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SCA dismisses Malema’s defamation application

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Staff Reporter

The Supreme Court of Appeal (SCA) has dismissed an appeal by EFF leader Julius Malema against a ruling of the Eastern Cape High Court which set aside an application in which he wanted a statement made by former party member Thembinkosi Rawula declared defamatory.

Malema also wanted the High Court to stop Rawula from publishing any further defamatory statements and to order him to pay R1 million in damages.

The matter dates back to April 5, 2019 when Rawula – who served on the EFF’s highest decision-making body, the Central Command Team (CCT) – posted a statement on his Facebook page entitled ‘EFF remains a financial fishing net for the pair, an antithesis of everything it (purports to be). I am now unleashed, who cares?’

Aggrieved by the statement, Malema approached the Eastern Cape High Court in Port Elizabeth seeking an order declaring the Facebook post defamatory.

In brief, the post alleged that funds received by the EFF were centralised under the “control, abuse and dictatorship of the appellant (Malema) and the deputy president of the EFF, Floyd Shivambu, who had made it clear that the EFF was their organisation”.

It also claimed that they had used training providers who inflated costs to the EFF by 250 percent and, in the absence of financial reports (which had not been tabled before the CCT since 2014), the respondent was forced to conclude that the two had pocketed the difference; and that the appellant, in a meeting of the CCT had admitted to receiving money from VBS Bank, saying “sometimes we are forced to kiss dogs or the devil to get funding”.

These statements, Malema said, were understood to mean or imply that he is corrupt; is stealing money; conducted himself in an unlawful and undemocratic manner; and is of base moral character.

The majority judgment of the SCA by justices Xola Petse, Nambitha Dambuza, Ashton Schippers and Aubrey Ledwaba held that Rawula had “established a sustainable foundation by way of evidence that a defence of truth and public interest or fair comment was available to be pursued”.

According to the judgment, there was nothing in the evidence to support the claim that he had obtained access to privileged information because he served on the CCT.

It is also claimed in the court papers that when Malema received money from VBS, he knew that it was the subject of corruption and said that it could not be paid into the EFF’s account and that he had to “devise other means” to receive the money.

The Limpopo-based VBS Mutual Bank collapsed in 2018 after incurring debts of more than R2 billion.

It held savings of many disadvantaged people and local municipalities.

Following its collapse, many elderly people in Limpopo lost their lifetime savings.

Investigations revealed that much of this money had been siphoned into private bank accounts with some spent on property or luxury cars.

The National Prosecuting Authority has described the VBS scandal as “probably the biggest bank robbery in this country”.

Several VBS officials have been arrested on charges of corruption, racketeering, money laundering, fraud and theft.

The SCA further found that the fact that Malema or the EFF had received VBS money – which he denied in the papers – and that the appellant had personally benefited from it were already in the public domain by September 2018.

“It was telling that the applicant had taken no action against the print or electronic media for any injury to his good name or reputation,” the SCA pointed out.

It said the statement that the EFF “was their organisation”, when considered in the context of the Facebook post as a whole, was an example of a recurring theme: a lack of accountability and abuse of funds on the part of the leadership of the EFF.

The party received levies from 61 Members of Parliament and provincial legislatures of not less than R6 800 each and 852 councillors contributed at least R2 000 a month.

It had a million members who each paid R10.

The EFF received not less than R25 million per quarter from the National Assembly and provincial legislatures.

All these funds were centralised “under the control, abuse and dictatorship” of Malema and Shivambu.

As to the inflation of costs, Rawula alleged that at a function of the EFF held in Pretoria, they could not purchase alcohol, because its price had been inflated threefold.

The majority judgment held that his inability to cite further examples of the inflation of costs by service providers was potentially at least the product of the secrecy regarding the accounts of the EFF, which was not rebutted.

The SCA supported the High Court ruling that the final interdict for defamation cannot be granted unless a respondent has no defence.

It said the High Court had rightly concluded that the appellant did not make out a case for a final interdict.

