IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
CASE NO: D1162/25
In the matter between:
THE INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA L IMITED APPLICANT
and
ARTSOLAR (PTY) LTD FIRST RESPONDENT
BRETT LATIMER SECOND RESPONDENT
KANDACE SINGH THIRD RESPONDENT
SHALENDRA HANSRAJ FOURTH RESPONDENT
BONGANI HANS FIFTH RESPONDENT
In re the matter between:
ARTSOLAR (PTY) LTD APPLICANT
and
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BRETT LATIMER FIRST RESPONDENT
KANDACE SINGH SECOND RESPONDENT
SHALENDRA HANSRAJ THIRD RESPONDENT
BONGANI HANS FOURTH RESPONDENT
JUDGMENT
P WALLIS AJ
[1] The application before me is interlocutory to an application instituted
by Artsolar (Pty) Ltd (“Artsolar”) against four respondents. The four
respondents were respectively Brett Latimer (“Latimer”) (who may fairly be
described as the guiding mind of a customer of Artsolar) , Kandace Singh
(“Singh”) and Shalendra Hansraj (“Hansraj”) (who were both erstwhile
employees of Artsolar) , and Bongani Hans (a journalist).
[2] In that application , which was issued on 24 March 2025 for hearing
on 26 March 2025 , it was (in broad terms ) contended by Artsolar that
Latim er, Singh and Hansraj were defaming Artsolar to inter alia Hans. An
interdict was sought on 26 March 2025 and an order was granted on the
same date in the following terms:
“1. That a rule nisi do hereby issue calling upon the respondents to show
cause, if any, to this court on the 29th day of July 2025 why an order in the following
terms should not be granted:
1.1 the respondents are interdicted and restrained from making written or
verbal defamatory statements concerning the applicant, including by stating or
implying that:
Page 3
1.1.1 the applicant conducts business unethically or dishonestly;
1.1.2 the applicant defrauded the first respondent or the first respondent’s
company including by misrepresenting that alternative electricity generation
equipment being solar panels supplied by the applicant to the first respondent’s
company were manufactured locally when in truth and in fact they were
manufactured in China;
1.1.3 alleging or implying that the applicant has falsely inflated prices charged to
the first respondent or any of his companies, in the supply and/or installation of solar
panels.
1.2 That the aforesaid interdict will apply irrespective of to whom the said
defamatory allegations are made, but in the case of the first to third respondents, will
extend specifically to members of the press, Bongani Hans, the Independent Media
Group, the International Trade Administration Commission of South Africa (ITAC),
the Industrial Development Corporation of South Africa (IDC) and the Department of
Trade, Industry and Competition (DTIC).
1.3 The fourth respondent is interdicted from publishing any such statements,
and including publishing them as constituting allegations made by any third party to
the effect set out in para 1.1 above .
1.4 That the first to third respondents are directed to pay the costs of this
application jointly and severally, but in the event of the application being opposed by
the fourth respondent, that all four respondents are to pay those costs jointly and
severally, on scale C.
2. Pending the return date or any extension thereof, the provisions of
paragraphs 1.1 to 1.3 above will operate as interim orders with immediate effect.”
[3] As mentioned, the application that served before me was
interlocutory to the application where an order was granted on 26 March
2025. In this interlocutory application, the Industrial Development Corporation
of South Africa L imited (“IDC”) seeks:
(a) an urgent hearing;
(b) to be joined as the fifth respondent in the main application; and
(c) a reconsideration of the order granted on 26 March 2025 so as to
delete the reference to the IDC in paragraph 1.3 of the Order .
Page 4
[4] The reconsideration is limited only to the rule nisi and interim relief. It
is not finally dispositive any matter - whether between the named parties , or
between Artsolar and the IDC.
[5] The interlocutory application was issued on 3 April 2025 for a hearing
on 9 April 2025. By the date of hearing Artsolar had filed what was described
as a preliminary answering affidavit. In court on 9 April 2025 I was advised by
Mr Broster (who appeared for the IDC) that the IDC did not intend to file a
replying affidavit and regarded the matter as ripe for hearing.
