REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-030693
In the matter between:
SHIPOYILA ERNEST KHOZA Applicant
and
ORGANISATION UNDOING TAX
ABUSE Respondent
Summary: Right to pre -publication comment – A person implicated in acts of
corruption in a report published by a private actor does not have the right to a
hearing prior to publication. Langa CJ and Others v Hlophe 2009 (4) SA 382
(SCA) applied.
JUDGMENT
Fourie AJ
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 16 Ju ly 2025
Signature:
2
Introduction
1. This is an opposed application in which t he applicant, Mr Ernest Khosa, the
Chair person of the National Student Financial Assistance Scheme ( “NSFAS ”)
seeks declaratory and interdictory relief against the respondent, the
Organisation Undoing Tax Abuse (“OUTA”) .
2. On 4 February 2024, OUTA released a report that it had conducted into
alleged irregularities in NFSAS The report, and the article that accompanied
it, contained allegations to the effect that Mr Khosa was directly involved in
acts of corruption with suppliers. OUTA announced in the article that it had
referred the report to the authorities for investigation and prosecution. Various
other individuals were also implicated in the report.
3. The OUTA report and article were published on its website. The matter was
widely reported on by the media, and also generated some interest on social
medi a.
4. When he came to learn of the report, the applicant, via his attorneys, wrote to
OUTA to demand that the report be taken down from its website, that he be
given an opportunity to provide his response to the allegations against him,
and that the report only be republished once this process had been completed
to his satisfaction, and that the republished report contain an accurate
recordal of his responses to each allegation. OUTA refused to remove the
report, but did offer to meet to hear the applicant’s vers ion, and to update its
report accordingly.
3
5. The applicant declined this offer, and instead brought the present application
in the normal course. It seeks final relief in the following terms:
“1 Declaring, alternatively, reviewing and setting aside the respondent's
report titled "Report on recorded conversations between the NSFAS
Chairperson and individuals closely linked to Coinvest Africa (Pty) Ltd, a
service provider contracted by NFSAS for the direct payments of allowances
to NSFAS" published on 4 January 2024 (the "report") as unlawful.
2 Ordering the respondent to remove the report from its website and –
2.1 publish a statement on its website, within 24 hours from the date of the
order, to the effect that the report has been retracted.
2.2 compelling the respondent to engage the applicant on mutually
agreeable terms whereby the respondent will afford the applicant the right to
rebut any adverse content of the report which the respondent in turn must
faithfully and reasonably produce.
2.3 compelling the respondent to advise every organ of state to whom the
report has been provided of the content of the judgment and the impact on
that organ of state placing any reliance on the report.
3 In the event that the applicant and respondent are unable to agree mutual
terms for the purposes of paragraph 2.4 above, then the parties shall b e
entitled to approach the court to make a determination of those terms on
these papers, duly supplemented.
4 Directing the respondent to pay constitutional damages in the amount of
R50,000, which amount shall be paid directly to the Assemblies of God
Church at Mageva Village, Giyani.
5 Costs on an attorney and own client scale, which costs include the costs
of two counsel.
6 Further and/or alternative relief as may be appropriate in the
circumstances ”.
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The applicant’s case
6. The applicant’s principal complaint is that OUTA released its report without
granting him an opportunity to respond prior to publication , and states that the
purpose of this application is to “ assert my right to dignity by obtaining an order
directing OUTA to afford me a right of reply prior to the publication of OUTA’s
report which implicates me .”1
7. The applicant further states that “ It has never been my intention to prevent
OUTA from publishing a report on its investigation or from using such a report
to lay a criminal complaint, nor do I seek such relief in this application. I simply
wish to be given my right of reply and therefore h ave no objections to the
report being published provided that it includes a faithful and accurate recordal
of my responses after each allegation against me in the report .”2 This is the
essence of the Applicant’s case .
8. The key issue for determination in this matter is therefore whether the
applicant has a right to a pre-publication hearing . This is primarily declaratory
relief, as expressed in the first prayer of the notice of motion (I deal with the
application to review and set aside OUTA’s report in due course ). Aside from
any other relief sought, the declaratory relief is justiciable in these
1 Founding affidavit, para 12.
2 Founding affidavit, para 34.3 – 34.4.
5
proceedings. In Langa CJ and Others v Hlophe 2009 (4) SA 382 (SCA)
(“Langa ”), the SCA said in this regard:
“Declaratory orders
[27] In terms of s 38(a) of the Constitution any person acting in his or her
interest has the right to approach a competent court on the ground that a
fundamental right has been infringed, and the court may grant appropriate
relief, including a declaration of rights.
[28] The jurisdiction of a High Court to grant a declaration of rights is derived
from s 19(1)(a)(ii) of the Supreme Court Act. The court may, at the instance
of any interested person, enquire into and declare any existing, future or
contingent right or ob ligation, notwithstanding that the applicant cannot claim
any relief consequential upon such determination .”
9. The applicant has no right to a pre -publication hearing if the defamatory
statement (or, as the applicant frames it, the statement injurious to his dignity)
is made by a private person. In Langa , the SCA stated that “ The duty to hear
a person was at common law always limited to judicial or some administrative
organs; and a person acting in a private capacity has never had such a duty.
The Constitution is not different. The audi principle can only be sourced in
either s 33 or s 34 of the Bill of Rights: the former deals with just administrative
action and the latter with a fair public hearing before courts .”3
10. The applicant argues that OUTA’s conduct in publishing the report amounts
to the exercise of a public power or performance of a public function. As a
result, OUTA owes affected parties such as the applicant audi, and its failure
3 Langa at para 34.
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to do so renders its conduct procedurally unlawful, and thus liable to attack in
judicial review proceedings.
