A221/2019 Court a Quo Case No: 1885/2019

IN THE HIGH COURT OF SOUTH AFRICA, FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO Of Interest to other Judges: NO Circulate to Magistrates: NO

Appeal number: A221/2019 Court a quo case no: 1885/2019

In the matter between:

MAYULA PROCUREMENT AND PROPERTY MANAGEMENT (PTY) LTD 1st Appellant

HANTSI BHETILDA MATSEKE 2nd Appellant and

SEMAKALENG PATRICIA KOPANE 1st Respondent

THE DEMOCRATIC ALLIANCE (“DA”) 2nd Respondent

HEARD ON: 22 JUNE 2020

CORAM: MBHELE ADJP, JORDAAN J et DAFFUE J ______

JUDGMENT BY: DAFFUE J ______

DELIVERED ON: 17 AUGUST 2020

I INTRODUCTION

[1] This is yet another case where the balancing of two constitutional rights, to wit the right to human dignity as embodied in s 10 and the right to freedom of expression contained in s 16 of the Constitution1 is to be considered.

[2] On 1 August 2019 the court a quo dismissed the appellants’ application for an interdict relating to the publication of alleged defamatory remarks by a prominent politician.

[3] This is an appeal to the full bench of this division, leave to appeal having been granted by the court a quo on 25 October 2019.

II THE PARTIES

[4] The 1st appellant in this appeal and 1st applicant in the application in the court a quo is Mayula Procurement and Property Management (Pty) Ltd. The 2nd appellant, who featured as 2nd applicant in the aforesaid application, is Me Hantsi Bhetilda Matseke, a businesswoman and sole director of the 1st appellant. She is also the chairperson of the Free State Development Corporation (“FDC”), a statutory body and the official economic development agency for the Free State Province. Advv T Manchu & S Alcock appeared for the appellants in the appeal before us.

[5] The 1st respondent in this appeal as well as in the court a quo is Me Semakaleng Patricia Kopane, the leader of the Democratic

1 Act 108 of 1996 3

Alliance (“DA”) in the Free State Province. The 2nd respondent is the DA, a political party duly registered in terms of the laws of the Republic of South Africa. The respondents were represented by Adv HJ Benade.

III THE ALLEGED DEFAMATORY REMARKS

[6] The pertinent issues from the media statement (“the statement”) raised by appellants for the submission that first respondent had defamed appellants have been quoted selectively by appellants’ counsel in their heads of argument. I quote the impugned utterances:

“… But there is more: Today we can reveal information pointing to a scheme in which Ace Magashule during his tenure as premier has manipulated the awarding of lease agreements for the offices of government departments to benefit a few close allies and himself.

We will report this information to the Zondo Commission, in addition to the dossier we have sent to the Commission earlier this year, and which encapsulates the information set out above.

We also have clear information that at least one of these lease agreements was structured in such a way that it not only enabled an ally of Magashule to purchase a property, but secondly it also enabled her to renovate this property using rental while the property is not being occupied by the Provincial Department of Public Works and infrastructure.

month, while it is still being renovated and occupation by the Department is still months away.

We have been informed that this award was made on the insistence of Magashule during his final days in office as premier. The company involved is Mayula Procurement and Property Management (Pty) Ltd and the person behind this company Ms Hantsi Bhetilda Mayeza or Matseke, the Chairperson of the FDC.

She has in the past been implicated in other scandals involving Magashule and his daughter, relating to both the Vogelfontein Housing Scandal and certain filling station contracts.

The ANC looters are getting richer and richer than the country they are supposedly governing through corruption and looting of state resources. It is nothing new that Magashule is an incorrigible crook and the DA wants to see him and his entire cabal in the ANC get locked up for committing these crimes against the South African state.” (emphasis by appellants’ counsel)

Of course, appellants and their counsel emphasised the alleged defamatory remarks, without putting these remarks in context. They were made by a politician just prior to the national elections to be held the following month. The principal target was the former premier of the Free State Province, Mr Ace Magashule. Allegations were levelled at him pertaining to the running of a state capture network in the province and examples were quoted. These were already in the public domain. The annexures to the founding affidavit confirm this. The ruling party was severely criticised and 2nd respondent called upon voters to vote for the DA which party would, according to her, free the province and the country from corruption. IV THE RELIEF CLAIMED IN THE COURT A QUO 5

[7] I do not intend to quote the relief claimed as set out in the notice of motion in full, but restrict myself to the following:

7.1 that the respondents be interdicted from making or repeating any allegations (whether orally or in writing) against the applicants (or any of them), and/or from defaming or injuring them in their dignity, in any further publication or broadcasts in any form, including but not limited to internet posts, articles, letters, media interviews, “Facebook”, “Twitter” and other social media posts and the like, which are the same as, or similar to, or which negatively reflect upon the applicants (or any of them) arising from or based on, any of the allegations or statements appearing in the press statement issued by the 1st respondent on 1 April 2019 (paragraph 4 of the notice of motion);

7.2 that the two respondents be directed to remove and delete the press statement issued by the first respondent in relation to the applicants and any posts regarding the press statement or responses thereto, from the 2nd respondent’s website, “Facebook”, “Twitter” and other social media posts (paragraphs 5 & 5.1).

[8] Further relief was also sought against four other respondents, two media houses and two reporters. However, leave to appeal was not granted in respect of the successful 3rd to 6th respondents who for obvious reasons did not play any part in the appeal.

V MAIN REASONS BY THE COURT A QUO FOR DISMISSING THE APPLICATION

[9] The court a quo’s reasons for dismissing the application can be summarised as follows:

9.1 The press release issued by the 1st and 2nd respondents was not defamatory of the appellants.

9.2 Even if it could be said that the statement was prima facie defamatory, respondents succeeded in rebutting wrongfulness by relying on the truth thereof, the public interest, the notion of fair comment and reasonableness of the publication as well as certain constitutional values.

9.3 The statement was political criticism concerning the actions of public figures, to wit the former premier of the Free State Province as well as the 2nd appellant, the chairperson of the FDC.

9.4 The statement was in the public interest and not wrongful and therefore the applicants did not prove a clear right.

9.5 The appellants failed to prove the second requirement for a permanent interdict, to wit an injury actually committed or reasonably apprehended.

9.6 The court a quo was not persuaded that no other remedies were available to the appellants. They could claim damages by way of action procedure. 7

VI THE GROUNDS OF APPEAL

[10] Thirteen grounds of appeal were relied upon. These can be summarised as follows:

10.1 The court a quo should have found that the appellants had met all the requirements for an interdict.

10.2 The court a quo should have found that upon a proper interpretation of the statement the appellants were involved in a corrupt scheme, that they were corrupt, dishonest or of low ethical and moral character.

10.3 The court a quo should have found that appellants had established a clear right to human dignity and right not to be defamed.

10.4 The court a quo erred in finding that the statement constitutes reasonable publication and that 2nd appellant was a public figure that could be subjected to political criticism.

10.5 The court a quo, whilst accepting that the truthfulness or falsity of the statement could not be established on the papers, ought to have found that the respondents had failed to prove the defences relied upon.

