Tau wins battle against Mashaba, but the war isn’t over

A High Court in Johannesburg’s 2019 order – that comments made by former Johannesburg mayor Parks Tau about his successor, Herman Mashaba, were defamatory – has been overturned.

On Thursday, the Supreme Court of Appeal’s (SCA’s) Judge Ashton Schippers delivered judgment on Tau’s bid to have the order thrown out and found in his favour; but the judge said Tau was not off the hook just yet.

Mashaba had approached the high court asking for an order that Tau retract his remarks and publicly apologise as well as that he not make such remarks again, and Judge Schippers found on Thursday that it had jumped the gun by making a declaratory order.

“What was before the high court was not an application for a declaratory order,” he said.

But while he found Tau had a defence – that his comments were in the context of his political rivalry with Mashaba – Schippers said this did not mean he was likely to succeed in a separate pending defamation action.

“A court cannot know whether defamation has been proved until the trial process has shown where the truth lies. And of course, if the defence fails, [Tau] will have to pay damages,” Schippers said.

Tau made the comments at the heart of the ongoing spat, during a councillor’s funeral in August 2018.

“The City of Johannesburg is today led by a man that believes that the women who are senior executives in the City of Johannesburg prostituted themselves to be in the jobs that they are in. He says that in fact for them to earn the positions that they are in they had to sleep with the leadership,” he said.

He also said: “We have heard views from the mayor, Herman Mashaba, who says that in fact if it were up to him he would not want to be black.”

Mashaba argued before the high court that Tau’s comments were false and intended to colour him as sexist and a bigot as well as racist and “anti-black”.

Tau, on the other hand, claimed that as political opponents, he and Mashaba often made comments about each other’s political stances.

“The papers show that [Tau’s] defences were fair comment, truth and public benefit and ‘political commentary’,” Judge Schippers said on Thursday.

“The order declaring that the initial statements were defamatory of [Mashaba], effectively precludes [Tau] from exercising his right to adduce evidence in defence of a claim for defamation. That, in turn, adversely impacts upon his fundamental right to have a dispute decided in a fair public hearing, enshrined in the constitution.”

Tau on Friday said he was yet to read the SCA’s judgment in full but that he welcomed its order.

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