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[2015] ZACC 32
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Mtyhopo v South African Municipal Workers Union National Provident Fund (CCT 48/15) [2015] ZACC 32; 2015 (11) BCLR 1393 (CC) (1 October 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 48/15
DATE:
01 OCTOBER 2015
In
the matter between:
AYANDA
MTYHOPO
.............................................................................................................
Applicant
And
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
NATIONAL
PROVIDENT
FUND
.......................................................................................
Respondent
Neutral
citation:
Mtyhopo v South African
Municipal Workers Union National Provident Fund
[2015]
ZACC 32
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Matojane AJ, Nkabinde J, Van der Westhuizen
J, Wallis AJ and
Zondo J
Judgment:
Cameron J (Unanimous)
Decided
on: 1 October 2015
Summary:
Section 16 of the Constitution — freedom of
expression —defamation
—
interdict
—
unconstitutional prior restraint of
speech — words not defamatory — interdict set aside
ORDER
On
appeal from the Eastern Cape Division of the High Court, Grahamstown:
1.
Leave to appeal is granted.
2.
The appeal
is upheld.
3.
The order of the Eastern Cape Division of the High
Court, Grahamstown, is set aside. In its place is substituted:
“The
application is dismissed with costs”.
4.
The respondent must pay the applicant’s
costs.
JUDGMENT
CAMERON
J (Mogoeng CJ, Moseneke DCJ, Jafta J, Khampepe J, Madlanga J,
Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ and
Zondo
J):
Introduction
[1]
The applicant, Mr Ayanda Mtyhopo, is a
member of the South African Municipal Workers Union National
Provident Fund (Fund).
He lives in Kwa Nobuhle, Uitenhage
and works for the Nelson Mandela Bay Metropolitan Municipality,
Eastern Cape Province.
He is the spokesperson for 99
disaffected members of the Fund. They have long been unhappy
with the Fund’s administration
and management. They
wanted to leave it, but, after trying various ways out, they found
themselves thwarted. The impasse
gave rise to angry feelings on
both sides, and to words. Mr Mtyhopo uttered them. They
are at the centre of his application
for leave to appeal.
[2]
The Eastern Cape Division of
the High Court, Grahamstown, per Tshiki J (Grahamstown High Court),
granted the Fund a broad order
against Mr Mtyhopo. He was
interdicted from—
(a)
“
[p]ublishing any false and/or defamatory
matter about the [Fund]”; and
(b)
“
[c]ausing, whether directly or indirectly,
or from allowing any publication or representation about the [Fund]”
to the effect
that—
(i)
there is any order binding on the Fund issued by
the Pension Funds Adjudicator (Adjudicator) relating to a complaint
lodged by Mr
Mtyhopo and other Fund members relating to the Fund’s
refusal to allow them to transfer to another pension fund of their
choice; or
(ii)
the
Fund has failed to comply with any order issued by the Pension Funds
Adjudicator or by any court or other tribunal.
[1]
Mr
Mtyhopo was also ordered to pay the Fund’s costs on the
punitive scale as between attorney and client.
[2]
He now seeks leave to appeal against the entirety of the order.
Background
[3]
The background is this. What blocked
Mr Mtyhopo and those for whom he spoke from leaving the Fund was a
collective agreement
concluded in the South African Local
Government Bargaining Council (bargaining council). From 2000,
the Council imposed
a moratorium on inter-fund transfers, pending
negotiations on the structure of municipal pension funds.
[4]
Frustrated
after years of trying to leave the Fund, Mr Mtyhopo lodged a
complaint with the Adjudicator. There he succeeded.
[3]
The Adjudicator concluded that the Fund’s rules permitted its
members to move their memberships to a different fund.
But the
Fund appealed, as was its statutory entitlement, against this
decision to the South Gauteng High Court, Johannesburg
(Johannesburg High Court).
[4]
At the time of the proceedings in that Court, Mr Mtyhopo and the
other members did not have legal representation and
were unable to
intervene. The appeal was unopposed. On 15 November
2012, the Johannesburg High Court upheld the
Fund’s appeal.
