REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023 -053714
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
SAMUEL BANELE MBIZA FIRST APPLICANT
THE RELEVATION SPIRITUAL HOME SECOND APPLICANT
and
ABONGILE TIMATI RESPONDENT
27 JUNE 2025
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JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail and uploading it onto the electronic platform .
The date and time for hand -down is deemed to be 1 4h00 on the 27th of
JUNE 2025.
DIPPENAAR J:
[1] The first applicant , Mr Mbiza , is the spiritual guide and founder of the second
applicant , the Revelation Spiritual Home , which was founded in 2009 . He acts as spiritual
guide to members of the second applicant in the practice of African Indigenous
Spirituality. The respondent, Mr Timati, is a former member of the second applicant.
[2] The genesis of the applicat ion lies in an order granted by Shepstone AJ in the
urgent court on 21 June 2023. In terms of the order, the respondent was interdicted and
restrained from inter alia disseminating directly and indirectly injurious falsehoods
regarding the applicants, pending the outcome of Part B of the applicat ion. Costs were to
be costs in the cause. In Part B , the applicants seek final interdictory relief against the
respondent. It remains pending and has not yet been determined.
[3] In this contempt application, t he applicant sought orders: (1) declaring the
respondent to be in contempt of the order granted on 21 June 2023 by Shepstone AJ; (ii)
that the respondent be committ ed to prison for a period of t hirty days or such period as
deemed just and equitable by the court , alternatively , the suspension of the committal
order for a period of one year on condition that the respondent complies with the order of
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21 June 2023 pending the finalisation of part B of the application and that the respondent
removes the posts made on social media, i ncluding on Facebook against the applicants
after 21 June 2023; and (iii) costs.
[4] The respondent sought the dismissal of the application, disputing that he was in
contempt or in breach of the conditions imposed by the contempt order during the
suspension pe riod. He contended that the application was enrolled prematurely as Part
B had not yet been heard and that the application could not be determined on the papers,
but required oral evidence.
[5] The following issues require determination: (i) Condonation for th e late delivery of
the answering and replying affidavits respectively. (ii) The various points in limine raised
by the respondent, being (a) purported non -compliance with the rules pertaining to
service; (b) purported non -compliance with the ‘Electronic Transmission and
Communications Act’, (c) purported non -compliance with the Justices of the Peace and
Commissioner of Oaths Act 16 of 1963 ( ‘the COA Act ’) and (d) purported non -compliance
with the rules.
[6] It is apposite to deal with the ancillary issues firs t. Regarding condonation,
condonation is sought by the respective parties for the late delivery of respectively their
answering and replying affidavits. T he respondent’s explanation for his delay was stated
in scant and terse terms, and broadly centered ar ound his lack of availability due to being
in the Eastern Cape attending family matters. He did not provide a detailed explanation
for the entire period of the delay. The delay was not extensive and did not cause any real
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prejudice to the applicant. Despit e the deficiencies in the respondent’s explanation, seen
holistically, it is in the interests of justice for condonation to be granted.1
[7] It is also in the interests of justice that condonation to be granted to the applicants
for the late delivery of the ir replying affidavit. The delay in delivery of the replying affidavit
was by and large occasioned by the defective way in which the respondent delivered the
answering affidavit by simply uploading it onto the electronic platform. Neither of the
parties cont ended for prejudice and it is clear that ultimately, no prejudice was suffered
by any of the parties and the administration of justice was not unreasonably delayed.
[8] I turn to the points in limine raised by the respondent. The respondent’s contention
that t here was non -compliance with the rules pertaining to service, lacks merit. The
application was served on the respondent’s attorney and the Sheriff served the
application on the respondent personally, albeit that the respondent alleged that the
service addr ess was no longer his residential address. That averment is in contrast with
his attorney’s advices to the applicants’ attorney and is incongruent with the return of
service. The respondent’s version that there was no personal service of the application
on him stands uncorroborated. He did not put up any evidence to gainsay the return
provided by the Sheriff, which must be accepted absent cogent facts to the contrary.2
[9] Regarding the alleged non -compliance with the Electronic Transmission and
Communication s Act, that Act does not exist. That was not disputed by the respondent in
argument. It appears that the respondent was referring to the Electronic Communications
and Transactions Act 25 of 2002 (‘the ECTA’). The challenge raised relates to the
1 Van Wyk v Unitas Hospital and Another ( Open Democratic Advice Centre as Amicus Curiae ) 2008 (2)
SA 427 (CC) para 20; Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC)
para 23.