10.6 The court a quo erred in finding that the appellants did not prove the second requirement for a final interdict – an injury actually committed or reasonably apprehended.

10.7 The court a quo erred in finding that the appellants had an alternative remedy.

VII EVALUATION OF THE JUDGMENT OF THE COURT A QUO, THE SUBMISSIONS OF COUNSEL AND RELEVANT AUTHORITIES

[11] I referred to the two competing constitutional rights in paragraph 1 supra. Sections 10 and 16 of the Constitution read as follows: “Human dignity 10. Everyone has inherent dignity and the right to have their dignity respected and protected. Freedom of expression 16.1 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. 16.2 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.”

The respondents as politicians also rely on their political rights to point out maladministration, wrongful conduct and failures by their political opponents, especially immediately before the national elections. Therefore, an extract of s 19, dealing with political rights, is also quoted: “Political rights 19.1 Every citizen is free to make political choices, which includes the right- (a) … 9

(b) to participate in the activities of, or recruit members for, a political party; and (c) to campaign for a political party or cause. 19.2 …. 19.3 ….” (emphasis added)

[12] Two decades ago, Kriegler J said the following in S v Mamabolo (E TV and Others intervening)2 regarding the rights to human dignity and freedom of expression: “With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law.” (emphasis added)

[13] The appellants sought final interdicts, i.e. orders to secure a permanent cessation of the respondents’ alleged wrongful conduct. In paragraph 4 of the notice of motion they sought a prohibitory interdict, requesting the court a quo to interdict the respondents from making or repeating any allegations injuring their dignity, i.e. to prevent future wrongful conduct. In paragraph 5.1 a mandatory interdict was sought, directing respondents to remove and delete the statement and posts pertaining thereto on social media.

[14] No allegations were made indicating an intention by the respondents to make or repeat any further and/or similar statements in this regard. Whatever the nature of the statement and comments thereabout, no case has been made out at all for a prohibitory

2 2001 (3) SA 409 (CC) par 41 10

interdict. Mr Manchu conceded this during argument. The issue to be considered is whether the court a quo was incorrect in not granting a mandatory interdict with final effect as requested.

[15] Insofar that there might have become a tendency to try and resolve defamation disputes by means of application procedure as the appellants unsuccessfully tried to do, it is apposite to visit the well- known requisites for a final interdict. Although one might have thought that they do not need any introduction, I have decided to quote the requirements and deal with certain aspects in this regard. The three requisites are: (a) a clear right to be established by the applicant; (b) an injury actually committed or reasonably apprehended; and (c) the absence of any other satisfactory remedy available to the applicant.3 For present purposes the first requirement is regarded as particularly relevant. A clear right can also be defined as a “definitive right”4 or “a right that is clearly established.”5

[16] An applicant must prove on a balance of probabilities the right that he/she seeks to protect and in the event of factual disputes, the Plascon-Evans test is to be applied.6 A final interdict can only be granted in proceedings on motion if the facts stated by the respondent, together with the admitted facts in the applicant’s affidavit, justify the granting thereof. If the case relied upon by the respondent consists of “bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that

3 Pilane & another v Pilane & another 2013 (4) BCLR 431 (CC) at par 39 4 Erasmus v Afrikander Proprietary Mines Ltd 1976 (1) SA 950 (WLD) at 956 C 5 Edrei Investment 9 Ltd (In liquidation) v Dis-Chem Pharmacies (Pty) Ltd 2012 (2) SA 553 (ECP) at 556 C - D 6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 F – 635 C 11

the court is justified in rejecting them merely on the papers”7 the Plascon- Evans test cannot be applied in favour of such a respondent. It is also stated in Zuma8 that the question of onus does not arise in motion proceedings; therefore the approach to the adjudication of motion proceedings where final relief is sought remains applicable irrespective of where the legal or evidential onus lies.

[17] The appellants believed that they had made out a proper case, that they had been defamed resulting in harm and that the court a quo incorrectly dismissed their application. Mr Manchu strenuously argued the matter based on the requirements to be proven in a defamation matter. He repeatedly submitted that defamation had been proven insofar as the respondents failed to prove their defences and an absence of wrongfulness.

[18] The law of defamation in South Africa is based on the actio iniuriarum, a common law action which affords the right to a person to claim contumelia (damages) when his/her personality rights have been impaired intentionally by the wrongful act of another. This action was confirmed yet again in Khumalo and Others v Holomisa,9 quoting the elements of the delict of defamation, to wit: “(a) the wrongful and (b) intentional (c) publication of (d) a defamatory statement (e) concerning the plaintiff.” The plaintiff does not have to prove that the statement is false.

7 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at par 26 8 Ibid at par 27 with reliance on Ngqumba & ‘n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) 9 2002 (5) SA 401 (CC) at paras 17 & 18 12

[19] The Bill of Rights protects human dignity10 and this includes a person’s dignitas (one’s sense of self-worth) and fama (one’s reputation, or put otherwise, the public’s estimation of one’s worth). That which is calculated to undermine the status, good name or reputation of a person is defamatory and publication thereof is prima facie wrongful. In order to establish whether a published statement is defamatory per se, a two-stage approach is followed as explained in Le Roux and Others v Dey: “The first is to establish the ordinary meaning of the statement. The second is whether that meaning is defamatory. In establishing the ordinary meaning, the court is not concerned with the meaning which the maker of the statement intended to convey. Nor is it concerned with the meaning given to it by the persons to whom it was published, whether or not they believed it to be true, or whether or not they then thought less of the plaintiff. The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test, it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied.”

If the words used are not defamatory per se, the party relying on the alleged defamatory statement, may rely on an innuendo, but in such case such party has to set out the sense attributed to the words, that the other person intended to defame and that the statement was so understood by those to whom it was published.

[20] Plewman JA stated in Hix Networking Technologies v System Publishers (Pty) Ltd and another11: “It is trite that a defamatory statement is one which injures the person to whom it refers by lowering him in the estimation of ordinary intelligent or right-thinking

10 Sec 10 of the Constitution 11 1997 (1) SA 391 (AD) at 403 H 13

members of society generally as that phrase has been explained in this Court in Mohamed and Another v Jassiem 1996 (1) SA 673 (A) at 703G-704D.”

Although the common law distinguished between claims for injuries to dignitas and fama, it is now accepted that no sharp line can be drawn between these two common law actions, bearing in mind s 10 of the Constitution and the dicta of the Constitutional Court in Khumalo.12

[21] If the dicta of our courts are considered insofar as political speech is concerned, politicians are entitled to reveal alleged atrocities, maladministration, illegalities and failures by their political opponents. I shall show later herein what role politicians may and should play with impunity. In Khumalo13 the following was said in respect of the duties of the media which I accept cannot be applied automatically to politicians: “[23] Furthermore, the media are important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require. As Joffe J said in Government of the Republic of South Africa v “Sunday Times” Newspaper and Another 1995 (2) SA 221 (T) at 227H - 228A: “It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration.... It must advance the communication between the governed and those who govern.””

