IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
SHADRACK SIBIYA
and
PATRICIA MORGAN-MASHALE
Not Reportable
Case no: 6342/2024
Applicant
Respondent
Neutral citation: Sibiya v Morgan-Mashale (6342/2024) [2025] ZAFSHC 232 (8
August 2025)
Coram: Daffue J
Heard: 17 April 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and release to SAFLII. The date and time for hand-down is
deemed to be 1 0h00 on 8 August 2025.
Summary: Defamation - application proceedings - to obtain declaratory and
mandatory relief by way of final interdict and an apology - defences raised, to wit
repetition of information in public domain, reasonable publication and truth and public
interest - discretion of the court and factors taken into account - rule nisi discharged.
2
ORDER
The rule nisi issued on 11 November 2024, extended from time to time, is discharged
with costs, inclusive of the costs of respondent's counsel on scale B.
JUDGMENT
Daffue J:
Introduction
[1] This is the extended return date of a rule nisi issued on 11 November 2024.
The application is about the alleged defamation by a former employee of the South
African Police Service (SAPS) of a senior SAPS police officer. The alleged defamatory
statements were posted on social media platforms. Two particular issues concerned
the former employee. Firstly, the crime scene where a national soccer star, the late
Senzo Meyiwa was killed, the investigations pertaining to the killing and the evidence
in the murder trial. Secondly, the alleged receipt of bribe money by the applicant from,
or on behalf of, the infamous Mr Louis Liebenberg.
The parties
[2] The applicant is the SAPS ' Deputy National Commissioner: Crime Detection,
Lieutenant General Shadrack Sibiya, who brought the application in his personal
capacity.
[3] The respondent is Ms Patricia Morgan-Mashale, an adult female who describes
herself as a whistleblower as defined in the Protected Disclosures Act 26 of 2000 (the
Disclosures Act), presently staying in undisclosed premises. She was previously
employed as an administrative clerk in the SAPS , but dismissed in circumstances dealt
with later when an evaluation of the evidence is considered.
3
Summary of the relief granted on 11 November 2024
[4] On 11 November 2024 and whilst doing urgent court duty, I considered the
applicant's ex parte application brought on an urgent basis. I place on record that I
was prepared to hear the matter insofar I was prima facie of the view that there was
no reason why the applicant should submit himself to assaults on his dignity until the
matter was eventually heard. It is indeed correct that the applicant intended to obtain
an interim interdict pending finalisation of the application. However, as I was not
satisfied with the manner in which the notice of motion was drafted, I suggested
changes. Unfortunately for the applicant, the order that was eventually issued did not
provide for an interim interdict. Paragraph 3 of this order reads as follows:
'Pending the return date and finalisation of the matter, paragraphs 3.2, 3.3 and 3.4 (including
sub-paragraphs where relevant) shall operate as an interim interdict immediately upon the
granting of the Order.'
The order did not contain paragraphs 3.2, 3.3 and 3.4 as is the case with the notice of
motion. Therefore, the respondent did not have to comply with any terms of the rule
nisi pending the return date. I shall deal with this issue later herein when I deal with
the applicant's allegations pertaining to contempt of court.
[5] I confirm that a rule nisi was issued with return date 5 December 2024, calling
upon the respondent to advance reasons why the following order should not be made
final:
a. that the allegations contained in the statements by the respondent on social
media (the Impugned Statements) be declared unlawful and defamatory, alternatively
that these were falsely made with the intention to injure the applicant and in the further
alternative, that these violated the applicant's right to dignity;
b. that the respondent be directed to permanently retract and/or remove and/or
delete the Impugned Statements within 24 hours of receipt of the order from the social
delete the Impugned Statements within 24 hours of receipt of the order from the social
media platforms, Facebook and Twitter/X under her username;
c. that the respondent be interdicted from publishing or causing to be published
any further defamatory statements similar to that of the Impugned Statements;
d. that the respondent be ordered to publish within 24 hours from the granting of
the final relief an apology in accordance with the proposed wording attached as an
annexure to the notice of motion;
e. that the respondent be ordered to pay the costs of the application on an attorney
and client scale.
4
[6] The Supreme Court of Appeal (the SCA) confirmed in Economic Freedom
Fighters and Others v Manuel (EFF v Manue~ 1 the appropriateness of motion
procedure for interim or final interdicts on an urgent basis to prevent the publication of
defamatory statements. I quote:
'There is, of course, no problem with persons seeking an interdict, interim or final, against the
publication of defamatory statements proceeding by way of motion proceedings, on an urgent
basis, if necessary. If they satisfy the threshold requirements for that kind of order, they would
obtain instant, though not necessarily complete, relief.'
[7] I was satisfied at the stage when I granted the rule nisi that a proper case for
relief had been established. I shall deal hereunder with the requirements for a final
interdict in which case EFF v Manuel will be referred to again.
