THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 504/2023
In the matter between:

IRD GLOBAL LIMITED APPELLANT

and

THE GLOBAL FUND TO FIGHT AIDS,
TUBERCULOSIS AND MALARIA RESPONDENT

Neutral citation: IRD Global Limited v The Global Fund to fight AIDS, Tuberculosis
and Malaria (504/2023) [2024] ZASCA 109 (04 July 2024)
Coram: MOCUMIE and SCHIPPERS JJA and K OEN, DAWOOD and
BAARTMAN AJJA
Heard: 15 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand -down of the judgment is deemed
to be 11h00 on 4 July 2024.
Summary: Civil procedure – interim interdictory relief – jurisdiction – alleged
defamatory statement published on the Internet accessed in South Africa - whether
the appellant was entitled to interim interdictory relief as sought in the high court –
whether the high court correctly found that it lacked jurisdiction – whether it was
appropriate to order additional security for costs – appeal dismissed.

2
___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from : Gauteng Division of the High Court , Johannesburg (Van
Nieuwenhuizen AJ, sitting as a court of first instance):
The appeal is dismissed with costs including the costs of two counsel , where so
employed.

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Baartman AJA (Mocumie and Schippers JJA, and Koen and Dawood AJJA
concurring):

[1] The dispute in this appeal is whether the Gauteng Division of the High Court ,
Johannesburg, per Van Niewenhuizen AJ, (the high court) was correct in holding that
it did not have jurisdiction to entertain an application for interim relief (the main
judgment) and whether that court correctly exercised its discretion when it granted the
respondent’s application for additional security for its costs (the security judgment).
The appeal is with the leave of the high court.

[2] The appellant, a global health delivery and research organisation, was founded
in Pakistan in 2004. It is registered in Singapore and is alleged to have an established
project profile in 17 countries and affiliates in nine countries, including in South Africa.
The appellant works with governments and community organisations in the public
health sector ‘to address the global health delivery gaps by marginalised communities’
lack of access to healthcare ’. The respondent, an international organisation
established in Switzerland, is involved in the fight against Aids, Tuberculosis and
Malaria as ‘donor and implementor of Global Fund-supported programs’. Both parties
are peregrini of the high court and own no immoveable property in South Africa.

3
[3] On 1 April 2021, the respondent published a report on its website, compiled by
its investigating unit, known as the Office of the Inspector General (OIG), titled ‘global
fund Grant in Pakistan-Prohibited practices compromised procurement in tuberculosis
program’. The report resulted from an investigation into the respondent’s tuberculosis
grant in Pakistan to Indus Hospital (Indus) in which the appellant had acted as
technical assistance provider implementing various tuberculosis -related health
projects. The report, which is globally available on the respondent’s website, contains
numerous allegations that the appellant considers defamatory. The position was
aggravated as the report was accompanied by a letter of endorsement from the
respondent’s executive director confirming allegations , such as conflict of interest,
collusive and anti -competitive practices, data inflation and overcharging , that were
levelled against the appellant and Indus in administering the tuberculosis grant.

[4] However, on 15 July 2019, prior to the publication, the respondent had informed
the appellant that OIG would be conducting the investigation and on 18 June 2020,
the OIG made its preliminary and confidential findings available to the appellant and
other interested parties. Those preliminary findings included the following:
‘39.4.1 Finding 1 – The appointment of the [appellant] breached the Global Fund’s policies
and involved multiple unmitigated conflicts of interest;
39.4.2 Finding 2 – Indus fraudulently steered the Projects to [the appellant];
39.4.3 Finding 3 – Multiple irregularities in the implementation of the projects by [the appellant],
including data fraud;
39.4.4 Finding 4 – Conflicts of interest and irregularit ies in the awarding of an IT contract to
Interactive Health Solutions.’

[5] On 16 July 2020, the appellant submitted a comprehensive response in which
it dealt with the findings and gave an exculpatory account. On 15 January 2021, the

it dealt with the findings and gave an exculpatory account. On 15 January 2021, the
initial draft report was leaked and published in Arab News. Despite, the appellant’s
comprehensive response, the respondent persisted with its version and made the
report available on its website , substantially confirming the allegations in the leaked
draft report.

