The Johannesburg high has court struck from the roll an urgent application by Malusi Shezi, the CEO of the Construction Education and Training Authority (Ceta), who wanted an order declaring that three articles published by the Sunday Times were false and defamatory.
In addition, Shezi had asked the court for an order to compel the Sunday Times to retract the articles, make an apology and for an interdict prohibiting further publication.
“The application must be dismissed for lack of urgency,” judge Leonie Windell said.
She said claims for unliquidated damages must be pursued by way of action proceedings. Windell said defamation claims, by their very nature, involved claims for unliquidated damages.
“The applicant's attempt to obtain it by motion is impermissible.”
Windell also said the relief Shezi sought was misconceived.
Shezi had sought to restrain the Sunday Times from publishing any statements about him in respect of an ongoing investigation by the auditor-general (AG) without “verification from the main source”.
“The publications identified in the founding affidavit are already in the public domain. It is trite that a prohibitory interdict cannot undo what has already occurred and is therefore pointless when directed at past publications.”
She said once a defamatory matter was in the public domain, an interdict was not an effective remedy but rather a form of ineffective censorship.
The court said Shezi launched this application only after the relevant information had already been published and, worse still, permitted a further article repeating the very same allegations about the AG’s investigation to be circulated without any attempt to prevent its publication.
Windell said between June 22 and July 27, the Sunday Times published five articles about the Ceta, though only three were the subject of this application.
On July 6, an article was published alleging that the Ceta's R49m building acquisition had been flagged as irregular by the auditor-general.
“The article reported that this finding contradicted [Shezi's] assurances to the standing committee on public accounts (Scopa) that the transaction was approved by National Treasury and noted valuations which put the building’s worth far below the R78m he had claimed.”
On July 20, another article alleged that the Ceta had paid for a biometric system which did not exist. The Sunday Times cited a leaked AG document, an IT manager’s statement that he had never seen the system in operation and records of payments authorised under the applicant’s watch.
The court said the last article, on July 27, described the dismissal of the acting HR executive in what it called “an apparent whistle-blower hunt” and referred to irregular appointments within the Ceta.
Windell said the article repeated allegations from the earlier articles, that the AG had flagged procurement irregularities and that the applicant had misled parliament regarding both the office purchase and the biometric system.
The judge said despite this, Shezi did not seek to interdict its publication.
“In every instance [Shezi] was approached for comment before publication. His responses to the June 22 and July 6 articles were published in full, but he ultimately refused to comment on the July 20 and 27 articles despite being given extra time to do so.”
Windell said it was clear that Shezi knew these articles would be published, yet took no steps to prevent them.
“Having allowed this information to enter and remain in the public domain, he now seeks to restrain future publications of it.”
Windell said the allegations complained of were not first revealed by the Sunday Times.
“They had already been ventilated in the public domain more than a year before this application was launched — through reports in other newspapers and even an online petition endorsed by over 300 signatories.”
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