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[2022] ZAGPJHC 440
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Sibiya v Amad and Another (16783/2022) [2022] ZAGPJHC 440 (29 June 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 16783/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
YES
29
June 2022
In
the matter between:
COMMISSIONER
SHADRACK MONGO SIBIYA
Applicant
And
THAPELO
AMAD
First Respondent
AL
JAMA-AH
Second Respondent
JUDGEMENT
MATSEMELA
AJ
INTRODUCTION
1
This is an urgent application launched by the applicant, the head of
the City’s corruption-busting Department, Group Forensic

Investigation Services (“GFIS”) to afford the applicant
protection against the respondents’ ongoing and anticipated

unlawful and defamatory statements and publications (some of which
were issued on the eve of this urgent application).
2.
In
order to vindicate his rights to
inter
alia
dignity
and his reputation, the applicant seeks certain declaratory orders
and final interdictory relief mentioned in the notice
of motion:
[1]
3.
The
respondents are opposing these proceedings.
[2]
FACTUAL
BACKGROUND
4.
It
is common cause that the applicant was appointed as the executive
head of GFIS.
[3]
Before his
employment, he worked in the investigative field for over 33 years,
of which 30 he had played a management role in the
South African
Police Service. He had, amongst others, worked as the Head of the
General Desk of Internationally Missing and Wanted
Persons at
Interpol in the National Central Bureau (Pretoria), Chief Special
Investigator of the Scorpions in Free State and Gauteng
and the
Provincial Head of the Hawks in Gauteng.
[4]
5
GFIS is a
sui
generis
entity,
established by the City in 2017, in terms of the provisions of the
Local Government: Municipal Systems Act, 32 of 2000
as a forensic and
investigative Department to combat fraud and corruption in the City.
The Municipal Council-approved structure
of GFIS was established
precisely to ensure that GFIS is institutionally
independent
,
in a manner that allows it toinvestigate and combat fraud and
corruption in all offices of the City, without interference or undue

influence.
[5]
6.
In
essence, the mandate of GFIS is to facilitate the prevention,
detection and investigation of economic crimes, more particularly

corruption and is solely responsible for all aspects of security and
resilience of the City regardless of the kind of threat.
[6]
To this end, GFIS is responsible for conducting investigations in all
16 municipal departments and 13 municipal entities. Since
its
inception, and to date, more than 7 000 cases have been reported and
investigated, to the value of over R40 billion. This is
as per last
report submitted to the Municipal Public Accounts Committee.
[7]
7.
As
set out in the founding affidavit, and for the purposes of carrying
out its mandate, GFIS lawfully procured anti-surveillance

equipment.
[8]
It is common cause
that the applicant has the requisite security clearance certificate
and that GFIS’ employees were trained
by the SSA to utilise the
anti-surveillance equipment, all of which is above board, council
mandated and approved.
[9]
THE
PUBLIC PROTECTOR’S REPORT
8.
It
is common cause that shortly after the applicant’s appointment
and the establishment of GFIS, an anonymous complaint was
made to the
Public Protector, Busiswe Mkhwebane in relation to the applicant’s
employment, as the head of GFIS, and its establishment.
Subsequent to
investigating the complaint, the Public Protector promulgated Report
No: 21 of 202/21 titled “Report on an
investigation into
allegations of maladministration relating to irregular appointments,
irregular salary increased, financial mismanagement,
procurement
irregularities and conflicts of interests in the City of
Johannesburg
.
”
[10]
The Public Protector’s report exonerated the applicant and
found that:
[11]
(a)
The allegation that the establishment of Group Forensic and
Investigation Services (GFIS) and the subsequent
appointment of
General Shadrack Sibiya as its Executive Head by the CoJ were
improper and irregular, is not substantiated.
(b)
“My finding, having examined the relevant legal framework,
including the applicable policies of
CoJ and its concomitant Group
Human Capital Management processes, is that the appointment of
General Shadrack Sibiya and his subsequent
salary regrading was in
compliance with all COJ’s applicable legal framework”.
(c)
“On the strength of the evidence currently available at my
disposal, I could not find justifiable reason, both in law
and on
facts to fault the process followed by CoJ to appoint and
subsequently upgrade General Sibiya’s salary”.
(d)
“Accordingly, the conduct of the CoJ in the circumstances, did
not constitute improper conduct as envisaged in section
182(1)(a) of
the Constitution and maladministration as envisaged in section
6(4)(a)(i) of the Public Protector Act.”
9.
She
emphasized the uniqueness and importance of the independence of
GFIS:
[12]
“
5.4.6
Due to the sui generis nature of GFIS office or unit, the delegation
of the Executive Mayor was not used to approve the special
character
of this GFIS but it was presented to Council for approval and
elevation to being an independent office to ensure the
CoJ commitment
of ensuring clean governance and promotion of ethics.
5.4.24.
[…] Further that the GFIS is required inter alia to carry out
investigations into administrative non-compliance and
this may result
in investigations into the conduct of the City Manager. Therefore, it
would make little sense for such position
to report directly to the
very office GFIS may be investigating
.”
10.
It
is also common cause that this portion of the Public Protector’s
report has not been challenged, reviewed, or set aside.
The time
frame for such a review would, in any event, have lapsed seeing that
it was issued in excess of 180 days ago
[13]
.
This report and its findings, are administrative of nature as
envisioned in section 1 of the Promotion of Administration of Justice