It said since the appellant accepted that there was no risk of future re-publication by the respondent, an interdict could not be granted, as there was nothing left to restrain and no risk of future injury.

The appeal was accordingly dismissed.

In a minority judgment by Justice Owen Rogers, it was found that Malema had failed to show that Rawula acted unlawfully by publishing statements that the appellant’s conduct as leader of the EFF was undemocratic and unlawful.

However, the minority judgment held that the respondent did not put up admissible evidence in support of his allegations that the appellant was corrupt, stole money or was of base moral character.

This was essentially for the following reasons: there was no evidence that when the appellant received the money from VBS, it was the subject of scandal or known to be fleecing its depositors.

The newspaper article which the respondent had put up to show that the applicant had received VBS money and had benefited from it could not be produced as evidence of the truth of what the journalist had written.

The facts concerning the inflation of the price of alcohol were hearsay and inadmissible evidence.

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Guptas lose application to have restraint order case postponed

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NO SMILING MATTER . . . An interim restraint order against a company that Atul Gupta, seen in this file photo, co-owns with his brother and their wives remains in force

The Free State High Court on Friday dismissed a last-minute application brought by the directors of the Gupta-owned slandsite Investments 180 (Pty) to postpone the return day of the provisional restraint order against company, Iqbal Sharma and others.

Acting Judge Neil Snellenburg will provide a written judgment for dismissing the postponement application on Monday.

The directors sought a postponement pending their application to the Supreme Court of Appeal where they are appealing against a High Court ruling passed in August 2021 that said the business rescue practitioners of Islandsite, not the directors, have the authority to represent the company in the restraint proceedings.

Investigating Directorate spokesperson Sindisiwe Seboka said in a statement the interim restraint order will remain in force until the next court hearing on 20 and 21 October, when the confirmation hearing is expected to be heard.

The assets under restraint include properties of Iqbal Sharma and his wife, his UAE-registered company, Issar Global, his wife Tarina Patel-Sharma, as well as all property of Islandsite, which is owned by Atul and Rajesh Gupta and their respective wives, Chetali and Arti Gupta.

The interim restraint order was granted in June 2021, in terms of the Prevention of Organised Crimes Act (POCA).

Sharma’s assets that form part of the curator’s inventory include his Sandton home valued at over R12-million.

The property was featured on the lifestyle television programme, Top Billing, and is owned by Issar Global.

Other assets include movable property valued at R500 000, a Porsche and a R1.3 million sectional title home in Sandton.

Properties owned by Gupta family company Islandsite that form part of the inventory include a house worth R21-million in Constantia, Cape Town, and a R12-million house in Saxonwold, Johannesburg.

Said Seboka: “The interim restraint order continues to run . . . that means the curator that is looking after the assets remains in place, meaning there is no chance for those assets being disseminated.

“The state is quite comfortable that the assets will not be taken abroad or be given to other people, in terms of the shares.

“They continue to be in safekeeping.

“For us that is pivotal and the court has found enough evidence in that respect.” – Staff Reporter

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Ex-MEC faces probe over failed R1-billion Free State housing project

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NO PROPER LEADERSHIP . . . Former Free State MEC for human settlements Mosebenzi Zwane criticised

The State Capture Commission wants former Free State MEC for human settlements Mosebenzi Zwane investigated for failing to provide “proper provincial leadership” in a failed R1-billion provincial housing project.

The department’s former head, Nthimotse Mokhesi, told the commission, led by Chief Justice Raymond Zondo, that his office had made an advance payment of more than R500-million to the project’s contractors before any work was done.

Described in the fourth part of the State Capture Commission’s report as a “dismal failure”, the housing project was dogged by several factors including a decision by former Free State premier Ace Magashule to build bigger RDP houses from the initial 40-square-metre units without consulting the provincial human settlements department and the contractors.

The commission found that Zwane, the human settlements MEC at the time, “failed to provide proper provincial leadership” with regard to the R1-billion housing project.

The report criticised Magashule for not monitoring projects and not holding Zwane accountable.