11. In the alternative, the applicant argues that Section 8(2)(iii) and (iv) of the
Constitution, which provides for the horizontal application of fundamental
rights, should be applied here. In addition to the right of reply and to fair
process, the applicant asserts that his fundamental right to dignity includes
the right to be heard and to preserve his reputation .
Does OUTA exercise a public power or perform a public function?
12. The applicant sought to argue that OUTA was no mere private party, and that
therefore the default common law position did not apply to it. The applicant’s
argument in this regard as pleaded in its founding affidavit can be summarised
as follows:
12.1. OUTA proclaims to the world that it exercises a public interest
function. It undertakes quasi -public functions, which must
attract commensurate public duties.
12.2. Although lacking any legal authority or mandate to do so,
OUTA purports to conduct investigations into allegations
malfeasance and corruption in the public sphere.
12.3. OUTA holds itself out as following a fair investigation process,
described on its website as its “5 -step methodology” , which
includes investigations, engagement with those implicated,
exposure of its findings to the public, mobilisation of public
7
interest in the matter, and litigation aimed at achieving what it
perceives as the appropriate remedy.
12.4. OUTA seeks to convey the message that it follows a fair
investigation process, and that its findings can therefore be
trusted. This in turn creates a legitimate expectation on the
part of a person implicated in wrongdoing in an OUTA report
to be heard prio r to publication.
12.5. In publishing its investigation reports, OUTA (a reputable
organisation) reaches a wide audience, and therefore acts as
a quasi -media organization, and attracts similar duties to the
recognised media, in particular the duty to allow implicated
parties prio r notice and an opportunity to comment, prior to
publication.
12.6. Section 8(2)(iii) and (iv) of the Constitution provides for the
horizontal application of fundamental rights, and should be
applied in the circumstances. In addition to the right of reply
and to fair process, the applicant asserts that his fundamental
right to dignity includes the right to be heard and to preserve
his reputation.
13. In its answering affidavit, OUTA describes itself as a non -profit civil action
organisation supported and publicly funded by ordinary South Africans. Its
mission includes challenging and taking action against maladministration and
corruption, and where po ssible, holding those responsible to account.
8
14. As part of its work, OUTA conducted an investigation into alleged
maladministration in the administration of publicly funded bursaries and
student accommodation by the Department of Education and NFSAS, the
government -funded bursary and loan organization. OUTA received
recordings of a telephone conversation purportedly involving the applicant,
duly investigated, and in January 2024 it published the article and impugned
report.
15. OUTA pleads that the report contains accurate quotes from the recordings,
and that it is truthful and has been published in the public interest. OUTA also
pleads that the applicant fails to plead a proper case on review.
16. While accepting that OUTA is a private actor, the applicant argued that it is
possible for private actors to exercise public power, with reference to cases
such as Allpay .4 This is not a controversial statement, and is entirely
dependent on the facts.
17. I now turn to consider whether, in publishing reports alleging malfeasance and
corruption, OUTA performs a public function or exercises a public power.
Analysis
18. OUTA is not an organ of state. It is a private not for profit company, funded
by way of donations from the public, whose stated goals include exposing
corruption in South Africa, and pushing for those responsible to be held to
4 Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social
Security Agency (No 2) 2014 (4) SA 179 . See also AAA Investments (Pty) Ltd v Micro Finance Regulatory
Council 2004 (6) SA 557 (T) .
9
account. Its board has complete discretion to decided what to investigate and
whether to litigate in any particular matter that seizes its interest.
19. OUTA has no statutory powers of any kind. No bearer of statutory power has
delegated any function or powers to it. When performing its investigations,
OUTA possesses no statutory investigatory powers, power of arrest or seizure
of documents, or powers of s ubpoena. Aside from potentially making prima
facie defamatory allegations against third parties, OUTA’s report has no legal
consequences .
20. OUTA claims to have referred the report to the investigating authorities, but
the effect of this is no more than the presentation of a well -motivated
complaint of prima facie criminal conduct. Whether the police or prosecuting
authorities take action on the basis of OUTA’s report is entirely within the
discretion of those authorities. While OUTA may seek to bring public pressure
to bear on the authorities to take action agains t perpetrators of corruption, and
may even litigate to challenge decisions not to bring legal action, in doing so
it acts as a private acto r. While it claims to be acting in the public interest in
its work, this is not the same thing as performing a public function.
21. Allpay concerned the administration by a private company of the statutory
functions of the State in distributing social grant and related payments to
millions of recipients. The Constitutional Court held that in doing so, Allpay
exercised public powers.
10
22. AAA Investments5 concerned the delegation of regulatory powers to make
binding rules over the microlending industry to a private entity, which was held
to be exercising public powers in making such rules.
23. These cases are far removed from the position occupied by OUTA.
24. Professor Cora Hoexter, in an illuminating ar ticle titled “ A Matter of Feel?
Public Powers and Functions in South Africa ”6, summarised some of the
further leading cases on private actors exercising public powers as follows:
“…Calibre Clinical Consultants7 involved a procurement decision of the
bargaining council for the road freight industry, established under section 27 of
the Labour Relations Act 66 of 1995. The bargaining council had established an
AIDS programme and ‘wellness fund’ for the industry and wished to procure a
service provider to manage these. The applicant, an unsuccessful bidder for the
contract, sought PAJA review of the council’s decision to award the tender to a
competitor.
