REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 062312/2024
1. REPORTABLE : ,¥g,,1 NO
3. REVISED: YES
DATE: 22 May 2025
SIGNATURE OF JUDGE:
In the matter between:
NEWNET PROPERTIES (PTY) LTD
t/a SUNSHINE HOSPITAL
and
ROAD ACCIDENT FUND
MACINTOSH PULELLA
HERSHENSOHN AJ JUDGMENT APPLICANT
15T RESPONDENT
2N□ RESPONDENT
INTRODUCTION
[1] The current application before me is an application in terms of which the
applicant seeks certain interdictory relief and more particularly in terms of an amended
notice of motion, a declaration as to a certain statement to be found as defamatory.
[2] The matter comes as an opposed motion and was argued before me on 23 April
2025.
THE FACTUAL AVERMENTS
[3] As I understand the applicant’s case and from a perusal of the papers, the
applicant contends that as a hospital a statement made by the second respondent,
Mr Pulella, acting in his capacity as the Head of Corporate Communications for the
first respondent being the Road Accident Fund (“the RAF”) made certain d efamatory
during an eNCA interview which took place on 15 March 2024 during which interview
the second respondent accused the applicant of involvement in a “ corrupt scheme ” of
transferring patients unlawfully and “ over-servicing and overcharging ” their pat ients.
[4] In this regard the offending statement as transcribed in the founding affidavit
reads as follows:
“… They are a company called Sunshine and they are a company that was
involved in a corrupt scheme of moving patients from anywhere around the
country to the Sunshine Hospital in Benoni. As a result of that we felt that
there was over servicing and there wa s overcharging and the matter is in
court and so until such time as the matter is finished with in court we are
going to face this all the time .”
[5] The applicant contends that the statement was false and an outright lie and was
furthermore not the first time that these statements were made. The applicant further
contended that when considering a report which had been done by investigators in the
emplo y of the RAF and as such was released. The said report found no evidence of
wrongdoing and on the part of the applicant.
[6] As I have alluded to above the applicant seeks in effect:
(a) a declaration that the statement made by the second respondent and
more particularly on 15 March 2024 on the news channel eNCA and
specifically that the applicant was involved in a corrupt scheme of
moving patients from other hospitals across the country t o itself and
further that the applicant was involved in over servicing and overcharging
are declared to be defamatory and false ;
(b) that the first respondent and all other persons under its authority and
employed by it or under its control acting on its instructions together with
the second respondent is interdicted and restrained from making any
further statements that either state or imply that the applicant is involved
in a corrupt scheme of moving patients from other hospitals across the
country to itself and fur thermore that the applicant was involved in over
servicing and overcharging ;
(c) that the first and second respondents are to be declared to be jointly and
severally liable for the applicant’s damages as occasioned by the
aforementioned defamatory conduct, that the determination of the
quantum of the applicant’s damages an apology and retraction of the
statements are referred to the hearing of oral evidence;
(d) that the first and second respondents pay the costs of the application on
a party and party scale and more particularly on scale C thereof inclusive
of costs of counsel, one of which is a senior counsel.
[7] The respondents on the other hand contend that the statements were truthful
or based upon fair comment and which is premised upon the following:
(a) investigations into Sunshine Hospital’s allegations of alleged corruption
and billing irregularities;
(b) the fact that the RAF had made prior media statements about the same
matter and more particularly that the applicant had done nothing in that
regard;
(c) that there were ongoing investigations by the special investigating units
into corruption involving RAF officials and private entities;
[8] The respondents took issue with the manner in which the application was
brought and more particularly that it was brought by motion proceedings and, and that
by virtue of a foreseeable factual dispute that the matter ought to have been referred
to trial and in particular with reference to the damages claim.
THE AMENDMENT
[9] From the relief quoted above it is apparent that the relief I have quoted in this
judgment is in fact different to the original relief sought .
[10] This is simply because prior to the hearing of the matter the applicant launched
an application in terms of the provisions of Rule 28 to amend the notice of motion and
more particularly the relief sought to include not only the interdict, but a declaration
that the statement itself as was made by the respondents was in fact defamatory.
[11] The rationale for this was obvious. This is an issue which was raised by the
respondent in its answering affidavit as a key contention and quite rightly so. In the
absence of a declaration of the fact that the statement was in fact defamatory, a case
would not be made out and relief would not be competent when considering the
ancillary relief sought .
