IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
REPORTABLE
Case No.: 2025-250145
In the matter between:
NELSON MANDELA UNIVERSITY Applicant
and
YONELA MASHALABA Respondent
JUDGMENT
EKSTEEN J:
[1] The respondent, Mr Mashalaba, is employed by the applicant, the Nelson
Mandela University (the NMU), as an administrative assistant to the Chair for Human
Settlements, housed in the university’s Faculty of Engineering, the Built Environment
and Technology. On 30 December 2025, the NMU obtained an order in the form of a
rule nisi on an urgent basis calling upon the respondent to show cause, if any, why an
order should not be granted that:
‘2.1 The respondent is interdicted and restrained from publishing any and all defamatory
statements, posts, memes, comments, video clips, or sound clips, to or on any platform,
referring to the applicant and/or its employees wherein he publicises, infers, or imputes
racial discrimination, bullying, harassment, and non-payment for work done.
2.2 The respondent shall forthwith remove the publications attached to the founding affidavit
… and any or all previous publications relating to the applicant and/or its employees
from his Facebook and LinkedIn accounts or any other social media or public platform.
2.3 The respondent shall publish a retraction and apology to the satisfaction of the applicant
on his Facebook and LinkedIn accounts by 17h00 hours on Friday, 2 January 2026.’
[2] The court further ordered that paragraphs 1, 2 and 3 of the rule nisi, quoted
above shall operate as an ‘interim interdict’ with immediate effect. On the return day the
confirmation of the rule was opposed. I pause to record that, notwithstanding the form
of the order, the ‘interim interdict’ issued in the terms of subparagraphs 2 and 3 of the
rule nisi is final in effect, no longer susceptible to alteration, and have been fully
complied with. I shall revert to this issue to the extent necessary.
Background
[3] During the latter half of 2025, the respondent lodged a number of complaints
addressed to various employees of the NMU in respect of a range of issues. On
17 September 2025, he raised concerns relating to perceived procedural irregularities
which he alleged had occurred in the appointment of the Head of Department: Building
and Human Settlements Development. He held the view that there had been an attempt
to discredit a highly qualified black woman in favour of a white male candidate who di d
not meet the requirements for appointment. He was not satisfied with the response
received from the university and escalated his complaint to the chairperson of the NMU
received from the university and escalated his complaint to the chairperson of the NMU
Council and to the Parliamentary Portfolio Committee on Higher Education. On 27
October 2025, the Vice-Chancellor of the NMU responded to the Portfolio Committee in
which she recorded the history of the matter. She emphasised that the complaints of
discrimination at the university were considered and processed promptly to ensure that
the dignity of all involved was protected and asserted that the matter was receiving her
attention, in accordance with the provisions of the university’s policy. The explanation
appeared to satisfy the Parliamentary Portfolio Committee, but it did not placate Mr
Mashalaba. He again addressed the Parliamentary Portfolio Committee on 3 November
2025, in which he attacked the Vice -Chancellor’s response as inaccurate, misleading,
and dismissive of the substantive issue.
[4] During October 2025 Advocate Newton, who acts as the special advisor to the
Vice-Chancellor, also referred the complaint to Mr Boqwana, the NMU’s appointed
independent ombud for his investigation. Mr Mashalaba contended that the ombud, Mr
Boqwana, had been handpicked by Advocate Newton to prejudice him. The charge was
unfounded and remains unexplained. There was some dispute on the papers about the
extent of the interaction between Mr Mashalaba and Mr Boqwana, but it is not
necessary for purposes of this judgment to resolve these issues. Suffice it to record
that the dispute was not resolved.
[5] On 25 November 2025, the Executive Director of Human Resources at NMU
received a letter of demand from an organisation called ‘Legend Freedom’. The letter
bears the heading: ‘FORMAL DEMAND FOR REMEDIAL ACTION REGARDING
UNFAIR LABOUR PRACTICE, PROCEDURAL IRREGULARITIES, DISCRIMINATION
& ABUSIVE PROCESS AFFECTING MR YONELA MASHALABA’. As reflected in the
heading, the demand now encompassed a range of accusations, including alleged
‘institutional culture, inequality and biased decision -making’, the illegiti macy of the
Faculty Contracts Committee, unfair labour practices and the irrational
recommendations of the Faculty Contracts Committee.
[6] I pause to record that the contractual issues raised in the letter of demand
appear to relate to work which Mr Mashalaba alleged that he had performed for the
university, and he contended that he was entitled to payment therefor. The issue has
not been aired fully in the papers, and it cannot be resolved on the papers. However, as
will appear from the impugned publication, this issue appears to have been the
will appear from the impugned publication, this issue appears to have been the
immediate trigger that gave rise to the publication.
