory.
A defamatory statement is one which injures the
person to whom it refers by lowering 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) 703G-704D
]. Counsel for the respondents submitted
that not one of the statements relied upon by the TAC was capable of
being accorded a defamatory
meaning by ordinary, right-thinking
members of society generally. Mr Ntsebeza submitted that the best
that can be said in favour
of the TAC is that the statements amount
to verbal abuse which does not have the effect of injuring the TAC’s
good name.
With
regard to the specific allegations, counsel for the respondents
contended that it would be “outlandish” of any member of
society
to see anything scandalous in an organisation promoting certain
medicines being funded by pharmaceutical companies or their
associates. Similarly, there is nothing untoward for an organisation
“fulfilling something akin to a political role” rewarding
people
to demonstrate in its cause. With regard to the TAC encouraging
people to take medicine which is harmful, they argue that
it is
common cause that the TAC encourages people to take anti-retroviral
drugs which have harmful side effects.
These
arguments are not entirely without merit. Activist groupings
accusing each other of renting crowds has been part and parcel
of
political activity in this country for many decades and few take this
suggestion seriously. On behalf of the TAC, Mr
Budlender
conceded that the respondents are entitled to propagate their views
with regards to the toxic nature of anti-retrovirals vigorously.
As
indicated previously, this court would be reluctant to intervene in
that debate. The suggestion that the TAC destabilises democracy
is
incapable of fair-minded support. The tactics employed by the TAC
may be somewhat boisterous and, at least in one instance, abusive
towards the Minister of Health. Their conduct, however, does not
threaten the security of the state and few, if any, right-thinking
South Africans would see it in that light.
In
the instances cited above I am not persuaded that the statements are
defamatory or that the TAC has established, in respect of
each
statement, a
prima facie
right to the relief sought.
Recognising the importance of free expression, I would leave it
unfettered unless it is clear that any
right has been infringed.
First
and second respondents repeatedly state that the TAC is funded by
pharmaceutical companies and fronts for them. These allegations
fall
in a different category and warrant closer scrutiny. Though the
defamatory nature of the statements should be determined from
the
context of the statements themselves, it is noted that the
respondents do not deny certain specific allegations made by
Achmat
in this regard.
Achmat
alleges that the statements are
intended to damage the reputation of the TAC and to lower the TAC in
the esteem of people who read
them. He says that the statements have
that effect and it damages the ability of the TAC to carry on its
activities and further
its aims. Furthermore, the TAC’s ability to
carry out its daily public health information work in vulnerable
communities across
the country is undermined. Similarly, broader
public interest work done by it to ensure quality and affordable
health for all people
is compromised. There is also the possibility
of respondents’ statements being harmful to the reputations of
members of TAC staff
in relation to their future possible careers.
None of this is denied by the respondents.
Mr
van der Berg
, somewhat surprisingly, submitted that the use of
the word “front” should not give any offence as the word has
several innocuous
meanings. That may be so. However, in the context
of the statements it could only mean that the TAC serves as a
sinister cover
for the activities of the pharmaceutical companies.
The
respondents’ allegations with regard to the pharmaceutical industry
and the TAC are premised upon conjecture and inferences
and, it
seems, are underpinned by a conspiracy involving several players. It
is an unlikely scenario and no evidence has been disclosed
which
supports the respondents’ position on the TAC’s funding. The
TAC, on the other hand, has made full disclosure of its income
and
their source. Moreover, several local and international deponents
have confirmed the TAC’s policy and practices in respect
of its
finances. The respondents’ allegations are not supported on the
available evidence and the contrary appears to be more
likely.
I
refer briefly to some of the responses to the allegations made by the
respondents.
Achmat
states that since its inception the TAC has insisted on political and
financial independence from the pharmaceutical industry. This
policy
was formally declared and adopted at its national congress in March
2001 and forms part of TAC’s constitution. The relevant
clause of
the constitution reads as follows:
“
2.2 The TAC
will remain independent of government and the pharmaceutical
industry”
Achmat
states further under oath that neither the TAC nor himself have ever
knowingly accepted funding from a pharmaceutical corporation
or its
agents, nor would they do so in the future. It also appears from
Achmat’s
affidavit that the TAC has strenuously campaigned
and litigated against pharmaceutical companies with substantial
success. It is
difficult to understand why a front organisation
would display such hostility towards its principal.
