IDC Challenges Court Order Preventing It From Interviewing Whistleblowers

Durban High Court Acting Judge Perlene Bramdhew interdicted a journalist and three “whistleblowers” from making “defamatory” statements about ARTsolar.

• The Industrial Development Corporation (IDC) wants to join court proceedings in which a journalist and three “whistleblowers” were barred from making allegations against ARTsolar.
• The IDC had funded ARTsolar for R90-million to build a solar panel manufacturing plant in South Africa but it has been alleged that the company is importing panels from China rather than manufacturing them locally.
• Under the court order, IDC is prohibited from speaking to the “whistleblowers”.

The Industrial Development Corporation of South Africa (IDC) has launched an urgent application to join court proceedings through which a journalist and three “whistleblowers” have been gagged from making “defamatory” allegations against solar panel company ARTsolar.

These allegations — that ARTsolar falsely claimed to be locally manufacturing solar panels when in fact they were being imported from China — had allegedly been made by a client of ARTsolar, Brett Latimer, and two former employees, Kandace Singh and Shalendra Hansraj. Journalist Bongani Hans had sent questions to ARTsolar about the allegations.

The interim interdict issued on 26 March by Durban High Court Acting Judge Perlene Bramdhew has a return date at the end of July and bars Latimer, Singh and Hansraj from making written or verbal “defamatory” statements that ARTsolar “conducts business unethically or dishonestly”. Hans is interdicted from publishing the statements.

Latimer, Singh and Hansraj are barred from making the “defamatory” statements to “members of the press, Independent Newspaper Group, the International Trade Administration Commission of South Africa (ITAC), the Industrial Development Corporation of South Africa (IDC) and the Department of Trade, Industry and Competition (DTIC)”.

The AmaBhungane Centre for Investigative Journalism and the Freedom of Expression Legal Network are also contemplating joining the proceedings because of the order’s impact on media freedom.

In its application, the IDC says it should have been a party to the urgent proceedings because it had given ARTsolar R90-million in funding in 2022 “to enable ARTsolar to install the latest technology for the local production of solar panels”.

It wants the interim order to be set aside because “the relief sought has been intentionally engineered” to intercept and frustrate an IDC investigation into whether the company was properly using the funds.

In his affidavit, senior legal advisor Cebo Nzuza said the IDC funded ARTsolar to serve its mandate of promoting economic growth “and to create a local manufacturer of solar panels”.

He said ARTsolar installed and commissioned the IDC-funded manufacturing plant and machinery at its factory in New Germany and “holds itself out, to the world, on its website, as a local manufacturer of solar panels”.

Nzuza said it had received “whistleblower” reports that this was not the case. It also became aware of another complaint laid with the Department of Trade, Industry and Competition (DTIC).

The DTIC had tasked the IDC with conducting an expeditious investigation, with a report to be submitted by March 2025.

ARTsolar had been made aware of the complaint and a visit to the factory was scheduled for 26 March. But a day before, the IDC received correspondence from ARTsolar’s attorneys asking if the complaint had been made by Latimer and advising of ARTsolar’s urgent court application which was to be heard on 26 March.

“This exacerbated the IDC’s concerns,” he said, because the IDC needed to engage with Latimer, Singh and Hansraj in its investigation. Nzuza said that after the interdict was granted, the IDC had requested to be allowed to speak to them in order to proceed with the investigation. But this had been refused.

He said it was clear that ARTsolar specifically did not want the three to communicate with the IDC and other government entities with regards to their allegations.

He said the order was obtained without notice to the IDC in circumstances where the IDC had a material interest in determining the veracity of the complaints against the company.

“Where ARTsolar is acting in accordance with the spirit of the facilities agreement and whether it is actually manufacturing the solar panels locally is a matter of significant importance to the IDC. Had ARTsolar joined the IDC [in the proceedings], it would have opposed the relief on the basis that the IDC is duty bound to investigate the complaint.”

Nzuza said the allegations against the company were serious and its ability to investigate was “significantly hampered” by the interim order.

ARTsolar opposes

ARTsolar is opposing the IDC’s application. Chairman Bebinchand Seevnaryan, in his affidavit, says the IDC does not have a legal interest in the matter and has no right to intervene. It is not a public authority with any investigative rights or obligations, he says.

“The IDC does not have any need to receive false and defamatory information from [Latimer, Singh and Hansraj].” The IDC already knew their version, he said.

Seenaryan said ARTsolar had provided its financial documentation to the IDC monthly and its business plans/stock valuation records regularly.

“The only thing the order effectively prohibits is the IDC from receiving defamatory allegations from a disgruntled former customer and two disgruntled ex-employees about events that happened at the same time the ARTsolar concluded its facilities agreement with the IDC and started the process of upgrading its plant through IDC funding.”

“It does not prevent the IDC from demanding from ARTsolar whatever it is entitled to under the contract.”

The matter has been set down on the urgent roll in the Durban High Court on 9 April.

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