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[2026] ZAGPJHC 183
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University of Johannesburg and Another v Matizirofa and Others (Application for Leave to Appeal) (2022/010696) [2026] ZAGPJHC 183 (26 February 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
2022-010696
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: NO
26 February 2026
In
the matter between:
UNIVERSITY
OF JOHANNESBURG
First
Applicant
PROFESSOR
TSHILIDZI MARWALA
Second
Applicant
and
LYNESS
MATIZIROFA
First
Respondent
MOTLATJO
ELDRIDGE MACHABA
Second
Respondent
TAVAZIVA
MACGREGOR KUFA
Third
Respondent
This Judgment is handed
down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by
email, publication on Court
Online. The date for the handing down is deemed 26 February 2026.
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MUDAU ADJP:
Introduction
[1] This is an
application for leave to appeal against the whole of the judgment and
order handed down by this Court on 17 August
2022, with full reasons
provided on 26 August 2022. The application is brought by the
respondents in the main application, namely
Ms Lyness Matizirofa
("the first respondent"), Mr Motlatjo Eldridge Machaba
("the second respondent"), and
Adv Tavaziva Macgregor Kufa
("the third respondent").
[2] In the main
application, this Court granted a final interdict restraining the
respondents from distributing, disclosing, publishing,
or in any
manner disseminating any defamatory matter concerning the applicants,
the University of Johannesburg ("the University"),
and its
Vice-Chancellor, Professor Tshilidzi Marwala. The Court also
dismissed the respondents' counter-application and ordered
the
respondents to pay costs on the scale as between attorney and client,
jointly and severally.
[3] The respondents now
seek leave to appeal to the Full Bench of this Division,
alternatively to the Supreme Court of Appeal. The
application is
opposed by the applicants.
Background
[4] The factual matrix of
this matter is extensively traversed in the main judgment and need
only be summarised here for this application.
[5] The University
previously employed the first respondent as a statistics lecturer.
Following an internal disciplinary enquiry,
she was dismissed. She
referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration ("the
CCMA"). The
second respondent is an attorney who represents the first respondent
in that labour matter. The third respondent
is an advocate who
appears as counsel for the first respondent in the same matter.
[6] On 26 and 27 July
2022, the respondents caused certain communications to be sent in
which they made serious allegations against
the applicants. These
included allegations that the applicants had acted unlawfully, that
they were xenophobic, and that they discriminated
against persons
with disabilities. The respondents also threatened to report
Professor Marwala to his new employer, the United
Nations University
("UNU"), with the stated aim of persuading the UNU to
reconsider his appointment.
[7] The applicants
demanded a retraction and an undertaking to desist from such conduct.
The respondents refused, and in a letter
dated 28 July 2022, the
second respondent stated that the first respondent would "attend
to sharing the pleadings in the unlawful
dismissal complaint with the
United Nations University (UNU)". The third respondent also
stated at the CCMA arbitration proceedings
on 29 July 2022 that
Professor Marwala would be reported to his new employer "whether
you like it or not".
[8] The applicants
launched an urgent application on 3 August 2022. After hearing the
argument on 16 August 2022, this Court granted
the final interdict on
17 August 2022, with reasons to follow. Full reasons were handed down
on 26 August 2022.
[9] On 2 September 2022,
the respondents filed their application for leave to appeal. On 12
October 2022, they filed a supplementary
application for leave to
appeal.
The Grounds of Appeal
[10] The respondents'
grounds of appeal are extensive and may be summarised as follows:
10.1. The Court erred in
finding that the matter was urgent;
10.2. The Court erred in
finding that the applicants had established a clear right;
10.3. The Court erred in
finding that the applicants had established irreparable harm and the
absence of an alternative remedy;
10.4. The Court erred in
failing to uphold the points in limine relating to misjoinder and
non-joinder;
10.5. The Court erred in
failing to uphold the defence of lis alibi pendens;
10.6. The Court erred in
finding that the respondents' statements were defamatory and that no
defence was available to them;
10.7. The Court erred in
its application of constitutional principles, including the rights to
freedom of expression, access to
courts, and a fair trial;
10.8. The Court erred in
failing to find that the application constituted a SLAPP suit;
10.9. The Court erred in
awarding costs on a punitive scale;
10.10. The Court erred in
making use of "non-existent facts" in its judgment.
