REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 10638/2023
In the matter between:
NELSON MANDELA UNIVERSITY (“NMU”)
FIRST APPLICANT
DR. SIBONGILE MUTHWA
SECOND APPLICANT
-and-
ISAAC MATOMELA DIALE RESPONDENT
REASONS FOR JUDGMENT
BRESLER AJ:
Introduction:
[1] Earlier this morning this court granted final interdictory relief in favour of the
Applicant. What follows are the reasons for the said order.
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
…………………….
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DATE: 13 November 2024 SIGNATURE………..……………
[2] On the 2 nd day of August 2024, this Court granted an interim order with the
return date being the 13 th of November 2024. This order was gra nted in the
presence of the Respondent.
[3] The Applicant now applies for a final order in the following terms:
3.1 That the Respondent be interdicted and restrained from:
3.1.1 making, disseminating or publishing any false, defamatory
allegations regarding the Applicants or any of the functionaries
or employees of the First Applicant, either directly or indirectly;
3.1.2 posting or publishing any information or statements pertaining
to the Applicants on, inter alia, X, Twitter, Facebook, HelloPeter
or any other social media platform.
3.1.3 Communicating directly with:
(a) The Second applicant.
(b) Any of the First Applicant’s functionaries or employees.
3.1.4 addressing any correspondence to the Applicants other than for
such purpose as is directly and bona fide related to his
academic record at the Applicant.
3.2 That the Respondent be ordered to pay the costs of application, such
costs to include the costs of counsel in respect of Part A and the costs
of two counsel in respect of Part B.
[4] The Respondent opposed the application, and his opposing affidavit was
accordingly delivered on or about the 14 th of February 2024. Further
documentation and correspondence w ere delivered by the Respondent ,
including but not limited to the Supplementary affidavit and Heads of Argument,
after the granting of the rule nisi which documentation was duly considered by
this Court. The Respondent attended t he proceedings in person and extensive
submissions were made as to why the interim order should not be made final.
[5] The Applicants’ version is the following:
5.1 The Nelson Mandela University (the First Applicant) conducts business
as an institute for Higher Education and organ of state in Port Elizabeth.
The Second Applicant is the Vice Chancellor of the First Applicant, its
most senior executive officer, public representative and torch-bearer.
5.2 The Respondent, a former student of the First Applicant, has engaged
in a smear campaign of publishing and distributing abusive and
defamatory statements regarding the First Applicant, the Second
Applicant, and the of fice bearers and employees of the First Applicant
over an extended period of time.
5.3 It is the Applicants ’ case that the statements are false and defamatory
of the Applicants. It is furthermore submitted that it has the
consequence of inciting racial division and instability on the First
Applicant’s campus.
5.4 According to the Applicants , the Respondent’s actions manifested in
many ways, including but not limited to the sending of derogatory
threats and emails to staff members and defaming the First Applicant.
Several examples of these communications were provided to the court
as part of the Founding affidavit.
5.5 On the 21 st of October 2023, the Respondent opened a criminal case
against the First Applicant alleging inter alia that the First Applicant ‘sent
gangsters to kidnap [him] and steal the devices [he] had on [him]. In
addition, he also contacted a news outlet, ‘The Insight Factor’ to publish
his allegation under the proposed headline: ‘Student Opens Case
against Racist Landlords’.
5.6 On or about the 22 nd of October 2021, the First Applicant served the
Respondent with a Notice in terms whereof the Respondent was
charged with several instances of misconduct.
5.7 Subsequent hereto, the conduct of the Respondent only escalated.
Various harmful, defamatory and threatening statements were made by
the Respondent on social media pla tforms and emails were circulated
by the Respondent to various individuals at the First Applicant, including
but not limited to the Second Applicant. Remarks include the allegation
that the Second Applicant is a ‘weak leader’, a ‘weak VC’, ‘a coward’
and an ‘Ugly non-progressive Vice Chancellor’.
5.8 The disciplinary hearing continued after the Respondent entered a plea
of not guilty. As a result of the hearing the Respondent was suspended
until he submitted a psychological assessment report from a private
practitioner, confirming that he is mentally fit to return to the First
Applicant and to attend to his disciplinary hearing. As no assessment
was lodged, the Respondent’s enrolment with the First Applicant lapsed
at the end of the 2021 academic year.
5.9 During the course of October 2022 to January 2023, the Respondent
embarked on a further smear campaign on various social media
platforms claiming inter alia:
5.9.1 He was kidnapped, tortured and intimidated by and on behalf of
the First Applicant for weeks.
5.9.2 The First Applicant stole his laptop, phone and tablet.
5.9.3 The Second Applicant ignored his ‘plight’ and issued orders to
suspend him without hearings taking place.
5.9.4 Racism by the First Applicant and gangsterism acting in concert
with the First Applicant.