2 Interactive Trading 115CC v South African Securitisation Programme 2019 (5) SA 174 (LP) para 14.
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admissibili ty of certain screenshots annexed by the applicant s to their founding affidavit.
Those screenshots reflect the offending posts made by the respondent on Facebook.
[10] Section 1 of the ECTA defines a ‘data message’ as being ‘data generated, sent,
received or s tored by electronic means and include - (a) voice, where the voice is used in
an automated transaction; and (b) a stored record’. In relevant part, s 15 provides:
(1), ‘In any legal proceedings, the rules of evidence must not be applied to as to deny the a dmissibility
of a data message in evidence -(a) on the mere grounds that it is constituted by a data message; or (b)
if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the
grounds that it is not in its original form.
(2) Information in the form of a data message must be given due evidential weight.
(3) In assessing the evidential weight of a data message, regard must be had to -(a) the reliability of
the manner in which the data message was generated, stored or communicated; (b) the reliability of
the manner in which the integrity of the data message was maintained; (c) the manner in which its
originator was identified; and (d) any other relevant factor.
(4) A data message made by a person in the ordinary cours e of business, or a copy or printout of or an
extract from such data message, certified to be correct by an officer in the service of such person, is
on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law,
the rules of a self -regulatory organisation or any other law or the common law, admissible in evidence
against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.’
[11] In applying these provisions, I am persuaded that the screenshots are admissible.
The weight to be attached thereto is determined by the factors in s 15(3). The screenshots
are of the respondent’s Facebook account. He is the author of the comments and posts
which appear thereon. A confirmatory affida vit was provided by the person who took the
screenshots, Mr Makhence, an employee of the second respondent, who monitors social
media in accordance with s 15(4) . The respondent’s averments of suspected ‘photo
shopping’ of the notice of motion which was pos ted on his Facebook page and the
comments made by him are speculative and not underpinned by any primary facts.
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[12] Considering all the relevant factors in s 15(3) , I conclude that the screenshots are
admissible and that due evidential weight should be given to them. In the circumstances,
it appears to be the best evidence the applicant could reasonably have been expected to
obtain. 3 It follows that the respondent’s challenge must fail.
[13] The respondent further challenged the competence of the translator who provided
translations of his posts and comments, which were not in the English language. Only the
translations of Ms Dubazana were challenged as no competency based certificate was
provided and on this basis the respondent argued that she was not competent . Ms
Dubazana is a sworn translator in the employ of the High Court, Johannesburg since
September 2002. She provided a certificate of translation, confirming inter alia that the
translations were true and accurate. She further provided a confirmatory affid avit. The
respondent further did not take issue with the actual interpretation of the texts which were
not in the English language but in isiXhosa, one of the official languages of South Africa.
The provisions of r 60 are thus not applicable . Considering a ll the facts, the respondent’s
challenge lacks merit.
[14] The respondent’s challenge to compliance with the Justices of the Peace and
Commissioner of Oaths Act 16 of 1963 and the regulations promulgated thereunder,
similarly lacks merit. The challenge is misco nceived and is based on matters of practice,
rather than formal requirements and erroneous submissions . At worst for the applicants
there was substantial compliance with the relevant requirements and the validity of the
affidavit has not been detrimentally affected.
[15] Lastly, the respondent raised the alleged non -compliance with the rules. It is
difficult to properly understand the complaint. It appears to be based on the contention
that as the applicant’s allegations are false, their affidavit is defective and constitutes a
3 Sebenza Shipping & Forwarding (Pty) Ltd v Passenger Rail Agency of South Africa SOC 2019 (2) SA
318 (GJ) paras 8 -11.
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nullity. The respondent in bald terms alleges that the affidavits contain ‘false information’
and the court is being misled. No cogent supporting facts were put up in support of this
proposition. The respondent’s version that the affidav it contains false information is bald,
confusing and unsubstantiated. Moreover, the complaint lacks legal substance. This point
in limine too lacks merit and falls to be rejected.
[16] I turn to consider th e merits . The issues are whether the re spondent’s four posts
referred to in the founding affidavit were made prior to or after the order ; whether those
four posts were defamatory and injurious in nature; and whether the res pondent’s conduct
regarding the posts and comments made during the period July 2023 to August 2023
amount to contempt of the order. Costs also need to be considered .
[17] The history of the interactions between the parties is set out in some detail in the
judgment of Shepstone AJ and it is not necessary to repeat it.
