IRD Global v Global Fund to fight AIDS, Tuberculosis and Malaria [2024] ZASCA 109
CIVIL PROCEDURE – Jurisdiction – Defamation and internet
Neither party, both peregrini, having any real connection to South Africa – Cause of action arising in Pakistan – Background facts, convenience and law governing relevant transaction are outside court’s area of jurisdiction – Insufficient that South African attorney downloaded alleged defamatory report from website – Internet publication, with its global reach, must be contained otherwise multiple actions may follow in jurisdictions with no real connection to parties or issue in dispute – High Court correct in holding that it did not have jurisdiction.
Facts: The appellant, IRD Global, is a global health delivery and research organisation and was founded in Pakistan in 2004. It is registered in Singapore and is alleged to have an established project profile in 17 countries and affiliates in nine countries, including in South Africa. The respondent, the Global Fund to fight AIDS, Tuberculosis and Malaria, is an international organisation established in Switzerland and is involved in the fight against certain diseases as donor and implementor of Global Fund-supported programs. Both parties are peregrini of the High Court and own no immoveable property in South Africa. In 2021, the respondent published a report on its website, compiled by its investigating unit, known as the Office of the Inspector General (OIG), titled “global fund Grant in Pakistan – Prohibited practices compromised procurement in tuberculosis program”. The report, which is globally available on the respondent’s website, contains numerous allegations that the appellant considers defamatory.
Appeal: The appellant’s South African attorney, acting on instructions, accessed the respondent’s website and downloaded the report in Johannesburg. The appellant, on the basis that the report was accessed in Johannesburg, intends to pursue a defamation action in the High Court against the respondent. The appellant launched an urgent application in the High Court seeking interim relief. The dispute in this appeal is whether the High Court was correct in holding that it did not have jurisdiction to entertain an application for interim relief (the main judgment) and whether that court correctly exercised its discretion when it granted the respondent’s application for additional security for its costs (the security judgment).
Jurisdiction: Neither party, both peregrini, has any real connection to South Africa. The process was not served in South Africa and the respondent does not have a place of business locally. Although the respondent actively seeks South African donors, such funds are donated to grant recipients, therefore the respondent does not have access to the funds in South Africa. The appellant’s local affiliate has not joined in the litigation and there is no indication that the publication has had any effect on it. There is further no connection between the High Court’s jurisdiction and the dispute. The cause of action arose in Pakistan where the appellant is alleged to have compromised the tuberculosis grant. The background facts, convenience and the law governing the relevant transaction are outside the court’s area of jurisdiction. The only connection to the High Court’s jurisdiction is that the attorney accessed the report in its jurisdiction. That is insufficient. Internet publication, with its global reach, for practical purposes must be contained otherwise multiple actions may follow in jurisdictions with no real connection to the parties or the issue in dispute other than publication. Such a situation is untenable and may cause grave inconvenience to the court, witnesses and litigants. In the circumstances of this matter, adequate connecting factors for jurisdiction are absent and the court would be unable to give effect to its judgment.
Interim relief: The respondent at an early stage indicated that it stands by the allegation, asserts the truth thereof and relies on truth and public interest for the publication. This was after the respondent had undertaken an elaborate investigation over many months and had given the appellant an opportunity to comment on its initial findings. Therefore, the allegations cannot be approached on the basis that they were spurious and defamatory as the respondent has indicated after considering the appellant’s exculpatory reply that it stands by the truth of the allegations contained in the report. Arab News published a leaked copy of the initial draft report and on 1 April 2021 and the respondent published the report on its website. Yet the appellant only approached the court in May 2021 for interim relief and three years later, in 2024, issued summons. There was arguably a basis for interim relief three years ago. The appellant has not made out a case for an interdict to restrain future defamatory publications and there is no evidence that the harm is ongoing. The right the appellant seeks to protect is not under threat of irreparable harm as the harm occurred three years earlier. An interdict is not competent relief where the respondent has put up a valid defence to the defamation charge.
* See paras [22]-[26] on whether motion proceedings are suited to deal with defamation allegations.
** See para [27] on how the court is unable to find a ground to interfere with the security judgment.
Order: The appeal is dismissed with costs including the costs of two counsel, where so employed.
