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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Not Reportable
Case no: 2025-181557
In the matter between:
KENNETH KUNENE FIRST APPLICANT
GAYTON MCKENZIE SECOND APPLICANT
and
MEHMET VEFA DAG FIRST RESPONDENT
CHANON MERRICKS SECOND RESPONDENT
Coram: COOKE AJ
Heard: 14 October 2025
Order: 17 October 2025
Reasons: 30 October 2025
ORDER
1. Pending the final determination of an action to be instituted by the
applicants to, amongst other things, declare various statements made by
the first respondent defamatory (the action), the f irst respondent is
interdicted and restrained from making or publishing statements to any
person, organisation, public office bearers or political parties and on any
medium or social platform, including but not limited to social media,
emails, letters or m essages, that refer or relate to the first and second
applicants in the following terms:
(a) Stating that they caused, commissioned, or orchestrated the murder of
Farouk Meyer, Ray Forbay, or the police investigator in the Meyer
case.
(b) Referring to them as:
(i) the main suspects in relation to cases of murder; or
(ii) gang or mafia leaders, or organised criminals.
(c) Stating that they sent people to assault the second respondent.
(d) Stating that they are politicians who utilise organised crime, or who
corruptly control law enforcement by making dockets disappear.
2. If the applicants fail to commence the action within twenty days of this
order, the relief described in paragraph 1 shall fall away.
3. Costs shall stand over for determination in the action.
REASONS FOR ORDER
Introduction
[1] In UDM v Lebashe Investment Group 1 (UDM) the Constitutional Court
expressed a basic rule of the law of defamation: there must be evidence
and truth to a defamatory statement one makes about another . This is a
case where the first respondent , Mr Dag, made grave allegations against
the applicants, Mr Kunene and Mr McKenzie . Yet, when called upon to
produce evidence substantiating these allegations, with one exception, he
failed to do so.
[2] Mr Kunene is the Deput y President of the Patriotic Alliance, a
businessman, and a serving councillor and former member of the
1 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (CC) para 59.
Mayoral Committee for Transport in the City of Johannesburg
Metropolitan Council, while Mr McKenzie is the President of the
Patriotic Alliance and a serving Cabinet Minister in charge of the Sports,
Arts and Culture portfolio. Mr Dag, on the other hand, is the President of
the Truth and Solidarity Movement, a civil society organisation which is
said to be dedicated to promoting accountability, transparenc y and
ethical governance.
[3] The applicants brought an application to interdict the respondents from
persisting with various allegations. In response, the second respondent,
Mr Merricks , signed a settlement agreement in terms of which he
undertook not to repeat the allegations . T he applicants no longer seek
relief against him . Mr Dag, on the other hand, opposed the application
and continued making allegations against the applicants . Mr Dag
admitted that he was the author of the statements which form the su bject
of this application. He submitted, however, that the applicants do not
have good reputations, and therefore, his statements did not infringe their
right to a good name. In the alternative , he relied on three possible
justifications, namely truth and public interest, fair comment and
reasonable publication.
[4] On Tuesday, 14 October 2025, I heard argument in relation to this
application. At the conclusion of argument, I advised the parties that I
required a few days to consider the matter . On Friday, 17 October 2025,
I handed down an order, without reasons, interdicting Mr Dag from
making certain statements and directing that the applicants launch their
action within 2 0 days, failing which the interdict would fall away. The
terms of the order are set out above. These are the reasons for the order.
[5] In essence, I find that certain, but not all, of the statements were
defamatory, and that Mr Dag did not, save for one instance, disclose any
evidence to justify the defamatory statements . I find further that the
requirements for an interim interdict have been met by the applicants. In
my view , this is a case where Mr Dag’s freedom of expression must
yield to the applicants’ right not to be defamed.
[6] At the outset , I note that Mr Dag made several submissions at the
hearing which were not based on the evidence contained in the
affidavits. He tended to ‘give evidence from the bar’. This was
impermissible2 and I have not taken these submissions into account in
deciding the application.
Preliminary matters
[7] At the hearing I addressed several preliminary matters before I heard
argument on the merits of the application. First, I considered argument in
relation to the question of urgency. Mr Dag submitted that the attempt to
bring this application as an urgent application constituted a gross abuse
of court process and that the ‘defamation campaign’ described in the
founding affidavit had spanned several months. According to Mr Dag,
the applicants could obtain substantial redress through ordinary
channels.
2 PM v RM and Another 2022 JDR 1403 (WCC) para 16.
[8] The statements complained of commenced on Saturday, 20 September
2025 and escalated through the ensuing week . On Friday, 26 September
2025 the applicants’ attorneys addressed a letter of demand to the
respondents demanding that they (a) cease making the statements and (b)
provide a written undertaking confirming that they will do s o by no later
than 16h00 on Monday , 26 September 2025 . The reference to 26
September appears to have been an error , and I assume the attorneys
intended to refer to 29 September. In the absence of any such
undertaking, the applicants launched this application on Friday , 3
October 2025. The notice of motion provided that the respondents were
required to indicate if they intended to oppose the application by
Monday, 6 October 2025 and to file their answering affidavits, if any, by
Wednesday, 8 October 2025. I was satisfied that the application was
brought within a reasonable period after it became evident that an
application would be required. I also considered that commensurate time
had been afforded to the respondents to deliver their answering papers.
[9] Mr Dag argued further that he required more time to prepare his
response and requested a postponement for two months . To my mind, if
Mr Dag’s statements were based on evidence, he should have been able
to produce such evid ence within a short period. Having regard to the
nature of the statements persistently made by Mr Dag, I was satisfied
that the applicants w ould not be able to obtain substantial redress at a
hearing in due course, and in the circumstances, at the hearing I held that
I was satisfied that a case for urgency had been established and that I
would therefore hear the matter in the fast lane.3
[10] The second preliminary matter concerned th e settlement agreement
apparently concluded between Mr Merricks and the applicants. The
applicants sought an order, pursuant to a requested amendment to the
notice of motion, by which this agreement would be made an order of
court. Mr Dag contended , however, that the settlement agreement was
concluded under duress. According to Mr Dag, the settlement agreement
was signed because Mr Merrick’s life was in danger. An affidavit
deposed to by the applicants’ attorney was handed up at the hearing .
This affidavit stated that Mr Merricks had ‘duly agreed to’ the settlement
agreement, which he initially signed electronically and , thereafter, he
signed with a physical signature. This affidavit did not address the
allegation of duress. In my view, the making of the settlement agreement
an order of court was not urgent and having regard also to the contention
that it was not entered into voluntarily, I decided not to grant the
amendment sought. It is open to the applicants to bring a separate
application for the making of the settlement agreement an order of court.
[11] The third preliminary matter related to an application by the
applicants to amend the notice of motion to include within the scope of
the interdict the following further statements by the respondents:
‘2.9 Stating that the applicants’ attorneys (Mayet Attorneys
Incorporated) are service providers to the City of Johannesburg.
3 See in this regard Cavanagh and Another v Mann and Others (2025/057909) [2025] ZAGPJHC 566 (5
June 2025) paras 6-10.
2.10 Stating that the applicants’ attorneys (Mayet Attorneys
Incorporated) are involved in corruption in the City of Johannesburg.