[18] The applicants’ case is tha t the respondent contravened the order on four
occasions , being on 12 and 13 July 2023 and 17 and 30 August 2023 respectively . The
first offending post occurred on 12 July 2023 when the respondent posted various
comments in response to a video uploaded by a Pastor Mboro of the Incredible
Happenings Church on his Facebook page on 2 July 2023. According to the applicant,
the video contained numerous false and malicious allegations made by Pastor Mboro
against the applicants. In sum, Pastor Mboro in the video contends that persons wearing
t-shirts of the second applicant had been sent to his church to kill him. Those persons
allegedly confessed that they had been sent by Prophet Samuel Radebe (who is involved
with the second applicant) to do so. Pastor Mboro fu rther stated that he had a dream of
someone telling him that the people of Revelation Church would kill him as well as making
various averments pertaining to hired killers and people fighting with Radebe w ould die.
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[19] The respondent posted that he believed everything that Pastor Mboro was saying ;
that someone confessed to him as well a nd that he knew this would happen . In a chat
between the respondent and a Mr Mbovu , the respondent commented that the applicants
have very strong backup, that the people close to the first applicant are like his hitmen
and that the first applicant has private investigators who are high within law structures.
[20] According to the applicant s, the respondent clearly supports the defamatory and
injurious remarks made by Pastor Mboro a gainst the applicants and s ought to paint the
first applicant as being a thug as well as a dangerous and intimidating individual. The
respondent in turn claim ed that these comments were made prior to the order and are not
defamatory.
[21] The second o ffending post occurred o n 13 July 2023, when the respondent posted
further defamatory remarks about the applicants on Facebook. He posted:
‘I will post the voice note that contains the comments of the Upper House members when I had a private
meeting with your leader at a certain place. Arrogance (followed by three vomiting emoji’s) . If they want
my apology they must apologi ze to me first or pour poison for me to die’.
[22] According to the applicant, by posting the three emoji ’s, the respondent intended
it to mean t hat the applicants are ugly and repulsive. The reference to Upper House is to
a group of elders within the second applicant’s structure, high up in its hierarchy. The last
sentence allegedly implies that the applicants are murderers and capable of criminal
activities. According to the respondent, the averments were not defamatory and the
applicants’ interpretation thereof was not what he communicated or intended to convey.
[23] On 14 July 2023, the applicant’s attorney sent a letter to the respondent reiterati ng
the terms of the order and advising the respondent that he was in contravention of the
order . The letter remained unanswered.
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[24] On 17 August 2023, the respondent posted the third offending comment, which
translated amount s to: ‘There is something I need t o say. I have been through situations
but I’m slippery and can’t get caught ’. Underneath it, the respondent posted the first page
of the notice of motion in the urgent application, referencing the applicants and the
applicability of the post to them.
[25] According to the applicant s, the respondent believes that there will be no
implications for his continued conduct of posting injurious statements on Facebook
against the applicants, which demonstrates his mala fides and willingness to disregard
the court o rder.
[26] On 30 August 2023, the respondent posted the fourth offending comment on
Facebook. Translated, the comment read s as follows: ‘Who own travel agency that book
buses for travelling in your church take a guess it’s the brother –in – law of Mborofeta
who is Bishop the guy whose allowed to do business. The cleaning money and it’s a
shame you don’t know’. The post elicited various responses.
[27] According to the applicant, the responses from other individuals demonstrate that
this post was made about the appli cants. Reliance was inter alia placed on a comment
from one Xolani Xman Nyoka that ‘obsession over The Revelation spiritual home
institution and leader IMboni is reaching higher height’ . One Sandile Gqoboka responded
by accusing the applicants of character assassination, bullying individuals, dividing
families and institute(sic) the death of family members are as a result of rituals performed
and implying that the first applicant has accused people of wi tchcraft and causing deaths.
According to the applican t, this evidences that the respondent’s contemptuous conduct
is inciting others.
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[28] All four of the offending posts were subsequently removed from Facebook by the
respondent. The applicants relied on screenshots taken of the said posts. The present
contempt a pplication was launched on 24 January 2024.
[29] The applicants contend ed that the respondent’s remarks were both wrongful and
injurious and were understood by readers thereof to mean that the applicants are
dishonest, involved in bullying tactics and criminal activity, are thugs, practice
unprincipled behaviour and use their influence for the benefit of family members. It was
further contended that the comments were made with malicious intent and the clear
intention of damaging the applicants’ character, reput ation and standing in the
community. According to the applicant s, there has already been a division in the
community as a result of the respondent’s conduct, which is exacerbated by the offending
posts, aimed at destroying the trust and respect of the community in the applicants.
