Lebashe Investment Group (Pty) Ltd and Others v United Democratic Movement and Another (1308/2023) [2025] ZASCA 29 (28 March 2025)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not
reportable

         
     Case
no: 1308/2023

In
the matter between:

LEBASHE
INVESTMENT GROUP (PTY) LIMITED                        

 FIRST APPELLANT

HARITH
GENERAL PARTNERS (PTY) LIMITED                      

 SECOND APPELLANT

HARITH
FUND MANAGERS (PTY) LIMITED                                 

 THIRD APPELLANT

WHEATLEY,
WARREN GREGORY                                             

FOURTH APPELLANT

MAHLOELE,
TSHEPO DUAN                                                       

  FIFTH APPELLANT

MOLEKETI,
PHILLIP JABULANI                                                 

  SIXTH APPELLANT

and

UNITED
DEMOCRATIC MOVEMENT                                          

FIRST RESPONDENT

HOLOMISA,
BANTUBONKE HARRINGTON                         

 SECOND RESPONDENT

Neutral
Citation:    Lebashe Investment Group (Pty) Ltd
and Others v United Democratic Movement and Another (1308/2023)
[2025] ZASCA 29 (28 March 2025)

Coram:       
SCHIPPERS, HUGHES and BAARTMAN JJA and WINDELL and NORMAN AJJA

Heard:         
25 FEBRUARY 2025

Delivered:   
28 MARCH 2025

Summary:   
Practice — pleadings — exception on ground that
amended plea does not disclose a defence — appealability of
dismissal
of exception — interests of justice not supporting
appealability.

ORDER

On
appeal from: Gauteng Division of the High Court, Pretoria (Bokako
AJ)

The
appeal is struck from the roll with costs, such costs to include the
costs of the application for leave to appeal, all of which
will
include those consequent on the employment of two counsel.

JUDGMENT

Windell
AJA (Schippers, Hughes and Baartman JJA and Norman AJA concurring):

Introduction

[1]            
This is an appeal against the dismissal of an exception
raised by the
appellants in response to the respondents’ amended plea. The
appeal is with leave of the Gauteng Division of
the High Court,
Pretoria (per Bokako AJ).

[2]            
 As
with many interlocutory orders brought before this Court on appeal,
the question about appealability is squarely raised.
Although the
order of the court a quo is interlocutory in nature, and despite the
reservations expressed in TWK Agriculture
Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and
Others[1]
(TWK)
regarding the appealability of an order dismissing an exception, it
is now settled that the requirements in Zweni
v
Minister of Law and Order,[2]
namely whether the relief granted is final in its effect, definitive
of the rights of the parties, and disposes of a substantial
portion
of the relief claimed, do not override the interests of justice when
determining the appealability of any order, whether
interlocutory or
otherwise.[3] In United
Democratic Movement and Another v
Lebashe
Investment
Group (Pty) Ltd and Others
(a matter which, coincidently, involved the same parties now before
this Court on appeal), the Constitutional Court stated that
the
interests of justice requirement is not confined to the
Constitutional Court but equally applies to this Court.[4]
In Mineral
Sands Resources (Pty) Ltd and Others v Reddell and Others,[5]
the Constitutional Court pertinently addressed the appealability of
an order dismissing an exception and held that the interests
of
justice criterion is ‘more expansive’ and the
operative standard.

[3]            
An appeal
should thus proceed if its appealability or the granting of leave to
appeal best serves the interests of justice —
regardless of any
pre-Constitution common-law impediments.[6]
The interests of justice will depend on a careful evaluation of all
the relevant factors in a particular case.[7]
Consequently, the dismissal of an exception may be appealable if the
circumstances of the case warrant it. This leads me to the
facts of
the case at hand.

The
facts

[4]            
The first appellant, Lebashe Investment Group (Pty) Ltd,
is an
investment holding company, while the second and third appellants,
Harith General Partners (Pty) Ltd and Harith Fund Managers
(Pty) Ltd,
operate as fund managers, investing on behalf of their investors in
infrastructure projects across Africa. The fourth,
fifth, and sixth
appellants are directors of these companies, though not all of them
hold directorships in the same entity. Collectively,
they are
referred to as ‘the appellants’.