The publications
[7] Against this background, on 18 December 2025, Mr Mashalaba posted a
statement on his ‘Facebook’ and ‘LinkedIn’ accounts under the heading ‘Public
Statement: Urgent Call for Assistance Regarding Discrimination and Non -Payment at
Nelson Mandela University’. In the statement, he accused the NMU of ‘systemic racial
discrimination’ and of ‘enabling practices that disadvantage and marginalise black staff
and students’. He made reference to his complaint relating to the appointment of the
Head of Department: Building and Human Settlements Development and asserted that,
as a result thereof, he had experienced ‘targeted retaliation spearheaded by our
director, particularly through the Faculty Contracts Committee’ which he said had ruled
that he should not be paid for work already completed over the past seven months.
[8] In response thereto, the Legal Services Department of the NMU addressed a
letter of demand to Mr Mashalaba to cease publishing the said statements and to
remove and delete the said posts on the social media accounts, failing which, it
threatened legal action. The demand was met with defiance, and on 19 December
2025, Mr Mashalaba again posted a letter on his ‘Facebook’ account with the caption:
‘Instead of paying me my money, Nelson Mandela University is now threatening me with
legal action as expected’. A further letter of demand followed, this time from JGS
Attorneys, representing the NMU, again demanding that he stop publishing these
statements and that he remove and delete the posts on his social media accounts.
Both letters of demand had asserted that the statements published were false,
unsubstantiated, malicious and defamatory against them, as they alleged racism, unfair
discrimination and unfair treatment. Again, upon receipt of the demand, Mr Mashalaba
responded on his ‘LinkedIn’ account. He stated:
‘Nelson Mandela University is refusing to pay me my money for the DECIRE -WATER Project
‘Nelson Mandela University is refusing to pay me my money for the DECIRE -WATER Project
and Council for Scientific and Industrial Research (CSIR) project but has decided to hire their
favourite bully, JGS Lawyers to harass me, (sic) you can’t bully me silence (sic). Nelson
Mandela Foundation, this is what your associates are doing, harassing employees with lawsuit
instead of paying them.’
The application
[9] As I have said, the NMU sought an interdict in the terms set out in paragraph 1 of
the rule nisi. They contended that they had employed all reasonable efforts at their
disposal within their regulatory framework and prevailing policies to accommodate and
ventilate Mr Mashalaba’s grievances and that some of these processes were still
ongoing. They iterated that the allegations of racial discrimination were unsubstantiated
and false, and that they were made arbitrarily and maliciously to impair the good name
and reputation of the NMU and its staff. Accordingly, the NMU contended that the
statements were defamatory and that it had a clear right to protect its good name and
reputation.
[10] Mr Mashalaba denied that the statements of discrimination and racism were
defamatory, and he denied that the NMU were entitled to silence him when criticising
them publicly to protect its good name and reputation. The issue was considered in the
urgent application, and this court held that the statements were in fact defamatory. The
argument was not renewed on the return day. Originally, before the urgent application,
Mr Mashalaba had filed a brief affidavit, and he appeared in person. At the hearing he
contended that the publications were ‘Protected Disclosures’. The argument, too, was
dismissed in the first hearing, has not been persisted in, and I do not address it again.
In a supplementary answering affidavit Mr Mashalaba raised two issues to which he
referred as points in limine. Firstly, he contended that the NMU, as an organ of state,
does not have the right to sue for defamation, and accordingly has no right to interdict
the publication of allegedly defamatory statements against them. To do so , he said,
would amount to an infringement of his constitutional right to the freedom of speech.
Secondly, the contended that the application had not been authorised by the NMU and
that Professor Pottas, who attested to the founding affidavit, had not been properly
that Professor Pottas, who attested to the founding affidavit, had not been properly
authorised to institute the proceedings. Argument presented on the return day was
confined to these two points of law.
Authority to institute proceedings
[11] It is convenient first to deal with the second point in limine which relates to the
authority of Professor Pottas to have instituted the application on behalf of the NMU. In
the founding affidavit Professor Pottas said that she had been duly authorised to
represent the NMU in these proceedings and to depose to the founding affidavit. Mr
Mashalaba, in his initial affidavit resisting the urgent relief, did not take issue with these
averments. As I have explained, he was acting personally at the time, howev er, after
the urgent relief had been granted he obtained legal representation and a substantial
supplementary affidavit was delivered on 26 January 2026. In his supplementary
answering affidavit, he alleged:
‘The deponent to the applicant’s founding affidavit alleges that she has authority to represent
the applicant in the application. She does not allege that she has authority to institute the
proceedings on behalf of the applicant.