[30] The respondent in response did not seek to put up any controverting evidence or
proffer any explanation for his comments at odds with the implications thereof averred by
the applicants in their founding papers . Instead he disp uted that the statements were
defamatory in bald and unsubstantiated terms.
[31] It was common cause between the parties that the respondent uses Facebook and
has a Facebook profile. The order in its terms was also not in dispute, nor that the
respondent had no tice of the order. It was also common cause that the respondent was
active on Facebook and made posts and comments thereon after the order.
[32] In argument the respondent contended that the application could not be
determined on the papers , but required oral evidence . The applicant s submitted the
opposite. According to the respondent, the applicant s’ claim was invalid, no proper case
was made out for relief and the applicants abused the interim order by launching the
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contempt application without merit and were misleading the court. On that basis a punitive
costs order was sought against the applicants.
[33] By and large, the respondent’s version constituted a bald denial of the applicants’
averments pertaining to the injurious nature of his posts. He denied that he made any
injurious statements against the applicants and put them to the proof thereof. He further
contended that the applicant s’ averments were based on assumptions and that there
were no posts directly or indirectly referring to the applicants. In his he ads of argument,
the phrases ‘fair comment’ and ‘privilege’ are used, without any attempt to set out the
requirements for such defences. No substantive defence was raised in the answering
papers in any cogent manner.
[34] A dispute will not be genuine if it is so far -fetched or so clearly untenable that it can
be safely rejected on the papers.4 It was incumbent on the respondent to set out evidence
controverting the applicant’s averments and to grapple therewith meaningfully. I am not
persuaded that he did so.
[35] The respondent’s version is untenable insofar as he contended that his comment
to Pastor Mboro was made on 25 May 2023. Pastor Mboro only posted his video to which
the respondent commented on 2 July 2023, after the granting of the order. Although he
disputed the date of his first offending post in his answering papers, ex facie the posts
and the facts, they were posted on the date alleged by the applicants. On the facts, the
applicant s have illustrated that the post was made on the date al leged. The respondent’s
version does not create any bona fide factual dispute on the issue and can be rejected
on the papers as clearly untenable .5
4 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) para [12] -[13]
5 Ibid.
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[36] In Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another ,6
the Supreme Court of Appea l enunciated the approach to be followed in relation to
whether disputes of fact are bona fide thus:
“The court should be prepared to undertake an objective analysis of such disputes when required to do
so. In J W Wightman (Pty) Ltd v Headfour (Pty) Ltd 20 08 (3) SA 371(SCA), it was suggested how that
might be done in appropriate circumstances. ....
A court must always be cautious about deciding probabilities in the face of conflicts of facts in affidavits.
Affidavits are settled by legal advisers with varying degrees of experience, skill and diligence and a
litigant should not pay the price for an ad viser’s shortcomings. Judgment on the credibility of the
deponent, absent direct and obvious contradictions, should be left open. Nevertheless the courts have
recognised reasons to take a stronger line to avoid injustice. In Da Mata v Otto 1972 (3) SA 858 (A) at
689 D -E, the following was said:
In regard to the appellant ‘s sworn statements alleging the oral agreement, it does not follow that
because these allegations were not contradicted – the witness who could have disputed them had died
– they should b e taken as proof of the facts involved. Wigmore on Evidence, 3 rd ed., vol. VII, p.260,
states that the mere assertion of any witness does not of itself need to be believed, even though he is
unimpeached in any manner, because to require such belief would b e to give a quantative and
impersonal measure to testimony. The learned author in this connection at p. 262 cites the following
passage from a decision quoted:
“it is not infrequently supposed that a sworn statement is necessary proof, and that, if uncontr adicted,
it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of
it, which is contrary to all reasonable probabilities or conceded facts -testimony which no sensible man
can believe -goes for nothing; while the e vidence of a single witness to a fact, there being nothing to
throw di scredit, cannot be disregarded. ”
[37] Considering all the facts, the respondent’s contention that oral evidence was
required as a result of ‘the multiple disputes of fact’, lacks merit. On th e material issues ,
the respondent’s bald denials can be rejected on the papers and do not raise bona fide
disputes of fact .
6Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another 2011 (1) SA 8 (SCA) at
paras [19] an d [20] .