It set aside the Adjudicator’s decision. It seems to have
done so in unopposed motion proceedings,
without a judgment
clarifying the grounds for its order – or even whether it
upheld the Fund’s objection to the Adjudicator’s
jurisdiction – and without reaching the merits of Mr Mtyhopo’s
complaint.
[5]
Within the same week of the ruling of the
Johannesburg High Court, Mr Mtyhopo initiated communication with
Ms Rochelle de Kock,
a journalist at
The
Herald
,
a newspaper in Port Elizabeth. She subsequently published an
article in print on 18 February 2013. The following is
an
extract from the article:
“
The
SA Local Government Bargaining Council placed a moratorium on the
transfer of municipal workers between various pension and
retirement
funds in 2000 and has yet to lift the ban.
The
group of 99 said the ban infringed on their constitutional rights to
freedom of association.
Spokesman
for the group Ayanda Mtyhopo said they had spoken to SAMWU [a
municipal workers’ union], the SA Local Government
Association
(SALGA) and the Bay Municipality about their grievances, begging them
to intervene, but with no luck.
The
group also took the matter to the Pension Funds Adjudicator – a
body which investigates and resolves pension fund disputes
–
which ruled in their favour in June last year. This had not,
however, influenced the bargaining council’s decision.
‘
[Despite]
numerous discussions with representatives of [the Fund] and letters
of termination, we have not been successful and find
ourselves
disadvantaged in many ways. . .’ Mtyhopo said.
Other
grievances are that the [Fund] was embroiled in a scandal in which
R800 000 was allegedly stolen.”
[6]
The Fund complains that the
newspaper article represented it as uncooperative and, worse, tainted
by scandal. And, mysteriously,
it mentioned only the
Adjudicator’s decision, without explaining that the Fund had
succeeded in overturning it. This
incensed the Fund. Two
issues in particular evoked its ire. First, it said Mr Mtyhopo
had intentionally misled
the journalist by not informing her that the
Fund had successfully appealed against the Adjudicator’s
decision. Second,
it complained about the statement that the
Fund was “embroiled in a scandal in which R800 000 was
allegedly stolen”.
[7]
The Fund demanded a
retraction. This
The
Herald
published
two days later, on 20 February 2013. The retraction, of course,
has no direct bearing on the Fund’s litigation
against Mr
Mtyhopo. It may have been published for purely commercial
reasons, or for the sake of keeping the peace or hearing
the other
side. A second observation is warranted. The fact that
The Herald
published a retraction surely
impacted very considerably on the need for further steps against Mr
Mtyhopo. The retraction
of the newspaper article, within 48
hours, surely remedied any harm or misapprehension that had arisen.
[8]
But the retraction did not
appease the Fund. It also confronted Mr Mtyhopo. In a
lawyer’s letter, it said he had
acted in bad faith by
deliberately providing the journalist with false information.
It said he had made “wrongful and
intentional false
representations of fact knowing that such statements would induce the
reporter to act on those false statements
and report it to the public
at large”. For his part, Mr Mtyhopo has at all
stages accepted that he prompted the
newspaper article and that
broadly it correctly quoted him.
[9]
The Fund now sought a wide-ranging
undertaking from Mr Mtyhopo. It demanded that he, “with
immediate effect, cease to
communicate with the press, or otherwise
make public statements about any matter relevant to the Fund, in
particular relating to
the aforesaid complaints and determinations,
or make any defamatory or untrue statements about the Fund”.
[10]
In more detail, the Fund
required an undertaking “at least” that Mr Mtyhopo would
“cease to communicate any and
all information and opinions by
any means of communication and regardless of the origin of such
information and opinions”
about the Fund to any members of the
press, any persons in public, or to any person in private, “seeking
to induce such person
to communicate the information or opinions to
the press or to the public, whether directly or indirectly,
intentionally or unintentionally”.
