5. THE PARTIES’ AVERMENTS CONCERNING THE RUBBER STAMPING ISSUE
8.2 The minister told me that he had reported to the president that co- operation between the task team and SARFU had broken down and
that he would apply for the appointment of a commission of inquiry.
The president who had been kept abreast of developments in the matter was sympathetic to the minister’s attitude and seemingly supportive of the idea of a commission of inquiry. The minister was confident that, if he were to apply for the appointment of a commission of inquiry, the president would in all probability agree to
“ such an appointment. There was no suggestion, however that the president had already made up his mind or would leave it to the minister to take a final decision.
8.3 When the minister reported to me on the outcome of his meeting with the president, he was keen to go ahead with the application for the
appointment of a commission. I was anxious, however, to make a last attempt to persuade SARFU to co-operate with the task team to allow the latter to complete its investigation. I consequently decided to prepare a press statement which would send a message to SARFU in the strongest possible terms, that a commission of inquiry would be appointed if they did not resume their co-operation with the task team.
8.4 It was for that reason that I said in the statement that the president had assured the minister that:
‘A commission is yours if, in your best judgment, it is opportune’.
“8.5 Those words were, however, mine and not that of the minister. The minister had in fact not at any time purported to report to me the actual words used by the president.
8.6 The press statement went on to make it clear that SARFU was being given a last opportunity to restore their co-operation with the task team. That was really what I was trying to achieve. I thought I might be able to do so by coupling the strong message of the
likelihood of the appointment of a commission of inquiry with the
last opportunity afforded to SARFU to avoid the appointment of a commission by restoring their co-operation with the task team.
9. The applicants only rely on this statement in their affidavit (para 40.10, p57). I have for that reason confined myself to dealing with the
statement attributed to the president and have not commented on other aspects of the press statement.”
5.6 The Minister’s supplementary affidavit:
The Minister in his supplementary affidavit dealt inter alia with the press statement, “X”, as well as a newspaper article which appears at p648 of the papers. He also dealt with two other newspaper articles which appear at 650 - 652 and 664 of the papers. Since the latter two newspaper articles are not for the moment relevant, I shall not quote the Minister’s affidavit in regard to them. Paragraphs 4 to 11 (701 - 707) of the Minister’s affidavit read as follows:
“4. I have been advised by the respondents’ legal advisers that the applicants intend to rely on certain statements in the department’s press statement and the newspaper articles as proof of their contents. It is for that reason that I deal with the statements contained in the press statement and the newspaper articles which the applicants rely on in their affidavits.
THE DEPARTMENT’S PRESS STATEMENT OF 7 AUGUST 1997
5. I was furnished with a copy of the press statement of 7 August 1997 by the respondents’
“ legal advisers on 29 January 1998. I believe that the director-general was responsible for the press statement and dealt with it in his further
supplementary affidavit.
6. The press statement had said that the president had told me that:
‘A commission is yours if, in your best judgment, it is opportune’.
7. The president in fact never made such a statement to me and I never reported to anybody that he had done so.
8. What had in fact happened was the following:
8.1 I was fully aware that the appointment of commissions of inquiry was the prerogative of the president. I had in fact previously applied to him for the appointment of a commission of inquiry into the administration of football in South Africa. I was never under any illusion that the president would or could leave it to me
“ to decide whether such a commission should be appointed.
8.2 I had from time kept the president abreast of developments in the
rugby saga. I had previously reported to him on the appointment of the task team and the difficulties they were experiencing in their investigation.
8.3 I was overseas when I heard that there had been a breakdown in
SARFU’s co-operation with the task team. I decided to apply for the appointment of a commission of inquiry. I intended, however, to meet with the president before I did so to sound him out on the idea.
It is indeed common for me and other ministers to sound out the president before presenting him with a formal request for the exercise of his presidential powers.
8.4 I met with the president on Tuesday, 4 August 1997. He was well informed on the developments in the rugby saga. Not only had I kept him abreast from time to time but it was
“ clear that he had also kept abreast of developments through the media and such other sources of information as are available to him.
8.5 I discussed the breakdown of co-operation between SARFU and the task team with the president and told him of my intention to apply for the appointment of a commission of inquiry. He was very sympathetic to my position and encouraged me to apply for the appointment of a commission of inquiry if I deemed it appropriate.
Judging from my discussion with him, I was confident that, if I were to make such an application, the president would in all probability agree to the appointment of a commission of inquiry. There was no suggestion, however, that the president had already decided to make such an appointment or that he left it to me to make the decision. He and I were at all times under no illusion whatsoever that the decision would have to be his and could not be left to me.