[6] Consequently, on 9 April 2025 I was required to consider the
following three questions:
(a) was the matter sufficiently urgent to justify a hearing on 9 April 2025;
(b) was a case made by the IDC for its joinder as fifth respondent in the
main application; and
(c) was a case made by the IDC for reconsideration in the terms that it
sought.
[7] As set out in argument for Artsolar (by Mr Stokes SC who appeared
together with Mr Shapiro SC), the reconsideration question includes a
question of whether a party that is not originally cited is entitled to invoke the
provisions of un iform rule 6(12)(c) in pursuit of a reconsideration.
[8] The questions set out above must necessarily be sequentially
answered . Put simply: if the matter is not urgent then it is not necessary to
consider the question of joinder because the matter ought not to be enrolled,
but if the matter is urgent and the joinder is refused then it is unnecessary to
consider the question of reconsideration. That being said, the factual basis
for each of the questions is interrelated and , to some extent, the impact of the
conclusion in the latter questions informs the former.
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Urgency
[9] Assuming for the purposes of the consideration of urgency that the
application is properly one instituted in accordance with uniform rule 6(12)(c)
a question arises as to appropriate test for urgency in reconsideration
applications.
[10] Rule 6(12)(c) itself contains no internal directive regarding urgency.
That rule simply requires that reconsideration be set down on notice. The rule
is a sub -rule to rule 6(12) whic h provides in 6(12)(a) for urgent applications.
As a matter of construction, it seems to me that a party seeking a
reconsideration under 6(12)(c) is required , if it wishes that the
reconsideration be dealt with urgently, to provide a basis justifying an urgent
hearing for the reconsideration.
[11] This accords with the analysis in Erasmus1 wherein it is recorded:
“It has been held that an application for reconsideration is not urgent for the
purposes of rule 6(12) simply because an order was granted in the urgent court.
This means that, in the absence of demonstrable prejudice in the time between
when an application may be heard before an urgent court and in the ordinary
course, a party seeking a reconsideration must set out the prejudice that will ensue.
The threshold is the same whether in an application for reconsideration or when
approaching the court under rule 6(12)(a). In both instances, the parties seeking
relief must set out in clear terms facts duly supported that will pass the threshold of
‘absence of substantive relief’ if the matter is not heard before the urgent court.”
[12] Erasmus supports that contention by reference to an unreported
decision in the Gauteng Court in Joint Venture Comprising Gorogang Plant
Razz Civils v Infiniti Insurance Ltd .2
1 Erasmus, Superior Court Practice, Second Edition, D1 – Rule 6 -62: Service 25, 2024
2 [2024] ZAGP JHC 1048 (15 October 2024)
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[13] That approach is reinforced by the judgment in Sheriff Pretoria North -
East v Flink and Another3 wherein Raath AJ observed:
“Nothing in rule 6(12)(c) suggests that such a respondent would be entitled to enrol
the matter for reconsideration again on an urgent basis merely because the order
had been obtained o n an urgent basis. A proper case will have to be made out
independently for the urgency of reconsideration of the order.”
[14] In contrast, this court in United Medical Devices LLC and Another v
Blue Rock Capital Ltd and Another4 held as follows:
“As stated, the purpose of rule 6(12)(c) is to allow parties who were no t present
when an urgent ex parte order is made, to approach the court for reconsideration of
the order and to place facts before the court. To permit the respondents to
themselves now claim lack of urgency on the part of the applicants would undermine
audi alteram partem which rule 6(12)(c) gives effect to.”
[15] It seems to me that the approach of the KwaZulu -Natal Court
recognises implicitly that a party who has obtained an ex parte order (which
for the purposes of the question of urgency I assume to have been wrongly
obtained) ought not to be permitted to benefit from that order merely because
the matter was initially heard ex parte . Such an approach would be to
encourage ex parte applications in the hope that court procedure and
overburdened court rolls would secure a benefit to which the ex parte
applicant was n ever entitled.
