IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
In the matter between:
NTANDO PEACEMAN DUZE
and
PUMESHEN DEENADAYALU BISETTY
RAJENDRAN KANDASAMY NAIDOO
MULTICHOICE AFRICA (PTY) LTD
t/a MUL TICHOICE SOUTH AFRICA
MART-MARIE FAURE
JUDGMENT
Jikela J
Case No.: 2025-084186
Not Reportable
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
(1] This matter concerns an application for an interdict to prevent the broadcast of
an insert scheduled to air on a current affairs programme, Carte Blanche, on the
grounds that it is defamatory. The applicant contends that the content of the broadcast
is likely to cause irreparable harm to his reputation and dignity and seeks relief prior
to publication in order to avert that harm.
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[2] The interview concerns complaints lodged by some of the applicant's patients
with the Health Professions Council of South Africa ('HPCSA'). The applicant requests
that the broadcast be prohibited until all complaints currently pending before the
HPCSA have been finalised. A costs order is sought against the third and fourth
respondents only in the event that they oppose this application.
[3] On 6 June 2025, this matter appeared on the urgent motion court roll before
Sibisi AJ. The applicant withdrew the application against the first and second
respondents and tendered their legal costs. An interim interdict was granted against
the third and fourth respondents, pending the final determination of the matter. The
parties were granted leave to approach the senior civil court judge to request that the
matter be expedited and set down for hearing on 13 June 2025.
[4] The applicant is a specialist cardiologist who primarily practices in Westville,
Durban, and also works part-time in Kempton Park, Gauteng. He has approached this
court on an urgent basis seeking an interdict against the first and second respondents
to prevent them from making slanderous, insulting, and defamatory statements about
him in his professional capacity as a cardiologist. These statements pertain to his
m edical practice, the manner in which he conducts surgical procedures, and the way
he processes medical aid claims.
[5] The first and second respondents are specialist cardiologists practising in the
greater Durban area and are professional colleagues of the applicant.
Issues for determination
[6] I am required to determine whether the applicant has established a case for the
granting of a final interdict, and whether the granting of such interdict would serve the
interests of justice and promote the proper administration thereof.
[7] The third respondent is the owner and licensee of the M-Net Television
Channel, which broadcasts, inter alia, the investigative current affairs programme
Channel, which broadcasts, inter alia, the investigative current affairs programme
Carte Blanche. The fourth respondent is a presenter and investigative journalist on
Carte Blanche and is actively involved in 1he production and presentation of the insert
in question.
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The app licant's case
[8) In his founding affidavit, the applicant sets out what he contends is a compelling
case of professional jealousy on the part of the first and second respondents, who are
themselves practising cardiologists at Umh langa and Westville Hospitals, respectively.
The applicant, who has been practising as a specialist cardiologist for approximately
three years, states that he has built a busy practice, with an average of 50 patients
consulting him daily at his Westville surgery. He asserts that he manages the majority
of cardiology patients at Westville H ospital. According to the applicant, the first
respondent ceased all communication with him, which he attributes to the fact that
many of the first respondent's patients have since moved over to his practice. The
applicant further alleges that the first and second respondents have defamed him by
lodging false and malicious complaints with both Discovery and Medsche m e Medical
Aid Schemes, accusing him of subm itting fraudulent claims. These false accusations
resulted in a six-month investigation by the medical schemes; however, no evidence
of wrongdoing was found against the applicant.
[9] According to the applicant, the first and second respondents have gone further
and disseminated these false allegations to colleagues, and hospital staff, that he
performs unnecessary cardiovascular procedures on patients and detaining patients
for longer periods in hospital so that he can claim more on their medical aid schemes.
On one occasion, the first and second respondents gathered a group of patients and
informed them that the applicant had performed unnecessary procedures by opening
their blood vessels without medical justification.
[1 O] The applicant contends that, as a result of the professional jealousy harboured
by the first and second respondents, approximately seven complaints have been
lodged against him with the HPCSA. H e states that he has since appeared before an
lodged against him with the HPCSA. H e states that he has since appeared before an
HPCSA review panel tasked with determining whether he is duly qualified as a med ical
doctor, specialist cardiologist, or surgeon. The applicant regards these complaints as
part of a broader conspiracy by colleagues within the med ical profession aimed at
discrediting him and tarnishing his professional reputation. He further alleges that the
third and fourth respondents became aware of the pending complaints and, without
due cause, initiated their own investigation. According to the applicant, they have since
sought to air a segment on M-Net containing false and defamatory allegations which,
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if broadcast, would severely damage his reputation and irreparably harm his medical
practice.