[11]
In response, Mr Mtyhopo dug
in. He refused to give the undertaking. So the Fund
applied for an interdict restraining
Mr Mtyhopo from, among other
things, publishing or allowing any other person, including the
members he represented, to publish
any defamatory or false statements
about the Fund. The proceedings were not against the newspaper
or the reporter, but against
Mr Mtyhopo only. The Fund asserted
that, though it was not a trading corporation, Mr Mtyhopo’s
statements put it at
risk of pecuniary harm. In its founding
affidavit the Fund said that the article might undermine members’
confidence
in its management and lead to more members wishing to
leave, with the risk of continued litigation.
[12]
In his affidavit opposing the
relief sought, Mr Mtyhopo denied that his statements carried in the
article were defamatory.
He claimed that they were not untrue
because he did not know that the Johannesburg High Court had
overruled the Adjudicator’s
decision in the Fund’s
favour. He said the correspondence from the Fund’s
attorney was “filled with jargon”.
This left him
unsure about what it meant. He also denied defaming the Fund.
He asserted that the scandal claim was
“all but admitted by the
Fund” in its response to the Adjudicator. And, he said,
the undertaking the Fund sought
from him, on pain of the ensuing
litigation, was “unjustifiably onerous”.
[13]
The
Grahamstown High Court’s judgment, as its punitive costs award
showed, was a stinging rebuke to Mr Mtyhopo. It held
that what
he caused to be published in
The
Herald
was
“not the truth”. The Court found his claimed
ignorance about the Johannesburg High Court ruling in favour
of the
Fund was not credible. The notion of a language barrier
preventing him from appreciating the significance of the Court’s
order was far-fetched. He was only pretending not to
understand.
[5]
It also
found that the requirements for an interdict, including that no other
remedy be available, were met. The Court
held that damages
would be an insufficient remedy
[6]
because if Mr Mtyhopo could not afford to pay those damages,
“there would be no wisdom in proceeding with such a claim
and
an interdict would turn out to be the only satisfactory remedy”.
[7]
[14]
On 14 October 2014, the Grahamstown High
Court refused Mr Mtyhopo leave to appeal. So did the Supreme
Court of Appeal, on
2 March 2015.
In
this Court
[15]
In
directions dated 13 May 2015, the Chief Justice invited the parties
to file written argument on whether the interdict was justified;
whether alternative relief was viable; the implications of the
interdict for freedom of speech; and whether the interdict could
have
been tailored more narrowly.
[8]
After receiving the parties’ submissions, this Court decided to
dispose of the matter without an oral hearing.
[16]
In this Court, Mr Mtyhopo mounts a broad
attack on the Grahamstown High Court order. He makes three
contentions:
(a)
The Fund failed to meet the requirements for an
interdict in a defamation claim;
(b)
The interdict is over-broad for several reasons,
including that it is an unconstitutional prior restraint of speech;
and
(c)
If he had defamed the Fund, the Grahamstown High
Court ought instead to have an ordered apology.
[17]
Mr Mtyhopo contends that
neither the issue about the Adjudicator’s award nor his claim
about scandal amounted to unlawful
defamation. He pointed out
that he had said that it was the bargaining council – not the
Fund – that had been
unswayed by the Adjudicator’s
decision. On the scandal, he submits his statement was true,
the facts were admitted
by the Fund, and that publicising the scandal
was in the public interest.
[18]
He further denies that the
defamation, if indeed it was that, was intentional. He was
confused as to the “true position”
of the dispute and
spoke only to what he understood. The fact that his statements
may have been erroneous, according to Mr Mtyhopo,
does not mean
that they were defamatory, for he lacked the necessary intent to
defame.
[19]
But these arguments are
secondary to Mr Mtyhopo’s central concerns: that the interdict
was overbroad; there were better alternative
remedies; and the
interdict imposed an unconstitutional prior restraint. He
argues that an interdict is a remedy for future
wrongs, not past
transgressions. Because the Fund had no reasonable apprehension
that Mr Mtyhopo would in future defame it,
the Grahamstown High Court
erred in issuing so broad an interdict.