Mr
Nathan Geffen (“Geffen”)
has been TAC’s treasurer and,
for about 3 years, its national manager. It appears that he holds a
master’s degree in Computer
Science. Though his earning potential
would be much higher in the private sector, he elects to work for the
TAC for a modest salary
because he believes in its campaigns. He was
party to the refinement of TAC’s principles of financial
management. He is in a
position to comment upon the respondents’
claims and states categorically under oath that their statements and
claims are false.
He admits that the TAC received an amount of R482
683,52 from the Rockefeller Foundation which to his knowledge is a
well respected
philanthropic organisation without any attachment to
the drug industry of the sort claimed by the respondents. He also
explains
the money received from the European Coalition of Positive
People (“the ECPP”). Their funding contract stated categorically
that
“no funding shall come from, directly or indirectly, any
pharmaceutical company”
. Because of the ECPP’s later
public stance on affordable medicine and the closeness of its views
to that of the pharmaceutical
industry, the TAC, after accepting R120
000, refused to take the balance of the contract amount. They,
however, have no evidence
that the ECPP breached the terms of their
contract by sourcing the money from drug companies.
Mr
Alan Velcich (“Velcich”)
is a chartered accountant and he
states under oath that he has examined the TAC’s audited financial
statements from incorporation.
The audited statements provide
schedules of funders and amounts granted over the financial periods
concerned.
Velcich
concludes his affidavit by saying that
from the financial statements reviewed by him nothing has come to his
attention that would
indicate that the TAC has received any funding
from pharmaceutical companies or any organizations representing it.
The
TAC’s members, staff and donors – including fraternal
organizations overseas – are aware of the TAC’s policy not to
accept
money from drug companies and comply with it.
The
evidence shows that as a matter of deliberate policy the applicant
has not received money from drug companies either directly
or
indirectly and it has implemented mechanisms to preclude any such
eventuality.
Save
for the speculation or conjecture to which I have already referred,
the respondents have produced no factual material to advance
a
sustainable defence in respect of these defamatory allegations.
On
the available evidence these statements are, in my view, defamatory
and a
prima facie
right to the court’s protection has
been established.
There
seems to be a well-grounded apprehension of irreparable harm. In
this case the harm cannot be remedied by the payment of damages.
The
applicant is not a trading corporation. It is a mission-driven
organisation and as
Achmat
puts it, the defamatory statements
are intended to strike at the heart of the activities of the TAC.
The
limited restraint on free speech, resulting from the order I make, is
not directed to stop the respondents from participating
in a debate
of immense public importance. The restraint is directed at the
manner in which the respondents have chosen to participate
in the
debate and the methods they chose to employ. It is imposed to ensure
that the TAC’s continued participation in the debate
is not
hamstrung by defamatory and unfounded allegations of undue intimacy
with the pharmaceutical industry.
I
do not propose making any costs order at this stage as it is an issue
best resolved by the court which hears the trial action.
In
the result, the following order is made:
1. The respondents are
interdicted, pending the final determination of an action which the
applicant has instituted against the respondents
for a final
interdict, for an apology, and for damages, from publishing any
statement which alleges that
The
applicant is a front for pharmaceutical companies or the
pharmaceutical industry, or the “Trojan horse’ of that
industry,
or the ‘running dog’ of that industry;
The
applicant is funded by pharmaceutical companies or the
pharmaceutical industry;
The
applicant receives funds from pharmaceutical front organisations in
return for promoting antiretroviral drugs;
The
applicant targets poor communities as a market for the drug
industry in order to promote the interests of pharmaceutical

companies.
2. The costs of this
application are to stand over for determination by the court hearing
the aforementioned action.
---------------------------------------
DESAI
J
I
agree.
---------------------------------------
LOUW
J
I
agree.
---------------------------------------
MOOSA
J