[11] On 21 May 2025, the applicant received an email from the fourth respondent
indicating that Carte Blanche had received complaints from several patients alleging
that the applicant had performed unnecessary procedures and engaged in
unprofessional conduct. The fourth respondent advised that Carte Blanche was in the
process of investigating these allegations and would be in Durban the following week
to conduct in-person interviews with the com plainants. In this regard, the fourth
respondent requested an on-camera interview with the applicant and indicated that a
list of questions would be forwarded in advance to allow the applicant to prepare for
the interview. Attached to the email was a list of 14 questions directed to the applicant.
For the sake of completeness and context, the following questions were sent to the
applicant in preparation for the interview:
'1. What is the indication to subject a patient to a coronary angiogram?
2. What are the South African guidelines regarding asymptomatic patients requiring a
cardiac evaluation?
3. Are your patients during the angiogram and are they made aware of your decision to
implant a stent?
4. Why do you insert a temporary pacing lead while you are performing an angiogram?
Is this according to guidelines?
5. Do you sedate your patients during the angiogram? What do you use, and have you
had any complications as a result?
6. How long have you been qualified as a cardiologist?
7. Have you spoken to other cardiologists or experts prior to implanting stents in patients?
8. Do you have an anaesthetist at every angiogram?
9. Do you tell your patients prior that you can determine how many stents they might
require just by looking at the ECG?
1 o. Have you approached patients in the early hours of the morning telling them that they
require an urgent procedure or else they might die?
require an urgent procedure or else they might die?
11. Have you suggested further procedures such as a bypass after you have implanted
stants:? What aro the riske?
12. Have patients complained about your conduct to hospital management?
i 3. Has hospital management suggested a peer review?
14. Have patients lodged complaints at the HPCSA? If so, how many are pending?'
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[12] The following day, 22 May 2025 the applicant responded to the fourth
respondent's email and advised that his attorneys would provide a formal response to
her during the course of the day. The applicant was unwilling to answer the questions,
as he regarded them as defamatory and potentially harmful to his professional
practice. He elected not to respond, primarily because the issues raised in the list of
questions are currently sub judice before the HPCSA, and any response he might
provide could prejudice him, particularly as he has yet to appear before the HPCSA
for a formal hearing. The applicant asserts that he has no doubt the allegations are
false and constitute a smear campaign orchestrated by the first and second
respondents, motivated by professional jealousy. He indicated that he would be willing
to accede to the fourth respondent's request for an on-camera interview once the
HPCSA has concluded its investigation and he has been cleared of all accusations.
[13] Concerning the requirements for a final interdict, the applicant asserts that he
has a clear right not to be defamed and not to be falsely accused of unprofessional
conduct in his capacity as a specialist cardiologist, as such the allegations carry
potentially severe financial and reputational consequences. In support of this
contention, the applicant points out that the third respondent seeks to rely on untested
and serious allegations made by laypersons in the field of medicine, namely, the
complainants who are his patients as well as hearsay evidence from unidentified and
unconfirmed medical specialists who purportedly provided opinions on the treatment
rendered, all of which are to be broadcast on a national television programme. On this
basis, the applicant submitted that he has a well-grounded apprehension of irreparable
harm should the interdict not be granted.
Third and fourth respondents' opposition
[14] The gist of the third and fourth respondents' opposition is that the application is
[14] The gist of the third and fourth respondents' opposition is that the application is
not urgent and was launched in circumstances where urgency (if any) was entirely
self-created, thus constituting an abuse of process. The relief sought by the applicant
is unsustainable on the facts and on the law and constitutes an impermissible attempt
by the applicant to obtain a pre-publication interdict in circumstances where no case
has been made out for one and such an extreme order is not justified.
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[i 5) do not propose to address the issue of urgency, as it has already been
determined by the motion court judge that the matter was sufficiently urgent to warrant
the granting of an interim interdict. The urgency has since been confirmed by the
senior civil court judge, who granted leave for the matter to be enrolled and argued on
the urgent opposed court roll. However, it is necessary to address the improper notice
of motion upon which the applicant's relief is based. The notice makes no provision
whatsoever for the filing of opposing papers, despite the fact that the relief sought
entails a restriction on the exercise of the right to freedom of the press. In my view,
this constitutes an abuse of the procedural advantage afforded to the applicant by
bringing the matter on an urgent basis. It runs counter to the principles of fair and
transparent litigation, which ought to be upheld even within our inherently adversarial
legal system.
(16) From the outset, the third and fourth respondents stated in their answering
affidavit that the complaints which form the subject matter of the insert to be broadcast,
and which is entitled 'Dr Stent' were initiated by patients of the applicant who had all,
alleged that they had been subjected to unnecessary surgical procedures by the
applicant. These patients contacted Carte Blanche to tell their story about how
unnecessary surgical intervention led to the most unfortunate consequences for them.
One of the applicant's patients consulted him because he had high cholesterol. The
applicant suggested an angiogram and then inserted a stent for no apparent justifiable
medical purpose.