2.11 Stating or inferring that the applicants sexually assault or rape
young/minor boys.’
[12] At the hearing , I indicated to the applicants’ counsel that I had
reservations regarding whether the applicants had standing to seek the
relief in paragraphs 2.9 and 2 .10.4 It also appeared that the statement in
2.11 was made by Mr Merricks rather tha n Mr Dag . The applicants’
counsel elected not to persist with th e amendment introducing
paragraphs 2.9-2.11. Again, it remains open to the applicants and their
attorneys to seek this relief in separate proceedings.
[13] The fourth preliminary matter concerned the admission of Mr Dag’s
answering affidavit. This affidavit was dated 4 October 2025, although a
handwritten annotation indicated that it had been signed on 8 October
2025. The affidavit was also signed and initialled by a constable in the
South African Police Service on 8 October 2025. The applicants
complained that the affidavit was defective in that it did not comply fully
with the regulations promulgated under the Justice s of the Peace and
Commissioners of Oaths Act 16 of 196 3. More particularly , the
applicants pointed out that there was no declaration by the
Commissioner of Oaths that Mr Dag appeared before him, that an oath
was administered, or that Mr Dag affirmed the truthfulness of the
contents. It was argued that in the absence of this essen tial attestation,
4 See in this regard Ahmadiyya Anjuman Ishaati-Islamlahore (South Africa) and Another v Muslim Judicial
Council (Cape) and Others 1983 (4) SA 855 (C) at 865A-C.
the document lacked the fundamental character of an affidavit and
carried no evidentiary weight before the court.
[14] The requirements of regulation 4 are directory and non -compliance may
be condoned by the court.5 The affidavit does state that it was signed and
sworn to, and the introduction to the affidavit says that Mr Dag ‘hereby
makes oath and states that ...’. Furthermore, Mr Dag signed a
supplementary affidavit in which he made similar points to those in his
answering affidavit. The l atter affidavit appears to have been properly
commissioned and there was no objection to the commissioning of th is
affidavit by the applicants. I also had regard to the fact that the
answering affidavit is mostly made up of legal argument, and I d id not
consider that there would be material prejudice to the applicants if the
affidavit were admitted. In all the circumstances , I was satisfied that the
non-compliance should be condoned , and the answering affidavit was
therefore allowed.
[15] Finally, both parties sought to admit supplementary affidavits. The
applicants’ supplementary affidavit was deposed to on 13 October 2025
and addressed a number of different issues including seeking leave to
file th e further affidavit in terms of uniform rule 6(5)(e), placing new
facts before the court which had arisen since the delivery of the replying
affidavit, informing the court of the resolution of the dispute between the
applicants and Mr Merricks, addressing the amendment to the notice of
motion and providing an explanation for the late delivery of the
confirmatory affidavit of Mr McKenzie . Mr Dag also handed up a
5 DE Van Loggerenberg Erasmus: Superior Court Practice D3-10A-B.
supplementary affidavit , which was deposed to on 12 October 2025 .
Having regard to the tight periods allowed for the delivery of affidavits,
and having regard also to the approach adopted in the recent judgment of
Mabindla-Boqwana JA (as she then was) in De Kock ,6 and the
fundamental consideration that a matter should be adjudicated upon all
the facts relevant to the issues in dispute, I was satisfied that it was in the
interests of justice to allow the supplementary affidavits.
[16] Finally, and for the sake of completeness, I mention t hat Mr Dag
suggested that there had been an improper joinder , and that the
applicants had failed to establish the authority of Mr Kunene to depose
an affidavit on behalf of Mr McKenzie. In my view , the applicants
correctly proceeded against both respondent s. In any event, having
regard to the withdrawal of the claim against Mr Merricks, the question
of joinder became a non-issue. On the issue of authority, Mr Kunene did
not require any authorisation from Mr McKenzie to depose to the
founding affidavit. At any rate, Mr McKenzie did sign a n affidavit in
which he confirmed the contents of the founding affidavit, and that Mr
Kunene was duly authorised to depose to th is affidavit on his behalf .
There is accordingly nothing in the authority point.
Legal Principles
[17] The usual rules in relation to interim interdicts apply. It is therefore
incumbent upon the applicants to show:
(a) a prima facie right;
6 De Kock v Du Plessis and Others 2024 JDR 3115 (SCA) para 24ff.
(b) a well-grounded apprehension of irreparable harm if the relief is not
granted;
(c) the balance of convenience favours the granting of an interim
interdict; and
(d) the applicants have no other satisfactory remedy.7
[18] As regards the right, the proper approach to claims of defamation was
definitively set out in Le Roux v Dey .8 All the applicants must prove at
the outset is the publication of defamatory matter concerning themselves.
The question whether a statement is de famatory in its ordinary meaning,
or is per se defamatory, involves a two -stage inquiry. 9 The first is to
establish the ordinary meaning of the statement. The second is whether
that meaning is defamatory. At the first stage, the test to be applied is an
objective one. This Court is not concerned with the meaning which the
maker of the statements intended to convey, or with the meaning those to
whom it was published gave to it or whether they believed it. In
accordance with the objective test, the question is what meaning the
reasonable reader or listener of ordinary intelligence would attribute to
the statement in its context. In applying this test, it is accepted that the
reasonable reader or listener would understand the statement in its
context and that he or she would have regard not only to what is
7 Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) (Hix
Networking) at 398I-J; UDM para 47.
8 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici
curiae) 2011 (3) SA 274 (CC) (Le Roux) para 85.
9 Le Roux para 89; UDM para 53. See also the helpful summary in Katz v Welz and Another (22440/2014)
[2021] ZAWCHC 76 (26 April 2021) paras 21-7.