The alleged contempt of court and proceedings prior to the final hearing
[8] On the return day of the rule nisi, to wit 5 December 2024, a colleague extended
the rule to 20 February 2025. On 13 December 2024 the applicant filed an amended
notice of motion and attached thereto a supplementary founding affidavit, seeking an
order that the respondent be declared to be in contempt of court, relying inter a/ia on
the respondent's further posts and her allegations made in a podcast pursuant to the
order granted on 11 November 2024.
[9] On the extended return date, to wit 20 February 2025, serious discussions
between applicant's counsel and me pursued as the applicant moved for an order that
the respondent be declared to be in contempt of court. I was satisfied that no case had
been made out for contempt of court. The respondent did not breach the order issued
on 11 November 2024 as no interim interdict was issued, bearing in mind the wording
of the order and the discussion under the previous heading. I may just mention that
the applicant's attorneys received the court order immediately after it had been issued.
the applicant's attorneys received the court order immediately after it had been issued.
They should have detected the mistake and approached me in chambers to amend
the order, which they failed to do.
1 Economic Freedom Fighters and Others v Manuel (2020) ZASCA 172; (2021) 1 All SA 623 (SCA);
2021 (3) SA 425 (SCA) para 111.
5
[1 0] The respondent has taken issue with the fact that I was prepared to grant an
order on an urgent basis and ex parte. I was satisfied at the time that the applicant
mentioned the respondent's last known address in the papers, but also that her
physical address at the time was not known as, on her own version, she was housed
in a so-called safe house at an undisclosed address. The respondent was therefore
not physically reachable and consequently, the notice of motion could not have been
served upon her in terms of the rules of court prior to the hearing on 11 November
2024. I accept that I could have insisted that the notice of motion be published on the
social media platforms on which the respondent was and is active, but decided against
that, bearing in mind my view that a rule nisi should be issued. I deny that I mentioned
at any stage during oral argument that I was misled by the applicant as stated by the
respondent.
[11] On 20 February 2025 the respondent appeared in person. She required an
opportunity to file an answering affidavit. I extended the rule nisi to 17 April 2025 and
made appropriate further orders pertaining to filing of affidavits, heads of argument
and costs. I also ordered the respondent, to which she had no objection, to refrain
from publishing any material in respect of the applicant on any social media platforms.
I granted the order refraining the respondent to publish further material regarding the
applicant as an interim measure pending the outcome of the application.
[12] I wish to record that at the hearing on 17 April 2025 the applicant's counsel did
not pursue their argument that the respondent should be convicted for contempt of
court.
The applicant's case
[13] Although the applicant accepted that the respondent as a whistleblower may
be entitled to certain disclosures, he submitted that he is entitled to protect his good
name, reputation and integrity. I shall deal with the Impugned Statements during the
name, reputation and integrity. I shall deal with the Impugned Statements during the
evaluation of the evidence, but it is the applicant's case that they are indeed
defamatory and false.
The defences
[14] It is the respondent's case that, as a whistleblower and human rights defender,
she is entitled to report matters regarding corruption or human rights' violations to the
6
particular authorities such as the Independent Police Investigation Directorate (IPID),
the National Police Commissioner, the Minister of Police, as well as Parliament's
Portfolio Committee. She did so in these cases, so she alleged, where after she shared
the information with her followers - the public - on social media. According to her, the
information posted was already in the public domain. Therefore, she submitted, she
merely repeated the information. She insisted that the information conveyed by her on
social media are the truth and in the public interest; also that she had no intention to
defame the applicant.
Legal framework
[15] Section 16 of the Constitution guarantees the right of freedom of expression
and speech. Human dignity is also guaranteed as specifically provided in s 10 of the
Constitution. Although the SCA stated in Herbal Zone v lnfitech Technologies2 (Herbal
Zone) that freedom of speech carries greater weight than in the past, this does not
mean that the right to dignity and reputation of another person should not be
considered at all. In casu, the applicant is in principle entitled to the protection of his
dignity and reputation. In O-Keeffe v Argus Printing and Publishing Company Co Ltd
& Another3 Watermeyer AJ quoted De Villiers, the author of Injuries, with approval.
The author defined dignity as a 'valued and serene condition in [a person's] social or
individual life which is violated when [they are], either publicly or privately, subjected
by another to offensive and degrading treatment, or when [they are] exposed to ill-will,
ridicule, disesteem or contempt'. Currie and De Waal4 are of the view that human
dignity is 'perhaps the pre-eminent value.' This submission is in line with the
Constitutional Court's approach in Christian Education in South Africa v Minister of
Education5 where the court referred to the 'central constitutional value of dignity'.
[16] In the event of conflict between two competing constitutional rights, a balancing
[16] In the event of conflict between two competing constitutional rights, a balancing
act must be exercised. No right is absolute and although the right to human dignity is
regarded as a central value and even a pre-eminent value, the facts and
circumstances in each case need to be considered to establish whether the right to
2 Herbal Zone v lnfitech Technologies (2017] ZASCA 8 para 36.
3 O-Ke effe v Argus Printing and Publishing Company Co Ltd & Another 1954 (3) SA 244 (CPD) at
247.