BAARTMAN AJA (MOCUMIE JA, SCHIPPERS JA, KOEN AJA and DAWOOD AJA concurring)
~
FAMILY – Maintenance – Financial disclosure – Applicant seeking interim maintenance pending divorce
Analysis of respondent’s financial disclosure bundle – Failed to disclose bank accounts – Spending at luxury boutiques and holidays making mockery of his allegations regarding his income – His lack of disclosure not meaning applicant entitled to full amount of her claim – Court arriving at monthly maintenance amount by examining “wish-list” of applicant and making appropriate adjustments – Order also made for contribution to legal costs.
Facts: The applicant married the respondent in 2009 and they have three girls, the eldest born in 2013 and the youngest in 2020. She is a qualified primary school teacher working part-time and earns R6,500 per month. She left the matrimonial home in 2024. She objected to the respondent pursuing a relationship with her close friend that would seemed to be destined to result in a polygamous marriage. Many of the difficulties that she details in her papers seem to be as a result of the relationship between the respondent and her former best friend. She has been living with her brother in his rented accommodation but will be required to source her own accommodation as her brother is relocating overseas. Although she does not know the financial worth of her husband, he is a successful surgeon at Umhlanga Netcare Hospital. He owns his own laparoscopic clinic. He is the trustee of two trusts and a director of three companies and he invests in crypto currencies. She believes the marital home is worth about R10 million. The respondent owns two luxury motor vehicles and a Hyundai Staria worth approximately R1 million.
Uniform Rule 43 lawfare: The applicant approached this court in terms of Uniform Rule 43, seeking interim maintenance and a contribution to her legal costs, pending the finalisation of her action for divorce from the respondent. The claim and original counterclaim represent a regular challenge to courts dealing with interim maintenance claims. Whereas Uniform Rule 43 properly used is a speedy and temporary relief designed to assist disadvantaged, often destitute, litigants, and quite properly in terms of the paramountcy principle enshrined in section 28(1) of the Constitution to protect children, it has become an arena for protracted and overly prolix litigation, often with results that are at odds with the goal of the litigation. The papers filed in this matter are merely another example of this travail.
Discussion: In accordance with her standard of living with the respondent, before she left the marital home, the applicant claims R108,138 per month excluding a once-off claim for furniture in the amount of R174,000. The respondent states he earns a salary of R79,536 on average, but he does not deal with the allegations set out by the applicant in her founding affidavit. Counsel for the applicant has subjected the respondent’s financial disclosure bundle to a searing and unforgiving analysis. This reveals that the submissions made by the respondent in his affidavit are at best extremely misguided, at worst they are quite simply a disingenuous attempt to obfuscate his financial position. The funds he has at his disposal and in particular his disposable income as evinced by his spending at luxury boutiques and holidays make a mockery of his allegation that his income is limited to his salary. The respondent has failed to disclose bank accounts that he seems to be linked to when one follows the flow of funds and it is evident that he has deliberately set out in his affidavit information to mislead or hide from the court his true financial position.
Findings: The respondent has been less than forthcoming with his financial standing, but this does not mean that the applicant is therefore entitled to the full amount of her claim. The procedure in Rule 43 is intended to provide an inexpensive and expeditious mechanism to enable a spouse to claim maintenance from the other spouse pending the finalisation of the divorce. It does not necessarily entail the granting of a wish list. When dealing with the amounts claimed by the applicant, the claim is excessive and would constitute an unfair burden on the respondent notwithstanding the manner in which he proceeded in this claim. By examining the “wish-list” of the applicant, and making appropriate adjustments, the applicant’s maintenance in respect of herself and the three children should be fixed at R55,000 per month. This is separate to the agreement that the respondent will maintain the applicant and the three minor children on his medical aid and pay all expenses in respect of the three minor children’s education including all related expenses which include extramural activities.
Order: Pendente lite, primary residence of the minor children is awarded to the applicant. The respondent is ordered to pay maintenance to the applicant for herself and the minor children as follows: R55,000 per month and the medical expenses of the children, as well as their school and sporting fees. The respondent is to pay a once-off payment to the applicant in an amount of R50,000 for the cost of furnishing her residence and to contribute R40,000 towards her costs in the divorce proceedings. The costs of the application are reserved for decision by the court determining the divorce action between the parties.
