Mabuza v Leywaba

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mashile J
• Judgment Date: 12 April 2023
• Citation: 2023 JDR 1395 (MN)
• Hearing Date: 12 April 2023
• Docket Number: 5068/2021
• Court: Mpumalanga Division, Mbombela

Mashile J:

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INTRODUCTION:

[1]

The erstwhile Deputy President, Mr David Dabede Mabuza ("The Applicant") launched an application in this Court following events that occurred on 03 February and 18 October 2021, more succinctly set out hereunder. The Applicant seeks an order against Mr Joel Pompies Letwaba ("The Respondent") in the following terms:

1.

Interdicting and restraining the respondent from making any oral or written statements and/or or stating publicly that the applicant:

1.1.

was responsible for ordering the killing of people while Premier of Mpumalanga;

1.2.

is the cause of problems in the country and in the African National Congress;

1.3.

is responsible for the killing of whistle-blowers;

1.4.

is one of South Africa's most feared politicians and/or persons;

1.5.

knows the identity of masterminds of political assassinations in Mpumalanga Province;

1.6.

has caused criminal cases opened against him to disappear.

2.

Ordering the respondent to issue a public apology to the applicant in the following terms:

2.1.

The apology is to be made by the respondent in person and is to be broadcasted on the national television broadcasters Newzroom Afrika and eNCA and published in the Citizen newspaper.

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2.2.

The respondent is to approach the media organisations mentioned in paragraph 2.1 above, within 14 days of this Court's order, to arrange for the airing and publication of the apology.

2.3.

Should the media organisations mentioned in paragraph 2.1 above refuse to give the respondent sufficient airtime to make the apology, the applicant is entitled to approach this Court again, on the same papers duly supplemented, for appropriate alternative relief.

2.4.

The apology is to be in the following terms:

"On 3 February 2021 and 18 October 2021, I publicly stated, on interviews given on Newzroom Afrika and eNCA respectively, that Mr David Mabuza, the Deputy President of South Africa and the African National Congress, was responsible for political killings in Mpumalanga Province and made related allegations. I made these statements without evidence and I appreciate that they are false. In the circumstances, I unreservedly retract the statements which I made and apologise to the Deputy President for having made them"

2.5.

Ordering the respondent to pay the costs of this application on the attorney-own client scale, such costs to include the costs of two counsel.

FACTUAL BACKGROUND:

[2]

The factual matrix giving rise to the causa are vested in two interviews, one conducted on Newzroom Afrika and the other on eNCA (collectively referred to as "the broadcasters") on 03 February and 31 October 2021 respectively. It is common cause that the interviews were conducted between the news anchors of the respective broadcasters and the Respondent, though the interview with Newzroom Afrika also included several guests in the same segment. On 04 February 2021, following the

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interview with Newzroom Afrika, the Citizen, a newspaper, published an article about the interview.

[3]

In both the interviews with the broadcasters, it is alleged that the Respondent made false and highly defamatory statements about the Applicant. These statements were:

3.1

That in the time from when the Applicant became Premier of Mpumalanga "people began perishing one by one".

3.2

That, in the time that the Applicant was Premier of Mpumalanga, about 27 people were assassinated and "evaporated into thin air".

3.3

That the Applicant is the "genesis of problems in the country" and the "genesis of all problems in the ANC".

3.4

That the Applicant is responsible for the killing of whistle-blowers.

3.5

That the Applicant is a man without ethics and morals.

3.6

That the Applicant is "South Africa's most feared political monster".

3.7

That when one talks of the Applicant some people shriek with horror and get so paralysed that they are confined to wheelchairs.

3.8

That in the time that the Applicant was Premier of Mpumalanga, 38 people were killed or assassinated and their cases evaporated into thin air.

3.9

That the Applicant knows the masterminds behind assassinations in Mpumalanga Province.

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3.10

That the Applicant is a "political monster who brutalised the people of Mpumalanga Province'.

3.11

That criminal cases have been opened against the Applicant, which have then "evaporated".

[4]

On 24 November 2021, the Applicant instructed his erstwhile Attorneys of record to address a letter to the Respondent demanding certain undertakings and an apology. The Respondent has allegedly not heeded to the demands which, according to the Applicant, led to the issuance of this application.

[5]

The application was issued on 03 December 2021 and personally served on 4 December 2021. Following the service, the Respondent opposed the application by serving a notice to oppose on the Applicant on 10 December 2021 and subsequent thereto an answering affidavit was served on 31 January 2022, albeit, that it was late. It is not clear from the papers when the replying affidavit was filed. However, this is immaterial since it was not raised as an issue in dispute

ASSERTION BY THE PARTIES

[6]

The Applicant asserts that the statements made by the Respondent are false and defamatory and that as such, there is no evidence to support these them. As relief, he asks for an interdict and a public apology more succinctly outlined in paragraph 1 of this judgment.

[7]

The Respondent asserts that such statements are not defamatory since the comments made therein are comments which have been made in the public domain for decades. In furtherance to this point, he adds that there are hundreds of thousands hits on the world wide web, published books, investigative articles and research reports which have never been challenges by the Applicant.

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[8]

It appears from the papers filed that the main defences are truth and public interest and fair comment. It also appears that the Respondent requests condonation, from this Court, for late filing of his answering affidavit. It seems that the Applicant, in his reply, did not dispute condonation for the Respondent's late filing of his answering affidavit.

[9]

In addition thereto, the Respondent raises two points in limine couched as follows:

9.1

Firstly, that the Applicant's founding affidavit is not properly commissioned since it was signed by the Applicant in Barberton but was commissioned at 46 Silky Oak which, according to the Respondent, does not exist in Barberton.

9.2

And secondly that this Court lacks Jurisdiction to adjudicate this application since the cause of action arose within Gauteng province

[10]

In response to the first point in limine, the Applicant asserts that, while 46 Silky Oak is in Centurion, there is no rule that a commissioner of oaths cannot accept swearing of an oath in a different location different to where he or she is ordinarily located. He adds that the...