Its challenge failed, however, as Nugent JA concluded that this was the
performance of a quintessentially domestic function rather than a function that
called for public accountability. This conclusion was fortified by other factors,
including the council’ s voluntary nature and that it was not spending public
money, and by a possibly fatal concession that the council would not have been
under a statutory duty to invite tenders at all. In short, Nugent JA saw none of the
elements he had quoted from the Engli sh cases. The programme was not
‘integrated into a system of statutory regulation’ or ‘woven into a system of
governmental control’, and ultimately it was not one for which the public had
assumed responsibility.
5 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2004 (6) SA 557 (T).
6 C. Hoexter, “A matter of Feel? Public Powers and Functions in South Africa”, chapter 7, p149 in Elliott,
Varutas and Stark (eds) The Unity of Public law? doctrinal, theoretical and comparative perspectives (2018)
Hart, London .
7 Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road Freight Industry 2010 (5)
SA 457.
11
…
In AMCU v Chamber of Mines8 a decision by non -governmental actors
(employers and unions) to conclude and extend a collective agreement under
section 23(1)(d) of the Labour Relations Act was held to be distinctly public in
nature, though not administrative action. 68 In the ‘public’ d iagnosis the
unanimous judgment of Cameron J relied on features such as the legislative
context, the mandatory and coercive effects of the decision and the rationale for
extension, which was the ‘plainly public goal’ of improving workers’ conditions
throug h collectively agreed bargains.”
25. It is evident that none of the factors relied on by the court s to classify the
conduct in those matters as being public in nature, apply here.
26. I now turn to the relevant authorities on audi in the context of an investigation,
to consider whether these authorities assist the applicant’s contention that
OUTA exercise a public power when it published the report, and that its
conduct should therefore be subject to the same constraints.
The right to a hearing pre -publication
Msiza v Motau
27. In their heads and during oral argument, counsel for the applicant placed
heavy reliance on the decision of the High Court in Msiza v Motau SC (NO)
and Another 2020 (6) 604 GP (“Mzisa”), where the Court set aside the report
of an investigation conducted in terms of the Financial Sector Regulation Act
(“the FSR Act”) , because of the failure by the investigator to provide a person
8 AMCU v Chamber of Mines of South Africa 2017 (3) SA 242
12
implicated in criminal conduct in the report with an opportunity to be heard
prior to publication.
28. While the applicant argued that Msiza is of critical importance here, it emerged
during argument that Msiza was overturned on appeal to the Full Bench in
Prudential Authority of the South African Reserve Bank v Msiza and Another
[2023] ZAGPPHC 2098; A294/2021 (2 May 2023) .
29. Counsel for the applicant sought to argue that despite having been overturned
in its entirety on appeal, certain statements and findings in Msiza remained
relevant statements that were good in law. These efforts were continued in
lengthy supplementary written submissions filed after the hearing. I struggle
to see the benefits of sifting through the wreckage of a judgment whose
central findings were roundly rejected and reversed on appeal, to see whether
anything of value remains.
30. Conversely, t he majority decision in the Msiza appeal is directly relevant, and
is binding on this court. The majority agreed with the minority finding that the
impugned conduct was not reviewable under PAJA. The majority held that the
impugned conduct was also not reviewable under the broader principle of
legality either. The investigation was conducted in terms of empowering
provisions contained in section 135(1) of the FSR Act. The purpose of the
investigation was not to make a determination, but to gather information to
enable the Prudential Authority to comply with its statutory objectives. The
empowering provision grants the investigator broad discretionary powers to
conduct the investigation.
13
31. The Court did not find that a party implicated in wrongdoing in an investigation
conducted in terms of the FSR Act, was entitled as a matter of law to a
hearing. A critical reason was that the investigation did not finally determine
anything. It made prima facie findings of fact and provided the Prudential
Authority with recommendations on further action to be taken by it.
32. The same can be said here – OUTA’s report contains recommendations,
including the referral of criminal complaints to the relevant authorities. None
of the findings or recommendations contained in OUTA’s report are binding
on anyone, and the police and National Prosecuting Authority will decide
independently whether to investigate OUTA’s complaints or to prosecute
anyone accused by OUTA of wrongdoing.
33. OUTA performs investigations and makes recommendations in its capacity
as a private actor. Unlike the investigation in Mzisa , OUTA ’s investigatory
powers are not derived from statute – in fact it has no investigatory powers at
all. This is an important factor weighing against imposing public law duties on
OUTA.
National Treasury and Another v Kubukeli 2016 (2) SA 507 (SCA) (“ Kubukeli ”)
34. The headnote to the reported decision in Kubukeli provides a useful summary
of the facts:
“During May and June 2013 the National Treasury conducted a forensic
investigation into financial irregularities in the hiring and use of mayoral cars
by the OR Tambo District Municipality. The investigation arose from a
newspaper article alleging that the mayor had hired luxury cars for two
14
months at a cost of R500 000, and that two of them were then crashed,
resulting in liability for the municipality of R225 000.
The treasury asked the municipality to make Mr Kubukeli, the mayor's
bodyguard and driver, available for an interview, but Mr Kubukeli was never
informed of the request. The treasury completed its investigation without
interviewing Mr Kubukeli, made findings of financial mismanagement and
lack of internal controls at the office of the mayor, and offered certain
recommendations. In respect of Mr Kubukeli the treasury found that car -hire
costs had mushroomed when he became the mayoral driver and that he had
negligently crashed the two cars. It recommended that the resulting damages
be recovered from him.
