About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 289
|
|
Masondo v Mampuele (Leave to Appeal) (2026/032265) [2026] ZAGPJHC 289 (18 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case
2026-032265
1.
Reportable: No
2.
Of interest to other judges: No
3.
Revised
WRIGHT
J
18
March 2026
In
the matter between:
DAVID
MASONDO
APPLICANT, MAIN APPLICATION
and
RALEBALA
MATONE MAMPUELE
RESPONDENT, MAIN APPLICATION
JUDGMENT – LEAVE
TO APPEAL
-
WRIGHT J
1. On 4 March 2026, sitting in
the urgent court, I handed down a typed, signed judgment. I held that
Mr Mampuele had published
statements about Mr Masondo which were
prima facie defamatory. In the absence of any evidence by Mr Mampuele
to justify his statements
I interdicted him from future, like conduct
and ordered Mr Mampuele to issue, not a retraction nor an apology,
but a correction.
The correction was in the form of emails to be sent
by Mr Mampuele to the original addressees of the defamatory material.
Mr Mampuele
was to state that the publications were false and
recklessly made without verifying the true facts. This had to be done
within
twenty four hours of the order,
2. Relief had been sought and
was granted in final form.
3. Mr Mampuele now seeks leave
to appeal. The notice of motion is dated 12 March 2026. Leave is
sought to the Gauteng Division,
Johannesburg.
4. Mr Masondo sought
neither a retraction, nor an apology nor damages. He sought, among
other prayers, a correction.
Mr N Maenetje SC for Mr Masondo made it
clear during the hearing of the urgent application that Mr Masondo
had no intention of
instituting action.
5. Mr L J Lowies, for Mr
Mampuele in the present application for leave to appeal submits that
the correction relief impinges
on the right to free speech.
6. Our courts have for many
years ordered retraction and apology in defamation cases. These
orders are considered with
the question of damages. Court ordered
retractions and apologies are not free speech but they are granted
nonetheless in suitable
cases.
7. In my view, the same
principle should apply, in appropriate cases, where the relief sought
is neither retraction, nor apology
nor damages but rather a
correction. The fact alone that court ordered correction is not free
speech should not be a bar to a correction
being ordered in an
appropriate case.
8. The question arises, why
should a court order a correction when a finding by the court of
wrongful past conduct, coupled
possibly with an interdict against
future wrongful conduct, might suffice ? In my view, the answer is,
so that the wrong might
be righted by the person who committed the
wrong. In the present case, Mr Mampuele was ordered to undo his
wrongdoing. This
is the other side of the coin of retraction and
apology and, in principle, should be as acceptable a remedy as
retraction and apology.
9. In his separate concurring
judgment in Dikoko v Mokhatla (CCT62/05) [2006] ZACC10, paragraphs
105 to 121, Justice Sachs
focussed on apology rather than on monetary
award as a means of correcting a wrong committed by defamation.
10. In paragraph 109, Justice
Sachs held that “
The true and lasting solace for the person
wrongly injured is the vindication by the Court of his or her
reputation in the community.
The greatest prize is to walk away with
head high, knowing that even the traducer has acknowledged the
injustice of the slur
.”
11. In paragraph 110, Justice
Sachs held that “
It is the judicial finding in favour of
the integrity of the complainant that vindicates his or her
reputation, not the amount of
money he or she ends up being able to
deposit in the bank.”
12. At paragraph 112 Justice
Sachs held that “
What is called for is greater scope and
encouragement for enabling the reparative value of retraction and
apology to be introduced
into the proceedings. In jurisprudential
terms, this would necessitate reconceiving the available remedies so
as to focus more
on the human and less on the patrimonial dimensions
of the problem. The principal goal should be repair rather than
punishment.
