2
where she was in long-term treatment for a chronic and likely incurable form
of cancer. The respondents said that they made their allegations public in order to induce MMS to break-off his relationship with HK’s daughter.
2 I refused MMS relief because there were material and irresolvable disputes of
the fact about whether the claims the respondents had made about MMS were
true.
3 In this application for leave to appeal, Ms. Strathern, who appeared for MMS,
conceded that I had correctly identified these factual disputes. Ms. Strathern nonetheless sought to persuade me that a court of appeal might reasonably reverse my judgment. As far as I could discern, that contention was advanced
on two bas es.
4 First, it was suggested that the fact of the publications themselves was not in
dispute. A final interdict had to follow, Ms. Strathern submitted, because I
found that the publications were prima facie defamatory, and because the
respondents had not set up a defence to the claim that the publications were defamatory.
5 It is true that the publications MMS complained of were not in dispute. It is
equally true that the publications were, on their face, defamatory. However, the truth of the content of the publications was hotly disputed. Ms. Strathern criticised the respondents for resisting a final interdict in restraint of defamation
by asserting the truth of their publications without specifically referring to a
defence of which the truth is a component . Without reference to such a
defence, Ms. Strathern submitted, an interdict had to be granted.
3
6 I think that is plainly wrong. Pleadings and affidavits are about facts. It is
perfectly permissible to plead the facts that would sustain a defence to a claim,
including a claim of defamation, without also specifically labelling that defence in the pleading or affidavit itself. But even if that were not so, I cannot see on
what basis I could determine MMS’ entitlement to interdictory relief without being able to make final factual findings about whether what the respondents said about MMS was true. The disputes on the papers precluded me from doing so.
7 What is more, MMS must have known that the respondents were bound to
dispute his contention that their allegations about him were false. In those
circumstances, the proper course was to dismiss the application. That does
not leave MMS without recourse. MMS is now free to seek relief by way of trial
action, but there is no basis to suggest that a court of appeal would find itself
able to determine his entitlement to final relief in circumstances where there are irresolvable and material disputes of fact on the papers.
8 Secondly, Ms. Strathern argued that even if all of the facts alleged by the
respondents were accepted as true, a final interdict should still have been granted. It was not argued a quo that I should determine the case on that
basis. Even if it were, I do not accept that a final interdict could have been sustained if I were to accept that the respondents’ version that MMS had paid
HK’s daughter for sex; that MMS’ money had been used to sustain her drug
habit ; and that HK’s daughter was in long term treatment for a chronic and
likely incurable form of cancer.
4
9 The claim for injurious falsehood could not have been sustained, because the
respondents’ claims would have to be accepted as true. The defamation claim
would have to fail because it cannot have been wrongful for the respondents to publish true facts about a man who had paid HK’s daughter for sex in a manner that funded her drug habit. The harassment claim would have to fail because it could not have been unreasonable for the respondents to publish these true facts in circumstances where their publication was intended to
induce MMS to leave HK’s daughter alone. I see no prospect of a court of appeal finding otherwise.
10 For all these reasons, the application for leave to appeal must fail.
11 The parties also addressed me on my finding that MMS had failed to disclose
a text message sent to him on 28 November 2020 in his ex parte application
for interim relief before Strijdom AJ. I deal with the message and its materiality
in paragraphs 12 and 13 of my judgment a quo. Ms. Strathern accepted that
the message was not disclosed, but argued that the failure to disclose it was
immaterial to MMS’ entitlement to relief ex parte. It was submitted that the
immateriality of the non-disclosure was a further basis on which my judgment could be challenged on appeal. The respondents supported my finding that the non -disclosure of the message was material, and that the ex parte order
could not be sustained as a result.
12 I do not think it is necessary to consider whether there is any prospect that a
court of appeal would differ with my conclusion on this point. The materiality or otherwise of the non-disclosure ultimately makes no difference to MMS’ prospects on appeal. If the non -disclosure was material, but MMS had