Muofhe v Dintwe (61891/21) [2024] ZAGPPHC 396 (12 April 2024)

The case involves Mahlodi Samuel Muofhe ("Mr Muofhe"), the former Director of the State Security Agency (SSA) of South Africa's Domestic Branch, who seeks a declaratory order and constitutional damages against Sethlomamaru Isaac Dintwe ("Mr Dintwe"), the Inspector General of Intelligence (IGI). Mr Muofhe claims that Mr Dintwe violated his constitutional rights to human dignity and privacy by confirming in a television interview that he was investigating Mr Muofhe for allegedly falsifying his qualifications.

The background facts are as follows:

1. Anonymous Complaint: In August 2020, the IGI's office received an anonymous, undated complaint accusing Mr Muofhe of impropriety, including allegations of falsifying his academic qualifications and his admission as an advocate of the High Court of South Africa.

2. Television Interview: On November 10, 2020, Mr Dintwe was interviewed by the ENCA television station. The news bulletin was headlined "SSA Domestic Director Mahlodi Muofhe Investigated for Falsifying His Qualifications." During the interview, Mr Dintwe confirmed that his office was investigating the allegations against Mr Muofhe.

3. Alleged Breach of Statutory Duties: Mr Muofhe contends that Mr Dintwe breached his statutory duties under section 7(8)(b) of the Intelligence Services Oversight Act by disclosing the investigation without consulting the President or the Minister responsible for the service in question. Mr Muofhe argues that this disclosure was detrimental to the national interest and violated his constitutional rights to human dignity and privacy.

4. Legal Basis for the Claim: Mr Muofhe seeks relief under section 38 of the Constitution, which allows a person to approach a competent court alleging that a right in the Bill of Rights has been infringed or threatened. He argues that the common law does not fully accommodate certain rights peculiar to a constitutional state, and thus, he is entitled to a remedy for the alleged violation of his rights.

5. Respondent's Defense: Mr Dintwe opposes the application, raising a preliminary defense that the remedies sought by Mr Muofhe cannot be granted in application proceedings due to the presence of material disputes of fact. He argues that claims for unliquidated damages, such as constitutional damages, cannot be resolved without oral evidence and should be pursued through action proceedings.

6. Court's Consideration: The court must first determine whether there is a material dispute of facts that precludes granting the relief sought on the papers. The court notes that claims for unliquidated damages typically involve disputes of fact and are not suited for resolution through motion proceedings.

7. Relevant Case Law: The court references several key judgments, including EFF v Manuel and NBC Holdings, which establish that claims for unliquidated damages, including constitutional damages, should be pursued through action proceedings rather than application proceedings.

8. Outcome: The court concludes that the material disputes of fact in this case cannot be resolved on the papers and that Mr Muofhe should have anticipated these disputes and proceeded by way of action. Consequently, the application is dismissed with costs, including the costs of two counsel.

In summary, the case revolves around Mr Muofhe's claim that Mr Dintwe's public confirmation of an investigation into his qualifications violated his constitutional rights, and the court's determination that such claims should be pursued through action proceedings due to the inherent disputes of fact.

The ratio decidendi, or the core legal principle underlying the decision in this case, is that claims for unliquidated damages, including constitutional damages, are inherently unsuitable for resolution through application proceedings due to the presence of material disputes of fact. Such claims must be pursued through action proceedings, where the court can properly assess the evidence and determine the facts through oral testimony.

Key points supporting this principle include:

1. Nature of Unliquidated Damages: Claims for unliquidated damages, by their very nature, involve factual disputes that cannot be adequately resolved on paper. The court stressed that motion proceedings are designed for the resolution of legal issues, not factual disputes.

2. Precedent: The court relied on established case law, particularly the decisions in EFF v Manuel and NBC Holdings, which held that compensatory remedies, including constitutional damages, cannot be granted in application proceedings due to the need for a detailed factual inquiry.

3. Plascon-Evans Rule: The court applied the Plascon-Evans rule, which dictates that where there is a genuine dispute of fact in motion proceedings, the respondent's version must be accepted unless it is so far-fetched or clearly untenable. This rule further underscores the unsuitability of application proceedings for resolving factual disputes inherent in claims for unliquidated damages.

4. Procedural Requirements: The court noted that the Uniform Rules of Court require claims for unliquidated damages to be pursued through action proceedings, which involve a long-form summons and the filing of particulars of claim, allowing for a thorough examination of the evidence.

5. Discretion of the Court: While the court has discretion under Uniform Rule 6(5)(g) to refer specific issues to oral evidence, it generally dismisses applications where the applicant should have realised that a serious dispute of fact was bound to develop. The court found that Mr Muofhe or his legal representatives should have anticipated the factual disputes and proceeded by way of action.

In summary, the ratio decidendi is that claims for unliquidated damages, including constitutional damages, must be pursued through action proceedings due to the inherent factual disputes, and application proceedings are inappropriate for such claims.

The court relied on several key cases in its reasoning process. Here are the cases along with their neutral citations:

1. Economic Freedom Fighters and Others v Manuel:
 - Citation: [2021] ZASCA 172; 2021 (3) SA 425 (SCA)
 - Key Principle: The court held that claims for unliquidated damages, including defamation, are unsuitable for resolution through motion proceedings and must be pursued through action proceedings.

2. NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators:
 - Citation: [2021] ZASCA 136; 2021 (3) SA 550 (SCA)
 - Key Principle: The court reaffirmed that compensatory remedies, including damages for defamation, cannot be granted in application proceedings due to the need for a detailed factual inquiry.

3. Fose v Minister of Safety and Security:
 - Citation: [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC)
 - Key Principle: The Constitutional Court held that "appropriate relief" under section 38 of the Constitution can include an award of damages where necessary to protect and enforce constitutional rights. However, the determination of such damages typically requires a detailed factual inquiry.

4. Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another:
 - Citation: [2019] ZASCA 57; 2020 (1) SA 52 (SCA)
 - Key Principle: The court awarded constitutional damages as appropriate relief for the violation of constitutional rights in application proceedings. However, this was an exception due to the specific circumstances of the case, where the property involved was of trifling commercial value, and the appellants were homeless individuals.

5. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd:
 - Citation: [1984] ZASCA 51; 1984 (3) SA 623 (A)
 - Key Principle: The Plascon-Evans rule dictates that in motion proceedings, where there is a genuine dispute of fact, the respondent's version must be accepted unless it is so far-fetched or clearly untenable.

6. Cadac (Pty) Ltd v Weber-Stephen Products Company and Others:
 - Citation: [2010] ZASCA 105; 2011 (3) SA 570 (SCA)
 - Key Principle: The court emphasised that motion proceedings are not geared to deal with factual disputes, which are inherent in claims for unliquidated damages.

These cases collectively support the court's decision that claims for unliquidated damages, including constitutional damages, must be pursued through action proceedings due to the inherent factual disputes, making application proceedings inappropriate for such claims.