To achieve this objective requires making greater
allowance in defamation
proceedings for acknowledging the
constitutional values of
ubuntu – botho. “
13. I must be mindful that “
the hydraulic pressure on all concerned to go with the
traditional legal flow inevitably produces a set of rules that are
self-referential
and self-perpetuating. The whole forensic mindset,
as well as the way evidence is led and arguments are presented, is
functionally
and exclusively geared towards enlarging or restricting
the amount of damages to be awarded, rather than towards securing an
apology.
In my view, this fixed concentration on quantum requires
amendment. Greater scope has to be given for reparatory remedies.”
Dikoko at paragraph 117.
14. In paragraph 120, when
considering monetary damages and apology, Justice Sachs said “
Moreover, it is well established that damage to one’s
reputation may not be fully cured by counter-publication or apology;
the harmful statement often lingers on in people’s minds.”
( My emphasis). It seems that when this passage is read with the
balance of his judgment, Justice Sachs is suggesting that
counter-publication,
or correction, may be considered as a possible
separate court ordered remedy rather than just as a factor to be
taken into account
when considering the quantum of monetary damages,
if any.
15. In paragraph 121 Justice
Sachs said “
Whatever renovatory modalities are employed,
and however significant to the outcome the facts will have to be in
each particular
case, the fuller the range of remedial options
available the more likely will justice be done between the parties.”
16. For an in depth discussion
on restorative justice, see Face to face: Sachs on restorative
justice, by Professor Ann Skelton.
17. In the present case, Mr
Mampuele was asked, prior to the launch of the urgent application to
desist. He did not. In his
answering affidavit he doubled down. In
these circumstances, I held that Mr Masondo should be restored to his
pre-defamation dignity
by the orders made.
18. On the afternoon of 17
March 2026, the day before the hearing of this application for leave
to appeal, Mr Masondo’s
counsel filed heads of argument.
Included in the heads is an argument that Mr Mampuele has perempted
an appeal. Two grounds are
relied on. First, it is alleged in the
heads that straight after my judgment on 4 March 2026, Mr Mampuele
addressed supporters
outside court. He allegedly expressed his
disappointment at the judgment but he also expressed his relief that
he had not been
interdicted from communicating with the Public
Protector or the SAPS. It is further submitted that Mr Mampuele did
not tell his
supporters outside court that he intended to appeal.
19. In my view, this ground, if
factually correct, does not nearly meet the requirement for
peremption that acquiescence in
the order must be by conduct that
points indubitably and necessarily to such acquiescence.
20. The second ground for
peremption is that, according to the heads of argument, Mr Mampuele’s
attorney, on 6 March
2026, that is two days after the judgment and
six days before the present application was launched, sent emails to
the necessary
addressees, containing the correction as ordered.
21. Mr Lowies, for Mr Mampuele
in the present hearing did not suggest that the facts alleged as
bases for the peremption argument
are not correct. He argued that I
should ignore the alleged facts as they do not form part of the
record. I shall assume, in favour
of Mr Masondo, but without deciding
the point, that the facts are correct.
22. Twenty four hours after my
order, Mr Mampuele found himself in a difficult situation. He was
venturing into contempt territory
but he still had, under Uniform
Rule 49(1)(b) another fourteen days within which to deliver an
application for leave to appeal.
In these circumstances, it would be
reaching too far to hold that Mr Mampuele waived his right to seek
leave to appeal.
23. That said, in my view, Mr
Mampuele would have a reasonable prospect on appeal and there is
compelling reason why an appeal
should be heard.
ORDER
1.
Leave
is granted to appeal to a Full Court, Gauteng Division, Johannesburg.
2.
Costs
in the appeal.
WRIGHT
J
HEARD
18 March 2026
DELIVERED
18 March 2026
APPEARANCES
:
APPLICANT,
main application Adv B
Manentsa
Instructed
by
Webber Wentzel
dario.milo@webberwentzel.com
RESPONDENT,
main application Adv LJ Lowies
Instructed
by
Vardakos Attorneys
vardakos@worlonline.co.za