[5]            
On 15
August 2018, the appellants issued summons against the respondents,
seeking R2 million in damages for defamation and injuria.
Their claims arose from two publications alleged to be per
se
defamatory: a letter authored by the second respondent, Mr Bantubonke
Holomisa, a Member of Parliament and the President of the
first
respondent, the United Democratic Movement (UDM), a registered
political party. The letter, dated 26 June 2018, was written
on the
UDM’s official letterhead and addressed to the President of the
Republic of South Africa, and made available to the
public. The
second publication was a tweet posted on UDM’s account on the
social media platform X (formerly Twitter) on 1
July 2018, in which
the sixth appellant and others were referred to as ‘hyenas’
(the tweet).[8]

[6]            
The particulars of claim assert that the statements in
the letter
titled ‘Unmasking Harith’s and Lebashe’s Alleged
Fleecing of the Public Investment Corporation,’ which were
affirmed as accurate in the tweet, were intended and understood by an
ordinary reader of reasonable intelligence to
suggest that the
appellants were deeply involved in a longstanding and escalating
corrupt scheme. This scheme allegedly implicated,
among others, the
then CEO of the Public Investment Corporation (PIC), a state-owned
vehicle and asset-management company established
in terms of s 3 of
the Public Investment Corporation Act 23 of 2004 and the sixth
respondent, who served as a non-executive director of the first
appellant and chairman of the second and third appellants.
It was
alleged to involve the unlawful depletion of billions of Rand from
the PIC. Furthermore, the appellants’ purported
misconduct was
depicted as being so pervasive that it rendered the alleged state
capture by the Gupta family insignificant by comparison.
The letter
also called upon the President to initiate an investigation into the
PIC. Subsequently. This led to the establishment
of a Commission of
Inquiry under Mr. Justice Mpati (the PIC Commission of Inquiry).

[7]            
 In their initial plea to the particulars of claim
on 9 October
2018, the respondents admitted to publishing the material and
acknowledged that it concerned the appellants. However,
they denied
that the material was inherently defamatory of the appellants or that
it was published wrongfully or with intent to
injure (animo
iniuriandi). Their primary defence was that the letter merely
highlighted serious allegations of misconduct, brought forward by a
whistle-blower,
concerning a conflict of interest. These allegations
implicated the sixth appellant, who, while serving as both Deputy
Minister
and chairperson of the PIC, allegedly violated s 96 of the
Constitution by approving transactions that benefited the first,
second,
and third appellants, organisations in which he held
positions as director and chairperson.

[8]            
The respondents contended that the flow of funds to the
entities
provided sufficient evidence of a breach of the Public Finance
Management Act 1 of 1999 and the Constitution, warranting an
investigation. They argued that this instance exemplified state
capture and should be examined
alongside other similar allegations.
Given their role as a political party and a Member of Parliament,
they asserted that they
had a duty to call on the President to
initiate an investigation, which they duly did. They also pleaded
that any person who is
involved in allegations of corruption is,
metaphorically speaking, a hyena.

[9]            
 On 13 December 2019, the Report of the PIC Commission
of
Inquiry into the Allegations of Impropriety at the Public Investment
Corporation (the PIC Report) was made released. Nearly
two years
later, on 7 November 2021, on the eve of the trial, the respondents
filed a notice seeking to amend their plea. Their
proposed amendment
was extensive, aiming to insert verbatim excerpts from the PIC
Report. The report itself concluded that ‘[t]here are clear
instances where the Commission found that directors and/or employees
benefited unduly from the positions of trust
that they held.’
The amendments to the plea conclude, at paragraph 6A.66, with the
averment that the published material is therefore not per se
defamatory of the plaintiffs:

 ‘Accordingly,
given the proper interpretation of the impugned letter, the fact that
the President yielded to the Defendants’
request and the PIC
Report made the foregoing findings must contextually, axiomatically
and objectively mean that the impugned
letter is not defamatory, and
certainly not per se defamatory.’

[10]        
Despite the appellant’s objection thereto, the amendment was
allowed
on 4 November 2022. As a result, the appellants raised an
exception to the amended plea. The crux of the exception was that the

amendment lacked averments which were necessary to sustain a defence
and that the contents of the PIC Report were entirely irrelevant
to
the meaning of the letter and the tweet. In the circumstances, the
appellants sought an order upholding the exception and striking
out
the paragraphs from the PIC Report.

[11]        
The court a quo dismissed the exception with costs, concluding that
the respondents’
amendment merely incorporated the findings of an
independent commission established by the President concerning the
impugned statements
and allegations. The court further held that the
pleading presented a clear and concise statement of material facts
with sufficient
particularity, enabling the appellants to respond if
necessary. It is this order that the appellants now seek to appeal.

Is
the order appealable?

