Khunou v Makgatlha and Another (UM121/2021) [2021] ZANWHC 35 (24 June 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

CASE NO: UM121/2021

In the matter between:

MPHO

ELIAS

KHUNOU

APPLICANT

and

ELLA

SINA

MAKGATLHA

1ST RESPONDENT

MR

GOMOLEMO

KEKANA

2ND RESPONDENT

JUDGMENT

DJAJE J

[1] This is an urgent application which was initially set down for 8 June 2021. The second respondent did not oppose the application. On that day the first respondent appeared in person applied for a postponement to get legal representation. The application was postponed to 11 June 2021 to afford the first respondent to get legal representation. On 11 June 2021 Advocate Madumise appeared on behalf of the first respondent. However the attorneys who acted on behalf of the first respondent had not filed a notice of instatement as attorneys of record. There was an application for the matter to be postponed again to enable the attorneys to file the notice of appointment as attorneys of record. Another reason advanced for a postponement was that the first respondent had deposed to and filed an answering affidavit, although she had termed it ‘replying affidavit’ on her own and counsel needed to fully consult and possibly prepare another affidavit or argue on the one filed by the first respondent. This was a last postponement of the matter to 17 June 2021. In the meantime an order was made against the second respondent to have the Domestic Violence application pending in the Magistrates’ Court enrolled and finalised.

[2] The application was argued on 17 June 2021 with the first respondent appearing in person and Adv Labuschagne for the applicant. At the commencement of the proceedings the first respondent indicated that she no longer needed the services of counsel and would proceed to argue the matter herself. At that time she had filed an answering affidavit together with a condonation application for the late filing of the notice to oppose. There was no opposition to the condonation application by the applicant. Condonation for the late filing of the notice to oppose was granted as there was no prejudice suffered by the applicant due to the delay.

[3] As indicated above this is an urgent application and the issue of urgency was argued together with the merits of the matter. The relief sought by the applicant in the notice of motion was as follows:

“1. That the forms and service provided for in the Rules of Court be dispensed with, that the applicant’s non-compliance with same be condoned, and that this application be enrolled, heard and determined as one of urgency as contemplated by Rule 6(12) of the Rules of Court;

2. that the first respondent be and is hereby interdicted and/or restrained from defaming the applicant;

3. (alternatively to prayer 2) that the first respondent be and is hereby interdicted and/or restrained from defaming the applicant, pending the adjudication and determination of action proceedings to be instituted by the applicant in this Court within 30 (thirty days) from the date of service of this order;

4. that the order in prayer 3 shall operate as an interim order and/or interdict with immediate effect;

5. that should the first respondent persist and/or continue in defaming the applicant, following the granting of prayers 2or 3 (as the case may be), that the applicant be and is hereby authorised to approach this Court (be it the Urgent Court or the Opposed Motion Court) on the same papers (duly supplemented) for the appropriate relief;

6. that the time periods set out in this application, as against the second respondent, be and are hereby condoned in terms of Rule 6(13) of the Rules of Court;

7. that the second respondent be and is hereby directed and/or compelled to enrol and dispose of the application for a protection order, instituted by the first respondent against the applicant in terms of the Domestic Violence Act no.116 of 1998 (under case number 377/2021), presently pending in the Tlhabane Magistrates’ Court, within five(5) court days from date of service of this order;

8. costs of the application on the scale as between attorney and own client against the first respondent, and should the second respondent oppose the relief sought, then such costs on the scale as between attorney and own client against the second respondent; and

9. further and/or alternative relief.”