The deponent, an acting executive dean of one of many faculties of the applicant, requires
authority signed by the Vice Chancellor after consultation with the Chairperson of the Council to
institute any legal proceedings on behalf of the applicant, in terms of the policy Document on the
delegation of the decision authority-decision making on the institutional legal action.’ (Sic)
A copy of the policy was annexed to the applicant’s replying affidavit.
[12] Advocate Newton, who deposed to the replying affidavit on behalf of the NMU,
responded to these averments. He said that the Vice -Chancellor had instructed him to
proceed to ‘operationalise the institution of the … application’. He said that this was
customary in the institution of legal proceedings since the Vice -Chancellor is not directly
involved in the running of legal services with the applicant. Such function is vested in
the registrar of the university. Advocate Newton explained that to ‘operation alise the
the registrar of the university. Advocate Newton explained that to ‘operation alise the
institution’ of an application, in practice, required him, as special advisor to the Vice -
Chancellor, to make contact with the registrar. The registrar, in turn, would contact the
head of the legal services department of the NMU, Professor van der Walt. Professor
van der Walt, in his capacity as head of legal services, would ordinarily depose to the
founding affidavit. However, he was abroad at the time, and accordingly, he instructed
Ms Lee-Anne Groener, a legal advisor in the department, to t ake the lead in this matter.
Professor Pottas, he said, deposed to the founding affidavit as she has personal and
intimate knowledge of the factual matrix underpinning the matter.
[13] In addition, in March 2026, the NMU sought leave to file a further supplementary
affidavit to present a letter received from the Vice -Chancellor by the NMU’s attorneys of
record on 12 February 2026. The application was not opposed and the supplementary
affidavit was received in evidence. The Vice-Chancellor recorded in the letter:
‘I hereby confirm that in my capacity as the Vice -Chancellor of the Nelson Mandela University
and as I am empowered to do by virtue of the institution’s Delegation of Decision -making
Authority Policy, I authorized the institution of the urgent application … against Yonela
Mashalaba in the Gqeberha High Court during December 2025.
For this purpose, I authorized Prof. Dalenca Pottas, who has intimate knowledge of the matter
to institute the application on behalf of the University and to depose to the founding affidavit.
Nevertheless, and to the extent that it may be necessary, I hereby ratify all actions taken by
Prof. Pottas in respect of the said application and the Legal Services Department of the
University who is authorized to appoint attorneys and counsel/s and to provide them with
instructions …’
[14] On the return day Ms Sidlai, on behalf of the respondent, persisted in the point
that the applicant had failed to establish that the application had been properly
authorised. She submitted that the application should be dismissed on this basis alone.
The argument was two -fold. Firstly, it was argued that there was a fundamental
contradiction between the version advanced by Advocate Newton on the one hand and
Professor Pottas and the Vice-Chancellor on the other. Secondly, it was contended that
neither Advocate Newton, in his affidavit, nor the Vice -Chancellor, in her letter, states
that the authorisation was granted after consultation with the chairperson of council.
Thus, so the argument went, the alleged authority was void for lack of compliance with
the procedure laid down in the policy.
the procedure laid down in the policy.
[15] I do not think that the first argument can be sustained. Professor Pottas said that
she was authorised to ‘represent’ the NMU in the matter. In her letter, the Vice -
Chancellor confirmed that she had authorised Professor Pottas to ‘institute the
application and to depose to the founding affidavit’. She proceeded to state that, ‘to the
extent that it may be necessary’ she ratified the conduct of Professor Pottas.
[16] Advocate Newton, as his title suggests, is a lawyer who acts as the special
advisor to the Vice -Chancellor. As adumbrated earlier, he explained that the Vice -
Chancellor had instructed him to ‘operationalise the intuition’ of proceedings. This he
did in the manner set out earlier. On a proper reading of his affidavit, it seems to me
that he was instructed by the Vice -Chancellor to set in motion all the administrative
processes to support Professor Pottas, who is not a lawyer, to institute the proceedings.
There is no basis to find that any one of these witnesses may have been untruthful. Ms
Sidlai submitted that it was inconceivable that the Vice -Chancellor would authorise the
institution of proceedings and later ratify the decision taken under such authority. Thus,
she urged me to hold that Professor Pottas did not have the authority to institute the
proceedings. These submissions, too, cannot be sustained. The letter of the Vice -
Chancellor sought to ratify the institution of the proceedings, ‘to the extent that it may be
necessary’. There is no ambiguity in the statement. Ratification was granted ex
abundante cautela, not because the Vice-Chancellor had not given prior authorisation.
