THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 285/2024
In the matter between:
FRANCOIS JURIE NICOL AAS (C OIS) HARMAN APPELLANT
and
PIETER HENDRIK STRYDOM RESPONDENT
Neutral C itation: Francois Jurie Nicola as Harman v Pieter Hendrik Strydom
(285/2024) [2025] ZASCA 108 (18 July 2025)
Coram: MOTHLE , WEINER and SMITH JJA and VALLY and NORMAN
AJJA
Heard: 14 May 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email, publication on the Supreme Court of Appeal website and
released to SAFLII. The date and time for hand -down of the judgment is deemed to be
11h00 on 18 July 2025.
Summary: Constitutional law – section 34 of the Constitution of the Republic of
South Africa, 1996 – audi altarem partem – whether the court a quo ignored the principle
of audi altarem partem by granting an order of a final nature in an ex parte application –
whether the appellant’s rights in terms of the provisions of s 34 of the Constitution were
violated – whether the final order is moot – whether the interim orders were overbroad.
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_______________________________________ ____________________ ________
ORDER
_______________________________________ ____________________ ________
On appeal from : North West Division of the High Court, Mahikeng (Djaje DJP, sitting
as court of first instance):
The appeal is dismissed with costs , including costs of two counsel.
_______________________________________ ____________________ ________
JUDGMENT
_______________________________________ ____________________ ________
Mothle JA ( Weiner and Smith JJA and Vally and Norman AJJA concurring)
Introduction
[1] The Constitutional Court i n Botha v Smuts and Another1, dealing with a dispute
that arose from messages posted on a Facebook account , expressed the following
view: ‘This case centres on the intersection between the right to privacy, including
where information is already in the public domain, and the right to freedom of
expression. These issues play out within the larger context of social media’s
ascendancy and the digitalisation of information. ’ This view resona tes with the issues
raised in the appeal before this Court.
[2] On 1 July 2022, Mr Pieter Hendrik Strydom (Mr Strydom), the respondent in
this appeal, lodged an urgent ex parte application in the North West Division of the
High Court, Mahikeng (high court) . The relief sought was for an interdict against the
appellant , Mr Francois Jurie Nicolaas (Cois) Harman (Mr Harman) , an estate agent
and farmer in Zeerust, North West . Mr Harman holds an account on a social media
platform known as ‘Facebook ’.
[3] The high court , per Petersen J, found that Mr Harman and his friends and
followers of his Facebook account , posted and published offensive, and life -
threatening defamatory statements of and concerning Mr Strydom . Some of the
1 Botha v Smuts and Another [2024] ZACC 22; 2024 (12) BCLR 1477 (CC); 2025 (1) SA 581 (CC)
para 2.
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postings were found by the high court to amount to a smear campaign. The high court
in paragraph 2 ordered Mr Harman to remove the published material from his
Facebook account , which referred to Mr Strydom , his employees and business
associates. Mr H arman was further ordered , in terms of paragraphs 3 and 4 to submit,
under oath, a list of the particulars of the persons who made the postings.
[4] Paragraphs 3 and 4 were interim orders , stated as such in the form of a rule nisi
in paragraph 5, with a return date of 4 August 2022. On 2 August 2022, two days
before the return date , Mr Harman delivered his answering affidavit. Consequently,
Peterson J extended the return date to 13 March 2023 . On that date, the learned
Deputy Judge President (DJP) Djaje , after hearing argument by the parties, confirme d
the interim orders . This appeal is against th e DJP’s confirmation of the rule nisi.
Background facts
[5] The background facts, briefly stated, are as follows. Mr Strydom is an attorney
and insolven cy practitioner, practicing as such under the name and style of Strydom
and Bredenkamp Attorneys in Pretoria. Their clients include the Land and Agricultural
Development Bank o f South Africa (Land Bank), and its financial agent, Unigro
Financial Services (Pty) Ltd (Unigro). The Land Bank and Unigro advance loans to
farmers, subject to agreed terms and conditions, which includes mortgaging their
farms as collateral . The loan agreement s provide for annual instalment payment s of
the amount loaned, due to seasonal harvest of the agricultural crops . Whenever a
farmer falls in default of payment, the Land Bank instructs its attorneys, in this case,
Mr St rydom’s law firm, to institute legal proceedings to recover the debt. Included
among the farmers was Mr Harman and his company, Redlex 321 (Pty) Ltd (Redlex ),
on behalf of which he stood surety for its loans from the Land Bank.
