ARTsolar battle — Industrial Development Corporation challenges order gagging journalist, whistle-blowers

The Industrial Development Corporation of South Africa (IDC) has launched an urgent application to join court proceedings through which a journalist and three “whistle-blowers” have been gagged from making “defamatory” allegations against solar panel company ARTsolar.

These allegations – that ARTsolar falsely claimed to be locally manufacturing solar panels when in fact they were being imported from China – had allegedly been made by a client of ARTsolar, Brett Latimer, and two former employees, Kandace Singh and Shalendra Hansraj. Journalist Bongani Hans had sent questions to ARTsolar about the allegations.

The interim interdict issued on 26 March by Durban High Court Acting Judge Perlene Bramdhew has a return date at the end of July and bars Latimer, Singh and Hansraj from making written or verbal “defamatory” statements that ARTsolar “conducts business unethically or dishonestly”. Hans is interdicted from publishing the statements.

Latimer, Singh and Hansraj are barred from making the “defamatory” statements to “members of the press, Independent Newspaper Group, the International Trade Administration Commission of South Africa (ITAC), the Industrial Development Corporation of South Africa (IDC) and the Department of Trade, Industry and Competition (DTIC)”.

The amaBhungane Centre for Investigative Journalism and the Freedom of Expression Legal Network are also contemplating joining the proceedings because of the order’s impact on media freedom.

In its application, the IDC says it should have been a party to the urgent proceedings because it had given ARTsolar R90-million in funding in 2022 “to enable ARTsolar to install the latest technology for the local production of solar panels”.

It wants the interim order to be set aside because “the relief sought has been intentionally engineered” to intercept and frustrate an IDC investigation into whether the company was properly using the funds.

In his affidavit, senior legal adviser Cebo Nzuza said the IDC funded ARTsolar to serve its mandate of promoting economic growth “and to create a local manufacturer of solar panels”.

He said ARTsolar installed and commissioned the IDC-funded manufacturing plant and machinery at its factory in New Germany and “holds itself out, to the world, on its website, as a local manufacturer of solar panels”.

Nzuza said it had received “whistle-blower” reports that this was not the case. It also became aware of another complaint laid with the DTIC.

The DTIC had tasked the IDC with conducting an expeditious investigation, with a report to be submitted by March 2025.

ARTsolar had been made aware of the complaint and a visit to the factory was scheduled for 26 March. But a day before, the IDC received correspondence from ARTsolar’s attorneys asking if the complaint had been made by Latimer and advising of ARTsolar’s urgent court application which was to be heard on 26 March.

“This exacerbated the IDC’s concerns,” he said, because the IDC needed to engage with Latimer, Singh and Hansraj in its investigation. Nzuza said that after the interdict was granted, the IDC had requested to be allowed to speak to them in order to proceed with the investigation. But this had been refused.

He said it was clear that ARTsolar specifically did not want the three to communicate with the IDC and other government entities with regards to their allegations.

He said the order was obtained without notice to the IDC in circumstances where the IDC had a material interest in determining the veracity of the complaints against the company.

“Where ARTsolar is acting in accordance with the spirit of the facilities agreement and whether it is actually manufacturing the solar panels locally is a matter of significant importance to the IDC. Had ARTsolar joined the IDC [in the proceedings], it would have opposed the relief on the basis that the IDC is duty bound to investigate the complaint.”

Nzuza said the allegations against the company were serious and its ability to investigate was “significantly hampered” by the interim order.

ARTsolar opposes