Act 3 of 2000 (“PAJA”), is therefore final and is not
susceptible to amendment as held in the matters of
President
of the Republic of South Africa v Office of the Public Protector and
another (Economic Freedom Fighters and others as
Intervening
Parties)
[14]
of
Member
of the Executive Council for Health, Province of the Eastern Cape NO
and another v Kirland Investments (Pty) Limited t/a
Eye Laser
Institute
[15]
“
In
general, the functus officio doctrine applies only to final
decisions, so that a decision is revocable once it becomes final.

Finality is the point arrived at when the decision is published,
announced or otherwise conveyed to those affected by it.”
11.
In
the seminal case of
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others,
[16]
the
court reasoned that this principle is premised on
inter
alia
the
principle of legal certainty. It was held that until such a time as
the report, as well as the consequences of the report, is
set aside
by a “
court
in proceedings for a judicial review it exists in fact and it has
legal consequences that cannot simply be overlooked.
”
[17]
A transgression of this principle would otherwise result in
intolerable uncertainty if the Public Protector’s reports could

be reversed at any moment or if she could express doubts in relation
to her own findings.
THE
INVESTIGATION INTO AMAD
12.
GFIS
received information from a whistleblower on 21 April 2022 where
allegations were made against Amad as the MMC for Development

Planning, namely that on 04 October 2021 and at or near Johannesburg
the MOU was improperly concluded between the JDA, purportedly

represented by Amad, and the SCC, represented by Mr Lucky Ketlele in
his capacity as chairperson of the SCC.
[18]
The applicant believes that the veracity of the assault on him by the
respondents is a result of this ongoing investigation.
13.
It is worth noting that the respondents have not responded to this
allegation, save to say that it is irrelevant.
[19]
-12
WHETHER
THE STATEMENTS AND PUBLICATIONS ARE UNLAWFUL AND THEREFORE DEFAMATORY
14.
Our Courts have developed the
traditional common law elements which constitute defamation. These
elements are:
(i)
the wrongful and
(ii)
intentional
(iii)
publication of
(iii)
a defamatory statement
(iv)
concerning the applicant.
[20]
The
determination of whether the publication is defamatory, and therefore
prima
facie
wrongful,
involves a two-stage enquiry. In
Le
Roux and Others v Dey
,
[21]
the Constitutional Court confirmed the two stages as follows:
14.1.
The first, is to determine the
meaning of the publication as a matter of interpretation; and
14.2.
The
second, is whether that meaning is defamatory.
[22]
15.
The
applicant alleges that the statements are unlawful and publications
are
per
se
and
defacto
defamatory
and the respondents have failed to discharge the rebuttable
presumption that their conduct is unlawful and intentional.
As a
result, the applicant has a clear
prima
facie
right
to dignity and has made out a case for the relief sought.
[23]
Once the applicant establishes that the respondents have published a
defamatory statement concerning the applicant himself, it
is presumed
that the publication was both wrongful and intentional.
[24]
It is then for the respondents, who bears the burden, to rebut
that presumption.
INTERPRETATION
16.
The issue here is whether the
respondents have made severe inroads into the good name, reputation,
standing and dignity of the applicant
as espoused in section 10 of
the Constitution, having a material and deleterious affect on his
ability to continue the work of
GFIS.
17.
It is common cause that the unlawful publications and statements were
published on 28 March 2022 and on the eve of the hearing
of this
urgent application on 30 May 2022.  Amad authored the statements
and conducted interviews with the Star newspaper
and the news
broadcaster, ENCA and that his comments relate, unquestionably, to
the applicant. The statements are defamatory, if
it is apparent from
their content, they intend to cause a particular harm. These
statements mean the following on an objective
interpretation:
17.1.
That the applicant’s appointment is irregular and that he is
unfit for office.
To
this end, the statement clearly states that:
(a)
The applicant’s appointment was illegitimate and that he should
be “fired” and that his “his
appointment was indeed
irregular, invalid and illegal for various reasons, including the
failure to follow due process”;
(b)
There are “individuals in GFIS who are questionable” and
that the applicant does not have “a clearance
certificate from
State Security”;
(c)
He is “not fit for the position he occupied” and that his
appointment was “political”,
which was an “insult
to ratepayer of Johannesburg” and  “in fact an
illegal conversion”;
(d)
He was the former mayor’s “Golden Project” and that
he “misled both council and the residents.”
17.2.
The applicant’s role and that of GFIS are redundant
To
this end the statement states
:
(a)
That “GFIS is useless” and that “there was no need
for GFIS to exist”.
(b)That
“GFIS should close down because it’s now in a space of
politics.”
(c)
That the applicant is politically compromised and that his
independence, impartiality, and credibility have been impeded as
a
result thereof
-13
17.3.
That the applicant is politically compromised and that his
independence, impartiality and credibility have been impeded as a
result
thereof.
To
this end the statements states that:
(a)
The applicant is compromised “to do the DA’s bidding”;
is “suckling white privileges”;
(b)
“target the ANC and some politicians”;
(c)
“It was no secret that some who survived losing their jobs in
the city has up close and personal relationships with the
mayor”;
(d)
The DA is protecting the “contract of the city’s director
of Group Forensic Investigation Services (“GFIS”).”
(e)
The applicant has unlawfully procured spying equipment, which he
utilising to spy on councillors that are not affiliated with
the DA
and in so doing, that he has committed various crimes.
17.4.
That
the applicant has unlawfully procured spying equipment , which he
utilises to spy on councillors that are not affiliated to
the DA and
in so doing, that he has committed various crimes.
To
this end the statement states that GFIS had procured “surveillance
equipment from Israel to spy on some ANC politicians
and target
individuals”, which equipment was targeted to “listen to
phone calls in close proximity, and capture data
which is being sent
through Bluetooth and email”.
17.5.
The “machine was there to
expose the dirty laundry of one politician and other senior officials
in the City
”;
To
this end the statement states that the use of purported surveillance
equipment “was wrong” and numerous people have
been
“affected”.
17.6
GFIS had purportedly procured equipment illegally.
To
this end the statement states that “there was no clearance
certificate for that machine”; “[…] an
intelligence
machine, where one, hypothetically if I were to walk
past that machine it will grab whatever that is in my cellphone and
then they
can use that information against, against, me. It emanated
from conspiracies. However, by virtue of the machine being there, it

