REPU BLIC O F SOUT H A FRIC A
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 10987/2024
(1) REPORTABLE : YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
REV ISED YES /NO
DA TE .. l .. .lt\t??~ IGNATURE .
In the matter between:
SELEGE PAUL DIKETANE APPLICANT
And
DEBIS MARATHAGANYE MAKGWALE RESPONDENT
15 October 2024 Heard
Delivered 1 November 2024 by circulation to the parties' legal
representatives
Coram PILLAY AJ
JUDGEMENT
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PILLAY AJ
Introduction
[1] The Applicant seeks on an urgent basis an interdict, restraining and interdicting the
Respondent, from posting or supplying any information pertaining to the Applicant on
Facebook, group chats, conducting radio and newspaper interviews and any other
social media and to stop making false defamatory statements about the Applicant.
That the Respondent is to remove such postings articles and audio listed by him and
to publish an unconditional apology to the Applicant concerning the aforesaid
defamatory statements.
[2] Further, in the event that the Respondent fails to comply with the above-mentioned
order that the Respondent then be placed under arrest for non-compliance for a
period of thirty (30) days or a period determined by the Court.
[3] The application is opposed by the Respondent who disputed the allegations and
raised the following points in limine;
[3.1] The lack of urgency
[3.2] Material dispute of fact
[3.3] Non-Joinder
Brief Background
[4] In 2008 Nkgonyeletse Secondary School sustained structural damage requiring
repairs from the Department of Education. The Respondent is the Chairperson of the
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School Governing Body (SGB) and attended a meeting held on 2 September 2024
where the Department of Education with the Department of Public Works indicated
that a budget of R32 800 000,00 was available for the restoration of the School. On
4 September 2024 a meeting for the purpose of creating a Project Steering
Committee was held and due to disputes concerning the appointees the meeting
was postponed until 12 September 2024. The Steering Committee was appointed
however, dispute arose concerning a visit to the Tribal Office on 14 September
2024. The Respondent referred the issue on the 16 September 2024 to the School
Governing Body Federation, where a decision was taken to halt the plans, in respect
of the building project.
[5] This resulted in interviews over various platforms on social media, newspaper articles,
Facebook, Radio, Turf News, On the Block News. In the newspaper article written by
Moyahabo Mabebe number "SP8" of the Applicant's annexures with the headline
titled SGB halts school project amidst bribery allegation. Councillor accused of
soliciting bribes. The article reads ... "according to the SGB chairperson David
Makgwale. the Politician insisted on being appointed as the chairperson of the
project steering committee and was actively involved in introducing the main
contractors to the Tribal House. This conduct did not sit well with the School
Governing Body as they felt threatened and put a halt to the project until clarity
could be obtained from the Councillor in respect of who was responsible for the
project".
[6] The Respondent attended various meetings and interviews, where he vocalized his
opinion, concerning his impression of the conduct of the Applicant. He also indicated
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that the Applicant sought to threaten them with a Summons , demanding an apology
for character assassination. The Respondent stated that it was sent by WhatsApp ,
instead of being delivered by a Sheriff of the Court.
[7] The Respondent indicated to the reporter that the Applicant claimed , he had done
reputational damage to him, by informing the media about the Applicant's actions.
He indicated that the story was all over social media, in all areas, and concerned
community members were talking about it. He further informed the reporter that he
had heard stories that the Applicant wanted to mobilise parents, to stop their children
from going to school. He wondered who would agree to such ridiculousness.
[8] Based on the aforesaid, the Applicant on 18 September 2024 served on the
Respondent a letter of demand , in which the Respondent was informed that the
posts and correspondences, contained numerous unverified, spurious, scandalous
and defamatory statements and remarks, against the Applicant. That the Applicant
denied the derogatory and defamatory allegations, with specific reference to the
following;
[8.1] That he had certain personal interest in the project.
[8.2] That he claimed to be representing the person of ANC Sekhukhune Regional
Secretary.
[8.3] That he appointed a project steering committee and had introduced the
contractor to the Royal House without the knowledge of the SGB or School
Principal.
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(8.4] That he already made prior arrangements on who should be employed from
the community side and also which local businesses should benefit from the
project.
