Brief Summary

Defamation — Urgent application for interdict — Applicant sought to remove defamatory statements posted by respondent on social media — Respondent published derogatory statements about applicant, alleging criminality and immorality — Applicant argued statements were unlawful and injurious to his reputation — Respondent opposed, claiming applicant was attempting to silence him regarding applicant's business dealings — Court held that the respondent's statements were defamatory and granted the interdict as sought by the applicant.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an urgent application brought in the High Court of South Africa, Free State Division, Bloemfontein, in which the applicant sought interdictory relief arising from a series of allegedly defamatory and privacy-infringing social media publications made by the respondent.

The applicant was Louis Petrus Liebenberg, a businessman described as a diamond broker and investor. The respondent was Schalk Willem van der Merwe, a self-employed business and labour consultant, who appeared in person.

Procedurally, the application was issued on 29 September 2022 and enrolled as urgent. Argument commenced on 7 October 2022, but the hearing could not be finalised due to a power outage, and the matter was postponed to 20 October 2022 to allow the respondent an opportunity to obtain legal representation and to file further papers if so advised. On 20 October 2022 the respondent initially failed to appear, an order was granted in the applicant’s favour, and that order was then rescinded shortly thereafter when the respondent arrived and was afforded an opportunity to address the court. The matter was then adjudicated with the respondent having been given that opportunity, but without any supplementary affidavit or heads having been filed.

The dispute’s subject-matter concerned the alleged wrongful publication of defamatory statements about the applicant on Facebook and other electronic media, and whether urgent, final interdictory relief should be granted to compel removal of existing publications and to restrain further publications.

2. Material Facts

The parties had known each other since August 2021. During March 2022 the applicant became aware of criminal charges against the respondent and his wife and assisted by paying their bail deposits. The relationship subsequently deteriorated substantially.

The court treated as undisputed that the respondent was the author of the Facebook postings and associated publications that gave rise to the litigation, and that the material had been disseminated on social media platforms in a manner that was publicly accessible and capable of wide circulation. The court further accepted that the publications were globally accessible to persons with internet access.

Chronologically, prior to 24 August 2022, the respondent allegedly published numerous derogatory and defamatory statements about the applicant on a Facebook page administered by the respondent. On 24 August 2022, the applicant’s attorney sent a demand (via WhatsApp) requiring removal of the postings and an undertaking not to repeat such conduct. The respondent initially refused but thereafter removed those earlier publications.

The dispute then escalated again with new publications. On 22 September 2022, the respondent posted on Facebook content referring to the applicant as “Mal soos ‘n haas”. On 24 September 2022, the respondent published a further post stating an intention to speak about the applicant and describing him as “die psigopaat vals Christen Ponzi–skema baas”, together with an expressed intention to close down the applicant’s business. Also on 24 September 2022, the respondent published a live video (about 27 minutes long) containing multiple allegations and insults about the applicant; a transcript and English translation were attached to the founding papers. On 25 September 2022, the respondent posted another video aimed at dissuading the applicant from taking action, and on 26 September 2022 posted further content asking followers whether to work with the applicant or “knock him over”.

The court recorded examples of the respondent’s statements (translated) contained in the video publications, including assertions that the applicant was a “fake Christian” and a “Ponzi scheme fraudster”, and various additional insults and allegations impugning the applicant’s character and mental stability.

The respondent opposed the relief, disputing urgency and contending in substance that the applicant approached court with “dirty hands” and was attempting to “gag” the respondent from exposing allegedly questionable business dealings and warning the public about a purported “Ponzi scheme”. The respondent did not, however, advance evidence establishing the truth of the factual allegations made about the applicant in the publications, nor did he substantiate that the publications were protected as fair comment, privilege, or otherwise justified.

3. Legal Issues

The court was required to determine, first, whether the matter should be entertained as urgent under Rule 6(12) of the Uniform Rules of Court, given the dates of publication and the timing of the application.

Secondly, the court had to determine whether the impugned publications were defamatory in law, applying the objective test for defamatory meaning and considering the consequences that flow from a finding of defamation, including the presumptions of unlawfulness and intention.

Thirdly, the court had to decide whether the applicant met the requirements for a final interdict, including whether the applicant had a clear right, whether an injury had occurred (or was reasonably apprehended), and whether there was an absence of an adequate alternative remedy.

Finally, the court had to decide the appropriate scope of interdictory relief, in particular whether the court should grant an order restraining the respondent from publishing any future defamatory material not yet before the court (as sought in the notice of motion), bearing in mind the respondent’s freedom of expression.

These issues involved a mixture of legal questions (the tests for defamation, urgency, and final interdicts), and the application of law to fact (assessing the content and effect of publications, and whether the respondent had established a lawful justification). The scope of relief and costs required evaluative and discretionary determinations.

4. Court’s Reasoning

On urgency, the court considered the sequence of publications between 22 and 26 September 2022, the letter of demand on 26 September 2022, and the issuing of the application on 29 September 2022. It further considered that the matter was enrolled for 7 October 2022 and could not be finalised on that date due to an unforeseen power outage, followed by a postponement requested by the respondent. In light of these circumstances, the court was satisfied that the matter warranted treatment as urgent and that condonation for non-compliance with ordinary forms and time periods should be granted under Rule 6(12).

On defamation, the court applied the approach articulated in Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amicus curiae) 2011 (3) SA 274 (CC), namely that the court must determine the ordinary meaning of the statement as understood by the reasonable reader of ordinary intelligence within its context, and then decide whether that meaning is defamatory. The court accepted that the respondent’s posts and video statements, assessed objectively, were clearly defamatory.