5.10 All of these statements were made publicly over the internet and could
be and were in fact viewed by thousands of persons around South
Africa and globally.
5.11 On or about 2 February 2023, a letter was addressed to the
Respondent by the Applicants’ attor neys demanding inter alia that the
withdraws all the previous adverse statements made by him, that he
apologises for publishing false, misleading and defamatory statements
about the First Applicant and that he undertakes not to publish any
false, misleading and defamatory statements about the First Applicant.
5.12 On or about the 1 st of August 2023, the Respond ent confirmed receipt
of this letter of demand. He thereafter resumed his campaign of making
adverse claims and allegations against the First Respondent. The
allegations are in line with the previous attacks to the extent that he
persisted in claiming be ing kidnapped and tortured and that he was
suspended without any hearing , all in an elaborate endeavour to cover
up the alleged racism prevailing at the First Applicant . Hereafter
numerous further comments were left on publicly accessible media
platforms.
5.13 On the 9 th of October 2023 a further letter was addressed to the
Respondent by the attorneys of the Applicants, enquiring as to the
address where service will be accepted. This only resulted in the
further publication of derogatory statements and threatening email
communications aimed at the Second Respondent.
5.14 As a result of the ongoing repetitive, wrongful, unlawful and intentional
publication of the abusive communications, both the First and Second
Applicant has been damaged in their good name and reputation and are
suffering ongoing damages to their reputations.
5.15 After the grant ing of the order, the Respondent persisted with his
actions – numerous e-mails were sent, most of them of a defamatory
and threatening nature. The Applicants thus submitted that they are
entitled to the relief prayed for.
[6] The Respondent’s version is briefly the following:
6.1 He persists with the allegation that he was suspended without a
hearing.
6.2 He submits that the statements that he is publishing are not false. He
alleges that the Applicants are merely endeavouring to suppress this
information, and as a consequence infringing his constitutional rights.
6.3 After being discharged from hospital in June 2023, the Respondent re -
applied for admission to finalize his qualification. This was refused. He
was not able to provide a medical report as it was expensive, and he
was unable to afford the said medical services. In his view this is
tantamount to being summarily expelled. He has since been able to
consult with a medical professional and a psy chological report was
made available to the court and the Applicants.
6.4 The Respondent states that Prof. Jeanine Kruger threatened to change
his marks for reasons unknown to him. This increased his distrust in
the First Applicant.
6.5 The derogatory and threatening statements in the Respondent’s emails
were made out of frustration stemming from multiple white racist staff
members at the First Applicant constantly threatening to ban him from
classes, celebrating and making jokes about hi s academic exclusion in
2018, coupled with his experience off campus with his Ocatvia Boshoff,
being his landlord, and with other racist white landlords in
Summerstrand.
6.6 He admits having sent emails to staff members who mocked him when
he was academically excluded, and threatened to ban him from classes.
He furthermore briefly explained that two male , coloured individuals
grabbed him and attempted to put him in the back of a minibus. They
failed by managed to steal his bag with his electronic device s. These
devices contained documented evidence on the Applicants hence their
endeavour to kidnap the Respondent in broad daylight.
6.7 As the First Applicant has disabled his email services, he does not have
access to emails where staff members confessed and apologized for
their racial tendencies.
6.8 The Applicants’ want to destroy the Respondent’s life for calling them
out on the racism in and around their campus.
6.9 During the hearing on even date, the Respondent conceded that ‘some’
of the statements were indeed derogatory and threatening. He
furthermore conceded that he has made remarks in the heat of the
moment and because of his ever-present frustration with the Applicants,
which statements should not have been made. He again reiterated that
they are prohibiting him from pursuing his chosen career as they are
refusing him access to continue his studies.
6.10 During the hearing this Court highlighted to the Respondent that his
frustration with the Applicants is evident from the papers before court .
This however does not entitle him to insult and threaten them.
Appropriate relief should be pursued by means of a judicial review and /
or the internal appeal procedures of the First Applicant. Although the
Respondent has shown appreciation for the fa ct that a person cannot
spread false and / or derogatory remarks, he remained adamant that his
version is the truth and that the truth needs to be told to warn the
general public of the dangers of attending the First Applicant.
[7] It stands to be noted that the Respondent was presumably unrepresented when
he compiled the affidavit and to this date he remains unrepresented . At the
previous hearing he was invited to obtain legal representation, and the Court
went so far as to call upon a notable and well-known senior practitioner in court,
to assist him during the hearing. Today, the Respondent was still
unrepresented. When invited to obtain legal representation, he first indicated
that he req uires the services of an attorney and then opted to continue
representing himself.
[8] Be that as it may, his affidavit is riddled with hearsay and very little of substance
has been conveyed as to the alleged truth of the statements published by him.