[22] Once a defamatory statement has been proven, a full onus is cast upon the party making the statement to allege and prove facts that dispel intention and, in particular, wrongfulness. Several defences

12 Loc cit at par 27 13 Loc cit at par 23 14

are available in accordance with our common law to rebut the presumption of wrongfulness, to wit justification, including truth and public benefit, fair comment, reasonable publication and qualified privilege, some of which are not relevant in casu. The constitutional right to freedom of expression14 is also available in order to rebut wrongfulness, but as mentioned, in such a case the competing constitutional rights of human dignity and freedom of expression must be weighed against each other in any particular factual situation.

[23] It cannot be disregarded that the appellants brought their application on an extremely urgent basis. Their notice of motion is dated 25 April 2019, indicating that they would move for relief on Tuesday, 30 April 2019. 25 April 2019 was a Thursday. On Friday, 26 April 2019 notice of opposition was given. On Monday, 29 April 2019, a day before the date set for the hearing, the respondents filed their answering affidavits. They had less than two court days and a weekend to do so. Saturday, 27 April 2019 was a public holiday. It is no wonder that the application was struck from the roll due to lack of urgency. It took the appellants more than two weeks to respond with a replying affidavit. There can be no doubt that the respondents were forced to draft papers in great haste and I shall eventually consider this aspect in the evaluation of the matter. Respondents explained their predicament in no uncertain terms:15 “74. Nothing said by Matseke changes the uncertainty: Her self-serving ipsit (sic) dixit does not suffice. The full truth can only be revealed through the process of a thorough investigation and or full evidence led in court. No such evidence can be presented to this Court given the urgent manner in which these proceedings have been launched. Moreover, in

14 Section 16 of the Constitution 15 Answering affidavit paras 74 & 75 15

all likelihood the presentation of the evidence in issue would require oral evidence. 75. In short, the present proceedings are unsuited to deal with the substantive issues involving the applicants’ gravamen.”

[24] Earlier in the answering affidavit, Mr Selfe, the respondents’ main deponent, stated as follows and I quote verbatim:16 “I note that the question of whether the statements are true place a central question in determination whether there has been (unjustifiable) defamation. Yet, in the present this question cannot be properly dealt with. The application has been on an extraordinary urgent basis. The DA has not yet had reasonable opportunity to muster all the evidence necessary to illustrate the truthfulness of the Kopane MP’s allegations about the applicants’ questionable dealings in relation to the Moaho lease. Indeed, urgent motion proceedings are unsuitable for this sought (sic) of inquiry.”

[25] The appellants’ rationale for launching interdict proceedings was their right not be defamed. Applications to prevent the publication of alleged defamatory statements are seldom entertained in our courts. This has been emphasised in Hix Networking, although admittedly relating to publication by a media house.17 This aspect has been addressed by the Supreme Court of Appeal very recently in Tau v Mashaba,18 a judgment not referred to by counsel. Therefore, the principle set out in Hix Networking is equally applicable in matters such as in casu.

16 Ibid par 60.2 p 110 17 Loc cit at 402 C - H 18 Tau v Mashaba & Others (335/2019) [2020] ZASCA 26 (26 March 2020) at par 28, relying on the dictum of Nugent JA in Herbal Zone at par 36 to the effect that an interdict to prevent future publication of defamatory matter is only infrequently granted as the party claiming that he/she will be injured is ordinarily left with the remedy to claim damages. 16

[26] In Midi Television (Pty) Ltd t/a E TV v Director of Public Prosecutions (Western Cape)19 the court dealt with the possible ban of future publication as follows: “[16] What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur… [19] In summary, a publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. Applying the ordinary principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.

[27] The Constitutional Court, relying on Midi Television supra, also held in Mtyhopo v SA Municipal Workers Union National Provident Fund20 that prior restraint of speech is amongst the most serious infringements of freedom of expression.

19 2007 (5) SA 540 (SCA) at paras 16 & 19; See also Hix Networking loc cit at 402 20 2015 (JDR) 2098 (CC) par 21 17

[28] Gqubule-Mbeki and Another v Economic Freedom Fighters and Another21 is a typical example of a tendency to apply for defamatory relief by way of motion procedure. The presiding Judge had the following to say pertaining to the respondents’ request to refer the matter to trial in order to present a complete defence: “In their application to refer the matter to trial in order to present a complete defence, it appears that they are yet to investigate the evidence in support of their allegations. They do not explain why they did not verify the allegations prior to publishing the statements or even after these proceedings were instituted. On the contrary their version before this court illustrates that they had no intention of verifying the allegations and that they had accepted the allegations as true as they were made by a person who in their view has credibility as she is of a high standing. The standing of a person does not absolve them from the responsibility to back up allegations with evidence.” The facts in casu differ completely from those in the particular judgment. I shall point out later which objective and common cause facts were relied upon by 2nd respondent in making her statement in casu.

[29] The judgments in Manuel v Economic Freedom Fighters and Others22 and Hanekom v Zuma23 are also exceptions to the general rule. In Manuel the court held that the respondents knew that the impugned statement pertaining to Mr Manuel was false and explained its reasoning in detail.24 The court proceeded in dealing with the defences raised by the respondents to rebut unlawfulness which were eventually rejected.25 It is unnecessary to deal with the court’s reasoning as the facts in that matter are clearly distinguishable from the facts in casu. In Hanekom the court

21 (30143/2018) [2020] ZAGPJHC 2 (24 January 2020) at par 66 22 2019 (5) SA 210 (GJ) 23 (D6316/2019) [2019] ZAKZDHC 16 (6 September 2019) 24 Ibid paras 42 - 44 25 Ibid paras 54 - 75 18

accepted that there was no material dispute of fact which makes the case distinguishable from the present matter.

[30] Both counsel relied on Herbal Zone (Pty) Ltd and others v Infitech Technologies (Pty) Ltd and others.26 Mr Benade relied on paragraph 37 and Mr Manchu on paragraph 38. I quote both paragraphs: “[37] The contentions in regard to the onus of proof were also contrary to established authority, to which for some reason we were not referred. This Court dealt with the proper approach of a court to an application for an interdict to restrain the publication of defamatory matter in Hix Networking. There it approved, with some clarification, the following passage from the judgment of Greenberg J in Heilbron v Blignault: "If an injury which would give rise to a claim in law is apprehended, then I think it is clear law that the person against whom the injury is about to be committed is not compelled to wait for the damage and sue afterwards for compensation, but can move the Court to prevent any damage being done to him. As he approaches the Court on motion, his facts must be clear, and if there is a dispute as to whether what is about to be done is actionable, it cannot be decided on motion. The result is that if the injury which is sought to be restrained is said to be a defamation, then he is not entitled to the intervention of the Court by way of interdict, unless it is clear that the defendant has no defence. Thus if the defendant sets up that he can prove truth and public benefit, the Court is not entitled to disregard his statement on oath to that effect, because, if his statement were true, it would be a defence, and the basis of the claim for an interdict is that an actionable wrong, ie conduct for which there is no defence in law, is about to be committed." [38] The clarification was to point out that Greenberg J did not hold that the mere ipse dixit of a respondent would suffice to prevent a court from granting an interdict. What is required is that a sustainable foundation be laid by way of evidence that a defence such as truth and public interest or fair comment is available to be pursued by the respondent. It is not sufficient simply to state that at a trial the respondent will prove that the

26 [2017] 2 All SA 347 (SCA) 19

statements were true and made in the public interest, or some other defence to a claim for defamation, without providing a factual basis therefor.” The highlighted portions will later herein be considered in context.

