University of KwaZulu-Natal v Independent Newspapers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Koen J
• Judgment Date: 17 September 2018
• Docket Number: 8977/2017
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 08 August 2018
• Citation: 2018 JDR 1623 (KZD)

Koen J:

Introduction

[1]

This is the extended return date of a rule nisi which is contained in paragraph 2 of the court order granted on 5 August 2017. It provides as follows:

'THAT a Rule nisi do hereby issue calling upon the Respondents to show cause, if any, before this Honourable Court on the 5 September 2017 at 9H30 or as soon thereafter as the matter may be heard, why, pending the confirmation of the rule, an order in the following terms should not be granted:

2.1

THAT the First and Second Respondents are directed to retract and remove the published article, dated 3 August 2017 and headed "#UKZN MedBust: University raided over corruption claims" from all forms of publication, be it press, online and/or social media forthwith;

2.2

THAT the First and Second Respondents are directed to issue a statement to the public rectifying the factual position pertaining to the search and seizure operation undertaken by the Applicant and to clarity that a raid did not take place at the Applicant's campuses by the South African Police Services within twenty four (24) hours of the grant of this Order;

2.3

THAT the First Respondent be and is hereby interdicted from publishing an article in THE SUNDAY TRIBUNE newspaper, or any other newspaper, on Sunday, 6 August 2017 which refers to the contents of the KPMG forensic report that has been prepared on behalf of the Applicant;

2.4

THAT the First and Second Respondents be and are hereby interdicted from publishing in the press, on the internet and/or in the social media or any other media, any information pertaining to the release of the KPMG forensic report and its content;

2.5

THAT the First and Second Respondents are directed to pay the costs of the application, jointly and severally, the one paying the other to be absolved.'

2018 JDR 1623 p3

Koen J

Paragraphs 2.3 and 2.4 of the rule were ordered to operate as interim orders with immediate effect when the rule was issued.

[2]

The applicant seeks confirmation of paragraphs 2.4 and 2.5 of the rule nisi, with paragraph 2.4 amended to read:

'2.4

The respondents be and are hereby interdicted from publishing in the press, on the internet and/or in the social media or any other media, any information pertaining to the contents of the summary of the KPMG forensic report and the contents of the KPMG report itself, beyond that already published.'

The relief in paragraphs 2.1 to 2.3 of the rule nisi

[3]

The applicant does not seek confirmation of the relief in paragraphs 2.1 to 2.3 of the notice of motion. It contends in that regard that the relief claimed in those paragraphs is moot due to the steps taken by the respondents on 6 August 2017 in publishing the article 'GAGGED! Brakes on medical school expose', the 'Matter of Fact' contained therein, and the interim interdict that was granted when the rule was issued.

[4]

The respondents initially disputed that the relief in paragraphs 2.1 to 2.3 has become moot, contending that the interim interdict should not have been granted as an interdict is not a remedy for a past alleged invasion of rights. [1] That criticism is however misplaced. Firstly, no interim interdict was granted in respect of the relief claimed in paragraphs 2.1 to 2.3 of the notice of motion. Secondly, the relief claimed in those paragraphs of the rule nisi issued is not confined to a past invasion of rights but was aimed at preventing further alleged harm arising from the publication of the 3 August 2017 article in the future.

[5]

The respondents also contended that they were entitled to a consideration of whether the application was justified (in relation to the 3 August article) in the first place, so that they can remedy any negative perception created by the application that they were obliged to print a retraction, when they were not. As mentioned earlier however, no interim relief was granted in respect of the relief in paragraphs 2.1 to 2.3

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Koen J

of the notice of motion. Accordingly I am not persuaded that objectively speaking any negative perception can be said to arise.

[6]

The effect of the applicants not seeking confirmation of paragraphs 2.1 to 2.3 of the notice of motion is tantamount to the applicant abandoning that relief. The fact that it was claimed as part of the rule nisi now largely has only academic interest. At most it might retain possible relevance on the question of costs. Not surprisingly, the respondents' counsel in argument did not persist with any opposition to the applicant's approach of not addressing the relief in those paragraphs further. This judgment shall accordingly not deal any further with the relief in those paragraphs, save insofar as it might affect the question of costs.

