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Judge K E Matojane

Capacity: Judge 
First appointed as a judge: 12-12-2009
Further appointments: N/A
Gender: Male
Ethnicity: African

Key judgments:

(1) WILLIAMS V ISAACS (24968/2014) [2014] ZAGPPHC 230 (9 APRIL 2014) ; (2) BAKGATLA-BA-KGAFELA COMMUNAL PROPERTY ASSOCIATION V MINISTER OF RURAL DEVELOPMENT AND LAND REFORM AND OTHERS (LCC 80/2012) [2013] ZALCC 16 ; (3) NKWALI BROTHERS FARMING CC V THELA AND OTHERS (49374/2007) [2010] ZAGPPHC 613 ; (4) ALLPAY CONSOLIDATED INVESTMENT HOLDINGS (PTY) LTD AND OTHERS V CHIEF EXECUTIVE OFFICER OF THE SOUTH AFRICAN SOCIAL SECURITY AGENCY AND OTHERS (7447/2012) [2012] ZAGPPHC 185

Candidate Bio:

South African politics has degenerated into the kind of dangerous populism which would make Benito Mussolini turn green with envy.

The peddling of lies in the public domain and the unsubstantiated personal attacks on fellow politicians, the judiciary and ordinary people merely trying to get in with their jobs has become normalised by leaders including former president Jacob Zuma and Economic Freedom Fighters (EFF) leader Julius Malema, who is a member of this Judicial Service Commission (JSC).

In Gauteng High Court Judge Keoagile Elias Matojane Malema will find a judge who has previously found against him and his party — in the coruscating judgment handed down in the 2019 matter of  Manuel v Economic Freedom Fighters & Others.

 When current South African Revenue Services commissioner Adrian Kieswetter was being interviewed for his position, he was interviewed by a panel which included former finance minister Trevor Manuel.

Manuel recused himself from Kieswetter’s interview because of their previous relationship working together in government. This didn’t stop Malema and the EFF from tweeting that the interview process was “patently nepotistic, and corrupt”, and that Kieswetter was a “dodgy character”, who was “not just a relative of Trevor Manuel, but a close business associate and companion”.

Manuel then applied to the high court seeking an order declaring that the EFF’s tweet was defamatory, false and unlawful. He further sought an order directing the respondents to remove the statement from all their media platforms and interdicting the publication of similar statements in future. He also wanted the EFF to publish an unconditional public retraction and apology and sought damages for injury to his reputation.

Matojane found that a reasonable person of ordinary intelligence “would understand the tweet to mean that Mr Manuel is corrupt, nepotistic and has conducted the appointment process for a new SARS commissioner secretly in a deliberate attempt to disguise his familial relationship with Mr Kieswetter, and that he is connected to a ‘white capitalist establishment’ that acts contrary to the best interest of SARS.”

In declaring the tweet defamatory, Matojane further held that there was “no doubt that the statement would generally tend to lower Mr Manuel’s reputation in the estimation of right-thinking members of society,” since it implied “that he was dishonest, unscrupulous and lacking in integrity.”

On the EFF’s argument that the tweet was true and in the public interest, Matojane found that the respondents were unable to prove that the “sting of the statement” was true.

The EFF had argued that they, having received information from a confidential source, were adopting a “whistle-blower role” with their tweets — akin to that of the media’s “public-disclosure role.”

While Matojane found there was no justification for limiting the defence of reasonableness to the media only, he also found that the defence of reasonable publication did not apply, as the EFF had not proven that it was “reasonable in the circumstances to publish the particular facts, in a particular way and at the particular time.”

He also rejected their defence of fair comment since the EFF were unable to prove that the underlying facts to their tweets were true: “The conduct of the respondents both before and after the publication of the impugned statement shows that they were actuated by malice. They published the tweet with reckless indifference as to whether it was true or false. The statement remains published online despite it being subsequently shown to be false, and the respondents refuse to take it down. There can never be justification for the ongoing publication of a defamatory statement which has been revealed to be untrue unless the principal purpose is to injure a person because of spite or animosity.”

On the remedy sought, Matojane held that the motive and conduct of the respondents was relevant: “They stubbornly refuse to retract, apologise or remove the impugned statement from their social-media platforms, when it is evident that they should do so. These factors collectively establish the existence of actual malice and a desire to hurt Mr Manuel in his person, and professionally, through the widespread dissemination of the defamatory statement. Such conduct warrants a punitive costs order.”

