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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 78753/19

 

In the matter between:

 

ALFRED MOKODITOA                                                                              First Applicant

 

NTEBENG MOKODITOA                                                                           Second Applicant

 

And

 

THE GOVERNMENT EMPLOYEES MEDICAL SCHEME                   First Respondent

 

DR GUNVANT GOOLAB                                                                            Second Respondent

 

DR BOJOSI OLEHILE STANLEY MOLOABI                                          Third Respondent

 

MPASHA ISHMAEL MOGAPI                                                                      Fourth Respondent

 

JUDGMENT

 

RANCHOD, J

[1]        The applicants (Mr and Mrs Mokoditoa) in this application for leave to appeal have continued to refer to themselves as ‘the respondents’ as they were cited in the main application by the Government Employees Medical Scheme (GEMS) and three others. In the simultaneous application for condonation for the late filing of the application for leave to appeal they refer to themselves as ‘applicants.’ To avoid confusion and for the sake of clarity I will refer to them as ‘the Mokoditoas’ or as ‘Mr Mokoditoa’ and ‘Mrs Mokoditoa’, as the context may require. I will refer to the applicants in the main application collectively as ‘GEMS.’

 

[2]        The Mokoditoas had lodged a complaint against me with the Deputy Judge President and copied it to the Chief Justice. The upshot was that the Deputy Chief Justice referred the complaint to the Judge President of this Division who, after considering the complaint, informed the Office of the Chief Justice that the complaint should be dismissed forthwith.

 

[3]        The Mokoditoas had alleged that I was biased and, effectively, in cahoots with GEMS’ attorneys when a date for the hearing of the application for leave to appeal was being arranged. I should therefore recuse myself and a Full Court should hear the application for leave to appeal. At the hearing of the application for leave to appeal I pertinently asked their counsel, Mr Kufa whether they still intended to persist with an application for my recusal. I was informed that they no longer wished to do so and the hearing then continued.

 

[4]        On 25 November 2019 I delivered judgment in an application by GEMS for an interdict restraining the Mokoditoas from making or publishing defamatory statements about GEMS and its employees and other ancillary relief. A final interdict was granted.

 

[5]        On 9 March 2020, i.e more than three months after judgment was delivered, the Mokoditoas launched this application for leave to appeal against the whole of the judgment. Although the heading states it is an ‘Application for Leave to Appeal’ in the application itself it is stated that:

 

‘KINDLY TAKE NOTICE THAT the First and Second Respondents intend applying to the above Honourable Court, on a date and at a time to be arranged by the Registrar of the above Honourable Court, for Condonation of the late filing of leaves to appeal and the leave to appeal (sic) to the Full Bench of this Honourable Court (Gauteng Local Division, Johannesburg), (sic) alternatively to the Supreme Court of Appeal against the whole of the judgment, which includes the judgment on costs delivered by His Lordship Mr RANCHOD on the 25^th day of NOVEMBER 2019 on the grounds thereof that the Learned Judge erred in one or more of the following respects:….’

 

[6]        Although it seems to be an application for condonation, I accepted that it is an application for leave to appeal as there is a separate (and voluminous) application for condonation for the late filing of the application.

 

[7]        The application for leave to appeal is based on three grounds, namely, ‘New Evidence’, ‘Constitutional Grounds of Appeal’ and ‘Prospects of Success.’ However, both the first two grounds are based on alleged new evidence uncovered at a so-called section 59 Investigation Inquiry (the s59 inquiry) set up by the Council for Medical Schemes (CMS) chaired by Advocate Tembeka Ngcukaitobi SC regarding allegations of racial profiling by medical schemes of black (inter alia) medical practitioners and pharmacists. That inquiry was not concluded and no findings made at the time when this application was heard. This is an important aspect which I shall revert to when considering the application for condonation.

 

The Application for Condonation for the late filing of the application for leave to appeal

[8]        The application for condonation was filed on 9 March 2020, simultaneously with the application for leave to appeal which was launched more than three months (53 court days) after judgment was delivered. Mr Mokoditoa concedes that the application for leave to appeal should have been filed by 23 December 2019.