[6] Mr Harman had personally secured a loan from the Land Bank but fell in to
arrears in the annual instalment payments . The Land Bank sued him and Redlex for
an amount of R4 336 730.63 , being the outstanding balance of the loan. Redlex was
unable to pay its debt and was finally liquidated on 11 July 2019. On 15 May 2020, the
Land Bank, represented by Mr Strydom, obtained judgment against Mr Harman for an
amount of R3 038 624.46 plus interest . Mr Harman took to his Facebook account ,
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charging that Mr Strydom and some officials in the Land Bank were the cause of his
problems , in that they were acting unethically and impartially. This posting was
followed by others who , in support of Mr Harman , directed vitriolic statements at
Mr Strydom.
[7] On 29 June 2022, Mr Strydom obtained a protection order from the Magistrates
Court for the District of Ts hwane Central , Pretoria, in terms of s 3(2) of the Protection
from Harassment Act 17 of 2011 (the protection order) . The protection order was in
the form of an interdict against Mr Harman, prohibiting him from committing verbal
abuse through electronic communication of and concerning Mr Strydom; refraining
from contacting Mr Strydom directly and indirectly; as well as refraining from
committing psychological harassment or abus ing him. The return date for this order
was 1 August 2022.
[8] The following day, a messenger from Mr Strydom’s office, accompanied by two
police officers, arrived at Mr Harman’s house to serve him with the protection order.
Mr Harman denied them entry into his house and instead photographed them. After
they left, he again took to his Facebook account on the same date, with a posting,
together with photographs of the police officers and the messenger. An excerpt from
Mr Harman ’s second long message , posted in Afrikaans, started with the following
words translated into English and submitted to this Court:
‘Cois Harman
54 minutes ago
“This morning I was visited by two heavily armed policemen and a frightened official from Henk
Strydom’s office in Pretoria to serve me with a Harassment order. It seems the truth hurts.
After all, he enjoys chasing the farmers from their farms with his mafia so that they can live
like squatters with children or friends. I will never forget when I made a payment to Unigro in
March 2018 and I phoned Ernst Janse van Rensburg of Unigro/Afgri to tell him about my
payment. He was on his way to the Cape for the long weekend a nd he said, talk quickly to
Henk. It was Henk Strydom. He greeted me and said, “We are en route to the Cape to visit
farmers to knock them about ”. It was a strange reaction and I must say it did not impress me
at all. Little did I know that it was a team to be reckoned with in destroying the lives of farmers
in SA. I met many farmers in my capacity as property agent that wished to sell farms to get rid
of his threats and tactics. Many times farmers phoned me late at night, full of fear, anxious to
5
sell their farms as soon as possible. I talked to many of them for hours on end so that they did
not lose courage. Many were at the point of suicide. I am thankful for each person that we
could help to get through the drift …”.’2
[9] On the same day, Mr Harman’s Facebook post was followed by a slew of other
vitriolic postings from different persons (colloquially referred to on social media as
‘doxxing ’) and directed at and concerning Mr Strydom . Some of t he postings contained
expletives and racist comments , insult s and threats on Mr Strydom’s life . Mr Harman
occasionally added some comment s in-between. There were numerous postings ,
almost all in Afrikaans . Some of these postings with pictures, translated in to English
for the Court , read as follows:
‘Koos Theron - Thank you for exposing these criminals
Wessel Kok – F… him up ![expletive]
Elsa Krüger - How absolutely offensive and despicable. I hope the bully’s whining will come to
an abrupt halt.
Bobbie Scott - Uncle Cois, step on them
Suzette Schoeman van Rooyen - Oh, where are we going that you’d rather step on others.
