Government Employees Medical Scheme and Another v Mokoditoa and Another (78753/19) [2020] ZAGPPHC 583 (12 October 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 78753/19

In the matter between:

THE GOVERNMENT EMPLOYEES MEDICAL SCHEME

First Applicant

DR GUNVANT GOOLAB

Second Applicant

DR BOJOSI OLEHILE STANLEY MOLOABI

Third Applicant

MPASHA ISHMAEL MOGAPI

Fourth Applicant

and

ALFRED MOKODITOA

First Respondent

NTEBENG MOKODITOA

Second Respondent

Delivered: Due to the Covid-19 pandemic, this judgment was handed down electronically by circulation to the parties’ representatives

by email and will be released to the court library. The date and time for hand-down is deemed to be 10h00 on 12 October 2020.

JUDGMENT

RANCHOD, J

[1] In this matter, I delivered judgment on 27 November 2019, following an urgent application by the applicants seeking an order that the respondents be interdicted from defaming the applicants. The order was granted.

[2] The respondents applied for leave to appeal which I refused in a judgment I handed down on 14 July 2020. They have now petitioned the Supreme Court of Appeal (the SCA) on 13 August 2020. I should mention that they had also, at the application for leave to appeal, sought my recusal and that the application for leave to appeal be heard by a Full Court of this Division of the High Court. However, at the hearing they abandoned the application for my recusal.

[3] The applicants have now applied for my order of 27 November 2019 to be executable pending the outcome of the petition by the respondents to the SCA. The application is in terms of sections 18(1) and (3) of the Superior Courts Act 10 of 2013 (the Act).

[4] The respondents did not file their answering affidavit timeously in this application and sought condonation for its late filing. The application was granted.

[5] However, together with their answering affidavit the Mokoditoas also filed a counter-application once again seeking my recusal - this time from hearing this application.

[6] I deemed it appropriate that the recusal application be dealt with first and, after hearing the parties, dismissed it together with a punitive costs order on the attorney and client scale including the costs of one counsel after delivering a short ex tempore judgment. I dismissed it, inter alia, on the basis that the grounds relied upon for my recusal had no merit and in fact were insulting and derogatory. They, in fact, bordered o, if not actually so, being defamatory of me.

[7] The s18(3) application was dealt with thereafter and I reserved judgment.

[8] I deal, now, with the s18 application.

[9] When a court order is the subject of an application for leave to appeal or appeal to the appropriate higher court, the order is suspended pending the outcome of the application or petition. However, s18 of the Act provides that on application, a party may apply for the execution of the order pending the outcome of the application for leave to appeal or appeal. Sub-sections 18(1) and (3) provide:

’18. Suspension of decision pending appeal

(1) Subject to subsections (2) and (3), and unless the court under exceptional

circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal, is suspended pending the decision of the application or appeal.

…

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.’

[10] It is apparent that the sub-sections contain three requirements:

a. there must be exceptional circumstances;

b. the applicant must prove on a balance of probabilities that he or

she will suffer irreparable harm if the court does not so order; and

c. the applicant must prove on a balance of probabilities that the other party will not suffer irreparable harm if the court so orders.

[11] In Ntlemeza v Helen Suzman Foundation[1] it was held by the SCA that the court’s power in terms of s18, to reverse the automatic suspension of a decision, is not dependent on that decision being subject to an application for leave to appeal or an appeal. It was held further that a court charged with the adjudication of an application for an execution order would be astute to avoid a multiplicity of applications.

[12] The order that I handed down on 27 November 2019 concerned an application to interdict the respondents from defaming the applicants.

[13] The applicants say the first respondent, Mr Mokoditoa has, in contravention of the order I gave, continued to defame them and a contempt of court application succeeded before Mngqibisa-Thusi J when the learned Judge made the following order on 16 March 2020:

‘[25] In the result the following order is made:

1. Non-compliance with the rules is condoned.

2. The first respondent, Mr Alfred Mokoditoa, is declared to be in contempt of court order of 27 November 2019 under case number 78753/19.

3. The first respondent is directed to immediately purge all tweets on his Twitter account (s) which may directly or indirectly relate to GEMS or to any of GEMS’s current or former employees and to comply with the order of Judge Ranchod.

4. The first respondent is committed to a period of one month’s imprisonment in the event of failing to immediately comply with paragraph 3 of this order.

5. In the event of the order in paragraph 4 above becoming effective, the Registrar of this court is directed to issue a warrant of arrest in respect of the first respondent, which warrant shall be effective 15 days from date of this order.