 

[9]        The application is voluminous and consists of 24 pages (the affidavit) and 55 pages of annexures.

 

[10]      At the outset I should say that the Mokoditoas appeared to be content with my judgment until the hearing in the s59 Inquiry. This is evident by the fact that Mr Mokoditoa says in his affidavit in support of the application for condonation that the application for leave to appeal was prompted by so-called ‘new developments’ (also referred to as ‘new evidence’) that transpired since judgment was delivered.

 

[11]      A considerable part of the affidavit then deals with evidence led at the s59 Inquiry. Mr Mokoditoa concludes that GEMS was guilty of racial profiling and racist. This, he says, is new evidence that he would want to tender at an appeal hearing in order to show that his defamatory comments about GEMS were justified and in the public interest. For that reason, he says, there are reasonable prospects that my judgment would be overturned on appeal.

 

[12]      What the Mokoditoas overlook is that the s59 Inquiry has not been concluded and no determination has been made as yet. To therefore present some of the evidence led at the inquiry as facts on which they will rely at an appeal is ill-advised and cannot be a basis for granting leave to appeal or condonation.

 

[13]      Mr Mokoditoa states that in terms of a proclamation published in the Government Gazette in July 2019, the Special Investigating Unit (the SIU) was to investigate allegations of corruption by senior managers of the CMS in connection with GEMS. He says he lodged four complaints with the SIU against four senior managers of the CMS after my judgment on 25 November 2019. It is inexplicable that he would only lodge these complaints after my judgment was delivered. The complaints were against certain officials of the CMS who were suspended by the CMS on 13 December 2019 after my judgment was delivered. Mr Mokoditoa says he and Mrs Mokoditoa would have used these facts in their defence to the allegations of the defamation by GEMS. In my view these facts are irrelevant to the defamatory statements made against GEMS and cannot constitute grounds for seeking condonation nor for the leave to appeal. Allegations have been made, but it has not been proved, or conclusively established that GEMS in fact ‘racially profiled’ black practitioners. These allegations cannot and will not amount to further evidence capable of being admitted on appeal.

 

[14]      Apparently, after I granted the interdict, Mr Mokoditoa continued to publish defamatory comments about GEMS. GEMS launched contempt of court proceedings. It was heard in the urgent court by Mngqibisa-Thusi J who granted the relief sought. In her judgment in the contempt application Mngqibisa-Thusi J also stated that the issue as to whether GEMS is racially profiling black practitioners is still in the process of being determined.

 

[15]      When the Constitutional Court referred to the test for the admission of further evidence on appeal in Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC), it was held at p389, par [43] that the Court should exercise such powers sparingly and further evidence on appeal should only be admitted in exceptional circumstances. Such evidence must be weighty, material and to be believed. In addition, whether there is a reasonable explanation for its late filing is an important factor. The existence of a substantial dispute of fact in relation to it will militate against it being admitted;

 

15.1    In my view, the allegations of racial profiling as a basis or seeking leave to appeal do not pass the above test.

 

15.2    In S v N 1988 (3) SA 450 (A) at 458J it was held that a study of the reported decisions of the Appellate Division (as it was known then) on the subject of applications to allow new evidence on appeal over the previous 40 years, showed that in the vast majority of cases relief has been refused: and that where relief has been granted the evidence in question has related to a single critical issue in the case.

 

15.3    The allegation of racism in casu is not a single critical issue which has the ability of turning around the outcome of the entire case: the allegation of racism makes out a minor facet of the numerous far-reaching defamatory allegations published by the Respondents: the Respondents published various allegations to the effect that the Applicants are guilty of the crime of fraud, attempted murder, perjury/lying under oath, corruption, transgressions of the Medical Schemes Act, dishonesty or abusing their powers, being incompetent and being constitutional delinquent.

 

15.4    This ground, which is articulated repeatedly in the application for leave to appeal and in the condonation application, has no merit.