[17] I turn to the second leg of the argument. It is common cause that the respondent
did not bring a challenge to the authority of Professor Pottas by notice in terms of rule
7(1) of the uniform rules of court. The challenge was raised in the supplementary
answering affidavit more than a month after the delivery of the application. On behalf of
Mr Mashalaba it was argued that the authority of a person instituting proceedings on
behalf of a litigant may be challenged on the papers and that a litigant may elect not to
make use of the benefit of rule 7(1). 1 On behalf of the NMU, on the other hand, Mr
Moerane contended that a challenge to the authority of a deponent to institute
proceedings may only be brought in terms of rule 7(1) of the uniform rules of court.
proceedings may only be brought in terms of rule 7(1) of the uniform rules of court.
Absent such an attack the deponent’s authority to have instituted the application must
be accepted.
1 In support of the argument reliance was placed on Minister of Water and Sanitation v Clackson Power
(Pty) Ltd and Another 2024 (5) SA 280 (WCC) at para 50 and 51.
[18] Before 1987, rule 7 related to action proceedings only and required of a plaintiff’s
attorney to file a power of attorney with the registrar before the issue of summons 2. In
respect of application proceedings Watermeyer J in Merino Ko-operasie3 said:
‘There is a considerable amount of authority for the proposition that, where a company
commences proceedings by way of petition, it must appear that the person who makes the
petition on behalf of the company is duly authorised by the company to do so. This seems to me
to be a salutary rule and one which should apply also to notice of motion proceedings where the
applicant is an artificial person. In such cases some evidence should be placed before the Court
to show that the applicant has duly resolved to institute the proceedings and that the
proceedings are instituted at its instance.’
[19] In 1987, the uniform rules of this court were considerably revised. The revised
rule 7 is not confined to action proceedings and does not require a power of attorney to
be filed at commencement of proceedings. Only if the authority to act on behalf of the
parties is challenged in terms of rule 7, is the party required to satisfy the court that he is
properly authorised to act on behalf of the litigant. 4 The rationale for amendment and
the effect thereof were explained in Eskom5 as follows:
‘The care displayed in the past about proof of authority was rational. It was inspired by the fear
that a person may deny that he was party to litigation carried on in his name. His signature to
the process, or when that does not eventuate, formal proof of authority would avoid undue risk
to the opposite party, to the administration of justice and sometimes even to his own attorney.
…
The developed view, adopted in Court Rule 7(1), is that the risk is adequately managed on a
different level. If the attorney is authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant. There is no need that any other person, whether
2 Rule 7(1) provided: ‘Before summons is issued in any action at the instance of the plaintiff’s attorney,
the attorney shall file with the registrar a power of attorney to sue. Such power of attorney shall state
generally the nature of the particular action authorised to be instituted, the nature of the relief to be
claimed therein and the name of the party to be sued.’
3 Mall (Cape)(Pty) Ltd v Merino Ko-operasie Beperk 1957 (2) SA 347 (C) at 347G-H.
4 Rule 7(1) in the revised form provides: ‘Subject to the provisions of subrules (2) and (3) a power of
attorney to act need not be filed, but the authority of any one acting on behalf of a party may, within 10
days after it has come to the notice of the party that such a person is so acting, or with the leave on the
court on good cause shown at any time before judgment, be disputed, whereafter such person may no
longer act unless he satisfied the court that he is authorised so to act, and to enable him to do so the
court may postpone the hearing of the action or application.’
5 Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705D-H.
he be a witness or someone who becomes involved especially in the context of authority, should
additionally be authorised. It is therefore sufficient to know whether or not the attorney acts with
authority.
As to when and how the attorney's authority should be proved, the Rule -maker made a policy
decision. Perhaps because the risk is minimal that an attorney will act for a person without
authority to do so, proof is dispensed with except only if the other party challenges the authority.
See Rule 7(1).’
[20] And later, in Eskom,6 Flemming DJP said:
‘If the applicant had qualms about whether the “interlocutory application” is authorised by
respondent, that authority had to be challenged on the level of whether [the respondent’s
attorney] held empowerment. Apart from more informal requests or enquiries, the applicant’s
remedy was to use Court Rule 7(1). It was not to hand up heads of argument, apply textual
analysis and make submissions about the adequacy of the words used by a deponent about his
own authority.’
[21] In School Site, 7 the Supreme Court of Appeal (SCA) specifically approved the
reasoning in Eskom. In School Site, the authority of an official in the employ of the City
of Johannesburg to institute proceedings was challenged. In response, he produced a
resolution of the municipal council which authorised them to launch proceedings of the
present kind on behalf of the municipality ‘in consultation with the Executive Director:
Corporate Services’ or the ‘Director: Legal Services’. He said that he consulted with the
applicant’s Director: Legal Services in respect of the application but did not disclose the
attitude of the Director: Legal Services. 8 In the appeal, counsel for the unlawful
occupiers was constrained to acknowledge that it was not open to her to raise the
argument in the absence of a rule 7(1) challenge, by virtue of the decision in Eskom.9
The endorsement by the SCA of the reasoning of Eskom seems to me to be conclusive
6 At 706B-D.
6 At 706B-D.
7 Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at 206 para 14.