expressly stated but also to what is implied. 10 At the second stage, our
courts accept that a statement is defamatory of an applicant if it is likely
to injure the good esteem in which he or she is held by t he reasonable or
average person to whom it had been published. 11 Put differently, a
publication is defamatory if it tends to lower the person in the estimation
of ordinary intelligent or right-thinking members of society’.12
[19] Once the applicant has shown that the statement is def amatory, it is
presumed that the statement was both wrongful and intentional. A
respondent wishing to avoid liability for defamation must then raise a
defence which excludes either wrongfulness or intent. The onus on the
respondent to 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
balance of probabilities. A bare denial by the respondent will therefore
not be enough. Facts must be pleaded and prove d that will be sufficient
to establish the defence.13
[20] As regards the first defence raised by Mr Dag - truth and public interest -
it is only necessary that the respondent prove that the remarks are
substantially true, ie that the sting of the charge is t rue. What is in the
public interest will depend on the convictions of the community , and in
this regard, the time, the manner and the occasion of the publication play
an important role. Past transgressions should, for example, not be raked
up after a long lapse of time.14
10 Le Roux para 89.
11 Le Roux para 91.
12 Hix Networking at 403H.
13 Le Roux para 85; UDM para 51.
14 Neethling-Potgieter-Visser Law of Delict 7th ed (2014) page 360.
[21] The requirements for the second defence - fair comment - were set out in
Economic Freedom Fighters and Others v Manuel (EFF):15
(a) the statement must be a comment and not a statement of fact;
(b) it must be fair, by which is meant only that it must be an honestly -
held opinion, not that it is balanced or temperate;
(c) the facts on which it is based must be true and must be clearly stated
or clearly indicated, or matters of public knowledge; and
(d) the comment must relate to a matter of public interest.16
[22] In Bogoshi, the Supreme Court of Appeal recognised that publication of
defamatory matter by the media would not be unlawful if
the publication was reasonable.17 This is the third defence – reasonable
publication. Our appellate courts have not yet extended this defence to
non-media respondents.18 In EFF, the Supreme Court of Appeal noted
that on a correct reading of Bogoshi, the judgment left untouched the
defence of absence of animus iniuriandi (intention to injure) for non -
media respondents.19 In terms of this defence, a genuine belief
that publication of defamatory material was lawful is capable of
15 Economic Freedom Fighters and Others v Manuel 2021 (3) SA 425 (SCA).
16 Para 38.
17 National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA).
18 The defence was allowed by the High Court in Manuel v Economic Freedom Fighters and Others 2019
(5) SA 210 (GJ) paras 61-70. On appeal, however, the court found that it was not in a position to consider
developing the common law to make such a defence available ( EFF paras 58 -67). See also Reddell and
Others v Mineral Sands Resources (Pty) Ltd a nd Others 2023 (2) SA 404 (CC) paras 40-45 (majority) and
209 (minority).
19 Para 65.
rebutting the animus iniuriandi.20 In my view, as in EFF,21 the facts of
this case are such that it makes no difference to the outcome whether I
approach the defence of reasonable publication on the basis that it is a
defence that seeks to rebut animus iniuriandi, or that it is a defence on
the lines set out in Bogoshi.
[23] In Hix Networking, the Supreme Court of Appeal held that an applicant
is not entitled to the intervention of the court by way of interdict, unless
it is clear that the respondent has no defence. Thus, if the respondent sets
up that he can prove truth and public benefit, the court is not entitled to
disregard his or her statement on oath to that effect, because, if the
statement were true, it would be a defence, and the basis of the claim for
an interdict is that an actionable wrong, ie conduct for which there is no
defence in law, is about to be committed. The mere say-so of a
respondent would, however, not suffice to prevent a court from granting
an interdict. What is required is that a sustainable foundation be laid by
way of evidence that a defence such as truth and public interest or fair
comment is available to be pursued by the respondent. It is not sufficient
simply to state that at a trial the respondent will prove that the statements
were true and made in the public interest, or some other defence to a
claim for defamation, without providing a factual basis therefor.22
[24] A court has a wide discretion as to the granting or refusing of an interim
interdict.23 In the exercise of its discretion, and when assessing the
balance of convenience, regard should be had , amongst other things , to
20 Para 64.
21 Para 68.
22 UDM para 52; see also the discussion in Herbal Zone paras 37-8.
23 Hix Networking at 399A.
the strength of the applicant ’s case, the seriousness of the defamation,
the difficulty a respondent has in proving, in the limited time afforded to
it in cases of urgency, the defence which it wishes to raise, and the fact
that the order may, in substance though not in form, amount to a
permanent interdict.24
[25] Cases involving an attempt to restrain publication must be approached
with caution. This is underlined by section 1 6 of the Constitution. 25
Freedom of speech is a right not to be overridden lightly. The
appropriate stage for this conside ration would , in most cases , be the
point at which the balance of convenience is determined.26 In granting an
interdict, the court must exercise its discretion judicially upon a
consideration of all the facts and circumstances. An interdict is not a
remedy for the past invasion of rights ; it is concerned with the present
and future. The past invasion should be addressed by an action for
damages. An interdict is appropriate only when future injury is feared.27
[26] In what follows , I first discuss whether the applicants have shown a
prima facie right against Mr Dag . After that I consider the other
requirements for an interim interdict.
24 Hix Networking at 402E-F.
25 Subsection (1) provides that ‘ Everyone has the right to freedom of expression, which includes — (a)
freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of
artistic creativity; and (d) academic freedom and freedom of scientific research.’
26 Hix Networking at 402 C-E.
27 UDM para 48.
Prima facie right against Mr Dag
Defamatory statements
[27] In this section , I start by examining whether Mr Dag made defamatory
statements, ie statements which, based on their natural meaning, tend to
lower the applicants in the estimation of ordinary intelligent or right -
thinking members of society. I identify the different kinds of allegations
in turn and then assess whether they are defamatory.
Murder
[28] The applicants seek to interdict Mr Dag from ‘stating that they caused,
commissioned or orchestrated the murder of Farouk Meyer, Ray Forbay,
or the police investigator in the Meyer case.’ This relief is based on the
following statements:
(a) In a statement , published by Mr Dag on X on 20 September 2025 ,
through his @a[...] handle, the following was said about the applicants:
‘The assassination of Farouk Meyer is of utmost significance. Kenny Kunene
summoned him to Lenasia to discuss the tender for Eldorado Park and provided him
with a five location. Farouk Meyer was killed while en route.
I am openly inquiring of Gayton McKenzie: who was the individual working for you
after she left your office, Whose brother was subsequently murdered?
Are you planning to flee?
Your time is up.
Resign from the ministry immediately.’
(b) Two days later, on 22 September 2025, Mr Dag posted a message on
the handle @a[...] stating:
‘Kenny Kunene needs to be incarcerated.
Jerry Boshoga and Farouk Meyer were murdered by the same group of individuals.
Kenny Kunene remains at large.’
(c) On 25 September 2025, a video featuring Mr Merricks was published
on X under the handle @a[...] in which Mr Merricks stated , amongst
other things , ‘Farouk Meyer’s head will be pinned on Kenny Kunene,
Gayton McKenzie and Vicky Fly...’ At the time that this post was
printed, the video appeared to have received 47,100 views. In the text
which accompanied the video, Mr Dag stated:
‘Detain Kenny Kunene.
Detain Gayton McKenzie.
We will soon present over 10 murder cases...
These two individuals must be apprehended.
How much more evidence does SAPS require...
We are insisting on the arrest of Kenny Kunene and Gayton McKenzie.’
(d) The following day, on 26 September 2025 , Mr Dag turned his
attention to the murder of Mr Ray Forbay, posting the following on the
@a[...] handle:
‘Franklin Ray Forbay
Murdered 02/04/2022
Was murdered once more by Kenny Kunene and Gayton McKenzie instructions.
Nothing happened.
Case disappeared.
They said some one killed him
That person also got killed
This occurred due to his business associations with Farouk Meyer, Kenny Kunene,
and Gayton McKenzie, as well as his origins from Eldorado Park...
Arrest Gayton McKenzie.
Arrest Kenny Kunene’.
(e) On the same day , Mr Dag also posted a video on the @a[...] handle
in which he carried on:
‘Ray Forbay, 2 nd April 2022 got shot and murdered. The Ray Forbay’s sister was
employed by Gayton McKenzie. Ray Forbay’s sister was part of Patriotic Alliance.
Ray Forbay knew something about this. Kenny Kunene and Gayton McKenzie
result, Ray, Ray got mur dered. We are demanding arrest of Kenny Kunene and
Gayton McKenzie. As well as Ray was business partner of Farouk Meyer.’