8.6 I reported to the director-general on my meeting with the president. I was keen to proceed with
“ an application for the appointment of a commission of inquiry. The director-general, however, preferred to make one last effort to persuade SARFU to co-operate with the task team to avoid the need for a commission of inquiry. I am told that that was why he issued the press statement in the terms he did.
8.7 The president certainly never made the statement attributed to him in the press statement and newspaper reports and I also did not report to the director-general that the president had made such a statement.
9. I am told that the applicants seek to draw some inference from the fact that I did not publicly repudiate the press reports on the statement the president had allegedly made to me. The suggestion is quite
unrealistic and far-fetched. The newspaper reports did not attribute the quotation to me. But even if they did, I would probably not have bothered to issue a public repudiation. I am frequently misquoted or
inaccurately reported in the press. To issue a public repudiation every time this happens is an
“ impossible task. I do not ordinarily issue public repudiations
whenever I am the subject matter of any inaccurate newspaper reports.
10. When I consulted with the respondents’ legal advisers in preparation of my answering affidavit, this issue was raised and discussed. They, however, decided that it was not necessary for me to deal with the contents of the newspaper report which purported to be no more than a newspaper report of what SAPA had said of what the departmental statement had said of what I had said that the president had said.
11. The suggestion that the president had at our meeting on 4 August 1997 abdicated his decisionmaking power to me, is in any event quite absurd:
11.1 Both he and I were actually aware of the fact that the power to appoint commissions of inquiry was his alone and could not be abdicated.
11.2 I caused a very substantial submission to the president to be prepared for the appointment of
“ a commission of inquiry. It is before this court in what has been called the “Tshwete file”. It would have been an absurd charade to have the submission prepared and for the president to receive and consider it if indeed a final decision had been taken. It was done precisely because the president still had to be finally persuaded to agree to the
appointment of a commission of inquiry.
11.3 I personally presented my submission to the president on 12 September 1997. I was accompanied by two members of the task team, Professor Michael Katz and Mr Mervyn King. I asked them to accompany me to brief the president on behalf of the task team.
11.4 I did not have any part in the formulation of the terms of reference of the commission appointed by the president. Paragraph 6.6 at page 18 of my submission to the president, listed certain questions which required investigation. The terms of reference were, however, prepared by the president’s office. As appears from my list of questions which required
“ investigation on the one hand and the commission’s terms of reference on the other, the president clearly exercised a discretion quite
independent from my submission to him.”
Before referring to the Minister’s supplementary affidavit in so far as it deals with the newspaper article at 648 of the papers, it is necessary to refer to the article itself which appeared in the Sunday Times of 17 August 1997 under a heading “Commission cleared to probe SARFU” and with a sub-heading
“Appointment of judicial inquiry ‘a formality’ says Tshwete”. The article purports to have been written by Rodney Hartman, Sports Editor.
It will be recalled that in their written settlement the parties agreed to admit this article and the two other newspaper articles referred to in the Minister’s affidavit in terms of section 3 of the Law of Evidence Amendment Act 45 of 1988).
The relevant part of the article (at 648) reads as follows:
“After months of sparring with rugby strongman Louis Luyt, the Minister of Sport, Steve Tshwete, says he is going ahead with a commission of inquiry into the SA Rugby Football Union, of which Luyt is president. ‘I will make an announcement on Tuesday or Wednesday about the composition of the commission and where it will sit.” he said on Friday night.
Sarfu had itself to blame for the decision to appoint a commission, he said.
‘They wrote to us and made demands and set conditions. This is just not acceptable. They have no right to do so.’
The appointment of a judicial commission will take effect only once President Nelson Mandela has signed the order. Though the president’s office has yet to make an announcement, Tshwete was adamant that this was a formality which had already been decided upon.”
The Minister reacted as follows to the said newspaper article in paragraphs 12 to 15 (707 - 708) of his further supplementary affidavit:
“12. The Sunday Times report of 17 August 1997 at page 648 of the papers purported to report on certain
“ statement I had made. The report was based on an incidental telephone call I had received at my home the previous Friday evening. I do not have a precise recollection of everything said during the conversation, but have little doubt that the report is not accurate.