8 The challenge was similar in nature to that raised by Mr Mashalaba in this case.
9 School Site at para 14.
of the enquiry. Such a challenge can only be made in terms of rule 7(1). Thus, in Du
Rand NO10 the SCA reiterated that:
‘[I]f the appellants seriously doubted whether the respondent had the authority to instruct an
attorney to institute and conduct the proceedings on behalf of the respondent, the procedure in
Rule 7(1) should have been invoked.’
[22] The same argument was raised in Umvoti11 that rule 7 provides only one possible
procedure that a litigant may follow to challenge the authority to litigate and that he was
entitled, at his election, to challenge the authority on the application papers. Gorven J,
writing for the full court, considered the argument and had regard to the well-established
authority in Merino Ko-operasie.12 He concluded thus:
‘I am therefore of the view that the position has changed, since Watermeyer J set out the
approach in the Merino Ko -operasie Bpk case. The position now is that, absent a specific
challenge by way of rule 7(1), “the mere signature of the notice of motion by an attorney and the
fact that the proceedings purport to be brought in the name of the applicant” is sufficient. It is
further my view that the application papers are not the correct context in which to determine
whether an applicant which is an artificial person has authorised the initiation of
application proceedings.’
[23] If any doubt remained, it was dispelled in Limpopo Provincial Council13 where the
SCA held:
‘The position is now established that the manner to challenge the authority of a litigant is to
utilise rule 7(1) of the Uniform Rules of Court. The original understanding of rule 7(1) was that it
only applied to the mandate provided to attorneys. However, this Court in Unlawful Occupiers,
School Site v City of Johannesburg (Unlawful Occupiers), citing Eskom v Soweto City Council
and Ganes and Another v Telecom Namibia Ltd , held that the remedy for a respondent who
wishes to challenge the authority of a person allegedly acting on behalf of the purported
wishes to challenge the authority of a person allegedly acting on behalf of the purported
applicant is provided for in rule 7(1).’
10 Du Rand NO and Others v Faerie Glen Renaissance Scheme [2010] 1 All SA 383 (SCA) at para 6.
11 ANC Umvoti Council Caucus and Others V Umvoti Municipality 2010 (3) SA 31 (KZP) at para 28. See
also RML Lighting (Pty) Ltd v Vangiflash (Pty) Ltd (13682/22) [2023] ZAKZPHC 118 (19 October 2023) at
para 43.
12 See fn 3 at para 28.
13 Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated
Attorneys and Others (459/22) [2023] ZASCA 112 (26 July 2023) at para 21.
[24] As I have said, Ms Sidlai sought refuge in Clackson Power. In Clackson Power14
the court declined to follow Umvoti. It explained the reasons for doing so as follows:
‘I am mostly persuaded by the fact that in School Site the Supreme Court of Appeal did not even
mention Mall (Cape) 15 or Tattersall.16 In terms of the sub silentio principle School Site does not
serve as precedent for the conclusion reached in ANC Umvoti.’
[25] Accordingly, the court held that Mall (Cape) and Tattersall were authority for the
proposition that a person instituting proceedings on behalf of a litigant can be
challenged on the papers. I am in respectful disagreement. Firstly, I doubt the authority
of a single judge sitting in a Provincial Division of the High Court to decline to follow a
decision of the SCA that has pertinently considered the import of the amended rule 7.
Secondly, it is apparent from the report of School Site that the SCA had been referred to
both Tattersall and Mall (Cape). Although they did not consider it necessary to deal with
these decisions, they chose to adopt the reasoning in Eskom. Mall (Cape) was decided
prior to the amendment to rule 7(1) and does not assist in the interpretation of the
amended rule. In Tattersall the argument relating to rule 7(1) was not raised. The
matter was argued, and the judgment written, on the assumption that it was proper to
raise a challenge to authority in application proceedings in the papers. The SCA held,
on this assumption, that authority had been established. Accordingly rule 7 was not
raised and it was not an issue before the SCA. The judgment of the SCA made no
reference to Mall (Cape) and does not serve as confirmation of the approach. Thus,
Tattersall is not authority for the proposition advanced. Moreover, it would appear from
the judgment in Clackson Power that the court was not referred to, nor did it consider
the judgment of the SCA in Limpopo Provincial Council.17
the judgment of the SCA in Limpopo Provincial Council.17
[26] In any event, it seems to me that the conclusion reached in Clackson Power is
destructive of, at least part of, the intention of the amended rule. As I have said, in
14 See fn 1 at para 49.
15 See fn 3.
16 Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA 222 (A).
