Holomisa, UDM lose ConCourt case
● The Constitutional Court this week held that an interim order granted to Lebashe Investment Group and others against UDM leader Bantu Holomisa in 2018 was correctly awarded.
Lebashe owns Arena Holdings, which owns the Sunday Times.
Lebashe, Harith General Partners, Harith Fund Managers, Lebashe director Warren Wheatley, chair Tshepo Mahloele and non-executive director Jabulani Moleketi had approached the high court in Johannesburg for an interdict restraining the UDM and Holomisa from making or repeating any allegations defaming them or injuring their dignity.
The ConCourt on Thursday agreed, noting that Holomisa and the UDM had circulated harmful information without establishing its veracity.
“They did not even make a feeble attempt to ascertain the truth of the allegations before publishing the defamatory material, notwithstanding that they had asked the president to inquire into the allegations,” said acting justice Mjabuliseni Madondo in a unanimous judgment.
The saga began when Holomisa sent a letter to President Cyril Ramaphosa in June 2018 containing allegations that Lebashe and its directors had conducted themselves unlawfully in relation to the Public Investment Corporation.
In the letter, Holomisa said: “President‚ these companies and individuals have links — past and present‚ directly and indirectly — with the PIC. It makes for uncomfortable reading when one considers the possibility of a very complicated and opaque scheme that will put at risk the Government Employees Pension Fund.”
Holomisa requested an investigation into the allegations.
The damning letter was also published on the UDM’s website.
Lebashe and its directors contended the remarks were devoid of truth and defamatory. They sought interim relief in the high court pending an action for damages for the alleged defamation, which the high court granted. It ordered Holomisa to stop defaming or injuring the respondents’ dignity, and to remove and delete the letter from the UDM’s website and from his Twitter account.
Holomisa sought leave to appeal. However the Supreme Court of Appeal struck the matter off the roll in 2020 on the grounds that the interdict was interim in nature and therefore not appealable.
Holomisa then applied to the Constitutional Court for relief.
In its judgment, the ConCourt said the “takedown” order from the high court was simply an interdict against continuing to publish the defamatory material on the platforms, pending the determination of the defamation action.
“By allowing the defamatory material to remain accessible on these platforms, the applicants are continuing to publish it.”
Madondo said the UDM and Holomisa allegedly received defamatory information from whistle-blowers and then published it in the mistaken belief that it was for the benefit of the public to do so, without having verified the information.
Madondo said Lebashe argued that the effect of the interim order was to regulate the UDM’s conduct in a circumscribed, specific and limited manner for a certain period pending the finalisation of the defamatory claim.
Madondo said Lebashe succeeded in establishing a prima facie right, the injury inflicted and reasonably apprehended, and the lack of adequate alternative remedy.
Wheatley welcomed the judgment, saying it “authenticates and strengthens our position against the defamatory and harmful allegations against our business”.
“Lebashe has always maintained that our transactions and dealings are conducted with transparency and integrity. We are committed to finalising legal proceedings for damages and costs and holding the UDM and General Holomisa accountable for false and defamatory statements. Lebashe will not tolerate its reputation being tarnished.”
Harith CEO Sipho Makhubela said: “This legal victory belongs to our stakeholders, investors and employees who stood with us in the past challenging few years believing in our bona fides as good corporate citizens going about our business activities with integrity and within the prescripts of the law.
“We look forward to focusing on our important work of investing in Africa’s infrastructure, unimpeded by politicians’ agendas.”