[17) Another patient consulted the applicant due to chest pains and was similarly
advised to undergo an angiogram. This patient, too, awoke to find that a stent had
been inserted into his artery, again, without any justifiable medical reason. These
patients subsequently sought further medical advice, obtaining third and even fourth
patients subsequently sought further medical advice, obtaining third and even fourth
opinions. The collective medical opinions, some of which are annexed to the
respondents' answering affidavit and others were obtained independently by Carte
Blanche, consistently conclude that the stent insertions were medically unwarranted.
More concerningly, these procedures are said to have induced heart disease in
patients who previously had no such diagnosis.
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[18] These medically unnecessary procedures carry inherent and potentially life
threatening risks, with lasting adverse consequences for the affected patients. As a
result, there is a significant public interest in being informed about the conduct of a
medical professional whose actions may place both current and future patients at
undue risk. Many of these patients will likely be required to remain on blood-thinning
and other chronic medications for the remainder of their lives.
[19] The independent medical experts who have reviewed the patients' pre-stent
angiographic scans have confirmed that the patients did not present with heart disease
or any arterial obstruction warranting the insertion of a stent whether on an emergency
basis or otherwise.
(20] The respondents deny that the broadcast is based on false allegations made
by either of the first or second respondents. They assert that the accounts provided
by the applicant's patients have been thoroughly interrogated and independently
corroborated. Accordingly, the respondents contend that the allegations are not only
factually accurate but also serve a legitimate public interest.
(21] The respondents allege that the program will fairly disclose the material facts
upon which any inference or criticism are based. Evaluative remarks, editorial framing
or inferences would clearly be recognisable as comment and not presented as
undisputed fact. Such comment would be made honestly, in good faith and without
animus iniuriandi, all of that while fulfilling a journalistic duty to inform the public.
[22] Neither the first nor second respondents have been interviewed for the intended
broadcast.
[23] The fourth respondent believes that she has acted reasonably in giving the
applicant ample notice of the allegations and every opportunity to reply. The applicant
has been provided with detailed questions on two occasions, and he therefore now
possesses knowledge of what the allegations against him are.
possesses knowledge of what the allegations against him are.
[24] The respondents further contend that there is no factual or legal basis for the
granting of an interdict. While the applicant has pleaded the general requirements for
8
such relief, he has failed to demonstrate, on the facts, how these requirements have
been met. The respondents deny that the applicant is without alternative remedies and
submit that suitable legal recourse remains available to him, other than the
extraordinary remedy of an interdict.
The applicant's reply to the respondent's opposition
[25] In reply, the applicant confirms his awareness of the five complaints that have
been referred to the HPCSA. He acknowledges that three of these complaints were
lodged by former patients who subsequently approached Carte Blanche with their
accounts. The applicant further states that he has submitted responses to four of the
five complaints currently before the HPCSA.
[26] The applicant maintains his assertion that all the complaints lodged against him
are the result of professional jealousy. He contends that, insofar as the Carte Blanche
insert relies on information provided by the three complainants, who are his former
patients and laypersons in the field of medicine, amounts to speculation and
constitutes defamation of his character. Regarding the medical opinions obtained from
independent professionals, the applicant submits that such opinions constitute
hearsay evidence and should be disregarded. He points out that the identities of the
experts have been redacted from the written reports, and no confirmatory affidavits
have been filed to authenticate the contents thereof.
[27] The applicant expresses concern that the broadcast of the insert would amount
to a conviction and condemnation by the media prior to the HPCSA's adjudication of
the complaints. In his view, the airing of the insert is likely to have a prejudicial and
subjective influence on the HPCSA panel tasked with considering the complaints
against him. He therefore concludes that the harm he stands to suffer is irreparable
and would not only prejudice him personally but also undermine the proper
administration of justice.
administration of justice.
[28] The applicant further contends that a claim for damages does not constitute an
adequate alternative remedy.
Applicant's submissions
9
[29) Mr Snyman SC submitted on behalf of the applicant that the applicant has
successfully established a clear right as a matter of substantive law and as a matter
of evidence. As far as substantive law is concerned, it was submitted that s 1 O of the
Constitution of the Republic of South Africa states that '[everyone] has inherent dignity
and the right to have their dignity protected'. It was subm itted that the intended broadcast
may be regarded by the viewers of the program as unprofessional conduct on the part
of the applicant and would have serious medical malpractice and other related
consequences. He added that the respondents rely on the evidence of medical
laypersons and hearsay evidence in the form of unidentified expert reports. Further, it
was submitted that the name of the program itself, 'Dr Stent', is defamatory.
[30) With regard to injury comm itted or reasonably apprehended, the applicant
submitted that if the interviews are broadcast, the applicant will suffer prejudice as the
airing of the program wou ld happen before the HPCSA finalised its investigation and
enquiry processes. It was further submitted that the apprehension of harm is well
grounded.
