Former GetBucks (Now FirstCred) founding Chief Executive Officer (CEO), David van Niekerk is appealing a decision in which he lost a case to interdict The Business Weekly & Review from publishing information related to alleged mismanagement of funds at FirstCred under his captaincy.
In a ruling made by Justice Ookeditse Maphakwane of the Lobatse High Court on 5 December 2022, the founder of GetBucks Botswana (now FirstCred), David van Niekerk, lost with costs the case in which he sought to interdict the newspaper against publishing any information relating to the reported mismanagement of hundreds of millions which were raised from a P500 million domestic medium note programme listed on the Botswana Stock Exchange (BSE).
But van Niekerk has filed for appeal, arguing that Justice Maphakwane erred in his judgement.
Justice Maphakwane’s reason for dismissing van Niekerk was that he did not satisfy his requirements for an interim interdict, leading to the refusal of his application. In arguing his points of law, Justice Maphakwane noted that the court found that van Niekerk’s remedy lay in defamation charges rather than an interdict.
Further, he said it was all within van Niekerk’s power to galvanise himself into action and seek appropriate remedy of damages for defamation action. However, in his grounds of appeal, van Niekerk argues that while Justice Maphakwane found that in the amended notice of motion, van Niekerk sought to interdict all future publications, the judge erred in that van Niekerk only sought to interdict only particular online publications, specifically Facebook and the website as well as “particular defamatory statements of and concerning van Niekerk and not any defamatory statements of and concerning him”.
Further, according to the judgement that van Niekerk is appealing, in order to be granted the interdict, van Niekerk was required to prove the existence of a prima facie right and a well-grounded apprehension of harm, ensure that the balance of convenience favoured him, as well as prove that there was no other satisfactory remedy available.
However, in his grounds of appeal, van Niekerk argues that the facts established in the papers that there was ongoing harm, being particular online publications (Facebook and websites). Further, he argued that there was likelihood of further publication, whether online or otherwise, of the said defamatory statements.
He therefore says the court was incorrect in saying that the relief he sought was a prior (unspecified) restraint and a speculative interdict. In his grounds of appeal, van Niekerk says by seeking to interdict The Business Weekly & Review, the idea was to limit the damages he had suffered from the defamation (although he is yet to prove before court that indeed he was defamed).
He therefore says the court erred in not appreciating the nature of the relief sought and finding that there was no apprehension of irreparable harm in that the alleged defamatory statements have already been published. By advising him to rather sue and claim defamation damages, van Niekerk says the court erred in that the award of damages would not be an appropriate action. He says the interim interdict was sought to limit damages he suffered from the online publications.
In the judgement, however, Justice Maphakwane had stated that even though van Niekerk sought to limit the scope of his argument to existing online publications of the alleged defamatory material, it appeared that he actually sought an interdict against future publications when he had not proved or provided evidence that there was any intended future defamatory publication.
With regard to the alleged defamation, the judge stated that The Business Weekly & Review had not shown to have any difficulty in proving its defences, particularly reasonable publication, which is predicated on the answering affidavit of Dudu Garekwe, the current CEO of FirstCred (former GetBucks), which was availed in these legal proceedings.
Further, the judge spoke of the Audit Report on FirstCred that points to van Niekerk as being responsible for FirstCred’s financial doldrums; a report that has also been availed. “This is not to say the Respondents (The Business Weekly & Review and its Managing Editor) have proved their defences, but as having no difficulty in demonstrating the potency of their defences,” Justice Maphakwane said.
Van Niekerk sought stop The Business Weekly & Review from reporting on the contents of documents filed at the Gaborone High Court, among them a petition written by a group of creditors seeking to have FirstCred liquidated because it was basically insolvent as a result of mismanagement chronicled in FirstCred CEO Dudu Garekwe’s court filing.
Van Niekerk wants his appeal to be upheld with costs. He wants the High Court order through which his application was dismissed with costs, to be set aside or alternatively for the case to be sent back to the High Court for a fresh hearing.
The Business Weekly & Review is defending the appeal.