Brief Summary

Defamation — Final interdict — Social media publications alleging racism and sexism against corporate applicant — Publication admitted — Wrongfulness and intention presumed — Defences of truth, public interest, reasonable publication, and fair comment not established — Targeted defamatory communication justifying mandatory written retraction — Costs awarded on attorney-and-client scale.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns Part B of an application for final interdictory relief in a defamation matter. The applicant, Barloworld South Africa (Pty) Ltd, sought orders permanently restraining the respondents from publishing defamatory material about it and sought ancillary relief compelling a retraction of a specific letter sent to one of its customers. The dispute arose from social-media publications and targeted correspondence that accused the applicant of racism, sexism, unethical conduct, and abuse of black women in a professional environment.

The respondents were Not in My Name International NPC (a non-profit company) and its directors, Siyabulela Walter Jentile, Mpomelelo Ignatius Masango, and Themba Martin Masango. The applicant alleged that the second to fourth respondents were responsible for the conduct complained of.

Procedurally, an earlier interim interdict had already been granted in Part A on an urgent basis by Twala J on 8 November 2023, pending the determination of Part B. The present judgment determined whether that interim interdict should be confirmed and made final, whether a mandatory retraction should be ordered, and what costs order was appropriate. The court also dealt with the admissibility of two supplementary answering affidavits filed by the respondents.

The general subject-matter of the dispute was the lawfulness of the respondents’ continued publication and dissemination of serious allegations against a corporate entity, including through direct engagement with the applicant’s customer base, and whether the respondents could rely on recognised defamation defences such as truth and public interest, reasonable publication, fair comment, and freedom of expression.

2. Material Facts

The material background included an earlier conflict involving the applicant and a third party. Following the termination of contractual arrangements between the applicant and Fisokuhle Multi Services CC, allegations of racism and abuse were made against the applicant by Ms Felicia Buthelezi, Fisokuhle’s sole member, including on social media. Those allegations were investigated by the applicant and became the subject of proceedings connected to the Equality Court framework. On 27 October 2022, a magistrate determined that the matter should not be referred to the Equality Court in terms of section 20(3)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

In the interim (and separate from the present proceedings), the applicant had obtained urgent interdictory relief. On 26 October 2022, Dosio J granted an order interdicting Fisokuhle and Buthelezi, pending the determination of Part B of those proceedings, from publishing information concerning the applicant or its employees on social media or other public platforms.

The facts central to the present application concerned the respondents’ later conduct. During September and October 2023, the respondents published statements on social media platforms, including Twitter/X, accusing the applicant of racist and sexist conduct. The court treated it as undisputed that these statements were published by the respondents and disseminated on the first respondent’s account.

On 23 October 2023, the respondents escalated the matter beyond general social-media commentary by addressing a letter to Tharisa Minerals (South Africa) (Pty) Ltd, described as a longstanding customer of the applicant. In that letter, the respondents repeated the allegations and invited scrutiny of the applicant’s business relationship with Tharisa Minerals.

After this, the applicant instituted urgent proceedings against the respondents. Part A resulted in an interim interdict on 8 November 2023, which restrained the respondents from publishing defamatory matter concerning the applicant regarding aspects of the dispute involving Fisokuhle/Buthelezi and also restrained them from contacting or engaging the applicant’s customers and employees about that dispute. The interim order further required the respondents to remove statements implying the applicant was racist, sexist, unethical, and/or unprofessional from their social-media platforms and websites.

In opposing Part B, the respondents filed answering affidavits and later delivered two supplementary answering affidavits. The supplementary affidavit dated 1 February 2024 was struck out as irrelevant and scandalous, substantially duplicative of the original answering affidavit, inadequately supported by the attached documents, and filed out of time without condonation. A later supplementary answering affidavit dated 26 September 2025 was admitted, accompanied by an application for condonation, in order to ensure determination on a fuller factual basis, with prejudice to the applicant to be addressed through the costs order.

3. Legal Issues

The central legal questions were whether the respondents had published defamatory statements about the applicant and, once publication and defamatory meaning were established, whether the respondents could rebut the presumptions of wrongfulness and intention by establishing a recognised defence.

The dispute required the court to determine issues of application of law to fact, rather than resolving contested factual disputes about publication itself. Publication was admitted or not in dispute, and the main controversy concerned whether defamation defences were available on the facts and evidentiary material put up by the respondents. The court also had to make a value judgment about the reasonableness of the respondents’ conduct in the context of asserted public-interest speech.

In addition, the court had to decide whether the requirements for a final interdict were met and whether an order compelling a mandatory written retraction was competent and justified as ancillary relief. A further issue concerned the appropriate costs order, including whether punitive costs on an attorney-and-client scale were warranted.

4. Court’s Reasoning

The court applied established South African defamation principles. Defamation was described as the wrongful and intentional publication of a defamatory statement concerning another. Once the applicant proves the publication of a defamatory statement, the law presumes wrongfulness and intention, shifting the onus to the respondents to rebut one or both presumptions by establishing a recognised defence.

In determining whether the statements were defamatory, the court applied an objective test. It considered the meaning that a reasonable reader would attribute to the words in their proper context and whether that meaning tended to undermine reputation. The court noted that it was unnecessary to prove that readers in fact thought less of the applicant.

Applying this approach to the publications, the court found that the respondents’ social-media statements and their correspondence to the applicant’s customer alleged, expressly or by clear implication, that the applicant was racist, sexist, unethical, and abusive of black women in a professional environment. Although some statements were framed as “allegations” or “questions”, the court concluded that the ordinary reader would understand them, in context, as assertions of fact. The court therefore held that the statements were defamatory, and given that publication was not disputed, the presumptions of wrongfulness and intention operated against the respondents.