 

[16]      The allegation that Mrs Mokoditoa never posted any defamatory material “other than to be supportive of her husband”, has no merit either:

 

16.1    Evidently, Mrs Ntebeng Mokoditoa, jointly with Mr Mokoditoa, made use of the email address ali.mokoditoa@icloud.com and is the author of the email sent at 8:45 am on 17 October 2019 and also the author of the complaint dated 14 October 2019. Mrs Mokoditoa, according to the version of the Mokoditoas, was supportive of her husband, which confirms these and the fact that she was a joint wrongdoer.

 

16.2    Mrs Mokoditoa is the one who deposed to both the answering affidavits in the main application.

 

16.3    GEMS’ averments that the Mokoditoas published defamatory allegations are not specifically addressed, or denied in either of the two answering affidavits deposed to by Mrs Mokoditoa herself, and are therefore common cause.

 

16.4    Had Mrs Mokoditoa not been party to the publication of the defamatory matter, she would no doubt have said so in the answering affidavits deposed to by her. But she did not say so.

 

[17]      The Mokoditoas contend that I erred in finding that they had not been able to establish the defences of fair comment, truthfulness of facts and public interest. I have already stated my reasons for the finding in the judgment. I do not think that another court would come to a different conclusion. Put another way, there are no reasonable prospects that another court would come to a different conclusion.

 

[18]      The Mokoditoas contend that I erred in not considering the fact that the NPA declined to prosecute Mr Mokoditoa. In this regard they rely on the letter of the NPA dated 13 May 2013. However, it is specifically stated in the letter that certain matters were ‘nolle prosequed’ and that his attention is drawn to the fact that the decision of ‘nolle prosequi’ should not be misconstrued as an acquittal in a court of law. The contents of the letter has no probative value and irrelevant to defamatory allegations published by the Mokoditoas.

 

[19]      The Mokoditoas also contend that I erred in granting the interdict as the requirements for an interdict were not met. The applicants for the interdict, like all other citizens, have a right to dignity and to their reputation. Once an applicant establishes a clear right they need not establish an apprehension of irreparable harm. (See LC Diamond Cutting Works (Pty) Ltd v Diamond Cutting Board 1983 (2) SA 760 (W) at 766C – 767C.) Yet, they did establish a reasonable apprehension of harm as Mr Mokoditoa has persisted with the defamatory conduct. They also had no alternative remedy, as I pointed out in my judgment. A damages claim in due course will not protect the applicants from on-going defamation of the sort in issue in this matter. Also, by their own admission, the Mokoditoas are impecunious.

 

[20]      Finally, the Mokoditoas contend that another court will find the impugned statements are not defamatory per se. Portraying the several officials of GEMS as being, inter alia, dishonest, guilty of criminal conduct, including fraud and perjury, racist, corrupt, abusive, lacking in integrity, incompetent and not fit for the positions occupied by them without any supporting evidence or proof is clearly defamatory.

 

[21]      In all the circumstances, I am of the view that the Mokoditoas have failed to pass the threshold set in s17 of the Superior Courts Act 10 of 2013 in that the appeal would not have a reasonable prospect of success nor is there some other compelling reason for the appeal to be heard. The condonation application falls far short of the requirements to grant it.

 

[22]      I make the following order: -

 

1.    The application for condonation for the late delivery of the application for leave to appeal is dismissed with costs.

2.    The application for leave to appeal is dismissed with costs.

 

 

RANCHOD, J

JUDGE OF THE HIGH COURT

 

 

 

 

Delivered: Due to the Covid-19 pandemic, this judgment was handed down electronically by circulation to the parties’ representatives by email and will be released to the court library. The date and time for hand-down is deemed to be 10h00 on 14 July 2020.

 

 

Appearances:                      

 

 

Appearance for applicants:                 Adv M Kufa & Adv N Moropene

                                                            Instructed by Machaba Attorneys

                                                            c/o Seima Attorneys

                                                            98 Doreen Street

                                                            Oma Office Park

                                                            Colbyn, Hatfield

                                                            Pretoria                                 

 

Appearance for respondents:              Adv A Bava SC & Adv E Kromhout

                                                            Instructed by Gildenhuys Malatji Inc

                                                            164 Totius Street

                                                            Groenkloof

                                                            Pretoria         

 

 

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