Siyaya v ENews Channel Africa (Pty) Ltd t/a ENCA
| Jurisdiction | South Africa |
| Judge | EM Kubushi J |
| Judgment Date | 01 October 2020 |
| Docket Number | 39867/2020 |
| Hearing Date | 27 August 2020 |
| Court | Gauteng Division, Pretoria |
| Citation | 2020 JDR 2125 (GP) |
Kubushi J:
INTRODUCTION:
This urgent application is brought on extremely urgent timeframes, for final relief. The applicant contends that certain statements that the respondents published in articles on 2 and 3 August 2020 are false, defamatory and unlawful. The matter involves five respondents each of whose defence is based on different facts.
SALIENTS FACTS:
The institution of the proceedings originates from the story about the arrest of Ms Nomachule Noma Gigaba ("Ms Gigaba") which broke in the media on the evening of Friday 31 July 2020. It appears that the arrest was as a result of a domestic dispute that ensued between Ms Gigaba and her husband (the erstwhile Cabinet Minister. Mr Malosi Gigaba) ("Mr Gigaba") relating to allegations of damage to a Mercedes Benz G-Wagon motor vehicle.
The story was reported in a number of different publications under different articles. For instance, on 2 August 2020 the story appeared in City Press, Sunday Times and Sunday World, newspapers. The story appeared again on 3 August 2020 in the ENCA (a division of e.sat TV (Ply) Ltd) and the Citizen, publications, respectively. The story also appeared in all the online platforms of the respective publications. It is stated in the first respondent's papers that it has been incorrectly cited, in that, there is no such company as "eNEWS CHANNEL AFRICA (PTY) LTD" ENCA is a division of e.sat TV (Pty) Ltd. I shall henceforth, in this judgment refer to the first respondent as "ENCA". Each of these publications is cited as a respondent in these proceedings. For convenience I shall, in this judgment, refer to each of the publications by its own name and I shall refer to them collectively as the respondents.
In the main, what was relayed on in all these publications was the arrest of Ms Gigaba and why she was arrested. However, in all the publications, there was further information that appeared about Mr Peterson Siyaya ("Mr Siyaya"), the applicant in this matter, who was reported to be a friend to the former Minister. It is this
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information that is the subject matter of this application which Mr Siyaya is aggrieved by.
As is the norm, before the story was published investigations were carried out. According to ENCA at the time the statements were published, there were numerous pictures from Mr Siyaya's instagram account showing him posing with expensive motor vehicles - a Mercedes Benz G-Class and Porsche and expensive Louis Vuitton luggage and a helicopter. In one of the pictures he is seen holding a key to the Mercedes Benz. At the time, the lnstagram was a public account but it has now been changed to a private account whose posts can only be seen by those Mr Siyaya permits. His Facebook cover page also depicted him leading a march of the National Union of Mineworkers ("NUM").
Sunday Times states in their papers that as the story was developing a source within the Directorate for Priority Crime Investigation (the Hawks) ("DPCI") sent a text message to a senior reporter at Sunday Times. Ms Nicolette Gules ("Ms Gules") informing her of the arrest of Ms Gigaba and the charges brought against her - malicious damage to property, domestic violence, crimen injuria and assault, and that the complainants were Mr Gigaba and Mr Siyaya. About a week before Sunday Times published their article in this regard, Ms Gules had seen that a certain Vuyo Mkhize ("Mr Mkhize") - Mr Gigaba's communication adviser - had posted a video of a badly damaged Mercedes Benz G-Class on Facebook which was subsequently removed. Ms Gules, who is known to Mr Mkhize, called him and after a long discussion learnt from Mr Mkhize about what was later reported about the Gigabas in Sunday Times. She also learnt that Mr Siyaya is the owner of the Mercedes Benz G-Wagon that was the subject of the criminal investigation against Ms Gigaba and that Mr Siyaya had laid a complaint of crimen injuna against Ms Gigaba for insulting him. Initially Mr Mkhize had wanted to remain anonymous, but he later agreed to be named. An affidavit by him confirming this discussion forms part of the record of these proceedings.
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One other investigator of Sunday Times, Mr Wicks, endeavoured to contact Mr Siyaya as he pursued the story, to no avail. Mr Wicks used Search Works to perform a CIPC search which revealed that Mr Siyaya is an active director of five different entities. Mr Wicks eventually managed to contact Mr Siyaya telephonically. Mr Siyaya indicated that he was not in a position to speak to Mr Wicks at the time and undertook to return his call, but never did. An attempt was made later in the day to contact Mr Siyaya again. When it became clear that Mr Siyaya was never going to return the call. Mr Wicks sent him a WhatsApp message informing him why he sought to speak to him and urging him to return his call. But he never did.
