16 May 2025
ARTsolar obtained a court order in March against a journalist and whistleblowers gagging them from making allegations against the company. Archive photo: Ashraf Hendricks
Businessman Brett Latimer was “gagged” by solar panel company ARTsolar from making “defamatory” allegations that it imports and does not locally manufacture panels. But now Latimer says he has proof for his claims.
Latimer filed a supplementary answering affidavit ahead of the 29 July return date to court. Then, a judge will have to decide whether to confirm or discharge the interim interdict granted against Latimer and two former employees of ARTsolar in March this year.
In Latimer’s affidavit he has corrected his allegation that the company imported 95% of panels. Instead, he says, bills of lading he secured through a subpoena against a local shipping company, show that the company imported 99% of panels.
He said a total of 2,871 pallets of solar panels (in 142 containers) were imported from China from April 2019 to July 2023.
“This amounted to a total of at least 80,000 units of completed solar panels imported during the relevant period, on the basis that an average of 28 solar panels is contained in each pallet.
“Thus nearly 99% of the applicant’s imports consisted of completed solar panels. On the other hand, the applicant imported only two containers with components for the manufacture of solar panels during the relevant period,” Latimer said.
He said this was in spite of the company “falsely representing” to the public that it was a local manufacturer.
Latimer’s lawyers obtained the subpoena against Turners Shipping on the back of the gagging order granted by Durban High Court Acting Judge Perlene Bramdew.
ARTsolar attempted to have the subpoena set aside, saying it was irregular and not related to the ongoing legal proceedings.
But Acting Durban High Court Judge Mimie Menka ruled in favour of a counter-application brought by Latimer, compelling the shipping company to provide the required documents.
ARTsolar has now indicated that it wishes to apply for leave to appeal this ruling.
But the issue has become “moot” in that Latimer has already got the documents and has used them as a basis for his most recent affidavit.
The original “gagging” order against Latimer and two former employees of ARTsolar, Kandace Singh and Shalendra Hansraj, prevented the trio from making claims that the company conducted its business unethically and dishonestly. In particular that it claimed to be manufacturing solar panels at its New Germany factory when, in fact, the panels were being imported from China.
It also barred journalist Bongani Hans from reporting their allegations.
The order specifically barred the three “whistleblowers” from communicating with the Industrial Development Corporation (IDC) which had provided R90-million funding for the factory.
The IDC launched its own urgent court application, successfully arguing that it should have been joined in the proceedings, and that the order was stifling an investigation into the matter on the instruction of Parks Tau, Minister of Trade, Industry and Competition.
The order was amended to exclude reference to the IDC.
ARTsolar also wants to apply for leave to appeal this order.
IDC lawyer Edward Abraham, of Pather and Pather attorneys, told GroundUp, the matter was moot because the IDC has already interviewed the three whistleblowers and was finalising its investigation.
In his latest affidavit, Latimer said ARTsolar Chairman Bebinchand Seevnarayan had admitted in his affidavit in the “gagging” matter, that it was true that some solar panels were imported but the allegation that it was importing “95%” was false.
Latimer said in his affidavit that the source of the panels was a matter of public interest because of the IDC funding, which had been granted to promote economic growth in South Africa.
Minister Tau had also, in a letter to him, thanked him for bringing the matter to his attention “exposing behaviour that is detrimental to the local content prescripts and manufacturing sector in South Africa”.
“It follows that the allegations by [ARTsolar] that we are motivated by malice is a fabrication,” wrote Latimer.
Latimer also noted that ARTsolar had changed its website shortly before launching the March application.
It was previously reported by GroundUp that the company changed it from being a “local manufacturer” of solar panels to “a local manufacturer/assembler of solar panels”.
Latimer also attached extracts from court proceedings in the Pretoria High Court, in which ARTsolar, through Seevnarayan, sought to set aside a decision by Minister Tau to award an exemption in respect of designated local content requirements to any or all independent power producer (IPP) companies.
The challenge related to several tenders issued by the Department of Mineral, Resources and Energy to the IPPs. ARTsolar wants the court to rule that the IPPs place orders for certain modules from it.
In that ongoing 2024 application, Seevnarayan stated that ARTsolar was a local manufacturer of solar panels, and the decision affected its legal rights.
He stated: “Without local manufacturers like ARTsolar, South Africa would be solely reliant on imported modules. This would result in significant job losses and long-term dependence on foreign energy suppliers.”
Latimer said ARTsolar had “willfully” misrepresented on its website, marketing material and contractual documentation, to the public, the IDC, the DTIC, Eskom and other foreign companies that it manufactured 100% of solar panels locally.
This was not the truth, Latimer wrote.
It had also in more than 100 marketing presentations to prospective clients claimed that it was “proudly South African”.
Latimer said the interim order had also violated their rights to freedom of expression.
After raising this as a constitutional challenge, the amaBhungane Centre for Investigative journalism applied to join the case as an amicus curiae (friend of the court).
ARTsolar has refused to consent to this.
Bongani Hans of Independent Media has also filed an opposing affidavit in the matter.
Citing articles in the media that report on the ARTsolar matter, he argues the case is moot. He notes that ARTsolar shot itself in the foot. “The Applicant has brought upon itself the harm it wished to avoid,” he writes.
He notes that the gagging order prevented him, but not other reporters, from reporting the allegations against ARTsolar.
He says that the order, which should not have been granted, was “taken in his absence”.
He alleges that ARTsolar’s motive was to prevent the IDC investigation.
ARTsolar is expected to file a further affidavit on 11 June.