Chairperson of the Accounting Authority of the Construction Education and Training Authority and Others v Buhle and Another (2015/16059) [2015] ZAGPJHC 209 (16 September 2015)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2015/16059

In the matter between:

THE CHAIRPERSON OF THE ACCOUNTING AUTHORITY OF

THE CONSTRUCTION EDUCATION AND TRAINING AUTHORITY First

Applicant

THE ACCOUNTING AUTHORITY OF THE CONSTRUCTION

EDUCATION AND TRAINING AUTHORITY Second

Applicant

THE CONSTRUCTION EDUCATION AND TRAINING AUTHORITY Third

Applicant

SONJA PILUSA Fourth

Applicant

THE SERVICES SECTOR EDUCATION & TRAINING AUTHORITY Fifth

Applicant

THE SERVICES SECTOR EDUCATION AND TRAINING AUTHORITY Sixth Applicant

THEMBA MHAMBI (In his personal capacity) Seventh

Applicant

ROBERT THIBELA Eighth

Applicant

NDUMISO PEDRO VOYI Ninth

Applicant

NDUMISO VOYI INCORPORATED Tenth

Applicant

JSK CONSULTING CC Eleventh

Applicant

AFRICAWIDE CONSULTING (PTY) LIMITED Twelfth

Applicant

GEORGE MAMAKOBA PETA Thirteenth

Applicant

CANTON TRADING 273 (PTY) LIMITED Fourteenth

Applicant

V AND V MANAGEMENT AND PROJECTS CC Fifteenth

Applicant

MAHLOLO CONSTRUCTION (PTY) LIMITED Sixteenth

Applicant

NOMAKU TRADERS CC Seventeenth

Applicant

PMA HOLDINGS (PTY) LIMITED Eighteenth

Applicant

KALWAYI NPO Nineteenth

Applicant

and

NAOMI BUHLE (pseudonym) First

Respondent

LOYISO PETER (pseudonym) Second

Respondent

J U D G M E N T

LAMONT, J:

[1] The nineteen applicants sue the two respondents. The two respondents are referred to by pseudonyms as their names and

identities are unknown to the applicants.

[2] On 16th April 2015 an electronic message incorporating a document was widely published to a range of individuals including members of the second respondent personnel in the Department of Higher Education and Training Authority, the former chairperson of the Accounting

Authority of the CETA, the Public Protector and various employees of the CETA. The applicants allege that the document both in the main document and the annexure contains glaringly false fabricated and concocted allegations of gross misconduct of the Chief Executive Officer of the 3rd applicant. In addition serious allegations were made with reference to other specifically identified individuals, entities and institutions all of whom form part of the body of applicants. It is alleged that the statements in the document are patently false, fabricated and malicious, scandalous and defamatory against all of the individuals, institutions and entities. The document and its attachment were circulated widely after 16th April 2015. On 21st April 2015 another electronic email together with the same document annexed was disseminated to various key-stakeholders of the 3rd applicant in the construction industry.

[3] The applicants instituted the proceedings by way of urgency seeking judicial redress for the damage done to their names, status,

character and reputation.

[4] The document circulated on 16th April 2015 came from a person who bears the name of the first respondent the email address being “buhle2015@gmail.com”. The email circulated on 21st April 2015 came from a person named as the second respondent using an email address “peterloyiso@yahoo.com”.

[5] The applicants alleged that it is impossible to identify who the people are who disseminated the emails. The people are unknown to them.

[6] In the documents the authors set out a number of allegations relating to the fourth applicant including that she is a dictated who abuses employees and makes unlawful threats towards them, that they are afraid to expose the extent of her misconduct and that there are a number of financial improprieties.

[7] The applicants set out the falsity of all of those allegations.

[8] The purpose of the documents which were disseminated was according to the documents themselves that the fourth applicant be put on special leave pending an investigation and that the fourth applicant be excluded from making contact with staff of the 3rd applicant as this would be grounds for intimidation and witness bribery. The documents further contain a statement that unless

the demand is adhered to the matters contained within the documents would, together with the relevant evidence be published in the media. The applicants approached the court as a matter of urgency seeking a series of interdicts, declarators and an order also “warning, discouraging and dissuading”.

