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2026
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[2026] ZAGPJHC 254
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Akani Retirement Fund Administrators (Proprietary) Limited and Another v Independent Media (Proprietary) Limited and Others (58023/2021) [2026] ZAGPJHC 254 (9 March 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 58023/2021
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
In the matter between:
AKANI RETIREMENT FUND
ADMINISTRATORS
(PROPRIETARY) LIMITED
First Applicant
ZAMANI ERNEST
EPHRAIM LETJANE
Second Applicant
and
INDEPENDENT MEDIA
(PROPRIETARY) LIMITED
First
Respondent
ANEEZ
SALIE
Second Respondent
AYANDA
MDLULI
Third Respondent
THABO
MAKWAKWA
Fourth Respondent
JUDGMENT
Mia J
Introduction
[1]
The applicants obtained interim relief by
agreement, providing for the removal of two articles from media
platforms under the respondents
control in Part A of the application.
This is Part B of the application seeking final relief arising from
the alleged defamatory
publications referred to in Part A. The
respondents oppose the relief and raise procedural objections. They
also rely, in the alternative,
on defences including reasonable
publication and truth/public benefit.
Background facts
[2]
The first applicant is Akani Retirement
Fund Administrator (Akani), a private company duly and registered
under the
Pension Funds Act, 1956
as a pension fund administrator. It
has clients in South Africa and on the continent. The second
applicant is the managing director
of Akani. The first respondent is
Independent Media (Pty) Ltd (Independent Media), a company registered
in terms of the company
laws of South Africa. It owns and operates
various news and publication brands, including digital media
publications with an extensive
readership base. The second respondent
is Mr Aneez Salie (Mr Salie), a director of Independent Media and the
editor-in-chief of
Independent Media publication brands. The third
respondent is Mr Ayanda Mdluli (Mr Mdluli), an adult male editor
employed as such
by Independent Media. The fourth respondent is Mr
Thabo Makwakwa (Mr Makwakwa), an adult male journalist for
Independent Media
and the author of the articles complained of.
[3]
The respondents published a series of
articles and tweets that called into question the applicants’
commitment to responsibility,
accountability and fairness in the
sector and to their clients. The articles make allegations of
bribery, extortion, and the exercise
of undue influence. The
publications consisted of two online news articles published on
platforms under the control of the first
respondent; and tweets
published by the fourth respondent (both on his personal account and
via “The Insight Factor”)
which disseminated the
articles. In at least one instance, Mr Makwakwa added an allegation
of criminal misconduct, namely fraud.
The applicants maintain that
the allegations are unfounded, malicious and were published contrary
to the code of ethics, which
journalists are required to honour. They
maintain that the respondents failed to comply with their obligations
to verify the information
and thus spread harmful and injurious
allegations.
[4] The respondent
object on a procedural basis contending that the application is
impermissible as it requests piece meal
relief. The defamation should
be pursued by way of an action and not motion proceedings. Defamation
remedies should be requested
in one action. Moreover, the
application does no contain elements relating to Aquilian liability
or evidence to support the
claim especially establishing causation
for the damages it envisages. The respondents continue that
interdict and damages
proceedings should be claimed in separate
proceedings.
[5] The respondents
maintain that the publications are preceded by the word “alleged”
which would not cause a
reasonable reader to conclude that criminal
conduct is attributed to the applicants. The fourth respondent called
the applicants
for their version, and they refused to comment. They
cannot complain about a lack of balance when they refused the
opportunity
to comment. Where the applicants seek a final interdict
they fail to indicate a reasonable apprehension of harm. The
publication
was reasonable where it was in the interest of the public
and they attempted to verify information.
[6]
By agreement, interim relief was granted in Part A directing the
removal of the publications, deletion of the tweets and
a desistance
undertaking pending final determination of Part B. In t
his
Part B of motion proceedings concerning the publication of
allegations in publications under the first respondent’s
control
and associated tweets published by the fourth respondent, the
applicants seek final relief. The relief sought includes a declarator
that the statements are defamatory and unlawful, final interdictory
relief against republication, and ancillary relief relating
to an
apology and retraction and a determination that the respondents are
liable for damages to be determined later.
The issues
[7] The issues for
determination are:
7.1 Whether the
publications and tweets are defamatory of the applicants.
7.2 Whether any
recognised defence is established.
7.3 What final remedy is
competent and appropriate in motion proceedings, and whether the
Court should grant a compelled apology
and retraction and a
declarator of damages liability.
The publications
[8] The interim
order identifies the two impugned publications by title and date and
required their removal from all platforms
under respondents’
control. It also required deletion of the fourth respondent’s
tweets relating to the articles.
