Court overturns ban on fund member utterances

Concourt upholds right to freedom of speech

THE Constitutional Court has overturned a Grahamstown High Court judgment stopping an SA Municipal Workers’ Union (Samwu) provident fund member from bad-mouthing the fund.

The Grahamstown High Court last year interdicted Nelson Mandela Metropolitan Bay municipal worker Ayanda Mtyhopo from publishing any information whatsoever about his grievances with the fund after the fund claimed Mtyhopo had defamed it.

This meant he could not even utter true or lawful statements about the fund.

Both the high court and Supreme Court of Appeal refused him leave to appeal the far-reaching judgment, which his representatives, the Legal Resources Centre, said would have a chilling effect on the freedom of speech.

Mtyhopo is a spokesman for a group of about 99 fund members who wished to leave the fund, but were prevented from doing so by an SA Local Government Bargaining Council moratorium in 2000 which prevented municipal workers from transferring between various pension and retirement funds.

He had at some point informed a newspaper that the Samwu provident fund had ignored a pension fund adjudicator (PFA) decision overturning the moratorium.

The fund said Mtyhopo had not mentioned that the South Gauteng High Court had subsequently reviewed and set aside the PFA’s decision in this regard.

Mtyhopo had also referred in the interview to a R800 000 theft scandal the fund was involved in.

Judge Phakamisa Tshiki found that his conduct had been defamatory, unlawful as well as reprehensible in the extreme.

But it was argued to the Concourt that the interdict imposed was over-broad and a serious infringement on Mtyhopo’s right to freedom of expression.

In a unanimous judgment, the Concourt said it did not have to even consider this submission as the interdict should never have been granted in the first place.

Judge Edwin Cameron ruled that Mtyhopo’s omission warranted disapprobation and even censure.

“But it does not follow that his omission constituted actionable defamation. For that, it would need to have the effect of reducing the fund’s reputation in the estimation of ordinary readers.”

He also said the allegations of the scandal around the vanishing R800 000 had been admitted by the fund. The appeal was upheld. The LRC hailed the judgment as a great victory.