The citation of the Respondents

[7]

The publisher of the Sunday Tribune Newspaper and the IOL website ('IOL') against whom the relief is sought, is not Independent Media (Pty) Limited, the first respondent as originally cited. The Sunday Tribune is published by Independent Newspapers (Proprietary) Limited. The publisher of the IOL website is Independent Online (Proprietary) Limited. The first respondent, as originally cited, is the holding company of Independent Newspapers (Proprietary) Limited and Independent Online (Proprietary) Limited.

[8]

In their heads of argument the respondents raised but did not place reliance on this error. In argument they indicated that the applicant's motion to amend the citation of the first respondent (which would be to the notice of motion) to 'Independent Newspapers (Pty) Limited' and to join Independent Online (Pty) Limited and reflect it as the third respondent, was not opposed. That is a sensible approach to what is simply an error in description. [2] The position is not dissimilar to that in Foxlake Investments v Ultimate Raft Foundation Design [3] where the Supreme Court of Appeal held that:-

'when the summons was served on the registered address of both Foxway and Foxlake, Foxway recognised its connection with the claim notwithstanding the error in its description.

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Koen J

The amendment sought by the respondents in the court a quo did not seek to introduce a new legal entity as the first defendant. It merely sought to correct the incorrect description of the defendant and encourage the proper ventilation of the real disputes between the creditor (the respondents) and the debtor (appellant). The question of prejudice to the appellants does not arise. The summons was served on the true debtor in which summons the creditor was claiming payment of the debt from the debtor.'

[9]

Independent Newspapers (Pty) Ltd and Independent Online (Pty) Ltd were fully aware that they were the targets of the application and recognised its connection with the relief sought, notwithstanding the error in its description, hence their compliance with the interim interdict.

[10]

An order was accordingly granted that:

(a)

The citation of the first respondent in the notice of motion is amended to 'Independent Newspapers (Pty) Limited';

(b)

'Independent Online (Pty) Limited' is joined as the third respondent.

The heading to this judgment gives effect to that order.

The facts

[11]

The following background facts giving rise to the issue of the rule nisi are common cause or not seriously in dispute, alternatively, represent the version of the respondents which the applicant is not able to dispute: [4]

(a)

The second respondent, a journalist employed by the first respondent, became aware of alleged fraud perpetrated at the applicant university during February 2016 when a whistle-blower tipped her off about people selling positions for prospective students at the applicant's medical school, the Nelson Rolihlahla Mandela School of Medicine ('the NRMSM'). After almost six months of investigation including consultations with various sources who spoke to her on condition of anonymity, she published her first article in the Independent Newspaper on 26 June 2016 under the headline 'For Sale: a place in med school'. As a result of that exposé several sources with further information contacted her, resulting in her authoring

2018 JDR 1623 p6

Koen J

numerous further articles which were published. More than 20 articles were published by the Sunday Tribune alone.

(b)

During July 2016, the applicant appointed accountants KPMG to conduct a forensic investigation to determine, inter alia, whether admissions to the NRMSM complied with the NRMSM's prescribed policies, to investigate bribery and corruption at the NRMSM, to investigate certain students who may have misrepresented their race with a view to gaining entry into the NRMSM, and to make recommendations.

(c)

It became publically known subsequently that a full report ('the report') relating to the findings of KPMG was provided to the applicant on 7 November 2016. The second respondent learnt from her sources that a summary ('the summary') of the report was tabled at a meeting of the applicant's council in November 2016. Both reports are confidential to the applicant. The applicant maintains however that it conducted its own further investigations which have revealed that KPMG's reports were not correct in all respects.

(d)

When it became apparent by the end of January 2017 that the applicant would not be releasing the report or the summary, the second respondent applied to the applicant in terms of the Promotion of Access to Information Act [5] ('PAIA') for access to the report. The second respondent did not receive any response to the PAIA application and to date has not taken further action in regard thereto, as shortly after the making of the PAIA application, the summary was 'leaked'. She obtained a copy of the summary from a source who made it available on condition of anonymity.

(e)

The second respondent thereafter prepared an article based on the...