[12] Consequent upon the amendment being filed, the matter was argued in front of
me. In this regard the issue was raised prior to the arguing of the matter in its entirety,
by both Mr M okhare and Mr Arnoldi representing the various parties.
[13] I immediately asked Mr M okhare if there was any objection to the proposed
amendment. He recorded that the way the amendment found its way to court , was
unfortunate particularly since this was an issued raised by the respondents in their
answering affidavit, however he did not oppose the amendment.
[14] I am appreciative of Mr M okhare in that to simply oppose the amendment would
have inevitably drawn out the matter unnecessarily. As such, I have accepted the
amendment as proposed by the applicant and the notice of motion was accordingly
amended and in terms of the amended notice of motion file d.
ARGUMENT ON BEHALF OF PARTIES
[15] Mr Arnoldi acting on behalf of the applicant contended that the statement as
published was clearly and patently defamatory.
[16] He furthermore contended that albeit that it was alleged by the respondents
that these allegations had been previously made and that the applicant was only now
prepared to object to them, was not correct. Importantly he argued , insofar as the
previous statements were made, they were already challenged by the applicant,
alternatively the applicant did not particularly consider them defamatory. In this regard
Mr Arnoldi dealt with the previous statements and as follows:
(a) insofar as the statement as per annexure “AA1” was concerned, the
matter had been challenged and in terms of a fact which was not on the
papers before me, reference was made to a finding by my brother
Maumela AJ who granted an order on 29 March 2022 in terms of which
the first respondent and its CEO were ordered to remove and retract the
said media statement of 10 March 2022;
(b) in this regard I was able to find a copy of the judgment dated 12 January
2023 and which judgment is currently the subject of a full bench appeal ;
(c) the outcome of the matter is in my mind not relevant to the matter at
hand as I will deal with hereunder ;
(d) in terms of annexure “AA2”, it was argued by Mr Arnoldi to be so general
that one could not necessarily read in a proper context that the
statements made in the said article particularly related to the applicant ;
(e) in terms of annexure “AA3”, Mr Arnoldi contended that by using the word
“alleged ” this similarly did not constitute a defamatory statement and as
such the applicant was loathe to challenge same, since, on a strict
interpretation of the content of the said document, this in itself did not
constitute a defamatory utterance ;
(f) in terms of annexure “AA4” and “AA5”, similarly, in his view did not
demonstrate a clearly defamatory statement or the animus injuriandi .
[17] One of the debates which was had between myself and Mr Arnoldi related to
the particular relief which was sought .
[18] Albeit that it may be the case that a case may have been made out on the
papers justifying an interdict, the difficulty I had was whether or not I could make a
finding on defamation and for purposes of damages and if this was not an issue which
ought to be referred to trial.
[19] In this regard Mr Anroldi referred me to a matter recently in front of the Supreme
Court of Appeal and more particularly the matter of the Economic Freedom Fighters
and others v Manuel 2021 (3) SA 425 (SCA) which he used in support of this
contention. In fact Mr Arnoldi’s statement was specifically that whilst the court was
hearing an application for an interdict the court is necessarily enjoined to make a
finding on defamation and that in such circumstances that finding holds true for the
damages to be argued later. More about this later.
THE RESPONDENT’S CASE
[20] The respondent’s case was argued by Mr M okhare. In short his argument was
premised upon the following:
(a) there is clearly a dispute of fact on the papers which cannot be resolved
on the papers before the court and simply put the matter ought to be
referred to trial in its entirety ;
(b) furthermore when one considers the statements, these statements have
been previously made and previously the applicant had taken absolutely
no steps to address these issues.
(c) In Mr M okhare’s view annexures “AA1” to “AA5” speak to the same thing
and do not create a new case when considered to the statement made
on 15 March 2024.
(d) Mr M okhare further contended that should the applicant wish to persist
with the matter, the matter in its entirety ought to be put before a trial
court where evidence is led vive voce and in order to determine the issue
at hand.
IS THERE A DISPUTE OF FACT?
[21] One of the respondents main contentions was that there is a material dispute
of fact on the papers which cannot be resolved absent evidence viva voce .
[22] An application for an interdict remains a request for relief by means of motion
proceedings.
[23] In this case, the relief sought is a final interdict and the principles applied in
Plascon -Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
635C are apposite.
[24] In this regard the basic premise is that the court has to accept the facts alleged
by the respondent unless those facts are so far -fetched or clearly untenable that the
court is justified in rejecting them merely on the papers.