[31] It was submitted further that although freedom of expression is protected by s
16 of the Constitution, the constitutional promise of a free press is not absolute. It was
submitted that this right may be limited in terms of the limitation clause in our
Constitution.
[32] It was submitted that while it may be argued that the proceedings before the
HPCSA are not judicial in nature, the airing of the insert may have serious negative
consequences for the applicant, and it may eventually lead to him being stripped of
his privileges as a medical practitioner. In this regard the applicant relies on the
decision of the Supreme Court of Appeal (SCA) in Midi Television t/a ETV v Director
of Public Prosecutions.1
[33] With regard to the unavailability of a satisfactory requirement, it was submitted
[33] With regard to the unavailability of a satisfactory requirement, it was submitted
that the civil action processes naturally take time before a matter is heard and a
1 Midi Television (Pty) Ltd tla E-TV v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56;
2007 (5) SA 540 (SCA) (Midi Television).
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decision is made. The applicant anticipated that he may have to wait for a date on the
trial roll, and this date may only be 2 to 3 years from now , that on its own is not a
satisfactory remedy available to the applicant. Further, an action for damages is
generally expensive and there is very little remedy that it may offer after a defamatory
publication has been aired.
The third and fourth respondents' submissions
[34] On the other hand, Mr Shapiro SC, on behalf of the third and fourth
respondents, submitted that the allegations against the applicant were made by his
patients and these have been confirmed by independent experts. These independent
medical experts reasoned that the surgical interventions in respect of three of the
patients (or complainants) were not justified and did not serve any medical purpose.
The consequences of these medical procedures were that these three patients now
suffered from heart disease when no heart disease was previously present.
[35] He criticised the applicant for launching the interdict proceedings as it was not
founded on the basis of the complaints by the patients and on the truth of these
complaints. The interdict was founded on allegations of defamation and professional
jealousy allegedly perpetrated by the first and second respondents, who have been
accused of a long-executed campaign of character assassination against the
applicant. Lo and behold, the applicant , on the first day of court proceedings, withdrew
his application against the first and second respondents.
[36] The interdict sought by the applicant against the third and fourth respondents
is a pre-publication interdict or what is commonly known as the prior restraint on
expression. It was submitted further that the Constitutional Court and the SCA have
determined that a prior restraint is a drastic intetierence with freedom of expression
which is only granted in very narrow circumstances.2
[37] The respondents submitted further that the applicant has not met the
[37] The respondents submitted further that the applicant has not met the
requirements for this type of interdict. The facts of this case present no prejudice to
the applicant that the publication might cause to the administration of justice and there
2 Midi Television.
11
is no real risk that the prejudice will occur if publication takes place. The applicant's
case is based on mere conjecture or speculation that prejudice might occur.
[38] Mr Shapiro argued that even if the applicant is able to demonstrate that the
relevant insert is defamatory, he would have to defeat each of the defences raised by
the respondent in order to succeed for this type of interdict.3
[39] Further it was submitted that the applicant has not shown that the disadvantage
of curtailing the free flow of information outweighs its advantage. Once all these
requirements are met, then the court would consider whether the applicant has
established the absence of an alternative remedy.
[40] It was submitted that there is no prejudice to the administration of justice
because neither a rule nor substantial risk of demonstrable harm has been
established. The applicant failed to establish prejudice. The only reference in this
regard in the founding papers was that the H PCSA proceedings were sub judice. This
was based on a wrong interpretation of the law, it lacks merit and is against the very
purpose of a free press. Only in the replying affidavit that the applicant attempts to
support this point by stating that the H PCSA panel would be negatively influenced by
the publication. The applicant has not advanced any facts to explain why trained and
experienced medical professionals in his area of discipline would be swayed by the
narrative of ex patients or by the views of other professionals who gave second
opinions.
[41] It was submitted that the intended publication will not be actionably defamatory.
In the founding papers, the applicant makes the case that he will suffer reputational
damage due to defamatory statements made by his colleagues name ly the first and
second respondents based on professional jealousy. In the replying affidavit the
applicant sought to move away from his initial position, that is stating that the
applicant sought to move away from his initial position, that is stating that the
defamation is to be caused by his patients being interviewed, whilst very ill and whilst
3 HIX Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) (HIX
Networking) at 402F-H.
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relying on unidentified experts and they themselves being laypersons in the field of
medicine.
[42] It was further submitted that Carte Blanche has established a defence to every
leg of the necessary enquiry. The applicant has failed to show that the balance of
convenience favours him in circumstances where he has several alternate remedies
available to him. Any reputation al damage that may be suffered by the applicant (which
is denied by the respondents) would be minimal and outweighed by the interests of
the public in access to the information and the respondents' right to freedom of
expression.4
[43] At the hearing of this matter, Mr Shapiro informed the court from the bar that
the facts of the case are already in the public domain. While preparing for the hearing,
he came across an online article concerning this matter and the circumstances that
led the applicant to bring the application. Mr Snyman objected to this submission on
the grounds that it was not information relied upon in the papers. Although I ruled that
the information was relevant to the issues at hand, I did not consider it appropriate to
accept printed copies of the online publication or to visit the website to read the article.
