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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

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CASE NUMBER: 65725/2015

( l) REPORT ABLE: 'S / NO (2) OF INTEREST TO OTH-~ _.......,,.,.._,. /NO (3) REVISED.

~.:.Q.3: .. ~.~ DATE

In the matter between:

FANA HLONGWANA PLAINTIFF

and

TISO BLACKSTAR GROUP (PTY) LTD DEFENDANT

JUDGMENT

HATTINGH AJ

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BACKGROUND

(1]. The plaintiff issued a combined summons against the defendant and in the

particulars of claim stated that the defendant, during 2016 to 2017 published

various articles that were untrue, defamatory and unlawful allegations against the

plaintiff.

[2]. These articles were:

2.1. On 1 November 2016 it was published online in Sowetan Live that:

"GUPTA 'FIXER' HLONGWANE NAMED IN ROLLS ROYCE PROBE:

REPORT

Controversial South African businessman Fana Hlongwana has been

named as one of a network of agents hired by Rolls-Royce pie,

Britain's manufacturing multinational, to help it land lucrative

contracts in at least 12 different countries sometimes allegedly using

bribes. Hlongwane was at the centre of the arms deal scandal and,

more recently, identified as the 'Fixer' who took Deputy Finance

Minister Mcebisi Jonas to meet the Guptas last year."

2.2. On 3 April 2016 it was published online in Times Live that:

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"ARMS DEAL MAN TOOK JONAS TO MEET GUPTAS

Businessman Fana Hlongwane, who was at the centre of the arms deal

scandal has been identified as the 'Fixer' who took Deputy Finance

Minister Mcebisi Jonas to meet the Guptas last year.,,

2.3. On 4 September 2017 it was published online in Times Live that

"HOW THE GUPTAS1 PROPAGANDA WAR MACHINE WAS BUILT

Hlongwane, who has been fingered as the middleman between the

South African Government and UK Arms Supplier BAE Systems, is

widely regarded as the biggest beneficiary of ¥commissions' in the arms

deal in the early 20001s.,,

[3]. It is stated in the Particulars of Claim that:

"5.

The said words, in the context of the articles are false, wrongful and

defamatory per se of the Plaintiff in that they were intended to convey and

were understood by readers of the publications that the Plaintiff is dishonest

and/or corrupt in the following respect:

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5.1. The defendant (sic) is a person who facilitates lucrative transactions

and/or contracts by using unlawful tactics, i.e. bribes and/or

5.2. The plaintiff is a dishonest and corrupt businessman who obtained

unlawful benefits in corrupt transactions by concluding it as

commissions.

6.

In the alternative to paragraph 5 above, the context of the said articles are

false and defamatory of the Plaintiff in that it impute, and was intended by the

Defendant to impute, and was understood by the readers of the Paper to

impute that the Plaintiff was a dishonest and/or corrupt person who received

corrupt payments from BAE Systems as part of his involvement in the

acquisition process of arms in the so-called Arms Deal by the South African

Government from BAE Systems.

7.

As a result of the defamation, the Plaintiff has been damaged in his -

reputation causing various international business associates of the Plaintiff

to terminate their business relationships with the Plaintiff i.e. BAE Systems

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from the United Kingdom and Rolls-Royce, the UK's leading motor

manufacturing multinational."

[4]. This matter came before the court on the 15th March 2018 for a default judgement

in the amount of R2,000,000.00 (Two Million Rand) and costs of suit.

[5]. During the appearance the court drew the applicant's attention to the fact that the

return of service was a copy and unsigned. An original return of service was then

handed up to the court that was signed.

[6]. The application for default judgment was accompanied by an affidavit in support of

default judgment.

[7]. In the statement the personal details of the applicant is stated as follows:

7.1. He is an adult businessman presently 58 years of age.

7.2. He is an admitted advocate of the court so admitted in 1995 in the Cape of

Good Hope Provincial Division.

7.3. He obtained a Masters of Laws (LLM) degree (cum laude) in 1986 from the

Kiev State University, Ukraine.

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7.4. He returned from exile to South Africa during June 1993. He is also a

member of the African National Congress ("ANC") and Mkhonto We Sizwe

("MK") .

7.5. After his return to South Africa he was appointed as advisor to the then

Minister of Defence (the late Minister Joe Modise), to advise on the

integration of MK into the South African Defence Force ("SANDF").

7 .6. He emphasises that his duties was to advise the Minister only related to the

integration of MK into the SANDF and never included any involvement

relating to the procurement of arms.

7.7. He further stated that he was never an employee of the Government of

South Africa.

7.8. He further stated that he became a very successful business consultant for

various big multi-national companies inter alia British Aerospace PLC

("BAE") and Rolls Royce.

