Aids and TB funder wins defamation case

• Court criticises Pakistani health body for causing ‘untenable’ situation

After the world’s largest financier of Aids, tuberculosis and malaria prevention was sued for defamation by a Pakistani health organisation in SA courts, the Supreme Court of Appeal (SCA) has criticised the organisation for arguing its case locally. SA-based lawyers for the Pakistani organisation, the Interactive Research & Development (IRD), claimed SA had jurisdiction. But the SCA criticised the IRD for wanting to cause a situation that would be “untenable”. The judgment establishes precedent for when and where SA courts can hear cases even from foreign companies. This now affects every court in SA and informs foreign companies litigating in SA.

After the world’s largest financier of Aids, tuberculosis and malaria prevention was sued for defamation by a Pakistani health organisation in South African courts, the Supreme Court of Appeal (SCA) has criticised the organisation for arguing its case locally.

SA-based lawyers for the Pakistani organisation, the Interactive Research & Development (IRD), claimed SA had jurisdiction. But the SCA criticised IRD for wanting to cause a situation that would be “untenable”.

The judgment establishes precedent for when and where SA courts can hear cases even from foreign companies. This now affects every court in SA and informs foreign companies of litigating in SA.

Bill Gates was one of many donors who helped start the Global Fund to Fight Aids, Tuberculosis and Malaria in 2002. The Global Fund is the world’s largest financier of these health issues having disbursed more than $60.4bn. The Global Fund claims it is responsible for 28% of all international financing for HIV programmes.

In 2021, the Global Fund published an investigation report that alleged IRD was involved in illicit dealings involving tuberculosis grants in a Pakistani hospital affiliated with the Global Fund. IRD, a global health delivery organisation, has affiliates around the world, including SA.

The Global Fund claimed IRD “breached the Global Fund’s policies”, noting “multiple irregularities”.

IRD’s attorneys in SA accessed and downloaded the report and, as a result, planned to sue for defamation in SA’s high court. IRD launched an urgent interdict to have the report taken down. In response, the Global Fund argued there was no case as the court had no jurisdiction.

The high court in Johannesburg agreed with the Global Fund but IRD appealed to the SCA, which also agreed with the Global Fund, dismissing that IRD had established jurisdiction because its SA-based lawyers had downloaded an internet document locally and had local funders.

“Internet publication, with its global reach, for practical purposes must be contained,” acting SCA judge Elizabeth Baartman said in a unanimous judgment. If people could simply download internet publications and claim defamation, this would lead to “multiple actions” all over the world, which would be “untenable”, she said.

Baartman noted it was not impossible for foreign companies to argue in local courts, but “a court must be able to give effect to its judgment”.

She said where foreign companies wanted to litigate in SA, a court had jurisdiction where the company being sued had immovable property in SA. This was because, if the claim was successful, the court would have an item that could not be moved back overseas and which had monetary value that the successful claimant could take.

Another instance, she noted was “where litigants submit to the court’s jurisdiction”. This was where, despite both being foreign, both companies agree in writing to deal with the case locally. Neither example was demonstrated here. “The only connection to the high court’s jurisdiction is that the attorney accessed the report in its jurisdiction” which is “insufficient”.

She therefore dismissed the case with costs.

THE JUDGMENT ESTABLISHES PRECEDENT FOR WHEN AND WHERE SA COURTS CAN HEAR CASES EVEN FROM FOREIGN COMPANIES