Trying to steal from whites and get them off their farms. It is a shame
Stephen H Sutherland - This is how hundreds lost their homes to sit with enormous debt... our
own white bastards sit behind this... ask me... my property development was sold for R10 000
by a white sheriff... yes, you read it right
Dodds Pringle - Does Afriforum or Solidariteit know about this and what is their reaction
Faan Pansegrouw - Dodds Pringle, now what should the sheriff do? He is only doing his job
and must execute the court order.
Len Coetzer - The legal system is run and manipulated by a lot of lawyer thieves... it is only
the legal profession that can represent people and then they drag out the case as long as
possible at extremely high prices... if you win your case, you just have …
Leon A Van Zyl - Where can I get hold of the little Strydom man?
Cois Harman - Leon, his office is in Pretoria. Strydom and Bredenkamp Attorneys. He was
also the Krion lawyer.
Stephan le Roux - Leon A Van Zyl, agree. Have only found one good lawyer in my life. The
rest, well, no commen t
Judd Sullivan – F… c…[expletives]
2 Emphasis in the original.
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George Swanie Swanepoel - Waste
Fred Rowe -Rowe - Good luck Cois, the wheels shall turn
Heini Lourens - Bad white pus licker !
Mike Kruger - These white bastards that lick arse with the black power . MAY he drop dead as
soon as he colludes with them. That is why this country is in such a mess, because of this
type of white men traitors and the love for a person of another colour...You are being used dirt
bag... Give him gas .
…
Matthys Johannes Gouws Matthys - Eliminate him he is a Honda traitor
Piet Maherry - Let’s make Henk equal
Adriaan Venter - Put his photo on Facebook then everybody knows him too
Tom Moodie - Every dog has his day!
Johan Smalberger - Place a photo of him so that everyone can see him please, there are
thousands that do not like his way of doing
Adriaan Venter - Place his photo. My 4 000 friends and followers want to see what he looks
like.
Gerald Swanepoel - Needs a bullet between the eyes. ’ (Emphasis added .)
[10] As mentioned, Mr Strydom , offended by the threats on his life and the smear
campaign against him, approached the high court on an application for urgent relief.
On 1 July 2022 , presiding judge, Petersen J , made an order containing six paragraphs ,
of which paragraphs 2, 3, 4 and 5 are central to this appeal. Paragraphs 1 and 2 read
as follows :
‘1. THAT this application be heard in camera, on extremely urgent basis, and that the
applicant’s failure to comply with ordinary rules related to time periods and service of the
application, as well as the applicant’s failure to comply with practice directives that govern the
ordinary enrolment of u rgent applications be condoned in terms of Rule 6(12).
2. THAT the respondent be ordered, forthwith, and within one hour of service of a Court Order
on the respondent by sheriff and/or email and/or personally messenger of the applicant or his
representative, to remove any and all media (“the media”), in any format whatsoever on any
platform, whether electronic, virtual or otherwise, which has been authored, disseminated
and/or made publicly available by the respondent or on the respondent's behalf or on the
respondent's instruction, of a nd concerning the applic ant, his firm, his employees or any other
7
party who engages with, associates with or conducts business with the applicant, from public
domains, irrespective of the nature of the public domain(i.e. in print or virtual) ….’
[11] On 13 March 2023, the high court, per Djaje DJP, initially made an ex tempore
order and thereafter delivered its written reasons for the order on 8 June 2023. This
order in part, repeated paragraphs 3 and 4 of the similar order granted in the urgent
application on 1 July 2022. Mr Harman unsuccessfully lodged an application for leav e
to appeal in the high court. It is with leave of this Court, granted on 28 February 2024
on petition against the judgment and order of Djaje DJP, that the appeal is before us.
Issues to be decided
[12] The issue s to be decided in this appeal are two-fold. First, whether in granting
the relief sought in the ex parte application , the urgent court denied Mr Harman his
right to be heard, (the audi alteram partem attack) . Second, whether paragraphs 3 and
4 of the order (ostensibly interim order s) granted by the urgent court and confirmed by
Djaje DJP as final, were overbroad and incapable of compliance .
[13] Before dealing with th ose issue s, it is necessary to put this appeal in context.