4 I Currie and J De Waal The Bill of Rights Handbook 5th ed at 272.
5 Christian Education in South Africa v Minister of Edu cation 2000 (4) SA 757 (CC) para 15.
7
freedom of expression should be limited. More about this during the evaluation of the
evidence.
(17) The requirements to be successful in a claim based on defamation have been
authoritatively restated by the Constitutional Court in Khumalo and Others v Holomisa
as follows:6
'[18] At common law, the elements of the delict of defamation are -
(a) the wrongful and
(b) intentional
(c) publication of
(d) a defamatory statement
(e) concerning the plaintiff.'
(18] When it is alleged by the claimant that the published statement is defamatory
per se, a two-stage inquiry is conducted. During the first stage it has to be established
what is the natural and ordinary meaning of the statement and once this is established,
whether the meaning thereof is defamatory.7 The Constitutional Court stated in Le
Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice
Centre as Amici Curiae) (Le Roux v Dey) that the court must objectively determine
what meaning the reasonable reader of ordinary intelligence would attribute to the
impugned statement, whether express or implied. During the second stage of the
inquiry, the court considers whether the defamatory statement is likely to injure the
good esteem in which the claimant is held by the reasonable or average person to
whom publication occurred.8
(19] Once it has been shown that defamation exists prima facie, the onus shifts to
the other party to rebut the presumption of unlawfulness by successfully demonstrating
that their conduct was neither wrongful, nor intentional, or that they are entitled to rely
on any other competent exculpatory defence available to them. This has been
authoritatively laid down in Le Roux v Dey.9
6 Khum alo and Others v Holomisa 2002 (5) SA 401 (CC) para 18.
7 Le Rou x and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as
Amici Curiae) [2011) ZACC 4; 2011 (3) SA 274 (CC) para 89.
6 Ibid para 91.
9 Ibid para 85.
8
[20] The respondent relies on certain defences as mentioned above. I repeat these.
Firstly, she denies that she has defamed the applicant. Furthermore, the allegations
contained in her posts on social media were already public knowledge, ie she merely
repeated what was in the public domain. The publication was also reasonable and in
the public interest. She also insists that the allegations are the truth, stating there are
people who can confirm the truthfulness of her allegations and who would like to testify
in support of her defence, but who fear for their lives.
[21] In Manuel v Economic Freedom Fighters and Others10 (Manuel) the High Court
considered the defence of reasonable publication by a whistleblower, but rejected it in
the defamation context in express terms. It started its discussion in the following
words:
'The respondents contend that their conduct was reasonable because it acted in a manner
akin to a whistle-blower. They were given information from a confidential source, which they
accepted to be true, and had no reason to doubt. The Protected Disclosures Act encourages
people to report serious wrongdoing in their workplace by protecting employees who want to
'blow the whistle'. The Act lists prescribed ways of reporting wrongdoing and does not protect
people who publish their unsubstantiated defamatory disclosures worldwide.'
[22] It does not appear from the papers when the respondent was dismissed. The
various disclosures do not qualify as protected disclosures as defined in the
Disclosures Act.11 Section 9 of this Act might have been relied upon as it deals with
general protected disclosures. However, it is not the respondent's case that she was
still an employee at the stage when any of the Impugned Statements were published.
In any event, I am in agreement with the Manuel judgment that whistleblowers should
not be allowed to publish their unsubstantiated defamatory disclosures worldwide.
not be allowed to publish their unsubstantiated defamatory disclosures worldwide.
[23] Although Manuel was overruled on appeal pertaining to the issue of damages ,
the SCA, after dealing extensively with the defence of reasonable publication,
concluded as follows:
'For those reasons, whether the defence of reasonable publication is approached as a denial
of publication animus iniuriandi, or as a development of the common law along the lines
10 Manuel v Economic Freedom Fighters and Others ( 13349/2019) (2019) ZAGPJHC 157; [2019] 3 All
SA 584 (GJ); 2019 (5) SA 210 (GJ) (30 May 2019) para 61; and see also paras 62-70.
11 See ss 5-9 of the Protected Disclosures Act 26 of 2000, read with the definition of protected
disclosures.
9
indicated in Bogoshi, it could not succeed and there is no reasonable prospect of the judge's
conclusion to that effect being overturned.'12
[24) It is no defence to rely on the earlier publication of defamatory statements by
another and a mere repetition of what is already in the public domain. In Tsedu and
Others v Lekota and Another13 (Tsedu) the SCA reaffirmed that someone that
publishes a defamatory statement that was made by another is as much the publisher
of the defamation as the original publisher. Although the repetition rule still applies, as
indicated, it is subject to exceptions. The court continued in Tsedu as follows:14
'There are, of course, circumstances in which the publication of even false defamatory matter
is protected - for example, when it repeats what was said in parliament or in a court of law, or
if "upon a consideration of all the circumstances of the case, it is found to have been
reasonable to publish the particular facts in the particular way and at the particular time" - and
the fact that the defamatory matter is mere repetition might in some cases be relevant to
whether a defence of that kind will be allowed.' (Emphasis added)
[25) The applicant elected to approach the court on motion instead of instituting
action procedure. Save for the declaratory orders sought, he also seeks an apology or
retraction and even prescribed to the court the wording of the apology and where .and
how it should be published.