Applicable legal principles
[44] The constitutional right to freedom of expression, which includes freedom of the
press and other media, is enshrined in s 16 of the Constitution. Section 16 provides
as follows:
'Freedom of expression
(1) 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.
(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
4 University of Limpopo v eNews Channel Africa (Pty) Ltd and Others (2019] ZAGPJHC 329; 2019 JDR
1792 (GJ) para 19.
13
(c) advocacy of hatred that is based on race, ethnicity, gender, or religion, and that
constitutes incitement to cause harm.'
[45] However, this right is not absolute and does not protect speech that is unlawful,
such as hate speech or defamatory statements. The right to free speech may be
limited by the requirements laid down in s 36 of the Constitution5.
[46] Section 10 of the Constitution, although already set out above, is set out again
as it is important to note for this discussion, states:
'Everyone has inherent dignity and the right to have their dignity respected and protected.'
[47] The right to dignity includes the right to reputation, and protection from false or
unfair attacks that may diminish one's standing in society. A balance must be struck
between the right to freedom of expression and the right to dignity and reputation, as
protected under s 10 of the Constitution. In Government of the Republic of South Africa
v 'Sunday Times' Newspaper and Another,6 the court held:
'It is the function of the press to ferret out corruption, dishonesty and graft wherever it may
occur and to expose the perpetrators. The press must reveal dishonest mal- and inept
administration .. .It must advance communication between the governed and those who
govern.'
[48] In Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape)
the SCA highlighted that the constitutional guarantee of press freedom serves not only
the media, but the broader public interest in the free flow of information, which is
possible only if there is a free press. Midi Television specifically worded it as follows:7
'To abridge the freedom of the press is to abridge the rights of all citizens and not merely the
rights of the press itself.'
[49] In Khumalo and Others v Holomisa,8 the Constitutional Court held:
5 Midi Television paras 5-7; See also S v Mamabolo (E TV and Others Intervening) [2001 J ZACC 17; 2001 (3)
SA 409 (CC); 2001 (5) BCLR 449 (CC) para 41.
SA 409 (CC); 2001 (5) BCLR 449 (CC) para 41.
6 Government of the Republic of South Africa v 'Sunday Times' Newspaper and Another 1995 (2) SA
221 (T) at 227I-228A.
7 Midi Television para 6.
8 Khumalo and Others v Holomisa [2002) ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC)
(Khumalo).
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'[24] In a democratic society, then, the mass media play a role of undeniable importance.
They bear an obligation to provide citizens both with information and with a platform for the
exchange of ideas which is crucial to the development of a democratic culture. As primary
agents of the dissemination of information and ideas, they are, inevitably, extremely powerful
institutions in a democracy and they have a constitutional duty to act with vigour, courage,
integrity and responsibility. The manner in which the med ia carry out their constitutional
mandate will have a significant impact on the development of our democratic society. If the
media are scrupulous and reliable in the performance of their constitutional obligations, they
will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of
their duties, the constitutional goals will be imperilled. The Constitution thus asserts and
protects the media in the performance of their obligations to the broader society, principally
through the provisions of s 16.
[25] However, although freedom of expression is fundamental to our democratic society, it
is not a paramount value. It must be construed in the context of the other values enshrined in
our Constitution. In particular, the values of human dignity, freedom and equality.' (Footnote
omitted.'
[50] The importance of protecting human dignity in democratic South Africa was
underscored by the Constitutional Court in S v Makwanyane, 9 wherein the court
reasoned that:
'[328] The importance of dignity as a founding value of the new Constitution cannot be
overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic
worth of human beings: human beings are entitled to be treated as worthy of respect and
concern ...
[329] Respect for the dignity of all human beings is particularly important in South Africa.'
[51] In the present matter, the applicant seeks to interdict the broadcast of a current
[51] In the present matter, the applicant seeks to interdict the broadcast of a current
affairs programme on the basis that it infringes his right to dignity and may cause
reputational harm. I am mindful, however, that any restriction on media reporting
warrants careful and cautious consideration.10
9 S v Makwanyane and Another (1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
10 J Botha 'Disinformation and Democracy in Africa and South Africa', in RJ Krotoszynski, Jr, A Koltay
and C Garden (eds) Disinformation, Misinformation, and Democracy: Legal Approaches in
Comparative Context (2025) 270 at 277. See also Koen J's remarks in University of Kwazulu-Natal v
Independent Newspapers (Pty) Ltd and Others 2018 JDR 1623 (KZD); (2018) JOL 40414 (KZD) para
26.
