Ritchie and Another v Government, Northern Cape, and Others

• Jurisdiction: South Africa
• Citation: 2004 (2) SA 584 (NC)

Ritchie and Another v Government, Northern Cape, and Others
2004 (2) SA 584 (NC)

2004 (2) SA p584

Citation	2004 (2) SA 584 (NC)
Case No	1116/2001
Court	Northern Cape Division
Judge	Kgomo JP and Lacock J
Heard	November 8, 2002
Judgment	May 2, 2003
Counsel	M Chaskalson for the applicants.; G C Pretorius SC (with him A de Kok) for the respondents.

Flynote : Sleutelwoorde E

Administrative law — Administrative act — What constitutes — Funding by F provincial government of private defamation actions instituted by provincial Government employees — Such decision not administrative action but internal matter not susceptible to review by Courts — Semble: Question whether use of provincial government's funds for such purpose was authorised a matter G which could have been referred to Auditor-General — Not for Courts to investigate such question.

Headnote : Kopnota

The applicants applied in a Provincial Division for the review and setting aside of certain decisions taken by the Director-General of the Northern Cape Province authorising the use of funds from the provincial H revenue fund to finance separate private defamation actions instituted by the third, the fourth, and the fifth to ninth respondents, respectively, against the applicants. The actions arose out of certain allegedly defamatory statements of and concerning the respondents, which had been penned by the second applicant and published in a local newspaper owned by the first applicant. In respect of the third I respondent, the applicants sought an order declaring the use of the funds so authorised to have been unlawful and any payments made from those funds to have constituted unauthorised expenditure. The first respondent was the Government and the second respondent the Director-General of the Northern Cape Province. The applicants based their application on the grounds, inter alia, that (1) the decisions had been J

2004 (2) SA p585

unconstitutional in that they had violated the applicants' right to freedom of the press and freedom of expression; A and (2) they had constituted administrative action which had violated either the common law or s 33, as read with item 23 of Schedule 6, of the Constitution of the Republic of South Africa Act 108 of 1996. The respondents denied, inter alia, that the decisions had constituted administrative action. The respondents conceded that, if the decisions had indeed constituted administrative action, they fell to be set aside as alleged by the applicants. The question for B determination by the Court was thus whether or not the decisions had constituted administrative action.

Held, that politicians or public officials had the right to vindicate their reputation and to recover damages for defamation. Other jurisdictions were not averse to Government funding for defamed public officials. While there was no Constitutional Court or Supreme Court of C Appeal authority for resort to the principle that it was permissible for a Government to fund the private litigation of a Government employee, in the freedom of expression context, that principle was based on sound legal reasoning and deserved the Court's approval and application in the present matter. (Paragraphs [17] and [19] at 594A/B - B/C and 595G - H/I.) D

Held, further, that there was no evidence to suggest that the decisions of the Director-General and the provincial government to fund the defamation actions had impacted inimically on the applicants' right to freedom of expression. It might well have been that such funding facilitated the institution of the actions but even that had not been shown to have impacted prejudicially on the applicants' rights. Besides, the decisions to pay the plaintiffs' legal costs E could not but be classified as policy decisions amounting to internal acts, which did not threaten the applicants' rights and freedom of expression. (Paragraph [20] at 596B/C - D.)

Held, accordingly, that the decision to fund the private defamation actions of the applicants was an internal provincial government matter which was not susceptible of review by the F Courts. (Paragraph [21] at 596H - H/I.) Application dismissed.