Mr Kubukeli complained that he received no notice of the treasury's request
to make himself available for an interview. ”
35. The High Court upheld Mr Kubukeli’s complaint. The Supreme Court of
Appeal overturned this decision, holding that the failure to provide Mr Kubukeli
with a hearing (it being common cause that the invitation never reached him)
did not render the investigation unlawful or infringe on his rights. It reasoned
as follows:
“[24] As I have said, the national treasury exercised the public power to
investigate any system of financial management and internal control of the
municipality, and to recommend improvements, with the object of securing
sound and sustainable management of the fiscal and financial affairs of the
municipality. The purpose for which the power was given was not to
investigate the conduct of any particular person and to make Iinal findings in
respect thereof. What a particular person did or did not do was inci dental to
the object of the power. It follows that the request, that Mr Kubukeli and
others attend interviews, did not constitute recognition of a right to be heard,
but was intended to assist the national treasury to achieve its purpose. The
treasury team was in no way to blame for the absence of that assistance.
[25] Viewed objectively, the purpose for which the power was given was
achieved. The main import of the investigation and the report was to identify
15
shortcomings in the financial management and internal control of the
municipality and to recommend improvements thereto. Unlike the decisions
in Albutt and Scalabrini , the national treasury made no final or binding
decision. The municipality was under no obligation to accept any of the
recommendations.
[26] Although some loose language may have been used in this regard, it is
clear in the context of the report that what was said in respect of Mr Kubukeli
(and other officials) was in the nature of prima facie findings. These findings
are clearly not binding on Mr Kubukeli and could be challenged in any
subsequent proceedin gs. Paragraph 7.16.4 of the report must be seen in this
light, namely that in the absence of an explanation by Mr Kubukeli the
treasury team found no record of account for the amount of R 8000 advanced
to Mr Kubukeli. Most importantly, objectively it was beyond doubt that if the
recommendations in respect of disciplinary proceedings or recovery of
losses were to be implemented, the implementation would take place in
terms of processes that would afford Mr Kubukeli a ful l opportunity to present
his case .
[27] I therefore conclude that the investigation, report and recommendations
of the national treasury, without the participation of Mr Kubukeli, were
founded on reason and were not arbitrary or irrational. It follows that the
appeal must succeed. ” (Emphasis added)
36. While (as in Msiza) the present matter is distinguishable in that OUTA
exercises no statutory powers and performs no statutory functions, the
underlined portions of the above quote apply with equal force here – OUTA’s
findings are at best prima facie , and can be challenged in any subsequent
proceedings; and, critically, if further proceedings (such as criminal
prosecution) are instituted, the applicant will enjoy the full range of procedural
rights, including the right to answer to the allegations aga inst him.
16
37. Several cases have reached similar findings, to the effect that even where
investigations are carried out by a statutory authority, persons implicated in
wrongdoing do not as a matter of course enjoy a right to audi. A critical
distinction is drawn between the investigation process, and the process of
determination or making of findings of wrongdoing, with the latter requiring
audi, but not the former. See for example and Competition Commission v
Yara9:
“[24] But as I see it, the CAC’s motivation conflates the requirements of an
initiating complaint and a referral and misses the whole purpose of an
initiating complaint. In fact, it is in direct conflict with the judgment of this court
in Simelane NO v Sev en-Eleven Corporation SA (Pty) Ltd 2003 (3) SA 64
(SCA) para 17, which in turn relies on statements in the decision of the
Tribunal in Novartis SA (Pty) Ltd v Competition Commission (CT22/CR/B Jun
01 paras 35 -61). What these statements of Novartis make pla in is that the
purpose of the initiating complaint is to trigger an investigation which might
eventually lead to a referral. It is merely the preliminary step of a process that
does not affect the respondent’s rights. Conversely stated, the purpose of an
initiating complaint, and the investigation that follows upon it, is not to offer
the suspect firm an opportunity to put its case. The Commission is not even
required to give notice of the complaint and of its investigation to the suspect.
Least of all is t he Commission required to engage with the suspect on the
question whether its suspicions are justified. The principles of administrative
justice are observed in the referral and the hearing before the Tribunal. That
is when the suspect firm becomes entitle d to put its side of the case.”
38. Masuku v Special Investigations Unit10, a Full Bench decision in this division,
concerned an investigation undertaken by the SIU, which implicated him in
wrongdoing and recommended that action be taken to determine his suitability
9 Competition Commission v Yara (South Africa ) (Pty) Ltd and Others 2013 (6) SA 404 (SCA) at para 24:
10 Masuku v Special Investigations Unit and Others (P55372/2020) [2021] ZAGPPHC 273 (12 April 2021)
17
as a provincial MEC, and which resulted in him losing his position in
government. Dr Masuku challenged the legality of the SIU report. His
challenge is distinguishable, as he was interviewed by the SIU during the
investigation. Of interest and relevance to this matter are the following findings
by Sutherland DJP.
39. The statutory function of the SIU is to investigate matters, not to make a
determination about matters. This is a significant point of distinction. While the
SIU exercises a statutory function, its expression of an opinion in the form of
a report or recom mendation is not determinative or final in any way.