[11] In their
supplementary application, the respondents specifically contend that
the Court relied on "non-existent facts",
including:
11.1. The finding that
the second and third respondents acted in their personal capacities;
11.2. The finding that
the letter of 28 July 2022 stated that the defamatory statements were
deliberately intended to impugn the
integrity of the applicants; and
11.3. The finding that
the third respondent used the words "or words to that effect"
in relation to the threat made at
the CCMA.
The Legal Framework
[12]
Section 17(1)(a)
of
the
Superior Courts Act 10 of 2013
provides that leave to appeal may
only be granted where the judge or judges concerned are of the
opinion that:
(i) the appeal would have
a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[13] In
The Mont
Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others
(LCC,
unreported, case no LCC 14/2012, 3 November 2014), Bertelsmann J
held:
"It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new
Act. The former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different
conclusion... The use of the
word 'would' in the new statute indicates a measure of certainty that
another court will differ from
the court whose judgment is sought to
be appealed against."
[14] This approach has
been approved by the Supreme Court of Appeal in
Notshokovu v
S
[2016] ZASCA 112
and
MEC for Health, Eastern Cape
v Mkhitha
[2016] ZASCA 176.
[15] The respondents must
therefore satisfy this Court that there is a reasonable prospect that
another court would come to a different
conclusion, or that there are
compelling reasons why the appeal should be heard.
Evaluation
Urgency
[16] The respondents
contend that the matter was not urgent because the complaints arose
as early as March 2020, and the applicants
only launched proceedings
in August 2022. This submission is without merit.
[17] The defamatory
statements that formed the basis of the urgent application were made
on 26 and 27 July 2022. On 28 July 2022,
the respondents refused to
retract and indicated their intention to continue publishing the
allegations, specifically to the UNU.
The applicants launched the
application on 3 August 2022, a mere six days after the refusal. In
the circumstances, the matter was
manifestly urgent.
[18] The respondents'
reliance on earlier communications from 2020 is misplaced. Those
communications related to a complaint made
to the CCMA about the
conduct of the independent chairperson of the disciplinary enquiry.
They did not contain the xenophobia and
disability discrimination
allegations against the applicants that formed the subject matter of
this application.
[19] The court has a wide
discretion to decide whether to entertain a matter on an urgent
basis. That discretion can only be challenged
on the basis that it
was exercised capriciously or on a wrong principle. The respondents
have made out no case for interfering
with the exercise of that
discretion.
Clear Right
[20] The respondents
contend that the applicants did not have a clear right because the
allegations against them are true and await
determination in other
forums. This submission is fundamentally flawed.
[21] The CCMA, after
conducting its own investigation, found that the independent
chairperson, Ms. Masege, was guilty only of negligence
in using a
CCMA template to communicate her award. No finding of fraud was made
against the applicants. No finding of xenophobia
or discrimination
against persons with disabilities was made. Indeed, the first
respondent herself recorded in a pre-arbitration
minute that her
dispute "is not one concerning an automatically unfair dismissal
and/or discrimination."
[22] In the absence of
any factual foundation for the allegations, the respondents had no
reasonable grounds for believing their
offending statements to be
true. As this Court held in the main judgment:
"The failure to
establish that the finding is substantially true, or put differently,
that Masege committed fraud, is fatal
to the defence of the
respondents. The facts relied upon by the respondents in this regard
are, therefore, entirely without basis
and incorrect. The outcome of
the CCMA investigation is accordingly misrepresented by the
respondents."
[23] The applicants have
a clear right to protect their good names and reputations. The
respondents have no right to defame them.