17 See fn 13.
Eskom it was explained that the required proof of authority was inspired by the fear that
a person may deny that he was party to litigation carried on in his name, hence rule 7(1)
requires the challenge to be made within 10 days of becoming aware of the fact that a
person was acting on behalf of a purported applicant, unless the leave of the court is
obtained, on good cause shown. The rule seeks to determine the issue at the outset of
proceedings, thus preventing the process from running its course, with the concomitant
effect of mounting costs. Thus, in Janse van Rensburg 18 a full court in the Western
Cape explained that the subrule demands that the challenge be made within 10 days,
because a delay in challenging the authority is ‘inimical to the efficient administration of
justice’, and that challenges to authority, ‘if they are to be raised at all, should be raised
promptly and at the earliest opportunity’. To permit a party to raise the authority on
affidavit in the main application, thus allowing the entire application to run its course
before argument is presented on the authority, seems to me, at least to some extent, to
defeat the purpose of rule 7(1). For these reasons I consider that it should now be
accepted that the only means to challenge the authority of a litigant instituting
proceedings on behalf of another is through rule 7(1). It follows that a challenge to
authority must be dismissed.
University’s right to protect its good name and reputation
[27] I turn to the second argument raised, whether the NMU as an organ of state,
enjoys the right to a good name and reputation that would entitle it to sue for
defamation. It was common cause that the NMU is indeed an organ of state as defined
in s 239 of the Constitution. In Harrielall,19 the Constitutional Court considered a public
university to be an organ of state because it is a public institution through which the
state discharges its constitutional obligation to make access to further education
realisable.20
realisable.20
18 Janse van Rensburg v Obiang and Another (unreported WCC (A338/2018) [2019] ZAWCHC 3 (10 May
2019) at para 17.
19 Niekara Harrielall v The University of KwaZulu-Natal [2017] ZACC 38 (31 October 2017) at para 15.
20 See also Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and
Others Case CCT311/17 [2019] ZACC 38; 2019 (12) BCLR 1479 (CC); 2020 (1) SA 368 (CC) (10
October 2019).
[28] On behalf of Mr Mashalaba it was argued that it is settled law that an ‘organ of
state’ cannot be defamed and does not enjoy the locus standi to sue for defamation. Ms
Sidlai referred to LAWSA,21 where they say:
‘The state has no action for defamation. The principle does not only apply to central
government, but includes provinces, municipalities and all juristic persons that are part of the
governance of the country, that is, organs of state.’
The learned authors refer as authority for the latter proposition to Modus Publications.22
I shall revert to Modus Publications.
[29] However, Mr Moerane, for NMU, has urged me to hold that barring actions where
the plaintiff is the national, provincial or municipal government, does not necessarily bar
defamation actions by all corporations or legal entities owned or controlled by
government or carrying out some governmental functions. He has referred me to s 8(4)
of the Constitution, which provides for juristic persons to be entitled to the rights in the
Bill of Rights ‘to the extent required by the nature of the rights and the nature of the
juristic person’. Thus, it was argued that not all organs of state can be, or should be,
viewed through the same lens for purposes of determining whether a particular organ of
state has the right to a good name and reputation deserving of protection. He
contended that ‘organs of state’ are not always treated in the same manner.
[30] In Botha23 it was held that Eskom, an organ of state, is not controlled by any
national provincial department and that it is therefore not an extension of such a
department. It is an independent entity created by legislation. It was further held that
while Eskom is under a constitutional obligation to provide electricity for economic and
social well-being of people, it does not perform its functions in terms of the Constitution,
because the Constitution does not refer to Eskom, and it does not provide for its
existence.
existence.
21 LAWSA, 3rd ed, vol 14, Part 2, 147, para 121.
22 Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZS).
23 Botha and Others v Eskom Holdings SOC Ltd 2024 (2) SA 322 (FB) at para 21, after the argument on
the return day the decision in Botha was confirmed by the SCA. See Eskom Holdings SOC Ltd v Botha
[2026] ZASCA 48 (9 April 2026).
[31] There are other instances where ‘organs of state’ are treated differently. The
legislature has provided that certain organs of state are excluded from the provisions of
the Institution of Legal Proceedings against Certain Organs of State Act, 24 the Public
Finance Management Act, 25 and the Preferential Procurement Policy Framework Act. 26
So it has been held that procurement decisions of universities are not regulated by
s 217(1) of the Constitution because universities ‘are not department[s] of state or
administration in the national provincial or local sphere of government’ and none of them
is an institution identified for the purpose of s 217 of the Constitution in national
legislation.27 Thus, it was submitted that universities, having specialised functions and
identities distinct from that of government itself, ought to be allowed to bring a
defamation action.