In the petition for leave to appeal submitted to this Court , the subsequent notice of
appeal and the appellant’s heads of argument , it is stated explicitly that the appeal is
against ‘the whole of the judgment and order handed down on 13 March 2023 by the
Honourable Justice Djaje DJP …’. However , these documents are replete with grounds
of attack , directed at the judgment and order of Petersen J , for which no leave to
appeal has been sought nor granted . With this context in mind, I turn to deal with the
audi alteram partem attack.
The audi alteram partem attack
[14] Mr Harman contends, based on s 34 of the Constitution , that Petersen J in
considering and granting Mr Strydom’s ex parte application on 1 July 2022 , breached
his constitutional right to be heard . He argues that paragraph s 2, 3, 4 and 5 of the
order are final interdicts in effect . His argument in this regard is not correct. A plain
reading of p aragraph 5 of Petersen J’s order , properly understood, indicates that
paragraphs 3 and 4 were interim interdicts, returnable on 4 August 2022 . When
Mr Harman delivered his answering affidavit on 2 August 2022, it was in response to
8
the rule nisi in paragraph 5. This implies that he was aware that the hearing on the
return date, was not an appeal, but for confirmation or discharge of the rule nisi .
[15] It is correct that paragraph 2 of Petersen J ’s order was granted on an ex parte
basis and was final in effect. Further, it is also correct, that paragraphs 3 and 4, read
with paragraph 5, were interim orders . That being said, in my view, and for the reasons
that follow, Petersen J ’s order does not remotely breach Mr Harman’s s 34
constitutional right to be heard .3 Mr Harman’s contention is contrived and misplaced ,
as his rights were, at all material times , adequately protected in the following manner :
(a) First, if one accepts, as Mr Harman contends, that the orders were final in effect,
it was open to him to appeal against them . All he had to do was deliver an application
for leave to appeal in terms of s 17 of the Superior Courts Act 10 of 2013 . To date,
Mr Harman has not done so. This is evident from the notice of appeal filed in this Court ,
stating explicitly that h e sought and obtained leave to appeal against the order of Djaje
DJP dated 13 March 2023 .4 As it will appear below, paragraph 2 of Petersen J’s order,
remains extant. Consequently , he ha d adequate protection of his right to be heard,
which he never exercised .
(b) Second, there is no law or authority which excludes the jurisdiction of a
high court, seized with an urgent ex parte application, to adjudicate issues raised in
such application. Where an urgent court considers and grant s relief in an ex parte
application, any person whose rights are affected by such an order may apply for its
reconsideratio n. This would entail the deliver y of a notice of set down in the same
urgent court that granted the order, for an expedited hearing to reconsider the order .
This unique protection, provided for in Rule 6(12) (c), serves to cure any possible
breach of the s 34 constitutional right to be heard. The Rule provides: ‘A person against
whom an order was granted in such person’s absence in an urgent application may by
notice set down the matter for reconsideration of the order ’.5 It is an in -built urgent
reconsideration , for which no timeframes are prescribed and no prior leave from the
3 Economic Freedom Fighters and Others v Manuel [2020] ZASCA 172; [2021] 1 All SA 623 (SCA );
2021 (3) SA 425 (SCA) para 111. See also Munetsi v Madhuyu and Another (16255/2024) [2024]
ZAWCHC 209 (6 August 2024) par a 15.
4 Emphasis added.
5 Emphasis added.
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court is required. It also protects a respondent against having to comply with the order,
at least not before the respondent, against whom the order is granted, is heard.
Mr Harman did not avail himself of this simple remedy.
(c) Third, i f, according to Mr Harman’s contention, Petersen J had erred in granting
the order with final effect, he (Mr Harman) could have lodged an application for
rescission of the order in terms of Rule 42 , as it was granted in his absence. He did
not file such application. Instead, Mr Harman acted unlawfully and disingenuously , by
includ ing in his notice of appeal to this Court , paragraph 2 of Petersen J’s order , as
one of the ground s of appeal against the order s of Djaje DJP of 13 March 2023 .
Djaje DJP did not confirm paragraph 2 of Petersen J’s order.