(9] The Applicant indicated that the statements were wrongful, malicious, distasteful,
unlawful and defamatory and made with the intention of defaming the Applicant and
injuring his reputation. The comments made by the Respondent was intended to
mean , or at the very least conveyed the innuendo, that the Applicant is dishonest
and untrustworthy, the worst kind of a leader, self-serving and an extortionist.
(1 O] The Applicant informed the Respondent that as a result of the defamatory
statements, the Applicant has suffered damage to his dignity, his self-esteem and or
reputation, in both his professional and personal life.
(11] The Applicant demanded that the Respondent publicly withdraw the social media
posts and correspondences, by authoring and circulating a further social media post,
on the Facebook site of On the Block News, Radio Turf news , Capricorn FM news
and Thobela FM , his Facebook site wall and a WhatsApp messenger text and I or
email communique to the Applicant and the Office of the ANC Regional Secretary,
retracting his posts and I or correspondence and apologising for this conduct within
48 hours from the date of the letter of demand .
(12] The Respondent was informed that should he fail, refuse, neglect to retract or
withdraw the correspondence and or furnish the Applicant with an apology the
Applicant would have no option but to proceed against the Respondent for any and
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all damages suffered, as a result of the Respondent's conduct, which damage the
App licant was already in the process of quantifying.
[13] Amidst the letter of demand , the Respondent persisted in expressing his views
concerning the circumstances and the role played by the Applicant, as highlighted in
the various articles, especially "SP8 " wherein mention was made of the
communication from the Applicant.
[14] This triggered the Applicant to approach the Court on an urgent basis, seeking the
orders as contained in the Notice of motion. The Applicant highlighted that there was
urgent intervention needed by the Court, due to the defamatory posts and
harassment on social media and he would not be able to obtain substantial redress,
in respect of the severe harm, that will likely result, from the Respondent's continued
intentional damage , to his good name and that of his Office.
[15] The Applicant indicated that the Respondent had conducted himself in a manner
which showed no remorse, and he had not retracted or apologised for his previous
and unlawful conduct and without the Honourable Court's urgent intervention, the
Respondent would, most likely, to begin posting more defamatory statements on
social media. The Applicant argued that this was not a case of self-created urgency.
[16] The Applicants highlighted the matter remains urgent, as there is a continuous
infringement of the Applicant's Constitutional right to dignity, entitling him to
approach the Honourable Court on an urgent basis.
[17] In answer to the allegations the Respondent raises the point in limine concerning
urgency, highlighting the delay in the timeframe in which the Applicant approached
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the Court flowing from the incident. The Respondent argued that the last post was
dated 22 September 2024 and the Applicant only instituted proceedings on 4
October 2024. The Respondent argued that the rule pertaining to urgency required
two legs to be present before urgency could properly be ventilated, namely the
urgency should not be self-created and the Applicant must provide reasons why
substantial relief, cannot be achieved in due course. The Respondent argued that
the truncated timelines for the Respondent to file their Notice of opposition and
Answering affidavit was extremely short. In comparison to the Applicant who had a
number of days to properly adjudicate this application. It was argued that the
application was fatally flawed due to the self-created urgency by the Applicant. The
Applicant wou ld have found redress in instituting a claim for damages against the
Respondent.
[18] The Respondent submitted that the court has the power to condone non-compliance
with the rules, and to accelerate the hearing of the matter, however, this should be
exercised with judicial discretion and in the light of significant and satisfactory
grounds been shown by the Applicant. This depended on three major
considerations;
[18.1] The prejudice that the Applicant may suffer by having to wait for a hearing in
the ordinary course
[18.2] The prejudice that other litigants might suffer if the application were to be
given preference.
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[18.3] The prejudice that the Respondents might suffer on account of the
abridgement of the prescribed terms and an early hearing of the matter.
[19] The Respondent maintained that the Applicant had not made out a case for urgency
and the application was an abuse of the Court process. He indicated that the
Applicant did have redress, in the criminal proceedings or in a civil claim for
damages .