Semble: This seemed to be a proper case which could have been referred by the applicants to the Auditor-General to be investigated. It was certainly not for the Courts to investigate whether or not the expenditure had been unauthorised. (Paragraph [23] at 5.) G

Cases Considered

Annotations

Reported cases

Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA): dictum at 38H - 39C applied

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): distinguished H

Derbyshire County Council v Times Newspapers Ltd and Others [1993] 1 All ER 1011 (HL): referred to

Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African Railways 1946 AD 999: distinguished

Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd 2001 (4) SA 661 (W): dictum at 672D - E applied I

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC): dicta in paras [55] - [61] applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): considered J

2004 (2) SA p586

Hill v Church of Scientology of Toronto 114 DLR (4th) 1: dictum at 29f - 30e approved and applied A

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771): dicta in paras [26] - [28] and [43] applied

Manning v Hill (1995) 126 DLR (4th) 129: dictum at 149d - 150a approved and applied

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1): referred to B

New York Times Co v Sullivan 376 US 254 (1964), 11 L ed 2nd 686: referred to

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): considered C

Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZS): referred to

Selemela and Others v Independent Newspaper Group Ltd and Others 2001 (4) SA 987 (NC): dictum at 994F - 1000A applied D

Smith v KwaNonqubela Town Council 1999 (4) SA 947 (SCA): dictum at 952F - G applied

Theophanus v Herald & Weekly Times (1994) 182 CLR 104: referred to.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa Act 108 of 1996, s 33, Schedule 6 item 23: see Juta's Statutes of South Africa 2002 vol 5 at 1-148, 1-189 - 1-190. E

Case Information

Application for review of the decision of the Director-General of the Northern Cape Provincial Government that the provincial government finance certain private defamation actions of certain of its employees. The facts appear from the reasons for judgment.

M Chaskalson for the applicants. F

G C Pretorius SC (with him A de Kok) for the respondents.

Cur adv vult.

Postea (May 2). G

Judgment

Kgomo JP:

[1] In this matter the applicants/defendants bring an application against the respondents/plaintiffs in which they seek the following relief (paraphrased): H

[1.1]

reviewing and setting aside the decision taken by the Director-General of the Northern Cape on behalf of the Northern Cape Province, in or about September 1999, to authorise the use of funds drawn from the provincial revenue account of the province in order to finance the defamation actions brought by the third respondent (Elias Selemela) in the High Court against the applicants and I Independent Newspaper Group Ltd;

[1.2]

declaring that the use of funds drawn from the provincial revenue account of the Northern Cape Province for purposes of financing the defamation action brought by Elias Selemela against the applicants J

2004 (2) SA p587

Kgomo JP

and Independent Newspaper Group Ltd under case No 768/00 in the A High Court is unlawful and that any payments made in this regard are unauthorised expenditure;

[1.3]

reviewing and setting aside the decision taken by the Director-General on behalf of the provincial government in or about June 2000 to authorise the use of funds drawn from the provincial revenue account of the Northern Cape Province to finance the defamation B action brought by the fourth respondent (MEC Block) under case No 642/00 in the High Court against the applicants and Independent Newspaper Group Ltd;

[1.4]

reviewing and setting aside the decision taken by the Director-General on behalf of the provincial government, in or about July 2000, to authorise the use of funds drawn from the provincial C revenue account of the Northern Cape Province to finance the defamation actions brought by the fifth to ninth respondents (Mokhali, Motaung, Palm, Jason and Mpikwane) under case No 767/00 in the High Court against the applicants and Independent Newspaper Group Ltd; D

[1.5]

directing the Northern Cape provincial government, the Director-General, Elias Selemela and fourth to ninth respondents, if they oppose the application, jointly and severally to pay the applicants' costs of suit.

[2] The first applicant is the editor of the Diamond Fields Advertiser (DFA), a daily newspaper circulating in the E Northern Cape and adjacent provinces, which newspaper has published the alleged defamatory statements. The second applicant is the journalist in the employ of the DFA who wrote all the impugned articles. The newspaper group, which is cited as first defendant in the action, is not party to this application. Upon our enquiry why this was so, we were informed by Mr Chaskalson, counsel for applicants, that F the reason was tactical and apparently has to do with the manner in which the newspaper group has been cited. For purposes of this application nothing revolves on this...