(f) At around that time Mr Dag posted a further video on the @a[...]
handle in which he stated:
‘Gayton McKenzie, we are going to publish your voice mail to Farouk Meyer when
you threaten him. Why did you threaten Farouk Meyer? Why? Why did you invite
Farouk Meyer to Lenasia? What happened to Farouk Meyer case investigator? Who
killed him? Who killed that investigator office r? Listen carefully, from this moment
you are not going to lead this South Africa with force. You are going to face us; you
can take us any court you want. You are going to face us, and you need to be
arrested.’
At the time of printing the post, it had 2,061 views.
(g) On 8 October 2025, after the answering affidavit had been delivered,
Mr Dag posted a statement on the @a[...] handle stating as follows:
‘We are calling for the arrest of Gayton Mckenzie.
We are calling for the arrest of Kenny Kunene.
Here is the affidavit
that we will present to the Court
regarding the killings of Farouk Meyer.
Gayton Mckenzie has threatened Farouk Meyer.
He intends to kill Farouk Meyer...’
(h) The following day, o n 9 October 2025 , Mr Dag appears to have
posted, and re-posted, the following statement: ‘GAYTON MCKENZIE
IS THE ARCHITECT BEHIND THE MURDERS OF FAROUK
MEYER… WHY HAS HE NOT BEEN ARRESTED?’ At the time of
printing, this post had received 2,210 views.
[29] In my view, considered cumulatively, these posts convey that the
applicants caused, commissioned or orchestrated the murder s of Farouk
Meyer, Ray Forbay, and the police investigator in the Meyer case.
Main Suspects, Gang or Mafia Leaders and Organised Criminals
[30] The second statement in respect of which the applicants sought an
interdict was to prevent Mr Dag from ‘referring to them as “main
suspects” in murder, criminal masterminds, or gang leaders/role models
for crime’. The statements related to this part of the interdict are as
follows:
(a) In the post of 20 September 2025 referred to above, Mr Dag also
stated: ‘These two individuals are mafia leaders; they have coerced
colored (sic) communities into voting for them, threatening death if they
refuse’.
(b) In the message posted on 22 September 2025 described above, Mr
Dag also stated: ‘Kenny Kunene has transformed into a formidable
figure and has become the most prominent mafia leader in South Africa’.
(c) In a video posted on the @a[...] handle on 25 Se ptember 2025, Mr
Dag stated, after referring to the murder of Mr Meyer: ‘... and right now,
the main suspect, Kenny Kunene, walking free. Main suspect, Gayton
McKenzie, walking free’.
(d) In the video recorded by Mr Merricks, and posted by Mr Dag on the
@a[...] handle on 25 September 2025 , Mr Merricks stated: ‘So, you are
saying to a young boy in Kliptown, he must not do crime, he must not do
all this things when he look at Vicky Fly, when he look at Gayton
McKenzie, when he looks at Kenny Kunene. You ar e mad, those are
their role models.’
(e) On 8 October 2025 , Mr Dag posted the following message on the
@a[...] handle: ‘Arrest Gayton McKenzie. Arrest Kenny Kunene,
ORGANISED CRIMINALS ARE IN POWER RUNNING THE
COUNTRY.’ At the time of printing this mess age, it had received 393
views.
(f) On 10 October 2025, Mr Dag posted a message on the @a[...] handle
in which he referred to this litigation as a historic case between ‘26 th
Gangs members Kenny Kunene/Gayton McKenzie’ and himself.
(g) On 12 October 2025, Mr Dag posted a message in which he referred
to the applicants as part of the ‘26th Gangs.’
[31] In my view, the statements convey that the applicants are the main
suspects in relation to cases of murder, and they are gang or mafia
leaders, or organised criminals. (It does not appear to me that they have
been described as ‘criminal masterminds’ , nor is it clear that they are
alleged to be ‘role models for crime’.)
Assault of Mr Merricks
[32] The applicants seek an order interdicting Mr Dag from ‘alleging that
they sent people to assault or threaten journalist Chanon Merricks or any
other person, or that they threatened Farouk Meyer via voicemail or any
other communication’. The applicants ’ concerns are based on the
following statements made or repeated by Mr Dag:
(a) In the video of Mr Merricks , which was published on the @a[...]
handle, Mr Merricks stated that ‘... they have sent under the instructions
of, Vicky Fly and Gayton McKenzie an d Kenny Kunene, they have sent
people to my house to come and assault me as a journalist...’.
(b) As indicated above, in a video posted on the @a[...] handle on 26
September 2025 , Mr Dag stated ‘Gayton McKenzie, we are going to
publish your voice mail to Farouk Meyer when you threaten him. Why
did you threaten Farouk Meyer? Why?...’.
(c) On 8 October 2025 , Mr Dag posted a message described more fully
above, which included the statement that ‘Gayton Mckenzie has
threatened Farouk Meyer’.
[33] These stateme nts convey that the applicants sent people to assault Mr
Merricks (although they do not indicate that these people were sent to
threaten him). These statements also convey that Mr McKenzie
threatened Mr Meyer.
Tender fraud, corruption, theft etc.
[34] The ap plicants sought to interdict Mr Dag from ‘stating that they are
responsible for “tender fraud”, corruption, theft of public funds, or
enriching themselves through unlawful means (eg , the Nancefield
tender)’. In his answering affidavit , Mr Dag stated that h is comments of
tender fraud related directly to the applicants’ public roles and their
oversight of public funds. He said that he annexed a report from the
public protector concerning irregularities in the tender , although he
accepted that this report did not make a finding of personal guilt but
rather confirmed systemic failures and procedural irregularities that
justify public questioning and criticism. The report from the public
protector was not, however, annexed to Mr Dag’s affidavit . Mr Dag
stated fur ther that his statements were a direct response to the
documented evidence of maladministration. He contended that the
questioning of how senior officials benefit from such systems is a matter
of legitimate public interest.
[35] The applicants rely upon the video of Mr Merricks posted by Mr Dag on
the @a[...] handle on 25 September 2025 , in which Mr Merricks stated:
‘Now Nancefield Primary School for those of you that do not know, was
where Vicky Fly, Gayton McKenzie, Kenny Kunene, Farouk Meyer that
had a small nyane tender. That is why the school are not fixed today.’
[36] To my mind , this statement is obscure. The applicants did not explain
what is meant by the word ‘nyane’ in this context. It is not clear to me
exactly what is meant by this statement, and I am not persuaded that the
statement complained about may be derived from these words. Where a
statement is ambiguous, unless it is shown that the defamatory meaning
is more probable than the ot her, the applicant will have failed to
discharge the onus which he or she bears. 28 In this instance, I was not
persuaded that the defamatory meaning is more probable.
Organised crime / disappearance of dockets
[37] The applicants seek an interdict restraining Mr Dag from ‘alleging that
they are politicians who utilise organised crime for political gain or who
corruptly control law enforcement by making dockets disappear or by
protecting themselves from justice’. This claim finds support i n the
following statements:
(a) On 22 September 2025, Mr Dag stated on the @a[...] handle:
‘The docket related to the disappearance of Jerry Boshoga is allegedly at Head
Office, with Shadrack Sibiya. Why?
