Moepya v Mokubedi (2025/164644) [2025] ZAGPJHC 1035 (7 October 2025)

Case Note

Anonymous Applicant v Anonymous Respondent (High Court of South Africa, Gauteng Division, unreported judgment delivered 14 October 2025)

Reportability

The judgment deals with the increasingly recurrent phenomenon of online defamation committed through social-media platforms and the availability of urgent interdictory relief coupled with ancillary orders such as retractions and apologies. The court’s detailed treatment of urgency, the admission of supplementary affidavits under Rule 6(5)(e), and the interaction between the constitutional rights to dignity and freedom of expression render the case of clear precedential value. It clarifies the application of established defamation principles to digital publications, re-affirms the role of interim and final interdicts where damages are not an adequate remedy, and supplies guidance on when courts will compel the removal of offending content.

Cases Cited

New Nation Movement NPC and Others v President of the Republic of South Africa and Others (CCT110/19) [2020] ZACC 11; 2020 (8) BCLR 950 (CC); 2020 (6) SA 257 (CC) (11 June 2020).

East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011).

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC).

Economic Freedom Fighters v Manuel (711/2019) [2020] ZASCA 172; [2021] 1 All SA 623 (SCA); 2021 (3) SA 425 (SCA) (17 December 2020).

The Citizen 1978 (Pty) Ltd and Others v McBride 2011 (4) SA 191 (CC).

Du Toit v Becket and Another (8687/2023) [2024] ZAWCHC 56 (21 February 2024).

National Media Ltd and Others v Bogoshi (579/96) [1998] ZASCA 94; 1998 (4) SA 1196 (SCA); [1998] 4 All SA 347 (A) (29 September 1998).

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC).

Dikoko v Mokhatla 2006 (6) SA 235 (CC).

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

Legislation Cited

The Constitution of the Republic of South Africa, 1996, sections 10 and 16.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12) on urgency, Rule 6(5)(e) on supplementary affidavits, and Rule 27 regarding condonation.

HEADNOTE

Summary

The applicant, the chairperson of a constitutional body, sought urgent relief after the respondent published a series of Facebook posts accusing him of shielding rapists, committing adultery, and abusing state resources. Having failed to secure a voluntary retraction and apology, the applicant approached the court for a declarator of defamation, mandatory removal of the posts, a restraint against further similar publications, and an order compelling an apology.

The respondent filed out-of-time answering papers and several supplementary affidavits. He alleged that his statements were true, alternatively constituted fair comment or reasonable publication in the public interest, and contended that the application lacked urgency. He also invoked constitutional free-speech protections and asked for referral to trial, arguing that factual disputes precluded final relief on motion.

The court admitted the late and supplementary filings from both sides, upheld urgency, rejected the respondent’s substantive defences as unsubstantiated, and granted a final interdict together with a declaratory order and mandatory takedown. It declined to order an apology, but its reasoning underscores the limits of digital speech where dignity and reputation are wantonly infringed.

Key Issues

Whether the matter was sufficiently urgent to warrant immediate enrolment.

Whether the respondent’s social-media statements were defamatory of the applicant and, if so, whether any recognised defence—truth in the public interest, fair comment, or reasonable publication—was established.

Whether the applicant satisfied the requirements for a final interdict and ancillary relief such as deletion of the posts and a restraint against future defamatory publications.

Held

The publications were held to be defamatory, unlawful, and made with the requisite intent. The respondent failed to present any credible evidence to sustain truth, fair comment, or reasonable publication. Urgency was established because each day the posts remained online constituted a continuing wrong and monetary damages would not afford adequate redress. The applicant proved the elements for a final interdict. The court therefore declared the posts defamatory, ordered their permanent removal, restrained future similar publications, and directed each party’s supplementary affidavits to be admitted. Costs followed the result.

THE FACTS

The respondent’s mother, recently deceased, had been married to the applicant’s brother. Long-standing familial animosity came to a head during funeral arrangements when the respondent was first permitted and then barred from speaking at the funeral.

In anger, the respondent posted three statements on Facebook between 27 and 30 August 2025 accusing the applicant of protecting “a family of abusers and rapists”, hiding condoms from his wife, and misusing government resources to keep the respondent away from the funeral. A further post on 12 September 2025 repeated and expanded these allegations. The posts were also tagged to the Electoral Commission, the Presidency, and political parties, thereby widening their reach.