Irreparable Harm and
Alternative Remedy
[24] The respondents
contend that the applicants failed to establish irreparable harm and
that an alternative remedy existed in
the form of a damages claim.
This submission ignores the nature of defamation and the threats made
by the respondents.
[25] The respondents
expressly threatened to report Professor Marwala to the UNU with the
stated aim of persuading the UNU to reconsider
his appointment. Such
harm, if it occurred, would be immediate and potentially
irreversible. Damages would not provide an adequate
remedy for the
harm that might ensue, and the quantum would be very difficult to
determine.
[26] As this Court noted
in the main judgment, the import of such false disclosures would have
"far-reaching and possibly unquantifiable
consequences".
The applicants were not compelled to wait for the damage to occur and
then sue for compensation; they were
entitled to approach the Court
to prevent the damage from being done.
Misjoinder and
Non-Joinder
[27] The respondents
contend that the second and third respondents were misjoined as they
acted only in their capacities as legal
representatives. This
submission ignores the evidence of their personal conduct.
[28] The second
respondent personally authored and sent defamatory letters directly
to the applicants and third parties. The third
respondent personally
made threats at the CCMA arbitration proceedings. Both went beyond
the bounds of their professional roles.
[29] As this Court held
in the main judgment:
"In this instance,
the lines seem to be blurred, personal association with their
client's interest by the legal practitioners,
as opposed to
professional interest. Qualified privilege cannot be elevated nor is
it a licence to say falsehoods."
[30] The qualified
privilege afforded to legal representatives is forfeited where
statements are made with knowledge of their untruthfulness
or are
actuated by malice. The evidence supported a finding of malice, and
the second and third respondents were properly joined.
Lis Alibi Pendens
[31] The respondents
contend that the application should have been stayed pending the
determination of other proceedings, including
the CCMA arbitration,
the Labour Court matter, and a criminal complaint. This submission is
without merit.
[32] The final interdict
has nothing to do with the subject matter of those proceedings. The
urgent application is not based on
the same cause of action, nor does
it relate to the same subject matter. The applicants do not seek to
stop the first respondent
from pursuing her labour disputes. They
seek only to prevent the respondents from defaming them. The defence
of lis alibi pendens
has no application.
Defamation and
Available Defences
[33] The respondents
contend that their statements were true and that the defences of
truth and public interest, fair comment, and
absence of animus
iniurandi were available to them. This submission is devoid of merit.
[34] As this Court found,
there was no factual basis for the allegations of xenophobia and
discrimination against persons with disabilities.
The CCMA
investigation found no fraud against the applicants. The allegations
were manufactured and are not supported by any reasonable
grounds.
[35] The onus was upon
the respondents to establish a defence to rebut either wrongfulness
or intention. They failed to do so. There
was no material dispute of
fact as to whether the published statements were true and in the
public interest.
Constitutional Grounds
[36] The respondents
raise numerous constitutional grounds, contending that the order
restricts their rights to freedom of expression,
access to courts,
and a fair trial. These submissions are without substance.
[37] The right to freedom
of expression is not absolute. It must yield to an individual's right
not to be unlawfully defamed. As
Corbett CJ stated in
Argus
Printing and Publishing Company Limited and Others v Esselen’s
Estate
1994 (2) SA 1
(A) at 25 B - C:
"I agree and I
firmly believe that the freedom of expression of the press is a
potent and indispensable instrument for the
creation and maintenance
of a democratic society but it is trite that such freedom is not and
cannot be permitted to be totally
unrestrained. The law does not
allow the unjustified savaging of an individual's reputation. The
right of free expression enjoyed
by all persons including the press
must yield to an individual's right which is just as important not to
be unlawfully defamed."
[38] The order does not
restrict the first respondent's right to access the court. She
retains her right to pursue her labour disputes.
She is simply
interdicted from defaming the applicants. The order does not
interfere with the functioning of other courts or tribunals.
SLAPP Suit
[39] The respondents
contend that the application constitutes a Strategic Litigation
Against Public Participation ("SLAPP suit").