means that there is an element of spying;”
0564ef8611b046aea02e1
59115d15814-14
17.7.
That applicant “was suspended after controversies about him not
being in possession of a clearance certificate from
State Security to
occupy his position and that due process was ignored during his
appointment”.
17.8.
That the applicant was heading a “rogue unit’, “designed
for … the opposition” is “gathering
intelligence
by illegal means” and that “information is sourced
illegally, phones are tapped and “foreign”
stripping
devices are used against councillors and staff who don’t agree
with the DA”;
17.9.
That applicant controlled a machine/device that “can listen to
phone calls in close proximity and capture data which
was sent
through Bluetooth or via emai.
17.10.
That the applicant conducts investigations “and intercepts
communication from phones, laptops, servers and CCTV equipment.”
17.11
GFIS is redundant
The
respondents concede that the statement served to confirm their view
that “
GFIS does not serve a
function
” and that it is
redundant. They do not provide any evidence hereof.
17.12
The applicant is politically compromised.
To
this the respondents’ response is that it is not a statement
but a question as to why he is being “mothered”
by the
DA.
[25]
Again, this does not
detract from the defamatory nature of the statement, rather it served
to confirm that the statement was made
with the intent of maligning
the applicant as politically compromised, that the applicant is
“suckling white privileges”,
which is sexually suggestive
as well as exploitative and is
prima
facie
derogatory.
Again, there is absolutely no truth to this allegation.
17.13.
That the applicant has unlawfully procured spying equipment is
spying on councillors and has committed various crimes, the
respondents
provide no factual evidence supporting this view.
To
this end they rely on inadmissible hearsay evidence.
[26]
There are no supposed “further official records of the City”
which apparently show that the applicant “procured
and deployed
intelligence gathering equipment.” This is evident from the
respondents’ response to the applicant’s
Uniform Rule
35(12) notice, where the respondents state that the “
respondents
are not in possession of the official city records
.”
[27]
The deduction which can is that there is no such evidence, and the
allegation is
de
facto
defamatory
and is recklessly made with little or no regard for the truth, they
are false, as explained in the applicant’s
founding affidavit.
17.14
.
The applicant’s appointment is irregular and that he is unfit
for office.
The
respondents contended that the statements are “allegations”.
It is my view that this statement is false and does
not detract from
it’s defamatory nature.
[28]
Contrary
hereto, the respondents fall on their own sword by later contending
that “his appointment was indeed irregular, invalid
and illegal
for various reasons, including the failure to follow due
process.”
[29]
18.
On any interpretation, these statements can only be understood to
mean that
18.1
as applicant does not have the requisite clearance certificate, he is
unfit for  office and
18.2
instead of upholding the law he is flouting the law, in concert with
GFIS,
by
spying on councillors, intercepting phones calls, capturing data to
extort City councillors
.
Without any evidence these
allegations, they are therefore unlawful and publications thereof is
meant to be harmful and particularly
egregious to the applicant.
19.
The
applicant’s dignity, integrity and impartiality forms the
cornerstone of his work with GFIS and his longstanding employment