[26) An interdict is not a remedy to deal with past unlawful action. In terms of this
remedy an order is sought against another to refrain them from acting in a specific
manner, or directing them to perform in a particular manner. Thereby, protection is
sought against an ongoing unlawful interference, or the threatened interference of
someone's rights.15 In casu the applicant seeks both a final prohibitory as well as a
mandatory interdict. A litigant must prove the following three requirements to obtain a
mandatory interdict. A litigant must prove the following three requirements to obtain a
final interdict, to wit (a) a clear right, (b) an injury has actually been committed or is
reasonably apprehended and in this regard the injury must be a continuing one as the
court will not grant an interdict in respect of an act already committed; and (c) the
absence of any other satisfactory remedy. The court has a limited discretion to refuse
a final interdict.
12 Footnote 1 para 86.
13 Tsedu and Others v Lekota and Another2009 (4) SA 372 (SCA) para 5.
14 Ibid para 6.
15 Van Loggerenberg et al, Erasmus Superior Court Practice RS 17, 2021, D6 -1.
10
[27] In NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators16 (NBC
Holdings) the SCA stated the following:
'(29] In principle there has never been an objection to pursuing a claim for an interdict against
the future publication of defamatory matter by way of an urgent application. This court
reaffirmed that in EFF v Manuel in saying: ...
However, the entitlement to proceed in that way is constrained by the fact that in motion
proceedings, where the issue is whether the defendant has a defence to a claim based on
defamation, it cannot be decided on motion if there is a dispute as to the applicant's right to
that relief. As Greenberg J said:
" ... if the injury which is sought to be restrained is defamation, then he is not entitled to the intervention
of the Court by way of interdict, unless it is clear that the defendant has no defence."
In Hix Networking the court emphasised that this did not mean that the mere ipse dixit of the
respondent would suffice to establish a defence. It must be based on evidence.
(30] A respondent wishing to resist an interdict against the future publication of defamatory
material can do so by presenting evidence that provides a sustainable foundation for a defence
recognised in law. This may be done not only by way of direct evidence, but also by making
the case that at a trial further evidence could be procured and would be available to sustain
the defence. A plausible claim by a respondent that, with the advantage of discovery and being
able to subpoena witnesses and documents, they will be able at trial to produce evidence to
sustain their defence, will ordinarily suffice to establish the requisite foundation for the
defences raised. This is well-illustrated by the recent judgment of this court in Malema v
Rawula where, after analysing the evidence, Schippers JA concluded that:
"These facts comprise not only direct information placed before the court, but material showing other
information not in his control but potentially available at a trial in due course, such as the EFF's financial
records and documents relating to receipt of VBS funds. All these factors must be weighed up in order
to decide whether there is a dispute of fact regarding the existence of a defence."' (Emphasis added
and footnotes omitted)
[28] Plewman JA, writing for a unanimous bench in Hix Networking Technologies v
System Publishers (Pty) Ltd and Another,17 concluded that 'cases involving an attempt
to restrain publication must be approached with caution' and that 'freedom of speech
is a right not to be overridden lightly.' I accept that the facts in that case are not on par
with the facts in casu. There, the SCA dealt with an order of the court a quo, dismissing
an application for an interim interdict restraining the publication by a publisher.
16 NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators [2021] ZASCA 136; [2021] 4 All SA
652 (SCA) paras 29 and 30; the dictum by Greenberg J relied upon is from Heilbron v 8/ignaut 1931
WLD 161 at 168-169.
17 Hix Networking Technologies CC v System Publishers (Pty) Ltd and Another [1996] ZASCA 107;
1997 (1) SA 391 (SCA); [1996] 4 All SA 675 (A) at 402C-F .
11
[29] In Herbal Zone v lnfitech Technologies16 (Herbal Zone) the SCA confirmed the
principle that an interdict to prevent a party from making defamatory statements in the
future is 'only infrequently granted' as 'it impinges upon that party's constitutionally
protected right to freedom of speech.' The court recognised that in our constitutional
era freedom of speech carries greater weight than it had in the past.19
[30] In Malema v Rawula20 the SCA had another opportunity to deal with disputes
in motion procedure dealing with claims based on defamation. The court distinguished
the facts in EFF v Manuel with those in that matter. It held that Mr Rawula, the
respondent, 'laid a supportable foundation that the defence of truth and public interest
was available to be pursued.'21 The court referred to this defence and the potential
that evidence may be presented to a trial court in substantiation of the defence in the
following words:22
'The defence of truth and public interest is founded on the recognition of a right to publish a
defamatory statement which is true, where the publication is in the public interest. The facts
put up by the respondent demonstrated that the defence was available to be pursued. These
facts comprise not only direct information placed before the court, but material showing other
information not in his control but potentially available at a trial in due course, such as the EFF's
financial records and documents relating to receipt of VBS funds. All these factors must be
weighed up in order to decide whether there is a dispute of fact regarding the existence of a
defence. Since Heilbron, the position has been that a final interdict for defamation cannot be
granted unless a respondent has no defence.' (Emphasis added and footnotes omitted.)