[31] In the recent judgment of the Supreme Court of Appeal, Tau v Mashaba and others,27 it had to deal with a judgment of the High Court emanating from an opposed motion. The central issue in the appeal was whether the High Court should have granted final relief to the effect that the statements were defamatory and restrained the appellant from repeating them.28 At paragraph 20 of the judgment the following was raised: “Both parties had approached the application on the basis that the trial court would decide whether the appellant was liable for damages for defamation. The papers show that the appellant’s defences were fair comment, truth and public benefit and ‘political commentary’. The order declaring that the initial statements were defamatory of the respondent, effectively precludes the appellant from exercising his right to adduce evidence in defence of a claim for defamation. That, in turn, adversely impacts upon his fundamental right to have a dispute decided in a fair public hearing, enshrined in s 34 of the Constitution.”

[32] The court continued in Tau as follows: “[22] As to the proper approach to an application for an interdict to restrain the publication of defamatory material, Plewman JA in Hix Networking, approved the following dictum by Greenberg J in Heilbron: [I do not quote this portion again as it will be repetition. Refer to the quotation in Herbal Zone supra] [23] This court also approved the analysis in Buthelezi, that Greenberg J ‘did not intend to lay down that a mere allegation, or a denial under oath, is sufficient “to set up” a defence which would be the case if a matter had to be decided on pleadings alone’. Put simply, the mere say-so of a

27 Loc cit; footnote 18 28 Ibid par 16 20

deponent who alleges a defence of justification should not be accepted at face value: the facts on which it is based must be analysed to determine its weight. A factual foundation for a defence of fair comment or truth and public benefit must be established in evidence.”

[33] Having dealt with the authorities in paragraphs 22 and 23, the court continued in paragraph 25: “This, obviously, is not to say that the appellant’s defence of justification is likely to succeed in the defamation action, which is pending. That is an issue to be decided by the trial court. But where a factual foundation for a defence of justification has been set up in motion proceedings, a court cannot know whether defamation has been proved until the trial process has shown where the truth lies. And of course, if the defence of justification fails, the appellant will have to pay damages.” (emphasis added)

[34] The authorities are clear. The exercise of freedom of expression may include robust political riposte and as stated in Democratic Alliance v African National Congress and Another29: “Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.”

[35] In Islamic Unity Convention v Independent Broadcasting Authority

and Others 30 the Constitutional Court emphasised the recognition of the right of freedom of expression and its importance to a democratic society.

29 2015 (2) SA 232 (CC) at par 133 30 2002 (4) SA 294 CC at paras 25 - 36. In dealing with the matter the Constitutional Court referred to two of its earlier decisions, South Africa National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) and the S v Mamabolo (E TV and Others intervening) 2001 (3) SA 409 (CC); see also Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA) at par 37 and further 21

[36] Regarding political discourse, it is important to note the dictum of Lewis JA in Mthembi-Mahanyele v Mail & Guardian Ltd and Another31: “Freedom of expression in political discourse is necessary to hold members of Government accountable to the public. And some latitude must be allowed in order to allow robust and frank comment in the interests of keeping members of society informed about what Government does. Errors of fact should be tolerated, provided that statements are published justifiably and reasonably: That is with the reasonable belief that the statements made are true. Accountability is of the essence of a democratic State: …”

I accept that political rhetoric can never be a licence to publish untrue statements about politicians as Lewis JA made clear in paragraph 67 of the judgment. I also accept that, unlike in casu, the publication was by a media house and that the defence of reasonable publication was under investigation.

[37] In the present day South Africa corruption is rife. This has been so for some time and the mere establishment of the Zondo Commission and what has been revealed to that commission are indicative of the recognition of criminality on an enormous scale within the public and private sectors. All reasonable members of society subscribe to the norms and values of our Constitution and in this regard, reasonable listeners, listening to 1st respondent’s speech and reasonable readers, reading the statement on social media, would have done so in the context of the events in relation to which the allegations were made. If corruption was tolerated at a stage, there is no reason why it should be tolerated any further.32

31 2004 (6) SA 329 (SCA) par 65 32 Islamic Unity Convention v Independent Broadcasting Authority and Others, loc cit at par 29 22

[38] In casu the 1st appellant was the successful bidder who succeeded in concluding a lease agreement with the Department of Public Works and Infrastructure, Free State Province (“the Department”). The building made available for occupation was the Mohao (previously Saambou) Building on the corner of Charlotte Maxeke and Aliwal Streets. The Department of Education was supposed to occupy the building from 1 February 2018 as stipulated in the lease agreement signed by the Department as lessee and the 1st appellant as lessor. This is common cause. It is also common cause that the lease agreement provided for monthly rental in the amount of R726 167.38. During an inspection on 30 November 2018, that is 10 months after occupation was supposed to be given, the Department established that the building had been renovated at about 60% to 70% only. It is also common cause that on 1 April 2019 when 1st respondent made her speech, the building was still not available for occupation. If the bid specifications stipulated that the successful bidder was allowed much more time to make its building available for occupation, there would be no reason to sign an agreement of lease with a commencement date of 1 February 2018. The only logical conclusion to be drawn from this is that the bid specifications required bidders to state that their buildings would be available for occupation on 1 February 2018. Insofar as the 1st Appellant was possibly allowed to disregard the bid specifications with approval of the Department, it might constitute an unfairness towards any of the unsuccessful bidders. However, it is not for this court to consider this aspect for purposes of adjudicating the appeal. Fact of the matter is that ex facie the lease agreement, the parties agreed on a commencement date of 1 February 2018 at a rental in excess R700 000.00 per month. 1st Appellant as lessor became entitled in terms of the lease to claim rental from 1 February 2018. 23

More than a year later occupation could not be provided due to renovations being undertaken.

[39] Appellants tried to rely on inadmissible evidence insofar as a letter dated 2 April 2019, annexure “HBM9” to the founding affidavit, apparently issued by M Maqubale, allegedly a spokesperson for the Department, stated that “the building has not yet been signed off for occupation and therefore, no rental payments have been effected to date.” Co-incidentally, this letter is dated a day after the speech and statement complained of by the appellants. The letter has not been signed and neither the author, nor any other responsible person such as the HOD, CFO or MEC of the Department was called upon to state under oath that no monies were channelled from government accounts to 1st appellant or any nominated entity pertaining to rental payments. Another letter, by Ms G Brown - apparently the HOD - is attached as annexure “HBM8”. It is not dated, but was clearly written after the 1st of April 2019. In this letter it is stated that an addendum would be prepared to change the commencement date of the lease to 1 June 2019. Again, the author did not provide appellants with an affidavit to explain why an amendment became necessary only after the 1st respondent’s speech and statement.