15
(52] It is trite that a defamatory statement is one which injures the person to whom
it refers by lowering him in the estimation of ordinary intelligent or right-thinking
members of society generally.11 When one applies this test, it may be accepted that
the reasonable reader would understand the statement in its context and that they
would have had regard not only to what is expressly stated but also to what is implied.12
(53] Several defences may be raised in response to an allegation of defamation. In
this matter, the respondents' answering affidavit sets out the defences that directly
address the core grounds upon wh ich the applicant has based his case. Notably, they
contend that the broadcast in question centres on the personal accounts of the
applicant's former patients, which are supported by medical records and independent
expert opinion. The applicant himself states that he consults, on average, 50 patients
per day and that he treats nearly every heart patient at Westville Life Hospital. In these
circumstances, there is a compelling public interest in the dissemination of information
concerning the conduct of a medical professional whose actions may pose a risk to
the health and safety of current and future patients.
[54] Furthermore, the respondents contend that there is no prejudice to the
administration of justice, as the applicant has failed to demonstrate a real or
substantial risk of irreparable harm. On the contrary, they argue that the intended
broadcast comprises comments made honestly, in good faith, and without animus
iniuriandi. As such, the statements fall within the ambit of protected fair comment and
do not amount to actionable defamation.
(55] It is trite that media publications on matters of public interest enjoy protection,
provided they were made reasonably, without animus iniuriandi, and after taking reasonable
steps to verify the information prior to publication. In National Media Ltd and Others v
steps to verify the information prior to publication. In National Media Ltd and Others v
Bogosh113 the SCA held that 'lawfulness of a harmful act or om ission is determined by the
application of general criterion of reasonableness based on considerations of fairness,
morality, policy and the court's perception of the legal convictions of the community'.
11 HIX Networking at 403G-H quoting with approval Mohamed and Another v Jassiem 1996 (1) SA 673
(A) at 703G-704D.
12 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici
Curiae) (2001) ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) para 89.
13 National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA)
16
[56] Similarly, in Argus Printing and Publishing Co Ltd v Esselen's Estate, 14 the
appellate division reaffirmed that fair comment on matters of public interest, even if
defamatory, will not give rise to liability if it is opinion and not a statement of fact; based
on facts that are true and properly stated; and made without malice.
[57] Lastly, the requirements for a final interdict are well established. In Setloge/o v
Setlogelo,15 the court set out the trite legal requirements, namely,
(a) A clear right;
(b) Any injury actually committed or reasonably apprehended; and
(c) Absence of similar protection by another ordinary remedy.
Discussion and analysis
[58] I take note that the applicant's case, as set out in the founding affidavit, rests
primarily on allegations of slander, professional jealousy, and a purported conspiracy
by the first and second respondents, allegedly aimed at damaging his professional
reputation. Accordingly, the applicant sought to protect his right not to be defamed on
the strength of these factual averments. It was only in the replying affidavit that the
applicant appeared to recognise the actual basis and origin of the complaints that gave
rise to the intended broadcast. Furthermore, the case against the first and second
respondents has since been withdrawn, rendering much of the content of the founding
affidavit moot or irrelevant to the present dispute.
[59] Nonetheless, the applicant contends that he is entitled to an interdict restraining
the broadcast of the interview on the basis that he has a clear right to protect his
reputation and professional standing from harm. However, this right is not absolute,
nor does it trump the respondents constitutionally protected right to freedom of
expression, which includes the freedom of the press. Importantly, the public also has
a legitimate interest in being informed about matters that concern public health and
potential risks to patient safety.
potential risks to patient safety.
14 Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) at 25C/D-E.
15 Setlogelo v Setlogelo 1914 AD 221 at 227.
17
[60) Where competing constitutional rights are at stake, a careful balancing exercise
is required.16 It must be one that does not unduly prioritise the applicant's reputational
interests over the broader societal interest in the free flow of information. Our courts
have dealt with this issue. The Constitutional Court in Khumalo confirmed that both
freedom of expression and the right to reputation and dignity are foundational to
democracy.17 The court emphasised the need for a balancing approach, where the
right to freedom of expression, particularly on matters of public interest, must be
weighed against the right to dignity.18
[61] In NM and Others v Smith and Others (Freedom of Expression Institute as
Amicus Curiae)19 the Constitutional Court considered the publication of private health
information and stressed the importance of context in determining whether dignity was
unjustifiably infringed.
[62] In balancing the applicant's right to dignity and reputation against the
respondents' right to freedom of expression, particularly on a matter affecting public
health and safety, I adopt the principles laid down in Khumalo, NM, and Midi
Television. While the applicant seeks to protect his reputation, the respondents'
publication engages issues of significant public interest and thus attracts stronger
constitutional protection. Furthermore, the applicant has not demonstrated that the
harm he fears is certain and irreparable. I address this issue in detail further down in
this discussion.