The court then assessed the respondents’ asserted defences, including reliance on public interest, reasonable publication, fair comment, and freedom of expression. The court accepted that South African law recognises a defence of reasonable publication in matters of public interest, as articulated by the Supreme Court of Appeal and endorsed within a constitutional balancing framework by the Constitutional Court. The relevant enquiry was framed as whether, having regard to the nature of the information, reliability of its source, steps taken to verify it, and the overall manner of publication, the defendants acted reasonably.

On the court’s assessment, those requirements were not met. The respondents did not place admissible evidence before the court establishing the truth of the allegations of racism and sexism. The court reasoned that, without proof of substantial truth, publication could not be justified on the basis of public interest. Beyond this, the court found that the evidence did not support a finding of reasonable publication, because the respondents’ correspondence and subsequent posts showed they had already reached a concluded view about the applicant’s culpability. The court highlighted features such as threats of protest action and statements indicating that no court order would deter them, which the court regarded as inconsistent with a measured, investigative approach.

The defence of fair comment was also rejected. The court held that the statements went beyond protected opinion because they rested on factual assertions that were not shown to be true or to constitute matters of public record. While the respondents invoked freedom of expression, the court held that constitutional protection does not extend to unsubstantiated defamatory allegations, especially where publications are directed at damaging existing commercial relationships.

Having concluded that the defences were not established, the court turned to the requirements for a final interdict. It found that the applicant had a clear right to its good name and reputation, that the injury was actual and reasonably apprehended given the respondents’ persistence despite warnings and court orders, and that there was no adequate alternative remedy because damages would not prevent continued publication and undertakings had proven ineffective. The court therefore held that final interdictory relief was justified.

On the question of retraction, the court emphasised that the letter to Tharisa Minerals was not mere general commentary but a targeted communication to a longstanding customer, repeating defamatory allegations and inviting reconsideration of the business relationship. The court reasoned that merely prohibiting future publication would not remedy the harm already caused. It held that a direction compelling an unconditional written retraction was proportionate and necessary to vindicate the applicant’s rights.

As to costs, the court considered the respondents’ persistence in publishing serious allegations without evidentiary substantiation and their stance toward the applicant’s attempts to resolve the dispute through legal channels. In these circumstances, the court held that punitive costs on the attorney-and-client scale were justified.

5. Outcome and Relief

The court confirmed and made final the interim interdict granted on 8 November 2023. The respondents were interdicted and restrained from publishing, causing to be published, or disseminating defamatory statements concerning the applicant, whether on social media platforms, in correspondence, or otherwise.

The respondents were directed, within 7 days, to deliver to the applicant’s attorneys an unconditional written retraction of the letter dated 23 October 2023 addressed to Tharisa Minerals (South Africa) (Pty) Ltd.

The respondents were ordered, jointly and severally, to pay the costs of the application on the attorney-and-client scale.

Cases Cited

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC)

Modiri v Minister of Safety and Security and Others 2011 (6) SA 370 (SCA)

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA)

Reynolds v Times Newspapers Ltd and Others [2001] 2 AC 127 (HL)

Legislation Cited

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, section 20(3)(a)

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court held that the respondents’ social-media posts and their targeted letter to the applicant’s customer conveyed, to a reasonable reader, assertions that the applicant was racist, sexist, unethical, and abusive, and that these statements were defamatory. Because publication was not disputed, wrongfulness and intention were presumed, and the respondents failed to rebut those presumptions through recognised defences.

The court held that the respondents did not establish truth and public interest, reasonable publication, or fair comment on the evidence placed before the court, and that reliance on freedom of expression did not justify unsubstantiated defamatory allegations directed at harming commercial relationships.

The court held that the requirements for a final interdict were satisfied and that a mandatory unconditional retraction of the targeted customer letter was necessary and proportionate to remedy harm already caused. The court further held that punitive costs on the attorney-and-client scale were warranted due to the respondents’ conduct.

LEGAL PRINCIPLES

Defamation in South African law consists of the wrongful and intentional publication of a defamatory statement concerning another, and upon proof of publication of a defamatory statement, wrongfulness and intention are presumed, with the onus shifting to the defendant to establish a recognised defence.

The determination of whether a statement is defamatory is objective and depends on the meaning attributed by a reasonable reader in context and whether that meaning has a tendency to undermine reputation, without requiring proof of actual reputational harm in fact.

The defence of reasonable publication in matters of public interest requires an overall assessment of reasonableness, including the nature of the information, the reliability of its source, the steps taken to verify it, and the manner of publication, within a constitutional balance between dignity and freedom of expression.

Fair comment protects opinions rather than unproven factual assertions; where a publication conveys factual allegations not established as true or not shown to be matters of public record, the defence is not made out.

A final interdict requires proof of a clear right, an injury actually committed or reasonably apprehended, and the absence of any other satisfactory remedy; persistent publication and ineffective undertakings may support the conclusion that damages are not an adequate alternative remedy.

Where defamatory material has been communicated in a targeted manner to a third party such as a customer, an order compelling an unconditional written retraction may be granted as proportionate ancillary relief to vindicate the injured party’s rights, beyond merely restraining future publication.

Punitive costs on an attorney-and-client scale may be awarded where a party persists in serious allegations without evidentiary foundation and conducts litigation in a manner warranting censure.

Barloworld South Africa (Pty) Ltd v Not in my Name International NPC and Others (2023/112452) [2026] ZAGPJHC 73 (6 February 2026)