history in the forensic and investigative field in excess of 30
years.
[30]
This is
immediately apparent from the content of these unlawful publications
and statements. In
Hanekom
v Zuma
,
[31]
the foregone conclusion is then that:
“
To
imply that someone is an apartheid spy or dishonest is automatically
defamatory. To call persons who hold high office spies imputes
to
them that they lack “the qualities that are required to be
entrusted with the confidence of “high office.”
This
“would indeed tend to lower in the estimation of people
straddling all sectors of our society”. This is defamatory.
”
20.
Having
said that I am satisfied that the statements are intended and
continue to defame the applicant. These publications and statements

were made without any evidence. They are therefore are defamatory as
they are diminishing the good name or reputation of the person

concerned in the estimation of the readers.
[32]
DEFENCES
05
64ef8611b046aea02e159115d15814-21
Truth,
public comment and Freedom of expression
21.
In answering the various categories of defamatory statements,
the respondents
levelled
the following response:
21.2.
The respondents submit that the statements made by Amad are true and
justified as they made as a result of the Zebediela report.
[33]
The respondents started by publishing their statement on 28
March 2022. They now allege that these statements were made pursuant

to the contents of the Zebediela report. This cannot be. On their own
version, they “
have
not to date received a copy of the report from e Speaker and yet the
Applicant was provided with a copy of same before I …had
sight
of it.”
[34]
They
did not and could not rely on Zebediela’s report, which is
dated 07 April 2022, because they were not in possession thereof.
21.3.
Thereafter and based on the false and defamatory statements stated
therein, Brink unlawfully commissioned Zebediela to conduct
his
report, without having engaged with the applicant or his office in
any respect. The instigation of the report was premised
on the
unlawful publications and statements. The applicant has canvassed, at
length, why the report commissioned by Brink is unlawful
and why the
“findings” reached therein are patently wrong. In any
event, the findings cannot overrule the conclusion
reached in the PP
report. The City has addressed this issue with Brink as appears from
a letter from the City to Brink in this
regard dated 15 April.
[35]
056
4ef8611b046aea02e159115d15814-24
21.4.
Lastly, other than the respondents’ say-so, absolutely no
factual evidence is provided by either Zebediela or the respondents

other than to allege that it is true.
21.5.
It is patently evident that the falsehoods emanated from the unlawful
statements and publications issued by the respondent.
As set out in
the applicant’s founding affidavit he was the alleged
“whistle-blower” who somehow persuaded Brink,
without any
authority from the City or the Mayoral Exco to commission the
Zebediela report. It is surprising that the respondents
can allege
that the Zebediela report has not been challenged, while on the other
hand as set out in the founding affidavit that
there is a pending
application to have the report set aside.
[36]
THE
LAW
22
.
It is trite that the defamatory statements are not per se unlawful.
The respondents allege that they have right to freedom of
expression,
as espoused in section 16 of the Constitution and that this right
should guard against the imposition of the interdictory
relief sought
by the applicant. The right to exercise freedom of expression is not
isolated. Due regard must be had to the constitutional
right of all
parties involved. To this end and in
Manuel
v Economic Freedom Fighters
[37]
the
court held as follows:
“
An
individual’s reputation is central to his or her sense of
self-worth and dignity. The importance of freedom of expression

cannot, however, be overstated.
”
If
there is no truth to the unlawful statements and publications, the
issue of public interest does not arise.
[38]
As set out herein, and as evidenced in the applicant’s
founding and replying affidavit, there is simply no justification
for
their unlawful and defamatory statements and publication, in light of
the severe inroads they have made to the applicant’s
dignity
and reputation.
23.
In so far as the respondents allege that the unlawful
publications and statements are fair comment, they must prove that

the statement in question was
(i)
A comment or opinion and not an allegation of fact;
(ii)
That it was fair;
(iii)
That the allegations of fact commented upon were true and accurately
stated;  and,
(iv)
That the comment was about a matter of public interest.
24.
This
defence requires the respondents to establish not only that the per
se defamatory statement was true but also that their publication
was
in the public interest.
[39]
It
is, therefore, a composite defence in that the respondents must show
both the truth of the impugned statements and publication
in the
public interest. Together herewith, the respondents must demonstrate
that the “
sting
of the statements is true”
.
[40]
In the
Manuel
v Economic Freedom Fighter
[41]
case,
the court held:
“
The
EFF's claim that it published the words with an honest belief in the
truth
thereof,
based on the reliable information provided by an anonymous source,
does
not absolve it from liability. Under the Repetition Rule, the person
who
repeats
a defamatory allegation made by another is treated as if he had made
the
allegation himself, even if he attempts to distance himself from the
allegation.”
25.
In
Delta
Motor Corporation (Pty) Ltd v Van der Merwe
.
[42]
It was held
‘
For
the defence of fair comment to succeed, the respondent must prove
that the statement in question was;
25.1
a comment or opinion and not an allegation of fact;
that
the allegation of fact commented upon were true and accurately
stated and
25.3
that the comment was about a matter of public interest”
26.
The
Court further stated that the comment must be a genuine expression of
opinion, it must be relevant, and it may not be expressed