The court further accepted the orthodox consequence that, once defamation is established, presumptions arise that the publication was unlawful and made with animus iniuriandi, placing a full onus on the respondent to rebut wrongfulness by establishing a recognised justification such as truth and public benefit/public interest, privilege, or fair comment. The court found that the respondent’s answering affidavit did not set out facts proving the truth of the allegations, nor did it properly advance a defence grounded in privilege, fair comment, or a substantiated public-interest justification. The respondent’s contention that he and his wife had been slandered and threatened by the applicant was not supported by appended proof, and in any event did not, on the court’s assessment, justify the respondent’s publications. The court was also not persuaded that it was to the public benefit or public interest to read or listen to what the respondent had published about the applicant.

Turning to the requirements for a final interdict, the court applied Setlogelo v Setlogelo 1914 AD 221, and accepted that the applicant had established a clear right to privacy and protection of reputation, and that the applicant had indeed been defamed. On the element of the absence of an alternative remedy, the court accepted the applicant’s explanation that damages proceedings were not intended, due to the respondent’s alleged financial difficulties, and that attempts to obtain relief by complaining to Facebook had not succeeded. On this basis, the court concluded that interdictory relief was justified.

However, the court distinguished between interdicting existing material and granting a broad prohibition against future publications of any allegedly defamatory material. In considering the relief sought in prayer 3 (a wide restraint against future dissemination), the court held that such an order would amount to a drastic limitation on the respondent’s freedom of expression. The court reasoned that future postings might not all necessarily be actionable, as actionability would depend on content and any defence that might be raised. The court therefore declined to grant the wide forward-looking prohibition and noted that the applicant could approach the court again should further actionable publications occur. In this context, the court referred to authority concerning the restraint of publication and freedom of expression.

On costs, the court exercised its discretion with reference to the general principle that costs indemnify a successful litigant for expense incurred in being unjustly compelled to litigate. The court considered the respondent’s conduct, including the effect of the respondent’s indicated address for service, the potential that the matter could have been litigated in Pretoria given both parties’ apparent presence there, the respondent’s insistence on a postponement after the power outage, and the absence of any supplementary papers despite being afforded an opportunity. The court further took into account that the respondent had been warned in the letter of demand of the risk of urgent proceedings and costs if the publications were not removed. In these circumstances, the court concluded that the respondent’s conduct warranted censure and constituted exceptional circumstances justifying punitive costs on an attorney-and-client scale, including travel costs.

5. Outcome and Relief

The court granted condonation for non-compliance with the prescribed rules as to form and time and directed that the matter be heard as an urgent application under Rule 6(12).

The court granted a mandatory interdict ordering the respondent to remove defamatory, derogatory, or privacy-protected postings concerning the applicant that were already on electronic media and had been created, distributed, or published by the respondent.

The court ordered the respondent to pay the applicant’s costs on an attorney and client scale, expressly including the travelling costs of the applicant’s attorney and counsel. The broader forward-looking relief aimed at restraining all future defamatory publications (prayer 3) was not included in the final order and, on the court’s reasoning, was refused as overly drastic.

Cases Cited

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amicus curiae) 2011 (3) SA 274 (CC).

H v W [2013] 2 All SA 218 (GSJ).

Setlogelo v Setlogelo 1914 AD 221.

M v B (10175/2013) [2014] ZAKZPHC 49.

Erasmus v Grunow 1980 (2) SA 793 (O).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The court held that the matter warranted enrolment and determination as urgent under Rule 6(12), given the timing and nature of the social media publications and the procedural history following the initial hearing disruption.

It held that the respondent’s publications, assessed objectively in context, were defamatory of the applicant. The respondent failed to advance and substantiate any recognised defence sufficient to rebut the presumptions of unlawfulness and intention that arise once defamation is shown.

It held further that the applicant satisfied the requirements for a final interdict to compel removal of existing defamatory or privacy-infringing electronic publications. The court declined to grant an overly broad interdict restraining unknown future publications on the basis that it would constitute a drastic limitation of freedom of expression and that future actionability would depend on content and any defence raised.

The court granted a mandatory removal order and awarded punitive costs against the respondent on an attorney-and-client scale, including travel costs, due to the respondent’s conduct in the litigation.

LEGAL PRINCIPLES

Defamation is determined by an objective test assessing the ordinary meaning of the published statement as understood by the reasonable reader of ordinary intelligence within context, and then whether that meaning is defamatory, as articulated in Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amicus curiae) 2011 (3) SA 274 (CC).

Once a plaintiff/applicant proves that a statement is defamatory, rebuttable presumptions arise that the publication was unlawful and made with animus iniuriandi. The respondent/defendant bears a full onus to rebut wrongfulness by alleging and proving facts establishing a lawful justification, including (where relied upon) truth and public interest/public benefit, privilege, or fair comment.

The requirements for a final interdict are those set out in Setlogelo v Setlogelo 1914 AD 221, including a clear right, an injury committed or reasonably apprehended, and the absence of an adequate alternative remedy. In assessing alternative remedy, the court may consider practical realities such as the efficacy of damages and the effectiveness of platform-based complaints.

Urgent relief may be granted with condonation for non-compliance with ordinary time periods and forms under Rule 6(12) of the Uniform Rules of Court, where the circumstances justify departure from the ordinary process.

In considering interdictory relief aimed at restraining publication, courts must evaluate the scope of the restraint against competing constitutional interests, including the potential impact on freedom of expression, and may refuse relief framed so broadly that it restrains unknown future speech irrespective of context and possible defences.

Costs lie within the court’s discretion. A punitive costs order on the attorney and client scale may be justified where a party’s conduct is regarded as unreasonable and deserving of censure, assessed in light of all the circumstances, including avoidable escalation of costs and failure to act cooperatively after warnings of cost consequences.

Liebenberg v Van der Merwe (4762/2022) [2022] ZAFSHC 287 (24 October 2022)