Arrest Kenny Kunene’.
(b) In Mr Merricks ’ video, he s tated in relation to the murder of five
boys in Extension 9: ‘What happened to the case? Docket gone, docket
silent’ and after referring to the murd er of a person in Extension 2, ‘and
that docket disappeared, the docket of those boys in Extension 9
disappeared. You know, all the dockets disappeared’. Having regard to
the overall tenor of the video, it appears implicit that the applicants were
involved in the vanishing dockets.
28 Le Roux pare 91(b); see also Cele v Avusa Media Ltd [2013] 2 All SA 412 (GSJ) para 38.
(c) In the statement on X dated 26 September 2025 described above, Mr
Dag said that the ‘case disappeared’ in relation to the murder of Mr
Forbay. The statement concludes by calling for the arrest of the
applicants.
(d) In a message of 8 October 2025, Mr Dag referred to the applicants as
‘organised criminals’.
(e) In the video posted on the @a[...] handle on 25 September 2025 Mr
Dag stated: ‘And right now, the main suspect, Kenny Kunene, walking
free. Main suspect, Gayton McKenzie, walking free.’
[38] In my view, these statements, read together, amount to an allegation that
the applicants are politicians who utilise organised crime (although I do
not consider that it has been shown that it was alleged that this was done
for political gain) and they corruptly control law enforcement by making
dockets disappear (although I would not go as far as saying that the
statements convey that the applicants more generally protect themselves
from justice through corruption).
Unfit for public office
[39] The applicants seek an interdict restraining Mr Dag from ‘stating that
they are unfit for their public offices (Minister, Deputy President,
Councillor) due to alleged involvement in murder or organised crime.’
Reliance is placed on a stateme nt which appears to have been made to a
News24 journalist regarding this matter in which Mr Dag stated: ‘They
are both guilty; they must be charged. Kenny Kunene is the most
dangerous criminal in SA. Neither of them should be involved in politics
at all. I’m glad they brought this case because we have an opportunity to
bring all our evidence against them. They cannot be in charge. We, as
Truth and Solidarity, condemn them for being in government. We want a
serious investigation into them’ . Mr Dag did not di spute that he made
this statement to the journalist.
[40] In my view, the objective reader of this article would understand Mr Dag
to be alleging that the applicants are unfit for their public offices because
of their involvement in murder or organised crime. This comment ,
however, is encompassed by the specific allegations regarding murder
and organised crime. If Mr Dag is restrained from saying the applicants
are murderers, it follows that he is also restrained from saying that they
are unfit for public offic e because they are murderers. Having regard to
the requirement that interdicts be narrowly tailored, I do not think it is
necessary that a further interdict be granted prohibiting the allegation as
to unfitness for office.
Calling them pansies
[41] The applicants sought to interdict Mr Dag from ‘calling them a “pansy”
or any other derogatory term intended to ridicule their character or
dignity.’ This claim flowed from the video posted on Mr Dag’s @a[...]
handle on 25 September 2025 , in which he sup posedly stated: ‘Pansy
PA, pansy. Pansy Gayton McKenzie, pansy. Pansy Gayton McKenzie,
pansy. Pansy Kenny Kunene, pansy. Time has arrived.’
[42] In his answering affidavit , Mr Dag appeared to accept that he had used
the term ‘pansy’. He argued that political discourse is not a tea party. It
is often impassioned, figurative and sharp and the use of a term like
‘pansy’ in a political context, while perhaps intemperate, is rhet orical
hyperbole intended to critique a perceived lack of political resolve, not to
assert a literal fact. In oral argument, Mr Dag took a different approach
and suggested that the word he used was not ‘pansy’ but rather ‘phantsi’
(down with). The latter approach is consistent with a message posted by
Mr Dag on 12 October 2025 in which he stated: ‘Phansi Gayton
Mckenzie, phansi Kenny Kunene.’
[43] Counsel for the applicants accept ed that if Mr Dag had simply been
using the word ‘phantsi’ , then the claim in this regard would fall away.
Having regard to the context of the video, it seems to be more likely that
the word ‘phantsi’ was used rather than the word ‘pansy’. In any event,
even if the word ‘pansy’ had been used, in my view , the term is not
sufficiently ser ious to justify interdictory relief. The law requires
politicians to be robust and thick -skinned in relation to negative
comments about them.29
29 Law of Delict page 356; see also Neethling Potgieter Roos Neethling on Personality Rights (2019) page
211.
Calling for their arrest without due process / removal from public life
[44] The applicants sought an interdict prohibiting Mr Dag from ‘calling for
their immediate arrest outside of due process or calling for them to be
eliminated or removed by force from public life.’ I was not referred to
any statements where Mr Dag called for the arrest of the applican ts
without the exercise of due process, or where he called for the applicants
to be eliminated or removed by force from public life. In the
circumstances, I do not consider that the applicants established a factual
foundation to interdict such a statement.
Are these statements defamatory?
[45] Mr Dag argued that the statements published by him were not
defamatory of the applicants because they already had a poor reputation.
Mr Dag pointed to photographs of Mr Kunene, indicating that at some
stage he had been photographed eating sushi off the bod y of a naked
woman. Mr Dag also put up evidence of various media reports which
cast the applicants in a negative light. In a signed statement annexed to
his supplementary affidavit, Mr Dag submitted that the reputations of
both applicants have been the sub ject of ongoing and serious public
scrutiny on various social media platforms and in public discourse. He
alleged that numerous allegations have been made concerning their
misconduct, moral impropriety, nepotism, involvement in questionable
tenders or business dealings, and even self-confessed criminal behaviour,
including an admission of sexual assault. Mr Dag also suggested that Mr
Kunene was linked to Mr Katiso (KT) Molefe, said to be one of the most
notorious criminal figures in South Africa and apparently a suspect in
the murder of Oupa John Sefoka, known as DJ Sumbody . Mr Dag
concluded that these facts and allegations, taken collectively, raise
serious and legitimate concerns regarding the credibility, moral standing,
and integrity of the applicants in circumstances where they present
themselves publicly as reformed ex -convicts and principled citizens
committed to ethical governance.
[46] The applicants, on the other ha nd, emphasised that they are senior
political figures who have sought to rebuild their lives after previously
being incarcerated. Mr Kunene pointed to the fact that he is a successful
businessman, motivational speaker and entrepreneur. He alleged further
that he is held in high esteem within his professional and local
communities. As to Mr McKenzie, it was alleged that his public career is
defined by a transformative journey from a background of crime to
becoming a best-selling author, highly sought-after motivational speaker,
and successful entrepreneur with interests in publishing, mining and
consulting. According to Mr Kunene both him and Mr McKenzie are
fathers and respected members of their respective communities, and the
allegations of murder and consp iracy published by Mr Dag has caused
profound and irremediable harm to their personal dignity. This harm
extends beyond personal injury to electoral reputation and the general
standing of the Patriotic Alliance.
