Businesswoman fails to get DA muzzled in building rental row

Staff Reporter

A local businesswoman accused by the Democratic Alliance (DA) of fleecing the Free State government in rentals for office space that was not even occupied has failed to secure an interdict to force the opposition party to retract the “defamatory” allegations.

Hantsi Bhetilda Matseke, the sole director of Mayula Procurement and Property Management, had appealed to the High Court after the same court dismissed her initial application to have the DA censured for implicating her company in an allegedly corrupt deal involving the rental of a building to the provincial government.

The litigation arose after her company had concluded a lease agreement with the Free State Department of Public Works and Infrastructure for office space at Mohau Building, formerly known as Saambou and situated at the corner of Charlotte Maxeke and Aliwal Streets in Bloemfontein, at a monthly rental of R726 167.36.

The Department of Education was supposed to occupy the building with effect from February 1, 2018, as stipulated in the lease agreement.

But more than a year later the department had still not occupied the property as it was still undergoing renovations.

This prompted DA provincial leader Patricia Kopane to release a press statement on April 1, 2019 claiming that ANC national secretary-general Ace Magashule had, during his tenure as Free State premier, allegedly manipulated the awarding of lease agreements for the offices of government departments to benefit a few close allies and himself.

The party claimed that Matseke – who was also the chairperson of the Free State Development Corporation (FDC), a statutory body and the official economic development agency for the Free State province – was an “ally” of Magashule and that the alleged scheme had enabled her to renovate the building in question using rentals received from the provincial government while the property was not being occupied.

Matseke however dismissed the allegations as untrue and defamatory and then approached the High Court.

The relief she sought was to have Kopane and the DA interdicted from making or repeating any allegations against the businesswoman and her company.

She also wanted the court to direct the respondents to remove and delete the press statement they had issued in relation to the applicants and any posts regarding the press statement or responses thereto from their website, Facebook, Twitter and other social media posts.

The court however dismissed the application, saying the DA press statement was not defamatory of Matseke and her company.

It said the statement was political criticism concerning the actions of public figures, namely Magashule as the former premier of the Free State province and Matseke as the chairperson of the FDC.

The statement, the court ruled, was in the public interest and not wrongful and “therefore the applicants did not prove a clear right”.

Mayula Procurement and Property Management and Matseke then lodged an appeal with the High Court relying on 13 grounds of appeal, including that the court a quo should have found that the appellants had met all the requirements for an interdict.

The appellants also argued that court a quo should have found that the appellants had established a clear right to human dignity and right not to be defamed.

They also claimed the court a quo had erred in finding that the DA press statement constituted reasonable publication and that Matseke was a public figure that could be subjected to political criticism.

Judge JP Daffue, however, dismissed the appeal with costs.

In his judgment handed down last Monday, the judge noted that an appropriate constitutional balance must be established between the right to human dignity on the one hand and freedom of expression on the other.

“The criticism in the speech and statement was in essence aimed at the former premier of the Free State province, Mr Magashule, but it was necessary to refer to the first and second appellants, the first being the lessor of a property leased to the government and the second appellant being a public figure insofar as she is the chairperson of the FDC and sole director of the first appellant,” he said.

The judge said political critics should be allowed to make robust and frank comments on issues involving the interests of a sustainable democracy.

“I agree with the respondents that (Matseke) cannot seek to commercially benefit from the public purse while being wholly immune from the watchful eye of people acting in the public interest,” he said.

“Also, her company, the first appellant, plays an important role in the Free State insofar as it provides accommodation for government institutions.

“Consequently, also the first appellant has exposed itself to scrutiny that would not otherwise be applicable to private entities.

“I am satisfied that the court a quo was correct in concluding that the appellants failed to establish a clear right.

“They did not establish that respondents do not have valid defences pertaining to the alleged defamatory statements relating to them or that they would be irreparably injured if the interdicts applied for were not granted.

“Clearly, the alleged defamatory statements could have been countered effectively and even more quickly than the urgent application, by refuting them by way of similar publications on social media.

“Insofar as the criticism of first respondent could be seen as political criticism against the former premier of the Free State province in particular, the appellants could not escape the attention of first respondent insofar as they engage in business with the Free State government.”

Judge AF Jordaan concurred with the judgment.

However, Judge NM Mbhele disagreed saying she would have found in favour of the appellants.

“The appellants showed that they were defamed and have a right to the interdict,” Judge Mbhele said.

“The second respondent has a right to protect her dignity and reputation which she alleges has been infringed by dissemination of information injurious to her dignity.

“The information published on social media platforms stays forever or for years unless removed contrary to the argument by the respondents that the appellants seek to undo the damage that has been done.

“The information disseminated through the internet is like a print engraved on iron and has a potential to haunt the injured person for years after it was disseminated and for as long as the internet and the relevant social media sites exist.

“The harm on the second appellant’s dignity and reputation is ongoing and will persist unless the information is deleted.”