Former board chairperson of the National Student Financial Aid Scheme (Nsfas), Ernest Khoza, has lost a bid to challenge the Organisation Undoing Tax Abuse (Outa) to remove the report implicating him in corruption. 

This after the Johannesburg High Court dismissed his application for Outa to remove the report from its website.

It was Khoza’s second attempt after he wrote to Outa, through his attorneys, demanding the removal of the report shortly after it was published last year.

The report, which was published in January 2024, exposed how Khoza and former Higher Education Minister, Blade Nzimande, defrauded Nsfas through kickbacks from service providers.

Khoza requested to respond to the dismissal by Wednesday. 

But in his application, he sought for the court order to take the report down from its website and an order that he must be allowed to respond to the allegations. 

He also demanded that the report only be republished once this was completed to his satisfaction, adding that the republished report contain an accurate record of his responses to each allegation.

Khoza argued that Outa was no mere private party, and that the default common law position did not apply to it.

He stated his argument as follows:

– Outa proclaims to the world that it exercises a public interest function. It undertakes quasi-public functions, which must attract commensurate public duties.

– Although lacking any legal authority or mandate to do so, Outa purports to conduct investigations into allegations of malfeasance and corruption in the public sphere.

– Outa holds itself out as following a fair investigation process, described on its website as its “5-step methodology”, which includes investigations, engagement with those implicated, exposure of its findings to the public, mobilisation of public interest in the matter, and litigation aimed at achieving what it perceives as the appropriate remedy. 

– Outa seeks to convey the message that it follows a fair investigation process, and that its findings can therefore be trusted. This, in turn, creates a legitimate expectation on the part of a person implicated in wrongdoing in an Outa report to be heard prior to publication.

 – In publishing its investigation reports, Outa (a reputable organisation) reaches a wide audience, and therefore acts as a quasi-media organization, and attracts similar duties to the recognised media, in particular the duty to allow implicated parties prior notice and an opportunity to comment, prior to publication.

– Section 8(2)(iii) and (iv) of the Constitution provides for the horizontal application of fundamental rights, and should be applied in the circumstances. In addition to the right of reply and fair process, the applicant asserts that his fundamental right to dignity includes the right to be heard and to preserve his reputation.

However, in its answering affidavit, Outa described itself as a non-profit civil action organisation supported and publicly funded by ordinary South Africans.

Its mission includes challenging and taking action against maladministration and corruption, and, where possible, holding those responsible to account.

The organisation added that as part of its work, it has investigated alleged maladministration in the administration of publicly funded bursaries and student accommodation by the Department of Education and Nsfas, the government-funded bursary and loan organization.

“OUTA received recordings of a telephone conversation purportedly involving the applicant, duly investigated, and in January 2024, it published the article and impugned report,” read the papers.

Outa added that the report contains accurate quotes from the recordings, and that it is truthful and has been published in the public interest.

The court said the investigation did not determine anything, adding that it made prima facie findings of fact and provided them to the relevant authorities with recommendations on further action.

“None of the findings or recommendations contained in Outa’s report are binding on anyone, and the police and National Prosecuting Authority will decide independently whether to investigate Outa’s complaints or to prosecute anyone accused by Outa of wrongdoing,” read the judgment, which added that the organisation performs investigations and makes recommendations in its capacity as a private actor.

Reflecting on the outcome, Outa’s executive director of accountability, Advocate Stefanie Fick, said 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.

​Fick said the judgment 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.

manyane.manyane@inl.co.za

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