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[38] The requirements for civil contempt are well settled in our law .7 These
requirements are (i) an order must exist; (ii) it must be du ly served on or brought to the
notice of the contemnor; (iii) there must be non -compliance with the order; (iv) the non -
compliance must be willful and mala fide . Once an applicant has proved the existence
and service of the order and its non -compliance, th e contemnor bears an evidential
burden to present evidence in relation to willfulness and mala fides which casts
reasonable doubt on whether his non -compliance with the order was willful and mala
fide8. Where the applicant seeks a committal order, such as in the present instance, the
applicable standard is that willfulness and mala fides must be established beyond a
reasonable doubt .9 I accept that this standard applies in the present application as the
applicants seek incarceration relief .
[39] The respondent admitted the existence and contents of the order and that he has
knowledge of th at order. His central ground of opposition was to dispute that he made
any wrongful or defamatory publications regarding the applicant s and thus to dispute non -
compliance with the order. He further disputed that his conduct was willful or mala fide .
He argued that there was a reasonable possibility that non -compliance with the order was
not wilful and mala fide.
[40] In his heads of argument, the respondent persisted w ith the submission that the
applicant’s claim was invalid and no proper case was made out for the relief sought as it
was not established that any of the respondent’s comments were defamatory. The
respondent did not deny that the comments were made. The re spondent further
contended that the first applicant is a public figure and the interdict does not make him
immune from scrutiny. He complained that restrictions were being placed on his
7 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA); Pheko & Others v Ekhurhuleni City 2015 (5)
SA 600 (CC); Matjhabeng Municipality v Eskom Holdings Ltd & Others; Mkhonto & Others v
Compensation Solutions (Pty) Ltd 2018 (1) SA 1 (CC) ( ‘Matjhabeng ’) paras 67 and 85 -88.
8 Matjhabeng supra para 63 .
9 Matjhabeng supra para 67 .
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constitutionally protected right s and the defence of fair comment appl ied. It was further
contended that the comments made by the respondent enjoy privilege. No such case was
however made out in his papers, nor were the relevant requirements of the various
defences addressed, either in the respondent’s answering papers or hi s heads of
argument .
[41] According to the respondent there was no proof that Pastor Mboro defamed the
applicants and they did not allege any defamatory information by Pastor Mboro. It was
submitted that t he first applicant is a public figure who is not immune from scrutiny and
that t he words uttered by the respondent are not defamatory by nature. He submitted that
posting the word arrogance and emoji’s vomiting does not defame the applicants. In his
heads of argument, it was submitted in a single sentence that a defence of fair comment
applies equally to the respondent’s comments. If the reports proved to be true that pastor
Mboro was threatened and promised to be beaten up or killed by people purporting to be
from the applicants’ church, nothing prevented the r espondent from voicing his opinion
fairly. It was further argued that the comments by the respondent enjoy privilege as the
first applicant is a public figure occupying the position as a priest of the church.
[42] The respondent further submitted that setting the matter down for hearing when
part B ha d not been heard was premature as a court hearing that applicat ion might come
to a different conclusion and that there are also material disputes of fact which cannot be
determined without oral evidence. On that ba sis dismissal was sought with an attorney
and client costs order. The respondent’s submissions lack merit. I have already dealt with
the alleged factual disputes issue. Whatever the ultimate outcome of Part B and whether
the applicants are entitled to a fi nal interdict against the respondent, does not detract from
the existence of the interim order granted by Shepstone AJ. That order remains extant
and enforceable.
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[43] The issue s which require consideration are first, whether the respondent’s
publications compl ained of are ‘wrongful and/or defamatory comments regarding or with
reference, directly or indirectly to the applicant s’. Put differently, whether there was non -
compliance with the order. The second issue is whether the respondent in his affidavit
cast rea sonable doubt on whether his non - compliance with the order was willful and mala
fide. These issues are considered in the context of the various statements and
publications by the respondent.
[44] Before dealing with the main issues it is convenient to dispose of the additional
issues raised by the respondent. The first is the contention that the respondent’s
statements were true and constituted fair comment. No evidence was presented by the
respondent that his statements were true. The defence of fair comment, was distilled by
Innes CJ Crawford v Albu 10 in the following terms:
'Inasmuch as it is the expression of opinion only which is safeguarded, it follows that the operation
of the doctrine must be confined to comment; it cannot protect mere a llegations of fact. It is
possible, however, for criticism to express itself in the form of an assertion of fact deducted from
other clearly indicated facts. In such case it will still be regarded as comment for the purpose of
this defence. The operation of the doctrine will not be ousted by the outward guise of the criticism
(see O'Brien v Marquis of Salisbury, 6 Times L.R., at p. 137). Then the superstructure of comment
must rest upon a firm foundation, and it must be clearly distinguishable from that foun dation. It
must relate to a matter of public interest, and it must be based upon facts expressly stated or
clearly indicated and admitted or proved to be true. There can be no fair comment upon facts
which are not true. And those to whom the criticism is a ddressed must be able to see where facts
end and comment begins, so that they may be able to see where fact ends and comment begins,
so that they may be in a position to estimate for themselves the value of criticism. If the two are
so entangled that infer ence is not clearly distinguishable from fact, then those to whom the
statement is published will regard it as founded upon unrevealed information in the possession of
10 CJ Crawford v Albu ("Crawford") 1917 AD 102 at 114. See also Democratic Alliance v African National
Congress and Another 2015 (2) SA 232 (CC) at 99 ("DA v ANC”).