DAVIS AJ
~
Sibanye Gold v CCMA [2024] JR477-22 (LC)
LABOUR – Dismissal – Safety in mine – Conduct of employee constituting gross negligence
Arbitrator having no regard to essential requirement of safety on mines – Ignoring crucial evidence – No proper assessment of probabilities – Approach irregular – Outcome arrived at unsustainable on evidence – Misdirection and unreasonable – Finding of substantive unfairness reviewable – Arbitration award reviewed and set aside – Substituted with award that dismissal substantively fair.
Facts: The applicant conducts business as a mining company. As such, it is subject to the strict safety requirements and stipulations as contained in the Mine Health and Safety Act 29 of 1996. Makhetha was employed by the applicant, and at the time of her dismissal held the position of Supervisor: Operations. The position of Makhetha is what is commonly known as a “shift boss”. As shift boss, Makhetha was directly responsible for the health and safety of the crew under her, whilst working at the particular workplace tasked to her. This matter arose from the dismissal of the employee by the applicant, following disciplinary proceedings against her for misconduct relating to what was in essence gross negligence. The dismissal was then pursued as an unfair dismissal dispute, to the CCMA, and the dispute ultimately came before the arbitrator for arbitration.
Review: The arbitrator decided that the employee’s dismissal by the applicant was substantively unfair. The applicant has brought an application to review and set aside the arbitration award of the arbitrator of the CCMA. The application is brought in terms of section 145 of the Labour Relations Act 66 of 1995.
Discussion: There are difficulties with the way the arbitrator considered the evidence. There were several pertinent probabilities, and actual undisputed evidence, completely ignored by the arbitrator. The arbitrator become embroiled in what he perceived to be the deficiencies in the evidence of the sole witness for the applicant, being the Mine Overseer, Booysen, virtually to the exclusion of all else, and what emerged as undisputed facts and the probabilities. For the arbitrator to simply negate all this evidence completely, as he did, without any proper cause or reason, is an untenable situation. Makhetha’s superior (Zulu), in an inspection of her workplace, found material safety concerns, in that the supports were not up to standard. This fact is not contested. Zulu specifically drew this to Makhetha’s attention and instructed that this be remedied before work continue on the panel. Makhetha was so instructed. What Makhetha then should have done was to immediately issue a Stop Instruction, and then supervise the remedying of the safety risk. However, she did not do this. What she did was to verbally instruct her crew to fix the supports before proceeding with work. So, whilst it is true that Makhetha did instruct her crew to fix the safety concerns, it fell far short of what was actually needed. The work crew continued drilling and blasting the panel, and there was a fall of ground resulting in two crew members being fatally injured and a third one being in a critical condition.
Findings: The evidence, considered as a whole, showed that Makhetha indeed committed the misconduct as contemplated by the charge against her, which she had been found guilty of. She failed to ensure that safety instructions given to her were carried out, and failed to ensure that the sub-standard safety conditions were rectified before work continued on the panel. She should have issued a Stop Instruction, which would have ensured that the safety concerns would be remedied, before any work on the panel could even start. The arbitrator’s finding that Makhetha committed no misconduct is unsustainable, and not a finding that would resort within the bands of a reasonable outcome, considering the evidence as a whole. Once it is true that Makhetha committed misconduct, it was important to have established what the nature of that misconduct was. In this regard, the arbitrator dismally failed. The misconduct of Makhetha is very serious. It deserved the label of “gross neglect of duty” attached to it in the charge. The arbitrator’s finding that the dismissal of Makhetha was substantively unfair constitutes an unreasonable outcome, cannot be sustained, and falls to be reviewed and set aside.
Order: The arbitration award is reviewed and set aside. The arbitration award is substituted with an award that the dismissal of the respondent, Makhetha, by the applicant, was substantively fair.
SNYMAN AJ
~
ABOUT SPARTAN CASE LAW
The ultimate case law service, curated by experts in law reports.
- 14 recent cases summarized and delivered each morning at 6am in an interactive online experience.
- The latest legal news, articles and updates.
- Online case index with intuitive search functions and cases categorised under topics and sub-topics.
Find out more at the Spartan Caselaw website:
Spartan Case Law
