IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case number:2025-123276
In the matter between:
MALUSI SHEZI Applicant
and
SUNDAY TIMES (ARENA GROUP DIVISION) First Respondent
SABELO SKITI Second Respondent
JUDGMENT
WINDELL J
Introduction
[1] This is an urgent application. The applicant , Mr Shezi , who is the CEO of the
Construction Education and Training Authority (the CETA ), seeks wide-ranging relief
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
27 August 2025 _________________________
DATE SIGNATURE
arising from three articles authored by the second respondent, Mr Skiti, and published by
the first respondent (the Sunday Times) between 5 and 20 July 2025. The relief includes
(a) declaratory orders that the publications were ‘false and defamatory’, (b) an order that
Sunday Times retract the publications; (c) an apology in respect of the publications (the
precise wording of which is set out in the notice of motion), and (d) an interdict prohibiting
further publication.
[2] The application must be dismissed for lack of urgency, principally for three
reasons. First, it is trite that claims for unliquidated damages must be pursued by way of
action. Rules 17(2) and 18(10) of the Uniform Rules make this clear. Defamation claims,
by their nature, involve claims for unliquidated damages. The Supreme Court of Appeal
in EFF v Manuel 1 and NBC Holdings 2 held that apologies and retractions are
compensatory in character and must be treated as unliquidated claims. The applicant’s
reliance on Du Toit v Becket3 and Ramos v Independent Media4 is therefore misplaced.
Those cases do not displace the binding authority of the SCA. Relief of this kind must, if
competent at all, be sought in action proceedings. The applicant’s attempt to obtain it by
motion is impermissible.
[3] Secondly, the interdictory relief sought is misconceived. The applicant seeks to
restrain the Sunday Times ‘from publishing any statements about the applicant in respect
of an ongoing investigation by the Auditor-General (AG’) without verification from the main
1 Economic Freedom Fighters and Others v Manuel 2021 (3) SA 425 (SCA) paras 92-93; IRD Global Ltd v
The Global Fund to Fight AIDS, Tuberculosis and Malaria 2025 (1) SA 117 (SCA) para 24.
2 NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators (Pty) Ltd [2021] 4 All SA 652 (SCA)
para 20.
3 Du Toit v Becket and Another (8687/2023) [2024] ZAWCHC 56 (21 February 2024).
4 Ramos v Independent Media (Pty) Ltd and Others (01144/21) [2021] ZAGPJHC 60 (28 May 2021).
source.’ The relief purports to regulate both past and future speech. The publications
identified in the founding affidavit are already in the public domain. It is trite that a
prohibitory interdict cannot undo what has already occurred and is therefore pointless
when directed at past publications. Nor would an interdict prohibiting future publication of
material that has already been published serve any purpose; it would amount to an
impermissible form of prior restraint. As the court held in Lieberthal v Primedia
Broadcasting (Pty) Ltd,5 drawing on Burchell’s commentary,6 once defamatory matter is
in the public domain, an interdict is not an effective remedy but rather a form of ineffective
censorship. The balance between protecting reputation and safeguarding free expression
is better achieved through the remedy of reply and ongoing public debate, rather than by
judicially silencing speech.
[4] The point may be illustrated by the applicant’s own conduct. He launched this
application only after the relevant information had already been published and, worse still,
permitted a further article repeating the very same allegations about the AG’s
investigation to be circulated without any attempt to prevent its publication. This conduct
underscores why interdictory relief is untenable and is best understood against the
background of the publications themselves.
[5] Between 22 June and 27 July 2025, the Sunday Times published five articles about
the CETA, although only three are the subject of this application. The first, on 22 June,
reported that Minister Nkabane was facing pressure for turning a blind eye to corruption
at the CETA. A whistleblower alleged that the applicant engaged in tender rigging,
5 Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 (5) SA 39 (W) at 48D.
6 The Law of Defamation 1st ed at 315.
awarding contracts to unqualified service providers and intervening in procurement
processes. The applicant, through his spokesman, dismissed the allegations as ‘false and
malicious.’ No relief is sought in relation to this article.
[6] On 5 July a headline board proclaimed, “SETA BOSS ‘LIED TO MPS’ ON OFFICE
PURCHASE,” followed the next day by an article alleging that the CETA’s R49m building
acquisition had been flagged as irregular by the Auditor-General. The article reported that
this finding contradicted the applicant’s assurances to The Standing Committee on Public
Accounts (SCOPA) that the transaction was approved by National Treasury and noted
valuations which put the building’s worth far below the R78m he had claimed.
[7] On 20 July another article alleged that the CETA had paid for a biometric system
which did not exist. The Sunday Times cited a leaked AG document, an IT manager’s
statement that he had never seen the system in operation, and records of payments
authorised under the applicant’s watch. The article also drew links between the applicant
and the former NSFAS head, Mr Nongogo, including a grant approved for Mr Nongogo’s
former wife without disclosure of a potential conflict of interest.