[31] In Malema v Rawula the court also considered the risk of future publication of
defamatory statements and concluded as follows:23
'Further, as this Court has affirmed in Herbal Zone, and Tau v Mashaba, an interdict is always
'Further, as this Court has affirmed in Herbal Zone, and Tau v Mashaba, an interdict is always
directed at future conduct. If there is no risk of future re-publication by the respondent - as the
appellant seems to have accepted - an interdict will not be granted, because there is nothing
left to restrain and no risk of future injury. The high court rightly concluded that the appellant
failed to make out a case for this relief.' (Footnotes omitted.)
16 Footnote 2 para 36.
19 Ibid, para 40.
20 Malema v Rawula (2021) ZASCA 88.
21 Ibid para 39.
22 Ibid para 64.
23 Ibid para 65.
12
[32] The SCA confirmed in EFF v Manuel24 Mr Manuel's right to an interdict,
although it held that the High Court erred in granting damages. Although an apology
is an appropriate remedy for an actionable injury to a person's dignity, its forms an
inextricable part of damages and motion proceedings are not suited to prosecute such
claims.25
[33] In Tau v Mashaba and Others (Tau)26 the SCA criticised the procedure to seek
a retraction and an apology on motion. It stated the following:
'An order to retract the initial statements, to issue an unconditional apology for them and to
ensure publication of the retraction and apology, presupposes a finding that the initial
statements were defamatory of the respondent. That would involve a final determination of the
rights of the parties, which has to be made in the defamation action. Further, if such an order
were to be executed, it could not be undone: the notion of an interim retraction or apology is
untenable.'
[34] Relying on NBC Holdings and Tau, the SCA recently concluded as follows in
/RD Global Limited v The Global Fund to fight AIDS, Tuberculosis and Malaria:27
'It is now settled law that an apology or a retraction may serve the same purpose as an award
of damages in a defamation action or may be ordered in conjunction with an award of
damages.'
It also made the following point:26
' ... A trial is necessary to determine the veracity of the alleged defamatory statements and
thereafter an award can be made consisting of an apology, a monetary amount, a retraction
or a combination of same. Recently, in Ma/ema v Rawula, this Court confirmed that awards
of damages may not be claimed in motion proceedings.'
Evaluation of the evidence
[35] The respondent filed her answering affidavit with four annexures, duly marked,
with the court on 28 March 2025 as directed on 20 February 2025. She failed to serve
her answering affidavit on the applicant's attorneys before filing same with the court.
her answering affidavit on the applicant's attorneys before filing same with the court.
This answering affidavit was only served on the applicant's attorneys by email on 1
24 Footnote 1 para 111 quoted above.
25 Ibid paras 91 -127 in respect of unliquidated damages in general & paras 128 -130 in respect of
an apology; /RD Global Limited v The Global Fund to fight AIDS, Tuberculosis and Malaria [2024]
ZASCA 109; 2025 (1) SA 117 (SCA).
26 Tau v Mashaba and Others [2020] ZASCA 26; 2020 (5) SA 135 (SCA) para 17.
27 /RD Global Limited v The Global Fund to fight AIDS, Tuberculosis and Malaria [2024] ZASCA 109;
2025 (1) SA 117 (SCA) para 24.
28 Ibid para 26; the reference is to Malema v Rawula [2021] ZASCA 88 para 26.
13
April 2025. The respondent failed to attach the annexures to this affidavit. When this
was pointed out to her attorneys, the annexures were sent to the applicant's attorneys
on 4 April 2025, but these annexures were apparently not properly marked. The
applicant was advised to file a 'conditional' replying affidavit which was done. The
applicant submitted that the respondent's affidavit should be regarded as pro non
scripto and that I should disregard it in toto. He responded fully to the answering
affidavit in the replying affidavit, but if it was felt that a further opportunity should be
granted to file a supplementary replying affidavit, such relief should have been
requested. This was not done. I am satisfied that notwithstanding the improper
procedure followed, all available material which the parties intended to place before
me, served before me .
[36) I accept that people serving the public such as the applicant should accept that
they may be fiercely criticised by others from time to time. They are not immune to
criticism. However, criticism and fair comment must be considered objectively and
based on the facts in each particular case. It is just too easy for people that are active
on social media to insult others and/or to attack them in a vitriolic manner. Often, these
social media users have thousands and even millions of followers who can access the
publications within seconds or minutes. I am also mindful of the ever-increasing
tendency by some social media users to use the various platforms to crucify others.
Courts should be wary of this. In the preparation of this judgment I take cognisance
hereof.
