SCA sides with Holomisa in R2m defamation case

In a David versus Goliath battle in the courts, the United Democratic Movement (UDM) and its leader, Bantu Holomisa, won the first round against a black economic empowerment giant, Lebashe Investment Group, and others, in the Supreme Court of Appeal (SCA) on Friday.

This after the appeal by Lebashe Investment Group, Harith General Partners, Harith Fund Managers and the companies’ directors – Gregory Wheatly, Tshepo Mahloele and Jabu Moleketi – was struck from the roll and they were ordered to pay the costs of the appeal application.

Origins of the dispute

The matter is a sequel to an open letter Holomisa, on behalf of the UDM, wrote to President Cyril Ramaphosa on 26 June, 2018, asking him to institute an investigation into allegations of fraud and corruption at the Public Investment Corporation (PIC) against the directors.

Further, 1 July, 2018, Holomisa posted on then Twitter (now known as X) where he accused the directors of being “hyenas”.

They argued the plea was impermissible and contents of the PIC report could not be relied upon to determine the meaning of the published material.

The directors then took exception and sued the UDM and Holomisa for defamation, claiming R2 million in damages and injury caused on 15 August, 2018.

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They said the statements in the letter “were intended and understood by an ordinary reader of a reasonable intelligence to suggest that the appellants were deeply involved in long-standing and escalating corruption scheme”.

Whistleblower claims and political oversight defence

The court heard that the corrupt scheme allegedly implicated then PIC CEO and Moleketi who was nonexecutive director of Lebashe and chair of Harith General Partners and Harith Fund Managers.

It was allegedly involved an unlawful depletion of billions of rand from PIC.

“Furthermore , the appellants’ purported misconduct was depicted as being so pervasive that it rendered the alleged state capture by the Gupta family insignificant by comparison,” the court papers said.

In their court argument, Holomisa and UDM denied their published material was inherently defamatory of the appellants and was published wrongly or with intent to injure them.

Instead, the letter only highlighted allegations of misconduct brought forward by a whistle-blower.

They said as the party and an MP, it was their [oversight] duty to ask the president to initiated an investigation.

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It is alleged in court papers that Moleketi, while serving as deputy minister of finance and PIC chair, allegedly violated the constitution by approving transactions that benefited Lebashe, Harith General Partners and Harith Fund Managers, despite being a director and chair of these companies at the time.

In their defence, Holomisa and UDM also pleaded that any person who is involved in corruption is metaphorically called a hyena.

Holomisa’s letter to Ramaphosa resulted in the establishment of the PIC commission, chaired by former Constitutional Court judge Lex Mpati.

The report concluded that “there are clear instances where the commission found directors and employees benefited unduly from the positions of trust that they held”.

SCA upholds High Court’s decision

The High Court in Johannesburg admitted Holomisa and UDM’s plea derived from the commission report, but the applicants took exception after the court found there was nothing improper about the plea and they appealed to the SCA.

On Friday, the SCA struck the matter off the roll with costs to the appellants.

The court also said the appeal was premature as the matter remained unresolved and the appeal pre-empted the trial court’s final decision.

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