The first article
published on 30 November 2021 ascribed to the fourth respondent
includes allegations, inter alia, of an ‘unsavoury’
relationship with persons at the FSCA, that the applicants leaked
information, diverted funds which were supported by phone records
and
emails. Where the allegations were published on Mr Makwakwa’s
social media account a conversation ensued online which
included the
statement ‘
Go argue with those pensioners you defrauded.’
The publication of statements is common cause.
Procedural objection
[9] The respondents
contend that the relief is defective in several respects in that it
overlaps, the relief is non-existent
in law, that the relief is
incomprehensible, and that there are contradictions between the
interdict and damages as relief. It
is possible to pursue relief in
defamation matters where the appropriate relief is sought and the
requisites are met. The procedural
critique does not stand. It is,
however, relevant to whether all forms of relief sought are competent
and appropriate on these
papers.
Defamatory meaning
[10]
The Constitutional Court said in
Le
Roux v Dey
[1]
:
“
[T]he plaintiff
does not have to establish every one of these elements in order to
succeed. All the plaintiff has to prove at the
outset is the
publication of defamatory matter concerning himself or herself. Once
the plaintiff has accomplished this, it is presumed
that the
statement was both wrongful and intentional. A defendant wishing to
avoid liability for defamation must then raise a defence
which
excludes either wrongfulness or intent. Until recently there was
doubt as to the exact nature of the onus. But it is now
settled that
the onus on the defendant to rebut one or the other presumption is
not only a duty to adduce evidence, but a full
onus, that is, it must
be discharged on a preponderance of probabilities.”
[11] The applicants
are retirement fund administrators and allege that their reputation
and trustworthiness lie at the core
of their business. Any
allegations published implying corruption, dishonesty, regulatory
impropriety and fraud are prima facie
defamatory. The articles and
tweets complained of, read holistically, can bear such meanings. The
publications plainly refer to
the applicants. The respondents’
case is not that the statements are innocuous; rather, it is that the
statements are justified
or defensible in law.
[12]
Both parties relied on the analysis in
National
Media Ltd and Others v Bogoshi
[2]
,
the
applicant to support the view that the publication of the statements
was defamatory and the respondent relied on the same decision
to
support their defence that it was reasonable and for public benefit.
The first applicant as a juristic person has an interest
in their
dignity and reputation akin to its natural counterpart which deserves
legal protection.
[3]
In view of
the publication being common cause, the publications and tweets are
defamatory of the applicants.
Wrongfulness and onus
[13]
The applicants have proved publication and wrongfulness is presumed.
In the face of this publication, the respondents
have a duty to
adduce evidence to be discharged on a preponderance of probabilities
that the publication was not wrongful and with
intent.
[4]
Defences
Reasonable publication
[14] The
respondents rely on reasonable publication, contending that the
matter concerned issues of public interest and that
the reporting was
reasonable in the circumstances. This is evaluated in relation to the
applicants’ case is that the respondents
failed to take proper
steps prior to publication and failed to verify allegations. The
replying affidavit similarly disputes that
a fair or reasonable
opportunity to respond was provided and contends the publication was
rushed. Even where the subject matter
may be of public interest,
reasonable publication requires care commensurate with the gravity of
the allegations. Allegations of
corruption and fraud demand
demonstrable verification steps and a meaningful opportunity to
comment.
[
15]
On these papers, the respondents have not established sufficient
objective facts showing that the steps taken to verify
the
allegations and to obtain comment were reasonable, given the
seriousness of the imputations and the way they were conveyed
(including references to supposed records/emails). The fourth
respondent called whilst the second applicant was in a meeting.
Despite the response that the second applicant would revert, the
fourth respondent proceeded with haste to ensure publication of
the
statements found to be defamatory. The defence is therefore not
proved.
[16]
The steps taken to verify the information did not afford the
applicants an opportunity to respond. There was no urgency.
The
fourth respondent sought merely to get the information published
first. In the absence of affording an opportunity to respond
it is
not clear how the fourth applicant concluded that
its
source
was reliable. Whilst allegations of impropriety should be
communicated to the public, the balancing of interests does not
show
that the fourth respondent took reasonable steps to determine the
truth and to permit an opportunity of responding. The respondents
concede they cannot prove truth of underlying misconduct.
[17]
If respondents cannot prove substantial truth of allegations, their
defence fails
.
[18] In determining
whether the publication was reasonable, the respondents reliance on
an urgency to meet a publication deadline
is considered where the
defamatory statements, implying guilt of the applicants and
suggesting they acted fraudulently are balanced
with the applicant’s
right to a good name and integrity does not lead to a conclusion that
the journalists acted responsible
and reasonably. The existence of
allegations does not establish the substantial truth of the sting of
corruption, fraud or other
criminality. On this record, substantial
truth of those allegations has not been established on a balance of
probabilities. The
defence fails.