[20] The second point in limine concerned the material dispute of fact, as found in Rule
6(5)(g)1which provides that where there is a material bona fide dispute of fact that
could not be decided on the papers the Court was faced with three alternatives; it
may dismiss the application or direct that oral evidence be heard on specific issues
or refer the matter to trial. The Respondent indicated that the Court was not
restricted to the listed remedies, and could make any order it deemed fit, and which
was directed to ensure a just and expeditious decision.
[21] The Respondent argued that from the papers in front of Court, there was a material
dispute of fact and further that the Applicant should have known at the launching of
the application, that this would be the case. The Respondent noted that the
Applicant should have proceeded by way of Action so as to obtain oral evidence, to
ventilate the issue and this was sufficient grounds for the application to be
dismissed.
[22] The Respondent's third point in limine was the issue of non-joinder. The Respondent
submitted that he did not have the necessary power and authority to dictate what
1 U niform Rules of Co urt
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should be posted, reported or discussed, on the various platforms mentioned. The
Applicant had an obligation to cite the various platforms as Respondents to this
application, as it was clear that they would have a direct and substantial interest in
these proceedings. He mentioned the identity of Mr Derek Mosoana, the Provincial
Convener of the SGB Federation, who was not cited as a Respondent in the
proceedings. The Respondent indicated that if the Court found that there were
defamatory statements made, Mr Derek Mosoana would have a direct and
substantial interest, in the outcome of the matter, as he would have to comply with
the order, that the Court would make.
[23] The Respondent sought that the Court scrutinise the meaning of the words used, to
determine if the statements were defamatory, by relying on an objective, ordinary
meaning of the statement, and what it was intended to convey. The second stage
was to determine whether the statement was likely to injure the good esteem in
which the Plaintiff was held, by the reasonable average person, to whom it was
published.
[24] The Respondent argued that the Applicant as Ward Councillor held a political
position and as such his conduct was in the public interest. The post, interviews and
publications, were to the benefit of the public. The Respondent indicated that the
Applicant had not made out a case either for urgency, especially as the Applicant
was afforded an opportunity, to comment on the allegations, before it was published,
and the Applicant, elected not to render any comment to the journalist.
[25] The Respondent highlighted that the application was defective, lacked the necessary
urgency and that there was a material substantial dispute of fact, which could only
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be cured by referring the matter to oral evidence. The Respondent indicated that the
Applicant, at the time of launching the application, was well aware of this dispute.
This was evident from the fact that not all persons that made allegations against the
Applicant was before Court and therefore the application was destined to be
dismissed with Costs.
[26] In reply the Applicant sought condonation for the late filing of the replying affidavit,
which was on account of circumstances beyond the Applicant's control. The
Respondent had no objection, so condonation was granted. The Applicant
maintained the application was urgent and that substantial redress would not be
afforded to him, if the interlocutory proceedings were only heard on the ordinary role,
in due course. The Applicant believed that the Respondent would continue to persist
with his defamatory actions. The Applicant reserved his rights to institute a claim for
damages if he so deemed necessary.
[27] The Applicant argued that there was no material dispute of facts, as the Respondent
admitted to publishing defamatory statements, regarding the Applicant, to third
parties, which statements were neither retracted nor substantiated with any factual
evidence. The Respondent did not show any defence in law permitting him to
continue with the said unlawfully actions, as he clearly intended to persist with this
conduct. On that basis the Applicant was entitled to the relief prayed for in the Notice
of motion.
Issues
[28] The following issues were identified;
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[28.1] The Court needed to ventilate the issue of urgency,
[28.2] Whether there was a material dispute of fact which could not be resolved on
the papers.
[28.3] Non-joinder of the other persons or organisations, that the Respondent
argued, were involved in respect of the circulation of the information alleged
to be defamatory.
[28.4] Whether the Applicant had made out a case for defamation.
[28.5] The appropriateness of the relief sought by the Applicant in the Notice of
motion.
[28.6] Costs.
The Relevant Law and Applicability to the Issues
[29] For an Applicant to succeed on any grounds of urgency the Applicant needs to show
that this was not self-created urgency and that the Applicant would not be afforded
substantial redress, if the matter was to be heard in due course.
