An urgent application seeking to prevent Lowvelder from publishing allegations about former Pumas sponsor, Innovative Solutions Group (ISG), Innovative Staffing Solutions (ISS) and its owner, Arnoux Maré, was dismissed with costs in the Pretoria High Court yesterday.

The allegations ISG and the other two applicants sought to keep out of the public eye were presented to them as eight questions on August 21, five days after their alleged failure to pay the Pumas rugby team in terms of a sponsorship agreement, which also featured in a Lowvelder front page report.

Yesterday in court, Acting Judge Swanepoel found in favour of Lowveld Media, its acting editor, Irma Green, and veteran journalist, De Wet Potgieter, as represented by Willem de Klerk Attorneys and Adv Claire Avidon.

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ISG and co-applicants, ISS and Maré were represented by Sean Hefferman Attorneys and Adv Martin van Twisk.

Swanepoel referred to some of the allegations levelled at ISG in media queries and questioned why the applicant tried to interdict Lowvelder as opposed to answering the publication’s questions.

Specifically, ISG wanted the court to interdict Lowvelder from “reporting on and publishing an article that the second respondent intends to write concerning the applicant”.

Avidon described this as a blanket ban that would unjustifiably infringe on Lowvelder’s and the broader media’s right to freedom of expression. Furthermore, she pointed out that the applicants failed to assert which impending rights violation they sought to protect clearly – an argument Swanepoel seemed to accept.

“You have had since August 21 to formulate answers to simple questions, such as whether you are BEE compliant… The questions were easy, it is not as if your client was asked for a formula that needs rocket science,” said Swanepoel.

He also referred to a question asking Maré if he had been arrested for drunk driving a number of months ago.

Regarding this, he said, “What happened to Maré? Tell us the status of the case. It is easy for your client to answer. Why he does not want to answer? It seems to me, is that the answer may not be that positive.”

He added that “the court cannot protect him from the truth”.

Avidon referred to more allegations, such as alleged irregularities with PAYE deductions made from employees whose payslips ISG had been administrating.

She stated that the applicants did not deny the truth of allegations presented to them, which was also noted by Swanepoel.

Allegations against the applicants also included that, in June, a large group of truck drivers blocked the N4 near Hectorspruit claiming that ISG never paid over their provident fund and tax deductions, as required by law. This allegation, Swanepoel noted, had also not been denied.

Avidon referred to the seminal case of National Media Limited v Bogoshi, in which the Supreme Court of Appeal acknowledged the media’s right to freedom of expression and its duty to “ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators”, and argued that “if there are allegations about tax and UIF issues (against the applicants), employees must know about it”.

Van Twisk argued that the publishing of information in reaction to which the applicants’ response had been sought would be prejudicial to ISG, ISS and Maré. Swanepoel said, in reaction to this, that the applicants never denied truth of the allegations contained in Lowvelder’s media queries, but that they denied it being in the public interest.

Avidon explained why the matters Lowvelder are investigating are in the public interest.
“Mr Maré aligned himself with the Pumas and business in the public eye. A person of that calibre cannot expect to be immune against public scrutiny.”

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She also stated that companies have a statutory duty to disclose certain shareholder details, something that the applicants failed to do.

With reference to the case of Malema v Ramapedi, a case involving an attempt by Julius Malema to prevent City Press from publishing corruption allegations against him, Avidon relayed the test for pre-publication interdict applications.

“The court considered reasonableness and had to weigh whether the right to publish is supported by trustworthy facts, as measured against the subject’s rights.”

She pointed out that the media is bound to Press Code’s reasonableness standard. “The effect of an interdict will be barring any media from publishing,” she said, adding that this would be an unjustifiable outcome.

Lowvelder is awaiting Swanepoel’s full judgement, which he is finalising, as well as responses from ISG, ISS and Maré in reaction to the eight questions sent on August 21.

At the time of press, this had not yet been received and a follow-up report will be published once they have exercised their right of reply.