[4] The background facts of this matter can be summarised as follows:

The applicant is the Executive Mayor of the Rustenburg Local Municipality and the first respondent was previously employed by the same municipality until June 2020. There were allegations of corruption made by the first respondent against the applicant which resulted in a number of correspondence between them and also involvement of the courts. This eventually led to the first respondent launching an application for a protection order in terms of the Protection from Harassment Act 17 of 2011 in the Tlhabane Magistrates’ Court. On 23 March 2021 the said application was dismissed after the hearing of evidence. Three days later on 26 March 2021 the first respondent launched an application for protection order, this time in terms of the Domestic Violence Act 106 of 1998. The return date was 4 August 2021. The applicant anticipated the return date to 1 April 2021. On 1 April the first respondent was not before court and the application was postponed to 15 April 2021. The matter proceeded on 5 May 2021 and it is not clear from the papers what transpired on the said date. The first respondent applied for the recusal of the second respondent and that application has not been heard.

[5] On 29 May 2021 the first respondent published a statement on her Facebook page stating as follows:

“ HEARING

FOR THE APPLICATION OF THE RECUSAL OF MAGISTRATE AT TLHABANE

MAGISTRATE COURT

Cde Sina Makgatlha is legally representing herself against the high profiled BDK Attorney, Mr. Rudi Krause who is representing the respondent on Cde Sina’s application for the recusal of the presiding magistrate on the Anticipation Matter for the return date of an Interim Protection Order she obtained against the Executive Mayor Rustenburg Local Municipality, Cllr Mpho Khunou for alleged persistent harassment acts towards her. The Mayor is opposing the Interim Order and seeks to set aside, following its reinstatement a mere 3 days after it was previously set aside based on technicalities on the 26 March 2021.

#GBV MUST FALL”

[6] It is the above post that resulted in this urgent application against the first respondent as she refused to withdraw the said post from Facebook stating that her “actions fall within the prescripts of freedom of speech as enshrined in the RSA Bill of Rights.” The applicant argued that the statement by the first respondent is defamatory and undermines his status, good name and reputation. Further that the statement is prima facie wrongful. It was submitted by the applicant that he continues to be prejudiced in his capacity as a Mayor as the statement infers that there are gender based violence cases pending against him which is false. Counsel also referred to the provisions of section 11 of the Domestic Violence Act that no one should publish information of Domestic Violence proceedings which might directly or indirectly reveal the identity of any party to the proceedings.

[7] On urgency the applicant argued that with the post still on Facebook his reputation as a Mayor continues to be affected and has resulted in the Democratic Alliance Party tabling a motion of no confidence against him as the Mayor of Rustenburg Local Municipality.

[8] In contention the first respondent argued that the applicant has not made out a case for defamation. According to the first respondent there is no injury caused by the statement to the applicant’s reputation as he is still the Mayor and continuing to do his work as such despite these allegations having started in December 2020. Further that there is truth in the statement in that the Domestic Violence application between them is still pending in the Magistrates’ Court and she is representing herself. On urgency the first respondent submitted that the applicant failed to make out a case for urgency in that the dispute between them started in December 2020 and they had been in court on several occasions. It is her case that despite all the court appearances, the applicant continues to be the Mayor of the Rustenburg Local Municipality and had caused his supporters to be present at court during some of the court appearances. As a result there is no urgency in this application.

[9] The applicant in this matter seeks a prohibitory interdict against the first respondent to desist from defaming him pending the finalisation of the matter in the Magistrates’ Court.

[10] Defamation is defined as the wrongful and intentional publication of a defamatory statement concerning a person. See Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC).

[11] In Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amicus curiae) 2011 (3) SA 274 (CC) the Constitutional Court dealt with whether a statement is defamatory as follows:

“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 person 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 acceptable 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”

[12] In the case of South African Associated Newspaper Ltd and Another v Yutar 1969 (2) SA 442 (A) it was stated that the test for determining whether a statement is defamatory is well-known: it is whether, in the opinion of the reasonable person, the words have the tendency to undermine, subvert, or impair a person’s good name, reputation, or esteem in the community.