[37] I may add that the respondent does not rely on fair comment as a defence and
consequently, I do not intend to consider this defence. It is her case that the
information posted by her were already in the public domain. Further, that the posts
were the truth and in the public interest. She submitted that she will be able to prove
were the truth and in the public interest. She submitted that she will be able to prove
the veracity of the statements during a hearing in due course. I indicated earlier that
the respondent could not rely on the Disclosures Act as a defence. However, as a
concerned citizen of this country she has a right to freedom of speech entitling her to
reasonable publication of the truth if it is in the public interest. More about this later. I
shall also keep in mind the balancing approach in dealing with the constitutional rights
of freedom of speech on the one hand and dignity on the other as mentioned above.
14
[38) The applicant elected to approach the court for a final interdict, seeking
declaratory as well as mandatory relief. The Plascon-Evans principles apply. If in
motion proceedings disputes offact arise on the affidavits, a final order can be granted
only if the facts averred in the applicant's affidavits, which have been admitted by the
respondent, together with the facts alleged by the latter, justify such an order. I am
also mindful of the following oft-quoted dictum of the SCA in National Director of Public
Prosecutions v Zuma:29
'Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be
used to resolve factual issues because they are not designed to determine probabilities.'
(39] In order to consider the evidence, the submissions of the parties and the
application of the legal principles, I deem it appropriate to quote some of the
respondent's posts verbatim. In the post of 6 March 2024 she stated:
'I got feedback from Masemola [clearly a reference to General Fannie Masemola]
regarding the new evidence. He appointed Shadrack Sibiya to meet with me. Now why would
I want to meet with Shadrack Sibiya, who tampered with the crime scene in the first place?
Masemola dropped the ball, I know what to do ... '
[40] In another post on 27 September 2024 she claimed the following:
'Shadrack Sibiya called Warrant Officer Makhubo to the crime scene on the night Senzo was
killed ... Makhubo assessed the crime scene, spoke with a few witnesses and gave his verdict
to Shadrack [the applicant]. Shadrack then called him aside and asked him to "reconstruct"
the crime scene. Makhubo refused to cook and Shadrack chased him away ... Makhubo
opened docket 375, defeating the ends of justice and perjury, including Shadrack and Gininda
as suspects. Shortly thereafter, Makhubo is arrested on charges of robbery, kidnapping and
as suspects. Shortly thereafter, Makhubo is arrested on charges of robbery, kidnapping and
extortion. After 3 years the court acquitted him of all malicious charges ... .
Shad rack made one very big mistake, he undermined Makhubo's integrity .. .
Docket 375 will be placed on the roll, no matter what and Shadrack and Gininda will stand in
the dock as suspects .... it may not be this year or even next year, but as I always say, "crime
doesn't expire".'
[41] As indicated in the posts quoted above, the respondent inter alia posted that
the applicant had tampered with the crime scene where the late Senzo Meyiwa was
killed. She relied on what was in the public domain , but also the contents of docket
29 National Director of Public Prosecutions v Zuma [2009) ZASCA 1; 2009 (2) SA 277 (SCA) para 26.
15
number CAS375. She pleaded that she was struggling to obtain the docket, which is
not a surprise as she is not entitled thereto. Furthermore, she stated that witnesses
who can corroborate her version are afraid to testify in support of her defence. The
respondent relies on the version of Warrant Officer Makhubo who opened docket
CAS375/2014. Warrant Officer Makhubo has not filed a confirmatory affidavit in
support of the respondent's version, but he is identified as the person who can confirm
that he was instructed by the applicant to tamper with the aforesaid crime scene and
when he refused to do so, he was chased away by the applicant. The respondent
pointed out that the complaint giving rise to docket CAS375/2014 is inter alia that the
applicant defeated the administration of justice. She also insisted in her posts that the
applicant and another person will soon appear in court in this regard. I accept that this
is hearsay evidence and should in normal circumstances be disallowed. More about
this later.
[42) It is common cause that the applicant attended the aforesaid crime scene. On
his own version as is apparent from the extracts of a Netflix documentary, he and his
team 'rushed to the scene' and they inter alia cleared the scene. The applicant pointed
out that there is no proof or any allegation that the respondent had perused the
relevant docket. Also, none of the Netflix episodes relied upon demonstrate that the
applicant tampered with the crime scene, or that he instructed someone else to tamper
therewith. The applicant did not deny in any of his affidavits, firstly that he was on the
crime scene, secondly that Warrant Officer Makhubo was there as well and that a
docket was opened by him pertaining to defeating the ends of justice as alleged by the
respondent.
[43] As mentioned, there is no evidence that the respondent personally inspected
docket 375 referred to and on what information contained in the docket she relies.
docket 375 referred to and on what information contained in the docket she relies.
Furthermore, neither Warrant Officer Makhubo, nor anyone else filed confirmatory
affidavits in support of her version.
[44] The second relevant issue is the alleged bribery. In two posts on social media
on 30 October 2024 the respondent dealt with the r·elationship between the applicant
and Mr Liebenberg. The one post reads as follows:
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'He is named as one of the people who received large amounts of bribe money in return for
not investigating the cases against Liebenberg. The cases has (sic) been delayed for 5 years
because he was eating.