Matojane held that the allegations were false and defamatory, that the publication of the allegations was unlawful, and ordered the respondents to remove the statement from their media platforms with 24 hours. Respondents were further ordered to publish an unconditional retraction and apology within 24 hours and were interdicted from publishing “any statement that says or implies that the applicant is engaged in corruption and nepotism in the selection of the commissioner of the South African Revenue Service.” Respondents were ordered to pay damages of R500 000, and costs on an attorney and client scale.

The SCA subsequently dismissed the appeal against the findings of defamation and removal of the statement, finding that the high court’s decision on defamation and unlawfulness was “well founded”. The SCA however upheld the appeal against the quantum of damages and retraction and apology, and ordered that the determination of damages be referred to oral evidence. In the 2020 judgment, the SCA found that the reasoning of the high court on the quantum of damages had been “sparse, with little attention paid to how best to determine the extent of reputational loss.”

A member of the South African Chapter of the International Association of Women Judges, Matojane has had four acting stints at the Supreme Court of Appeal (SCA).

Gauteng High Court judge Matojane served at the Land Claims Court in 2013 and acted as its Judge President in 2014. He also acted at the Constitutional Court (2015), the Lesotho Constitutional Court (2017) and at the Competition Appeal Court (2020).

Sixty-year-old Matojane holds a B.Proc (1986) and an LLB (1988) from the University of Zululand.  He obtained an LLM (1995) from the University of Johannesburg and another (2007) from Unisa. After working for just under twenty years as an attorney he was appointed to the Gauteng Division of the High Court in 2009. This followed acting stints in both Gauteng and the Western Cape.

April 2021 Interview

April 2021 Interview Synopsis

A defining characteristic of Chief Justice Mogoeng Mogoeng’s time as chairperson of the Judicial Service Commission (JSC) has been the leeway allowed politicians on the body to air their political grievances against judges who have found against them, or their close associates through questions which either seek to go beyond, or behind-the-scenes, of the judgment itself.

This is often, and unfairly, to the detriment to the quality of the interview.

Gauteng High Court Judge Keoagile Elias Matojane’s interview was one such case.

First, ANC member of the National Council of Provinces Kenneth Mmoiemang, asked Matojane about his finding in a 2015 judgment which had declared the suspension of Shadrack Sibiya, the Gauteng head of the Directorate of Priority Crimes Investigations, commonly known as the Hawks, to be illegal.

At the time, Sibiya’s suspension, the removal of his boss at national level, Anwar Dramat, and the suspension of other Hawks members for the alleged illegal rendition of Zimbabwe nationals to that country’s police as part of a bigger manipulation of the criminal justice system to favour then-president Jacob Zuma and his kleptocratic cronies.

Matojane said he had based his findings on “what legal arguments were presented before me” and that the SCA had agreed with his findings when it went on appeal.

The judgment would have further repercussions in the internecine political power battles within the ANC and for appointments within the Hawks where Zuma’s henchman Berning Ntelemeza had, for a period, replaced Dramat (who was considered independent-minded), Mmoiemang pointed out.

Matojane gave this line of questioning short shrift: “I wasn’t called upon to adjudicate a political issue. I was called upon to adjudicate on the facts before me,” he told the commission.

Later on Julius Malema, leader of the Economic Freedom Fighters (EFF), asked Matojane how he had reached the quantum of R500 000-00 for damages that the EFF had to pay former finance minister Trevor Manuel in a defamation case.

On appeal the SCA had upheld Matojane’s findings regarding the defamation of Manuel, whom the EFF had, on their twitter feed accused of being nepotistic and corrupt.

Finding that the high court’s decision on defamation and unlawfulness was “well founded”, the SCA, however, upheld the appeal against the quantum of damages and retraction and apology, and ordered that the determination of damages be referred to oral evidence. In the 2020 judgment, the SCA found that the reasoning of the high court on the quantum of damages had been “sparse, with little attention paid to how best to determine the extent of reputational loss.”

Matojane deftly told Malema that, being mindful of his own ruling and the SCA’s judgment, he “cannot second-guess the matter”: “I have said what I had to say [in my judgment]. I am constrained [by it].”

Needless to say Matojane, like many judges who have ruled against powerful politicians or their interests in cases of political law-fare, was not recommended for appointment by the JSC.

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