[25] This principle has been stated further in National Scrap Metal Cape Town
(Pty) Ltd and another v Murray & Roberts Ltd and others 2012 (5) SA 300 (SCA)
at 307D para 21 –23 as follows:
“As the High Court was called on to decide the matter without the benefit
of oral evidence, it has to accept the facts alleged by the appellants (as
respondents below), unless they were ‘so far -fetched or clearly
untenable that the court is justified in rej ecting them merely on the
papers ’.”
and further:
“An attempt to evaluate the competing versions of either side is thus both
inadvisable and unnecessary as the issue is not which version is the
more probable but whether that of the applicants (i.e. the respondents),
is so far -fetched and improbable that it can be rejected without evidence .”
[26] So which version should I consider ?
[27] I have considered the answering affidavit in some detail.
[28] In this regard it was my view that the answering affidavit is of very little help to
the court. It simply records that the statements made during the interview were not
simply made recklessly and without factual foundation. The respondents contend that
the statements which were made, were supported by investigation reports which had
been commissioned and presented to the first respondent. It contends further that
there were facts substantiating the various contentions made.
[29] This unfortunately is as far as the affidavit goes. In my view, the first respondent
ought to have taken maters further and detailed what the actual portions of these
reports were, which they relied upon, what investigation s the reports relied upon in
coming to these conclusions , and what the particular facts were that justified the
conclusion that the applicant was “ …involved in a corrupt scheme… ” inter alia .
[30] Furthermore, if there were investigations and any findings made, these should
have been referenced in detail in the answering affidavit to demonstrate that the
contentions made were in fact true or at lease amounted to fair comment.
[31] This the respondents did not do. As such and with the absence of any facts to
support these contentions and more particularly the disputes raised in the answering
affidavit , I would need more to sustain the argument that there is such a material
dispute of fact that the matter cannot be resolved on the papers .
[32] Even when applying the Plascon -Evans test, and if there was indeed a dispute
of fact so material, I am of the view that I must reject the contentions as made by the
respondents out of hand in that they are so bald and vague as to not be taken seriously.
WAS THE STATEMENT DEFAMATORY
[33] A key question remains as to whether or not the statement which is relied upon
by the applicant was in fact defamatory. This involves a two -fold inquiry.1
[34] Firstly, one is required to establish the meaning of the words used. Secondly,
one asks whether the meaning was defamatory and that it was likely to impugn the
good esteem in which the plaintiff was held by the reasonable or average person to
whom the statement was published.
[35] When one considers paragraph 26 which has an extract of the quotation which
is contended to be defamatory, it is in my mind clear that the message that was
conveyed, was clearly that:
(a) the applicant was involved in a corrupt scheme of moving patients from
anywhere the country and to the hospital in Benoni;
1 Le Roux and others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici
curiae ) 2011 (3) SA 274 (CC) at para 89 .
(b) that there was overservicing; and
(c) that there was overcharging.
[36] The wording used is clear and unequivocal and as such I believe that the
statement as made is defamatory and that it was likely to injure the good esteem of
the applicant and by the reasonable or average person who read and/or to whom the
statement was made.
[37] The fact that the abovementioned statement was published on eNCA is
common cause between the parties.
[38] Once publication of a defamatory statement has been proved, it is trite that it is
presumed that the publication was wrongful and intentional , that is, published with the
intention to injure (the animus iniurianei ).2
[39] Accordingly, a respondent who wishes to avoid liability must raise a defence
that includes either wrongfulness or intention and as such, the publisher of the
defamation bears the onus of rebutting either the wrongfulness o r intention. They must
also induce the necessary evidence to achieve that purpose.3
[40] In this regard the onus rested clearly upon the respondents to establish either
that the publication was not wrongful or that it was not published with the requisite
intent.
[41] It appears that the high watermark of the respondents, over and above taking
the several technical points in the answering affidavit , and that the respondents rely
upon , is to be found at paragraph 22.3 of the answering affidavit in which the second
respondent records as follows:
2 Khumalo v Holamisa 2002 (5) SA 401 (CC) para 18 .
3 Le Roux v Dey supra at para 85 .
“The statement I made during the interview were not simply made
recklessly and without factual foundation. These were statements which
were supported by investigation reports which have been commissioned
and presented to the RAF. The very reports that the a pplicant seeks to
rely on, do not support the conclusion that is made by the applicant and
that these reports have exonerated the applicant. I dispute that the
reports have exonerated the applicant. In fact, the allegations pertaining
to the irregularitie s and corruption are still ongoing including that the SIU,
is investigating the very issue of corruption which may involve RAF
officials, in their dealings with private sector entities such as the
applicant .”