[20]
There
were, he furthermore contends, at least two remedies available to the
Fund: damages, or an apology. The Fund could have
sought
damages from both him and
The
Herald
–
this
would have redressed any harm.
[9]
Alternatively, the Grahamstown High Court could have ordered him to
apologise.
[10]
[21]
Finally,
Mr Mtyhopo urges that the interdict against him constitutes a serious
infringement on freedom of expression. Prior
restraint of
speech is among the most serious infringements of freedom of
expression.
[11]
The
interdict extends to any future statement about the Fund, even those
that might be lawful. It also restrains not
solely defamatory
statements but also statements that are untrue, when no case of
injurious falsehood was made. This limits
disclosure about
scandals that might affect the Fund’s operations and prohibits
the indirect allowing or causing of defamatory
materials to be
published by others. This, Mr Mtyhopo claims, makes him a
guardian of the Fund’s reputation.
All this fails to meet
the stringent requirement of narrowly tailoring an interdict
suppressing speech.
[22]
The Fund contends that the Grahamstown High
Court simply applied trite principles in granting the interdict.
Mr Mtyhopo’s
statements plainly defamed the Fund, infringing a
clear right, and the only reasonable alternative was an interdict
since Mr Mtyhopo’s
relative penury meant that a monetary
judgment against him would not be satisfied. Given Mr Mtyhopo’s
hostility towards
the Fund and his prior pattern of bad faith, the
Fund says it had a reasonable apprehension that he, or some
affiliate, would continue
to defame it.
[23]
The Fund further urges that it
is not reasonable to expect it to seek redress from
The
Herald
since
the newspaper was not responsible for the erroneous statements.
Nor would damages – which would be difficult to
quantify –
help against future defamatory statements, which was the point of the
litigation.
[24]
On prior restraint, the Fund
argues that the Grahamstown High Court thoughtfully assessed whether
the Constitution placed any limits
on the common law of defamation,
which operates as a general law limiting the right to freedom of
expression. Furthermore,
they argue that this case presented no
novel issues that would require the development of the common law,
and note that the Grahamstown High
Court held that there was a
reasonable apprehension that justified an interdict.
Jurisdiction
[25]
This
Court has jurisdiction because the interdict affects the right to
freedom of expression.
[12]
Assessment
[26]
The
first question is whether
The
Herald
article
defamed the Fund. If the answer favours Mr Mtyhopo, all the
other issues fall by the wayside. The Grahamstown
High Court
held that the Fund was defamed. Its central finding was that
what Mr Mtyhopo told the journalist about the Adjudicator’s
decision was not the truth. It then proceeded with some energy
to consider Mr Mtyhopo’s defence of ignorance and lack
of
understanding about the effect of the reversal by the Johannesburg
High Court of the Adjudicator’s decision. Mr
Mtyhopo
admitted the Fund’s attorney informed him of the reversal.
[13]
[27]
The Grahamstown High Court rejected all Mr
Mtyhopo’s disclaimers. It found that he was “well
aware” of the
outcome of the Johannesburg High Court battle
when the journalist interviewed him. This applied to both the
Adjudicator’s
decision and the scandal. It is doubtful
whether there is a sound basis for the Grahamstown High Court’s
finding that Mr Mtyhopo disingenuously raised a language barrier in
seeking to defend his supposed ignorance of the Johannesburg High
Court order in favour of the Fund. Mr Mtyhopo did not complain
that there was a language barrier beyond making the justified
point
that lawyers’ language is impenetrable. On 15 November
2013, he asked the Fund’s attorney for an explanation
as to
whether the Adjudicator had been overruled. He received the
following reply: “Kindly note that the Fund’s
appeal in
both matters were today upheld which resulted in the complainants’
complaints having been dismissed”.
Thereafter, in
November 2012 and January 2013, he asked for the full judgment.
In March 2013, he complained that there was
no full judgment.
One may speculate that with these inquiries Mr Mtyhopo wanted to
ascertain whether the Johannesburg High Court
had overruled
the Adjudicator on a technicality or on the merits of her finding in
his favour.