[40] It is also common cause that photographs were taken prior to the speech of 1 April 2019, showing that renovations have not been concluded by then and consequently, that the building was not available for occupation. [41] Although the word “clear” has several meanings as is apparent from various dictionaries, it may also mean “incontrovertible.” Synonyms for “incontrovertible” are “irrefutable”, “indisputable”, 24

“unanswerable”, “irrebutable”, “unassailable” and “incontestable”. These are strong words, indicating that a fact cannot be contested or refuted. The Afrikaans translation is “onweerlegbaar”. Quite clearly, the word “clear” used by 1st respondent can never be regarded as “incontrovertible” if the context of the speech is considered. I am not prepared to accept that such a strong meaning needs to be ascribed to the word “clear” in casu. If the 1st respondent’s statement is read in context, it is apparent that she wanted the Zondo Commission to investigate the “clear information” – not clear or incontrovertible evidence - received. She said the following: “We will refer this information, including a copy of the lease agreements and the photos of the unoccupied building still being renovated to the Zondo Commission. Our hope is on this Commission is to summonsed Magashule to come and testify at the Commission.” No investigation would be needed if she was in possession of incontrovertible evidence.

[42] It is apparent from the context of the statement that she expressed the hope that the Zondo Commission would summon Mr Magashule to testify at the commission. In context it could not mean anything else, but that the information obtained indicates to unlawfulness, but that the Zondo Commission would be best placed to deal with the facts. As mentioned earlier, if the whole statement is considered in context, it is apparent that Mr Magashule was the principal target and that 1st respondent as the leader of the DA in the Free State tried to convey that the DA stands for good governance, accountability, anti-corruption and the rule of law. Mr Selfe confirmed this in paragraphs 22 and 27 of his answering affidavit. 25

[43] The court a quo held that the allegations contained in the statement could not be regarded as having held by 1st respondent that she had incontrovertible evidence of the correctness of the facts mentioned. The court went on to say: “The clear impact of the words used is to the effect that the Respondents in question are only in possession of certain information without any final proof thereof, and that they are referring that information for investigation by the Zondo Commission,” the idea being that that commission “will ultimately make a finding.” In the court a quo’s view “this is how reasonable and right thinking people would interpret the statement.” Therefore, it held that the statement itself and the subsequent publication thereof were not defamatory of the appellants. Notwithstanding this finding it proceeded on the basis of assuming that the statement was prima facie defamatory, but on the basis that the respondents had succeeded in rebutting the wrongfulness of the statement.

[44] An appropriate constitutional balance must be established between the right to human dignity on the one hand and freedom of expression on the other. The criticism in the speech and statement was in essence aimed at the former Premier of the Free State Province, Mr Magashule, but it was necessary to refer to the 1st and 2nd appellants, the first being the lessor of a property leased to the government and the 2nd appellant, being a public figure insofar as she is the chairperson of the FDC and sole director of the 1st appellant.

[45] Mr Manchu relied on the judgment of Modiba J in Gqubule-Mbeki supra and submitted that the defence of reasonable publication 26

should not be extended to a non-media party as was done in Manuel33. It is not necessary to consider the different approaches of the two learned judges. Politicians are entitled to ensure that accountability is achieved in a democratic environment. Political critics should be allowed to make robust and frank comments on issues involving the interests of a sustainable democracy. The dicta of Lewis JA and other authorities mentioned above should be taken note of and adhered to. Mr Manchu placed emphasis on the onus cast upon a defendant in a defamation suit to prove his/her defence and therefore that the publication was lawful. In the process he did not consider the fact that appellants had to show a clear right in order to succeed with a final interdict. Unlike as submitted by Mr Manchu, the respondents did not place a bare denial of justification before the court a quo. The objective facts were sufficient to raise concerns and in the light thereof, appellants failed to prove a clear right. The respondents have laid a sustainable foundation before the court a quo to show that their defence is available to be pursued at a proper hearing.

[46] It is trite that discovery of documents as provided for in rule 35 of the Uniform Rules of Court ranks with cross-examination of witnesses as one of the two mightiest engines for the exposure of the truth ever to have been devised.34 In an action for defamation the respondents will be placed in a situation where they may apply for proper discovery in order to, for example, obtain bank statements of the relevant parties, the bid documents and all correspondence between lessor and lessee. It will also be

33 Loc cit par 71 and further 34 The MV Urgup; Owners of the MV Urgup v Western Bulk Carriers (Australia) (Pty) Ltd and others 1999 (3) SA 500 (CPD) at 513 H 27

possible to cross-examine relevant role players to establish their credibility and/or to call whistle-blowers to testify.

[47] I again refer to the Zuma judgment35 in respect of the adjudication of opposed motions when final relief is sought even where the onus is on the respondent. As stated in Zuma, opposed motions for final relief cannot be adjudicated on probabilities. As stated in Herbal Zone and Tau the Supreme Court of Appeal did not hold that a respondent, accused of making defamatory statements or intending to make such statements in opposed motion procedure for an interdict, has to show on a balance of probabilities the defence relied upon to rebut wrongfulness. It is true that a respondent’s mere ipse dixit that he/she has a defence will not be enough. I repeat that Wallis JA confirmed in Herbal Zone that “a sustainable foundation” must be laid under oath that any of the defences relied upon would be available to be pursued by the defendant. In casu, as was the case in Herbal Zone, the appellants sought final interdicts and therefore had to show a clear right and its infringement on a balance of probabilities. Wallis JA continued to state the following36: “There is no need for us to determine whether that defence will succeed at trial. But it is a colourable defence and a factual basis has been laid for it that cannot be rejected out of hand.”

In casu the court a quo held as follows: “Whether the information is true or not, cannot be established on the papers alone and only further investigations will clarify this issue. What is clear, however, is that the Applicant cannot claim a clear right in the circumstances,

35 Footnote 8 36 Herbal Zone at par 39 28

and the application must fail on this point alone.”37 I accept this conclusion as correct based on the authority of Hix Networking, Herbal Zone and Tau.

[48] The defence of “fair comment” is available to a defendant that does not rely on a statement of fact, but that his/her comment (opinion) was or would have been understood as such by the reasonable reader or listener. The comment should be fair, but need not have been impartial or even well-balanced.38 The person relying on the defence must show that the facts commented on was truly stated and that the comment was in the public interest.

[49] It is the respondents’ case in respect of the defence of “fair comment” that “there is no evidence whatsoever to suggest that Kopane MP did not honestly believe that the manner in which applicants concluded the Moaho lease was legally flawed.”39 In my view 1st respondent relied on objective and common cause facts and it cannot be held that such defence would not ultimately succeed during a trial. A sustainable foundation has been laid. She mentioned that the manner in which the lease agreement was structured “enabled” the lessor to purchase and renovate the building. It was not stated as a fact that rental payments were used in this regard. It is also clear that the terms of the lease agreement were never amended prior to her speech, but co-incidentally the Department’s HOD mentioned this in a letter immediately after the speech and published statement.