(d) Fourth, the contention that Mr Strydom was abusing the court process when he
instituted the proceedings in the high court on 1 July 2022, is misplaced. Mr Harman
first posted material concerning Mr Strydom on his Facebook account . As a result,
Mr Strydom approached the magistrate court for an interdict , protecti ng him against
harassment. When the magistrate’s order was served on Mr Harman on 30 June 2022,
he thereafter, in contempt of the protect ion order, posted material for the second time
on his Facebook account . This conduct , on the part of Mr Harman, caused Mr Strydom
to approach the high court on 1 July 2022. Therefore, Mr Harman’s conduct, is the
cause of the subsequent high court proceedings.
(e) Fifth, a final interdict granted on an urgent basis , cannot be read and
understood in isolation. It is essential to consider the context in which it was granted.
The order was obtained by way of urgency, implying that the non -compliance with the
ordinary rules relating to application proceedings , was condoned. Paragraph 1 of
Petersen J ’s order , worth repeating, stated explicitly that ‘this application be heard in
camera, on an extremely urgent basis, and that the applicant’s failure to comply with
the ordinary rules related to time periods and service of the application, as well as the
applicant’s failure to comply with the practice directives that govern the ordinary
enrolment of urgent applications be condoned in terms of Rule 6 (12) ’. That paragraph
clearly conveys a sense that Petersen J considered the application to be e xtremely
urgent , having regard to the imminent threat s to Mr Strydom’s life, a s posted on
Mr Harman’s Facebook account . (Own underlining .)
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(f) Sixth , after Petersen J granted the final interdict (paragraph 2 ) Mr Harman
chose to comply with it. He removed references to Mr Strydom on his Facebook
account. He , however , argues that his reason for complying was that he had only one
hour to do so . This argument has no merit , in that had he exercised any of the remedies
stated in paragraphs (a) to (c) above, the se would have had the effect of suspending
the obligation to compl y with the order . Mr Strydom , in his heads of argument submits,
correctly so, that by complying with paragraph 2 of the order of Petersen J, Mr Harman
effectively rendered any complaint concerning the impact of paragraph 2, moot.
[16] Consequently, there is no merit in Mr Harman’s contention that paragraph 2 of
Petersen J ’s order , since it was final in effect, is impermissible in law and amount s to
abuse of court processes. This Court, in Economic Freedom Fighters and Others v
Manuel ,6 held that an interdict (whether interim or final) can be sought in respect of
the publication of defamatory statements. The ground of appeal against paragraph 2
of Petersen J’s order, in addition to being unlawfully included in the record of this
appeal , is meritless and for reasons stated above, falls to be dismissed. I turn to the
second ground of appeal, which concern s Djaje DJP ’s order .
Djaje DJP’s order
[17] On 13 March 2023, Djaje DJP granted the following order:
‘1. THAT : Paragraphs 3 and 4 of the Order of this Court dated 1 July 2022 is confirmed as
follows:
(3) The Respondent [Mr. Harman] is ordered, forthwith upon service of this order on him ,
to furnish a complete list (“the list”) to the Applicant’s attorney of record wherein the
Respondent discloses the full names, addresses and contact details of each and every
person/institution with whom/which he shared, or to whom he sent or made available by
any me ans, any of the media referred to in paragraph 2 of the Order dated 1 JULY 2022,
of and concerning the Applicant [Mr. Strydom], his firm, his employees or a ny other party
who engages with, associates with or conducts business with the Applicant;
(4) The list referred to in the preceding paragraph must be accompanied by an affidavit
deposed to by the Respondent wherein he confirms:
(4.1) that the list is complete and accurate in all respects;
6 Economic Freedom Fighters and Others v Manuel [2020] ZASCA 172; [2021] 1 All SA 623 (SCA);
2021 (3) SA 425 (SCA) para 111.
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(4.2) that it represents a true and accurate reflection of all the individuals and
institutions with whom the Respondent shared, or to whom he sent or made available
by any means, any of the media referred to in prayer 1 above of and concerning the
Applicant, hi s firm, his employees or any other party who engages with, associates
with or conducts business with the Applicant;
2. THAT: The respondent is ordered to pay the costs of the application on the scale as
between attorney and own client;
3. THAT: If reasons for the order are required, same should be requested within 10 days of
this order.’
