Government Employees Medical Scheme and Another v Mokoditoa and Another (13025/20) [2020] ZAGPPHC 116 (16 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

Case No: 13025/20

16/3/2020

In the matter between:

THE GOVERNMENT EMPLOYEES MEDICAL SCHEME

1st Applicant

DR BOJOSI OLEHILE STANLEY MOLOABI

2nd Applicant

and

ALFRED MOKODITOA

1st Respondent

NTEBENG MOKODITOA

2nd Respondent

JUDGMENT

MNGQIBISA-THUSI J

[1] The applicants, the Government Employees Medical Scheme ("GEMS") and Dr Bojosi Olehile Stanley Moloabi ("Dr Moloabi") seek an order:

1.1 condoning the non-compliance with the rules;

1.2 declaring the first respondent, Mr Alfred Mokoditoa ("Mr Mokoditoa"), to be in contempt of court;

1.3 committing Mr Mokoditoa to a period of imprisonment as determined by this court, alternatively, such other sanction or other relief as the court may deem appropriate;

1.4 directing Mr Mokoditoa 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;

1.5 ordering Mr Mokoditoa to pay the costs of this application on an attorney and own client scale.

[2] No relief is sought against the second respondent, Mrs Ntebeng Mokoditoa ("Mrs Mokoditoa"). In their founding affidavit and in submissions made by applicants' Counsel, an explanation is given that Mrs Mokoditoa was cited merely by virtue of having been cited in the main application.

Factual matrix

[3] Mr Mokoditoa is a pharmacist who once operated several pharmacies. At some stage GEMS investigated claims from one of Mr Mokodi!oa pharmacies and it was found that some of the claims appeared to be fraudulent. As a result of the investigation, GEMS decided not to pay Mr Mokoditoa's claims directly. The listing of Mr Mokoditoa on its indirect payment list led to some protracted litigation between Mr Mokoditoa and GEMS.

[4] During 2019 the respondents started sending out emails to various recipients, inter alia, the State President, medical aid schemes and various government departments in which they accused GEMS and its officers, including Dr Moloabi Dr Moloabi, of racism, incompetency, abuse of office, dishonesty and lack of integrity. Dr Moloabi is the chief executive officer of GEMS.

[5] These publications led to the applicants bringing an urgent application for an interdict against Mr Mokoditoa. On 27 November 2019 Judge Ranched delivered his judgment (under case number 78753/19) wherein he found the statements made by the respondents about GEMS and its officers as defamatory. Judge Ranched made an order interdicting and restraining the respondents from further publishing defamatory statements about GEMS and Dr Moloabi.

[6] The order in part reads as follows:

"2. The first and second respondents are hereby interdicted and restrained, with immediate effect, from directly or indirectly,

making or publishing any defamatory allegations of and concerning the applicants and the employees of the first applicant, and in particular, but without limitation, the publication of allegations accusing them of the crime of fraud perjury, corruption or any other criminal conduct, or accusing them of dishonesty or abusing their powers or being racist or incompetent, save that nothing herein contained shall preclude or prevent the respondents from instituting or prosecuting or defending any legal proceedings where such allegations are made on sound grounds, or from reporting such matters to any appropriate authorities, including but not limited to the South African Police Services".

[7] Mr Mokoditoa opposes the application on the ground that in light of new evidence which has come to his knowledge, the publication complained of was clearly truthful and in the public interest and constitute fair comment.

[8] Mr Mokoditoa has, however, raised two preliminary points. Firstly that this court does not have jurisdiction to hear the applicants' contempt of court application as the operation of the judgment and order of Ranched J is suspended by virtue of the respondents' application for leave to appeal the judgment and order of Ranched J. Secondly, that there is a misjoinder of Mrs Mokoditoa in that she was not involved in the latest publications complained of.

[9] Despite this application being served on Mr Mokoditoa on 24 February 2020, Mr Mokoditoa only filed and served his answering affidavit and lodged an application for leave to appeal on 9 March 2020, a day before the hearing of this application.

[10] In the application for leave to appeal, the respondents are also seeking condonation for the late filing of the application for leave to appeal. The court was informed that the condonation application and the application for leave to appeal will be heard on 19 March 2020.

[11] The preliminary point pertaining to misjoinder is misplaced as no relief is sought against Mrs Mokoditoa.

[12] The preliminary point relating to the court's lack of jurisdiction has to be dealt with as, if upheld, would be dispositive of these proceedings.

Lack of jurisdiction

[13] The issue to be determined is whether the judgment and order of Ranched J of 27 November 2019 is suspended by Mr and Mrs Mokoditoa's application for leave to appeal.

[14] It is Mr Mokoditoa's contention that, in terms of s 18(3) of the Superior Courts Act[1] ("the Act") the judgment and order of Ranchod J of 27 November 2019 , is suspended by the application for leave to appeal.

