The Joburg High Court has reserved judgment on Finance Minister Enoch Godongwana’s R1-million damages claim against businessman Mthunzi Mdwaba over allegations of a R500-million kickback for a government tender.
Allegations of the R5bn UIF deal bribe
Godongwana made an urgent application to the court to seek a declaratory order against Mdwaba. He sought an interdict to stop him from publishing the allegations in the future. The minister also made a monetary claim of R1-million for injury to his reputation.
The matter arises from Mdwaba’s allegations that three ministers were allegedly involved in soliciting a bribe through intermediaries. The allegations were first disclosed in an interview with Sunday World Engage.
The alleged bribe amounted to 10% of the Unemployment Insurance Fund’s (UIF’s) R5-billion job-creation agreement with Mdwaba’s Thuja Capital.
In the follow-up television and radio interviews, Mdwaba mentioned Godongwana among the alleged culprits. He also mentioned Employment and Labour Minister Thulas Nxesi and Higher Education Minister Blade Nzimande.
ANC secretary-general Fikile Mbalula’s name was also mentioned in the allegations. Nxesi has since applied to the court to set aside the agreement between Thuja and the UIF.
Mdwaba claims that the case is not urgent
Mdwaba argued in court on Thursday that the case was not urgent because Godongwana failed to explicitly set forth the circumstances under which he rendered the matter urgent and the reasons for his claim that he could not receive substantial redress through an ordinary application in due course.
Alternatively, the urgency was self-created, adding that Godongwana should have brought the application sooner.
His lawyer, Advocate Phazha Ngandwe, argued that for urgency to be granted, Godongwana must demonstrate that he had a clear right being violated. There must be an actual injury committed or reasonably apprehended. And there must not be similar protection available to the applicant by any ordinary means or remedy.
‘Godongwana’, according to Ngandwe, sought to interdict Mdwaba from events that had already happened or were occurring in the future. These were unknown and uncertain.
“The matter cannot be urgent because the proverbial ‘horse has already bolted out of the stable’. The application is therefore presumptuous and speculative.”
Footage of allegations still circulating on social media
Godongwana’s lawyer, advocate Tembeka Ngcukaitobi, disagreed. He said Mdwaba had repeated the same false and defamatory statements. “The interview footage is still being shared on various social media platforms,” added Ngcukaitobi.
Ngcukaitobi said that due to social media reach, more and more people will believe Godongwana was corrupt and untrustworthy. “Therefore, the order sought has the effect of preventing further damage to Godongwana’s name and the office that he holds. Unless Mdabwa is made to retract the defamatory statements, the public will continue to believe that Godongwana is corrupt,” he said.
Turning to the merits of the application, Mdwaba told the court that his statements in the interviews were not mala fide. He added that he had no intention during the interviews to defame anyone. The businessman believed he had not done so.
He said that he engaged in the interviews in good faith, without the intention of injuring Godongwana’s reputation. Mdwaba added that he was of a reasonable belief that the information shared with him was true and correct. The said information was shared by the ministers’ intermediaries on or about May 19, 2023. It was also shared in subsequent meetings .
Interviews were of public interest, not defamatory
Mdwaba said he conducted the interviews in the public interest to inform the public of the information shared with him. He wanted to reveal what he suspected were acts of corruption. This was based on the information provided to him.
Ngcukaitobi said this version suggested that Mdwaba was a whistleblower. “But the contrary is true. He is, in fact, a malicious, disgruntled businessman.” He claimed that Mdwaba only made the information public on November 7 of last year because Nxesi had, at that point, stifled his business ambitions.
Malicious rumour from disgruntled businessman
“So he had this malicious rumour for five months, and he did nothing about it. And then, only after his business was stopped, he tried to put pressure (on the government) using this information.”
He went through the elementary requirements of a defamation claim and told the court that Godongwana’s case checked all the boxes. This included whether the allegations made were defamatory, whether there was an intention to injure, or whether it was a fair comment.
Ngcukaitobi said that even after Mdwaba was served with a letter of demand, he continued to repeat the allegations. He also refused to retract. “So the entire defamation analysis is complete… There is no defence.”
“He tried here to run the defence that says I’m just republishing a rumour. But we know the law. The republication of a rumour is exactly in the same position as the originator of the rumour. When it was still within them, nobody cared. But as soon as it came out, it became defamatory because defamation requires publication.”
Godongwana also applied for a punitive cost order against Mdwaba. He accused him of being “a disgruntled businessman who is trying to leverage these allegations for private interest.”
Judge Dario Dosio reserved judgment.