40. Despite this, Sutherland DJP found that the consequence of the exercise of
the SIU’s statutory powers (a report that, in itself, had a devastating impact on
Dr Masuku’s reputation, employment and political career), were such that the
public interest was b est served by holding the SIU accountable by allowing
review proceedings (see judgment para 21 -30). The learned Judge concluded
as follows:
“[28]… There can be no doubt that the SIU report has had prejudicial
consequences for Dr Masuku , as evidenced by his loss of office, unlike the
position in which N found itself in Rhino. But the example of Dr Masuku goes
beyond his personal mishap; it is a significant illustration that should a report
of a statutory body, (even when no decision -making authority can be
compelled to adopt it,) express criticism of a person implicated in its realm of
activity, material harm can flow therefrom. It is the refore wholly appropriate,
as a matter of principle and of policy, that accountability for its actions should
be recognised and, thus, the ripeness of the report to be reviewed under the
expanding scope of the principle of legality is demonstrated .
[29] In the circumstances experienced by Dr Masuku , whose grievance is a
shattered reputation, perhaps it could sensibly be asked whether he should
18
be left to exercise a private law remedy for defamation rather than be entitled
to utilise a public law remedy in the form of a review . Whether the SIU could
plausibly be protected from a defamation action by pleading that it is the
essence of its very function to make accusations is not a question that this
judgment needs to answer. An example of a defamation claim against the
SIU for c harging a person before the Special Tribunal is Stafford v SIU 1999
(2) SA 130 (ECD). Mrs Strafford was brought before the special tribunal by
an SIU known as the Heath Commission. She was aggrieved at the decision
to charge her. She sued for defamation. Notably, she did not seek a review.
The case was decided on other grounds irrelevant to the present debate.
However, that d ecision assumed that the action for defamation against a SIU
was a valid cause of action. This case is an illustration that a decision by the
SIU to charge a person is probably actionable. Whether or not an accusation
by the SIU is actionable was not addre ssed. In Dr Masuku ’s case, the SIU
took no steps against him, yet accused him of dereliction of duty.
[30] In my view, policy considerations are pertinent to answer the question
about what form of remedy is appropriate. The criticism of Dr Masuku is
about his role as an MEC; ie, a role performed by him in public life in the
governing of the province. Thi s factor decisively tips any balance in the
direction of a public law remedy. Accordingly, on that premise the conduct of
the SIU should be held accountable by way of review. The report of the SIU,
albeit “non -final”, is an exercise of public power for whi ch it can be held
accountable on the test for rationality. ” (Underlining added)
41. The Court proceeded to consider and dismiss Dr Masuku’s complaints
against the SIU’s conduct and report.
42. Masuku is probably the high -water mark in support of the applicant’s
assertion that an investigation report, even of a preliminary and non -binding
nature, can attract public law level scrutiny. But the distinguishing features are
in my view significant. The SIU, a creature of statute, exercising powers
assigned by statute, is a completely different animal from a private pressure
group such as OUTA.
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43. As for the argument that OUTA should be regarded as a quasi -media like
organisation because of its influence and reach, I think that this conflates
public interest in a particular matter, and the exercise of a public power. The
two things are different – “… mere public interest in a decision does not make
it an exercise of public power11 ...”
44. OUTA’s hard -earned reputation for being a reputable player in the public
space does not, in my view, change the fact that it exercises private powers.
Langa v Hlophe
45. The decision of the SCA in Langa is relevant to this case in several important
respects , including the question of making media statements . The then Judge
President of the Western Cape High Court, Ju dge Hlophe, was accused of
having attempted to influence two justices of the Constitutional Court to rule
in favour of Mr Jacob Zuma in an important criminal case. The Justices of the
Constitutional Court all signed a complaint to the Judicial Services
Commission against Judge Hlophe. The JSC is the body with th e statutory
duties and powers to investigate and take disciplinary steps against judges.
At the same time, the Justices issued a press release containing details of the
complaint against Judge Hlophe.
46. Judge Hlophe turned to the courts, alleging inter alia that the Constitutional
Court Justices had violated his constitutional rights to dignity and privacy
(among others). One of the key grounds of attack was the failure to grant him
an opportunity to be heard prior to releasing the media statement. The High
11 Marais v Democratic Alliance 2002 (2) BCLR 171 , at para [28].
20
Court found for Judge Hlophe on this issue. On appeal, the SCA overturned
the finding, and made findings that are directly applicable to this matter:
“[34] The finding that the appellants had not acted institutionally meant
ineluctably that the respondent's cause of action fell away. The duty to hear
a person was at common law always limited to judicial or some administrative
organs; and a person acting in a private capacity has never had such a duty.
The Constitution is not different. The audi principle can only be sourced in
either s 33 or s 34 of the Bill of Rights: the former deals with just
administrative action and the latter with a fair public hearing before courts.
Since the appellants did not 'act as a court' the fair trial provision did not arise
and since they did not act as an administrative body the administrative justice
provision did not apply either .
…
[39] It has been difficult to pin down precisely where the rights that are
asserted by the respondent are said to be sourced. Although reliance was
placed upon the Constitution that reliance was at times expressed in broad
and unspecific terms. A court cannot overlook what was said by Kentridge
AJ in the earliest case that came before the CC, namely that 'it cannot be too
strongly stressed that the Constitution does not mean whatever we choose
it to mean ' (S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568;
1995 (4) BCLR 401) at para 17).