37 Judgment par 15 38 DA v ANC loc cit at paras 145 – 149 and authorities quoted 39 Par 60.3 p 110 29

[50] I mentioned earlier that appellants failed to make out any case whatsoever to show that the respondents intended to repeat the alleged defamatory statements. I have shown that cases involving an attempt to restrain publication must be approached with caution.40

[51] I agree with the respondents that 2nd appellant cannot seek to commercially benefit from the public purse while being wholly immune from the watchful eye of people acting in the public interest. Also, her company, the 1st appellant, plays an important role in the Free State insofar as it provides accommodation for government institutions. Consequently, also the 1st appellant has exposed itself to scrutiny that would not otherwise be applicable to private entities.

[52] I am satisfied that the court a quo was correct in concluding that the appellants failed to establish a clear right. They did not establish that respondents do not have valid defences pertaining to the alleged defamatory statements relating to them or that they would be irreparably injured if the interdicts applied for were not granted. Clearly, the alleged defamatory statements could have been countered effectively and even more quickly than the urgent application, by refuting them by way of similar publications on social media. Insofar as the criticism of 1st respondent could be seen as political criticism against the former Premier of the Free State Province in particular, the appellants could not escape the attention of 1st respondent insofar as they engage in business with the Free State Government.

40 Hix Networking Technologies v System Publishers (Pty) Ltd and another 1997 (1) SA 391 (AD) at 402 C 30

[53] I briefly mentioned the second requirement for final interdicts, to wit an injury suffered or reasonably apprehended. Once a clear right has not been proven, that is the end of the matter for the applicant. Even if it could be held that a clear right had been established, the court a quo cannot be faulted for finding that the second requirement has not been met. An important factor to consider in casu is that any harm complained of had been done. The statement has been posted and shared on social media. Since then the world of social media has moved on and much more has attracted the attention of the public ever since. If appellants believe that they were caused any harm, they still have the opportunity to claim damages in a defamation action.

[54] The third requirement, the availability of an alternative remedy, has been dealt with appropriately by the court a quo, stating the following:41 “As far as an action for damages is concerned, they allege that that it would be very difficult, if not impossible, to quantify such damages. I do not find this allegation convincing at all. Since the harm alleged is of a financial nature, it should not be difficult to provide a court with financial statements to show the decline in business and income in order to prove a loss as a result of the events. In the premises, there were indeed other suitable forms of relief available to the Applicants.” Insofar as a possible claim by the 2nd appellant in her personal capacity is concerned, a trial court would be placed in a good position, after hearing evidence and a finding in her favour on the merits, to grant damages in the form of contumelia. In that regard her reputation, standing in the community, character and the negative extent of the publication will be taken into consideration in

41 Judgment par 17 31

order to make a just award.

VIII CONCLUSIONS

[55] Turning to the appellants’ grounds of appeal I conclude as follows:

1. Grounds 1 – 3: The court a quo held the statement not to be defamatory. For purposes of adjudicating the appeal, I am prepared to assume that the 1st respondent’s statement was defamatory concerning the appellants.

2. Grounds 4 and 7: Having regard to the judgments in inter alia Tau and Herbal Zone supra it is sufficient to present a sustainable foundation by way of evidence in opposed motion procedure that a defence such as truth and public interest or fair comment is available. Bearing in mind the established common cause and objective facts, I am not prepared to find that the court a quo erred in this regard.

3. Grounds 5 and 6: I have pointed out with reference to inter alia Democratic Alliance v African National Congress & Another42 that it is good for democracy to permit as much open and vigorous discussion of public affairs as possible. In any event the court a quo did not hold that the 1st and 2nd respondents were entitled to rely on a media defence in this regard.43

4. Ground 8; It is reiterated that it was not necessary for the respondents to prove their defence on a balance of

42 Loc cit par 133 43 See paras 11, 13 & 14 of the judgment read that with par 15 where the court a quo referred to political criticism 32

probabilities; bearing in mind the motion procedure that appellants adopted, they failed to prove a clear right.

Grounds 9 and 12: Once a clear right has not been proven, that was the end of the matter for appellants. The court a quo is attacked for not finding that injury was indeed committed or reasonably apprehended and that it was difficult to quantify damages. Appellants did not claim damages and the issue is really whether the second requirement for a final interdict was proven. 1st appellant placed no evidence before the court a quo to show any loss of financial opportunities. It was also not proven that 2nd appellant suffered any injury or that injury was reasonably apprehended. Any claim for damages based on defamation may still be pursued.

5. Grounds 10 and 11: In my view the court a quo cannot be faulted for finding that a suitable alternative remedy existed.

6. Ground 13: The court a quo was correct in finding that the appellants had failed to meet the requirements for a final interdict.

[56] It follows from all the reasons set out herein that the appeal cannot succeed.

IX ORDER 33

[57] Consequently the following order is issued:

The appeal is dismissed with costs.

______JP DAFFUE J I concur

______AF JORDAAN J

[58] I read the judgment of my brother Daffue, J and I am unable to agree with the reasoning as well as the findings in the majority judgment. The pivot around which this matter hinges is a statement made by Ms Patricia Kopane (First respondent) in her capacity as the provincial leader of the Democratic Alliance (second respondent) and its candidate for premier at a media briefing on 1 April 2019 called by the second respondent. The matter came before the court a quo in the ordinary course after it was struck off the urgent roll for lack of urgency.

[59] The aforementioned statement was published on the second respondent’s website, its facebook page and distributed to several media houses. The statement was made a month before National and Provincial elections which were scheduled for May 2019.

[60] The relevant parts of the statement are quoted below: 34

‘…. But there is more: Today we can reveal information pointing to a scheme in which Ace Magashule during his tenure as premier has manipulated the awarding of lease agreements for the offices of government departments to benefit a few close allies and himself. We will report this information to the Zondo Commission, in addition to the dossier we have sent to the commission earlier this year, and which encapsulates the information set out above.

This building on the corner of Charlotte Maxeke and Aliwal Streets in Bloemfontein, formerly the Saambou Building, has been leased to the Department since 1 February 2018 at a monthly rental of R726 167. 36 per month, while it is still being renovated and occupation by the Department is still months away.

We have been informed that this award was made on the insistence of Magashule during his final days in office as premier. The company involved is Mayula Procurement and Property Management (Pty) Ltd and the person behind this company is Ms Hantsi Bhetilda Mayeza or Matseke, the Chairperson of the FDC.

She has in the past been implicated in other scandals involving Magashule and his daughter, relating to both the Vogelfontein Housing Scandal and certain filling station contracts.

The ANC leaders are getting richer and richer than the country they are supposedly governing through corruption and looting of state resources. 35

It is nothing new that Magashule is an incorrigible crook and the DA wants him and his entire cabal in the ANC get locked up for committing these crimes against South African state.”

[61] The appellants took a stance that the statement was false and that it was published to tarnish and destroy the good image of the applicants. The respondents contended that the statements constituted a fair comment and was done in public interest.

[62] The respondents contended that the statement was pointing to the corrupt activities by the former Premier of the Free State (Mr. Magashule) and was not necessarily directed at the appellants. The appellants were mentioned only because they were beneficiaries of the conduct of Mr. Magashule. It was, further, submitted on behalf of the respondents that the remarks done were not defamatory.