[42] In the following paragraph it appears that there is also an attempt to rely upon
the defence of fair comment.
[43] Finally, it appears that the respondents rely upon the fact ,as I understood the
argument , that by virtue of the fact that these statements had been made several
times, and by or on behalf of the respondents and that the applicant had taken no
action, that this further demonstrated that the applicant did not consider the statements
as seriously injurious .
[44] According to LAWSA , truth and public interes t, and fair comment , are two
defences that have long been recognised as rebutting the presumption of
wrongfulness. A respondent relying upon the truth in public interest, must plead and
prove that the statement is substantially true and was published in the public interest.4
[45] It appears that the high watermark of the respondents’ contention in this regard
is that they were relying upon several reports to demonstrate this.
[46] From my perusal of the answering affidavit and the various documents attached
to the pleadings, I did not find any contentions which clearly and unequivocally
supported the contention made in the statement complained of and particularly that:
(a) the applicant was involved in a corrupt scheme ;
4 LAWSA Vol 14(2) 3 Ed (2017) by Justice FDJ Brand, para 124 .
[47] Similarly and as far as the defence of fair comment is concerned, this defence
has four elements upon which the respondents ought to demonstrate and prove in his
pleadings. These are that the defamatory statement:
(a) must be a comment and not a statement of fact;
(b) it must be fair, by which is meant only that it must be an honestly held
opinion, not that it is balanced or temperate;
(c) the facts on which it is based must be true and must be clearly stated or
clearly indicated or matters of public knowledge; and
(d) the comment must relate to a matter of public interest.5
[48] Already as far as the first requirements is concerned, this defence cannot be
sustained . In this regard the words “ … They are a company called Sunshine and they
are a company that was involved in a corrupt scheme . …” clearly denotes that the
statement was made as a statement of fact.
[49] As I have said above , the answering affidavit is very thin on the facts upon
which the statement was based, the high watermark being what I have alluded to
above and that it was simply that the statements and comment thereon simply
emanated from “ various reports ”. The one report attached (annexure FA6) was again
of very little use in providing some support to this contention, and in fact concluded
quite the opposite.
[50] In my mind, if the respondents were genuine in stating that this was fair
comment, I would have expected them to go far further in dealing with these reports
which very clearly would have demonstrated that the applicant was involved in “ … A
corrupt scheme . …”
5 The Citizen 1978 (Pty) Ltd and others v McBride 2011 (4) SA 191 (CC) at para 80 .
[51] Although much innuendo is made in the affidavits I find no clear and patent
facts which cogently demonstrate this.
[52] Dealing finally with the last aspect and that these statements were made on
previous occasions, I need go no further than to point out that as was conceded during
the course of argument the applicant has already taken action before the courts
contending th at at last one of the previous statements was defamatory. In this regard,
this court has already made a finding that that statement was defamatory albeit that
this in itself is subject to an appeal before the full Court, the outcome of which is yet to
be handed down.
[53] Insofar as the other occasions are concerned, I am satisfied with the
explanation provided on behalf of the applicant above .
[54] In fact, I am of the view that the continued behaviour of the first respondent at
the hands of various different persons, and the continued making of these statements
actually exacerbates the problem faced by the applicant.
[55] It is furthermore, in my mind clear that this exhibits an intention on behalf of the
respondents to continue making these statements regardless of the consequences
and despite not having the evidence or facts to justify the statements .
[56] One would have thought that already having been found wanting on a previous
occasion , again albeit that the order referred to in this regard is the subject of a pending
appeal, the respondents would have been more circumspect with regards to their
statements and regarding the applicant.
[57] This aspect also supports the necessity for the granting of an interdict. On the
respondents own version, these statements have been made on several occasions,
one of which has already faced this court.
[58] I am satisfied that the applicants have made out a case for an interdict. From
the continued publication by the respondents of similar statements preceding the latest
statement of 15 March 2024, it is quite apparent that only an interdict will stop the
respondents from continuing to make these statements in future .
THE REMEDY RELATING TO DAMAGES
[59] As has been dealt with above and prior to the hearing of the matter, the
applicant filed an amended notice of motion seeking more enhanced relief which was
clearly as a result of the issues raised by the respondents in their answering affidavit.
[60] My initial view was that I was not sure that such damages could be claimable
in proceedings by way of an application.