[8]. The applicant states that he became a consultant to BAE after the conclusion of the

arms procurement transaction and his involvement with BAE was to advise them on

the implementation of the National Industrial Participation ("NIPn) programme.

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CLAIM AGAINST THE DEFENDANT

[9]. The claim relates to the publication of defamatory material as per the particulars of

claim.

[1 O]. It is based on the publication of various articles in certain publications of the

defendant which contained untrue, defamatory and unlawful allegations. These

allegations were to the effect that the applicant acted dishonestly and corruptly in

inter alia the acquisition of armament in the South African Strategic Defence

Procurement Package ( "SOPP") in the 1990's to the early 2000's.

[11]. It further relates to the fact that BAE won the tender to deliver Grippen and Hawk

Fighter aircraft to the South African National Defence Force.

MALA FIDE CONDUCT OF THE DEFENDANT

[12). It is stated by the applicant in the affidavit that the conduct of the defendant in

publishing the defamatory material is clearly not only unlawful but also inspired by

malicious intent.

[13]. The court's attention was drawn to a number of investigations prior to these

allegations that illustrated that there was no substance to these allegations. It is

further alleged by the plaintiff that the reports of the defendant had full knowledge of

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all these investigations. Some of these reporters allegedly attended these

investigations and/or reported regularly on these investigations.

VARIOUS INVESTIGATIONS RELATING TO THE ARMAMENT PROCUREMENT

DEAL

[14]. SFO Investigation: It is stated by the applicant that the SFO concluded their

investigations into BAE's involvement in weapon transactions and did not find

corroboration for any alleged unlawful conduct relating to the SDPP.

[15]. JIT Investigation: This joint investigation team was commissioned by the State

President as a result of growing allegations of irregular activities. It comprised of

officials of the Auditor-General , SAPS and the NPA. The applicant quoted from the

report:

"Although u'!usual in terms of a normal procurement practice, this decision

was neither unlawful nor irregular in terms of the procurement process as it

involved during the SDP acquisition. As the ultimate decision maker, Cabinet

was entitled to select the preferred bidder, taking into account the

recommendations of the evaluating bodies as well as other factors such as

strategic considerations.,,

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[16]. The applicant also referred the court to the evidence of Mr Alec Erwin during the

JIT investigation, Mr Erwin was allegedly a member of cabinet and also part of the

Minister's Committee who considered and made recommendations to Cabinet

regarding the preferred bidder in the SOPP.

[17). According to the applicant, Mr Erwin stated:

"The Ministers' Committee considered very carefully any possible prejudice

to tenders should a non-costed option be considered. it was decided that the

consideration of the different option did not amount to moving beyond the

parameters of evaluation criteria, but that it was rather a qualitative

assessment about the precise value of a waiting figure ... None of the

unsuccessful bidders complained in this regard as might have been expected

had the conduct of the Ministers' Committee been improper.,,

[18]. Lastly there was also reference to the Commission of Inquiry into allegations of

fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement

Package ("ARMS PROCUREMENT COMMISSION").

(19]. It is stated by the applicant that it is clear from the evidence presented to the Arms

Procurement Commission that there is no shred of evidence that the applicant was

either involved in any of the decisions relating to the SOPP and/or conducted

himself in any unlawful and/or untoward manner during the acquisition process.

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[20]. When the Arms Procurement Commission delivered its report there was no

suggestion of any unlawful and/or corrupt activities and/or conduct by the applicant

relating to the SOPP. This is so stated by the applicant and further that the

defendant was aware of the said report because they reported widely on the

findings of the report. An extract of the said report was attached to the applicant's

statement.

[21]. It is finally stated by the applicant that he suffered material damages as a result of

the unlawful conduct and publications of the Defendant. He states that his

reputation specifically with reference to honesty and integrity is crucially important

to him as a businessman.

[22]. The applicant alleges that because of the false allegation and publicity by the

defendant the South African Banks closed his account and two others gave him

notice of termination of their banking services. He states it will be impossible to

conduct any business without a bank account which will infringe on his

constitutional rights, inter alia, his fundamental rights to human dignity.

[23]. In the affidavit the plaintiff claims damages in the amount of R2,000,000.00 (Two

Million Rand) as well as the costs of this action.

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[24]. After perusing the papers and after hearing counsel for the plaintiff the following

order is made:

1. Default judgment is granted against the defendant for:

1.1. Payment of the sum of R300,000.00 (Three Hundred Thousand

Rand);

1.2. Interest on the sum of R300,000.00 (Three Hundred Thousand

Rand) at the mora rate from the date of judgment to date of

payment.

1.3. Costs of suit.

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA