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[2023] ZAFSHC 392
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Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Msabe (6450/2022) [2023] ZAFSHC 392 (12 October 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
Number:
6450/2022
In
the matter of:
ITUMELE
BUS LINES (PTY) LTD t/a INTERSTATE
BUS
LINES
Applicant
and
ZWELAKHE
JOSEPH MSABE
Respondent
CORAM:
BERRY, AJ
HEARD
ON:
18 MAY 2023
DELIVERED
ON:
12
OCTOBER 2023
JUDGEMENT
BY:
BERRY, AJ
JUDGMENT
INTRODUCTION
[1]
The Applicant seeks a final Order interdicting the Respondent
to
refrain from publishing defamatory statements on social media.
[2]
The Respondent represented himself.
[3]
The Respondent refers to himself as a “Public Transport
Activist”.
[4]
The parties have a long history of conflict which does
not form part
of this Application, other than to say they are no strangers to each
other.
[5]
The relief sought by the Applicant is far reaching in
that it seeks
to interdict the Respondent from posting, spreading, publishing, or
making known to the public or any of its clients,
in whatever form,
any comment or information, on any social media platform, and/or
newspaper aimed at defaming the Applicant or
damaging its reputation.
[6]
The relief is then specified in more detail relating
to alleged
unlawful tariff increases, a bus collision on 10 November 2022,
alleging that the tyres were worn out, and that the
Department of
Police, Roads and Transport gives the Applicant preferential
treatment in that it does not apply the law to the Applicant
in the
same manner it does to taxis and other road users.
[7]
The Applicant seeks further relief ordering the Respondent
to delete
fifty-five publications made on social media during the period 17 May
2022 to 07 February 2023, which aim to convey the
above messages.
[8]
The Applicant further seeks an Order directing the Respondent
to post
a formal apology in which he detracts all messages and publications
made since May 2022 which can be construed as insinuating
that the
Applicant is guilty of the conduct as set out in Paragraph 6.
[9]
The Applicant filed an Application with its Replying
Affidavit, to
strike out certain matters from the Respondent’s Answering
Affidavit on the basis that it is vexatious and
scandalous and that
other averments are irrelevant.
[10]
The Application to strike out certain matter are unopposed.
[11]
I refer to the various publications and statements posted by the
Respondent
on social media as “statements”.
THE
APPLICANT’S CASE
[12]
The main thrust of the Applicant’s case is that the statements
made by
the Respondent is defamatory in that it is not
true.
[13]
Thus, the statements cannot be justified under one of the grounds to
justify
defamation.
[14]
Further, that false statements cannot be held to be in the public
interest.
[15]
The normal grounds for justifying defamatory publication are that the
statements
are true and that it is in the public interest for it to
be published.
[16]
The Applicant is a private company that renders transportation
services to
the public since 1975 and has on average 230 busses
running daily.
[17]
The Applicant transports 46 000 passengers daily and employs 630
employees.
[18]
The Applicant has a contract with the Free State Department of
Police, Roads
and Transport, which provides a subsidy to make the
costs for commuters more affordable.
[19]
Tariffs commuters must pay are determined by means of interaction
between various
role players, including a forum known as Passenger
Focus, which represent the commuters and the public.
[20]
Any increase in tariffs must be approved by the MEC of the Free State
Province,
after interaction between the various role players.
[21]
The Respondent is not part of the Passenger Focus group.
[22]
The thrust of the statements made by the Respondent is that:
a) The
Applicant received illegal and unlawful tariff increases.
b) That
the Applicant does not serve the needs of the poor.
c)
That the Applicant is dishonest and involved in fraud and corruption.
d) That
the Applicant is white capitalists and does not respect our
Constitution.
e) That
bus 651 was operated with worn tyres and that the Applicant was
responsible for the collision on 10 November
2022.
f)
That the Applicant murdered commuters.
[23]
The Applicant’s case is that these statements are false and
impacts negatively
on its reputation and therefore its relationship
with its customers.