[28]
At
all events, the Grahamstown High Court found that when the newspaper
article appeared, “he knew very well that he was publishing
something which was not true”.
[14]
This put paid, too, to his defence that he was innocent of defamatory
intent. Since courts do not encourage the deliberate
publication of material the publisher knows to be false, the
Grahamstown High Court found that an interdict should be issued.
[29]
The Grahamstown High Court reasoned that
because Mr Mtyhopo published information he knew or ought to have
known was not true, he
had defamed the Fund, which had therefore
established its entitlement to an interdict:
“
The
only relevant question is whether, in the opinion of the reasonable
man with normal intelligence and development, the reputation
of the
person concerned has been injured. This is an objective
approach and if so the words or behaviour are defamatory to,
and in
principle wrongful against that person. In our case,
[Mr Mtyhopo] has published information which he knew or
at least
ought to have known that it [was] not true and therefore, any conduct
in attempting to or continuing to deliberately publish
false
information should be discouraged at all costs as this conduct could
not be in the interests of justice and good order.”
[15]
[30]
This
approach to whether a statement is defamatory is mistaken. The
long established test, as this Court recently put
it in
Le
Roux
,
is that “a statement is defamatory of a plaintiff if it is
likely to injure the good esteem in which he or she is held by
the
reasonable or average person to whom it had been published”.
[16]
So the question is this: did the article diminish the Fund in the
estimation of reasonable readers? We may accept that
Mr
Mtyhopo’s disclaimers were implausible. But the
Grahamstown High Court omitted to consider the question whether
the
Fund was defamed separately from the question whether Mr Mtyhopo
misled the journalist by not telling her that the Fund had
successfully challenged the Adjudicator’s decision in the
Johannesburg High Court.
[31]
The newspaper article, so far as it goes,
is factually correct on the Adjudicator’s decision. What
the newspaper article
leaves out is the fact that the
Johannesburg High Court overturned the Adjudicator’s
decision at the instance of the
Fund. Did that defame the
Fund? The question is whether the omission diminished the Fund
in the estimation of reasonable
readers. A well informed reader
would certainly be entitled to know, and would want to know, about
the Johannesburg High Court
decision. But, not
knowing about it, would she think less of the Fund? That seems
very unlikely.
[32]
The closest the newspaper
article comes to defaming any institution or body is what follows
immediately after it tells readers about
the decision in Mr Mtyhopo’s
favour. The article proceeds: “This had not, however,
influenced the bargaining
council’s decision”. The
allusion is not to the Fund. It is to the bargaining council.
When read
in the context of the grievance the article sets out
earlier – which was a grievance against the bargaining council,
and
not the Fund – the reasonable reader would at most think
that this was a criticism of the bargaining council’s failure
to lift its moratorium on membership transfers. Although the
article implies that the Fund is responsible for the disgruntlement
of the 99 disaffected members, it does not say, nor does it imply,
that the Fund failed to implement a decision by the Adjudicator
that
was binding on it.
[33]
In considering these aspects
of the newspaper article, one must be careful not to confuse
disapproval of any lack of candour by
Mr Mtyhopo in not disclosing to
the journalist the outcome of the Fund’s appeal with the
question whether the article defamed
the Fund. Complete
accuracy would have demanded that she be told of this, but it does
not follow that Mr Mtyhopo’s
failure to do so made the article
defamatory of the Fund. One may accept that Mr Mtyhopo’s
omission was disrespectful
of the journalist. And one may
accept it was disrespectful of the readers he aimed to reach through
her. This may warrant
disapprobation and perhaps even censure.
But it does not follow that his omission constituted actionable
defamation.
For that, it would need to have the effect of
reducing the Fund’s reputation in the estimation of ordinary
readers.
And, on any reading of the article, that is not what
the hypothetical reasonable reader would conclude from the article.
[34]
Then
there is the article’s mention of the grievance that the Fund
“was embroiled in a scandal in which R800 000
was
allegedly stolen”. The Grahamstown High Court made
no separate assessment whether this statement was defamatory.