Bongani Mdakane, a freelance reporter at City Press also received the same statement that was sent to Sunday Times by the Hawks. Mr Mdakane phoned the Hawks spokesperson, Hangwani Mulaudzi, who confirmed the contents of the statement. During the course of his investigations, Mr Mdakane also heard about the dispute between the Gigabas from Mr Mkhize who also confirmed that the motor vehicle involved in the dispute belonged to Mr Siyaya.
On Wednesday 29 July 2020, Mr Malatji from Sunday World received a tip off that Mr Gigaba had opened a case against his wife. Mr Malatji then started making enquiries. He phoned his police contact, who works at the admin office in the Gauteng Provincial Office. The contact provided Mr Malatji with a copy of Mr Gigaba's statement to the police and confirmed that the motor vehicle involved belonged to Mr Siyaya.
The Citizen, on the other hand, picked up the story from the News24 wire and republished it. The story itself was researched by News24, the Citizen only used it in its publication. The Citizen says in their papers that this is normal practice and that they did not find it necessary to investigate the matter further as News24 is a respected source that is considered to be reliable.
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THE STATEMENTS COMPLAINED OF:
When reporting its story about the arrest of Ms Gigaba, ENCA under the article headlined "Hawks to Hand Over Norma Gigaba's Case to the Police" also published the following information of and about Mr Siyaya:
"the vehicle [a Mercedes Benz G-Class] belongs lo Malusi's friend, Peterson Siyaya".
"But who is Mr Siyaya?"
"He [Mr Siyaya] appears to be a National Union Mineworkers member - who had previously been arrested and later released on charges related to the murder of AMCU members in the North West.
There is very little public information about Siyaya - other than his lnstagram account.
It appears he and the former Minister are long-time friends and ANC comrades.
Just days before his car was damaged, Siyaya posted a picture of himself with his friend.
Commented - "I would rather walk with a friend in the dark than alone in the dark"
It's not yet known how Siyaya fits into the Gigaba's marital problems. Neither Siyaya nor the Gigaba's could be reached for comment"'.
City Press under the article headlined "Death Plot Against Gigaba? - Hawks Dig Up Charge Laid in May, When He Claimed That Hitmen Were Hired to Kill Him" published the following information of and about Mr Siyaya:
"This new information comes after a dramatic few weeks, which saw a Mercedes Benz G-Wagon belonging to Gigaba's friend - Peterson Siyaya - badly damaged at the Gigaba's matrimonial home in Waterkloof Ridge Pretoria".
"Siyaya had lent the vehicle to Gigaba".
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Malusi called Peterson to tell him what had happened [to his car],.and he [went to the police] and opened a case of malicious damage to property against his wife".
"Peterson came to their house to understand why his car was damaged, and Norma insulted him with unprintable insults. This is when Peterson decided to open the case against Norma"
According to those privy to the matter, Gigaba and Siyaya had been trying to drop the charges against Norma after the parties had a discussion and agreed not to press on. Sources said the Gigaba had agreed that he would drop the charges and Siyaya would do the same".
Sunday Times, on the other side, in an article headlined "Gigaba Conspiracy' Probed" reported the following information of and about Mr Siyaya:
"While the investigation took shape, the 40-year old socialite is said to have gone on a rampage in which she allegedly left deep scratches in the R3m black Mercedes Benz G-63 AMG "G-Wagon" which had been lent to her husband by his close friend, trade unionist and businessman Peterson Siyaya".
"She also allegedly trashed her husband's study and called Siyaya - who a source close to Gigaba said Norma believed was a bad influence - on the phone and threaten and insult him".
"The police docket indicates that the damage inflicted on Siyaya's car was so severe that it would take about R500 000.00 to fix".
"A source close to him [Mr Gigaba] said that for Siyaya to access his insurance, Gigaba had to open a police case"
"Gigaba had tried to withdraw the charges he laid against Norma, a source said yesterday, and lawyers representing her and Siyaya have been in negotiations all week to resolve the matters"
"Gigaba and Siyaya, a businessman and official of the National Union of Mineworkers, are close friends. Pictures on Siyaya's lnstagram page show how
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he toured the country with the former Minister. There are also pictures showing the G-Wagon his luxury watches and Louis Vuitton luggage".
Sunday World published an article under the headline "Malusi Gigaba and Wife in Murderous Drama" which included information of and about Mr Siyaya that -
"The cop...
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