THE
RESPONDENT’S CASE
[24]
The Respondent’s case is that he is advancing the Applicant’s
passengers’
interest and that of Mangaung residents, whose
rights are violated by the Applicant and the Free State Department of
Police, Roads
and Transport.
[25]
The Respondent further relies on his Constitutional Right to freedom
of expression
in terms of Sec 16 of our Constitution.
[26]
As the Respondent represented himself, I allowed him to go beyond his
papers
during argument.
[27]
The thrust of the Respondent’s argument consisted of historical
and background
information, arguments about his intentions and a firm
believe that he acts in the communities’ interest, which he
believes
justifies the publication of the statements made.
[28]
Sec 16
excludes statements which constitutes incitement to cause harm
[1]
.
[29]
The Respondent did not argue that the statements are true and relied
on the
context, the historical background, his campaign to serve the
broader interest of the Applicant’s commuters and the public
at
large.
[30]
The problem with context, motives, and history, as argued by the
Respondent,
is that these arguments of context, motives, and history
does not appear in the publications.
[31]
Nor does context, motives, and history, as argued in Court, make the
statements
true.
[32]
The reader of these statements does not have the benefit of the
publisher’s
context, motives, or the history to the post. The
reader will interpret the statements as it is published.
[33]
The Respondent argues that granting a final interdict will infringe
on the
public’s right to be informed about the Applicant’s
illegal and unlawful conduct.
[34]
The Respondent further relies on Sec 24 of our Constitution, alleging
that
the Applicant’s conduct undermines its passenger’s
right to a safe environment.
[35]
The Respondent further relies on Sec 38 of our Constitution to aver
that the
Applicant does not have
locus standi
to bring this
Application. This aspect was however not pursued during argument.
EVALUATION
[36]
The Respondent persisted to publish defamatory statements about the
Applicant,
even after this Application was served on him on 22
December 2022.
[37]
This illustrates that the Applicant had no other option than to apply
for a
final interdict, ordering the Respondent to refrain from
publishing defamatory statements about the Applicant.
[38]
Publication of defamatory statements can be justified on the grounds
that the
statements are true and that they are in the public
interest.
[39]
The right to freedom of speech does not give a party the right to
publish falser
statements.
[40]
The party that made
prima facie
defamatory statements, bear
the onus to prove that the statements are true and that it is in the
public interest for it to be published.
[41]
The Respondent limited his argument to his right to freedom of
speech, public
interest, the context, and history of his campaign to
serve the broader interest of the Applicant’s commuters and the
public
at large.
[42]
The Respondent does not once aver that the statements he published
are true.
[43]
The Applicant provided sufficient proof to show the bus involved in
the accident
was roadworthy and the tyre published by the Respondent,
as allegedly being fitted to the bus involved in the accident, is not
true.
[44]
The Respondent did not provide any argument or evidence to lend
credence to
the allegations of fraud and unlawful activity allegedly
committed by the Applicant in collusion with the Free State
Department
of Police, Roads and Transport.
[45]
Believing that one pursues a worthy cause in the public’s
interest, does
not justify publishing false statements about another
party.
[46]
Defamation is the publication of false information that harms the
reputation
of a person, organisation, or a business.
[47]
Defamation
violates a person or entities’ dignity and reputation
[2]
.
[48]
A juristic
person is entitled to protect its reputation
[3]
.
[49]
A
publication is defamatory if it is calculated to, or have the
tendency to undermine the status, good name, or reputation of
another
[4]
.
[50]
Publication of defamatory statements are
prima
facie wrongful.
[51]
Once it is
established that a publication is defamatory, the onus shifts to the
party who made the publication, to justify the publication
on the
basis that the statement is the truth and that it is in the public
interest for it to be published
[5]
.
[52]
The protracted history of conflict between the parties and the fact
that the
Respondent continued with the publication of defamatory
statements, after this Application was served on him on 22 December
2022,
shows that an Order that only directs the Respondent to remove
the defamatory statements will not suffice.
[53]
On 22
December 2022 (the day this Application was served on the Respondent)
the Respondent posted
[6]
:
“
It will take more
than a court interdict application to get me SILINCED, (sic) trust me
we will duplicate into thousands daily,
cause indeed people of
Mangaung are fed up with IBL services and it is a fact that its
busses are delayed daily and inconvenience
passengers.
2023 is the beginning of
the END of MURDEROUS and CAPITALIST relations between DPRT &
IBL.”
[54]
The above post was followed by three further posts on 26 December
2022, which
was followed further posts on 27 December 2022, 28
December 2022, 29 December 2022, and nine posts on 1 February 2023.
[55]
All these posts are in a similar tone to the previous posts.
[56]
The Respondent did not once raise the defence of truth to justify the
statements.
[57]
A Court
should be slow to grant a final interdict against a party preventing
him/her from publishing matter in future in view of
the right to
freedom of expression guaranteed in Sec 16 of our Constitution
[7]
,
unless the facts justify such an Order.
[58]
The statements published by the Respondent are defamatory and the
Respondent
persists to publish these statements, thus the Applicant
is entitled to the relief sought.
[59]
A final interdict will not prevent the Respondent from publishing
statements
which are true and in the public interest.
[60]
A final interdict will only serve to prevent the Respondent from
making false
statements about the Applicant in future.
APOLOGY
[61]
The Applicant seeks an order directing the Respondent to publish an
apology
for the statements he published.
[62]
Forcing a party to publish an apology against his will does not seem
to serve
any purpose, other than soothing the feelings of the injured
party.
[63]
Forcing a party to publish an apology creates a further opportunity
to create
awareness of the very statements the complaining party took
umbrage to.
THE
APPLICATION TO STRIKE OUT
[64]
The Application to strike out is not opposed by the Respondent.
[65]
The Applicant regards certain averments vexatious and scandalous, and
other
to be irrelevant.
[66]
For instance, the averment in the Answering Affidavit that an
increase was
approved in contravention of a contract, in support of
the statements the Respondent published, does not necessarily make
the averment
vexatious.
[67]
The impugned averments in the Answering Affidavit are made in context
of the
Respondent’s view that the Applicant acted in a manner
that justified his statements on social media.
[68]
The Court is in any event able to interpret the pleadings for what
they are.
ORDER
1.
The Respondent is ordered to remove all social media posts, on
whichever platform it is posted, as reflected
in ANNEXURES D1 to D21,
E1 to E27 and Y1 to14 within 7 days from the date this Order is
served on the Respondent.
2.
The Respondent is interdicted from posting, spreading, publishing, or
making known to the public, or
any of the Applicant’s clients,
aimed at defaming or damaging the Applicant’s reputation in
whatever form, any comment
and/or information on any social media
platform and/or newspaper, including, but not limited to:
2.1
Facebook.
2.2
WhatsApp.
2.3
Telegram.
2.4
Twitter.
2.5
Instagram.
2.6
Any newspaper or magazine, whether in
electronic form or otherwise, or on the internet.
3.
The Application to strike out certain matter from the Replying
Affidavit is dismissed.
4.
No costs Order is made for the Application to strike out.
5.
The Respondent is ordered to pay the costs of the main Application.
6.
The Applicant is ordered to serve this Order on the Respondent.
AP
BERRY, AJ
APPEARANCES:
For
the Applicant:
Adv.
HJ Cilliers
Instructed
by:
Symington
& De Kok Attorneys
BLOEMFONTEIN
For
the Respondent:
In
person
Per
e-mail address z[...]@gmail.com
[1]
Sec 16(2)(c) of our Constitution.
[2]
National Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA).
[3]
Media 24 Ltd and Others v SA Taxi Securitization (Pty) Ltd (Avusa
Media Ltd and Others as Amicus Curiae) 2011 (5) SA 329 (SCA).
[4]
Le Roux v Dey 2011 (3) SA 274 (CC).
[5]
National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
[6]
Annexure Y1, page 19 of paginated bundle.
[7]
R.K.M v R.L.B
2015 (1) SA 270
(KZP).