[47] In Suliman30 the Supreme Court of Appeal d eclined to accept the
proposition that the reasonable reader is bound to equate a statement that
a person is suspected by the police of committing a crime with a
30 Independent Newspaper Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA) para 24.
statement that the person has actually committed that crime.31 But in this
case Mr Dag went fu rther than simply alleging that the applicants were
suspects. The messages, read as a whole, clearly communicate that the
applicants were guilty of participating in the murders in question.
[48] To my mind , the applicants’ colourful past does not afford Mr Da g, or
anyone else, a license to make false allegations about them. To put it
bluntly: the fact that Mr Kunene ate sushi off a naked woman several
years ago, does not mean that the public is now at liberty to accuse him
of all manner of heinous, and complet ely unrelated, crimes. If Mr Dag
were to comment that Mr Kunene’s record of having objectified women
rendered him unfit for public office, that would be a different matter.
That is not, however, the tenor of the statements made about Mr Kunene.
Even if the applicants are not held in very high regard by the public (in
respect of which I make no finding) , this does not mean that their
reputations, such as they are , cannot be lowered further. In my view ,
there will be very few instances, if any, where a person ’s name would
not be diminished by allegations of murder and corruption.
[49] In addition, I do not believe that allegations in other media may assist Mr
Dag. As pointed out by the Supreme Court of Appeal in Mthembi-
Mahanyele32 the logical consequence of this reasoning is that the more
an applicant is defamed the less likely it is that he or she will have a
claim. The court in Mthembi-Mahanyele found that the extent to which
an applicant’s reputation has already been tarnished should be
considered only in assessing the quantum of damages to be awarded. I
31 See in this regard Modiri v Minister of Safety and Security 2011 (6) SA 370 (SCA) para 15.
32 Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) para 31.
therefore conclude that the statements described above were defamatory
of the applicants.
Conclusion on the defamatory statements
[50] I accordingly find that the following defamatory statements have been
made by Mr Dag in respect of the applicants:
a. Stating that they caused, commissioned, or orchestrated the murder
of Farouk Meyer, Ray Forbay, and the police investigator in the
Meyer case.
b. Referring to them as:
i. the main suspects in relation to cases of murder; and
ii. gang or mafia leaders, or organised criminals.
c. Stating that they sent people to assault Mr Merricks , and they
threatened Mr Meyer.
d. Stating that they are politicians who utilise organised crime, and
who corruptly control law enforcement by making dockets
disappear.
[51] These defamatory statements are presumed to be both wrongful and
intentional. Mr Dag therefore bears an onus to raise a defence which
excludes either wrongfulness or intent. To this en d, f acts must be
pleaded and proved that will be sufficient to establish the defence. In the
next section I assess whether Mr Dag has succeeded in proving a defence
to the statements.
The defences
[52] In my view, the impugned statements listed above are statements of fact,
rather than comment. It is therefore necessary for Mr Dag to show that
the statements are substantially true and in the public benefit.
Murders
[53] Mr Dag did not put up any evidence i n his answering affidavits which
supported the statements alleging that the applicants caused,
commissioned or orchestrated the murder s of Farouk Meyer, Ray
Forbay, and the investigator . It is perhaps telling that in his answering
affidavit Mr Dag seemed t o shift ground and alleged only that his
statements were commentary on matters of grave public concern that
have been widely reported and are the subject of intense public
speculation. Mr Dag annexed a compilation of news articles and social
media posts wh ich he contended discussed the alleged political
connections to these murders. He alleged further that the public record
shows that these cases remain unsolved and are shrouded in allegations
of high -level interference. According to Mr Dag, his role, as a public
advocate, is to give voice to these widespread public concerns and to call
for transparency and a proper investigation into these allegations.
[54] The news articles and social media posts annexed by Mr Dag do not
provide any evidence that the applicants were involved in the murders in
question. The material presented in relation to Mr McKenzie consists of:
an article published three years ago relating to Mr McKenzie’s time as
Central Karoo District Mayor; a headline from an article published more
than two years ago relating to R3 million ‘missing’ from a gala dinner
fundraiser held by Mr McKenzie ; a headlin e published more than two
years ago stating that Gayton McKenzie is ‘the face of the devil’
according to a fired official ; a headline from more than a year ago
regarding a court directing Mr McKenzie to hand over documents for a
corruption probe; a headline and the first four lines of an article relating
to Mr McKenzie being ordered to disclose the financials of a Karoo
fundraising projects ; a headline published more than two years ago
relating to swimming pools, bucket toilets and Eskom debt from Mr
McKenzie’s time as Mayor ; a headline dated 4 June 2024 that a court
ruled that Mr McKenzie must come clean about ‘Beaufort -money’; a
headline that Mr McKenzie launched another legal bid over a R3 million
Central Karoo fundraising probe ; a document bearing the wo rds, ‘Mr
McKenzie explained how he and Kenny Kunene made woman drunk and
raped them’ (although the source of this document is not explained) ; and
a post on X by @L[...] relating to Mr McKenzie’s supposed knowledge
of what happened to Joshlin Smith’ (the young girl who was kidnapped
and trafficked in February 2024).
[55] As regards Mr Kunene, the following articles were annexed: a headline
indicating that Mr Kunene was ‘caught at murder suspect Katiso
Molefe’s house’; a headline suggesting that Mr Julius Malema said that
Mr Kunene’s claims about KT Molefe are ‘pure lies’ ; a headline
indicating that Mr Kunene’s ‘young journalist’ could not run with the
KT Molefe arrest story ; a headline and the first few lines of an article
relating to Mr Kunene visiting KT Molefe; an article concerning an
allegation that Mr Kunene awarded a US$128 000 tender to an entity
‘linked to Nigeria’; a headline stating ‘what was Kenny Kunene doing at
home of DJ Sumbody’s alleged killer? DA says his explanation is
laughable’; a further article with the headline ‘DA wants Joburg tenders
linked to Kenny Kunene investigated’; a further headline ‘Patriotic
Alliance’s Kenny Kunene in hot water for “underworld links”’; an article
describing the arrest of four men in connection with the murd er of DJ
Sumbody; a headline ‘Kenny Kunene under fire over links to suspect’; a
headline ‘Kenny Kunene suspended for visiting DJ Sumbody murder
suspect’ and the first few lines of the article, and a post, seemingly by
Mr Dag himself, showing photographs of Mr Kunene eating sushi off a
naked woman.
[56] It is apparent from the description of the media annexed to the answering
affidavit that not a single item relates to the murders of Mr Meyer, Mr
Forbay, or the police investigator in the Meyer case. Many of the articles
refer to the case of DJ Sumbody. But the applicants do not seek specific
relief in relation to the allegations made by Mr Dag in connection with
this murder. Even if the articles did relate to the murders in question, and
to the extent that the case of DJ Sumbody is relevant to certain of the
statements made by Mr Dag, most of the documents relied upon by Mr
Dag are simply headlines from news article s. I do not consider that a
headline from a news article, or even an article itself, would suffice as
evidence for the purposes of substantiating a defence to a claim of
defamation. These articles are hearsay,33 and Mr Dag did not suggest that
the evidence should be admitted in terms of section 3 (2) of the Law of
Evidence Amendment Act 45 of 1988. It is also no defence to say that
defamatory allegations were first published by someone else. A person
who publishes a defamatory statement that was made by another is as
much the publisher of the defamation as the originator is.34
[57] In an affidavit annexed to his supplementary affidavit, Mr Dag stated
that he has in his possession affidavits of various individuals which
confirm that the applicants were implicated in the murder of Mr Meyer .