[6] The appellant’s South African attorney, acting on instructions, accessed the
respondent’s website and downloaded the report in Johannesburg. The appellant, on

4
the basis that the report was accessed in Johannesburg, intends to pursue a
defamation action in the high court against the respondent. In May 2021, the appellant
launched an urgent application in the high court seeking interim relief . The following
prayers are relevant to this judgment:
‘…
2. Pending the final determination of an action or application to be instituted by the applicant
within 30 days of the Order for defamation against the respondent:
2.1 the report on the respondent’s website, titled Global Fund Grant in Pakistan – … are within
1 (one) day of this Order, to be retracted and removed by the respondent from its website;
2.2 the respondent, within 5 (five) days of this Order, is to publish the following statement on
its website:
“The High Court in South Africa has granted an interim order against [the respondent]
…pending the final determination of an application or action to be instituted by [the appellant]
to obtain a permanent interdict against [the respondent] in respect of the Report on the basis
that the statement s contained therein are defamatory and untruthful as against [the
respondent].”
2.3 interdicting the respondent and its officials from making any further statements of a
defamatory nature and effect against the appli cant, including but not limited to repeating the
contents of the Published Report and the Published Letter;
2.4 restraining the respondent and its officials from sharing, distributing or disseminating the
Published Report or any other iteration of a repor t prepared pursuant to the OIG’s
investigation, with any person, entity or the public at large;
2.5 interdicting the respondent from making any recommendation or imposing any sanction s
in respect of [the respondent] pursuant to the Sanctions Panel Procedur es Relating to the
Code of Conduct for Suppliers, [annexure FA60 to the founding affidavit], or any other basis;…’

[7] The respondent took the following preliminary points , instead of dealing with

[7] The respondent took the following preliminary points , instead of dealing with
the merits of the application, but indicated that it would seek a postponement to do so.
These points are:
(a) The high court lacked jurisdiction to entertain the application;
(b) The relief sought was not competent;
(c) The requisites for interim relief were not satisfied;
(d) The application should be brought in either Pakistan or Switzerland.

5
[8] As both parties are peregrini of the court, the respondent sought security for its
costs. Reluctantly, without admitting that same was due, the appellant put up security
for costs. Thereafter, the application was enrolled in the urgent court where Fisher J
struck it from the roll for lack of urgency and directed the appellant to pay the costs of
the application. The security that had been put up was used to settle the costs order
leaving a balance of R91 000. In September 2021, Tsa utse AJ heard the opposed
application, although judgment remained outstanding for an inordinate period . T he
deputy judge president unsuccessfully attempted to persuade Tsa utse AJ to deliver
the judgment and as a last resort, directed a new hearing before a different judge.

[9] At that hearing on 12 September 2022, the respondent, without conceding the
court’s jurisdiction, sought an increase in the security for its costs alleging that the
R91 000 balance from the original security was insufficient to cover the new situation.
The main application and the request for additional security were heard together.
While the hearing was in progress, Tsautse AJ ‘uploaded’ the outsta nding judgment.
After a short adjournment, having considered the uploaded judgment , both parties
requested the court to proceed with the rehearing.

[10] The learned judge found in favour of the respondent in respect of its claim for
additional security and directed the appellant to pay such additional security as the
Taxing Master may d etermine. The main judgment held that there was ‘no actual
publication to a third party’ as the appellant’s attorney had accessed the publication to
assess its impact and a dvise his client. The circumstances in which the publication
was downloaded persuaded the court that ‘[the respondent] did not publish anything
in South Africa’.

[11] The high court further held that the matter was distinguishable from Akani

[11] The high court further held that the matter was distinguishable from Akani
Retirement Fund Administrators (Pty) Ltd v NBC Holdings (Pty) Ltd and Another 1 as
‘the terms of use limit the user’s rights’ in respect of the publication relevant to this
matter. The learned judge was not persuaded that the reputational harm the appellant
had suffered had arisen from publication in South Africa as the harm had been caused

1 Akani Retirement Fund Administrators (Pty) Ltd v NBC Holdings (Pty) Ltd and Another [2020]
ZAGPJHC 174.

6
when Arab News had published the initial leaked draft report . In addition, the report
relates to alleged conduct in Pakistan in relation to a project that the respondent
funded and in which the appellant partook. Cumulatively, these factors led the high
court to hold that it did not have jurisdiction to entertain the application and that South
Africa was not a forum of convenience. Therefore, the application was dismissed with
costs.