[30] The procedure set out in Rule 6(12) was not simply there for the taking. The
principle set out in a case of East Rock Trading 7 (Pty) Limited and Another v Eagle
Valley Granite (Pty) Limited2 and others in which it was held:-
"The import thereof is that the procedure set out in Rule 6(12) is not there for
the taking. An Applicant has to set forth explicitly the circumstances which he
2 See 2011 JDR 1832
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avers render the matter urgent. More importantly, the Applicant must state
the reasons why he claims that he cannot be afforded substantial readdress
at a hearing in due course. The question of whether a matter is sufficiently
urgent to be enrolled and heard as an urgent application is underpinned by
the issue of absence of substantial redress in the application in due course.
The rules allow the Court to come to the assistance of a litigant because if the
latter, were to wait for the normal course laid down by the rules, it will not
obtain substantial redress.
It is important to note that the rules require absence of substantial redress.
This is not equivalent to irreparable harm that is required, before the
granting of an interim relief It is something Jess. He may still obtain redress
in an application in due course, but it may not be substantial. Whether an
Applicant will not be able to obtain substantial redress in an application in
due course, will be determined by the facts of each case. An Applicant
must make out his case in this regard. "3
[31] The High Court, Pretoria, in Dynamic Sisters Trading (Ply) Limited and Another v
Nedbank Limited4 stressed the importance of providing viable reasons for dispensing
with the formalities in application proceedings, when instituting an urgent application,
as set out in Rule 6(12) of the Uniform Court Rules.
[32] The argument raised by the Respondent concerning the lack of urgency, and the
opportunity to institute a criminal case of defamation, alternatively a civil case for
3 (2012) JOL 28244 (GSJ) at para 6 and 7.
4 [2023] ZAGPPHC 709 (21 August 2023)
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damages , did not equate to substantial redress in due course. From the time the
Applicant became aware of the defamatory comments , attempts were made by the
Applicant, in the form of the letter of demand , to put a halt to these defamatory
comments. The Respondent persisted with his comments and opinions, in respect of
the matter, as evident in the newspaper article. He even highlighted the pending
litigation, on the part of the Applicant, with no fear of the consequences of his
comments . His argument that the Applicant was afforded an opportunity to
comment , cannot be sustained, for the simple fact that no amount of denials, could
circumvent the harm caused by the opinions and comments made by the
Respondent. The Applicant made out a case for urgency, as the Applicant would not
be afforded substantial redress in due course, due to the Respondent's continued
infringement of the Applicant's Constitutional right of dignity.
[33] The Respondent raised a material dispute of fact that could not be adjudicated on
paper. From the Answering affidavit, there appeared to be no dispute concerning the
opinions expressed by the Respondent to the various organisations without restraint
as to the veracity of the truth contained therein.
[34] The Plascon -Evans Rule5 states:
"where in proceedings on notice of motion disputes of fact have arisen
on the affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those facts averred in the Applicant's
affidavits which have been admitted by the Respondent, together with
the facts alleged by the Respondent, justify such an order. "(my italics)
5 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634-5
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[35] The Respondent relied on the initial dispute that existed, which triggered the
decision, to put the project on hold, as motivation for the comments about the
Applicant. The Respondent on his own version placed before the Court the fact that
he was responsible, for informing the various organisations. These were allegations
not supported by any real facts or proof to justify the defamatory comments,
innuendo and speculative rumours, concerning the character and integrity of the
Applicant. On the Respondent's own papers this point in limine must be dismissed
as it is without merit.
[36] The letter of demand failed to dissuade him from persisting in the circulation of the
false information. He did not take steps to prohibit same or made any undertakings
to refrain from publishing similar information in the future. There is no material
dispute as his version supports the Applicant's allegation of his role in the spreading
of this false information. At no stage did he indicate that there was truth to this
allegations or provide proof of same.
[37] It respect of the non -joinder, the Respondent indicated that the Applicant's prayer 5
was not capable of being executed, as the Respondent did not have the necessary
power or authority to dictate what should be posted, reported or discussed on the
various communication, media platforms. According to him, these parties would
have a direct and substantial interest in these proceedings. Further, mention was
made of the journalist Moyahabo Mabeka and Mr Derick Mosoana who were not
cited as Respondents in these proceedings, but had an interest in the outcome.