maliciously.
[43]
To this end,
the respondents
in
casu
state,
several times in their answering affidavits that the statements were
based on “facts” and “documents”,
albeit that
is not the case, as I have explained above. It is my view that on the
statements mentioned above made by the respondents,
are based on
“facts” and are, furthermore, entirely malicious and
derogatory
27.
These
statements are not only
de
facto
defamatory
but are patently false. These are not benevolent statements made for
the public’s benefit or the sake of their
interests but are
inappropriate, as well as exploitative and purely derogatory in
nature
.
.
It is further my view that the applicant has provided ample factual
evidence that shows these statements are patently false.
[44]
28.
The
High Court, in the
Manuel
[45]
case,
also held that the respondents’ conduct, both before and after
publication, showed that they acted with malice. The
facts
demonstrate that the respondents published the statements with
“reckless indifference.”
29.
In
Economic
Freedom Fighter v Manuel (Media Monitoring Africa Trust as amicus
curiae)
[46]
the
SCA held that if the statement is made maliciously, as opposed to
being an expression of an honestly held opinion on a matter
of public
interest, it is wrongful and the defence cannot succeed.
30.
Accordingly the respondents have failed to establish any of the
defences as pleaded as this is not a case of fair comment.
RIGOROUS
POLITICAL DEBATE
31.
As
to the issue of rigorous political debate, this defence does not and
cannot find application here as the applicant is not affiliated
to
any political party and, as stated in the founding affidavit, hold
office as the Executive Head of GFIS, which is independent
of
political influence or sway, he is not a political role-player but
the gatekeeper of an a-political Department that serves to
upend
corruption in the City. This defence, therefore, has no credence as
held in
Manuel
v Economic Freedom Fighters and others,
this
Court held:
[47]
“
There
is nothing in the papers to suggest that Mr Manuel is the
respondent’s political rival. The appointment process, as
will
appear below, was designed to be apolitical, and members of the
selection panel were chosen because they were people of impeccable

reputation and probity, and not because of their political
affiliation.
”
This
dicta
, similarly, find application here. It is my view that
the respondents have failed to discharge their onus accordingly.
URGENCY
32.
The
applicant alleges in his founding affidavit, that there are simply no
bases for these statements. As a result, on 14 April 2022,
a letter
of demand was addressed to Amad. He did not abide by the demand,
instead, he continued publishing the alleged defamatory
statements
about the applicant, in a concerted campaign to malign him.
[48]
The applicant again, and as a matter of last resort addressed
yet another letter to Amad requesting that he desist from his

“unlawful” conduct on 03 May 2022.
[49]
0564ef8611b046aea02e159115d15814-15
33.
The
respondents concede that they received the demands, however they
failed to respond or to provide the necessary undertaking.
In their
answering affidavit, they state that they are entitled to disseminate
these statements.
[50]
These
statements have rung true, as evidenced from the recent media
statement, released on the eve of the hearing of this urgent

application on 30 May 2022, which contains further defamatory
statements.
[51]
34.
The respondents contend that there is no urgency on the basis that
the unlawful publications and statements were published on 28
March
2022 and April 2022.
[52]
The
applicant alleges that, this is not so, as set out above and one of
the statements was published on the eve of the hearing
of this urgent
application. The respondents published a media statement, again
“defaming” the applicant.
[53]
The application is urgent for the following reasons:
34.1
The
respondents conceding as they do, having received both the first
demand of retraction and the final letter of demand, they this

notwithstanding fail to take this Court into their confidence by
omitting to reveal that they either refused and/or failed to respond

to these letters or to provide the requisite undertaking, despite
being cautioned about this very urgent application.
[54]
The
respondents contend, that they are entitled to publish the statements
about the applicant based on
inter
alia
their
right to freedom of expression.
[55]
34.2
The respondents’ argument showcases an unrepentant attitude
that clearly evidences that they do not intend to put an
end to
their, as showcased by the recent media release.
34.3
I am of the view that the respondent’s ongoing agenda is a
direct and concerted campaign aimed at maligning the applicant
and in
so doing causing him severe prejudice by making inroads into his
right to dignity, his reputation as well as his good name
and
standing, as enshrined in section 10 of the Constitution.
34.4
After service of the application the defamatory statements were
removed from the second respondent’s website, but this