[12] In this Court, the appellant persisted in its stance that the high court had
jurisdiction to entertain the application and that it should not have been ordered to
provide addition al security. Among other s, the respondent submitted that the relief
sought was incompetent and therefore the appeal should fail. I deal with both
judgments below.

The main judgment
[13] A basic principle in our law of jurisdiction is that of effectiveness.2 A court must
be able to give effect to its judgment so that, ‘in the case of a judgment sounding in
money, the judgment can be satisfied by attaching and selling in execution assets
belonging to the judgment debtor if the judgment is not paid’ .3 Where a judgment
debtor has immovable property in South Africa, a court can order its attachment and
so give effect to its judgment. Jurisdiction is also exercised where litigants submit to
the court’s jurisdiction. The respondent in this matter has not submitted to the court’s
jurisdiction.

[14] In Bid Industrial Holdings (Pty) Ltd v John Francis Roderick Strang and Others4
(Strang) this Court held as follows:
‘In my view it would suffice to empower the court to take cognisance of the suit if the defendant
were served with the summons while in South Africa and, in addition, there were an adequate
connection between the suit and the area of jurisdiction of the South African court concerned
from the point of view of appropriateness and convenience of its being decided by that court.

from the point of view of appropriateness and convenience of its being decided by that court.
Appropriateness and convenience are elastic concepts which can be developed case by case.

2 Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd [1969] 2 All SA 338 (A); 1969 (2)
SA 295 (A) at 346.
3 23(2) Lawsa 3 ed para 6.
4 Bid Industrial Holdings (Pty) Ltd v John Francis Roderick Strang and Others [2007] ZASCA 144; [2007]
SCA 144 (RSA); [2008] 2 All SA 373 (SCA); 2008 (3) SA 355 (SCA) para 56.

7
Obviously the strongest connection would be p rovided by the cause of action arising within
that jurisdiction.’

[15] The appellant sought to overcome the jurisdiction issue on the basis that it has
an affiliate in South Africa; the report was accessed in Johannesburg; the respondent
has immunity in Switzerland ; and the respondent has an office and funds in South
Africa. It turns out that the respondent has neither an office nor funds in this country.
Instead, funds are sent directly by donors to grant recipients in South Africa.

[16] In King v Lewis5 the court said the following:
‘We do not suggest, nor did Mr Browne, that Gutnik is a gateway for the introduction of a new
rule in the law of England relating to Internet publications. It established no new rule in
Australia. But the court’s rejection of sweeping submissions that would have done away with
Duke of Brunswick in favour of the “single publication rule” known in many States of the USA,
alongside the dicta in Gutnick which emphasise the internet publisher’s very choice of a
ubiquitous medium, at least suggests a robust approach to the question of forum : a global
publisher should not be too fastidious as to the part of the globe where he is made a libel
defendant. We by no means propose a free -for-all for claimants libelled on the Internet. The
court must still ascertain the most appropriate forum; the parties’ connections with this or that
jurisdiction will have to be considered; there will be cases (like the present) where only two
jurisdictions are really in contention. We apprehend this third strand in the learning
demonstrates no more than this, that in an Internet case the court’s discretion will tend to be
more-textured than otherwise; for that is the means by which the court may give effect to the
publisher’s choice of a global medium. But as always, every case will depend upon its own
circumstance.
….
…The relative importance of all factors which must be examined – place of the tort, the parties’

connection with this or that jurisdiction, the publisher’s choice to go on the Internet - are not
legal rules. They are matters which will inform the judge who must decide where the balance
of convenience lies.’ (Emphasis added).

[17] Applying the above principles to the facts of this matter, it is obvious that neither
party, both peregrini, has any real connection to South Africa. The process was not
served in South Africa and the respondent does not have a place of business locally.