The top management of SAPS is rotten.·
[45] Another post reads as follows:
'Maj-General Shadrack Sibiya, Head of Detectives, is named as one of the people who
received bribes from Louise Liebenberg in an affidavit by the ex wife of Liebenberg. That's the
kind of management SAPS has employed, everyone has their fingers in the cookie jar.'
The respondent attached to her post a screenshot of an interim report following an
insolvency enquiry in respect of the insolvent estate of Tariomix (Pty) Ltd, trading as
Forever Diamonds and Gold, the company directly linked with the infamous Mr Louis
Liebenberg and his wife. Clearly, the screenshot is of a report and not an affidavit. It
reads as follows:
'5.5.6 Under these circumstances it is also important to consider the admittance by Mrs
Liebenberg during her testimony, attached hereto as annexure "D" that payments were made
to the following individuals:
5.5.6.1 Rejoice Zuma;
5.5.6.2 Mr Zuma;
5.5.6.3 Mr Ace Magashule;
5.5.6.4 Captain Mabena; and
5.5.6.5 Mr Sibiya of the South African Police Service.'
[46] The applicant explained that on 20 October 2024 he had a telephonic
conversation with Mr Liebenberg, his present wife, Mrs Dezzi Liebenberg as well as
the Liebenbergs' attorney. Mr Liebenberg informed him that his wife had made diary
entries on his instructions wh ich entries reflected the ~ame of Mr Sibiya of SAPS .
However, according to the applicant, Mr Liebenberg did not refer to him, but to a
different Mr Sibiya. Consequently, the applicant recorded that there was no testimony
that he had received any money from Mr Liebenberg. The respondent made the point
in her answering affidavit that Mr Liebenberg was still in custody at the stage when the
alleged telephonic conversation took place and during the time when the criminal case
alleged telephonic conversation took place and during the time when the criminal case
against him and his wife was still under investigation. Her response that the applicant's
action is nothing but an interference with the criminal investigation appears to be valid,
but there is no reason to deal with this aspect any further. However, I find it extremely
disturbing that the applicant failed to obtain affidavits from the Liebenbergs to
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exonerate him. lf it is mere co-incidence that monies were paid to another Sibiya of
SAPS, I would have expected the applicant, supported by the Liebenbergs under oath,
to identify this Sibiya who is also a member of SAPS. Surely, no monies would be paid
to bribe a person that could not be of any assistance to the Liebenbergs. This version,
hearsay in its very nature, is rejected as untenable and far-fetched, if not false.
[47] I accept that the National Commissioner of Police, General Masemola, as well
as Mr Ian Cameron, the chairperson of the Parliamentary Portfolio Committee on
Police, to mention just two persons, are aware of the respondent's allegations against
the applicant.
[48) The Impugned Statements are clearly defamatory in nature. These were posted
on interalia Facebook and Twitter/X. The respondent has about 101 000 followers on
Facebook and 68 200 followers on Twitter/X according to the applicant's uncontested
version. Notwithstanding receiving a letter of demand from the applicant's attorneys
after the initial posts on 6 March 2024, the respondent continued posting statements
a few months later. I accept that the Impugned Statements portray the applicant as a
corrupt police official involved in bribery and corruption. He is portrayed as having
requested a colleague to reconstruct the aforesaid crime scene, thereby defeating
and/or attempting to defeat the ends of justice. Furthermore, he used his official
position as one of the most senior police officers in the country to solicit bribes in order
to prevent investigation into Mr Liebenberg's alleged criminal activities, thereby
preventing possible criminal prosecution. The respondent did not deny that she posted
the Impugned Statements relied upon by the applicant. Instead, she throughout
insisted that as a whistleblower she was fully entitled to post the Impugned Statements
as the information contained therein is the truth and in the public interest. Above all,
as the information contained therein is the truth and in the public interest. Above all,
according to her, the information was already public knowledge.
[49] The respondent failed to produce proper annexures and/or affidavits to confirm
her version. Consequently, several of her allegations are largely based on hearsay,
and/or repetition of third parties•· allegations. In principle, these should be
unsustainable in respect of the Plascon-Evans test, but as there is ·no doubt a dispute
as to the applicant's right to relief, the words of Greenberg J, accepted with approval
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in NBC Holdings (Ply Ltd v Akani Retirement Fund Administrators,30 cannot be
ignored. An interdict in defamation cases shall not be granted 'unless it is clear that
the defendant has no defence'. I accept that the respondent's mere ipse dixit cannot
be sufficient to establish a defence as it must be based on evidence that 'provides a
sustainable foundation for a defence recognised in law'.31 The SCA made it clear in
NBC Holdings and Malema v Rawula that direct evidence may be provided, but also
by making a case that further evidence could be procured at the trial and would be
available to sustain the defence. In such a case, the trial judge would have the
advantage of considering the evidence, bearing in mind discovery, that recalcitrant
witnesses might be subpoenaed and after cross-examination of all witnesses. Much
of the evidence that might possibly be relevant in casu is not under the respondent's
control, but could potentially be available at a trial in due course. All these factors must
be weighed up in order to decide whether there is a dispute of fact regarding the
existence of a defence.