[32] It is now widely accepted that ‘the state’ has no action for defamation, and by
necessary implication, is not entitled to an interdict to prevent defamatory statements
about its conduct. This, the courts have held is so because it does not enjoy a right to a
good name and reputation (Fama). At the hearing on the return day of the application,
it was common cause that the principle strikes at central, provincial and local
government. It may be further accepted that where government, at national, provincial
or local level seeks to discharge its governance functions through separate entities or
corporations under its control, such corporations are also subject to the principle.
Accordingly, as I shall explain, the issue which arises for decision is not whether the
NMU is an ‘organ or state’ as defined in the Constitution, but rather whether public
universities form part of the governance of the country, as envisaged in the authorities
to which I shall refer. Mr Moerane argued that they do not and that they have
specialised functions and identifies distinct from that of government itself.
specialised functions and identifies distinct from that of government itself.
24 Act 40 of 2002. See also Botha above.
25 Act 1 of 1999.
26 Act 5 of 2000.
27 Ma-Afrika Hotels (Pty) Ltd v Cape Peninsula University of Technology 2023 (3) SA 621 (WCC) at para
25.
[33] As explained earlier, the NMU relies on its right to dignity 28 and to its good name
and reputation for a final interdict. As adumbrated earlier, Mr Moerane relied, amongst
other things, on the provisions of s 8(4) of the Constitution, a provision contained in the
Bill of Rights. In this context he has referred me to s 39 of the Constitution which
permits the court, when interpreting the Bill of Rights, to consider foreign law. I shall,
accordingly, refer, to the extent necessary, to significant judgments in other common law
jurisdictions that may offer guidance in deciding the issue.
[34] That brings me to the development of the common law principle. It has its origin
in a decision in Die Spoorbond 29 which was decided in 1946. At the time it was
unsettled whether the law of defamation permitted a trading or business corporation to
claim damages for injury to its reputation 30. In Die Spoorbond, an action was brought in
the name of South African Railways and Harbours on account of a newspaper article
alleging that the railway administration had caused or permitted trains to be dangerously
overloaded and operated at excessive speeds, endangering the lives of travellers.
Although the named plaintiff was the South African Railways and Harbours, which
operated the railways of South Africa, the court of appeal held that it was in fact part of
the national government, and it identified the actual plaintiff as ‘the Crown’ or ‘the
Governor-General-in-council’.31 The Appellate Division held that ‘the Crown’ had no
right to sue for defamation. However, it did not decide whether a government -owned
corporation that was distinct from the government itself should have a defamation
action.
[35] In the minority judgment Schreiner JA said:
‘I am prepared to assume, for the purposes of the present argument, that the Crown may, at
least in so far as it takes part in trading in competition with its subjects, enjoy a reputation,
28 Section 10 of the Constitution.
28 Section 10 of the Constitution.
29 Die Spoorbond and Another v South African Railways ; Van Heerden and Others v South African
Railways 1946 AD 999.
30 South African Law of Defamation is now settled. All corporate entities, incorporated or not, both trading
and non-trading, for profit and not; non -profit organisations, as well as political parties, are entitled to
protect their reputation. See Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others 2023
(2) SA 404 (CC) at para 49 and 98.
31 At 1004-1005 (Watermeyer CJ, for the majority), 1010 (Schreiner JA).
damage to which could be calculated in money. On that assumption there is certainly force in
the contention that it would be unfair to deny to the Crown the weapon, an action for damages
for defamation, which is most feared by calumniators. Nevertheless it seems to me that
considerations of fairness and convenience are, on balance, distinctly against the recognition of
a right in the Crown to sue the subject in a defamation action to protect that reputation. The
normal means by which the Crown protects itself against attacks upon its management of the
country's affairs is political action and not litigation, and it would, I think, be unfortunate if that
practice were altered. … [A]ny subject is free to express his opinion upon the management of
the country's affairs' without fear of legal consequences. I have no doubt that it would involve a
serious interference with the free expression of opinion hitherto enjoyed in this country if the
wealth of the State, derived from the State's subjects, could be used to launch against those
subjects actions for defamation because they have, falsely and unfairly it may be, criticised or
condemned the management of the country. … Quite a number of Government departments, as
appeared in the course of the argument, indulge in some form of trading on a greater or a lesser
scale. Moreover, the Government, when it raises loans, is interested in the good or bad
reputation that it may enjoy among possible subscribers to such loans. It would be difficult to
assign any limits to the Crown's right to sue for defamation once its right in any case were
recognised.’32
[36] Thus, it seems that Schreiner JA would have rejected the defamation action by a
trading corporation owned and controlled by the national government even if the plaintiff
was distinct from ‘the Crown’.