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the publisher, and it will stand in the same position as any ordinary allegation of fact (see remarks
of FLETCHER MOULTON, L.J., in Hunt v Star Co., 1908, 2 K.B. at p321). Further, the comment,
even if clearly expressed as such, and based upon true facts, must be "fair" in the sense that it
does not exceed certain limits.'
[45] Although it is law ful to publish a defamatory statement which is fair comment on
facts that are true and are matters of public interest, this immunity is provisional and the
publication will be wrongful if the defendant acted with improper motive. 11 Moreover, as
stated in Farrar v Hay12: ‘where the words complained of not only attack the plaintiff's
actions as a public man, but also impugn h is honour and private integrity ’ , a plea of fair
comment will not avail as a defence.
[46] The onus is on the respondent to establish that t he facts on which his comments
were based are true or constitute fair comment. The respondent simply put up no primary
facts supporting such conclusions , nor made out any such case in his papers . This
defence , insofar as it was competent to be raised purel y in laconic terms in the heads of
argument, which is doubtful, in any event lacks merit.
[47] The second issue is that the respondent in broad terms contended that his right to
freedom of speech was impeded. No facts were put up in support of such bald and
unsubstantiated conclusion in the respondent’s answering papers nor did the respondent
properly address the issue in argument.
[48] Whilst it is correct that freedom of expression is a constitutional right13, it is not
unbridled or without limitation . Such limitati ons emanate from s 16 and s 36 of the
Constitution. Moreover the respondent’s right to freedom of expression must be the
11 Crawford supra 113 -114 and 136 -138.
12 Farrar v Hay 1970 TS 194 at 201.
13 Protected under s 16 of the Constitution
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balanced against the applicants ’ fundamental right to human dignity, which includes a
number of values including their reputation, ent renched in s 10 of the Constitution .14
[49] The respondent has, simply put, made out no case that his right to freedom of
expression has been curtailed.
[50] It is apposite to refer to the applicable principles pertaining to defamation before
considering the stat ements made by the respondent. It was undisputed on the papers
that the respondent’s statements were published on Facebook. It was further undisputed
that the first applicant was and is a spiritual leader or Imboni 15 of the second applicant,
which has an estimated total membership of approximately three million people, including
international members.
[51] It is trite that defamation is the unlawful publication, animo iniuriandi of a
defamatory statement concerning a perso n. It is equally trite that a statement is
defamatory if it has the effect of injuring a person’s reputation by lowering such person in
the estimation of right thinking members of society16.
[52] A defamation claim has three requirements, stated thus in Le Rou x v Dey17:
'[84]...ln Khumalo and Others v Holomisa ("Holomisa") this court stated that the elements of
defamation are "(a) the wrongful and (b) intentional (c) publication of (d) a defamatory
statement (3) concerning the plaintif'”
[85] Yet the Plaintiff does not have to establish every one of these elements in order to
succeed. 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 t he
14 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) 1216J -1217B; Khumalo v Holomisa 2002 (5) SA
410 (CC) 418F -419D ; South African Human Rights Commission on behalf of South African Jewish Board
of Deputies v Bongani Masuku and the Congress of South African Trade Unions [2017] 3 All SA 1029
(EqC) ("Masuku") paras [28] -[29].