13. It was reported that I had said that I was going ahead with a commission of inquiry into SARFU and would make an announcement on the following Tuesday or Wednesday about the composition of the commission and where it would sit. I have little doubt that that was not what I had said. It may, however, have been a misunderstanding. I had at that time decided to go ahead with my application to the
president for the appointment of a commission of inquiry. I was also considering recommendations to the president about the format and composition of the commission. I may well have conveyed that intention to the reporter, but I certainly had no illusion that those matters were still subject to the president’s decision.
“14. I was also reported to be ‘adamant’ that the appointment of a
commission ‘was a formality that had already been decided upon’. I
note that the report did not attribute those words to me. I have little doubt that they were the words of the reporter and not mine. I readily concede, however, that I may well have told the reporter that I
intended to go ahead with an application for the appointment of a commission of inquiry and that I had the fullest confidence that my application would be successful. That was indeed my intention and belief at the time.
15. It is in any event apparent from my subsequent conduct that no final decision had been taken at the time and that it was still up to the president to do so. That was why I prepared the submission and again met with the president together with the members of the task team as I have already explained.”
5.7 The President’s further supplementary affidavit:
In the President’s further supplementary affidavit he stated the following (paragraphs 2 to 11, 696 - 699 of the papers):
“2. I have personal knowledge of the matters deposed to in this affidavit except where the contrary is apparent from the context.
3. I have read the minister’s further supplementary affidavit and confirm that it is correct in so far as it describes the events to which I was a party.
4. I understand that on 7 August 1997 the director-general issued a statement on behalf of the department which was reported on in the newspaper articles and which appear at pages 296-301 of the papers.
5. In the press statement, I am quoted as having told the minister that:
‘A commission is yours if, in your best judgment, it is opportune’.
6. The respondents’ legal advisers have advised me that the applicants intend to rely on the press statement to prove that I made this statement.
“ For that reason, I will deal with the statement in this affidavit.
THE STATEMENT ATTRIBUTED TO ME IN THE DEPARTMENT’S PRESS STATEMENT OF 7 AUGUST 1997
7. I specifically deny the allegation in the newspaper reports at pages 296- 301 and in the department’s press statement of 7 August 1997 that I had told the minister that:
‘A commission is yours if, in your best judgment, it is opportune’.
8. The press statement and those reports apparently followed upon the meeting the minister had with me on Tuesday, 4 August 1997. I confirm the minister’s account of that meeting.
9. I am told that the applicants have suggested that some inference should be drawn from my failure to repudiate the news reports at the time. The suggestion is, however, quite unrealistic. I do not know whether the particular quotation came to my attention at the time. It was certainly not
“ pertinently drawn to my attention. I am the subject matter of numerous news reports on a daily basis. Those reports are often inaccurate. It is simply not my practice publicly to refute every inaccurate report. It would, in any event, be an impossible task and in my view entirely inappropriate for one in my office to refute and correct news reports on a daily basis.
10. I was at all times acutely aware of the fact that the power and
responsibility to appoint commissions of inquiry was mine alone and could not be abdicated or delegated to anyone else. I had not in fact taken a final decision by the time the minister saw me on Tuesday, 4 August 1997 and never made a suggestion to that effect during our conversation. I would certainly never have left it to him to take the final decision. Subsequent events indeed bear this out. I confirm the minister’s account of how he had prepared a written submission and again met with me accompanied by two members of the task team when the written submission was presented to me. He did so finally to persuade me to appoint a commission of inquiry. I thereafter took some time to make up my mind. My office prepared the terms of reference of the commission in consultation with me. I moreover, elicited the concurrence of the deputy president as was required of me under the constitution. I described the manner in which I did so in my supplementary affidavit.
11. The respondents’ legal advisers consulted with me in the course of preparation of my answer in the main application. They raised with me at the time the news reports referred to above. I made it quite clear to them that those reports were inaccurate and that I had not made the statement attributed to me. They advised me, however, that it was not necessary for me specifically to deal with those reports as they constituted inadmissible fifth-hand hearsay evidence.”
5.8 Applicants reply to the respondents’ further affidavits:
As indicated above, the applicants filed a replying affidavit to respondents’
further supplementary affidavits. The applicants’ deponent, Luyt, inter alia said the following in paragraphs 4 to 6 (720-1):
“4. All the Respondents address the Press statement of 7 August 1997. In reply thereto I state the following:
4.1 Respondents’ version that the President did not make the statement as quoted in Paragraph 7 of the First Respondent’s Supplementary Affidavit cannot be accepted.
4.2 I have been advised that this is a legal argument and that I need not address this issue any further.
5.