[19]
Whilst the articles have been retracted there is the possibility that
the respondents may republish the information.
The urgency is no
longer present. Is there ongoing risk of repetition?
Remedies
Declarator and
interdict
[20] Having found
the publications defamatory and the defences unproven, the applicants
have shown a basis for a final interdict,
directed at preventing
repetition of the specific defamatory allegations embodied in the
identified articles and tweets. The interim
removal was expressly
without admission and did not resolve final rights. A final interdict
is appropriate to prevent repetition
of the defamatory allegations.
Although interim removal has occurred, the applicants’
apprehension of repetition is not illusory
given the nature of media
publication and social media dissemination.
Apology/retraction and
damages-liability declarator
[21] The notice of
motion connects an apology or retraction relief with a declarators of
damages liability to be quantified
in later action proceedings. On
these papers, having found the statements are defamatory and
unreasonable a compelled apology or
retraction is appropriate.
Considering the facts stated by the applicant, together with the
facts admitted by the respondent, and
the respondent’s version
of disputed facts, an order for final relief is appropriate. The
publication is not disputed. Allegations
of fraud are harmful to the
applicants. The respondents’ conduct was not reasonable and is
unlawful. The offending articles
and the impugned tweets contain
statements and allegations of misleading nature, which are defamatory
of and injurious to the applicants.
[22] Where the
applicant intends to pursue delictual damages and seeks declarators
of damages liability and simultaneously
asks for an apology and
retraction, the court is required to assess the appropriate
combination and adequacy of remedies on a fuller
evidential platform.
Usually, the court has evidence on the defamation including evidence
on reputational harm and redress. I am
satisfied that there is
reputational harm the extent of which is not evident. Thus, the
appropriateness of a bare declarator of
liability for damages where
the respondents contest that such relief is not competent in these
motion proceedings. The dispute
relates to harm occasioned. In
formulating the relief the court would consider the extent of damage
to reputation and factors flowing
there from. The publication is not
disputed and the finding I have made is that the publication was
unlawful, the applicants are
entitled to part of the relief they
seek.
Costs
[23] The applicants
succeed on the principal issues of defamation and final interdictory
relief. They fail on compelled apology/retraction
and
damages-liability declarators. Having succeeded substantially the
applicants are entitled to their costs which shall include
the costs
of two counsel. Costs should follow the result.
Order
[24] The following
order is made:
1. It is declared
that two publications identified in paragraphs 1.1 and 1.2 of the
interim order and the related tweets identified
in paragraph 1.3 of
that order are defamatory of the applicants and unlawful.
2. The respondents
are interdicted and restrained from publishing, disseminating or
repeating the defamatory allegations embodied
in those publications
and tweets.
3. The respondents
are directed within 48 hours of this order, to remove or cause the
removal from the platforms, the offending
articles or other similar
defamatory statements made, published or disseminated by them in
relation to the applicants.
4. The offending
articles and the impugned tweets contain, disseminate and/or
publicise statements and allegations of a false
and/or misleading
nature, which are defamatory of and/or injurious to the applicants.
5. The respondents
are ordered jointly and severally with the other opposing parties,
the one paying the others to be absolved,
to pay the applicants’
costs which shall include the costs of two counsel.
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On behalf of the
applicant
: JPV McNally SC
mcnally@law.co.za
:S Scott
scott@group621.co.za
Instructed
by
: Webber Wentzel Attorneys
Vlad
Movshovich
vlad.movshovich@webberwentzel.com
Dylan Cron
dylan.cron@webberwentzel.com
Ahmed Rajan
ahmed.rajan@webberwentzel.com
On behalf of the
respondent
: P Myburgh SC
myburgh@capebar.co.za
S Bosch
sbosch@capebar.co.za
Instructed
by
: Abrahams Kiewitz Incorporated
Ilke
Kearns
ilke@ak.law.za
Charlane
Alexander
charlane@ak.law.za
Date of
hearing
: 17 April 2025
Date of
judgment
: 9 March 2026
[1]
Le
Roux v Dey
[2011]
ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) at para 85.
[2]
National
Media Ltd v Bogoshi
[1998]
ZASCA 94; 1998 (4) SA 1196 (SCA).
[3]
Media
24 Ltd v SA Taxi Securitisation (Pty) Ltd
2011
(5) SA 329 (SCA).
[4]
Le
Roux v Dey
above n 1 at para 85.