5 King v Lewis [2004] EWCA Civ 1329 paras 31 and 36.

8
Although, the respondent actively seeks South African donors, such funds are donated
to grant recipients , therefore the respondent does not have access to the funds in
South Africa. The appellant’s local affiliate has not joined in the litigation and there is
no indication that the publication has had any effect on it.

[18] There is further no connection between the high court’s jurisdiction and the
dispute. As indicated above, the cause of action arose in Pakistan where the appellant
and Indus are alleged to have compromised the tuberculosis grant. Therefore, the
background facts, convenience and the law governing the relevant transaction , are
outside the court’s area of jurisdicti on.6 The only connection to the high court’s
jurisdiction is that the attorney accessed the report in its jurisdiction; that is insufficient
as is apparent from the Strang judgment. Internet publication, with its global reach, for
practical purposes must be contained otherwise multiple actions may follow in
jurisdictions with no real connection to the parties or the issue in dispute other than
publication. Self-evidently such a situation is untenable and may cause grave
inconvenience to the court, witnesses and litigants. In the circumstances of this matter,
adequate connecting factors for jurisdiction are absent and the court would be unable
to give effect to its judgment. Although the jurisdiction issue is dispositive of the matter,
I deem it necessary to deal briefly with the requirements for an interim interdict and
the relief claimed.

[19] The respondent contends that the appellant did not make out a case for interim
relief. The appellant sought interim relief pending the finalisation of the defamation
action it intends to institute. As indicated above, the respondent did not file an
answering affidavit dealing w ith the merits of this matter due to time constraints.
However, the report, the history leading to its creation and the appellant’s exculpatory

However, the report, the history leading to its creation and the appellant’s exculpatory
response prior to publication are part of the papers. The respondent at an early stage
indicated that it stands by the allegation, asserts the truth thereof and relies on truth
and public interest for the publication. This was after the respondent had undertaken
an elaborate investigation over many months and had given the appellant an
opportunity to comment on its initial findings. Therefore, the allegations cannot be

6 Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd [2013] ZAGPPHC 261;
[2013] 4 All SA 346 (GPN); 2014 (3) SA 265 (GP).

9
approached on the basis that they were spurious and defamatory as the respondent
has indicated after considering the appellant’s exculpatory reply that it stands by the
truth of the allegations contained in the report.

[20] As indicated above, on 15 January 2021 , Arab News published a leaked copy
of the initial draft report and on 1 April 2021 , the respondent published the report on
its website. Yet the appellant only approached the court in May 2021 for interim relief
and three years later, in 2024, issued summons. There was arguably a basis for interim
relief three years ago. The appellant has not made out a case for an interdict to restrain
future defamatory publications and there is no evidence that the harm is ongoing. The
right the appellant seeks to protect is not under threat of irreparable harm as the harm
occurred three years earlier.

[21] An interdict is not competent relief where the respondent has put up a valid
defence to the defamation charge. It follows that the appellant has not established a
prima facie right, even one open to some doubt, which needs to be protected by an
interdict. Therefore, there is no need to enquire into irreparable harm, the balance of
convenience or a satisfactory alternative remedy.

[22] The appellant further seeks a retraction and an apology on motion. Although,
styled as interim, the relief is in fact final in effect. This Court in Tau v Mashaba and
Others,7 criticised that process as follows:
‘…An order to retract the initial statements, to issue an unconditional apology for them and to
ensure publication of the retraction and apology, presupposes a finding that the initial
statements were defamatory of the respondent. That would involve a final determination of the
rights of the parties, which has to be made in the defamation action. Further, if such an order
were to be executed, it could not be undone: the notion of an interim retraction or apology is
untenable.’

untenable.’

[23] Wallis JA expressed similar sentime nts in NBC Holdings (Pty) Ltd v Akani
Retirement Fund Administrators (Pty) Ltd8 (NBC Holdings) as follows:

7 Tau v Mashaba and Others [2020] ZASCA 26; 2020 (5) SA 135 (SCA) para 17.
8 NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators [2021] ZASCA 136; [2021] 4 All SA
652 (SCA) para 10.

