The appearance of the word “nefarious” in court papers filed on behalf of the South African Broadcasting Corporation (SABC) and the Special Investigating Unit (SIU) in a case against the Gupta family-linked The New Age Media (TNA Media) caused a stir in the Johannesburg High Court – prompting presiding Judge Motsamai Makume to haul out a dictionary.
The Gupta-linked respondents took exception to the use of the word “nefarious” in describing the acts of TNA Media and approached the court to remove it from legal papers tied to the long-running broadcast media case. However, instead of quietly deleting the word, Judge Makume rendered a dictionary reference and effectively found nothing wrong in associating TNA Media with the impugned word.
The case is part of ongoing litigation brought by the SABC and the SIU over the TNA Breakfast shows, which were once a high-profile television and business platform where ministers, politicians, and executives were invited to explain government policies, programmes and economic plans to the public via SABC News platforms.
According to the judgment, the dispute traces back to agreements signed between SABC and TNA Media in 2012 and renewed in 2015. The contracts later exploded into controversy following investigations by Parliament and the SABC, as well as revelations emerging from the Zondo commission inquiry into allegations of state capture.
It was later found that TNA Media had secured the contract “improperly and not in accordance with procurement procedures”.
The judgment also records that after SABC terminated the agreement in 2017, attorneys for TNA accepted the cancellation and “claimed damages in the amount of R144-million”.
Now the SABC and SIU want former TNA Media directors to formally join the main review application. The respondents include Nazeem Howa, Varun Gupta, Atul Kumar Gupta and Gary Naidoo – all of whom were directors of TNA Media when the agreements were concluded.
The respondents launched a separate application, demanding that portions of the SABC affidavit be struck out, including references to “nefarious acts”.
“The second application to strike out is by the respondents, seeking the striking out of the word ‘nefarious’ as it appears in paragraph 29 of the affidavit by Nomsa Penolope Felity, as well as paragraphs 37 and 41, up to and including paragraphs 48 and 53,” stated the judge.
The respondents argued that the wording was scandalous and prejudicial, but the court disagreed. “According to the dictionary, the word nefarious is an adjective, meaning ‘extremely wicked, villainous, criminal or immoral’. It describes actions, plots or people that are shockingly evil or underhanded,” stated Judge Makume.
“The deponent specifically says, ‘Nefarious acts of TNA Media’ and does not refer specifically to any of the respondents that are sought to be joined.”
Makume took it further: “A perusal of the annexures attached to the founding affidavit… indicate that TNA officials handled the acquisition of that contract by devious means.”
The judgment also references evidence from former SABC executive, who allegedly “carefully narrated how he was threatened and pressurised by both Gupta brothers into allocating the TNA advertising contract by the government”.
Makume ultimately dismissed the application to strike out the wording. He further found that the respondents appeared to oppose the joinder application “for purposes of delay and to avoid accountability”.
The court also rejected arguments that it lacked jurisdiction over Gupta-linked respondents now outside South Africa, finding they had effectively submitted themselves to the authority of the court through their South African attorneys.
The respondents also raised the defence of prescription, arguing that too much time had passed for legal action.
That argument also failed, as Makume pointed to previous SABC-linked rulings, which found that claims linked to unlawful administrative conduct only become enforceable once the conduct has first been set aside by a court.
The judge also referred to findings by the SIU and the Zondo commission, which indicated that TNA directors “were complicit in their maleficence, fraud, and/or corruption that occurred in the negotiations and conclusion of the agreements”.
The respondents were ordered to pay legal costs.
- The Johannesburg High Court rejected the Gupta-linked TNA Media's demand to remove the term “nefarious” from legal papers filed by the South African Broadcasting Corporation (SABC) and the Special Investigating Unit (SIU), with Judge Motsamai Makume affirming the word's appropriateness after consulting a dictionary.
- Litigation stems from controversial agreements between SABC and TNA Media in 2012 and 2015, which were found to have been secured improperly amid allegations of state capture exposed by the Zondo commission and parliamentary investigations.
- Following SABC's termination of the contract in 2017, TNA Media accepted cancellation but claimed damages of R144-million; SABC and SIU now seek to join former TNA directors, including Gupta family members, to the main legal review.
- The court dismissed the respondents' arguments to strike out references to their “nefarious acts,” claims of prejudice, jurisdictional objections, and prescription defenses, citing evidence of corruption, fraud, and undue influence during contract award processes.
- Judge Makume accused respondents of opposing the joinder application to delay proceedings and avoid accountability, ultimately ordering them to pay legal costs and affirming the court's jurisdiction over them through their South African attorneys.
