Mokate v United Democratic Movement and Another (26427/2020) [2022] ZAGPPHC 191 (4 April 2022)

REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA CASE NO: 26427/2020 DOH: 24 NOVEMBER 2021

(1) REPORTABLE: YES ie) (2)

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

(3) REVISED. ; (J- F LA ee HY Q022 « SIGNATURE pate | DR. RENOS! MOKATE APPLICANT and THE UNITED DEMOCRATIC MOVEMENT FIRST RESPONDENT RETIRED GENERAL BANTUBONKE HARRINGTON HOLOMISA SECOND RESPONDENT

Judgement

THIS JUDGEMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF EMAIL. ITS DATE OF HAND DOWN SHALL BE DEEMED TO BE 04 APRIL 2022 MALI J 1 This application has origins in the urgent court wherein it was struck off the roll due to lack of urgency. The applicant amongst others sought the following: “2. That the allegations in the statement titled ‘DBSA: Looting of state resources by some of the same people involved in the Public Investment Corporation saga’ (“the Assailed Statement’) be declared defamatory, unlawful and false.

3. That it be declared that the Respondents’ publication of the Assailed Statement is and continues to be unlawful.

4. That the Respondents be ordered to remove the Assailed Statement, within 24 hours, from all their medial platforms, including, but not limited to Twitter and the First Respondent's website.

5. That the Respondents be ordered, within 24 hours of this order, to publish a notice on all their medial platforms, in which they unconditionally retract and apologize for the allegations made in the Assailed Statement.

6. That it be directed and ordered that the Respondents are immediately interdicted from publishing any express statement or implication that the Applicant has been and is a director of Poseidon (Pty) Ltd, that the Applicant behaves like ‘locusts that hop from one source of easy funding to the next’, that the Applicant aims to enrich herself by illicit means, that the Applicant is unscrupulous, corrupt, a criminal and/ or guilty of misconduct. or similar

sentiments and that the Applicant is unfit to be the Chairperson of the Government Employees Pension Fund (“ the GEPF") or to hold similar positons of status.

7. The Respondents are ordered to make payment of R500,000 to the Applicant within 7 days of this order.

8. In the alternative to prayer 7, that the determination of quantum of damages be postponed sine die of an enquiry into damages.

9. The Respondents are ordered to pay the Applicant's costs as between attorney and own client, which costs include the costs of two counsel, one of which is senior counsel. 10 Further and/or alternative relief.”

2. The applicant is a person of great importance, same applies to the second respondent. The applicant holds a PhD and MA from the University of Delaware, Newark, and a BA from Lincoln University, Pennsylvania. She is a former Executive Director and Chief Executive Officer of the Unisa Graduate School of Business. She is also a former Independent Consultant for the Ministry of Finance and National Treasury as well as a member of the Investigation Steering Committee of the Municipal Demarcation Board.

3. Amongst her many important roles she was a Deputy Governor of the South African Reserve Bank. She is a board member of the Bidvest Bank as well as Vukile Property Fund. At the time of hearing of this application she was the Chairperson of the Government Employees Pension Fund which was established in terms of the Government Employees Pension Law, Act 21 of 1996, as amended (“the GEPF”). The GEPF. The GEPF is a separate juristic entity and is Africa’s Largest pension as well as a single investor in the Johannesburg Stock Exchange. It manages pensions and related benefits on behalf of approximately 450 000 pensioners in South Africa. For purposes of this application, most significantly is that, she is a Politically Exposed Person (“ PEP’)

4. The second respondent is the President of the first respondent political party and its elected representative in the National Assembly for more than 20 years, at the time of hearing of the application. He is also a retired Major General.

Assailed Statement

5. It is common cause that on 17 June 2020 the respondents published a statement on the first respondent's website, the second respondent's Twitter account. The statements were further contained in a letter addressed to the, (i) The President of the Republic of South Africa; (ii) Minister of Finance of South Africa; (iii) Chairperson of the Development Bank of Southern African; and (iv) Chairperson of the Public Investment Corporation.

6. The statements are as follows:

“DBSA looting of state resources by some of the same people in the

Public Investment Corporation saga”

4. I write to you with grave concern over the apparent looting of state resources by some of the very same individuals that were found to have had enhanced ability to secure easy accesses to Public Investment Corporation (PIC) funds. We seem to have the same style of legal corruption, but this time it is at the Development Bank of Southem Africa (DBSA). A curious feature, however, is the emergence of the involvement of the Chairperson (GEPF). Elitist people seem to behave like locust that hop from one source of easy funding to the next; voraciously consuming every opportunity they can generate through whatever means. Once they have depleted one source, they effortlessly jump to the next one with the same agenda-enriching themselves at any cost and patting themselves on the back for being such clever operators.”

“Clearly there is enough motivation to have, at the very least, immediately suspended Harith’s management of any and all of PIC/GEPF funds and launched further investigation. Has government taken any action to protect the PIC/ GEPF from these self-enriching individuals? If not, why not?

4. To make matters worse, this recipe for plundering state resources is seemingly being replicated at the DBSA with the very same people involved. This time, at the face of it, with a new vehicle called Poseidon (Pty) Ltd, of which the shareholding is as follows:”

5. The DBSA has recently funded Poseidon to the tune of R50 million to conduct feasibility studies, for some kind of water project/s in South Africa and other Souther African countries. Another R300 million is apparently still to be disbursed for the implementation of Poseidon’s project.” “The following persons are also Poseidon directors: 6.1 Dr. Renosi Mokate (GEPF Board Chairperson), 6.2 Ms. Lungile “Zee” Cele (Independent non- executive director of Harith General Partners and a former board member of Eskom Holdings SOC Ltd), 6.3 Mr. Roshan Morar (former PIC Deputy Chairperson, former Chairman of the South African National Roads Agency SOC Ltd, chairman of Ithala Development Finance Corporation (Ltd) and nonexecutive director of Harith General Partners) and 6.4 Ms. Motsea Alix- Mary Lugemwa (former Chairperson of the Gautrain Management Agency Board and non-executive director of PAIDF) This list reads like a dream-team of politically exposed persons (PEPs) who seemingly have access to public funds. It is especially worrying to find the name of Dr. Renosi Mokate on this list; a scenario where a GEPF Chairperson has access to public funds using a private conduit, after having seen what happened at the PIC, is indefensible. She must be removed as GEPF Chairperson with immediate effect.”

7 Determining whether a statement was defamatory involves a twofold enquiry. First, one establishes the meaning of the words used. Second, one asks whether that meaning was defamatory in that it was likely to injure the good esteem in which the plaintiff was held by the reasonable or average person to whom the statement was published. Where the injured party selects certain meanings in order to point the sting of the statement, they are bound by the selected meanings. The meaning of the statement is determined objectively by the legal construct of the reasonable reader and is not a matter on which evidence may be led

8. Defamation, which forms part of the law of delict, can be defined as the unlawful publication of a defamatory statement concerning another person. In the case of Hix Networking Technologies v System Publishers (Ply) Ltd and Another 1997

(1) SA 391 (SCA), Plewman JJA defined defamatory statements as follows: “...a defamatory statement is one which injures the person to whom it refers by lowering him in the estimation of the ordinary intelligent or right-thinking members of society....”. 9 There are certain elements that must be present in order for a person to succeed in a claim for defamation. The elements consist of the () wrongful, (ii) intentional (iii) publication of a defamatory statement concerning a person. The law requires that the three aforementioned elements be present to successfully prove that defamation has been suffered by a party.

10. The applicant's case as per the founding affidavit commences with the negative impact of the impugned statement to the GEPF. The applicant

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