“Gagged” businessman seeks to prove he was right
Shipping company called in to reveal details of ARTsolar’s imports
The KwaZulu-Natal businessman who was stopped by a court from making claims that solar panel company ARTsolar imported its panels instead of manufacturing them has now asked a shipping firm for documents about ARTsolar’s imports. Graphic: Lisa Nelson
- The KwaZulu-Natal businessman who was gagged by a judge is seeking to prove the truth of his allegations against solar panel company ARTsolar.
- Brett Latimer, two former employees of ARTsolar, and a journalist, were stopped by a judge in March from stating that Artsolar imports solar panels while claiming to manufacture them.
- Now Latimer’s lawyers have issued a subpoena against a local shipping firm, asking for documents about ARTsolar’s imports.
- ARTsolar tried to block the subpoena but the Durban High Court dismissed its bid.
Businessman Brett Latimer, who was “gagged” by the Durban High Court from making “defamatory” allegations that ARTsolar imports solar panels instead of manufacturing them, is seeking to prove the truth of his allegations.
On the back of the gagging order, his lawyers issued a subpoena against local shipping firm Turners Shipping, asking that it provide documents detailing ARTsolar’s imports over four years.
ArtSolar launched an urgent court application to set aside the subpoena. The application was dismissed by Acting Durban High Court Judge Mimie Menka on Tuesday, with costs.
The judge, instead, ruled in favour of a counter-application brought by Latimer, compelling the shipping company to provide the required documents within five days.
She said ARTsolar had not shown that the matter was urgent or that the subpoena was irregular and that the documents were relevant to the ongoing legal dispute.
The original “gagging” order against Latimer and two former employees of ArtSolar, Kandace Singh and Shalendra Hansraj, was granted in March by Acting Judge Perlene Bramdhew.
The order prevented the three from making claims that the company conducted its business unethically and dishonestly, in that it claimed to be manufacturing solar panels at its New Germany factory when, in fact, the panels were being imported from China.
The order also barred journalist Bongani Hans from reporting on their allegations.
Judge Bramdhew specifically barred the three “whistleblowers” from communicating with the Industrial Development Corporation (IDC) which had provided R90-million funding for the factory.
That interim order will return to court at the end of July when it will either be confirmed or discharged. But in the meantime, the IDC launched its own urgent court application, after which it was joined as a party to the proceedings.
Reference to the IDC was removed from the order, enabling it to investigate the allegations.
In early April, lawyers for the three “whistleblowers” served the subpoena on Turners Shipping.
ARTsolar responded with an urgent application in which it claimed that the subpoena was irregular.
It said the origin of the solar panels had nothing to do with the ongoing interdict litigation in which it had already been found that the allegations were “disqualified from relying on truth and public interest” (as a defence to defamation) because Latimer was colluding with Hansraj, who was now working for him, and Singh, who is his girlfriend.
Both Hansraj and Singh were “disgruntled ex employees”, the company said, and the three were acting out of malice.
In his affidavit, ARTsolar chairman Bebinchand Seevnaryan said the three had no interest in where the panels came from.
“They are not custodians of the public interest and have no business with these bills of loading. They are not the IDC nor are they a body with investigative powers. What is clearly emerging is a vendetta.”
Hansraj said the fundamental issue in the interdict application was whether or not the bulk of the solar panels (about 95%) were manufactured locally or imported from China. The bills of lading were directly relevant to this.
“The parties require the documents in the pursuit of truth, for the preparation of their case,” Hansraj said.
“The process of a subpoena is designed precisely to protect the right of a litigant to obtain documents relevant to his or her case in the pursuit of truth and justice.”
Hansraj attached a copy of a letter written to Latimer by Minister of Trade, Industry and Competition Parks Tau in March this year, in which the minister thanked him for his “ethical conduct in exposing behaviour that is detrimental to the local content prescripts and manufacturing sector in South Africa”.
The minister said he viewed the allegations in a serious light and had directed the IDC to investigate them.
Latimer, Singh and Hansraj have also raised a constitutional challenge to the “gagging order”, contending it violates their rights to freedom of expression.
The amaBhungane Centre for Investigative Journalism has applied to join the case as an amicus curiae (friend of the court).
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