Mthembi-Mahanyele v Mail & Guardian Ltd and Another

• Jurisdiction: South Africa
• Judge: Howie P, Mpati DP, Mthiyane JA, Lewis JA and Ponnan AJA
• Judgment Date: 02 August 2004
• Citation: 2004 (6) SA 329 (SCA)
• Docket Number: 054/2003
• Hearing Date: 06 May 2004
• Counsel: R T Sutherland SC (with him D Mashigo) for the appellant. W H Trengove SC and D I Berger SC for the respondents.
• Court: Supreme Court of Appeal

Lewis JA:

[1]

'Sankie Mthembi-Mahanyele H

Minister of Housing

Grade: F

Why is she still in the Cabinet? She has shown she cannot deliver in one of our key delivery ministries. Her award of a massive housing contract to a close friend and her sacking of her former director general, Billy Cobbett, continue to haunt the public perception of her. I

Prognosis: A coupé on the gravy train would do nicely, thank you very much.'

(My emphasis.) This is the wording of a 'report card' in respect of the then Minister of Housing, the appellant in this matter, written and J

Lewis JA

published by the first respondent, a weekly newspaper (referred to as 'the M & G'), late in December 1998. The A second respondent, Mr Philip van Niekerk, was then the editor of the paper. The statement was part of a general 'report card' grading and commenting on the work of all members of the Cabinet in 1997. The grade 'F' was stated to mean: 'Pathetic. A fail. Jump before you are pushed.' B

[2] The appellant sued for defamation, asserting that the words in the report that I have emphasised were defamatory of her. She claimed damages in the sum of R3m. At the trial the appellant did not persist in asserting that the words relating to the dismissal of Mr Cobbett were defamatory, but rested her case on the publication of the words that she had awarded 'a massive housing contract to a close friend'. C

[3] The appellant alleged that the words complained of signified that she was a person of base moral standard; that she was dishonest, and would thus dishonestly award a massive housing contract to a close friend; that she was incompetent and unable to deliver as a Minister; and was not worthy of holding public office. She pleaded that the D respondents had acted recklessly, not caring whether the contents were true; and that they took no reasonable steps to establish whether the statement made was true.

[4] The respondents pleaded that, as a member of Cabinet, the appellant had no locus standi to sue for damages for E defamation; that the words did not convey a defamatory meaning; that the words were at least substantially true; and that it was in the public interest that the facts were published. Insofar as the statement constituted the expression of an opinion, that opinion was alleged to be honestly held and expressed in good faith. In the alternative the F respondents pleaded that publication of the statement was protected by qualified privilege in that they were members of the press which is both bound and entitled to make available to the public information, opinions and criticisms about every aspect of political activity, in the public interest. Further, they asserted, s 16 of the Constitution expressly protects the right of freedom of expression (including G freedom of the press) such that the statement was published in the exercise of a duty to inform the public. A further alternative plea was that the statement was published reasonably (without negligence) and in the genuine and reasonable belief that it was true.

[5] The trial Court (Joffe J in the Johannesburg High Court) found for the respondents, refusing the action on the basis that H the appellant, as a Cabinet Minister, did not have locus standi to sue for defamation where the statement complained of related to the performance of her work as a member of Government and was made without malice. The Court found also that the words were not defamatory of the appellant since the reader of the M & G I report card would already have been familiar with the allegations that were made in respect of the award of the housing contract and that the appellant's reputation had already been tarnished. There had been a great deal of publicity accorded to the matter by many South African newspapers, and the M & G in particular had undertaken J

Lewis JA

an investigation and had published a number of articles during 1997 A calling for an explanation of the award.