[50] The following facts are either common cause, or the allegations by the
respondent have not been denied specifically:
a. notwithstanding a period in excess of ten years, the aforesaid murder trial of
Senzo Meyiwa has not been concluded;
b. the applicant was one of the first SAPS members on the murder scene soon
thereafter and he and his team cleaned the scene after their investigations;
c. Warrant Officer Makhubo was also at the murder scene at the same time;
d. Warrant Officer Makhubo is the complainant who opened the docket Cas375
and the applicant is one of the suspects;
e. Warrant Officer Makhubo is also afraid and fears for his life, finding himself in a
safe house;
f. Mr Liebenberg has made payment to certain high profile individuals and the
investigations pertaining to his alleged criminal activities have been ongoing for
several years;
several years;
g. a person referred to as Sibiya in the employ of SAPS also received bribe monies
from or on behalf of Mr Liebenberg;
30 NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators [2021] ZASCA 136; [2021] 4 All SA
652 (SCA).
31 Ibid para 30; see also fn 20.
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h. both the criminal trial relating to the death of Senzo Meyiwa and the allegations
against Mr Liebenberg and his entities are highly debated and have been in the news,
ie on television, radio programs and the written media, for several years;
i. the allegations pertaining to the applicant have been in the public domain prior
to the publishing of the social media posts;
J. the respondent has been reporting maladministration in SAPS together with
human rights' violations to the relevant authorities, including IPID, for more than 15
years and as a result of her reporting affecting and involving senior members of SAPS,
she was dismissed.
[51] The application must be determined on the respondent's version of the facts
together with any undisputed facts provided by the applicant, unless her version is so
palpably false that it can be rejected on the papers. I mentioned supra the crucial
issues raised by the respondent which have not been denied by the applicant and/or
are indeed common cause.
[52] In my view, the public outcry referred to by the respondent in respect of both
the aforesaid issues is such that it qualifies as an exception to the repetition rule.32 A
proper dispute has been raised pertaining to the applicant's right to an interdict.
[53] I conclude that the applicant has not proven the requisites for a final interdict.
Firstly, although he has a right to protect his dignity and reputation, I am not satisfied
that the applicant has suffered and will continue to suffer ongoing reputational harm if
the interdict is refused and the rule nisi discharged. He has not proven the second
requirement for a final interdict, to wit an injury actually committed and/or reasonably
apprehended. The applicant has an alternative remedy. He can always issue
summons to prove defamation and claim damages . The third requirement has not
been proven.
[54) Although the SCA agreed in EFF v Manuef33 with the High Court's findings and
[54) Although the SCA agreed in EFF v Manuef33 with the High Court's findings and
the conclusion that a final interdict was warranted in those circumstances, the facts in
that case are clearly distinguishable from those herein. The SCA as well as the High
Court dealt at length with reasonable publication as a defence in defamation matters.
32 Tsedu and Others v Lekota and Another2009 (4) SA 372 (SCA) para 6.
33 Footnote 1 para 111.
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The courts held that the EFF's allegations pertaining to Mr Manuel were false. The
political party representatives had no direct contact with their informant and the latter's
suspicions were not investigated and consequently, the published information turned
out to be false. The facts in this case are much more in line with those in Malema v
Rawu/a.34
[55] Even if I was prepared to find that the applicant had proved the three
requirements for a final interdict, which is not the case, I still would have refused to
exercise my limited discretion against him. I have reason to believe that further
evidence will eventually be procured if the dispute goes on trial which may have an
important effect on the outcome of the case.
The request that the respondent be directed to publish an apology and retraction
[56] Hav ing concluded that the applicant is not entitled to a final interdict, there is no
reason to consider his request that the respondent be directed to publish an apology.
I merely wish to record ex abundante cautela that even if I was prepared to grant
declaratory and mandatory relief, I would have refused such request. An entitlement
to an apology forms part of and is inextricably tied up with damages. Motion
proceedings are not suited to prosecute such claims as clearly indicated in EFF v
Manue/ 35 and the other judgments referred to supra.
The costs
[57] The general rule is that costs should follow the event. There is no reason to
depart from the rule. The respondent as the successful litigant is entitled to her costs
of opposing the application.
Order
The rule nisi issued on 11 November 2024, extended from time to time, is discharged
with costs, inclusive of the costs of respondent's counsel on scale 8.
34 Footnote 20.
35 Footnote 1 paras 91 - 127 in respect of unliquidated damages in general and paras 128 - 130 in
respect of an apology; /RD Global Limited v The Global Fund to fight AIDS, Tuberculosis and Malaria
(2024) ZASCA 109; 2025 (1) SA 117 (SCA).
Appearances
For applicant:
Instructed by:
For respondent
Instructed by:
K Premhid, P Vabaza and I Macingwane (Pupil)
Ian Levitt Attorneys
c/o Lovius Block Inc
Bloemfontein
T Mogwera
Koenane Attorneys
Bloemfontein
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