[40] It nonetheless became clear early in argument that, whatever the source
of the alleged right might be, the respondent does not assert a right on the
part of a judge to be heard by complainants generally before they lay
complaints before the JSC, and that is undoubtedly correct . … While a judge
is obviously entitled to be heard in the course of the investigation of a
complaint (as appears from the various cases and protocols referred to by
the High Court and referred to in the heads of argument) that is not what we
are concerned with in this appeal. We are concerned instead with the act that
initiates such an enquiry (the 'trigger'), which is the decision to lay a
complaint. In that respect there is no authority to which we were referred or
of which we are aware - whether in decided cases or in judicial protocols
anywhere in the world - that obliges a complainant to invite a judge to be
21
heard before laying the complaint. Indeed, the authorities all say the opposite
… and a rule to that effect would be absurd, because it would altogether
undermine the process of investigating complaints .`” (References to
authorities omitted).
47. With regard to the press release, the SCA held as follows:
“[49]… it was not the case of the respondent that the publication of the
allegations, in itself, violated his rights. His case was that it violated his rights
because he had not been permitted an opportunity to refute them.
[50] Once having found the appellants did not act unlawfully in laying the
complaint we can see no basis for finding that they were obliged to keep that
secret for the reasons dealt with more fully below. On the contrary there is
much to be said for the contrary proposition (bearing in mind the
circumstances in which it occurred) that the constitutional imperatives of
transparency obliged them to make the fact known.
…
[51] So far as counsel sought to rely upon the constitutional protection of the
respondent's right to dignity he was constrained to confine that aspect of his
dignity that was impaired to the personality rights that attach to his reputation
but in that respect counsel moved onto slippery ground. For it is well
established in our law, and not in conflict with the Constitution, that the prima
facie wrongful violation of the right to dignity may be justified (Khumalo and
Others v Holomisa 2002 ( 5) SA 401 (CC) (2002 (8) BCLR 771) at paras 29 -
34). Justification, as Gildenhuys J pointed out (at para 51), can be raised
validly if the statement was true and for the public benefit; constituted fair
comment; or was made on a privileged occasion. These are all specif ic
applications of the broader principle that conduct, which is reasonable,
having regard to all the circumstances of the case, is not wrongful (Hardaker
v Phillips 2005 (4) SA 515 (SCA) at para 15; Wentzel v SA Yster en
Staalbedryfsvereniging en 'n Ander; Wentzel v Blanke
Motorwerkersvereniging en 'n Ander 1967 (3) SA 91 (T) at 98).
[52] An allegation that a judge is guilty of judicial misconduct by having
sought to influence another judge is defamatory and violates that judge's
22
dignity. The media release contained at least such an innuendo and was
therefore prima facie unlawful. To consider whether the publication was in
fact unlawful on that score would call for us first to decide whether the factual
averments made by the appellants (following the standard approach that is
adopted in motion proceedings – Delta Motor Corporation J (Pty) Ltd v Van
der Merwe 2004 (6) SA 185 (SCA) ([2004] 4 All SA 365)) establish the truth
of the innuendo.
…
[54] The fallacy of the finding that the appellants had failed to strike a balance
between the right of the public to know and the need to maintain public
confidence in the judiciary is that the court would seem to have considered
the truth or untruth of the defamatory allegation to be irrelevant. Disclosure
of an allegation of gross misconduct against a judge may in certain
circumstances not be for the public benefit but that could hardly be the case
if the allegation is true. If the respondent in fact app roached the two justices
in an attempt to influence their judgment it would have been to the public
benefit that that fact be made known. The fact that the respondent is a judge
does not give him special rights or special protection. Judges are ordinary
citizens. What applies to others applies to them (Pharmaceutical Society of
South Africa and Others v Tshabalala -Msimang and Another NNO; New
Clicks South Africa (Pty) Ltd v Minister of Health and Another 2005 (3) SA
238 (SCA) (2005 (6) BCLR 576;[2005] 1 All SA 326) at para 39). They, too,
like government, pressure groups, or other individuals, 'may not interfere in
fact, or attempt to interfere, with the way in which a Judge conducts his or
her case and makes his or her decision' (The Queen in Right of Canada v
Beauregard (1986) 30 DLR (4th) 481 (SCC) quoted with approval in De
Lange v Smuts NO and Others 1998 (3) SA 785 (CC) (1998 (7) BCLR 779)
at para 70).The Belize judgment, it may be added, was not concerned with
the issue whether the publication of a co mplaint against a judge was
improper or wrongful. It also did not suggest that it was - only that publication
must be handled with care and circumspection.
[55] It will always be distressing for a judge to learn in the media that he or
she has been accused of misconduct but that seems to us to be an inevitable
hazard of holding public office. The remedy that is available to a judge who
finds that he or she is in that position is to insist that the body charged with
23
investigating such a complaint does so with expedition so as to clear his or
her name. Nor should it be thought that such accusations may be made with
impunity: a judge, like any member of the public, is entitled to the consolation
of damages for defamation if the publication of the statement cannot be
justified (Argus Printing and Publishing Co Ltd and Others v Esselen's Estate
1994 (2) SA 1 (A)). But we do not think that his or her remedy lies in stifling
the fact that a complaint has been made (Moran v Lloyd's (a statutory body)
[1981] 1 Lloyd's Rep 423 (CA) at 427). ”(Underlining added)
48. The reasoning and findings in Langa are in my view directly applicable here.
OUTA is a private citizen. It exercise no public powers or powers that are
public in nature. It performs no statutory functions. It wields no power other
than that brought about by its reputation for integrity and for exposing public
corruption. Even when acting as a pressure group, OUTA remains a private
actor, and its obligations remain that of a private citizen.