10
‘A good deal of the complexity of this case arose because Akani sought relief by way of urgent
motion proceedings and not by way of action. In order to do this, it tied its claim for the
publication of a retraction to a vague and general interdict. Furthermore, it said that it reserved
its right ‘to pursue other aspects and relief flowing from NBC’s …. misconduct at a later date’.
justifying this on the basis that only urgent matter could be traversed in these proceedings.
The judge rightly rejected the claim for an interdict, thereby exposing the true nature of the
proceedings as being for final relief to remedy the damage that Akani claimed it had suffered
as a result of the publication of the letter…’

[24] It is now settled law that an apology or a retraction may serve the same purpose
as an award of damages in a defamation action or may be ordered in conjunction with
an award of damages. 9 However, that relief requires the institution of an action. It
follows that the appellant is not entitled to the relief it sought on motion and that the
application must fail on this basis too.

[25] Contrary, to the above established principles, the court in Ramos v Independent
Media (Pty) Ltd and Others, 10(Ramos) on motion proceedings found that the
publication that formed the subject of those proceedings w as defamatory, false and
untrue. It i nterdicted the respondent from republishing the article or any false
statement implying that the applicant had ‘participated in fixing the rand or committed
corruption or treason in relation to the fixing of the rand ’. It ordered a retraction and
directed the respondent to publish an apology. The court reasoned that it could make
the orders on motion as the applicant did not ask for damages. However, as indicated
above, damages may now consist of a retraction, an apology , a monetary amount or
any combination thereof.

[26] I therefore respectfully disagree with the court in Ramos and hold that motion

[26] I therefore respectfully disagree with the court in Ramos and hold that motion
proceedings remain unsuited to deal with defamation allegations. A trial is necessary
to determine the veracity of the alleged defamatory statements and thereafter an
award can be made consisting of an apology, a monetary amount, a retraction or a
combination of same. Recently, in Malema v Rawula ,11 this Court confirmed that
awards of damages may not be claimed in motion proceedings.

9 NBC Holdings para 15.
10 Ramos v Independent Media (Pty) Ltd and Others [2021] ZAGPJHC 60 para 126.
11 Malema v Rawula [2021] ZASCA 88 para 26.

11
The security judgment
[27] In directing that additional security be provided, t he trial court exercised a
discretion in the strict sense.12 There is no numerus clausus of factors to which a court
may have regard in arriving at a decision it considers just in any given case. In the
exercise of its discretion, the court considered that the respondent had sought security
at an early stage in the proceedings, which was provided, albeit under protest. That
security was for an urgent application in which jurisdiction was challenged. The further
developments, such as the long outstanding judgment resulting in a rehearing , were
considered unusual. Both parties are peregrini of the South African courts and the
respondent, if successful, might be put to the inconvenience of pursuing its costs in a
foreign jurisdiction. Because the trial court exercised a discretion in the strict sense;
therefore, it is not open to a court on appeal to interfere with the exercise of the
discretion unless it has not been exercised judicially or has been exercised on a wrong
principle of law or a wrong appreciation of the facts.13 The factors considered included
the factual situation; there is no indication that the court overemphasised any factor or
exercised its discretion incorrectly. I am unable to find a ground for interference . It
follows the appeal against the security judgment must fail.

Order
[28] The following order is granted:
The appeal is dismissed with costs including the costs of two counsel , where so
employed.



_______________________________
E BAARTMAN
ACTING JUDGE OF APPEAL


12 See Magida v Minister of Police 1987 (1) SA 1 (A); [1987] 1 All SA 218 (A) . Knox D’Arcy Ltd and
Others v Jamieson and Others 1996 (4) SA 348 (A) at 361H.
13 Giddey NO v JC Barnard and Partners [2006] ZACC 13; 2007 (5) SA 525 (CC); 2007 (2) BCLR 125
(CC) para 21.

12
Appearances

For the appellant: M Du Plessis SC and D Wild
Instructed by: Webber Wentzel, Johannesburg
Honey Attorneys Inc, Bloemfontein.

For the respondent: A Franklin SC and N Qwabe
Instructed by: Bowman Gilfillan Inc, Johannesburg
Symington and De Kok Attorneys, Bloemfontein.