The South African Constitutional Court, in the case of United Democratic Movement and Another v Lebashe Investment Group (Pty) Limited and Others, delivered an important judgment regarding:
- whether the Supreme Court of Appeal ("SCA") has the power to interfere with a High Court decision granting leave to appeal to the SCA;
- whether interim interdicts are appealable;
- whether on the facts of this case, the High Court should have granted the interim interdict, which determination involved a balancing of the constitutional rights of dignity and freedom of expression.
Bantu Holomisa had, on 31 May 2018, addressed a letter to President Ramaphosa (the "President"). The letter was headed "The Public Investment Corporation, The Government Employee Pension Fund and Suspected Corruption; a Scandal Bigger than the Gupta-family's State Capture". On 26 June 2018, another letter (the "letter") headed "Unmasking Harith and Lebashe's alleged fleecing of the Public Investment Corporation" was addressed to the President.
Mr Holomisa circulated a copy of the letter on the official website of the UDM and on his personal Twitter account. The letter was read by a number of the members of the public and was largely commented on. On 30 June 2018, Mr Holomisa was interviewed by the SABC during which he stated that he would not back down and retract statements he made in the letter to the President regarding dodgy deals between the Public Investment Corporation ("PIC") and Lebashe and Harith General Partners.
On 1 July 2018, Mr Holomisa published another defamatory statement on social media labelling Warren Wheatley (the Chief Investment Officer of Lebashe), Tshepo Mahloele (the Chief Executive Officer of Lebashe and Harith) and Jabu Moleketi (the former Deputy Minister of Finance and currently a non-executive director of Lebashe and the Chairman of Harith) as "trusted indunas" and "hyenas" of the President and the PIC.
Consequently, the respondents approached the High Court for an interdict to restrain the UDM and Mr Holomisa from making or repeating any defamatory allegations pending the institution of an action for damages for defamation and injuria.
In his replying affidavit, Mr Holomisa emphasised that as a member of Parliament and leader of an opposition party, he was under a special duty to take steps to ensure that corruption was duly investigated. Mr Holomisa stated that he discharged that duty by referring allegations of corruption and conflicts of interest to the President. He contended that he should not be gagged from making these allegations in the discharge of his duties as a public representative.
He also argued that members of the public were entitled to the information because the Constitution encompasses a duty to act transparently and to promote accountability where public funds are involved. Mr Holomisa also contended that the public was entitled to information by virtue of the Constitution, which provided that the right to freedom of expression included freedom to receive or impart information or ideas.
In addition, Mr Holomisa argued that if an interim interdict was granted against him, it would infringe the rights of the public as enshrined in section 16 of the Constitution and his political rights enshrined in section 19 of the Constitution.
The High Court did not agree with these arguments and granted an interim interdict against the UDM and Mr Holomisa, pending the determination of an action for damages for defamation. The High Court ordered the UDM and Mr Holomisa to cease and desist from making or repeating the allegations against the respondents or from defaming them any further. Mr Holomisa was also directed to remove and delete the letter from the UDM's website and from his Twitter account.
The High Court ruled that the UDM and Mr Holomisa failed to show that the information contained in the letter was true and in the public interest. The UDM and Mr Holomisa applied for leave to appeal the High Court order and the High Court granted leave to appeal to the SCA.
When the matter came before the SCA, the application was struck off the roll on the basis that the interdict was interim in nature and the SCA therefore found that it was not appealable.
The UDM and Mr Holomisa then applied for leave to appeal to the Constitutional Court. When they did so, they contended that the SCA was not entitled to second-guess the decision of the High Court granting them leave to appeal.
The Constitutional Court noted that the matter raised issues of a constitutional nature and arguable points of law of general public importance, such as whether the SCA was correct to hold that the interim interdict was not appealable. Accordingly, the UDM and Mr Holomisa were granted leave to appeal by the Constitutional Court.
The Constitutional Court concluded that the SCA is not bound by the lower courts' assessment on whether leave to appeal should be granted and the SCA is entitled to reach its own conclusion on this question. Consequently, the court found that the High Court's granting of leave to appeal did not bind the SCA, but the Constitutional Court disagreed with the SCA that the interim interdict on the facts was not appealable.