[63] The court a quo found that the appellants failed to show that the allegations contained in the statement were untrue and as such cannot claim a clear right to a permanent interdict. It, further, found that the information relating to the lease is not presented as an incontrovertible matter of fact and that it shows that the respondents are in possession of certain information that they intend referring to the Zondo commission for investigation. The court held that owing to the fact that the second appellant is a public figure and the first appellant a business enterprise dealing with government agencies and that the statement was made at the time when the political speeches and electioneering debate were focusing on the need to root out corruption, the appellants could never be spared the attention of critics in the political arena. The 36

court a quo, further, concluded that the publication of the statement was done in the public interest and therefore lawful.

[64] It is common cause that the statement was made during electioneering and on the eve of national and provincial elections while the second respondent was on a campaigning trail. It was made by the first and second respondents as a means to win voter support.

[65] The second applicant is the sole director of the first applicant. The first applicant won a tender to supply office accommodation to the Free State Provincial Government through the Department of Public Works and Infrastructure (The Department). Full details of the tender and the bid document are not before us. Subsequent to its successful bid, the first applicant concluded a lease agreement with the Free State Provincial Government in terms of which it let Moaho building (the building) to the latter at a monthly rental of R726 167.38 with effect from 1 February 2018 (the lease agreement). The building was, at the time of the statement by the respondents, under renovations and not yet occupied.

[66] On 18 December 2018 the HOD of the Department (Ms. Brown) wrote a letter to the appellants bearing the following contents:

RE: RENOVATIONS AT SAMBOU BUILDING TO BE ACCOMMODATED BY THE DEPARTMENT OF EDUCATION.

1. The above matter refers.

2. The Department of Education was supposed to occupy the Saambou Building on 1 February 2018 as stipulated in the lease agreement signed by both parties. (See attached clause 4.1 of the lease agreement)

3. During inspection on 30 November 2018 it was found that the building has only been renovated at about 60 to 70%.

4. The Department did not budget for the rental to continue in the current building as the Department of Education was supposed to take occupation of the Saambou Building in the current financial year.

5. You are hereby requested to provide a project plan that will entail the completion plan with a completion date of the renovations. The completion date will be used to terminate the current lease agreement.

6. Should the committed date of completion not be adhered to any financial losses incurred will be for your account.

7. Your urgent reply will be highly appreciated.

[67] On 09 April 2019 Ms. Brown wrote another letter confirming with the following contents:

RE: BENEFICIAL OCCUPATION OF THE OLD SAAMBOU BUILDING BLOEMFONTEIN TO BE OCCUPIED BY THE DEPARTMENT OF EDUCATION.

1. The above matter refers.

2. It was anticipated that the building would have been handed over and occupied by the 1st of April 2019.

3. Taking the above into consideration, the Department requires that the Beneficial Occupation of one calendar month commence from the 1st of May 2019.

4. The rental payment will therefore be 01 June 2019.

5. An addendum to the lease agreement will be drafted changing Clause 4.1 to reflect:

➢ The Commencement date of 01 June 2019 ending on 30 April 2029.

6. Hope you find the above in order. 38

[68] Attached to the appellant’s founding affidavit is an unsigned letter by the spokesperson of the Department of Public Works and Infrastructure (M Maqubela) which is said to be a press statement released on 02 April by the Department of Public Works. The letter merely stated that the building had not been signed off for occupation and as such no rental had been paid to the landlord. The fine print at the bottom of the letter shows that it was printed from the internet using Google, the internet search engine. The deponent to the second respondent’ s affidavit (Mr. Selfe) responded as follows to paragraph 14 of the founding affidavit, the paragraph dealing with this letter and the relief sought by the appellants:

“Ad para 14

I note the contents of this paragraph. However, for reasons explained, the relief sought against the first and second respondents is contextually inappropriate. The relief seeks to undo past harms. Moreover, the relief sought will be difficult to effectively implement.”

[69] The respondents were notified of the aforementioned letters, they had a chance to deal with them and they did not raise any objection thereto. The other letters are an indication of the status of negotiations of the contract between the appellants and the department.

[70] This matter implicates on the following constitutional rights:

“Human dignity 39

10. Everyone has inherent dignity and the right to have their dignity respected and protected. Freedom of expression 16.1 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. 16.2 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.”

[71] Defamation is described as the wrongful, intentional publication of words or conduct concerning another person which has the effect of injuring his status, good name or reputation. In Khumalo v Holomisa 2002(5) SA 401 (CC) at para 18 the requirements to prove defamation were set out as:

a. wrongfulness, b. intention, c. publication and d. the defamatory words or conduct about the claimant.

In Richard en n’ Ander 1981 (1) SA 1157 (A) at 1167 Jansen JA set out the requirements for the defence of fair comment as being: 1. The statement must be one of comment and not of fact. 2. It must be fair 3. The facts upon which it is based must be true 4. The comment must relate to matters of public interest.

[72] The respondents submitted that the appellants cannot escape public scrutiny and criticism from political parties based on the positions held by the second appellant in public entities. The second appellant is a businesswoman in the property sector who serves as the chairperson of the board of the Free State Development Corporation (a state owned entity). Mr. Selfe, in paragraph 15 of the answering affidavit remarks as follows in relation to the second appellant’s role in the public institutions:

“Therefore she is not just a businesswoman; she is also a public figure who holds public office.”

[73] Serving on the board of public entities does not automatically turn the second appellant into a public office bearer nor does it elevate her into the status of a public figure. The available facts show that the role that the second appellant plays in boards of public entities is a non-executive, non-operational and one of oversight which does not translate into public office. It would be amiss to elevate every individual who does business with government to a status of a public figure without evidence to support such claims.

[74] The applicable legal principles where the applicant alleges that the statement is defamatory were set out in Le Roux and Others v Dey 2011 (3) SA 274 (CC)

[89] Where the plaintiff is content to rely on the proposition that the published statement is defamatory per se, a two-stage enquiry is brought to bear. The first is to establish the ordinary meaning of the statement. The second is whether that meaning is defamatory. In establishing the ordinary meaning, the court is not concerned with the meaning which the maker of the statement intended to convey. Nor is it concerned with the meaning given to it by the persons to whom it was published, whether or not they believed it to be true, or whether or not they then thought less of the plaintiff. The test to be applied is an objective one. In 41

accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test, it is accepted that the reasonable reader would understand the statement in its context and that he or she would have had regard not only to what is expressly stated but also to what is implied.

[90] The reasonable reader or observer is thus a legal construct of an individual utilised by the court to establish meaning. Because the test is objective, a court may not hear evidence of the sense in which the statement was understood by the actual reader or observer of the statement or publication in question.

[75] The appellants have the onus to show that the impugned statement was made by the respondents and that it was defamatory. Once they have discharged the aforementioned onus, there is a presumption against the respondent that the statement was wrongful and intentional unless the respondents show that the defences aforementioned are available to them.