[16] The IDC’s case for urgency is somewhat tersely set out and may be
summarised as follows:
(a) there is a potential for significant harm to the mandate and reputation
of the IDC given the sum of over R 90 million advanced by the IDC to
Artsolar;
3 [2005] JOL 14761 (T)
4 (13398/2015) [2016] ZAKZDHC 12 (4 March 2016) at [42]
Page 7
(b) the potential harm extends beyond the IDC affecting the public at
large and the South African economy and the IDC goal of localising
the production of products of this nature; and
(c) the order will have the effect of delaying the investigation of the
complaint to the IDC about Artsolar beyond the ninety day period
requested by the Department of Trade, Industry and Competition
(“DTIC ”).
[17] Artsolar disputes that the harm will arise and particularly disputes
that the ninety day period is of any great moment given that it is “self -
imposed”.
[18] Even if I were to accept that the period is self -imposed, it appears to
me that courts should incentivise proactive investigation by organs of State
and State owned companies rather than imposing impediments upon such
investigations.
[19] It also appears to me that the issues arising in this particular
application are narrow in scope and primarily of a legal nature. Consequently,
there is only a limited prejudice, if any, to be suffered by Artsolar arising from
truncated time periods for the filing of an answering affidavit. Even if the
answering affidavit is styled “preliminary”, it is unclear to me what further
facts might have been placed before the court (assuming that any were
permissible given the form or reconsideration) even had a longer period been
provided for.
[20] In having regard to the various contentions as relates to urgency, I
ultimately conclude that it would be appropriate to adopt the approach of
Pullinger AJ in the Joint Venture Comprising Gorogang Plant Razz Civils and
Others matter wherein at paragraph 6 after endorsing the proposition that a
reconsideration is not automatically urgent, the court nonetheless adopted
the position that it was:
Page 8
“…not inclined to strike this matter from the roll and [instead] preferred to address
the merits of the matter as all the papers are before me, [because] I have heard full
argument in relation to both the procedural aspects and the merits and therefor e
there is no good reason to burden another court in the circumstances.”
[21] It seems to me that the same approach should be adopted here
because, even if the case for urgen cy advanced by the IDC is somewhat
limited, it is nonetheless a more appropriate use of judicial resources, and a
more appropriate balancing of the rights of the parties to consider the
application on the merits than to ascribe strictly to procedural rules relating to
urgency.
Request to join as respondent
[22] The IDC case for joinder culminates in paragraph 22 of the founding
affidavit which reads:
“Given the fact that the IDC has a direct and substantial interest in the order sought
by Artsolar, the IDC ought to have been joined to these proceedings and is entitled
to an order to be joined to these proceedings as the fifth respondent.”
[23] That paragraph is predicated upon an earlier dis cursus in which the
IDC sets out that:
(a) it received a whistleblower complaint ; and
(b) it wishes to conduct an investigation into that complaint (which is said
already to have been commenced).
[24] In contrast Artsolar contends that :
(a) the IDC has no legal interest in receiving defamatory allegations (and
it posits that the original court order necessarily included a prima
facie finding that the statements were defamatory); and
(b) allied to that contention it is argued that the IDC’s position is that of a
private contracting party and not a public authority with any
investigative rights or obligations.
Page 9
[25] The applicable test for intervention has been set out in detail by the
Constitutional Court in South African Riding for the Disabled Association v
Regional Land Claims Commissioner and Others5 where that court held:
“[9] It is now settled that an applicant for intervention must meet the direct and
substantial interest test in order to succeed. What constitutes a direct and
substantial interest is the legal interest in the subject -matter of the case which could
be prejudicially affected by the order of the Court. This means that the applicant
must show that it has a right adversely affected or likely to be affected by the order
sought. But the applicant does not have to satisfy the court at the stage of
intervention that it will succeed. It is sufficient for such applicant to make allegations
which, if proved, would entitle it to relief.