[63] In the founding affidavit, much is made of the applicant's successful and busy
medical practice, as well as his treatment protocol, which according to him,
distinguishes him from others in the field of specialist medicine. By contrast, little is
said about the actual harm he apprehends, beyond the existence of pending
complaints against him before the HPCSA. Sparse detail is provided regarding the
nature or status of these complaints, and the applicant himself appears to lack
nature or status of these complaints, and the applicant himself appears to lack
substantial knowledge of the stage they have reached. While reference is made to
16 Midi Television para 9.
17 Khumalo para 21.
18 Khumalo para 25.
19 NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) [2007] ZACC
6; 2007 (5) SA 250 (CC); 2007 (7) BCLR 751 (CC) (NM).
18
ongoing investigations, the applicant simultaneously refers to pending hearings,
thereby invoking the sub judice rule.
[64] In my view, the replying affidavit does not adequately address or sustain the
applicant's assertion of a clear right necessary to justify the grant of an interdict. I am
not persuaded by the applicant's argument in this regard. Vague references to pending
investigations or hearings, without evidence of imminent or actual prejudice, are
insufficient to justify a restraint on publication. I do not think that all references to
pending proceedings would result in a ban on publication. In my view, a ban on
publication to protect the administration of justice would be allowed if there was a real
risk of prejudice, as opposed to a remote possibility or a risk of prejudice that was
serious or real or substantial.
[65] The Midi Television case is the leading authority on balancing freedom of
expression with fair trial rights and the sub judice rule. A real and demonstrable risk of
substantial prejudice must be shown, not speculative or theoretical harm.20
[66] The HPCSA is not a court of law. It is a statutory body dealing with professional
conduct. The sub judice rule does not apply automatically to its processes. Even if
hearings are pending, a party invoking sub judice must demonstrate how the
publication or broadcast would materially prejudice the proceedings. The applicant has
not sufficiently addressed this point in his papers. The onus rests on the applicant to
show actual or substantial harm, especially where an interdict is sought prior to
publication. In my view, the applicant has not discharged the onus resting upon him.
[67] I do not believe that the broadcast would improperly influence the panel of
medical professionals tasked with adjudicating the complaints against the applicant,
particularly where those complaints are supported by scientific and clinical evidence.
The panel is presumed to act independently and objectively, and there is no basis to
The panel is presumed to act independently and objectively, and there is no basis to
suggest that public reporting would impair their ability to do so. Therefore, I conclude
that there is no prejudice to the administration of justice, as alleged by the applicant.
The harm complained about, is merely not speculative.
20 Midi Television para 19.
19
The balance between the freedom of press, public interest and the right to
protection of dignity and reputation
[68] Courts are accordingly required to balance these competing rights within the
framework of established defamation law and the principles governing prior restraint.
It is trite that the Constitution does not allow one right to automatically trump the other.
The right to dignity demands protection against false, malicious or reckless
statements, however, the right to freedom of expression, especially where it concerns
matters of public interest and information that offend, shock or disturb the State or any
sector of the population, require robust debate21 .
[69] In Modiri v Minister of Safety and Security and Others22, the SCA discussed at
length how to balance the right to freedom of expression and the right to dignity, both
in principle and as applied to a particular set of circumstances of the case. The court
reasoned:
'(22] As explained by the Constitutional Court in Le Roux v Dey 2011 (3) SA 274 (CC) para 122,
common-law grounds of justification play a pivotal role within the framework of our Constitution. The
reason is that it is primarily in the province of justification that the common law allows the courts to strike
a proper balance between the often-conflicting fundamental rights of freedom of expression, including
freedom of the press, on the one hand, and the rights to freedom of privacy and dignity, including
reputation, on the other. Under the rubric of truth and public benefit, the balancing act turns mainly on
the element of public interest or benefit. If a defamatory statement is found to be substantially untrue,
the law does not regard its publication as justified. Publication of defamatory matter which is untrue or
only partly true can never be in the public interest, end of story. But the converse does not necessarily
hold true. Our law does not regard publication of a defamatory statement as justified merely because it
is true, precisely because the court may, in its performance of the balancing act, find that, in the
particular circumstances of the case, the freedom of expression is outweighed by the victim's right to
privacy or dignity'.
[70) I acknowledge that there is often tension between these rights. Both the right
to freedom of expression and the right to dignity are of central importance in the value
system of the Constitution. It is imperative that the conflicting rights be balanced in a
way that least impairs the essence of either right.
21 Waldis and Another v Von Ulmenstein 2017 (4) SA 503 (WCC) para 22.
22 Modiri v Minister of Safety and Security and Others (2011] ZASCA 153; 2011 (6) SA 370 (SCA) paras
22 and 24
20
[71] The requirement that a comment must be fair is consistent with the values that
underpin our constitutional democracy. Our courts have long accepted that an
expression of comment is fair if it is relevant and is made honestly and without malice.