[38] In the decision of Judicial Service Commission and Another v Cape Bar Council and
Another6 the Supreme Court of Appeal confirmed the principle as follows;
[12] It has by now become settled law that the joinder of a party is only required as
a matter of necessity - as opposed to a matter of convenience - if that party
has a direct and substantial interest which may be affected prejudicially by the
judgment of the court in the proceedings concerned (see eg Bowring NO v
6 2013(1)SA170(SCA) at [12]
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Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21). The mere fact that
a party may have an interest in the outcome of the litigation does not warrant
a non-joinder plea. The right of a party to validly raise the objection that other
parties should have been joined to the proceedings, has thus been held to be
a limited one (see eg Burger v Rand Water Board 2007 (1) SA 30 (SCA) para
7; Andries Chari Cilliers, Cheryl Loots and Hendrik Christoffel Ne/ Herbstein &
Van Winsen The Civil Practice of the High Courts of South Africa 5 ed vol 1 at
239 and the cases there cited.)
[39] The Applicant took issue with the conduct and manner of the Respondent
concerning the defamatory allegations made by the Respondent. Granted they may
have been other people involved in the circulating of the information, this did not
preclude the Applicant from instituting proceedings against the Respondent, simply
based on the Respondent's conduct. The right to litigate against other individuals
was entirely up to the Applicant, but this did not warrant the need for the joinder of
the other parties to this litigation. This point in limine also is to be dismissed.
[40] This Court accepts that the Respondent conveyed information complained about
and that publication took place on various platforms, but most telling was the
newspaper article marked 'SPB ' attached to the founding affidavit. In the article the
Respondent made averments concerning the Applicant as highlighted above in
paragraph 5 to paragraph 7. These comments were direct quotes from the
Respondent and the literal understanding thereof, was to defame the character of
the Applicant. On account of the Respondent's comments , the esteem and
reputation of the Applicant and his role in the community was diminished.
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[41] The Respondent justified his conduct, on the basis that the community needed to
know what was happening concerning this project, however, the manner in which he
went about vocalising, circulating and or publishing this information, was defamatory
to the good name of the Applicant and with the intent to offend the reputation of the
Applicant.
[42] There was no justification for the manner in which those comments were relayed
and the Respondent did not motivate or argue that it was the truth. The Respondent
indicated that the SGB had written a letter of apology to the Applicant which
according to the Applicant was not received. The Respondent however, did not
apologise himself, in respect of his own comments.
[43] The Applicant sought various relief from the Court as contained in the Notice of
motion. In respect of the interdict the Court took cognisance of the requirements to
be satisfied for the Court to grant a final interdict being the following:
[43.1] A clear right;
[43.2] A well -grounded apprehension of the irreparable harm if the final relief is not
granted.
[43.3] A balance of convenience in favour of the granting of the relief sought
[43.4] The absence of any other satisfactory remedy.
[44] The Applicants highlighted why these grounds have been met, and that the
Applicant had no suitable alternative remedy available, except to have launched this
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application. The Applicants sought that the Court grant the application. The
Respondent maintained that the application should be dismissed.
[45] The applicants seeks relief in the form of an interdict prohibiting the defamatory
comments from being perpetuated by the Respondent and interdicting the
Respondent from commenting on the Applicant, the office held by the Applicant and
any political organization to which the Applicant would be affiliated to, in future.
[46] The Applicant had set out in detail, motivation for the relief sought for protection by
way of the interdict, as well as seeking a formal apology for the harm caused by the
defamatory comments. The Applicant has a right to have his name and reputation
protected and not to be accused unjustly, by false unsubstantiated allegations, which
are defamatory. The Applicant had a real apprehension of irreparable harm if this
application was not granted.
[47] When weighing up the submissions made , concerning the prejudice to be suffered it
was noteworthy that the balance of convenience favours the Applicant. The
Applicant highlighted that he does not have an adequate alternative remedy, due to
the irreparable harm, that is envisioned, if this application was not granted. The
Court order was the necessary relief to protect his rights and would serve to ensure
that the Respondent did not persist with this conduct in future.