notwithstanding the respondents remain unrepentant.
35.
The
applicant brought this application which  is in line with the
sui
generis
approach
followed in this division in the recent case of
Manuel
v Economic Freedom Fighters and others
[56]
,
which
held that the “
manner
in which dignity is engaged in this matter renders the matter urgent
”
as
“false allegations can so quickly destroy a good
reputation.
”
[57]
36.
That
being sad I am of the view that the applicant will suffer irreparable
harm if the relief sought by the applicant is not granted
on urgency
.
In
line with the notice issued by my brother Sutherland on 04 October
2021,
[58]
I agree that
applications relating to defamation are indeed  matters that
require this Court’s urgent intervention
as also held in the
judgment  by my sister Crutchfield in her judgment dated 15
March 2022 in the
Oosthuizen
and Others v Konar
.
[59]
Accordingly, my ruling is that this matter is urgent.
FINAL
INTERDICT
37.
It is trite that parties may approach the urgent court for final
interdictory relief as held in the often-quoted
dicta
of
Heilborn
v Blignaut
:
[60]
“
If
an injury which would give rise to a claim in law is apprehended,
then I think it is clear law that the person against whom the
injury
is about to be committed is not compelled to wait for damages and sue
afterwards for compensation, but can move the Court
to prevent any
damage being done to him. As he approached Court on motion, his facts
must be clear; and if there is a dispute as
to whether what is about
to be done is actionable […]
.”
38.
I
am of the view that there is no justiciable dispute of fact and the
applicant has made out a clear case for the relief sought,
namely
that he has a clear right to dignity and his reputation as espoused
in section 10 of the Constitution. There is an injury
actually
committed or reasonably apprehended in that there is a real threat to
the applicants’ good name, standing, reputation,
independence,
and his continued work of GFIS. His concomitant rights will continue
to
be
infringed and irreparably damaged in the absence of similar
protection by any other ordinary remedy.
[61]
39.
The facts herein clearly indicate that Amad’s
ill-conceived publications andstatements are concerted and deliberate

actions,for the purposes:
(a)
of attacking the independent, investigatory functions of GFIS;
(b)
defaming the applicant;
(c)
irreparably damaging his good name and standing and
(d)
severely impeding his dignity.
In
Manuel
v Economic Freedom Fighters and others,
[62]
the
court held as follows:
“
Mr
Manuel has met the requirements of an interdict, contrary to the
argument of the respondents. He has a clear right to protect
his
dignity and reputation, which he alleges the respondents have
infringed. Secondly, he has suffered and continues to suffer
harm to
his reputation, both in his personal and professional capacity,
through the widespread dissemination of the impugned statement.
He
has no alternative remedy to the persisting injury, as the
respondents have refused to apologise or to take down the defamatory

statement from their social media platforms. There is also ongoing
harm to the well-being of the country as the public labours
under the
misapprehension that SARS is led by a person who was appointed for
nepotistic and corrupt reasons
.”
40.
This
dicta
,
again, find equal application in this matter. In the circumstances, I
am of the view that respondents ought to be interdicted
from their
severely prejudicial and ongoing unlawful conduct.
POINTS
IN LIMINE
DISPUTE
OF FACT
41.
The
respondents allege that there is a dispute of fact and that motion
proceedings are not competent and that this dispute of fact
was
evident prior to launching the proceedings.
[63]
42.
First,
despite having conceded that they received the applicants demands,
the respondents did not in any way engage the contents
of the
letters, nor did they deny the contentions thereof. It was only after
the institution of this urgent application that they
contend that
there are disputes. There is no basis for this contention as there is
no dispute of fact, which necessitates the use
of discovery,
cross-examination, and subpoena as the respondents have either failed
to show cause why the statements are true or
have provided bare
denials.
[64]
As held by the
SCA in
Wightman
t/a JW Construction v Headfour (Pty) Ltd,
[65]
a
bare denial does not give rise to a
bona
fide
,
genuine dispute of fact:
“
A
real genuine and bona fide dispute of fact can exist only where the
Court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the Court
will generally have difficulty in
finding that the test is
satisfied.”
43.
Secondly,
in both the cases of
Manuel
v Economic Freedom Fighters and others
[66]
and
Hanekom
v Zuma
,
[67]
the relief final interdictory relief sought, which is similar to the
applicants’, was granted on an urgent basis. In
Manuel
v Economic Freedom Fighters and others,
this
Court held:
[68]
“
Mr
Manuel is accused of grave allegations of corruption and nepotism.
Allegations of dishonestly and immoral or dishonourable conduct
are
defamatory. There is no reason why Mr Manuel ought to submit himself
to further indignities and assaults on his dignity before
the matter
can be determined. Dignity is not only a value fundamental to the
Constitution, but it is also a justiciable and enforceable
right that
must be protected and respected.”
0564ef8611b046aea02e159115d15814-32
44.
This was confirmed in the SCA, in
Economic
Freedom Fighters and others v Manuel (Media Monitoring Africa Trust
as amicus curiae):
[69]
“
In
circumstances where the applicants were obdurate, and where the
integrity of an institution of state was being undermined on
the
bases of Mr Manuel’s alleged corrupt and nepotistic conduct, an
award for damages, in due course, could hardly be said
to be viable
and compelling alternatives to an interdict prohibiting further
publication
.
”
NON-JOINDER
45.
The
respondents contend that there is a material non-joinder in that
“
both
the City of Johannesburg and the media house which published the
three articles which were not published by the respondents
have
direct and material interest in this application.
”
They
say that this is evidenced by a “
cursory
reading of the founding affidavit.
”
[70]
46.
The
respondents have, conflated the term “publishing” as a
definitional element of defamation to that of “publishing”

