Transparency Wins

The Johannesburg High Court has ruled that former NSFAS chair Ernest Khosa did not have a right to pre-publication comment before OUTA published a report implicating him in corruption

The High Court in Johannesburg has dismissed an application brought by Ernest Khosa, the former chairperson of the National Student Financial Aid Scheme (NSFAS) against the Organisation Undoing Tax Abuse (OUTA), in which he challenged OUTA’s publication of a report containing allegations of corruption against him.

“A person implicated in acts of corruption in a report published by a private actor does not have the right to a hearing prior to publication,” said the court.

The dispute revolved around a report and statement which OUTA published about NSFAS and Khosa in early 2024 (see here and here), implicating him in corruption with NSFAS suppliers. Khosa resigned a few months later.

Khosa wanted the court to order OUTA to take the report down from its website, and to order that he be given an opportunity to respond to the allegations, that the report only be republished once this was completed to his satisfaction, and that the republished report contain an accurate record of his responses to each allegation. OUTA had refused to remove the report, but had offered to hear Khosa’s version and update the report accordingly, but Khosa had declined this and brought the court action.

Khosa argued that he had a right to respond to the allegations before OUTA released the report. The court, however, found that no such legal obligation exists, especially for private actors acting in the public interest.

The legal significance of this judgment lies in its clarification of the rights and obligations of private actors, such as OUTA, when publishing reports implicating individuals in alleged wrongdoing.

“This judgment reaffirms our constitutional right to expose maladministration and corruption without facing undue procedural barriers,” said Advocate Stefanie Fick, OUTA’s Executive Director of Accountability. “Mr Khosa’s attempt to silence public interest reporting under the guise of procedural fairness was rightly dismissed by the court.”

Acting Judge GA Fourie found:

• No right to pre-publication notice: The court held that there is no requirement in law for OUTA to notify individuals before publishing allegations in a public interest report. The judgment reaffirms that private actors, like OUTA, are not obligated to provide implicated individuals with a pre-publication hearing or the opportunity to respond before publishing allegations. This principle is rooted in the distinction between private and public powers, as established in cases like Langa v Hlophe.
• Private actors vs public powers: The court emphasised that OUTA, as a private entity, does not exercise public powers or perform public functions. Its investigations and publications are not binding and do not carry statutory authority. This distinction is critical in determining the scope of procedural obligations owed by private entities. “OUTA’s hard-earned reputation for being a reputable player in the public space does not, in my view, change the fact that it exercises private powers,” said Judge Fourie, and called OUTA’s report “a complaint to the authorities, backed up with credible information and evidence, aimed at bringing pressure to bear on the authorities to take action against those implicated”.
• Freedom of expression upheld: The court reaffirmed that the right to dignity and reputation does not override the constitutional protection of free speech, especially when allegations serve the public good. The judgment underscores the importance of freedom of expression, particularly in matters of public interest, such as exposing corruption. ​It cautions against imposing excessive restrictions on private actors, which could hinder their ability to report on and expose wrongdoing.
• Alternative legal remedies available: The appropriate legal avenue for challenging potentially defamatory content is through defamation proceedings, not through pre-publication interdicts. The court highlighted that individuals who feel their dignity or reputation has been harmed by defamatory statements have recourse under the common law of defamation, rather than seeking pre-publication rights or interdictory relief.​
• Horizontal application of rights rejected: The court ruled that constitutional rights do not extend horizontally to impose obligations on private entities like OUTA in the way the applicant claimed. The judgment rejected the applicant’s attempt to invoke Section 8(2) of the Constitution to impose public law duties on OUTA. It reaffirmed that the horizontal application of fundamental rights must be balanced against other constitutional values, such as freedom of expression.

This judgment reinforces the principle that private actors, even those acting in the public interest, are not bound by the same procedural obligations as public entities. ​ It also protects the ability of civil society organisations to expose corruption without undue interference, while preserving the common-law remedies available to individuals who feel aggrieved by such publications.

Khosa did not complain that the OUTA report was defamatory, or deal with the veracity of the allegations against him, and did not even include the report in his founding papers. This gives rise to concerns that the intention was to prevent or delay publication of the report, or distort it, which should be avoided. “The impact on the ability of whistleblowers and other private actors to expose corruption would be significant,” said Judge Fourie. The court dismissed the application with costs, noting that although the matter raised novel legal questions, there was no basis for granting the relief Khosa sought.

“We remain steadfast in our commitment to holding power to account and will not be deterred by attempts to intimidate civil society through legal tactics,” says Fick. “This ruling is a significant win for transparency, accountability, and the public’s right to know.”