Ex-spy boss loses damages claim against intelligence watchdog

The high court has dismissed former spy boss advocate Mahlodi Muofhe’s damages claim against the former intelligence watchdog, advocate Setlhomamaru Dintwe.

Muofhe, the domestic head of the State Security Agency (SSA), had complained in 2021 that Dintwe, who was then the inspector-general of intelligence (IGI), breached some of his statutory duties when he confirmed in a TV interview that his office was investigating Muofhe for falsifying his academic qualifications and his admission as an advocate of the high court of South Africa.

According to Muofhe, Dintwe’s conduct violated his fundamental rights to human dignity and privacy, respectively.

On Friday, it emerged that the dispute before the Pretoria High Court turned on a preliminary defence that Muofhe could not seek an order for the declaration of rights and appropriate relief in the form of constitutional damages via application proceedings.

These remedies cannot possibly be granted in application proceedings, argued Dintwe, adding that the relief was impermissible in the chosen proceedings due to a dispute of facts and, thus, fell to be dismissed.

Material dispute of facts

Judge Elizabeth Kubushi on Friday agreed with Dintwe, saying that Moufhe’s argument that the damages part of the claim referred to oral evidence was a concession that there was a material dispute of facts and that the issues could not be determined without the hearing of oral evidence.

Kubushi said that in response to a question from the bench pertaining to a resolution on the dispute of facts, Muofhe conceded that aspects of the ruling could be referred for oral evidence but insisted that the court still retained discretion.

The judge disagreed, saying that Muofhe’s legal team should have foreseen this conundrum.

“Where compensatory remedy is sought, like in this matter, a dispute of facts is likely to arise. A litigant, in such circumstances, must approach court on action proceedings; he or she fails to do so at his or her own peril. The application has, therefore, to be dismissed.”

Kubushi ruled that it was true that a court, in motion proceedings, had the discretion to direct that oral evidence be heard on specified issues with a view to resolving a dispute of fact or, in appropriate circumstances, to order the matter to trial.

“Generally, however, a court will dismiss an application when, at the time that the application is launched, an applicant should have realised that a serious dispute of fact was bound to develop.”

She continued: “In this matter, it is unescapable that the relief sought by Muofhe cannot be granted when the facts concerning the alleged breach by Dintwe of his statutory duties and the subsequent alleged violation of Muofhe’s rights to human dignity and privacy are vehemently disputed.”

Basis for Muofhe’s claim

An unnamed, undated complaint that the office of the IGI received in August 2020 served as the basis for Muofhe’s claim.

It accused Muofhe of impropriety, among other issues, raising the question of the falsification of Muofhe’s academic qualifications and his admission as an advocate of the high court of South Africa.

Subsequent to the receipt of this complaint, Dintwe was interviewed on November 10, 2020 by the news channel eNCA in the news bulletin, which was headlined “SSA Domestic Director Mahlodi Muofhe Investigated for falsifying his qualifications”.

In the said interview, Dintwe was asked to confirm whether his office was investigating the said allegations of impropriety against Muofhe, which he confirmed.

Kubushi said on Friday that the law provided that the IGI may, if the intelligence or information received by him was subject to any restriction in terms of any law, disclose it only after consultation with the president of the Republic of South Africa and the minister responsible for the service in question, subject to appropriate restrictions placed on such intelligence or information if necessary, and to the extent that such disclosure was not detrimental to the national interest.

Muofhe argued that Dintwe never consulted with the president or the minister before making the disclosure about him in the television interview.

“And, in disclosing the private information about him without informing the president or the minister, Dintwe gave no regard at all to whether the disclosure was detrimental or not to the national interest.”

Breach of the law

According to Muofhe, Dintwe’s disclosure turned out to be detrimental to the national interest and was in breach of the law, thus a violation of Dintwe’s statutory obligations.

The contention was further that, in breaching his statutory obligations, Dintwe violated Muofhe’s constitutional rights to dignity and privacy.

Dintwe argued that a claim for violation of the right to human dignity and privacy could not be determined on papers without the benefit of oral evidence where there was a material dispute of facts, and that where compensatory damages are sought, there is always a dispute of facts.

He denied that Muofhe’s. dignity or privacy had been tarnished at all by his announcement that he was investigating the allegation that Muofhe had falsified his qualifications.

In resisting the preliminary defence, Muofhe argued that the essence of the issues in this matter were not in dispute and that in any event, the court had the discretion to determine that, to the extent that any issue may be a subject matter of a dispute, such issue may be referred to oral evidence, and further that, in this instance, the submission was that, definitely, the issue of damages could be referred to oral evidence, but all the other issues could be decided on the papers.

In respect of the question of costs, Kubushi found they should be granted in Dintwe’s favour as requested.

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