IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 16255/2024
In the matter between:
MOREBOYS MUNETSI Applicant
and
BETTER KUDAKWASHE MADHUYU
First Respondent
KYLIE TONSANI Second Respondent
Coram: Acting Justice P Farlam
Heard: 31 July 2024
Delivered electronically: 6 August 2024
JUDGMENT
FARLAM AJ
[1] The applicant (Mr Munetsi) has approached this Court as a matter of urgency
seeking interdictory relief, an apology and punitive costs in the light of the
respondents’ publication on social media platforms of the applicant’s personal
information and material which is alleged to be defamatory of him.
[2] The respondents, who are unrepresented, have opposed this matter and
delivered virtually identical answering affidavits, in which they advanced
justifications for the publication s and also sought to press their own claims
against Mr Munetsi (seeking compensation of R1 ,000,000.00 for “trauma he
has caused us from previous attacks as well as this recent attack”, as well as
an order that Mr Munetsi “never again in any form contact us directly or
indirectly, never to mention our names in whatever setting and finally to issue
an apology publicly to us on all his social media platforms”).
[3] When this matter was first called in the urgent court on the morning of
Wednesday, 31 July 2024 for the purposes of scheduling heari ng times , I
asked the first respondent (Mr Madhuyu), who also spoke on behalf of the
second respondent (his wife), whether they were persisting with their
opposition to the prayer for the removal of the video (published some two
weeks before, on 17 July 20 24) which had caused Mr Munetsi offence , and a
prohibition on the respondents broadcasting the applicant’s personal
information. Mr Munetsi stated , without apparent hesitation, that he had no
objection to removing the offending video , and thus, too, the sc reenshot from
the video disclosing Mr Munetsi’s phone number, from Facebook. However,
when the application was called again later in the morning, Mr Madhuyu
informed me that he and his wife had reconsidered and were no longer willing
to remove the post and video of their own accord in the light of the impact that
this would have on their business and their own complaints against
Mr Munetsi. It accordingly became necessary after all to hear the application
on its merits.
[4] The consideration of this matter was complicated by the defects in the cases
sought to be presented by both sides. In this regard:
4.1. The annexure to the applicant’s founding affidavit, which was said to
show a picture of the applicant together with his cell phone number,
was effectively unreada ble, and despite my having alerted the
parties to the defect after receipt of the papers, the applicant never
remedied that problem – though, fortunately for him, the respondents
came to his aid by annexing a legible copy of the screenshot to their
answering affidavit. The video (showing a “live broadcast”) of which
the applicant complained more generally was moreover in good part
in Shona, and, even though I also drew the applicant’s attention to
this problem prior to the set -down date , I was only provided with
what purported to be a translation by an unspecified person (based
on what was stated to be a video of a video with less than clear text)
in a supplementary practice note filed by the applicant’s attorneys;
and as that did not constitute admissible e vidence, no reliance could
be placed upon it.
4.2. The respondents’ affidavits (which, as I have mentioned, were
almost identical ) did not , for their part, address the applicants’
averments. The allegations made by the respondents in answer –
which largely consisted of background information , apparently
designed to demonstrate that the applicant had undermined their
business and that they were therefore justified in taking retaliatory
steps against him – furthermore did not, by and large , pertain to a
recognised defence to a defamation claim or a claim for breach of
privacy (albeit that they sometimes alluded to potentially relevant
facts).
4.3. As mentioned in paragraph [2] above, the respondents also sought
to advance their own claims against the applicant in their answering
affidavit. However, as I advised the respondents, if they had wanted
to claim relief against the applicant, they should have brought a
counter-application, which the applicant could have answered . The
respondents’ claims were anyway either not susceptible to
consideration in application proceedings, or capable of being
sustained on the allegations made in the answering affidavit, insofar
as they were competent at all. I shall therefore not address the
respondents’ own claims further, except to mention that should the
respondents still want to seek relief against the applicant, they
should bring separate proceedings , which, save in the event of
urgency, would probably have to be brought by way of action, not
application, in the light of the kind of relief sought and the allegations
on which the respondents would need to rely in support thereof.
[5] I now turn to consider the applicants’ case, which, as mentioned, was
effectively unaddressed in the respondents’ affidavits.
[6] The first substant ive prayer sought by the applicant (after a prayer seeking
condonation for bringing the matter as one of urgency) was an order that “the
Respondents be and are hereby interdicted from broadcasting the Applicant’s
personal information and to immediately rem ove the live broadcast published
on 17 July 2024 from all their social media platforms”. There are two
components of this prayer, which require separate consideration: (1) whether
the respondents should be interdicted from broadcasting the applicant’s
personal information (and more particularly his cell phone number); and
(2) whether the respondents should be directed to remove from their social
media platforms the “live broadcast” uploaded on 17 July 2024.