15 Meaning a prophet or messenger .
16 National Me dia Ltd v Bogoshi 1998 (4) SA 1196 (SCA) .
17 Le Roux v Dey 2011 (3) SA 274 (CC) at para 84.
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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 s ettled that the onus
on the defendant 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 the defences. ’18
[53] The test for whether a statement is defamatory, is stated thus: 19
‘Where the plaintiff is content to rely on the propositions that the published statement is
defamatory per se, a two -stage enquiry is brought to bear. The first is to establish the ordinary
meaning of the statement. The second is whether that meaning is def amatory. In establishing
the ordinary meaning, the court is not concerned with the meaning which the maker of the
statement intended to convey. Nor is it concerned with the meaning given to it by the persons
to whom it was published, whether or not they be lieved it to be true, or whether or not they
then thought less of the plaintiff. The test to be applied is an objective one. In accordance with
this objective test the criterion is what meaning the reasonable reader of ordinary intelligence
would attribute to the statement. In applying this test it is accepted that the reasonable reader
would understand the statement in its context and that he or she would have regard not only
to what is expressly stat ed but also to what is implied. ’
[54] The respondent’s conte ntions that he did not make any direct or indirect reference
to the applicant s in his Facebook posts and his denial that these statements were
wrongful, do not bear scrutiny.
[55] The test whether the statement refers to the applicant s is objective; ‘would the
ordinary reasonable person to whom the statement was published be likely to understand
the statement in its context to refer to the applicant .’ 20 In my view the statement s refer
to the applicant s in such a way that they are readily identifiable21, although they are not
18 See also FDJ Brand LAWSA Volume 7 (Second edition) at 234.
19 Le Roux v Dey 2010 (4) SA 210 (SCA) paras 134 -137 and Le Roux v Dey fn 17 supra para [89].
20 Williams v Van der Merwe 1994 (2) SA 60 (E) 64; Aymac CC v Widgerow 2009 (6) SA 433 (W) at 23
21 Sauls v Hendrickse 1992 (3) SA 912 (A) 919; Williams supra 65 -66
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referred to by name. Although there was no direct reference made to the applicant s in the
posts , the order is wide enough to include any indirect reference to the applicant s.
[56] The first respondent did not in my view put up any valid defence in respect of this
claim. Measured against the relevant principles set out earlier, the respondent’s
comments meet the threshold set out in Le Roux v Dey. The comments are defamatory .
[57] In rela tion to the second offending post, I am not persuaded that the applicants
have established that it is defamatory or injurious. T he word ‘arrogance’ and the three
sick emoji’s are open to interpretation. I am not persuaded that the applicants’
interpretatio n that the applicants are ugly and repulsive is the necessary implication
thereof. For those in the know, the reference to the ‘upper House’ may denote a
connotation to the structures of the second applicant. That does not mean that such
connotation will b e made by the objective reasonable person reading the post. The
respondent’s comments regarding the apology is also open to interpretation. The
reference to poison does not necessarily connote, as the applicants contend, that the
applicants are murderers a nd capable of criminal activities.
[58] The third offending post is not per se defamatory of the applicant s. However , it
illustrates mala fide s on the part of the respondent and the willingness to disregard the
court order which was granted. It thus disrespec ts the court and the rule of law and
evidences an intention of continuing with his course of conduct. The respondent did not
dispute the post.
[59] The fourth offending post denotes a willingness by the applicants to do business
with people they are connected to. The responses referred to by the applicants, intimate
that the comments were made of the applicants, although they are not directly referenced.
Those responses further illustrate that the respondent’s commen ts incited others in
making defamatory remark s about the applicants. Again, the respondent did not dispute
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the post, nor did he attempt to offer an explanation as to what he meant thereby.
Considering the relevant test, I conclude that the post was defamatory.
[60] Having regard to the case put up by the applicants, it was incumbent on the
respondent to put up facts which illustrated a valid defence or at the very least g ive context
to his statements in the offending posts. He elected not to do so.
[61] There is in my view no reasonable doubt that the aforesai d publication s were willful
and mala fide , in contravention of the order. In applying the relevant principles to the facts,
the respondent has not put up any valid defence on any of the grounds alleged why the
statements were not wrongful and defamatory. I conclude that the comments made by
the respondent are wrongful and defamatory , save as qualified elsewhere in this
judgment .
[62] In my view, the respondent has further failed to discharge the evidentiary burden
to cast reasonable doubt on whether his non -compliance with the interdict order and the
contempt order was willful and mala fide. He has put up no cogent evidence on these
issues, other than a bald denial. It follows that he is in contempt of those orders, applying
the standard o f proof beyond a reason able doubt.
[63] At the hearing, the applicant s’ counsel made it clear that the objective of the
applicant s was not the outright incarceration of the respondent, but rather to obtain a
coercive measure to force him to comply with the orders granted against him.
[64] By his conduct, the respondent illustrated a flagrant disregard for the order of the
court granted by Shepstone AJ and a blatant disrespect for the court’s processes. From
his own posts , specifically the third offending post, it appears that he fully app reciate s the
consequences of his conduct and is willing to disregard the order as he considers himself
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to be wily and can escape the consequences of his actions . Such attitude cannot be
countenanced.
