REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 121445/2025
( 1) REPORT ABLE: ~/NO
(2) OF INTEREST TO OTHER JUDGES:
~NO
(3) REVISED: YES/~
2025 .. <?.§./'?:~ ....... .
In the matters between: -
ANELE MDA
And
FIKILE MBALULA
RE:
FIKILE MBALULA
And
ANELE MDA
JUDGMENT
APPLICANT
RESPONDENT
APPLICANT
RESPONDENT
BAQWA, J
Introduction
[1] Relying on s. 17(a) (i) and/or s.17 1 (a) (ii) of the Superior Courts Act1 Anele Mda
(the applicant) seeks leave to appeal this court judgment and order handed down on
25 August 2025.
[2] The respondent opposes the application and seeks its dismissal with costs.
[3] An application in terms of s.17 (a) (i) will be granted if there is a reasonable prospect
that another court would find differently whereas in terms of s.17 (a) (ii) is granted
when there are other compelling reasons why leave to appeal should be granted.
[4] Having considered the applicant's grounds of appeal including the application to
introduce new evidence on appeal as well as submissions by counsel for the parties,
I am not persuaded that the applicant meets the test for leave to appeal on any of the
two statutory provisions on which she relies.
[5] I therefore stand by the reasons and orders set out in the judgment.
The Test
[6] In the MEG for Health, Eastern Cape v Mkitha and Anothei2 the Supreme Court of
Appeal expressed the test for granting leave to appeal as follows:
"[16] Once again it is necessary to say that leave to appeal , especially to this
court must not be granted unless there truly is a reasonable prospect of
1 Act 10 of 2013.
2 [2016} ZASCA 176 at paragraph 17.
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success. Section 17 (1) (a) of the Superior Courts Act 10 of 2013 makes it clear
that leave may only be given where the judge concerned is of the opinion that
the appeal would have a reasonable prospect of success, or there are some
other compelling reasons why it should be heard.
[17] An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonable prospects or realistic chance of success, an arguable
case or one that is hopeless, is not enough there must be a sound, rational
basis to conclude that there is a reasonable prospect of success on appeal."
[7] Lastly regarding the prospect of success the Supreme Court of Appeal elucidated
the matter even further in Ramakatsa and Others v African National Congress and
Another> when the court again endorsed the sentiments expressed above.
Introduction of new evidence on appeal
[8] In this application the applicant seeks to seeks to introduce what she considers to
be new evidence contained in a document annexure 'X' as follows:
"I'm saying that in as much as he was with Vusi Khekhe, currently Vusi Khekhe
has been sentenced. do we have to tell him that you can't be the member of
the ANC, you were travelling with someone who has been convicted and
sentenced." Words to the above effect were allegedly uttered by one Brian
Mogotsi.
[9] The requirements for the introduction of new evidence can be succinctly
summarized as follows:
3 [2021JZASCA31 atpara 10.
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9.1 A sufficient reasonable explanation, based on allegations which may be
true, why the evidence sought to be introduced was not led before the court a
quo.
9.2 There ought to must be a prima facie likelihood of the truthfulness of the
evidence, which must be materially relevant to the outcome of the trial. Rail
Commuters Action Group vs Transnet Ltd Ua Metrorail4.
[1 0] The said allegation does not comply with the above stated requirements.
10.1 The article referred to by the applicant was not authored by Mr Brian
Mogotsi, the person who is alleged to be the source of the new evidence. Mr
Mogotsi has no connection with the current matter and there is no lis currently
between Mr Mbalula and Mr Mogotsi.
10.2 The content of the article is a mere regurgitation of the same
unsubstantiated report previously tendered before this court. The
characterisation, therefore, of the alleged statement as, a "more serious
utterance" or emanating from "other serious source of evidence" is plucked from
the air in the sense that the credibility of such sources is untested and unknown.
The "new evidence" seeks to tender defences which have already been
advanced and/or rejected by this court. There are therefore no prospects of
persuading another court on such flimsy hearsay evidence.
10.3 Moreover, the applicant , in the affidavit during the hearing of the matter,
had no verified proof of the allegations made against Mr Mbalula other than the
reference to a newspaper article. The so-called "new evidence" cannot possibly
4 2006 (2) SA 359 (CC) at 338 C - 330 0.
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add any probative value to the evidence already tendered. In any event, that
cannot be achieved through hearsay evidence.
[11] The issue of new defence on appeal was dealt with in Homi Lifestyle (Pty) Ltd and
Another vs Unemployment Insurance Fund and Another° as follows:
"18 Leave to raise a new defence on appeal is not for the asking- It is given
only in certain circumstances. The reason for this is obvious. An appeal court
considers and must pronounce on the cogency of the judgement of the court a
quo. Logically, it must, as a rule do so, in light of the case presented to that
court. To consider a different case than that turns the appeal into a rehearing
of the matter rather than an assessment of the court a quo."
[12] There is, accordingly, no merit in the attempt to link this "new evidence" application
to the application for leave to appeal.
Grounds of Appeal
[13] In one of her grounds of appeal the applicant submits that this court misdirected
itself in granting the order for an apology and retraction of the defamatory statement
made by the applicant. This submission is clearly wrong.