49. OUTA’s report and recommendations constitute the ‘trigger’, being the lodging
of a complaint to the authorities with the statutory powers to investigate and
prosecute if they decide to do so. The fact that OUTA holds out that it has
conducted its own inves tigations prior to lodging the complaint, and that it has
found compelling evidence to support its complaints, do not elevate its report
beyond what it is – a complaint to the authorities, backed up with credible
information and evidence, aimed at bringing pressure to bear on the
authorities to take action against those implicated, or risk adverse public
opinion (and the publication of the report by OUTA is clearly aimed at
increasing public pressure on the authorities to take action against corruption.
24
50. I therefore conclude that the applicant does not have the right to pre -
publication notice or to be granted the opportunity to be heard prior to
publication , as OUTA, a private actor, did not exercise a public power when it
published the report . It follows that no right of review lies against the report.
The horizontal application argument
51. In the alternative, the applicant argues that Section 8(2) of the Constitution,
which provides for the horizontal application of fundamental rights12, should
be applied here. In addition to the right of reply and to fair process, the
applicant asserts that his fundamental right to dignity includes the right to be
heard and to preserve his reputation .
52. The Constitutional Court dealt with the horizontal application of fundamental
rights in the context of defamation in Khumalo v Holomisa13, where the right
to freedom of expression was held to be of direct horizontal application.14 The
Court emphasized the critical importance of the right to freedom of expression
as being integral to a democratic society, and constitutive of the dignity and
autonomy of human beings, without which they would not be able to effectively
participate in public life. The Court emphasized that:
12 In terms of s 8(2), [a] provision of the Bill of Rights binds a natural or juristic person if, and to the extent
that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by
the right.
13 Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) .
14 Hoexter and Penfold Administrative Law in South Africa, 3rd Ed 2021, Juta, at p164, fn 180: “ The right to
freedom of expression was famously held to be of direct horizontal application in Khumalo v Holomisa
2002 (5) SA 401 (CC) para 33. While the approach in Governing Body of the Juma Musjid Primary
School v Essay NO 2011 (8) BCLR 761 para 58 sugg ested that the Constitutional Court conceived of
horizontal obligations primarily as negative ones, the same court took a considerably broader view in
Daniels v Scribante 2017 (4) SA 341 (CC) and AB v Pridwin Preparatory School 2020 (5) SA 327 (CC). ”
25
“[41] In deciding whether the common law rule complained of by the
applicants does indeed constitute an unjustifiable limitation of s 16 of the
Constitution, sight must not be lost of other constitutional values and, in
particular, the value of human dignity. To succeed, the applicants need to
show that the balance struck by the common law, in excluding from th e
elements of the delict a requirement that the defamatory statement published
be false, an appropriate balance has been struck between the freedom of
expression, on the one hand, and the value of human dignity, on the other .”
53. In Langa , the SCA stated that “ The duty to hear a person was at common law
always limited to judicial or some administrative organs ; and a person acting
in a private capacity has never had such a duty. The Constitution is not
different. The audi principle can only be sourced in either s 33 or s 34 of the
Bill of Rights: the former deals with just administrative action and the latter
with a fair public hearing before courts .”15 (Emphasis added)
54. The Court in Langa also pointed out that the common law of defamation
provided adequate protection against the infringement of dignity by
defamatory content.16
55. I see no merit in the applicant’s attempt to invoke section 8(2) in an attempt
to limit OUTA’s (equally) fundamental rights to freedom of expression ,
particularly where the applicant has sought to bypass the existing,
constitutionally balanced common law of defamation in its entirety. In Khumalo
15 Langa at para 34.
16 Langa at para 51: So far as counsel sought to rely upon the constitutional protection of the respondent's
right to dignity he was constrained to confine that aspect of his dignity that was impaired to the
personality rights that attach to his reputation but in that respect counsel moved onto slippery ground.
For it is well established in our law, and not in conflict with the Constitution, that the prima facie wrongful
violation of the right to dignity may be justified (Khumalo and Others v Holomisa 2002 (5) SA 401 (CC)
(2002 (8) BCLR 771) at paras 29 - 34). Justification, as Gildenhuys J pointed out (at para 51), can be
raised validly if the statement was true and for the public benefit; constituted fair comment; or was made
on a privileged occasion. These are all specific ap plications of the broader principle that conduct, which
is reasonable, having regard to all the circumstances of the case, is not wrongful (Hardaker v Phillips
2005 (4) SA 515 (SCA) at para 15; Wentzel v SA Yster en Staalbedryfsvereniging en 'n Ander; Went zel
v Blanke Motorwerkersvereniging en 'n Ander 1967 (3) SA 91 (T) at 98). .
26
v Buthelezi , the Court remarked that “ no person can argue a legitimate
constitutional interest in maintaining a reputation based on a false
foundation .”17 Here, the applicant does not allege that the allegations against
him are false. He does not deal with the veracity of the allegations against him
at all. He does not even claim that OUTA’s report contains material that is
defamatory. He went as far as not including the report in his founding papers,
and only attached it in reply, in r esponse to criticism raised in the answering
papers. He states in his founding affidavit that OUTA’s report is based on two
recordings of phone calls, but that “… it is not necessary for me to engage
with those recordings, how they were obtained and their content, because
these proceedings are not an opportunity for OUTA to remedy their breach of
my rights .”18
56. What then are these proceedings about? Lord Denning has the answer19:
““Today we have to deal with a modern phenomenon. We often find that a
man (who fears the worst) turns around and accuse those – who hold a
preliminary enquiry – of misconduct or unfairness or bias or want of natural
justice. He seeks to stop the impending charges against him. It is easy
enough for him to make such an accusation. Once made, it has to be
answered …. so he gets which he most wants – time to make his dispositions
– time to put his money in a safe place – time to head of the day when he
has to meet the charge, and who knows? If he can stop the preliminary
enquiry in its tracks, it may never start up again.