[10] If the applicant shows that it has some right which is affected by the order
issued, permission to intervene must be granted. For it is a basic principle of our
law that no order should be granted against a party without affording such party a
pre decision hearing. This is so fundamental that an order is generally taken to be
binding only on parties to the litigation.
[11] Once the applicant for intervention shows a direct and substantial interest
in the subject -matter of the case, the court ought to grant leave to intervene.
In Greyvenouw CC this principle was formulated in these terms:
“In addition, when, as in this matter, the applicants base their claim to intervene on a
direct and substantial interest in the subject -matter of the dispute, the Court has no
discretion: it must allow them to intervene because it should not proceed in the
absence of parties having such legally recognised interests.” "
[26] In my view, the opposition to joinder loses si ght of two key aspects.
[27] Firstly, s16(1)(b) of the constitution, 1996 provides:
“Everyone has the right to freedom of expression, which includes –
(b) freedom to receive or impart information or ideas.”
[28] Although not every right in the bill of rights applies to juristic persons,
on the facts of this matter (and taking into account the juristic persons such
5 2017 (5) SA 1 (CC)
Page 10
as media organisations have previously asserted rights under s16) I see no
reason why the IDC ought not be able to invoke the right to receive
information or ideas as identified in s16(1)(b) of the constitution. This then is
the starting point for the consideration of whether any rights of IDC are
affected.
[29] Furthermore, it is not in my view correct , as contended for by
Artsolar, to treat the IDC as simply another lending institution with private law
contractual rights. Plainly, the IDC does have such private law rights but it
also fulfils a function different to that fulfilled by other commercial lenders.
The IDC was established by statute6 and its objects as set out in s3 include:
“(b) To facilitate, promote , guide and assist in the financing of:
(i) new industries and industrial, or ancillary or related economic,
undertakings ; and
(ii) schemes for the expansion, better organisation and modernisation of and
the more efficient carrying out of operations in existing industries and
industrial, or ancillary or related economic, undertakings
to the end that the economic requirements of the Republic may be met and
industrial development within the Republic, Southern African region and the rest of
Africa may be planned , expedited and conducted on sound business principles;
(g) to encourage the creation of new knowledge based industries and services
in the establishment and growth of new technology based firms; and
(h) to en hance corporate governance so as to achieve business excellence.”
[30] Whilst, as Artsolar correctly contends, the loan agreements
concluded between the IDC and Artsolar do not expressly identify that
Artsolar was to effect local production of solar panels, the IDC alleges directly
that:
“The primary purpose of this funding was to enable Artsolar to install the latest
technology manufacturing plant/line and machinery for the local production of the
6 Industrial Development Corporation Act No. 22 of 1940
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latest technology photovoltaic modules (solar panels) such as the 550W
photovoltaic modules.”
[31] An investment for the purpose identified by the IDC would accord
with the stated objects of the IDC as encapsulated in legislation.
[32] The combination of the right under s16(1)(b) and the statutory
objects of the IDC is such, in my view, as to make clear that the IDC has a
direct and substantial interest in the application.
[33] Having regard to what I have set out above, I am satisfied that the
IDC has a right to be joined in the application.
[34] Artsolar also contends that there is in effect no harm suffered by the
IDC because it has other private law contractual entitlements to conduct
inspections and to have sight of Artsolar’s documents and factory.
[35] That last point is in my view not helpful in the question of joinder
since as the Constitutional Court pointed out in South African Riding for the
Disabled Association v Regional Land Claims Commissioner and Others
matter where a party asserts “some right which is affected by the order
issued, permission to intervene must be granted .”
Reconsideration
[36] Having thus determined both that the matter should be entertained
as one of urgency and that in the first instance the IDC ought to have been
joined in the application, all that remains is a question of whether the IDC’s
requested reconsideration should be upheld or rejected.