[14] In Du Toit vs Beckett and Anothef', Holderness J stated:
"[118] With regard to the nature of the relief sought, to the extent that the court
in Heartland Lifestyle Estate (Ply) Ltd and Another vs APC Marketing (Ply) Ltd
diferred from this approach in refusing to order a retraction and an apology on
5 (13443/2023) {2025} ZAG PPG 630 (17 June 2025) para 18.
6 (8687/2023)(2024} ZAWCHC 51 at para 118-119.
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motion, on the basis of this decision of the SCA in Emmanuel. Respectfully, I
differ.
[119] This matter is clearly distinguishable from Emmanuel, where the
applicants sought an order for a retraction and apology in conjunction with a
claim for damages. The SCA held that it was inappropriate to adjudicate a claim
for damages in motion proceedings as oral evidence would need to be Jed to
establish the damages, and the issue of a retraction and apology in that case
was inextricably bound up with the question of damages.
[120] In this case, the applicant specifically disavowed himself of any intention
to pursuing a claim for monetary damages and expressly contented himself with
an apology and a retraction. "
[15) Considering the prayers before this court regarding the retraction and apology, it's
self-evident that the respondent wasn't seeking damages for defamation in an urgent
application. The applicant's reference to Emmanuel is inappropriate and misplaced.
This ground of appeal falls to be dismissed.
[16) The other ground of appeal is that applicant's reference to Mbalula as belonging
in jail is an opinion . It is trite that for an opinion to be considered fair comment , it must
withstand the test of fairness, in other words , it ought to be based on truth.
[17) The relevant paragraph in the judgement is paragraph 36, which reads:
"It is instructive to read what the respondent says in her answering affidavit.
She makes an admission that the information obtained from the Citizen article
was never verified by her when she says in paragraph 49:
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'It is clear that I do not purport to have any factual knowledge as to whether he
was liable for the murder of Mr Bozwana nor do I state that he was, an
assertion Mr Mbalula incorrectly makes. I am however interested to know if he
was, and undoubtedly, so does the public. Both my statements ask exactly that.
Nothing more and nothing less."'
[18] The refutation of the allegations against Mr Mbalula, which were made by Mr
Mbalula in the same article referred to by the applicant, are skilfully and manipulatively
omitted by the applicant in her comments and in her affidavit.
[19] The wrongfulness and unlawfulness which arise from the untruthfulness of the
applicant's statements, as dealt with in the judgement speak to the absence of the
defence of fair comment or public interest. The requirements are succinctly
summarized in EFF and Others vs Emmanue/1 at paragraph 38.
"[38} (a) ............ .
(b) .............. .
(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) ........... .
If the comment is made maliciously, that is, with an improper motive, as
opposed to being no more than an expression of an honestly held opinion on a
matter of public interest it is wrongful and the defence is not available. "
7 2021 (3) SA425 SCA at para 38
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[20] The falsity of the applicant's statements is apparent even from her own admission,
and in my judgement, they need no elaboration.
[21] The issue of fair comment is also dealt with at paragraphs 33 and 34 of my
judgement, and the falsehoods upon which she tried to base her case equally do not
justify the defence of qualified privilege and public interest. If that would be accepted
to be the case, public figures such as Mr Mbalula would be fair game to character
assassination and defamation of the worst kind without an iota of evidence.
[22] The applicant in her widely repetitive grounds seems to have preferred the Court
to deal with some binding authorities that have however been misconstrued in their
understanding or interpretation. Inevitably no sound argument is preferred in support
thereof. In effect, the argument advanced seems to be more like a fishing expedition.
[23] The above conduct is amply demonstrated in her submission that this court
applied the judgement in Ndlozi to arrive in a hybrid decision similar to Ndlozi. Nothing
could be further from the truth. Whilst Ndlozi is mentioned in paragraph 20 of the
judgement , this court said the following:
"The facts in this case were different in that the applicant sought an order for an
interdict and the quantum for damages be referred for oral evidence as a reasonable
approach, taking into account the facts of the matter."
[24] The approach and application of the law is in line with the case of EFF vs
Emmanuel, citing paragraph 111, where the SCA, having regard to the utilisation of
urgent proceedings for granting interdictory relief, said:
"[111 J There is, of course, no problem with a person seeking an interdict, interim or
final, against the publication of a defamatory statement proceedings by way of motion
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proceedings on an urgent basis, if necessary. If they satisfy the threshold requirements
for that kind of order, they obtain instant, though not necessarily complete, relief
There's a precedent for this in the well-known case of Buthelezii vs Poorter, where an
interdict was granted urgently in relation to an egregious piece of character
assassination. "
[25] The order sought to be appealed against is no different.
[26] In light of the above, I conclude that there is no sound, rational basis to conclude
that there are reasonable prospects of success on appeal.
Order
I make the following order:
[27] The application for leave to appeal is dismissed with costs
Date of hearing: 29 October 2025
Date of judgment: 5 February 2026 2026
Appearance
behalf of the Applicant
Instructed by
SELBY BAQWA
OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv D Mpofu SC
zondiwe@mabuzas.co.za
Mabuza Attorneys Inc
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I On behalf of the Respondents
Instructed by
Adv S Sethene
smanga@lawsethene.com
LS Mashifane Inc
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