These aff idavits were not, however, placed before me. Mr Dag thus
failed to show that his statements attributing the murder s of Mr Meyer,
Mr Forbay, and the police investigator to the applicants, are substantially
true. It is therefore not necessary to decide wheth er the statements are in
the public benefit . Although, having regard to the public roles occupied
by the applicants, it seems to me that if the statements were substantially
true, then it would be in the public benefit to air them. The publication of
true statements about public officials and figures is generally for the
public benefit.35
[58] Even if these statements constitute comment, I do not believe that Mr
Dag has shown that the facts upon which the comment was based are
33 President of the Republic of South Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1 (CC) para 105. See also Pioneer Foods (Pty) Ltd t/a Essential Foods v Shear N.O. (JA21/22)
[2024] ZALAC 46; (2025) 46 ILJ 344 (LAC) (18 October 2024) .
34 Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) (Tsedu) paras 4-5.
35 See Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) at 589G. In my
view, the considerations identified by Wilson J in Mbuyiseni v Media 24 t/a Daily Sun and Others
(21/25599) [2023] ZAGPJHC 1062 (19 September 2023) do not arise in this matter.
true and clear ly stated or clearly indicated or matters of public
knowledge. The defence of fair comment is therefore not available to Mr
Dag.
[59] As to the defence of reasonable publication, there is no evidence that Mr
Dag performed any investigation or verification of the allegations. Nor is
there any evidence that he invite d the applicant s to comment on the
serious allegations prior to publication . The intent to injure the
applicants is evident from the failure to verify the information before
publication, the continuation of the publication after the letter of
demand, and the opposition of the matter to the bitter end. 36 To make
egregious allegations against the applicants, without any endeavour to
confirm the ir truth, is inconsistent with the absence of an int ention to
injure. As was found in EFF,37 it demonstrates a willingness to wound
irrespective of the truth of the allegations . In the circumstances, I do not
consider the defence of reasonable publication to be available to Mr Dag,
whether that be in the fo rm of a rebuttal of the intention to injure, or a
Bogoshi-type defence.
[60] Mr Dag states that his role, as a public advocate, is to call for
transparency and a proper investigation into allegations. If this had been
all that he had done, I would have had no difficulty with his statements.
The problem, however, is that the statements made by Mr Dag went far
beyond calling for transparency and a proper investigation. The warning
issued by the Constitutional Court in UDM resonates in this matter: Mr
Dag was not entitled to ‘wantonly defame the applicants under the
36 See Godongwana para 69.
37 Para 81.
pretext that he was executing a constitutional duty’.38 Furthermore, if Mr
Dag was in possession of evidence demonstrating that the applicants
were involved in the murders in question, I would have e xpected him to
provide this evidence to the police. There is no suggestion that he has
done so.
[61] For these reasons, I find that Mr Dag did not lay a sustainable evidential
foundation to justify implicating the applicants in the murders of Mr
Meyer, Mr Forbay, and the investigator. I therefore granted the interdict
in relation to these murders on the terms requested by the applicants.
Assault of Mr Merricks
[62] Mr Dag put up a seemingly incomplete affidavit purportedly signed by
Mr Merricks on 7 October 2025, in which he stated that ‘PA members
came to my property to assault me…’ This affidavit does not state that
these persons were sent by the applicants. It is also not without relevance
that Mr Merricks has not opposed this application and appears to have
signed a settlement agreement in which he has promised not to state,
amongst other things, that the applicants sent people to assault or
threaten him. I therefore find that Mr Dag has n ot established a defence
in relation to the allegation that the applicants sent people to assault Mr
Merricks.
Threatening of Mr Meyer
38 UDM para 62.
[63] Mr Dag put up an affidavit , seemingly signed on 6 October 2025 by
Iman Abrahams, the daughter of Mr Meyer . This affidav it states,
amongst other things , that before his murder, Mr Meyer informed Ms
Abrahams and her sister that he had been receiving threats, including
messages and audio recordings from Mr McKenzie. In my view, this
affidavit corroborates the allegation that Mr McKenzie threatened Mr
Meyer. Granted, the affidavit is dated after Mr Dag made his initial
statements and it is therefore questionable whether he acted lawfully
when he made such statements. This application, however, is concerned
with future conduct. In so far as Mr Dag is now armed with evidence of
Mr McKenzie having threatened Mr Meyer, this constitutes a defence to
an interdict prohibiting such statements from being made in the future.
Therefore, on this aspect I do not think that it can be said that Mr Dag
has no defence, or that the facts put up in support of the defence of
justification may be rejected out of hand. 39 In the circumstances , I am
satisfied that Mr Dag has shown a valid defence in relation to the
defamatory statements concerning threats made by Mr McKenzie to Mr
Meyer, and Mr Dag was therefore not interdicted from making such
statements.
The balance of the statements
[64] As regards the further defamatory statements, Mr Dag did not lay a
sustainable evidential foundation for a defence of truth and the public
benefit, or indeed any other defence. Although the media relied upon by
Mr Dag casts aspersions upon the applicants, I do not consider this to
39 Compare Tau v Mashaba and Others 2020 (5) SA 135 (SCA) (Tau) para 24.
constitute evidence that they are murder suspects, gang or mafia leaders,
or organised criminals, nor that they are politicians who utilise organised
crime, and who corruptly control law enforcement by making dockets
disappear. Mr Dag may not prove the truth of his statements by the
simple expedient of citing a similar statement made by a third party. The
repetition rule holds that if you repeat a rumour, you cannot say it is true
by proving that the rumour in fact existed; you must prove that the
subject matter of the rumour is true.40
[65] The applicants have a right to protect their dignity and reputation. As in
Godongwana,41 the spurious allegations not o nly affect the applicant s,
but also the offices that they hold. I thus find that, save in relation to the
allegations of threats by Mr McKenzie, the applicants have shown that
they enjoy a prima facie right in relation to the defamatory statements
identified above . I now turn to consider whether the applicants have
satisfied the further requirements for an interim interdict.
Well-grounded apprehension of irreparable harm
[66] The interdict sought by the applicants is directed at preventing Mr Dag
from making statements in the future. If granted , it impinges upon his
constitutionally protected right to freedom of speech. In Herbal Zone, it
was noted that interdicts of this kind are infrequently granted, the party
40 Tsedu para 5.
41 Para 81.
claiming that they will be injured by such speech ordinarily being left to
their remedy of a claim for damages in due course.42
[67] The incessant allegations made by Mr Dag, even after the letter of
demand, and even after the application was launched, suggest that there
is a likelihood that , absent an interdict, he will continue to defame the
applicants.43 Even at the hearing , Mr Dag asserted that the applicants
should be behind bars. Mr Dag argued that the applicants are nationally
prominent political figures with immense media access and platforms.
He argued further that they have every opportunity to publicly rebut the
statements which they have already done. Mr Dag submitted that if any
statement is proven false and defamatory in a subsequent trial, a claim
for damages would be an adequate and complete remedy. The applicants
argued, on the other hand, that the harm is irreparable because a
reputation, once publicly tarnished by allegations of murder, cannot be
fully restored by a future damages award.
