News 24  | 30 June 2024 | By Norman Masungwini

The department of justice’s urgent court bid to gag a whistleblower known as Mario Rocha, who has accused senior officials of corruption, has suffered a blow after the Pretoria High Court dismissed its case with costs.

View the article on the News 24 website here. 

The department, led by director-general Doctor Mashabane, launched an urgent court application to interdict Rocha from “spreading unfounded and defamatory statements” against him.

In the emails, which were attached as evidence, Rocha accused several senior officials in the department and in the Master of the High Court’s office of being corrupt.

Rocha and Angelo Agrizzi, the former chief operating officer of controversial company Bosasa, have been at the forefront of exposing corruption within the Master’s office. Separately, they have been writing to the department about endemic corruption in the Master’s office. Rocha is an adviser to the National Education, Health and Allied Workers’ Union, the majority union in the department.

He threatened to release documents exposing every senior official he accused of being corrupt each week until action was taken against them. These threats prompted the department to write cease and desist letters against Rocha.

The department claims that, on 4 May 2024 at 10.59pm, Rocha allegedly sent a defamatory email to the presidency and government agencies with a list of employees he claimed were involved in corruption. In his affidavit, Mashabane said Rocha wrote:

The DG [Mashabane] is complicit in launching a witch-hunt against certain people that weren’t suspended only because Doc Mashabane wants to keep his criminal activities from being exposed, and the way he acted against our whistleblower comrade A Ramorulana by fabricating false dismissal charges is nothing but a disgrace.

But, despite the warning from the department, Rocha continued to send the emails, which City Press has seen, threatening to expose the officials.

The department and the director-general wanted the court to interdict Rocha from spreading unfounded defamatory statements about Mashabane or any other employees of the department of justice and constitutional development.

“Thirdly, the allegations made by and about the first applicant [Mashabane] and the employees of the department in a thread of emails, alleging that the first applicant and the employees of the department are involved in corruption, are defamatory and false,” read the court papers.

The department also asked the court to order Rocha to retract the defamatory and false emails relating to Mashabane and his colleagues.

The court papers read:

Fifthly, that it be declared that the respondent’s publication of the emails is unlawful. It is common cause that the respondent caused a few emails to be sent to different and varied individuals within the presidency and other government institutions.

In some of the emails, Rocha alleged that the director-general was “complicit in launching a witch-hunt against certain people who were not suspended only because he wanted to keep his criminal activities from being exposed and that the way he acted against a whistleblower by fabricating false dismissal charges was nothing but a disgrace”.

In his judgment last Thursday, acting Judge Fana Johannes Nalane ruled: “The point made is that the applicants are organs of state and government bodies and therefore cannot sue for damages for defamatory statements that allegedly injured their reputation.

“It is submitted that the applicants are organs of the state for the purpose of section 239 of the Constitution,” Nalane ruled.

“It would be serious interference with the free expression of opinion if the wealth of the state, derived from the state subjects, could be used to launch an action against those subjects’ actions for defamation because they have, falsely and unfairly, it may be, criticised or condemned the management of the country.

“These remarks are even more applicable in the constitutional state that we have in this country, where freedom of expression is guaranteed as one of the fundamental rights,” read the ruling.

Nalane ruled:

The applicant’s counsel rightly conceded that the department is an organ of state but submitted that Mashabane is not an organ of state. Clearly, both applicants are organs of the state, as they exercise public power in terms of legislation. In the founding affidavit, the first applicant states that he is acting in his official capacity as director-general of the department. He is thus not acting in his personal capacity as an ordinary citizen of the country.

The court concluded that “in the absence of a right to sue for damages, the applicants, as organs of state, do not have a clear right entitling them to a final interdict”.

“The application is dismissed. Applicants are ordered to pay the respondent’s costs on the tariff in terms of scale A,” said the judge.