After two letters of demand went unanswered, the applicant launched urgent proceedings on 12 September 2025. He simultaneously sought leave to file a supplementary founding affidavit when the respondent added new defamatory content. The respondent’s answering affidavit was late; he sought condonation and filed two additional affidavits, claiming the posts were justified and in the public interest.

THE ISSUES

The court had to decide, first, whether the application met the threshold for urgency under Rule 6(12). Second, it had to determine whether the impugned statements were defamatory and whether the respondent’s claimed defences displaced the presumptions of unlawfulness and animus iniuriandi. Third, it considered whether the applicant established the three requirements for a final interdict—clear right, actual or reasonable apprehension of harm, and absence of a suitable alternative remedy. Lastly, it evaluated the appropriateness of ancillary relief such as retraction, apology, and the admission of further affidavits under Rule 6(5)(e).

ANALYSIS

On urgency the court accepted that every day the posts remained online constituted a fresh defamation, rendering the harm continuous. Damages would be difficult to quantify, particularly because the applicant’s fixed-term contract was ending and reputational harm could prejudice imminent employment opportunities. The court further noted that the applicant had not been dilatory: he first sought an amicable solution through letters of demand and acted within days when that failed.

In assessing defamation, the court applied the two-stage Manuel test: the objective meaning of the words and whether that meaning would lower the applicant’s reputation in the eyes of a reasonable reader. The allegations of corruption, sexual impropriety, and complicity in rape plainly met the threshold. Once publication and reference to the applicant were proved, unlawfulness and intention were presumed, shifting the burden onto the respondent.

The respondent urged truth, fair comment, and reasonable publication. Yet he produced no corroborative material, acknowledged he intended to prove his claims only later, and explained his conduct primarily as an expression of anger over funeral events. The court found these explanations self-serving and, under Bogoshi and subsequent authority, inadequate. Fair comment failed because the posts were presented as statements of fact, not opinion, and were motivated by malice rather than a genuine contribution to public debate. The plea of reasonable publication was impossible because the respondent refused to accept the possibility that his statements were false and conducted no verification.

The interdict requirements were all satisfied. The applicant’s constitutional right to dignity and reputation was clear. Harm was ongoing and irreparable, exacerbated by the respondent’s persistence. An action for damages or asking Facebook to remove the posts were not adequate substitutes, particularly where the respondent threatened further publication. The Plascon-Evans rule on disputes of fact did not avail the respondent because his denials were characterised as far-fetched and unsubstantiated on the papers.

Although the applicant also sought an apology, the court—mindful of McBride and Manuel—considered that a declarator and takedown sufficed, especially since an apology can complicate the assessment of damages and may be more suited to a separate action if still required.

REMEDY

The court dispensed with normal time limits, granted condonation for the respondent’s late papers, and admitted all supplementary affidavits. It declared the posts of 27, 29, and 30 August 2025 and of 12 September 2025 defamatory and therefore unlawful. The respondent was ordered to delete them permanently and was interdicted from publishing any similar defamatory statements about the applicant. No order was made compelling an apology, but costs were awarded against the respondent on the ordinary principle that they follow the result.

LEGAL PRINCIPLES

A social-media post, even if transmitted to a limited audience, constitutes publication for purposes of the delict of defamation. Once publication of defamatory matter is shown, South African law presumes unlawfulness and intention; the defendant must then disprove at least one of these elements.

The defences of truth and public interest, fair comment, and reasonable publication remain available but require an evidentiary foundation. Fair comment demands that the contested statement be an expression of opinion on true or substantially true facts and must not be motivated by malice. Reasonable publication, derived from Bogoshi, obliges a publisher to verify information and, where feasible, seek and reflect the affected party’s version prior to publication.

Urgent interim or final interdictory relief is appropriate where defamatory statements inflict continuing harm not readily compensable by damages and where alternative remedies, such as social-media takedown requests, are inadequate. The constitutional right to freedom of expression does not extend to intentional or negligent publication of unverified allegations that seriously impair another’s dignity and reputation, and courts will balance these rights with reference to context, purpose, and the availability of evidence.