[61] In this regard I was referred to by Mr Arnoldi to the matter of EFF and others v
Manuel (711/2019) [2020] ZASCA 172 (17 December 2020) where the Supreme Court
of Appeal and when faced with this very question found as follows:
“[111] There is, of course, no problem with persons seeking an
interdict, interim or final, against the publication of defamatory statements
preceding by way of motion proceedings, on an urgent basis, if
necessary. If they satisfy the threshold requirements for that kind of order,
they would obtain instant, though not necessarily complete relief. There
is precedent for this in the well -known case of Buthelezi v Poorter, where
an interdict was granted urgently in relation to an egregious piece of
character a ssassination. Notably, however, the question of damages was
dealt with separately. In appropriate circumstances persons following this
route might as pointed out earlier, be required to overcome the barriers
to prior restraints and have to deal with the av ailability of alternative
measures, as a potential bar, to achieving redress. However, seeking
damages instantly, on application is problematic for the reasons provided
above. Counsel for the amicus, like counsel for Mr Manuel did not provide
a proper basi s for departing from the established position of requiring
evidence and did not propose how damages might otherwise, especially
in opposed matters, be determined. In argument he indicated that if we
held that a claim for damages could not be pursued on paper, we should
nevertheless reiterate that an interdict retraction and apology could be
ordered .”
[62] In that matter the Supreme Court of Appeal discussed at length the type of relief
sought. It appears that the principal issue in this regard relates to the quantum of
damages to be awarded and the necessity for the hearing of oral evidence and in
these types matters.
[63] The Supreme Court of Appeal ultimately referred the determination of the
quantum of damages suffered by the applicant to be referred to the hearing of oral
evidence and further directed that the High Court would determine in conjunction with
its determinati on of the quantum of damages, whether an order for the publication of
a retraction and apology should be made.
[64] Considering the amended notice of motion, I am now asked to make a
declaration that the defamatory statement is defamatory and false.
[65] In this regard an award for damages for defamation is compensation or an injury
to dignity and reputation under the rubric of the actio iniuria rum.6 Put differently, an
award of damages to compensate the applicant for wounded feelings and loss of
reputation. Where in addition, patrimonial losses are sustained, the aquillian action is
available to a litigant.7
[66] Once a finding that the statement has been made is defamatory, as I am
required to do for purposes of the interdict sought , the issue of the quantum of
damages remains, which as I have discussed above, is a matter which has to be
referred to the hearing of oral evidence.
[67] As such, I believe that the matter as before me, indeed falls within that ambit of
matters dealt with by the Supreme Court of Appeal in the matter of the EFF v Manuel
supra , in order to justify such a finding.
ORDER
6 Le Roux v Dey supra at para 119 .
7 Caxton Ltd and others v Reeva Foreman (Pty) Ltd and another 1990 (3) SA 547 (A) at 567G –567B .
I accordingly make the following order:
(1) It is ordered that the allegations and statements made of and concerning the
applicant on 15 March 2024 on the news channel eNCA, specifically that the
applicant is involved in a corrupt scheme of moving patients from other
hospitals across the country to itself and further that the applicant was involved
in overservic ing or overcharg ing are hereby declared to be defamatory and
false.
(2) The first responden t and all other persons under its authority, employed by it,
under its control or acting on its instructions, together with the second
respondent are interdicted and restrained from making any further statements
that say or imply that the applicant is involved in a corrupt scheme of moving
patients from other hospitals across the country to itself and further that the
applicant was involved in overservicing and overcharg ing.
(3) The first and second respondents are declared to be jointly and severally liable
for the applicant's damages occasioned by the aforement ioned defamatory
conduct and that the determination of:
a. the quantum of the applicant's damages; and
b. an apology and a retraction of the statement ,
are hereby referred to the hearing of oral evidence.
(4) The first and second respondent are jointly and severally directed to pay the
costs of this application on a party and party scale, scale C inclusive of the
costs of counsel one of which is senior counsel, and where employ .
ACTING JUDGE OF
This Judgment was handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 10h00 on this 22 day of May 2025 .
Appearances
Counsel for the Applicant : Adv. F Arnoldi SC
instructed by Podebilski Mhlambi Incorporated
c/o Kritzinger Attorneys
Counsel for the First Respondent : Adv. WR Mokhare SC
Instructed by Edward Sithole and Associates
c/o Madiba & Co.
Date of Hearing: 23 April 2025
Date of Judgment: 22 May 2025