[65] As stated in Fakie NO v CCII Systems (Pty) Ltd :22
‘[6] It is a crime unlawfully and intentionally to disobey a court order. This type of contempt of
court is part of a broader offence, which can take many forms, but the essence of which lies
in violating the dignity, repute or authority of the court. The offen ce has, in general terms,
received a constitutional ‘stamp of approval’, since the rule of law - a foun ding value of the
Constitution -“requires that the dignity and authority of the courts, as well as their capacity to
carry out their functions, should alwa ys be maintained .”
[8] In the hands of a private party, the application for committal for contempt is a peculiar
amalgam for it is a civil proceeding that involves a criminal sanction or its threat. And while
the litigant seeking enforcement has a manifest private interest in securing compliance, the
court grants enforcement also because of the broader public interest in obedience to its
orders, since disregard sullies the authority of the courts and detracts from the rule of law. ’
[66] Cameron JA further cited with approval the dictum in Cape Times Ltd v Union
Trades Directories (Pty) Ltd 23, wherein it was held:
‘Generally speaking, punishment by way of fine or imprisonment for the civil contempt of an
order made in civil proceedings is only imposed where it is inherent in the order made that
compliance with it can be enforced o nly by means of such punishment ’.
[67] Willful disobedience of an order made in civil proceedings is both contemptuous
and a criminal offence. As held in Matjhabeng 24: ‘The purpose of a finding of contempt is
22 Supra at para [6] .
23 Cape Times Ltd v Union Trades Directories (Pty) Ltd 1956 (1) SA 105 N at 120D -E
24 Supra, paras [48] and [50] .
Page 22
to protect the fount of justice by preventing unlawful disdain for judicial authority.
Discernibly, continual non -compliance with court orders imperils judicial authority ’. As
stated in Fakie: ‘In the end, whatever t he applicant’s motive, the court commits a contempt
respondent to jail for rule of law reasons …’.25
[68] Given the facts, I am not persuaded that the order can only be enforced by way of
direct imprisonment at this juncture . In my view the respondent should be afforded the
opportunity to avoid incarceration by complying with the order , pending the determination
of part B of the application. The applicants had in the alternative, sought a suspended
order for incarceration on certain conditions to enfor ce compliance with the court order .
Such an order would constitute an appropriate coercive remedy in the circumstances.
Were the respondent to breach the conditions, he would be the author of his own
misfortune.
[69] It follows that the applicants are entitled to substantial relief. An attenuated order
will be granted in appropriate terms. There is no reason to deviate from the principle that
costs follow the result. In the notice of motion, c osts were not sought by the applicant s on
a punitive scale. That was raised for the first time in the applicants’ heads of argument. I
am not persuaded that such an order is appropriate . Given the issues and the
complexities involved, I am persuaded that the costs of two counsel on scale C is
warranted.
[70] In the result, the following order is granted :
[1] The respondent is declared to be in contempt of the order granted by Shepstone
AJ on 21 June 2023 under case number 2023/053714 ;
25 Fakie supra para [20] .
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[2] The respondent is committed to prison for a perio d of t hirty days, such
imprisonment to be suspended for a period of one year or the final determination of
part B of the application, whichever is the earlier, on the following condition s:
[2.1] that the respondent compl ies with the order of 21 June 2023 pending the
finalisat ion of part B of the notice of motion dated 5 June 2023 under case number
2023/053714 ;
[2.2] that the respondent permanently remove s all posts made on social media,
including Facebook , against the appli cants after 21 June 2023;
[2.3] that the respondent refrain s from making any defamatory posts on social media,
including Facebook regarding the applicants pending the finalisation of part B of the
application referred to in 2.1 above ;
[3] Should the respondent fail to comply with the cond itions in 2 above, the applicants
are authorised to apply on the papers, supplemented if necessary, for an order for the
enforcement of the suspended order in 2 above or any appropriate alternative order ;
[4] The respondent is directed to pay the costs of the application , including the costs
of two counsel where so employed, on scale C .
_____________________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
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HEARING
DATE OF HEARING : 23 APRIL 2025
DATE OF JUDGMENT : 27 JUNE 2025
APPEARANCES
APPLICANT S’ COUNSEL : Adv. C. Georgiades SC
Adv. C.J. Smith
APPLICANT S’ ATTORNEYS : Leoni Attorneys
RESPONDENT’ S COUNSEL : Adv. T. Mahafha
RESPONDENT ’S ATTORNEYS : Mulisa Mahafha Attorneys