5.1 In regard to the Sunday Times’ report of 17 August 1997 it appears clearly from paragraphs 12 and 14 of the Second Respondent’s Affidavit that he did make the statements contained in the said report. His version, however, is that there may have been a
misunderstanding. He is extremely vague in his explanation and his denial of what he had said does not create a genuine dispute.
“5.2 I respectfully refer the Honourable Court to the Affidavits by David Hercules Botha and Jacobus Johannes Gerber annexed hereto. From these Affidavits it appears that:
5.2.1 The report was not based on an incidental telephone call the Minister received at his home the previous Friday evening;
5.2.2 The Minister was correctly quoted and the facts in the report are correct.
6. Having regard to all the facts I state that the Respondents’ denial of the President’s ‘rubber stamp’ of the appointment of the Commission cannot be correct. This is also a matter for further legal argument.”
In paragraph 10 (at 721-2) Luyt said the following:
“10. With reference to the Third Respondent’s Supplementary Affidavit I state as follows:
10.1 It cannot be accepted that the Press statement could not be found;
“10.2 the version and explanation presented by Third Respondent in paragraph 8 of his Affidavit is so bizarre and far-fetched that it can only be rejected as false.”
Botha’s affidavit is not relevant. Gerber’s affidavit (at 726) states the following:
“1. Ek is meerderjarig en die sportredakteur van die Sondagkoerant Rapport, van Daviesstraat 72, Doornfontein, Johannesburg.
2. Die inhoud van hierdie verklaring strek tot my persoonlike kennis en is waar en juis.
3. Ek het Vrydagaand, 15 Augustus 1997 die Presidensiële Toekennings aan Suid-Afrika se sportlui-funksie by die Presidensiële gastehuis in Pretoria bygewoon.
4. Minister Steve Tshwete, die Minister van Sport en Toerisme, en Rodney Hartman, die sportredakteur van die Sondagkoerant Sunday Times, was ook by die funksie aanwesig.
“5. Menere Tshwete, Hartman en ek het na afloop van die funksie in die voorportaal van gemelde gastehuis met mekaar gesels.
6.1 ‘n Verslag onder die opskrif ‘Commission cleared to probe Sarfu’ en sub-opskrif ‘Appointment of judicial inquiry ‘a formality’ says Tshwete’ het op bladsy 2 van die Sunday Times van Sondag, 17 Augustus 1997 verskyn, waarvan ek ‘n afskrif, gemerk ‘JJG1', aanheg.
6.2 Die gedeeltes van gemelde verslag oor wat Minister Tshwete
aangaande ‘n kommissie van ondersoek na die sake van Sarfu gesê het, is ‘n juiste weergawe en verslag van wat hy inderdaad aan Hartman en my gesê het.
7. Ek heg verder hierby aan ‘n afskrif van my verslag onder die opskrif
‘Regter bekyk rugby’, wat in Rapport verskyn het op Sondag, 17 Augustus 1997, gemerk ‘JJG2'. Die inhoud van laasvermelde verslag is insgelyks waar en juis.”
Annexure “JJG1" (at 728) is the same newspaper article which appears at 648 of the papers.
Gerber’s report, annexure “JJG2" (at 729) has a heading which reads: “Regter bekyk rugby”.
The relevant part thereof reads as follows (729):
“Die twis tussen die Suid-Afrikaanse rugbybaas, dr Louis Luyt en die regering oor die ondersoek na rugby se sake het die naweek ‘n wending geneem toe min. Steve Tshwete aan Rapport gesê het dat die ondersoek nou in die hande van ‘n regterlike kommissie is.
Die besluit om ‘n regter aan te stel om aantygings van wanbestuur in Suid- Afrikaanse rugby te ondersoek, is geneem nadat die taakspan onder
voorsitterskap van mnr Mthobi Tyamzashe, die direkteur-generaal van sport, al maande met sy ondersoek sloer.”
At 730 the following passage of Gerber’s report is relevant:
“By Vrydagaand se presidensiële toekennings aan Suid-Afrika se sportlui by die presidensiële gastehuis in Pretoria het nie mnr Tshwete of pres Nelson Mandela in hul toesprake na die voortslepende twis tussen die Suid-
Afrikaanse Rugbyvoetbal-unie en die regering “verwys nie. Mnr Tshwete het egter later in ‘n gesprek met Rapport gesê dat hy ná oorlegpleging met die taakspan Vrydag beslis het dat die taakspan met ‘n regterlike kommissie vervang moet word.
Hy wou nie uitwei oor enige getuienis wat met die taakspan se ondersoek aan