The Supreme Court of Appeal on Thursday upheld an appeal by former Johannesburg mayor Parks Tau against a Johannesburg high court judgment in February last year. The high court judgment held that statements made by Tau against then Johannesburg mayor Herman Mashaba in 2016 were defamatory.
Mashaba approached the high court in November 2016 for relief, pending the finalisation of a defamation lawsuit to be instituted against Tau at a later stage, for an order ordering Tau to retract remarks he had made alleging Mashaba was s.e.xist and anti-black.
At a funeral of an ANC councillor on August 28, 2016, Tau said: “The city is today led by a man who believes women who are senior executives prostituted themselves to be in the jobs they are in. He says that in fact for them to earn the positions that they are in, they had to sleep with the leadership. We have heard views from the mayor, Herman Mashaba, who says that in fact if it were up to him, he would not want to be black.
Tau did not deny making this statement. However, Tau said his statement was in response to a statement made by Mashaba on August 10 2016 in which he had said: “If the wrong people are in the wrong positions, they are going to be purged. The days when they allowed their girlfriends to run state institutions are over.
Tau opposed the application and indicated he would defend the claim However, Judge Willem van der Linde declared in his judgment in February last year that the statements made by Tau were defamatory. Tau appealed against that judgment.
In a judgment passed on Thursday, the appellate court said it was clear from the papers that Mashaba sought an interim interdict, pending the outcome of a defamation action, to preserve his interests until the merits of defamation action were finally determined.
The SCA said the founding affidavit by Mashaba in the high court made it clear that the dispute between the parties was whether Mashaba was entitled to a retraction and apology, and an interdict to prevent Tau from repeating the initial statements, “between the granting of the interim order and the finalisation of the action”.
The SCA said that is how Tau understood the case he was called upon to meet. The papers show that (Tau’s) defences were fair comment, truth and public benefit and ‘political commentary’. Judge of Appeal Anton Schippers, in a unanimous judgment of the full bench, said the high court order declaring that the initial statements by Tau were defamatory of Mashaba effectively prevented Tau from exercising his right to adduce evidence in defence of a claim for defamation.
“That, in turn, adversely impacts upon his fundamental right to have a dispute decided in a fair public hearing, enshrined in section 34 of the constitution,” Schippers said. Schippers said had the high court determined the dispute before it, as defined by the parties, it ought to have decided whether Mashaba had met the requirements for the grant of an interim interdict. Schippers said this was not to say Tau’s defence of justification was likely to succeed in the defamation action, which was pending.
“That is an issue to be decided by the trial court. But where a factual foundation for a defence of justification has been set up in motion proceedings, a court cannot know whether defamation has been proved until the trial process has shown where the truth lies,” Schippers said. Tau’s appeal was upheld with costs.
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