RAF and its comms head found to have defamed Sunshine Hospital

The Road Accident Fund (RAF) and its head of communications McIntosh Polela have been found by the High Court in Pretoria to have defamed Sunshine Hospital in Benoni.

Acting Judge Johann Hershensohn declared the allegations and statements made about and concerning Sunshine Hospital on 15 March 2024 on the news channel eNCA defamatory and false.

Read: RAF called out for having ‘thrown mud’ at Sunshine Hospital

This specifically relates to statements that the hospital is involved in a corrupt scheme of moving patients from other hospitals across the country to its facility and that it is involved in overservicing or overcharging.

Hershensohn ruled that the RAF and all other persons under its authority, employed by it, under its control, or acting on its instructions, together with Polela, are interdicted and restrained from making any such further statements.

The RAF and Polela were further declared to be jointly and severally liable for Sunshine Hospital’s damages resulting from this defamatory conduct.

The acting judge ordered that the determination of the quantum of Sunshine Hospital’s damages, an apology, and a retraction of the statement be referred to the hearing of oral evidence.

The RAF and Polela were ordered to pay the costs of the application brought by Sunshine Hospital.

‘Outright lie’

Hershensohn, in a judgment handed down last month that has just become available, said Sunshine Hospital claimed the statements made against it “were false and an outright lie” – and that it was not the first time these statements had been made.

He said Sunshine Hospital further claimed that a report that had been completed and released by RAF investigators “found no evidence of wrongdoing” on the part of the hospital.

The RAF argued that the papers clearly indicated a factual dispute which cannot be resolved on the papers in court and that the matter ought to be referred to trial in its entirety.

Hershensohn said he had considered the RAF’s answering affidavit in some detail, but it was his opinion that it is of little help to the court.

RAF affidavit inconclusive

Hershensohn said the RAF argued that the papers had not been compiled recklessly and were based on facts. It also claimed that its documents were supported by investigation reports that had been commissioned and presented to Sunshine Hospital.

The RAF further claimed that there were facts substantiating the various contentions made, the acting judge said, adding that this was unfortunately the full extent of the RAF’s affidavit.

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He believes the RAF ought to have taken matters further and detailed what the actual portions of these papers were on which it relied when reaching its conclusions – and what the particular facts were that justified the interpretation that Sunshine Hospital was “involved in a corrupt scheme”.

“Furthermore, if there were investigations and any findings made, these should have been referenced in detail in the answering affidavit to demonstrate that the contentions made were in fact true or at least amounted to fair comment.

“This, the respondents [RAF and Polela] did not do,” he said.

“As such, and with the absence of any facts to support these contentions and more particularly the disputes raised in the answering affidavit, I would need more to sustain the argument that there is such a material dispute of fact that the matter cannot be resolved on the papers.”

No evidence of material dispute

Hershensohn added that when considering an extract of the quotation, which is contended to be defamatory, it is clear the message that was conveyed was:

• That Sunshine Hospital was involved in a corrupt scheme of moving patients from across the country to the hospital in Benoni;

• That there was overservicing; and

• That there was overcharging.

“The wording used is clear and unequivocal, and as such I believe the statement that was made is defamatory and it was likely to injure the good esteem of the applicant [Sunshine Hospital] and by the reasonable or average person who read and/or to whom the statement was made,” he said.

Hershensohn said once publication of a defamatory statement has been proved, it is trite to presume that the publication was wrongful and intentional, and was published with the intention to injure.

A respondent who wishes to avoid liability must, he said, therefore raise a defence that includes either wrongfulness or intention, and, as such, the publisher of the defamation bears the onus of rebutting either the wrongfulness or intention and should also provide necessary evidence to achieve that purpose.

Unable to prove ‘corrupt scheme’

From his perusal of the RAF’s answering affidavit and the various documents attached to the pleadings, Hershensohn did not find any claims that clearly and unequivocally supported those made in the statement that led to the complaint.

If the RAF and Polela were genuine in stating that this was fair comment, he would have expected them to go much further in dealing with these reports – which very clearly would have demonstrated that Sunshine Hospital was involved in “a corrupt scheme”.

“Although much innuendo is made in the affidavits, I find no clear and patent facts which cogently demonstrate this.”

Hershensohn said he was satisfied that Sunshine Hospital has made a case for an interdict.

Respondents muzzled

“From the continued publication by the respondents [RAF and Polela] of similar statements preceding the latest statement of 15 March 2024, it is quite apparent that only an interdict will stop the respondents [RAF and Polela] from continuing to make these statements in the future.”

Read: High court bid to declare RAF and its chair and CEO delinquent

In November 2023, the High Court in Pretoria dismissed with costs an application by the RAF to stay the execution of 181 writs of execution issued by Sunshine Hospital and criticised the RAF and the fund’s CEO, Collins Letsoalo’s, conduct, including the manner in which they refused to abide by valid court orders.

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