It was submitted that therefore the application for contempt cannot be heard until the appeal has been dealt with. Mr Mokoditoa concedes that the application is out of time hence he has applied for condonation. It was submitted that in view of the new evidence Mr Mokoditoa has discovered, there is a likelihood that condonation will be -granted and that his appeal will succeed.

[15] On behalf of the applicants it was submitted that since the application for leave to appeal is out of time in terms of the Uniform rules of court and that condonation has to be applied for, Ranchod J's judgment and order was not suspended as there was no application for leave to appeal until such time as the court has granted Mr Mokoditoa condonation and that it is at that stage that the provisions of s 18(1) of the Act.

[16] Section 18 of the Act now provides that:

"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 or of an appeal, is suspended pending the decision of the application or appeal.

(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgement, which is the subject of an application for leave to appeal or of an appeal, is not 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.

(4) If a court orders otherwise, as contemplated in subsection (1)-

(i) the court must immediately record its reasons for doing so;

(ii) the aggrieved party has an automatic right of appeal to the next highest court;

(iii) the court hearing such an appeal must deal with it is a matter of extreme urgency; and

(iv) such an order will be automatically suspended, pending the outcome of such appeal.

(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules"[2].

[9] In terms of s 18(1) read with s 18(5) of the Act the lodging of an application for leave to appeal suspends the operation and execution of a court order.

[10] It is not in dispute that condonation for the late filing of the respondents' application for leave to appeal. In Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, amici curiae)[3] the Supreme Court of appeal, dealing with an application with Uniform Rule 49(11) which has now been replaced by s 18(1) held that before a court order can be suspended there must be a valid application for leave to appeal. In applying the Modderfontein decision (above) the court in Panayiotou v Shoprite Checkers (Pty) Ltd[4] where the court held that:

"[13] The failure to serve notices of appeal or court records within the prescribed periods is commonplace. The result of such failures is that the appeals lapse and require condonation to revive them The appeal having so lapsed, an application for condonation in terms of Appellate Division Rule 13 is required if an appellant who has failed to comply with the Rules wishes to revive or reinstate it".

[11] In the Panayiotou matter the court went further and stated that:

"[15] The inherent logic of the position is unassailable. It can be tested by asking what would happen if many months or years were to pass before an application for condonation is lodged. It is untenable that upon the service of a condonation application the judgment would then be suspended. Accordingly the application fails for want of even a prima facie right that the judgment of Legodi J be suspended".

[12] As correctly pointed out by Counsel for the applicants, in order for Mr Mokoditoa's application for leave of appeal, which has prescribed, to suspend the judgment and order of Ranchod J, condonation must have been granted in order to revive the application for leave to appeal. As condonation to the application for leave to appeal has not been granted, I am of the view that the judgment and order of 27 November 2019 is in operation and like all other judgments and orders, has to be obeyed and complied with. I am satisfied that the preliminary point with regard to the suspension of Ranchod J's order ought to be dismissed.

Contempt of Court

[13] Section 165(5) of the Constitution provides that an 'order or decision issued by a court binds all persons to whom and organs of state to which it applies'. In the Culverwell v Beira[5] judgment the court led that court orders, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside".

[14] It is the applicants' contention that Mr Mokoditoa is in contempt of the order of Ranched J in that subsequent to the order being granted, Mr Mokoditoa wilfully and deliberately continued to publish defamatory remarks by accusing the applicants of corruption, racism and employment of apartheid era tactics. The publications complained of include, tweets Mr Mokoditoa placed on his Tweeter account in which he alleges the following:

"(a) when they don't know what they have done... #GEMS was supposed to be the #medicalschemes of our people. GEMS will be remembered a medical aid that killed BLACK private practices".

(b) "#CORRUPTION by CMS has destroyed my pharmacy practices. #Racism by GEMS has destroyed my pharmacy practices. #Harrassment & #Intimidation by Hosmed has destroyed my pharmacy practices".

(c) "DID YOU KNOW? The #Government #Employees #MedicalScheme #Insurance does not pay BLACK Doctors, Dentists, Pharmacists, Physiotherapists, etc. Why? Because they are BLACK!"

(d) "#Racismis in the DNA of south Africa. The Government Employees Medical Scheme #GEMS is not paying Black Doctors, Dentists, Pharmacists, optometrists. Why? Because they are BLACK".

(e) "Members of the Ku Klux Klan & Apartheid spies have infiltrated the Government Employees Medical Scheme #GEMS".

(f) "Attention. GEMS MEMBERS #CORRUPTION by CMS has destroyed my pharmacy practice. #Racism by GEMS has destroyed my pharmacy practice. My pharmacy was Blacklisted by GEMS 4 NO reason".

(g) "#GEMS is still using racism in 2020 against its own people by blacklisting black doctors, pharmacists, dentists for NO reason".