[12]        
In
determining the appealability of a matter, several factors must be
considered. These include whether the relief granted was final
in
effect, whether it definitively determined the rights of the parties,
and whether it disposed of a substantial portion of the
relief
claimed.[9] Additionally,
considerations such as convenience, timing, delay, expedience,
potential prejudice, the avoidance of piecemeal appeals,
and the
broader pursuit of justice also play a crucial role.[10]

[13]        
As a
starting point, when evaluating the Zweni
factors, it is well established that an order dismissing an exception
is generally not final in effect, unless the exception specifically

challenges the court’s jurisdiction.[11]
The order of the court a quo is no exception. While the court is
unlikely to change its stance, the same issue may still be raised
at
trial
upon
a consideration of fresh argument and further authority.[12]
And despite its prior decision, the trial court still has the
discretion to reconsider, modify, or uphold the court a quo’s

ruling.[13] An appeal to this
Court is thus premature while the matter remains unresolved, as it
seeks to pre-empt a decision the trial court
has yet to finalise.[14]
Moreover, the order did not definitively determine the parties’
rights, nor did it dispose of a substantial portion of the
relief
sought in the main proceedings.

[14]        
The appellants argue that the appeal should nevertheless be
determined in the
interests of justice as they are prejudiced by the
plea in its current form. Firstly, they contend that the amendment,
reflected
in the introductory words of paragraphs 6 and 15 of the
amended plea, is solely aimed at establishing ‘the correct
meaning’
of the material admittedly published by the
respondents. This approach, so they argue, is impermissible, as the
contents of the
PIC Report cannot be relied upon to determine the
meaning of the published material. As a result, they would be unable
to plead
meaningfully to the amended plea or mitigate the ‘havoc’
it would allegedly create at trial due to its irrational and
improper
nature.

[15]        
Secondly, it is argued further by the appellants that if paragraphs
6A and
15A of the amended plea remain in the pleadings, the trial,
originally expected to last one or two days, will extend over several

weeks, leading to evident prejudice and a significant waste of
resources. This is so because the amended plea constitutes a mixture

of evidence and opinion of another tribunal that is neither a court
of law nor a final arbiter of fact, which cannot be incorporated
into
the plea as facts. Conversely, they maintain that if the exception is
upheld, a substantial portion of the respondents’
pleaded case
will be eliminated, allowing the trial to proceed efficiently on the
true issues in dispute.

[16]        
 Lastly, the appellants contend that the introduction of the PIC
Report
in the plea makes the amended plea overly lengthy and aside
from the denial that the material is per se defamatory and was
published with the intent to defame, the plea creates confusion and
uncertainty regarding what other possible
defences the respondents
seek to rely on. As a result, it is contended that the plea is vague
and embarrassing.

[17]        
These arguments are without merit. The so-called havoc that would be
created,
the extension of the trial and any uncertainty about the
respondents’ defences, are easily eliminated by a request for
trial
particulars (rule 21) and the proceedings under rule 37 of the
Uniform Rules of Court. These are designed to narrow the issues
between the parties and to promote the effective disposal of
litigation. The appellants’ arguments do not support the
conclusion
that the order is appealable.

[18]        
Interlocutory
orders are, for the most part, not appealable, because fragmenting a
case through appeals on individual aspects before
the matter is fully
resolved in the court of first instance is undesirable.[15]
Allowing the appeal in the present matter would result in piecemeal
adjudication, prolong the litigation, and lead to a wasteful
use of
judicial resources and costs.[16]
The summons was issued more than seven years ago and it is in the
interests of justice that the matter proceed to trial. The
Constitutional
Court in Psychological
Society of South Africa v Qwelane[17]
has affirmed that it will only intervene in ongoing lower court
proceedings in exceptional circumstances—specifically, in
cases
of great
rarity,
where there is a threat of grave
injustice
and intervention is essential to achieving justice.[18]
This is not such a case.

[19]        
The appellants have not demonstrated any irreparable prejudice that
cannot
be remedied within the framework of the Uniform Rules of Court
if the appeal is not entertained. The trial court retains the
authority
to revisit the findings of the court a quo and will
ultimately determine the proper interpretation of the pleadings, the
true issues in dispute, the relevance of matters
raised, and the
admissibility of evidence. The appellants’ right to object to
evidence on the grounds of relevance, as well as
established
principles in defamation law, remains intact and is not curtailed by
the order of the court a quo.

[20]        
Consequently, the papers fail to disclose any facts that would
justify granting
leave to appeal in the interests of justice. In the
result the following order is made:

The
appeal is struck from the roll with costs, such costs to include the
costs of the application for leave to appeal, all of which
will
include those consequent on the employment of two counsel.

 L
WINDELL

ACTING
JUDGE OF APPEAL

Appearances