6. The first respondent is ordered to pay the costs of this application on an attorney and client scale.’

[14] The applicants say despite having been found guilty of contempt of court, Mr Mokoditoa has continued unabatedly to publish defamatory statements about them. I highlight several from the founding affidavit in the present application where the deponent says:

14.1 17 March 2020: First Respondent sends threatening email to

Applicants’ attorney: “Hey Anita: ROUND 2 WILL BE COMING SOON!!!”[2]

14.2 17 March 2020: First Respondent sends another threatening

email to Applicants’ attorney: “Hey Anita: ROUND 3 LOADING….”[3]

14.3 19 March 2020: First Respondent publishes defamatory

“Urgent Media Release” prepared by his counsel.[4]

14.4 23 March 2020: First Respondent publishes another

defamatory “Urgent Media Release” prepared by his counsel.[5]

14.5 31 March 2020 First Respondent continues with his

to 29 April 2020: rampage on Twitter and publishes no less than 242 defamatory Tweets alleging incompetence, violation of the Constitution, not fit and proper, corrupt CMS, under threat by MR Mogapi of GEMS, racism, etc.[6]

[15] I turn then, to the requirements set out in s18(3).

Exceptional Circumstances

[16] In Incubeta[7], Sutherland J stated as follows in relation to the requirement of exceptional circumstances:

‘Necessarily, in my view, exceptionality must be fact-specific. The circumstances which are or may be exceptional must be derived from the actual predicaments in which the given litigants find themselves.’

[17] Incubeta was similarly concerned with an interdict, albeit in the context of an agreement in restraint of trade. The court granted relief in terms of s18. It found that if the order was not put into operation, the interdictory relief would have been a hollow victory

regardless of the outcome of the appeal as the period of restraint would have elapsed by the time the outcome of the appeal was

determined – whatever that outcome may have been.

[18] The facts in this matter before me are clear. Mr Mokoditoa has continued to publish defamatory statements concerning the applicants – this even after the contempt of court order was granted. It renders, in my view, the circumstances to be exceptional. The publication of the defamatory statements is to an exceptionally large audience (some 200 email recipients and a large number on Twitter).

Irreparable harm to the applicants

[19] The irreparable harm to the applicants is self-evident where continual defamatory statements are made about them. In Mogale City Municipality[8] it was held that the harm of a refusal to execute would not be offset by a highly speculative delictual claim for damages. The court said further that the core meaning of the concept of irreparable harm was the irretrievable loss of what the litigant was entitled to under the court order. In casu, the respondents, by their own admission, are impecunious.

Irreparable harm to the respondents

[20] There can be no conceivable harm to the respondents if the order is executed. They have admitted making defamatory statements about the applicants but argued that they were justified in doing so[9]. In any event, in the order that I made in the main application I added a proviso in paragraph 2 to the effect that the interdict did not prevent the respondents from pursuing their grievances through the appropriate channels in a lawful manner. Execution of the order restraining the respondents from defaming the applicants cannot cause any irreparable harm to them.

Prospects of success in the appeal

[21] In University of the Free State[10] it was held that prospects of success in the appeal remain a relevant consideration in deciding whether or not to grant relief in terms of s18 of the Act. I have already stated, in the judgment dismissing the application for leave to appeal that in my view there are no reasonable prospects of success on appeal.

[22] In the result, I make the following order:

1. In terms of s18(1) and (3) of the Superior Courts Act10 of 2013, it is ordered that the judgment of this Court in case number 2019/78753 and dated 25 November 2019 and handed down on 27 November 2019, shall

be of full operation and shall be executable pending any application for leave to appeal or any appeal against such judgment.

2. The first respondent is ordered to pay the costs of this application including the costs of two counsel where so employed.

RANCHOD, J

JUDGE OF THE HIGH COURT

Appearances:

Appearance for applicants: Adv A Bava SC & Adv E Kromhout

Instructed by Gildenhuys Malatji Inc

164 Totius Street

Groenkloof

Pretoria

Appearance for respondents: Adv M Kufa & Adv N Moropene

Instructed by Machaba Attorneys

c/o Seima Attorneys

98 Doreen Street

Oma Office Park

Colbyn, Hatfield

[1] 2017 (5) SA 402 (SCA) at 413-414, paras [29] – [31].

[2] Founding affidavit para 25.

[3] Founding affidavit para 27.

[4] Founding affidavit paras 29 – 30.

[5] Founding affidavit para 42.

[6] Founding affidavit para 46.

[7] Incubeta Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189 (GJ).

[8] Mogale City Municipality and Others v Fidelity Security Services 2017 (4) SA 516 (GJ) at paras [27] – [30].

[9] I rejected this argument in my judgment in the main application.

[10] University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA) at paras [14] – [15].