[37] Artsolar contends that it is not open to the IDC to invoke Rule
6(12)(c) because, as I understand the argument, the IDC was not a party at
the hearing and thus was not a party in whose absence an Order was
granted. I do not accept that argument. Firstly, the rule appears to me to be
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wide enough to accommodate a person who has successfully contended for
their joinder even if not originally cited. Secondly, once it is accepted that a
party enjoyed a right to be joined, any formalistic approach to the rules must
necessarily be eschewed in favour of an approach that does justice.
[38] The approach to reconsideration has been settled by the Supreme
Court of Appeal in Afgri Grain Marketing (Pty) Ltd v Trustees for the time
being of Copenship Bulkers A/S (in liquidation) and Others7 which held:
“[12] Rule 6(12) (c) does not prescribe how an application for reconsideration is
to be pursued. The absence of prescription was intentional and the procedure will
vary depending upon the basis on which the party applying for reconsideration
seeks relief against the order granted ex parte and in its absence. A party wishing to
have the order set aside, on the ground that the papers did not make a case for that
relief, may deliver a notice to this effect and set the matter down, for argument and
reconsideration, on those papers. It may do the same if it merely wishes certain
provisions in the order to be amended, or qualified, or supplemented. The matter is
then argued on the original papers. It is not open to the original applicant, save
possibly in the most exceptional circumstances, or where the need to do this has
been foreshadowed in the original founding affidavit, to bolster its original application
by filing a supplementary founding affidavit. ”8
[13] The party seeking reconsideration is not confined to this route. It may file
an answering affidavit, either traversing the entire case against it, or restricted to
certain issues relevant to the reconsideration. In many instances such an affidavit
will be desirable9. Even if an affidavit is filed, however, it does not preclude the party
seeking reconsideration arguing at the outset, on the basis of the application papers
alone, that the applicant has not made out a case for relief. That is a well -
established entitlement in application proceedings10 and there is no reason why it
should not be adopted in reconsideration applications.11
7 2024 (1) SA 373 (SCA)
8 Basil Read (Pty) Ltd v Nedbank Ltd and Another 2012 (6) SA 514 (GSJ) para 37.
9 ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) at 487C -D
10 Bader and Another v Weston and Another 1967 (1) SA 134 (C) at 136B -C; Aspek Pipe Co
(Pty) Ltd and Another v Mauerberger and Others 1968 (1) SA 517 (C) at 519E -F; Hart v
Pinetown Drive -Inn Cinema (Pty) Ltd 1972 (1) SA 464 (D) at 465E -G.
11 It was adopted in Lourenco and Others v Ferela (Pty) Ltd and Others (No 1) 1998 (3) SA
281 (W) at 291B -G.
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[14] If an affidavit is filed in support of the application for reconsideration then
the party that obtained the order is entitled to deliver a reply thereto, subject to the
usual limitations applicable to replying affidavits. When that is done, and the party
seeking reconsideration does not argue a preliminary point at the outset that the
founding affidavit did not make out a case for relief, the case must be argued on all
the factual material before the judge dealing with the reconsideration
proceedings12.That material may be significantly more extensive and the nature of
the issues may have changed as a result of the execution of the original ex
parte order.13”
[39] The approach of the IDC falls somewhat in between the two
approaches identified by the Supreme Court of Appeal. While the IDC did file
an affidavit (thus placing itself somewhat outside the form of reconsideration
that proceeds only on the founding papers) it did so primarily to adduce
evidence in support of its intervention rather than in support of the
reconsideration . Further, an answering affidavit (albeit preliminary) ha s been
filed by Artsolar, and a dditionally Latimer, Singh and Hansraj ha ve filed
comprehensive answering affidavits. It follows that the material before this
court is not quite the same material as was before the court hearing the main
application in the first instance.
[40] At this point, it is appropriate to return to the order that was granted
by the court hearing the matter in the first instance.
[41] Mr Stokes contended that there can be no entitlement on the part of
the IDC to receive defamatory information and consequently that the IDC
could not assert that any legitimate right had been infringed by the terms of
the order. That submission is seductive in its simplicity but , in my view,
cannot be adopted without qualification.