It merely found, somewhat obliquely,
[17]
that the scandal allegation was included in the Adjudicator’s
overturned decision. It found that Mr Mtyhopo libellously
misled the journalist.
[35]
This
approach was mistaken. The Adjudicator made no finding about
the R800 000. She merely recorded both Mr Mtyhopo’s
complaint about it, plus the Fund’s response. Her entire
determination,
[18]
as well as
her order,
[19]
concerned
solely the Fund’s rules on transfers and the law relating to
transfers.
[36]
Her ruling was that the Fund—
“
is
directed to take all necessary steps to effect the transfer of the
complainant’s benefit in terms of its rules within eight
weeks
of the date of this determination”.
[20]
It
is mistaken to suggest that the Adjudicator made any determination
about the allegedly stolen R800 000, still less that the Johannesburg
High Court could have overturned any decision on it in the Fund’s
favour. The “scandal” statement in the
newspaper
article must be determined on its own defamatory nature and
capability, without burdening Mr Mtyhopo with the suggestion
that he omitted to tell the journalist about the Johannesburg High
Court ruling that vindicated the Fund.
[37]
So was it defamatory for
The
Herald
to report
that one of the grievances of the disaffected group was that the Fund
“was embroiled in a scandal in which R800 000
was
allegedly stolen”? The answer is no. And the answer
lies in the fact that the Fund responded to the Adjudicator
about Mr
Mtyhopo’s complaint about the R800 000. His
complaint was that the Fund suffered “maladministration”
and “as a result it is estimated that there is an amount of
about R800 000 which cannot be accounted for” by the
Fund.
[38]
The Adjudicator recorded Mr
Mtyhopo’s claim without comment, and without later assessment.
But she was careful also
to record the Fund’s response.
She did so equally without comment, and equally without assessing
it. Her decision
records this:
“
According
to [the Fund] there is no trustee who misused R800 000.
However, the money was paid to the trustee by the Momentum
Group
Limited and this company refunded [the Fund] in 2009, together with
interest. The person involved was subsequently
removed from the
board. There has been no evidence produced by the complainant
[Mr Mtyhopo] that other funds grow at a faster
rate than [the Fund].
The complainant’s allegation that there are long delays in
paying claims is a general statement
that has no basis. Members
are paid as and when they submit proper documentation.”
[21]
[39]
This response affords the
reason why Mr Mtyhopo did not defame the Fund. It confirms that
R800 000 was paid to a trustee;
that the sum should not have
been paid; and that the trustee was in consequence removed from the
Fund’s board. This
is a scandal. If it is not a
scandal in what the Fund admitted to the Adjudicator, it is a scandal
in what it omits to say.
Who was the trustee? How did he
or she manage to procure the payment into a personal account?
What processes and procedures
of the Fund were so deficient that a
major life insurer, Momentum Group Limited, wrongly paid such a big
sum to an individual board
member? Was the money ever recovered
from the trustee? Was a criminal charge ever laid? Was
the trustee ever
prosecuted? If so, what was the outcome?
If not, why not? What later steps have been taken? Have
any board
processes been revised to preclude a future repetition?
If not, why not? Have other funds and fiduciary institutions
been alerted to the identity of the trustee and to the circumstances
of the payment so that there is no repeat?
[40]
In both what is said and in
what is left out, there can be no clearer admission of scandal.
The repayment of the money by
Momentum Group Limited did not close
the door on the taint. It only accentuated the importance of
the questions the Fund’s
response to the Adjudicator did not
address.
[41]
Mr Mtyhopo and his group were
entitled to feel aggrieved about the payment. And they were
right to regard it as a scandal.
And they were entitled to
challenge the Fund to account more fully for what had happened with
the R800 000. Their persisting
grievance is what continued
to “embroil” the Fund in the scandal.
[42]
So
the statement in
The
Herald
’
s
article that the Fund “was embroiled in a scandal in which
R800 000 was allegedly stolen” was not actionably
defamatory. It was true. And to the extent that it was
not a fact, it was a comment or opinion that Mr Mtyhopo was
entitled
to hold and to express.