in the context of the news and media industry. Amad does not dispute
that the respondents published (as a definitional element
of
defamation), the various
de
facto
defamatory
statements
[71]
. As held in
S
v Kiley
,
[72]
publication may be particular, to one or more named or known specific
persons, or general, to the public at large or a class or
number of
unknown and undesignated persons.  To that end, they
concomitantly published unlawful and defamatory publications.
This
cannot be interpreted in their favour.
47.
In
addition, as set out in the founding affidavit, and confirmed in the
replying affidavit, the applicant demanded that the articles
be
retracted and that an apology be issued (Letters addressed to the
media house
,
Independent
Media (Pty) Ltd) .
[73]
The
Independent Media are yet to retract the statement or to issue an
apology, which they say is for “all intents and purposes,
at
the date of publication of the article, the contents thereof were a
true reflection of the comments made by Mr Thapelo Amad,
Al Jama-Ah
councillor.”
[74]
The
applicant is in the process of submitting a complaint to the
publication internal Ombud process, which process is ongoing.
[75]
In addition, there is no factual or legal basis to aver that the City
ought to be joined. The respondents have failed to
in
toto
expand
on the nature of their interest, in their answering affidavit.
48
.In the circumstances, neither is
Independent Media nor is the City interested parties on either a
“cursory reading”
of the founding affidavit or on a more
comprehensive understanding of the nature of the application and the
extent of the relief
sought. Accordingly my ruling is that there has
been no material non-joinder.
COSTS
49.
Counsel for the applicant argued for
punitive costs for the reasons set out above and referred this Court
to the matter of
Manuel v
Economic Freedom Fighters and others
Supra at
,
paragraph 71 where it was held,
“
The
motive and conduct of the respondents are relevant. They stubbornly
refuse to retract, apologise or remove the statement from
their
social media platforms, when it is evident that they should do so.
These factors, collectively establish the existence of
actual malice
and desire to hurt Mr Manuel in his personal, and professionally,
through the widespread dissemination of the defamatory
statements.
Such conduct warrants a punitive cost order.”
50.
It is my view that respondents’
mala
fide
conduct necessitates the
granting of a punitive cost order. Having said that I therefore make
the following order
ORDER
1.
The requirements of the time limits, forms and service and permitting
this application to be heard as
one of urgency as contemplated in
terms of Rule 6(12) of the Uniform Rules of Court are dispensed with.
2.
The respondents, their officials, and any other person(s) acting on
their behalf are interdicted from
publishing any statement that says
or implies that:
2.1.
The third applicant’s appointment was irregular and that he is
unfit for office;
2.2. GFIS improperly
procured sophisticated surveillance technology for the
purposes of spying on
councillors;
2.2.
GFIS is engaging in improper and unlawful conduct by
inter alia
spying on councillors and gathering information by illegal means
including intercepting councillor’s communications and “tapping

phones”;
2.4. The applicant
has not obtained the requisite security clearance from the
State Security Agency
(“
SSA
”);
2.5. GFIS is a “rogue
unit” that lacks credibility, integrity and impartiality; and
2.6. That the applicants
are politically-motivated or politically compromised, insofar as such
statements relate to
inter alia
the entirety of the subject
matter set out in the founding affidavit under case number
2022/16783.
3.
Both respondents are jointly and severally liable to pay the costs on
attorney and client scale.
MOLEFE
MATSEMELA
Heard
on