12 Oosthuizen v Mijs 2009 (6) SA 266 (W) at 269H -J.
13 The Reclamation Group (Pty) Ltd v Smit and Others 2004 (1) SA 215 (SE) at 218D -F.
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[42] The first qualification is one of law ; which is to note that there are
circumstances in which defamatory statements might legitimately be made.
These include all of the various forms of qualified privilege , as well as
circumstances peculiar to the press , or where it can be contended that the
statements are both true and for the public benefit, There is thus no absolute
right to be protected from being the subject of defamatory allegations.
[43] The allegations which are precluded under the original order include
either direct statements or implications that Artsolar conducts its business
unethically or dishonestly; and allegations relating to where solar panels were
represented to have been made as opposed to where they were in fact
made; a s well as further allegations relating to representations as to price.
[44] In the context of the objects of the IDC, and the alleged purpose of
the loan, it appears to me at least prima facie that disclosures of the nature
interdicted (assuming that they were truthful) would be defensible either as
being truthful and for the public benefit or as a form of qualified privilege. For
that reason, merely on principles of law I would grant the reconsideration.
[45] There is however a further practical reason why the reconsideration
should be granted. That is because upon an analysis of the order from the
perspective of the IDC it prohibits plainly permissible statements that could
be made by Latimer, Singh and Hansraj to the IDC. By way of example , and
assuming without finding that the facts supported these statements, it would
in my view not be defamatory for the three principal respondents to make the
following statements to the IDC :
(a) the solar panels installed by the applicant were said by the applicant
to be manufactured in South Africa; but
(b) factually the solar panels are manufactured in China; and
(c) the solar panels would not have been purchased had it been known
that the panels were manufactured in China and not in South Africa;
and
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(d) the principal respondents believe tha t Artsolar both knew that its
representation was wrong and further knew that the representation
was relied upon .
[46] If those statements can bona fide and honestly be made by the first
to third respondents, then I can see no grounds for prohibiting them.
However, the necessary implication of those statements would be that:
(a) Artsolar conducts business unethically or dishonestly; and
(b) Artsolar defrauded the first respondent’s company.
[47] The order as presently framed precludes disclosures to the IDC that
may have that implication. In my view, such a prohibition is not justified.
[48] Further, the founding affidavit in the original application made no real
case (as against the IDC) that disclosures, even defamatory ones, could not
be cured by a suitable alternative remedy in the form of damages claimable
against a party making untrue and defamatory allegations. There was also no
examination in the original founding papers of the balance of harm vis a vis
the IDC. For that reason also, I hold that the reconsideration is well founded
because no case for interdictory relief was made out in the original founding
papers vis a vis the ID C.
[49] As to costs, I see no reason why costs ought not to follow the result.
Artsolar instructed two senior counsel which reflects the gravity of the matter
and in my view , it would be appropriate to award costs on scale C. Because
this application is only interlocutory, rather than final, the costs are only those
occasioned by the hearing on 9 April 2025.
[50] For th e reasons set out above, I grant the following order :
(a) the Industrial Development Corporation of South Africa Limited is
granted leave to intervene and is hereby joined as a fifth respondent
under Case No. D1162/25;
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(b) the order granted on 26 March 2025 be and hereby is reconsidered
by deletion in paragraph 1.2 thereof of the words “the Industrial
Development Corporation of South Africa (IDC)”;
(c) Artsolar (Pty) Ltd is to pay the costs of Industrial Development
Corporation of South Africa Limited occasioned by the hearing on 9
April 2025 on scale C .
________ ______
P Wallis AJ
Appearances
Counsel f or IDC: Adv JP Broster
Attorneys of IDC: Pather and Pather Attorneys
Ref: Edward Abraham/CR/I292
Counsel for Artsolar (Pty) Ltd: Adv A Stokes SC and Adv W N Shapiro SC
Attorneys for Artsolar (Pty) Ltd: Macgregor Erasmus Attorneys Inc
Ref: R Erasmus & JM
Klingbiel/SV/ART1/0008