The Constitutional Court emphasised that an interim order may be appealable even if it is not final in effect, is not definitive of the rights of the parties and it does not have an effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. The Constitutional Court reiterated that there was no checklist of requirements but rather that certain considerations need to be weighed up, including:
- aspects of convenience;
- the time at which the issue is considered;
- the avoidance of piecemeal appeals; and
- the attainment of justice.
The interests of justice now plays an important role in determining whether an interim order can be appealed against. The Constitutional Court concluded that the SCA erred in finding that the interests of justice did not render the interim interdict appealable. An interdict restricting free speech constitutes a grave intrusion on a constitutional right. The Constitutional Court also quoted with approval the SCA judgment in Health Professions Council of South Africa v Emergency Medical Supplies and Training CC, in which the SCA held that where a litigant may suffer prejudice or injustice if an order or judgment is left to stand, leave to appeal should be granted.
The Constitutional Court pointed out that an interdict is an order made by a court prohibiting or compelling an act for the purpose of protecting a legally enforceable right which is threatened or to protect against anticipated harm. Interdicts may be temporary or final. A temporary interdict (interim interdict) pending an action is an extraordinary remedy within the discretion of the court. An interdict is "not a remedy for the past invasion of rights: it is concerned with the present and the future". The past invasion of rights should be addressed by an action for damages. An interdict is appropriate only when future injury is feared.
The Constitutional Court also highlighted that in democratic societies, the law of defamation looks to balance freedom of speech and the protection of reputation or a good name. The law does not allow "the unjustified savaging of an individual's reputation. The right of freedom of expression must sometimes yield to the individual's right not to be defamed. In striving to achieve an equitable balance between the right to speak your mind and the obligation not to harm or injure someone else's name or reputation, the law has devised defences such as fair comment, and truth and in the public interest."
In South African law, a plaintiff in a defamation action for damages must establish that a defamatory statement about the plaintiff has been published. If the publication is established, the court presumes that the publication was with an intent to injure, with knowledge of wrongfulness and that it was unlawful.
Mr Holomisa admitted publication of defamatory statements and therefore the onus was on him to show that the publication constituted fair comment or that the statements were true and in the public interest. A factual foundation for a defence of fair comment or truth and in the public interest must emerge in evidence. The mere say-so of a defendant who alleges a defence should not be accepted at face value. The facts on which the defences are based must be analysed to determine its weight and whether or not it is established that the statement was true and in the public interest.
The Constitutional Court found that Mr Holomisa's allegations in themselves did not come close to establishing the truth of the defamatory material regarding corruption, double-dipping, fraud, theft and conflict of interest. The Constitutional Court also held that the mere fact that the respondents had received funding from the PIC was not sufficient to prove that such funding had been corruptly received. The UDM and Mr Holomisa did not discharge the burden of proof required in order to establish a defence of truth and in the public interest.
The Constitutional Court highlighted that there must be evidence of truth to a defamatory statement. It found that the UDM and Mr Holomisa did not provide any shred of evidence of actual misconduct, corruption and self-dealing. The court concluded that the UDM and Mr Holomisa were reckless in failing to ascertain whether the publication of the defamatory information in question would injure the dignity and reputation of the respondents. The Constitutional Court stated that the UDM and Mr Holomisa "were not entitled to wantonly defame the respondents under the pretext that they were executing a constitutional duty." It was not for the public benefit to publish unverified defamatory information.
The Constitutional Court held that when a public figure defames a member of the public, while admitting that they do not know the truth of what they say, their right to freedom of expression may justifiably be limited.
The Constitutional Court highlighted that the UDM and Mr Holomisa's conveying of information about alleged corruption and conflict of interests to the President for investigation was appropriate and lawful, but the publication of the defamatory statement elsewhere, before the verification and confirmation of the alleged corruption and conflict of interests made the UDM and Mr Holomisa's conduct wrongful.
The Constitutional Court also stated that when freedom of expression conflicts with other rights, a court must carefully balance the conflicting rights of the parties proportionally, with a view to ensuring protection of the rights of both parties. This requires a balancing exercise between the competing rights or interests of the parties.
The Constitutional Court ultimately concluded that the High Court was correct in granting the interim interdict in favour of the respondents and against the UDM and Mr Holomisa. Consequently, the Constitutional Court dismissed Mr Holomisa's and the UDM's appeal against the Gauteng High Court's order with the costs of two counsel.
For those that regularly deal with interim interdicts and provide advice in regard to defamation matters, this case is a must-read.
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