Muofhe looks to appeal court ruling against intelligence watchdog

The former head of the domestic branch of the State Security Agency (SSA), advocate Mahlodi Muofhe, has acknowledged the Pretoria High Court judgment against him in the legal dispute with former inspector-general of intelligence (IGI), advocate Setlhomamaru Dintwe, and says he intends to respect the findings.

Speaking to Sunday World from South Sudan, where he is stationed as South Africa’s ambassador to the country, Muofhe warned, however, that his legal team was studying the ruling delivered last Friday “with a view to looking at the possibilities of appealing the judgment”.

“It is in the nature of civil litigation that any judgment can go this way or that way,” said Muofhe.

Muofhe had complained in 2021 that Dintwe had 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.

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

On Friday, high court judge Elizabeth Kubushi dismissed Muofhe’s damages claim against Dintwe, saying Muofhe could not seek an order for the declaration of rights and appropriate relief in the form of constitutional damages via application proceedings and not action proceedings.

Relief was impermissible

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

On Friday, Kubushi 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 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.”

Unnamed complaint the basis of 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, 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.

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.”

Violation of rights to privacy

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 his announcement that he was looking into the allegations had damaged Muofhe’s dignity or privacy in any way.

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