To my mind the law should not permit any such tactics. They should be
stopped at the outset. It is no good for the tactician to appeal to ‘rules of
17 At para 35.
18 Founding affidavit, para 25.
19 Moran v Lloyd's (a statutory body) [1981] 1 Lloyd's Rep 423 (CA) at 427as approved in Langa & Others
v Hlope 2009 (4) SA 382 (SCA) par. 40 , and quoted in Prudential Authority of the South African Reserve
Bank v Msiza and Another [2023] ZAGPPHC 2098; A294/2021 (2 May 2023) , para 73.
27
natural justice’. They have no application to a preliminary enquiry of this
kind. The enquiry is made with a view to seeing whether there is a charge
to be made. It does not decide anything in the least. It does not do anything
which adversely affects the man concerned or prejudices him in any way. If
there is, there will be a hearing, in which an impartial body will look into the
rights and wrongs of the case. In all such cases, all that is necessary is that
those who are holding the preliminary enqui ry should be honest men – acting
in good faith – doing their best to come to the right decision”
57. Accordingly, there is little point in engaging with the alternative challenge in
any detail, save to note that the restrictions that the applicant seeks to impose
on OUTA are extreme. On the applicant’s case, p rior to publication OUTA
would be required indulge him (and any other potentially implicated party) with
lavish rights of reply, and an effective veto on the publication of the report, or
at least the ability to significantly delay and distort it. The impact on the ability
of whistleblowers and other private actors to expose corruption would be
significant. This is precisely the mischief that Denning LJ warned against in
the above quote.
58. Lastly, it is worth noting that even a serious and properly pleaded attempt to
limit freedom of speech by way of section 8(2) is likely to face difficulties, given
the nature and importance of the right to freedom of speech. In Hix Networking
Technologies v System Publishers (Pty) Ltd 1997 (1) SA 391 (A) (“Hix”), the
Supreme Court of Appeal cautioned that “ …the proper recognition of the
importance of free speech is a factor which must be given full value in all
cases. … cases involving an attempt to restra in publication must be
28
approached with caution. … though circumstances may sometimes dictate
otherwise, freedom of speech is not a right to be overridden lightly .”20
The application for an interdict
59. As explained above, w hile the report is clearly defamatory of the applicant,
OUTA bore no legal duty toward the applicant to notify him of its contents or
to provide him an opportunity to comment, prior to publication thereof. The full
spectrum of the applicant’s remedies against OUTA lie within the established
boundaries law of defamation. This includes an allegation of an infringement
of the applicant’s dignity, as is apparent from paragraph 51 of the judgment in
Langa , quoted above.
60. Given that the applicant has failed to prove a clear right it is unnecessary to
deal with the relief sought in prayers 2 -4 of the notice of motion in any detail,
but as the applicant persisted with this relief, and as both parties seek punitive
costs against the other, I deal briefly with the interdict application.
61. In light of several recent decisions of the Supreme Court of Appeal, I have
doubts as to whether the further relief sought in prayers 2 -4 of the notice of
motion is competent relief in motion proceedings for final interdictory relief.21
20 Hix at 401 -402.
21 See Ird Global Ltd v the Global Fund to Fight Aids, Tuberculosis and Malaria 2025 (1) SA 117 (SCA);
NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators [2021] 4 All SA 652 (SCA) ; Malema v
Rawula [2021] ZASCA 88 ; Tau v Mashaba and Others 2020 (5) SA 135 (SCA) .
29
62. There is n o threat of imminent harm . The proverbial horse has bolted - the
report was published in February 2024. It is trite that Interdictory relief is aimed
at preventing future harm, not atoning for a past invasion of rights.22
63. There are many alternative remedies available to the applicant, an action for
damages for defamation being the obvious remedy. The Supreme Court of
Appeal has made it clear that claims for retraction, acknowledgement of
wrongoing amendment and other suita ble relief (aside from urgent interim
relief) are to be dealt with by way of action proceedings only. 23
64. The claim for alleged constitutional damages need not be dealt with, give the
failure of the applicant to establish a breach of any of his constitutional rights.
Costs
65. Both parties sought punitive costs against the other. The application raises
interesting issues of some novelty and of potential importance, and while I see
no reason why costs should not follow the result, I do not intend granting costs
on a punitive scal e.
66. I therefore make the following order:
Order:
1. The application is dismissed with costs on the “C” scale, including costs of
counsel.
22 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (CC) , at para 48 : “In granting an interdict, the court must exercise its discretion judicially upon
a consideration of all the facts and circumstances. An interdict is “not a remedy for the past invasion of
rights: it is concerned with the present and future”. The past invas ion should be addressed by an action
for damages. An interdict is appropriate only when future injury is feared .”
23 See the authorities quoted at footnote 19 above.
30
GA Fourie
______ __________________________ ______
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
HEARD ON: 16 April 2025
DATE OF JUDGMENT: 16 July 2025
FOR THE APPLICANT: Adv K Premhid and Adv Z Ngakane
INSTRUCTED BY: Ian Levitt Attorneys
FOR THE RESPONDENT: Adv NG Louw
INSTRUCTED BY: Jennings Incorporated