[7] The applicant’s complaint about the publication o f his cell phone number on
the respondents’ social media platforms , in the body of the video, involved an
allegation that the respondents had breached the Protection of Personal
Information Act, 4 of 2023 (POPIA), as well as the right to privacy (entrenched
in s 14 of the Constitution), although both contentions were framed in general
terms, and for example without reference to any particular provision of POPIA
other than the definition of “ personal information” in section 1 thereof (which,
as the applicant’s counsel pointed out, includes the “telephone number” of an
“identifiable, living, natural person”).
[8] I agree that the respondents have breached POPIA by publishing the
applicant’s telephone number on their social media platforms (and Facebook,
in particular). That breach was moreover aggravated by the first respondent
requesting the viewers of that post in their video to “ask [the applicant] what it
is that [the applicant] wanted from [the respondents]”, apparently resulting in a
deluge of telep hone calls to them. Section 11(1) of POPIA stipulates that
personal information (as defined) may only be “processed” in certain specified
circumstances, none of which is applicable here. The term “ processing” is
defined in section 1 of POPIA as including, in relation to personal information,
“dissemination by means of transmission, distribution or making available in
any other form”. By making the applicant’s cell phone number publicly
available on social media, the respondents thus breached section 11 of
POPIA.
[9] Publishing someone else’s personal cell phone number on social media
platforms with a large viewership (the first respondent was stated to have
advised the applicant that he had 67,000 followers on Facebook and 33,000
on Tiktok), and requesting that viewers call the person in question to promote
the interests of the person who had published the cell phone number also
involves a breach of the common -law right to privacy. Whether or not the
applicant’s phone number may already have been available on som e other
platform (as I understood the first respondent to contend) does not detract
from this.
[10] The applicant is accordingly entitled to an order that the respondents remove
any video or message containing the applicant’s picture and cell phone
number from their social media platforms and an interdict prohibiting them
from publishing the applicant’s personal information without his consent in the
future. (The prayer sought by the applicant in this regard was simply to the
effect that the respondents be “inte rdicted from broadcasting the Applicant’s
personal information”, but the gist of what is sought appears to be better
captured by the formulation in the first sentence of this paragraph, which
could competently be granted under “further and or alternative relief”.)
[11] The prayer for the immediate removal by the applicant of the video published
(or uploaded) on 17 July 2024 was also sought on the basis that the video
contained defamatory allegations about the applicant. As alluded to above,
however, a problem th at the applicant had in this regard was that the video
was in good part in Shona and there was no admissible translation before the
Court. The applicant was accordingly constrained to rely on general
allegations in his founding affidavit as to what the video contained.
[12] As the answering affidavit did not take issue with the contents of the founding
affidavit, the applicant’s allegations in this regard were essentially
uncontroverted. However, even on their own terms, the majority of the
allegations failed t o sustain a case for defamation against the respondents,
as, while they may have upset the applicant, they were not defamatory, given
that they could not reasonably be regarded as likely to undermine the
applicant’s good name or reputation . It was not for example defamatory to
state that the applicant “did not like them or their content and would therefore
never work with them”; nor that the respondents “had never approached [the
applicant] to work with them, or to solicit [the applicant’s] help”; nor that the
applicant “had contacted the First Respondent while he was in Johannesburg
having lunch with [the applicant’s] client, Mr Nyathi, and proposed a business
venture, additionally requesting the address of their hotel so that we could
meet there”. It was a lso not defamatory for the first respondent to have
“claimed that [the respondents] had no issue with [the applicant’s] client,
Mr Nyathi, and that their contention was solely with [the applicant]”.
[13] The high-water mark of the defamation claim was the alleg ation that the video
broadcast had accused the applicant of being an “evil person and a liar”,
something which, I was informed, was particularly detrimental to someone like
the applicant who had a business providing insurance and funeral services,
including the repatriation of bodies. The respondents admitted that the second
respondent had called the applicant “evil” in the video, but said that they had
already apologised for that. The respondents also admitted that they had
called the applicant a liar, but said that this was true, and thus justified on this
basis (although the justification ground is not only truth, but a substantially
true statement in the public interest , and the public interest in the slur was
less clear).
[14] It is unnecessary to analyse wh ether it was warranted for the respondents to
call the applicant a liar, as it is sufficient for the applicant’s defamation
complaint that it is common cause that the video (“live broadcast”) published
on 17 July 2024 on the respondents’ social media platf orms referred to the
applicant as “evil” – an unquestionably defamatory allegation, which the
respondents did not attempt to justify.
[15] Given the extent of the respondents’ social media profile, and the number of
viewers of their Facebook pages, there was moreover a sufficient
apprehension of irreparable harm to the applicant’s reputation for him to seek
the removal of the video by way of an interdict (even apart from his
entitlement to seek the removal of the video as a result of it discl osing his cell
phone number). 1 I also agree that there was no adequate alternative relief
available to the applicant, as the possibility of a damages claim would be of
little consolation.