[9] As the respondents were unknown to the applicants they sought and obtained leave to serve upon them by way of substituted service. They did so by way of publication as directed and also by way of delivery to the email addresses from which the documents emanated.

[10] Currently before me the applicants have further refined the relief which they seek into a set of declarators.

[11] Those declarators can be identified as being:

11.1 A declarator that the email emanating from the first respondent contains false, malicious and incorrect information against the applicants then is set out each particular fact which is contested and which constitutes the false, malicious and incorrect information;

11.2 A declarator that that document has damaged the names, characters and reputations of the applicants;

11.3 A declarator that the republication by the second respondent on 21st April 2015 further damaged the names, characters and reputations of the applicants.

[12] It was submitted that the entities who comprise of the applicants and the individuals occupy positions and carry on activities which are required to be performed by people of utmost good character and reputation. Each of these persons has an interest in maintaining the reputation they have created over the period they have been performing the work and activities which they perform.

They are entitled to carry on their lives, and established reputation, unsullied and untarnished by the unknown respondents.

[13] The provisions of section 21(1)(c) of the Superior Courts Act No 10 of 2013 (the Act) provides.

“21 (1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power-

(c) in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.”

[14] The section of the Act in question provides for a two-stage inquiry namely whether or not the applicant is a person interested in a right and secondly if so whether the case is a proper one for the exercise of the discretion conferred upon the court. See Durban City Council v Association of Building Societies 1942 AD 27 at 32; Cordiant Trading CC v Daimler-Chrysler Financial Services 2005 (6) SA 205 (SCA) para [15] and following; Eye of Africa Developments (Pty) Ltd v Shear 2010 (2) SA 186 (SCA) para [30].

[15] It appears to me that all the applicants are persons who have an interest in protecting their reputation and position in society and that appropriate action would lie in their hands to protect this interest.

[16] Accordingly the first step of the inquiry must be resolved in favour of the applicants.

[17] I have deliberately dealt with this interest in a broad sense and not as set out in the notice of motion as amended as it is not necessary for me to decide whether the applicants are entitled to orders in relation to each particular fact which they claim constitutes a delict against them.

[18] It remains to consider whether or not this is an appropriate case for the order sought.

[19] Although the existence of a dispute between parties is not a prerequisite, there must be interested parties on whom the declaratory order would be binding. See: Letseng Diamonds Limited v JCI Limited and Others 2009 (4) SA 58 at 68 and the cases there cited. In the event of a favourable finding for the applicant the judgment of the court should have a practical effect in that both the applicant and respondent will be bound thereby and legal certainty will have been obtained. See Chairman of the Board of the Sanlam Pensioenfonds (Kantoorpersoneel) v Registrar of Pension Funds 2007 (3) SA 41 (T) at 53. See also Muldersdrift Sustainable Development Forum v Mogale City (20424/14) [2015] ZASCA 118 (11 September 2015)

[20] In the present matter an order made against an unknown party has no effect against such party. It is unenforceable at the instance of the applicant and will not create a position of res judicata between the parties. No person gains any advantage or benefit from the order which is made. It is valueless and unenforceable. It was submitted that the order had value in that the applicant could publish it and indicate to the unknown respondents that it had as it were received an imprimatur from the court sanctioning its decision and vindicating its rights.

[21] In my view the purpose of litigation and orders of court is not to achieve this purpose.

[22] I am accordingly of the view that the applicant has failed to establish that I should exercise my discretion in their favour and grant them the relief they seek.

[23] I would thank counsel for the applicant who produced cogent and able argument which has assisted me greatly in reaching the decision I have.

[24] I accordingly make the following order:

Application dismissed.

__________________________________________

C G LAMONT

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Counsel for Applicants : Adv. N Arendse SC

Attorney for Applicants : Ndumiso Voyi Incorporated

Date of hearing

: 2 September 2015

Date of judgment

: 16 September 2015