[72] I take comfort in the fact that Carte Blanche took deliberate steps to verify the
complaints and to seek external, objective opinions from experts. In addition, the
applicant has been given the right of reply and to provide his side of the story, which
would be reflected in a balanced manne r in the segment to be broadcast. Although he
has chosen not to do so at this stage, I am of the view that he remains at liberty to
reconsider his position.
[73] I take heed that the provision of health care is inherently a public function, and
the applicant, as a specialist cardiologist, occupies a position of trust whose primary
responsibility is to preserve life. However, where there exists a grave risk of harm or
even potential loss of life to patients as a result of a medical professional's conduct,
the media bears a constitutional duty to facilitate the free flow of information in the
public interest. In such circumstances, the right of the public to be informed must be
weighed meaningfully against individual reputational concerns, particularly where the
information is supported by evidence and pertains to patient safety.
[74] Media reports are vital in ensuring transparency, accountability, and the
protection of the public, particularly in sectors as essential as health care. Moreover,
the ethical obligations of medical practitioners, as codified under the Health
Professions Act 56 of 197 4 and enforced by the H PCSA, emphasise the duty to act in
the best interests of patients, to do no harm, and to maintain professional integrity.
Where there are alleged breaches of these obligations, the public has a constitutionally
protected right to be informed, especially if the allegations are supported by medical
evidence and expert opinion.
evidence and expert opinion.
[75] While the right to dignity and reputation under s 10 of the Constitution must be
respected, it cannot be invoked to shield conduct that may endanger lives or
compromise patient care.
21
[76] Taking into account all the relevant considerations, and the facts of this matter,
I am of the view that, the public's right to be informed on issues affecting health, safety,
and professional conduct, outweigh reputational harm, provided the broadcast is
responsible, truthful expression and without malice.
[77] I am of the view that the appropriate remedy lies not in prior restraint, which has
a chilling effect on right to freedom of expression, but in the availability of post
publication redress should the broadcast indeed be found to be unlawful or
defamatory. This takes me to the question whether the applicant has satisfactory
protection by another legal remedy.
[78] The natural remedy for defamation and reputational harm in South African law
is a delictual claim for damages. While it is true that a damages claim may be more
costly and time-consuming than urgent interdictory relief, this alone does not justify
the prior restraint of expression where the publication concerns matter of public
interest. The inconvenience of pursuing a damages claim does not outweigh the
importance of safeguarding freedom of expression, particularly where the applicant
has not demonstrated irreparable harm or the falsity of the statements.
[79] Regard must be had to the principle that prior restraints on press freedom
constitute a drastic infringement on the right to freedom of expression and should only
be granted where the anticipated prejudice is likely to cause substantial harm, and no
less restrictive means are available to prevent such harm23•
[80] The applicant has failed to prove that he is entitled to a final interdict and that if
an interdict were to be granted, it would promote the administration of justice. On the
contrary, I find that the material sought to be broadcast is not prejudicial to the administration
of justice. In such circumstances, an interdict would amount to unjustified prior restraint
and would undermine the essential role of the media in a democratic society.
costs
and would undermine the essential role of the media in a democratic society.
costs
23 Van Breda v Media 24 Limited and Others (2017] ZASCA 97; 2017 (2) SACR 491 (SCA) para 37;
See also South African National Editors Forum v Abbu and Others (Leave to Appeal) [2023] ZAKZPHC
163 para 29.
22
[81] With regard to the costs of this application, there is no reason to depart from
the normal position that costs follow the result.
Order:
(82] In the result, the following order is made:
(a) The application is dismissed.
(b) The applicant is ordered to pay the party and party costs of the third and fourth
respondents. The aforesaid costs shall include the costs of two counsel where
so employed.
(c) The costs of senior counsel shall be taxed on scale C.
Appearances
Heard:
Delivered:
For the applicant:
Instructed by:
13 June 2025
21 July 2025
CJ Snyman SC
S N Nxumalo Attorneys
20 Otto Street
Pietermaritzburg
Ref: Ms. Samke Nxumalo
Tel: 033 940 3766
Email: siwesamu@yahoo .co.za
23
For the Third and Fourth respondents: WN Shapiro SC
Ms CM Kantor
Instructed by: Webber Wentzels Attorneys
90 R ivonia Road
Sandton
Johannesburg
Ref: D Milo/ P Dela/ K Mavuso/ L Wheeler
Tel: 011 530 5232
Ema il: Dario.milo@webberwentzel.com
C/O SHEPSTONE & WYLIE
1st Floor, ASSA House
15 Chatterton Road
P ietermaritzburg
Email: imanuel@wylie.co.za
Ref: Josette Manuel