Holomisa not entitled to 'wantonly defame' Lebashe, Harith, ConCourt rules

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Bantu Holomisa.
Bantu Holomisa.
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  • The Constitutional Court has ruled that the UDM leader Bantu Holomisa failed to prove defamatory allegations against the Lebashe Investment Group and fund manager Harith.
  • The matter dates from 2018 when Holomisa wrote two letters to President Cyril Ramaphosa making allegations against Lebashe, Harith, and some of its directors, asking the president to have it investigated.
  • Since the Constitutional Court ruling only upholds an interim interdict against Holomisa from 2018, Lebashe and Harith will now continue with legal proceedings for damages.
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The Constitutional Court has ruled that the United Democratic Movement (UDM) and its leader Bantu Holomisa failed to prove that corruption claims it made against the Lebashe Investment Group and fund manager Harith in 2018 were true and in the public interest.

Lebashe is the owner of Sunday Times and Business Day owner Arena Holdings. Harith General Partners is a fund manager that invests in infrastructure projects in Africa. It is also part of the Takatso Consortium, government's chosen strategic equity partner for SAA. Businessman Tshepo Mahloele co-founded Harith, founded Lebashe, and is the chair for both, along with Takatso.

The highest court in South Africa dismissed an appeal against an interim high court ruling that prevented Holomisa from repeating the allegations. The Constitutional Court found he was not entitled to "wantonly defame" Lebashe and Harith "under the pretext that they were executing a constitutional duty". 

"When a public figure plainly defames members of the public while admitting that he or she does not know the truth of what he or she says, his or her right to freedom of expression may justifiably be limited," it found.

The Constitutional Court judgment sets out how the case unfolded. 

In May 2018 Holomisa addressed two letters to President Cyril Ramaphosa titled "The Public Investment Corporation, the Government Employee Pension Fund and Suspected Corruption; a Scandal Bigger than the Gupta-Family's State Capture". In June Holomisa sent another one titled "Unmasking Harith and Lebashe's Alleged Fleecing of the Public Investment Corporation".

Holomisa wanted to convince Ramaphosa to have the Judicial Commission of Inquiry into State Capture look into allegations made by a whistleblower.

The letter written to Ramaphosa in June was also published on the UDM's official website. On his personal Twitter account, Holomisa put a link to the June letter and referred to "state capture of a different kind as the ultra rich elite allegedly plunder [the Public Investment Corporation] through companies Lebashe & Harith".

Holomisa also gave a radio interview and said that he would not back down and retract the statements he made in his letters to Ramaphosa regarding "dodgy deals between the PIC and Lebashe and Harith General Partners".

In July Holomisa published another statement on social media referring to Warren Wheatley, a director and chief investment officer of Lebashe, Tshepo Mahloele, then CEO and director of Lebashe and Harith, and Jabu Moleketi, chair of the companies, as "trusted indunas" and "hyenas" of Ramaphosa and the PIC.

Interim interdict

Lebashe, Harith, Wheatley, Mahloele and Moleketi applied in the North Gauteng High Court in Pretoria for an interim interdict against the UDM and Holomisa. They claimed Holomisa had no valid reason to make "such explosive and inherently inflammatory allegations". They also claimed that, as a result of the offending letters and adverse publicity, certain investment opportunities were lost. These included Vele Asset Managers, which terminated a funding arrangement with Lebashe. Investec Private Bank also made an enquiry expressing concerns about the allegations.

The UDM and Holomisa, on the other hand, argued that it regards the lack of transparency and accountability in the manner in which public funds are utilised in SA as one of the greatest threats to the rule of law and the country's democratic establishment itself. 

As a result, the UDM and Holomisa claimed it as of great importance that, "where corruption is suspected, it must be exposed publicly and formal steps must be taken to investigate and eradicate it". It contended that the letter addressed to Ramaphosa was dealing with matters of public interest as public officials were accused of abusing their positions at a public entity for private gain. 

In 2018 the North Gauteng High Court in Pretoria granted an interim interdict against the UDM and Holomisa pending a defamation case by Lebashe and Harith. The defamatory statements also had to be removed from social media.

The UDM and Holomisa claimed that order restrained and prohibited them from exercising their right to freedom of expression and from performing their duties as political actors in terms of the Constitution. 

The high court however, found that the letter was defamatory, which resulted in causing Lebashe, Harith, Wheatley, Mahloele and Moleketi irreparable harm. They, therefore, needed a court order to prevent the further and continuing harm. The interim interdict was seen the only appropriate remedy pending the final determination of the action for damages.

Holomisa approached the Supreme Court of Appeal, which upheld the high court ruling, before approaching the Constitutional Court. 

Harith has indicated in a statement on Friday that it will continue to pursue legal proceedings against the UDM and Holomisa for damages incurred as a result of the defamation. 

"This legal victory belongs to our stakeholders, investors and employees who stood with us in the past challenging few years – believing in our bona fides as good corporate citizens going about our business activities with integrity and within the prescripts of the law," states Harith CEO Sipho Makhubela.

Holomisa has not immediately responded to News24 Business' request for comment. 

The commission of inquiry into the PIC recommended in its report that the state-owned asset manager and the Government Employees' Pension Fund (GEPF) should appoint an independent investigator into Harith "as soon as possible". It found that Harith's conduct "was driven by financial reward to its employees and management, and not by returns to the GEPF".

Harith has denied any wrongdoing, saying an independent investigation had cleared it. 

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