[18] In his answering affidavit, Mr Harman raises several defences, which are as
follows:
(a) He was ‘unable to comply with the order [to provide the list] , as he did not have
the full particulars of all the relevant persons, which he is required to provide, and he
is not entitled to divulge such personal information (had he been in a position to do so )
due to the implications of the Protection of Personal Information Act 4 of 2013, read
with s 14 of the Constitution’ . He did not elaborate on this defence ;7
(b) The exercise of freedom of expression in terms of s 16 of the Constitution ; and
(c) The statements he posted on his Facebook concerning Mr Strydom, were true
and made for the purpose of starting a public discourse concerning the conduct of
Land Bank officials and legal representatives, allegedly involved in a scheme to
deprive farmers of their farms, (the truth and public benefit defence) .
[19] Only the issues in (a) of the preceding paragraph of this judgment, are relevant
for this appeal. The others , in paragraph s (b) and (c), would be relevant to a
defamation claim, which is not the subject of this appeal. Paragraphs 1 and 2 of the
DJP’s order concerns the compiling and verification under oath, of the particulars of
persons who posted material on Facebook . Some of the names appear in the excerpt,
quoted earlier in this judgment. Those postings were made by individuals connected
to Mr Harman on his Facebook account, who as account holders and followers may
access each other’s information .
7 Emphasis added.
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Compliance with the court order
[20] Mr Harman does not, in the first place, inform the Court of any attempts he
made , to compile the list . Starting with himself , as he also posted messages on his
Facebook page , surely, he must know his name, address and cellular phone number .
Second, in paragraph 33 of his answering affidavit, Mr Harman admits that he has
‘certain Facebook friends who see postings made by myself as well as postings shared
by third parties on my Facebook page ’. He does not explain how it would be possible
to have friends whose names , at the very least, he does not know. Third, he refers the
Court , vaguely to ‘the Protection of Personal Information Act 4 of 2013 (POPIA), read
with s 14 of the Constitution ’, as sources of authority that ‘he is not entitled to divulge
such personal information ’, without pointing to the specific provisions on which he
relies . The orders are not overbroad, as he contends.
[21] Mr Harman asserts excuses as defen ces. He contends that the orders are
overbroad, without first having attempted to compile the list . The information is sought
as per court order, and unless it is demonstrated by reference to a specific provision
in the POPIA or the Constitution that the court has no jurisdiction to grant such order ,
he has to obey it. Moreover, Mr Harman has not presented any cogent reason as to
why he is unable to comply with this order. This ground of appeal is equally meritless
and also falls to be dismissed.
[22] Neither s 14 of the Constitution nor any provision of POPIA, protects a person
who posts defamatory material of and concerning another, on a social media platform.
To post a message on Facebook that someone ‘ needs a bullet between the eyes ’, is
impermissible exercise of freedom of expression .8 The right to freedom of expression,
like all rights, has limits. The one obvious limit of a right is when its exercise
encroaches or intrudes into the domain of another person’s right.
[23] Having regard to the content of the Facebook postings of and concerning
Mr Strydom, his right to personal safety from harm and loss of life were threatened .
His right s to dignity as a person , and to his reputation as a professional, were assailed .
He is entitled to the list of persons responsible for these unlawful acts , in order to
8 Emphasis added.
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vindicate his rights , if he deems it fit to do so . Therefore, the appeal must fail and the
costs should, in this instance, follow the result.
[24] Accordingly, I make the following order:
The appeal is dismissed with costs , including costs of two counsel.
_________ ________
S P MOTHLE
JUDGE OF APPEAL
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Appearances
For the Appellant : F G Janse van Rensburg
Instructed by: Hurter Spies Inc, Pretoria
Hendre Conradie Inc. , Bloemfontein
For the Respondent : S Tsan garakis with A J Schoeman
Instructed by: JI Van Niekerk Inc ., Pretoria
Van Wyk Preller Attorneys , Bloemfontein .