[68] I do not consider that the opportunity to repudiate the allegations
constitutes an adequate remedy for the applicants. In addition, and in
relation to the prospect of a damages claim , I agree with the approach
adopted by the Suprem e Court of Appeal in EFF, where the court held
that:
‘In circumstances where the applicants were obdurate, and where the integrity of an
institution of state was being undermined on the basis of Mr Manuel’s alleged
corrupt and nepotistic conduct, an award of damages, in due course , could hardly be
42 Herbal Zone (Pty) Limited and Others v Infitech Technologies (Pty) Limited and Others (204/2016)
[2017] ZASCA 8; [2017] 2 All SA 347 (SCA); 2017 BIP 172 (SCA) (10 March 2017) para 36.
43 By contrast, compare Tau para 26.
said to be a viable and compelling alternative to an interdict prohibiting further
publication.’44
[69] I am therefor e satisfied that the applicants have established a well -
grounded apprehension of irreparable harm. Put differently, the
applicants have shown that a future injury is feared, and an interdict is
therefore appropriate.
The balance of convenience
[70] Mr Dag argued that the harm to him, and more importantly to the public
interest, if the interdict is granted, is severe and irreparable. He
contended that the interdict would gag a public advocate from
commenting on matters of corruption and governance, effective ly
granting public officials a licence to operate without public scrutiny. He
asserted that this would create a chilling effect that extends far beyond
this case.
[71] As indicated above, it is at this stage that consideration should be given
to, among other t hings, the strength of the applicants’ case , the
seriousness of the defamation, the difficulty Mr Dag had in proving, in
the limited time afforded to him, the defence which he wish ed to raise
and the fact that the order may, in substance though not in fo rm, amount
to a permanent interdict.
44 Para 89. See also UDM para 72; Godongwana v Mdwaba [2024] ZAGPJHC 46 (26 January 2024) paras
85-86.
[72] I accept that Mr Dag had limited time to present his case , and I also
accept that an interdict pending the determination of an action could
restrain Mr Dag from making the statements concerned for several years.
It is also true that the applicants would , in due course, be able to ask for
the court to award damages in their favour. On the other hand, Mr Dag
has made , and continues to make, grave allegations against the
applicants, and I consider that the applicants ’ case , based on the
evidence at hand, to be compelling. In addition, Mr Dag has already
published his views on numerous occasions . All that the interdict seeks
to accomplish is the prohibition on him repeating the allegations in the
future. In so far as this may be a prior restraint, it is of an attenuated
form. Mr Dag has already expressed his views regarding the applicants
to his followers on social media, and these followers have received Mr
Dag’s views. To my mind , even on a cautious approach, the balance of
convenience favours the granting of the interdict.
[73] The interdict which I have granted is narrowly formulated. 45 It does not
prevent Mr Dag from commenting on matters of corruption and
governance nor does it prevent him from scrutinising the conduct of
public officials. What the interdict does see k to achieve is to restrain Mr
Dag from making serious allegations aga inst the applicants in respect of
which he has not yet produced any evidence of their veracity.
No satisfactory alternative remedy
45 Compare Gen4foods (Pty) Ltd v Hadebe and Another (D12392/2023) [2024] ZAKZDHC 67 (2 October
2024) paras 69-70.
[74] The applicants point out that the letter of demand was defiantly ignored
by Mr Dag and a future claim for damages is not an adequate remedy as
it will not stop the ongoing harm. According to the applicants the only
effective remedy that can provide substantial redress by putting an
immediate stop to the ongoing harm is an urgent interdi ct. Mr Dag
argued, on the other hand, that the applicants have a more than
satisfactory alternative remedy in a delictual action for damages .
According to Mr Dag their choice to seek an interdict reveals their true
purpose, namely, not to seek compensation, but to secure a gag order and
avoid the discovery processes of a trial that would scrutini se their own
conduct.
[75] This requirement has, to a degree, been addressed above in relation to
the question of irreparable harm. In relation to Mr Dag’s submissions,
the interdict does not allow the applicants to avoid the discovery
processes. The order provides that the action must be instituted within 20
days, failing which the interdict will lapse. As soon as pleadings have
closed, Mr Dag will be entitled to call for discovery from the applicants.
I am therefore not persuaded that the true purpose of the interdict is to
secure a gag order and avoid discovery processes.
Relief
[76] I am thus satisfied that the applicants have met the requirements for an
interim interdict. I have adjusted the relief sought in the notice of motion
in a few respects. It was apparent from the founding affidavit that the
relief contemplated in the action was not limited to a declaration that the
statements were defamatory. The interdict is therefore pending an action
which, amongst other things, seeks such declaratory relief. Furthermore,
in the notice of motion , action was to be instituted within 30 days of the
order. It appeared to me that 30 days was an excessive period for Mr
Dag to await the institution of action. Having regard to the prejudice
which Mr Dag will suffer as a result of the interdict , and the fact that the
issues in the matter have already been ful ly ventilated, I think it is
reasonable to require the applicants to institute their action within a
shorter period of 20 days. Moreover, the order granted provide s for the
lapsing of the interdict if the applicants fail to institute their action within
this period.
[77] As regards costs , there are sound reasons for not awarding the costs
relating to an interim interdict to a successful applicant in the absence of
exceptional circumstances. 46 If the applicants are unsuccessful in the
action, a costs order in respect of the application for interim relief may,
in retrospect, turn out to have been unjust. There is no substantial
prejudice to the applicants as they will be entitled to seek the costs of
this application in the action. It is also relevant that Mr Dag was afforded
only a short time to prepare papers. This was no doubt aggravated by the
fact that h e was not legally represented . Mr Dag alleged in his
supplementary affidavit that he struggled to secure legal representation
as several practitioners declined to act , while others were un available
46 Airoadexpress (Pty) Ltd v Chairman , Local Road Transportation Board, Durban , and Others 1986 (2)
SA 663 (A) at 682I -683A. See also CB Prest The Law and Practice of Interdicts (1996) page 381; and
Opposition to Urban Tolling Alliance v The South African National Roads Agency Ltd 2012 JDR 0808
(GNP) page 30.
(although at the hearing it emerged that he had obtained advice and
assistance from a legal practitioner in Kwazulu-Natal).
[78] Furthermore, Mr Dag foreshadowed in his papers that there were
witnesses he would wish to call in relation to the allegations he made ,
subject to suitable witness protection being provided to them. It is
therefore possible that relevant evidence will be placed before the trial
court, which was not before me. I am also conscious that a costs order at
this stage of proceedings would have a chilling effect on the right to
freedom of expression. In addition, t he applicants sought costs on a
punitive scale. Even if they are entitled to the costs of the application,
the scale of such costs may be better decided after the trial.
[79] For all these reasons , I decided to reserve the question of costs for
determination at the trial.47
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicants: T Mathopo
Instructed by: Mayet Attorneys Inc.
47 See also EMS Belting Co . of SA (Pty) Ltd and Others v Lloyd and Another 1983 (1) SA 641 (E) and
Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C) at 501I-J.
For first respondent: In person