[8] The last article, on 27 July, described the dismissal of the acting HR executive in
what it called “an apparent whistleblower hunt” and referred to irregular appointments
within the CETA. Crucially, it repeated allegations from the earlier articles — that the AG
had flagged procurement irregularities, and that the applicant had misled Parliament
regarding both the office purchase and the biometric system. Despite this, the applicant
did not seek to interdict its publication.
[9] In every instance the applicant was approached for comment before publication.
His responses to the 22 June and 6 July articles were published in full, but he ultimately
refused to comment on the 20 and 27 July articles despite being given extra time to do
so. It is therefore clear that he knew these articles would be published, yet took no steps
to prevent them. The 6 July article followed a negotiated timeline with his representative;
the 20 July article was delayed by a week at his request, making its ap pearance
inevitable; and the 27 July article was foreshadowed by an invitation to comment. Despite
this knowledge, he did nothing to stop publication and has not challenged the 27 July
article at all. Having allowed this information to enter and remain in the public domain, he
now seeks to restrain future publications of it.
[10] It further bears emphasis that the allegations now complained of were not first
revealed by the Sunday Times. They had already been ventilated in the public domain
more than a year before this application was launched — through reports in other
newspapers (including the City Press and Independent Online ) and even an online
petition endorsed by over 300 signatories. The applicant thus seeks to suppress
information that was circulating widely long before the impugned articles appeared.
[11] Against this background, the allegations the applicant seeks to interdict are already
firmly in the public domain. The articles have been published, and the founding affidavit
discloses no reasonable apprehension of future defamatory statements about the A G’s
investigation of the CETA. The exceptional remedy of prior restraint requires proof of a
reasonable apprehension of grave injustice — a threshold that cannot be met where the
applicant knowingly allowed further publication of the very allegations he no w seeks to
restrain.
[12] This conclusion accords with settled jurisprudence. In Midi Television7 the SCA
held that prior restraint of publication is permissible only where the prejudice is
demonstrable, substantial, and outweighs the public’s right of access to information; mere
conjecture is not enough. Likewise, in Print Media8 the Constitutional Court described
prior restraint as a “drastic interference” with free expression, justified only where there is
a substantial risk of grave injustice. Measured against these principles, the present case
falls far short of the stringent test.
[13] The same approach has been followed in subsequent cases. In Tshabalala-
Msimang v Makhanya 9 this Court refused to interdict the publication of private medical
records, despite the questionable manner in which the journalists had obtained them.
Similarly, in Mazetti,10 Sutherland DJP declined to restrain publication even on the
assumption that the information was confidential. He emphasised that a court will not
‘shut the mouth of the media ’ unless the facts convincingly demonstrate that the public
interest is not served by publication — a threshold that is rarely met.
[14] These authorities illustrate that prior restraint is refused even where highly
sensitive or confidential information is at stake. A fortiori, it cannot be granted here, where
the subject matter is the financial management of a public entity and the informa tion is
7 Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540
(SCA) para 19. See also Primedia (Pty) Ltd v Speaker of the National Assembly 2017 (1) SA 572 (SCA)
para 50.
8 Print Media South Africa v Minister of Home Affairs 2012 (6) SA 443 (CC) para 44.
9 Tshabalala-Msimang v Makhanya 2008 (6) SA 102 (W) para 56.
10 Mazetti Management Services (Pty) Ltd v Amabhungane Centre for Investigative Journalism NPC 2023
(6) SA 578 (GJ).
already in the public domain. The applicant’s case falls far short of the exceptional
circumstances required to justify such relief.
[15] That leaves only the prayer for declaratory relief. Standing alone, however, it
cannot be granted. Declarators of past defamation serve no practical purpose, amount to
no more than abstract opinion, and risk being used as a springboard for future claims,
giving rise to piecemeal litigation and issue estoppel. 11 It is generally undesirable for a
court to grant declaratory relief without competent consequential relief, particularly in
urgent motion proceedings where the merits and the remedy are inextricably linked and
must be determined in the light of the evidence as a whole. 12
[16] Once it is accepted that retraction and apology relief cannot be pursued on motion,
and that interdictory relief is inappropriate because the information is already in the public
domain, nothing of substance remains. Declaratory relief of this kind can never justify
urgent intervention, since it is neither time -sensitive nor capable of affording immediate
redress.
[17] In the result the following order is made:
1. The application is struck from the roll with costs on a party and party scale,
Scale C.
11 NBC Holdings (supra) para 16.
12 Minister of Finance v Oakbay Investments (Pty) Ltd 2018 (3) SA 515 (GP) para 59, cited with approval
in Competition Commission v Hosken Consolidated Investments 2019 (3) SA 1 (CC) para 82; Also see
NBC Holdings (supra) paras 11,16 and 26.
________________
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 27 August 2025.
APPEARANCES
For the Applicant: Kgomotso Kabinde
Instructed by: Sithi and Thabela Attorneys
For the First Respondent: Adrian Friedman
Instructed by: Willem De Klerk Attorneys
Date of hearing: 13 August 2025
Date of judgment: 27 August 2025