2 JUNE 2022
Delivered
on

29 JUNE 2022
For
the applicant

RA SOLOMON SC
With
him

DE GOOSEN
Instructed
by

IAN LEVITT ATTORNEYS
For
the respondents
C SHAHIM
Instructed
by

KERN,ARMSTRONG & ASSOCIATES
[1]
Notice
of Motion, p 001-1 – 001-4.
[2]
Answering
Affidavit, p 009-10, para 21 - 27.
[3]
Founding
Affidavit, p 001-16, para 12 – 13.
[4]
Ibid
[5]
Founding
Affidavit, p 001-13, para 10 – p 001-16, para 12.
[6]
Founding
Affidavit, p 001-15, para 11.3.
[7]
17
Founding Affidavit, p 001-18, para 17 – 20.
[8]
18
Founding Affidavit, p 001-17, para 15 – p 001-18, para 20; p
001-34, para 51 – p 001-36, para 57.
[9]
Ibid
[10]
Founding
Affidavit, p 001-19, para 21 – p 001-20, para 20.
[11]
Ibid
[12]
Founding
Affidavit, p 001-19, para 21 – p 001-20, para 20.
[13]
Founding
Affidavit, p 001-20, para 23.
[14]
[2018]
1 All SA 576
(GP), para 43 – 44.
[15]
25
2014 (3) SA 219
(SCA), para 15. See also para 103
[16]
26
2004
(6) SA 222 (SCA).
[17]
Ibid
,
para 26.
[18]
Founding
Affidavit, p 001-37, para 61 – p 001-38, para 62.
[19]
Answering
Affidavit, p 009-36, para 127 – 128.
[20]
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC),
at
para 18.
[21]
2011
(3) SA 274
(CC) at para 85.
[22]
Le
Roux CC
at
para 85 (majority) and at para 38 (minority).
[23]
Founding
Affidavit, p 001-40, para 67 – p 001-43, para 79.
[24]
Ibid
[25]
Answering
Affidavit, p 009-25, para 77.
[26]
Replying
Affidavit, p 010-22, para 32 – p 010-23, para 33.2.
[27]
The
first and second respondent’s reply to the applicant’s
notice in terms of Uniform Court Rule 35(12), p 028-6.
[28]
Supra
[29]
55
Answering Affidavit, p 009-31, para 101.1.
[30]
Supra
[31]
[2019]
4 All SA 425
, para 9.
[32]
The
Citizen 1978 (Pty) Ltd and Others v McBride
at
para 19. In this case, before the Constitutional Court, the
publishers abandoned their defence that the statements were not

defamatory. The majority of the Constitutional Court, per Cameron J
held that the defence was rightly abandoned as it was beyond
dispute
that the publications did lower Mr McBride’s reputation in the
estimation of readers.
[33]
Answering
Affidavit, p 009-6, para 14 – p 009-11, para 27; Replying
Affidavit, p 010-15, para 27 – p 010-17, para
28.
[34]
Answering
Affidavit, p 009-9, para 18.8.
[35]
Answering
Affidavit, Annexure “AA8“, p 009-65 – 009-76.
[36]
Answering
Affidavit, p 009-22, para 69.6.
[37]
Supra
,
p 45.
[38]
Founding
Affidavit, p 001-27, para 37.
[39]
Ramos
v Independent Media (Pty) Ltd
2021
JDR 1082 (GJ) at para 72.
[40]
Ramos
v Independent Media
,
para 74.
[41]
[2019] 3 All SA 584
PARA 60
[42]
2004
(6) SA 185
(SCA) at para 13.
[43]
Marais
v Richard en ‘n Ander
1981
(1) SA 1157
(A) fn 6, at 1167C - 1168C, cited with approval in
Delta
Motor Corporation
above
at para 13.
[44]
Supra
[45]
Manuel para 66
[46]
[2021]
1 All SA 623 (SCA).
[47]
Supra
,
para 18.
[48]
Founding
Affidavit, p 001-22, para 29 – p 001-24, para 30; Annexures
“GS16”, p 001-191.
[49]
Founding
Affidavit, p 001-26, para 37 – p 001-28, para 38; Annexure
“GS19”, p 001-201.
[50]
Answering
Affidavit, p 009-32, para 142.
[51]
Supra
.
[52]
Supra
[53]
Replying
Affidavit, p 010-9, para 14.4; Annexure “RA2A”, p
010-60.
[54]
Replying
Affidavit, p 010-8, para 14.
[55]
Answering
Affidavit, p 009-39, para 142 – 143.
[56]
[2019]
3 All SA 584
(GJ), para 1; 19 – 20
.
See
also:
Safcor
Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission
1982
(2) PH F48 (AD), at p 106, where the court held:
“…
Naturally,
it is for this Court to decide whether the matter is one of urgency
and whether the circumstances warrant a departure
from the normal
procedures. To hold otherwise would,in my view, make the Court the
captive of the Rules. I prefer the view that
the Rules exist for the
Court, rather than the Court for the rules.”
[57]
Supra
,
para 67.
[58]
“
Notice
to Legal Practitioners about the urgent motion court, Johannesburg
.”
[59]
6
(
21/58019)
[2022] ZAGPJHC 143 (15 March 2022
).
[60]
1931
WLD 167.
[61]
Founding
Affidavit, p 001-40, para 67 – p 001-43, para 79.
[62]
Supra
,
para 21.
[63]
Founding
Affidavit, p 009-11, para 28 - 29.
[64]
Replying
Affidavit, p 010-13, para 21.
[65]
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 3 SA 371
(SCA) at para
13.
[66]
Supra,
para 17.
[67]
[2019]
4 All SA 425
, para 82 - 85
[68]
Supra,
para 17.
[69]
Supra,
para 89.
[70]
Answering
Affidavit, p 009-6, para 12.
[71]
Founding
Affidavit, Annexures “GS1” – “GS4”, p
001-45 – 001-74.
[72]
1962
3 All SA 191 (T).
[73]
Founding
Affidavit, p 001-28, para 39 – p 001-29, para 42.
[74]
82
Founding Affidavit, Annexure “GS21A”, p 001-214 –
001-215.
[75]
83
Replying Affidavit, p 010-13, para 22 – p 010-15, para 26.