It said instead Magashule made Zwane the MEC for agriculture, “where he continued with his dismal performance”, resulting in the Estina/Vrede Dairy Farm collapse. – Staff Reporter

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Magashule escapes Zondo rap over asbestos project ‘scam’

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ASBESTOS PROJECT CASE . . . Former Free State premier Ace Magashule is facing charges of corruption, fraud, theft and others together with 15 co-accused

Chief Justice Raymond Zondo has not made any recommendations in his latest state capture report for a criminal investigation against former Free State premier Ace Magashule for his role in the failed 2014 asbestos eradication project for which he is currently standing trial.

Zondo, in the fourth part of the State Capture Commission’s report, instead recommended that the National Prosecuting Authority (NPA) consider charges against the head of the Free State human settlements department, Nthimotse Mokhesi; businessman Edwin Sodi; and former director-general of the department of human settlements Thabane Wiseman Zulu for their roles in the asbestos audit and removal debacle.

Magashule is facing charges of corruption, fraud, theft and others together with 15 co-accused who include Mokhesi, Sodi, Zulu and several companies for their part in the asbestos contract worth over R255-million.

The report also urges the government to seek legal opinion on whether it could recover the money paid to Sodi’s company Blackhead Consulting and its joint venture partner Diamond Hill to audit and remove asbestos roofing on identified houses in the Free State.

It also found the Blackhead Consulting/Diamond Hill joint-venture lied to the provincial authorities about its ability to do the job.

The use as well as the manufacture and processing of asbestos was banned in South Africa in March 2008 as it is a serious health hazard to the lungs.

The Free State human settlements department embarked on the project after it approved an unsolicited proposal from from the Blackhead Consulting/Diamond Hill joint-venture.

This, according to the report, was done without following any competitive process.

“The department paid about R255-million to the joint-venture but ultimately no asbestos was removed from the roofs of houses,” the report says.

“It turned out that this joint-venture was not even qualified to undertake the removal of asbestos despite the fact that they had told the department in their proposal and in the service legal agreement that they signed with the provincial department that they had the qualifications, skill, expertise and experience required for the job.”

The report described the project as “a considerable scam from its inception”.

It said it was clear the project “was always intended to unlawfully benefit a certain business consortium”, adding those benefits were also intended for various government officials.

Just as in the matter before the Free State High Court, the report indicates that Sodi paid R650 000 towards the purchase of a property for Mokhesi in Bloemfontein.

“The commission is satisfied that this payment was made as a reward or inducement or both for the asbestos contract,” said the report.

It found Mokhesi as a central figure in the awarding of the contract to the Blackhead Consulting/Diamond Hill joint-venture.

The human settlements MEC at the time, Olly Mlamleli, has not been implicated as the investigation did not look into why she did not realise that there was a problem with the project and intervene timeously in order to save public funds from being wasted.

The report also states that Magashule could have intervened together with Mlamleli.

The report wants Mokhesi investigated for corruption following his decision to contract the Blackhead Consulting/Diamond Hill joint-venture.

It has also recommended an investigation for possible prosecution for breaching provisions of the Public Finance Management Act.

He is already facing similar charges in the on-going case.

The commission also found that Sodi paid R600 000 into the account of a Ballito car dealership in December 2015 with reference “TZ” which said was common cause it stood for Thabane Zulu.

When he appeared at the commission in 2020, Sodi told the commission in 2020 that he owed Zulu for alcohol he had bought at his entertainment venue outside Pietermaritzburg.

When Zulu was asked how Sodi’s alcohol bill reached hundreds of thousands of rands, he told the commission Sodi often hosted parties for “dignitaries” at his KwaZulu-Natal home.

“Instead of taking the money I decided to instruct him to deliver the money where I wanted it,” he said.

The explanations by the two did not convince the commission which concluded the money “may well have been a bribe or reward to Mr Zulu for his role in facilitating the award of the asbestos contract”.

It recommended that criminal charges relating to corruption or any other applicable crime should be pursued against Zulu for the R600 000 that Sodi paid. – Staff Reporter

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