[22]
[43]
It
follows that, from first base, the Fund was not entitled to an
interdict. This conclusion makes it unnecessary to consider
Mr
Mtyhopo’s further arguments that the interdict was
unwarrantably overbroad, and that it constituted a prior restraint
out of consonance with the judgment of this Court in
Print
Media
and
the judgment of the Supreme Court of Appeal in
Midi
Television
.
[23]
Order
[44]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal
is upheld.
3.
The order of the Eastern Cape Division of the High
Court, Grahamstown, is set aside. In its place there is
substituted: “The
application is dismissed with costs”.
4.
The respondent must pay the applicant’s
costs.
For
the Applicant:
For
the Respondent:
S
Budlender and M Bishop instructed by the Legal Resources Centre
Bowman
Gilfillan
[1]
South
African Municipal Workers Union, National Provident Fund v Mtyhopo
[2014]
ZAECGHC 48; 2014 JDR 1145 (ECG) (Grahamstown High Court judgment) at
paras 38-9.
[2]
Id
at para 38.
[3]
Mtyhopo
and Others v South African Municipal Workers’ Union National
Provident Fund
[2013]
2 BPLR 203 (PFA);
[2013] JOL 30280
(PFA) (Adjudicator’s
decision).
[4]
See
section 30P of the Pension Fund Act 24 of 1956.
[5]
Grahamstown
High Court judgment above n 1 at para 23.
[6]
See
Tullen
Industries Ltd. v A de Sousa Costa (Pty.) Ltd. and Others
1976
(4) SA 218
(T) at 220A, which notes that there are cases where “an
award for damages [would be] a poor substitute”, cited with
approval by the Grahamstown High Court judgment id at para 37.
[7]
Grahamstown
High Court judgment id.
[8]
The
Chief Justice invited short written argument on—
“
a)
Whether the circumstances of this matter justify the relief imposed
by the High Court;
b)
The viability of alternative relief in this matter;
c)
The implications of the right to freedom of speech in this matter
and how the interdict granted by the High Court infringes
on this
right; and
d)
Whether the terms of the interdict granted by the High Court could
have been tailored to limit the infringement of the right
to freedom
of speech.”
[9]
See
[7] above regarding the retraction
The
Herald
published.
[10]
Dikoko
v Mokhatla
[2006]
ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC);
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) (
Le
Roux
);
and
The
Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others,
Amici Curiae)
[2011]
ZACC 11
;
2011 (4) SA 191
(CC);
2011 (8) BCLR 816
(CC) (
McBride
).
[11]
Print
Media South Africa and Another v Minister of Home Affairs and
Another
[2012]
ZACC 22
;
2012 (6) SA 443
(CC);
2012 (12) BCLR 1346
(CC) (
Print
Media
)
and
Midi
Television (Pty) Ltd v Director of Public Prosecutions (WC)
[2007]
ZASCA 56
;
[2007] 3 All SA 318
(SCA) (
Midi
Television
).
[12]
Section
16 of the Bill of Rights provides:
“
(1)
Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to—
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[13]
Grahamstown
High Court judgment above n 1 at paras 22-5 and 29.
[14]
Id
at para 29.
[15]
Id
at para 32.
[16]
Le
Roux
above
n 10 at para 91;
McBride
above
n 10 at para 19; and
Demmers
v Wyllie and Others
1980
(1) SA 835
(A);
[1980] 1 All SA 391
at 842A-C.
[17]
Grahamstown
High Court judgment above n 1 at para 25, where the Court held that
Mr Mtyhopo “knew very well that the issue
about R800 000
also formed part of the matters which were successfully challenged
by the Fund” in the Johannesburg
High Court.
[18]
Adjudicator’s
decision above n 3 at para 5.
[19]
Id.
[20]
Id
at para 6.
[21]
Id
at para 4.3.
[22]
McBride
above
n 10 and
Democratic
Alliance v African National Congress and Another
[2015]
ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR 298 (CC).
[23]
Print
Media
and
Midi
Television
above
n 11.