[6] The appellant appeals against the decision of the trial Court with its leave. At issue in the appeal is the balancing of two fundamental rights, both protected by the common law and enshrined in the Constitution: Freedom of expression, on the one hand, and dignity, including the right to protect one's reputation, on the other. Should B one right, in certain circumstances, prevail over the other? In particular, when dealing with freedom of expression in a political context (political speech) should a member of Government's right to protect her reputation be eclipsed by the need for robust criticism and comment in a democratic State where the public's right to be informed, and to free debate, is vital? C

The background

[7] Before turning to the respective allegations of the appellant and the defences raised by the respondents, an explanation of the background to the making of the statement is required. In January 1997, D when the appellant was the National Minister of Housing, the Mpumalanga Housing Board (the Board) purported to award a contract for the construction of houses to Motheo Construction (Pty) Ltd (Motheo). Some 10 500 houses were to be built at a total cost of R190 million. At the time when the Board made the decision to award the contract Motheo had E not yet been incorporated. It was registered only in February 1997, and the sole director was Dr Thandi Ndlovu. The contract was formally executed in March of that year. The National Housing Board was ostensibly represented by Mr Saths Moodley who was the chair of the Board; the Mpumalanga Department of Local Government was represented by F its chief director, Mr B S Ngwenya; and Motheo was represented by Ndlovu.

[8] Ndlovu claimed to be a close friend of the appellant. They became acquainted with one another when exiled from South Africa during the years of the liberation struggle. The appellant does not deny that they are friends. Ndlovu's sister, Granny Seape, worked for Nedcor G Bank Ltd. Nedcor had entered into an agency contract with the various parties to the Motheo contract. It was represented by one Kevin Gibb. Ms Seape was Gibb's assistant.

[9] Towards the end of April 1997, Mr Billy Cobbett, then the H Director-General of the national department of housing, who had previously had misgivings about the award of the contract, was informed that Gibb had been suspended by Nedcor. He became concerned about the whole enterprise and immediately referred the matter to the Auditor-General, asking him to investigate and to undertake a forensic audit. Cobbett then contacted the appellant to advise her of Gibb's I suspension. He told her that he had referred the contract to the Auditor-General. He requested her not to attend the public launch of the Motheo project, due to take place the following day. The appellant did not accede to Cobbett's request. J

Lewis JA

[10] On 25 April - the day of the launch - Cobbett wrote a memorandum to the appellant. He A recorded the history of his discussions with Gibb at the beginning of 1997. Gibb, on being appointed to his position at Nedcor, had conceived plans for the rapid delivery of low-cost housing in rural areas. Cobbett had agreed to facilitate the flow of funds from the national department to Motheo in order to ensure the building of the houses in a period of ten months. However, at a meeting in March with various B officials from the relevant bodies in Mpumalanga, including Ngwenya, Cobbett had ascertained that the province's funds were heavily overcommitted. It could not afford the cost of the Motheo contract. Cobbett had agreed, however, to attempt to devise a plan to channel other funding to the project, but could not commit national funds to C it. Despite this, Cobbett recorded, the appellant had phoned him a week before the Motheo launch and had reported complaints that he was blocking funds for the project.

[11] Of most concern to Cobbett was that he discovered that national funding had been committed to Motheo in January 1997, before Motheo was incorporated. In addition, he complained, Motheo had a share D capital of only R400; it had not ever built a house; the housing contract was one of the largest ever entered into by the State; Ndlovu's sister, Seape, worked for a party to the contract, Nedcor; and the other director of Motheo was a member of the provincial housing board. Moreover, the contract committed national funds without the authority so to do, and in Cobbett's view, contravened proper subsidy E procedures. For these reasons, Cobbett stated that he had referred the matter to the Auditor-General.

[12] On 5 May 1997 Cobbett's appointment as Director-General was terminated. The appellant made a statement to the F press to the effect that Cobbett had resigned. He denied this, claiming that he had been fired. It is not necessary to deal with this dispute save to say that documents admitted in the Court below indicate that he had indeed been dismissed. The dispute became public and much was made of it in the press. In one of the first reports carried by the M & G, written by Stefaans Brummer, Mungo Soggot (a journalist who G had investigated the Motheo project, and who testified at the trial) and Peta Thornycroft, the headline read: 'Why Minister axed her housing boss.' The byline read: 'Joe Slovo's handpicked Director-General, Billy Cobbett, asked the auditor general to investigate a R185-million housing project in Mpumalanga - and lost his job.' The report referred to H Ndlovu's friendship with the appellant and to the fact that her sister had worked for Nedcor, under Gibb. It also referred to a statement by Ndlovu that the appellant was her 'mentor'.

[13] Other newspapers also carried reports on the Motheo project, on the appellant's relationship with Ndlovu and on the firing I of...