Today again, he persisted in his view that the information conveyed by him was
the truth. This, however, do not explain the repeated insults and threats that
was voiced against the Applicants. These comments and remarks are
inexcusable and by no means can be seen as the ‘truth’ or ‘in public interest’.
[9] Of particular importance is the statements made by the Respondent that:
9.1 ‘the derogatory and threatening statements in the emails were made out
of frustration…’
9.2 ‘[he]…vented about the racism internalized at NMU…’
9.3 ‘… a string of emails from myself composed and send while frustrated
and under the influence of alcohol.’
[10] It is common cause between the parties that the Respondent did convey the
information complained about and that publi cation took place. It is furthermore
common cause that the Respondent had the intent to injure the reputation of the
First and Second Applicant.
[11] The Applicants need to show that the publication of the statements was
wrongful. The Respondent may dispel wrongfulness by pr oving either
truthfulness or public interest1.
[12] Having regard to the Answering affidavit delivered by the Respondent and the
further submissions made in court , the Respondent has failed to prove, on a
balance of probabilities, that the statements are either the truth, or in public
interest.
1 Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) and National Media
Limited v Bogoshi 1998 (4) SA 1196 (SCA)
[13] In Khumalo and Others v Holomisa2 the Constitutional Court stated that:
‘…law of defamation seeks to protect the legitimate interest individuals
have in their reputation. To this end, therefore, it is one of the aspects of
our law which supports the protection of the value of human dignity’.
[14] In Le Roux v Dey 3 the requirements for a successful defamation action were
stated to be the following:
‘[84] … In Khumalo and Others v Holomisa this court stated that the
elements of defamation are ‘(a) the wrongful and (b) intentional ( c)
publication of (d) a defamatory statement (e) concerning the plaintiff’.
[85] Yet the plaintiff does not have to establish every one of these
elements to proceed. All the plaintiff has to prove at the outset is the
publication of defamatory matter concerning himself or herself. Once the
plaintiff has accomplished this, it is presumed that the statement was both
wrongful and intentional. A defendant wishing to avoid liability for
defamation must then raise a defence which excludes either wrongfulness
or intent. Until recently there was doubt as to the exact nature of the
onus. But it is now settled that the onus on the defendant to rebut one or
the other presumption is not only a duty to adduce evidence, but a full
onus, that is, it must be discharged on a preponderance of probabilities. A
bare denial by the defendant will therefore not be enough. Facts must be
pleaded and proved that will be sufficient to establish a defence.’
[15] In as far as the Respondent does not deny that the statements were made, and
more specifically that they were made with the intention to cause harm to the
reputation of the First and Second Applicant, this Court is satisfied that the
2 2002 (5) SA 401 (CC)
3 2011 (3) SA 274 (CC) at 84
Applicants have met the requirements for final interdictory relief.
[16] It is quite evident that the Respondent fails to appreciate the error of his ways.
The issue before court does not concern the lawfulness of the termination of his
studies with the Applicant. This must be addressed through the appropriate
forum. The only issue that the court must d etermine is if the final interdictory
relief should be granted. Those requirements have been met.
[17] The judiciary is expected to uphold the Laws of South Africa without fear of
favour. The Respondent has endeavoured to influence the decision of this
Court by means of repeated threats both prior to the hearing of the matter and
thereafter. The Responden t will be well advised to reconsider his approach.
Justice cannot be enforced by fear or intimidation.
[18] As a consequence of the aforesaid, the order set out herein after was granted
subsequent to the hearing of the matter.
Order:
[19] In the result the following order is made:
19.1 The interim order granted on the 2 nd day of August 2024 is hereby
made final.
19.2 The respondent is interdicted and restrained from:
19.1.1 making, disseminating or publishing any false, defamatory
allegations regarding the Applicants or any of the
functionaries or employees of the First Applicant, either
directly or indirectly;
19.1.2 posting or publishing any false or defamatory information
or statements pertaining to the Applicants on, inter alia, X,
Twitter, Facebook, HelloPeter or any other social media
platform.
19.1.3 Communicating directly with:
(a) The Second applicant.
(b) Any of the First Applicant’s functionaries or
employees save in respect of communication as
contemplated in prayer 19.1.4.
19.1.4 addressing any correspondence to the Applicants other
than for such purpose as is directly and bona fide related
to his academic record at the Applicant.
19.2 The Respondent is ordered to pay the costs of application, such
costs to include the costs of two counsel where so employed on
Scale B.
M BRESLER
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE PLAINTIFF : Adv. T Bruinders SC
INSTRUCTED BY : MC Botha Incorporated
mc@mcbotha.law
lauren@mcbotha.law
FOR THE RESPONDENT : In person
INSTRUCTED BY : In person
Isaacdiale45@gmail.com
Isaac_diale@yahoo.com
blessingmotlatso@gmail.com
dialeisaac45@gmail.com
DATE OF HEARING : 13 November 2024
DATE OF JUDGMENT : 13 November 2024