This
submission is without foundation.
[40] A SLAPP suit is
typically brought by powerful entities to intimidate and silence
critics on matters of public interest. This
application was brought
to restrain defamatory conduct, not to silence legitimate criticism.
The allegations of xenophobia and
discrimination were baseless and
made with knowledge of their falsity. The respondents are not being
silenced; they are being held
accountable for unlawful conduct.
Non-Existent Facts
[41] The respondents'
most serious allegation is that the Court relied on "non-existent
facts" in its judgment. This allegation
is itself baseless and
reflects a fundamental misunderstanding of the record.
[42] The respondents
contend that the Court erred in finding that the second and third
respondents acted in their personal capacities.
The Court's finding
was based on their conduct: the second respondent personally authored
and sent defamatory letters; the third
respondent personally made
threats at the CCMA. The finding was properly grounded in the
evidence.
[43] The respondents
contend that the Court erred in stating that the letter of 28 July
2022 conveyed that the defamatory statements
were deliberately
intended to impugn the integrity of the applicants. The letter itself
stated that the respondents "have
not bothered to reply to your
allegations of defamation as they are ill-considered and naive".
This, together with the express
threat to report Professor Marwala to
the UNU, amply supports the inference that the statements were
intended to cause harm.
[44] The respondents
contend that the Court erred in using the phrase "or words to
that effect" in relation to the third
respondent's threat at the
CCMA. The third respondent did not dispute that he made such a
threat. The confirmatory affidavit of
Ms Froneman, which was not
challenged, set out the words used. The Court's formulation was
entirely appropriate.
[45] The allegation that
the Court relied on "non-existent facts" is unfounded and,
in the case of the second and third
respondents, who are legal
practitioners, borders on improper conduct.
Prospects of Success
[46] The respondents have
failed to demonstrate that another court would come to a different
conclusion. The applicants clearly
established the requirements for a
final interdict: a clear right to protect their good names and
reputations; an injury actually
committed and reasonably apprehended;
and the lack of an adequate alternative remedy.
[47] The respondents'
defences were properly considered and correctly rejected. The
allegations of xenophobia and discrimination
were baseless. The
respondents' conduct, particularly that of the second and third
respondents, went beyond the bounds of professional
representation
and was actuated by malice.
[48] There are no
reasonable prospects of success on appeal. The threshold under
section 17(1)(a)(i)
of the
Superior Courts Act has
not been met.
Compelling Reasons
[49] The respondents have
also failed to identify any compelling reason why the appeal should
be heard. There are no conflicting
judgments on the matters under
consideration. The issues raised are factual and specific to this
case. The suggestion that constitutional
rights have been infringed
is without substance.
Costs
[50] The respondents have
persisted with an unmeritorious application for leave to appeal. The
second and third respondents, as
legal practitioners, ought to have
known that the application had no reasonable prospects of success.
Their conduct in making unfounded
allegations against the Court,
including the serious charge of relying on "non-existent facts",
is improper and warrants
a punitive costs order.
[51] In the
circumstances, the applicants are entitled to their costs on the
scale as between attorney and client.
Order
[52] In the result, I
make the following order:
1. The application for
leave to appeal is dismissed.
The respondents are
ordered to pay the costs of this application on the scale as between
attorney and client, jointly and severally,
the one paying the other
to be absolved, which includes the employment of two counsel on
scale C.
TP MUDAU
ACTING DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
APPEARANCES
For
the Applicants in
the
Application
for Leave to Appeal:
Adv J P V McNally SC
and Adv T R Mafukidze
Instructed
by: Eversheds Sutherland (SA) Inc
Attorneys
For
the first Respondents
in
the
Application
for Leave to Appeal: Mr M E Machaba (in Person, as attorney for the
respondents
and on behalf of the first and third respondents)
Instructed
by:
Machaba Attorneys
Date of Hearing: 25
February 2026
Date of Judgment: 26
February 2026