[76] The media statement was used as a tool to inform the electorate of the alleged corrupt activities within the Free State government with the final objective of influencing the outcome of the elections. The respondents reported that they had clear information (irrefutable information) that the lease agreement was designed to enable the appellants to purchase the building and renovate it while using rental from the government. The reasonable reader of ordinary intelligence would have understood the statement to mean that the appellants, due to a corrupt relationship existing between the first appellant and Mr. Magashule, unlawfully secured the lease agreement and continued to receive monies in excess of R700 000. 00 for a building that the department and tax payers reaped no benefit from. The message sent out was simply that the appellants are corrupt and benefitted from a corrupt deal. 42

[77] The role played by politicians and political parties to keep the public informed of the wrongs committed by public officials cannot be underestimated. It remains an indispensable prerequisite for the establishment and strengthening of democracy. The information disseminated to the public must be truthful and supported with facts. Opposition political parties owe it to the public to give them correct and factual information to allow the public to freely exercise their right to vote. It is clear that the information upon which the statement was based was not verified and not based on true facts.

[78] The respondents decry the process used by the appellants to approach the court for the relief they sought. Mr. Selfe says the following in paragraph 60.2 of the answering affidavit:

“I note that the question whether the statements are true plays a central question in determination whether there has been (unjustifiable) defamation. Yet, in the present this question cannot be properly dealt with. The application has been on an extraordinarily urgent basis. The DA has not yet had reasonable opportunity to muster all the evidence necessary to illustrate the truthfulness of the Kopane MP’s allegations about the applicants’ questionable dealings in relation to the Moaho lease. Indeed, urgent motion proceedings are unsuitable for this sort of an inquiry. “

[79] The matter came before the court a quo in the ordinary course and papers were fully exchanged before the hearing. The respondents failed to present the clear information that would point out to how the appellants received rental that enabled them to purchase and renovate the building to the court a quo even after the matter was struck off the roll and re-enrolled. The matter was only heard on 27 June 2019, two months from the date of the dismissal of the urgent application and after parties had an opportunity to fully ventilate 43

issues. The statement was presented as factual truth and yet the respondents failed to back it up with tangible evidence. The respondents have not presented any evidence showing the truthfulness of the statement. All they were able to show was that there was a lease agreement which is not denied by the appellants. The appellants were clear that they do not seek any monetary relief.

[80] When dealing with defamation cases, it is important to strike a healthy balance between the right to human dignity and the right to freedom of expression. In Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994 (2) SA (1) (A) at 25 B – E the court remarked as follows:

'I agree, and I firmly believe, that freedom of expression and of the press are potent and indispensable instruments for the creation and maintenance of a democratic society, but it is trite that such freedom is not, and cannot be permitted to be, totally unrestrained. The law does not allow the unjustified savaging of an individual's reputation. The right of free expression enjoyed by all persons, including the press, must yield to the individual's right, which is just as important, not to be unlawfully defamed. I emphasise the word ''unlawfully'' for, in striving to achieve an equitable balance between the right to speak your mind and the right not to be harmed by what another says about you, the law has devised a number of defences, such as fair comment, justification (ie truth and public benefit) and privilege, which if successfully invoked render lawful the publication of matter which is prima facie defamatory.'

[81] In The Citizen 1978 (Pty) Ltd and others v Mc Bride (Johnstone and Others as Amici Curiae) 2011 (4) SA 191 (CC) at par. 143 the following was said:

“143] But freedom of expression must be construed in light of the other values enshrined in our Constitution, in particular human dignity. The Constitution proclaims human dignity to be one of the foundational values of our constitutional democracy. Human dignity is specifically mentioned in section 1 of the Constitution in order to contradict our racist past. For this reason, the Constitution holds human dignity up as not only a human right that is given constitutional recognition, as with freedom of 44

expression, but also as a fundamental value upon which the legitimacy of the sovereign state is based. The Republic was founded on the value of human dignity, and failure to uphold that value is both a violation of a constitutional right and a threat to a bedrock principle that underpins the legitimacy of the state. “

[82] In Khumalo v Holomisa 2002 (5) SA 401 CC at par 27 -28 the court remarked as follows:

The value of human dignity in our Constitution is not only concerned with an individual's sense of selfworth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of selfworth as well as the public's estimation of the worth or value of an individual. It should also be noted that there is a close link between human dignity and privacy in our constitutional order. The right to privacy, entrenched in s 14 of the Constitution, recognises that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion. This right serves to foster human dignity. No sharp lines then can be drawn between reputation, dignitas and privacy in giving effect to the value of human dignity in our Constitution ……

[28] The law of defamation seeks to protect the legitimate interest individuals have in their reputation. To this end, therefore, it is one of the aspects of our law which supports the protection of C the value of human dignity. When considering the constitutionality of the law of defamation, therefore, we need to ask whether an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other. 'Horizontal application' of s16

[83] Freedom of expression is regarded as one of the core rights in democracy. It creates a collection of ideas essential for citizens to participate in the democratic process and it helps promote search for truth. This right is not absolute. It cannot be elevated above all other rights. The right to human dignity must take precedence in the circumstances of the current matter.

[84] The law relating to the granting of a final interdict is trite. Wallis JA had the following to say when dealing with a final interdict in Hotz And Others v University Of Cape Town 2017 (2) SA 485 at par. 29

[29] The law in regard to the grant of a final interdict is settled. An applicant for such an order must show a clear right; an injury actually committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy. Once the applicant has established the three requisite elements for the grant of an interdict, the scope, if any, for refusing relief is limited. There is no general discretion to refuse relief. That is a logical corollary of the court holding that the applicant has suffered an injury or has a reasonable apprehension of injury and that there is no similar protection against that injury by way of another ordinary remedy. In those circumstances, were the court to withhold an interdict, that would deny the injured party a remedy for their injury, a result inconsistent with the constitutionally protected right of access to courts for the resolution of disputes, and potentially infringe the rights of security of the person enjoyed by students, staff and other persons on the campus.

[85] The appellants showed that they were defamed and have a right to the interdict. The second respondent has a right to protect her dignity and reputation which she alleges has been infringed by dissemination of information injurious to her dignity. The information published on social media platforms stays forever or for years unless removed contrary to the argument by the respondents that the appellants seek to undo the damage that has been done. The information disseminated through the internet is like a print engraved on iron and has a potential to haunt the injured person for years after it was disseminated and for as long as the internet and the relevant social media sites exist. The harm on the second appellant’ s dignity and reputation is ongoing and will persist unless the information is deleted.

[86] Nothing precludes the appellants from approaching court in the manner that they did. Closing the doors on the appellants would have been to deny them access to court and their right to gain relief for the injury they suffered. There is no alternative relief available as the respondents refused to withdraw the statement and delete the statement on their website and all social media platforms when they were requested to do so in a letter written on behalf of the appellants before application was launched. For as long as the statement remains on the respondents’ website and face book page, there is a possibility that the appellants would suffer financial harm.

[87] In the circumstances, I would have found in favour of the appellants.

______NM MBHELE, ADJP

On behalf of 1st & 2nd Appellants: Adv T Manchu & S Alcock Instructed by: ZIKHALI INC c/o MOROKA ATTORNEYS Bloemfontein

On behalf of 1st & 2nd respondents: Adv HJ Benade Instructed by: SYMINGTON & DE KOK 47

Bloemfontein