[16] The applicant also contended that the balance of convenience was in his
favour, as the harm that he was suffering as a result of the offending video far
outweighed any inconvenience that the respondents might experience in the
event of being ordered to remove it. I agree that , were the balance of
convenience enquiry to be relevant, it would favour the applicant. (Indeed, it
was difficult on the papers to understand what the respondents would lose at
this point from removing the video (and thus, too, the screenshot disclosing
the applicant’s personal information) from their social media platforms. )
However, as the applicant is seeking a final interdict, not an interim one,
balance of convenience considerations do not arise and so need not be
addressed.
1 The Supreme Court of Appeal has confirmed in EFF and Others v Manuel 2021 (3) SA 425 (SCA)
para [111] that an interdict (whether interim or final) can be sought in respect of the publication of
defamatory statements.
[17] As noted at the start of this judgment, the applicant also sought a public
apology. This apology was req uested as a result of both “the defamatory
statements and the unauthorized disclosure of public information”.
[18] I am not aware of an apology being a competent remedy for a violation of
privacy, or a breach of POPIA. 2 The recognised remedies for that unlawf ul
conduct would be damages or an interdict. I also anyway regard the interdict
which is sought, and will be granted, in relation to the unlawful publication of
the applicant’s personal information as sufficient to address that wrong.
[19] While an apology can be ordered in response to the publication of defamatory
matter, it appears from EFF v Manuel that the question of whether “ an order
for an apology should be made is inextricably bound up with the question of
damages”,3 and thus cannot be made in isolation of a damages claim. There
is also authority in this Court expressly to that effect. 4 In any event, the only
defamation that has been proved by the applicant was the second
respondent’s remark that he was “evil”, and the respondents have already
apologised for that, as this judgment mentions. In my view, that should suffice.
[20] Turning finally to costs:
20.1. The applicant has been substantially, though not entirely, successful.
The interdictory relief sought in prayer 2 of the notice of motion was
2 The Constitutional Court has held th at an apology can be an appropriate remedy for an injury to a
person’s dignity ( Le Roux v Dey (Freedom of Expression Institute & Restorative Justice Centre as
amici curiae) 2011 (3) SA 274 (CC) para [150, [202]-[203]). However, in this matter, no case has been
made out on the affidavits for a violation of the applicant’s dignity.
3 EFF v Manuel supra para [128].
4 Hartland Lifestyle Estate (Pty) Ltd and Another v APC Marketing (Pty) Ltd and Another
(6831/2023) [2023] ZAWCHC (13 June 2023) para [101]. Cf, too, Jacobson v Finch (18830/2020)
[2023] ZAWCHC 115 (22 May 2023) para [55], where it is recorded that the applicant sought
damages coupled with an order directing the publication of the respondent’s apologies on Facebook.
the most important relief, and the one on which almost all of the time
was spent in argument. The applicant is accordingly entitled to his
costs.
20.2. The applicant is not, however, in my view, entitled to the punitive,
attorney and own client costs he has sought. Nor has th e applicant
made out an adequate case in his founding affidavit for any costs
order other than a party and party one. The applicant ’s costs
argument was essentially to the effect that he is entitled to costs as
“vindication” for his constitutional rights a nd the respondents’
unlawful conduct. The applicant has however essentially succeeded
with claims founded in the common law and a breach of statute,
rather than a constitutional claim (albeit that his common -law claims
are infused by constitutional values and rights ). In any event, a
breach of a party’s rights, whether constitutional or otherwise , does
not justify an a ttorney and client (or attorney and own client) costs ;
something more has to be shown. T he vindication that a successfu l
applicant receives is also in the normal course in the obtaining of the
substantive relief sought , together with party and party costs . In
order to obtain an attorney and client (or attorney and own client)
costs award, the applicant would have had to sh ow that the
respondents had acted vexatiously , or done something else which
would warrant a show of special judicial disapproval. The applicant
has not met that burden in this case.
20.3. The applicant’s counsel did not attempt to make out a case for
counsel’s c osts to be awarded on a scale other than Scale A, as
contemplated in rules 67A and 69 of the Uniform Rules of Court.
That scale anyway seems appropriate.
[21] I accordingly make the following order:
1. Condonation is granted to the applicant for non -compliance
with the ordinary rules relating to forms and timeframes, and
the matter is enrolled as one of urgency.
2. The respondents are directed to remove the live broadcast
published on 17 July 2024 from all their social media platforms,
and also remove any vide o or message containing the
applicant’s picture and cell phone number from such platforms ,
as well as refrain from publishing the applicant’s personal
information without his consent.
3. The respondent is to pay the costs of the application on a party
and party basis, with counsel’s costs being taxed on Scale A.
_________________________
ACTING JUDGE P FARLAM
For applicant: Adv Isiah Mureriwa
Instructed by: S E Kanyoka Attorneys (Pretoria) c/o PVW Inc. Attorneys, Observatory
For respondents: Mr Madhuyu (in person)