[15] Contempt of court is the deliberate, intentional disobedience of an order granted by a court. In Fakie NO v CCII Systems (Pty) Ltd[6] the court held that:

"[5] It is a crime to unlawfully and intentionally to disobey a court order. This type of contempt of court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court. The offence has in general terms received a constitutional 'stamp of approval' since the rule of law - The rule of law - a founding value of the Constitution - 'requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained'.

[8]... And while the litigant seeking enforcement has a manifest private interest in securing compliance, the court also because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law.

[16] In Tasima (Pty) Ltd and Others v Department of Transport and Others [2016] 1 All SA 465 (SCA), the court held that:

"[18] Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court. This was confirmed in Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 9. Fakie also held that whenever committal to prison is sought, the criminal standard of proof applies (para 19). A declarator of contempt (without imprisonment) and a mandatory order can however be made on the civil standard (see Fakie para 42). The applicant for a committal order must establish (a) the order; (b) service or notice of the order; (c) non­ compliance with the terms of the order and (d) wilfulness and ma/a tides, beyond a reasonable doubt. But, once the applicant has proved (a), (b) and (c), the respondent bears the evidentiary burden in relation to (d) (Fakie para 42). Should the respondent therefore fail to advance evidence that establishes a reasonable doubt as to whether his or her non-compliance was wilful and ma/a fide , the applicant would have proved contempt beyond a reasonable doubt (Fakie paras 22-24)".

[17] It was submitted on behalf of the applicants that Mr Mokoditoa should be held in contempt of Ranchod J's order in that he was aware of the order as he was in court on the day the judgment was handed down and was served with the order and that Mr Mokoditoa failed to comply with the order by publishing the defamatory statements, which publication was done wilfully and maliciously.

[18] Mr Mokoditoa has admitted to making the statements complained of. He opposes this application on the grounds that in view of our apartheid history and the rights enshrined in our Constitution, he was entitled, to expose racism wherever and whenever it raises its head. It was submitted on behalf of Mr Mokoditoa that in light of the evidence led at a section 59 inquiry under that Medical Aid Schemes Act, it was clear that GEMS and its officers were racist in that the backlist which is part of the subject-matter of

the inquiry contained names of black medical practitioners only. Counsel submitted that Mr Mokoditoa through his tweets was not in contempt of Ranchod J's order as the tweets were truthful, fair comment and in the public interest. Counsel further argued that the evidence at the inquiry exposed GEMS and its officers as having racially profiled Mr Mokoditoa and victimised him by placing his name in the black list of service providers.

[19] When the order of 27 November 2019 was granted, it was as a result of statements made by the respondents which were found to be defamatory. To illustrate the defamatory nature of these publications which were invariably injurious to the reputation and dignity of the applicants, the following are examples of such publications:

[20] The attitude displayed by Mr Mokoditoa is indicative of the fact that although Mr Mokoditoa was aware of Ranchod J's order and its import, he nevertheless deliberately decided to publish the statements which are prima facie defamatory in relation to its target(s) on the basis of new evidence about GEMS 'racial profiling'. The issue as to whether GEMS is racially profiling black practitioners is still in the process of being determined. Despite Ranchod J pointing Mr Mokoditoa in the right direction, to deal with his issues with GEMS through the proper channels, in his answering affidavit, Mr Mokoditoa has strenuously refused to retract the offending statements as he believes the contents to be true and that the s 59 proceedings vindicate his actions.

[21] The fact that Mr Mokoditoa feels justified in vilifying the applicants that does not justify his disobedience of Ranchod J's order. He is bound by the terms of that order unless and until it is set aside.

[22] I am of the view that there was a court order which Mr Mokoditoa was aware of and which he mala fide and wilfully disobeyed. In the circumstances, I am satisfied that the applicant has established, beyond reasonable doubt, that the respondents are guilty of contempt of the order of 27 November 2019.

[23] In addition to being found in contempt, the applicants have left it to the court to decide on whether Mr Mokoditoa should be committed to imprisonment. Bearing in mind that the purpose of holding a person in contempt is to vindicate the dignity of the courts, I am of the view that Mr Mokoditoa should be granted an opportunity, having in mind that he might have valid complaints, to reflect on his conduct.

[24] With regard to costs, I am satisfied that the applicants have made out a case for a punitive cost order to be made.

[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.

N P MNGQIBISA-THUSI

Judge of the High Court

Appearances

For applicants: Adv E Kromhout (instructed by Gildenhuys Malatji Inc)

For first respondent: Adv M Kufa appearing with Adv N Moropene (instructed by Machaba Attorneys)

[1] Act 10 of 2013.

[2] Section 18 replaced Rule 49 (11) of the Rules of Court.

[3] 2004 (6) SA 40 (SCA) at [46].

[4] 2016 (3) SA 110 (GJ).

[5] [1990] 1 All SA 253 (SCA).

[6] [2006] ZASCA 52; 2006 (4) SA 326 (SCA).