[48] The Applicants have made out a case for approaching the Court on an urgent basis
for protection and relief. However, the Court takes cognisance of the fact that the
Respondent and Applicant are both involved in this project, for the restoration of the
School. Certain of the prayers sought by the Applicant as contained in the Notice of
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motion and the Draft Court order was exceptionally wide and could lead to
misinterpretation and unenforceability. This would result in an order that was not just
and equitable, in the circumstances, to all the parties.
[49] Prayer 2 reads, "the Respondent is interdicted and restrained from posting/supplying
any information pertaining to the Applicant on Facebook group chats conducting
radio and newspaper interviews and any other social media."
Prayer 8 reads, " the Respondent is interdicted and restrained from making
reference to the Applicant and the Ward Councillor's office, office of the African
National Congress Regional Secretary and or Makhuduthamaga Local Municipality
whether indirectly or directly.
[50] The wording of both these prayers are extremely wide as it would prevent the
Respondent from for example, introducing the Applicant at a meeting, or reporting
back on a meeting, where the Applicant or the various organizations were present.
The purpose sought for the protection was in relation to defamatory comments made
and same should rightly be afforded the Applicant, but this protection must be seen
in context and in the interest of justice. This protection cannot be so wide that it
frustrates the administration of the Offices held by both parties.
Costs
[51] The Applicant sought punitive costs on account of the conduct of the Respondent
and requested the Court to mark its disapproval by granting an order of costs on an
attorney and client scale. The Applicant argued that this order would ensure that the
Applicant be indemnified, and not be out of pocket, in respect of the expense
involved in him having to litigate.
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[52] The Applicant indicated that the Respondent's motives were vexatious reckless and
malicious, or frivolous, or that he had acted unreasonably in his conduct of the
litigation, or that his conduct was in some way reprehensible.7
[53] The Respondent sought the dismissal of the application with costs. This Court notes
that costs follow the successful party and is in the discretion of the Court. I find no
merit to justify a punitive cost order as sought by the Applicant.
Order
[54] In the result I make the following order;
[54.1] In terms of the provisions of Rule 6(12) the normal requirements pertaining to
the rules and formalities in respect of timelines are dispensed with and this
matter is found to be urgent.
[51.2] The Respondent is interdicted and prohibited from making false and
defamatory statements about the Applicant with specific reference to the
manner in which the Applicant conducts himself in his professional and or
personal life.
[51.3] The Respondent is prohibited and interdicted from making false and or
defamatory comments and or opinions about the Applicant via radio and
newspaper interviews, posting on Facebook, group chats or any other social
media.
[51.4] In the event that the Respondent fails to comply with the abovementioned
orders, the Applicant shall be entitled to approach the Honourable Court, on
7 Erasmus, Superior Court Practice, Vo/ 2 on page D5-22
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the same papers duly supplemented, for an order of contempt of Court, and
committing the Respondent for a period of thirty (30) days imprisonment.
[51.3] It is declared that the allegations made concerning the Applicant, Selege Paul
Diketane posted on Facebook group On the Block News dated the 15
September 2024, Radio Turf news dated 17 September 2024, Sunday World
newspaper article dated 22 September 2024 and subsequent live radio
interviews on Capricorn FM and Thobela FM are defamatory and false.
[51.4] The Respondent is ordered to publish a retraction of the opinions and or
comments , made by him and publish an unconditional apology on the
abovementioned social media pages, newspaper articles, radio interviews,
SGB meeting and commun ity meeting within a period of ten (10) days from
date of this order.
[51.5] The Respondent is ordered to pay the costs of the application on party and
party scale B.
PILLAY AJ
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO DIVISION,
POLOKWANE
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APPEARANCES
FOR THE APPLICANT : Adv M Bresler
INSTRUCTED BY : Tlhasi Attorneys INC
FOR THE RESPONDENT : Adv D Chuene
INSTRUCTED BY : K N Maleka Attorneys INC
DATE OF HEARING : 15 October 2024
DATE OF JUDGEMENT : 1 November 2024