[13] One of the defences that can be raised in a claim for defamation is that the statement is the truth and in the public’s interest. This means that the words must be true. See: Jonson v Rand Daily 1928 AD 190

[14] In this matter it is important to determine whether the statement posted by the first respondent is a false representation and that the first respondent knows it to be false and is done with the intent to harm the applicant’s reputation. It is not disputed that on 29 May 2021 the first respondent posted a statement on Facebook as referred to above. The first respondent when requested to remove the post replied that her actions were within the ambit of the freedom of speech as provided for in the Bill of Rights. As stated in the Le Roux (supra) the test is two-fold. Firstly it is the ordinary meaning of the statement and what the ordinary reader would attribute to the statement. The statement posted by the first respondent speaks about a matter that is pending between the applicant and the first respondent at the Magistrates’ Court on allegations of persistent sexual harassment against the first respondent. Further that in that matter the first respondent is not having legal representation. That is the only meaning that can be attached to the said statement.

[15] The second leg of the test is whether the statement is defamatory. In this matter there is a history of court applications between the applicant and the first respondent. There was a protection order in terms of the Harassment Act which was dismissed in March 2021. Currently there is a pending application between the same parties in terms of the Domestic Violence Act in the Tlhabane Magistrates’ Court. The allegations in the pending application are against the applicant for sexual harassment against the first respondent. The application has not been finalised as the court must first decide the recusal application. Once that has been decided then the application will be entertained. On hearing the application the Magistrate can either grant or dismiss the application by the first respondent.

[16] The statement that has been published by the first respondent is therefore the truth about the matter pending in the Magistrates’ Court between the applicant and herself. It has been admitted by both parties that there are allegations of sexual harassment pending against the applicant by the first respondent. There can be no doubt that the statement does not undermine or impair the good name of the applicant. If the applicant was not happy that the first respondent published information about a pending Domestic Violence application in contravention of section 11 of the Domestic Violence Act, then there is a remedy available in the Domestic Violence Act for such a violation. It is therefore my view that the statement by the first respondent posted on Face book is not defamatory. The defence that the statement is the truth succeeds.

[17] This application was brought as an urgent one on the basis that the defamatory statement continues to impair the reputation and dignity of the applicant as a Mayor of Rustenburg Local Municipality. Further that this statement has resulted in the Democratic Alliance tabling a motion of no confidence against the applicant. The applicant has not furnished any evidence that the motion by the Democratic Alliance is as a result of the statement published by the first respondent. The applicant in his own affidavit referred to allegations of corruption that were levelled against him by the first respondent and

investigated by the Public Accounts Committee for the North West Province. This clearly indicates that the dispute between the first respondent and the applicant has been coming on since August 2020. Despite that, the applicant is still occupying his office and there is no evidence that he is unable to perform his duties as a result of the statement posted by the first respondent. The applicant was not able to make out a case for urgency and on that point the matter could have been struck off the roll.

[18] As I have already found that the statement by the first respondent is not defamatory against the applicant, I deem it unnecessary to deal with the requirements of an interdict and whether they have been complied with by the applicant.

Costs

[19] The awarding of costs is in the discretion of the court. The first respondent in this matter is successful and I see no reason why the applicant should not be ordered to pay costs of the first respondent. In relation to the second respondent, the applicant did not seek any cost order if the second respondent did not oppose the application. As such no order of costs is made against the second respondent. This matter was postponed on two occasions to enable the first respondent

to secure legal representation and the costs were reserved. The applicant’s counsel was always ready to proceed on both occasions. I see no reason why the applicant should be mulct with the wasted costs of 8 June 2021 and 11 June 2021. In my view each party is to pay for its own costs for the appearance of 8 June 2021 and 11 June 2021.

Order

[20] Consequently, the following order is made:

(1) The application against the first respondent is dismissed.

(2) The applicant is ordered to pay costs of the first respondent which shall include the costs of 17 June 2021.

J. T. DJAJE

JUDGE

OF THE HIGH COURT

NORTH

WEST DIVISION

MAHIKENG

APPEARANCES

DATE

OF HEARING

: 17 June 2021

DATE

OF JUDGMENT

: 24 June 2021

COUNSEL

FOR THE APPLICANT :

ADV LABUSCHAGNE

COUNSEL FOR THE 1st RESPONDENT :

IN PERSON