[37] However, Watermeyer CJ, writing for the majority said:33
‘[T]he Crown's main function is that of Government and its reputation or good name is not a frail
thing connected with or attached to the actions of the individuals who temporarily direct or
manage some particular one of the many activities in which the Government engages, such as
the railways or the Post Office; it is not something which can suffer injury by reason of the
publication in the Union of defamatory statements as to the manner in which one of its activities
is carried on. Its reputation is a far more robust and universal thing which seems to me to be
invulnerable to attacks of this nature. No one who reads the alleged defamatory statements
32 At 1012-1013.
33 At 1009.
would regard the reputation or good name of the Crown (regarded as a perennially existing
legal persona whose function is that of carrying on all the multifarious activities of Government
in the Union) as having been lowered or injured by these publications, He knows that, though
the railways are vested in the Crown, the Crown is only a legal conception and takes no part in
the management of the railways.’
[38] Integral to the reasoning of the majority was the assumption that South African
Railways was simply a part of government and that it merely carried out government
functions. In my view, the reasoning of the majority in Die Spoorbond does not exclude
the acceptance of a cause of action for defamation if the plaintiff is not in substance ‘the
Crown’, carrying out government functions.
[39] Die Spoorbond left open whether a defamation action could be maintained by a
local government body, or a government owned corporation that was not legally part of
government itself. The issue was resolved, at least in England, by the House of Lords
in Derbyshire County Council 34 where they decided, unanimously, after referring to Die
Spoorbond, that a local authority had no right to seek damages in a defamation action.
The House of Lords reasoned that there were ‘features of a local authority which may
be regarded as distinguishing it from other types of corporation, whether trading or non -
trading’. Lord Keith noted:
‘The most important of these features is that it is a government body. Further, it is a
democratically elected body, the electoral process nowadays being conducted almost
exclusively on party political lines. It is of the highest public importance that a democratically
elected government body or indeed any governmental body should be open to uninhibited
public criticism. The threat of civil action for defamation must inevitably have an inhibiting effect
on freedom of speech.’35
[40] The decision re -enforced the principle that democratic accountability requires
[40] The decision re -enforced the principle that democratic accountability requires
that citizens must be free to criticise government without the chilling effect of potential
defamation actions. It held that at common law, local authorities, and by analogy, other
34 Derbyshire County Council v Times Newspapers Limited [1993] AC 534 (HL).
35 At 547.
governmental entities, have no cause of action for defamation. It was, however,
concerned with governmental bodies.
[41] The decision in Derbyshire County Council was followed in South Africa in Bitou
Municipality36. Traverso DJP , referred to Die Spoorbond and she quoted with approval
from Derbyshire County Council in holding that a municipality cannot sue for
defamation. She said:
‘The underlying ratio in all these decisions (and the authorities cited therein) remains constant,
namely that it will be contrary to public policy or public interest for organs of government ,
whether central or local, to have the right to sue for defamation.’ (My emphasis)
What emerges from these matters is that democratically elected governments, at any
level of government, or ‘organs of government’, whether central or local, have no right to
sue for defamation.
[42] In Modus Publications, McNally J, acknowledged that the principle extended to a
wider body than only the central government. He proposed that a right to sue for
defamation is not available to those artificial persons which are part of the governance
of the country. In deciding what is meant by 'part of the governance of the country’, the
question of whether the entity is a legal persona separate from national or local
government may play a role, but only small one. 37 McNally J afforded greater weight to
other criteria, namely, the degree of ministerial control over the entity, the extent of its
financial autonomy, whether the entity provided essential services traditionally provided
by government, and whether it effectively was a monopoly provider of the services.
Under these criteria, he concluded that the Post and Telecommunications Corporation
was an ‘organ of state’ for purposes of defamation.
[43] Modus Publications was a Zimbabwean decision. The term ‘organ of state’ had
nothing to do with the definition in s 239 of the Constitution in South Africa. As I have
nothing to do with the definition in s 239 of the Constitution in South Africa. As I have
explained, not all organs of state are always treated in the same way. McNally J
36 Bitou Municipality and Another v Booysen and Another 2011 (5) SA 31 (WCC).
37 Modus Publications at 1120H-I.
explained that the phrases ‘alter ego of the state’ and ‘organ of state’ are not terms of
art which have a specific legal definition. They must be defined in their context.
He said:
‘In the context of defamation, I do not consider it wise or desirable to attempt an exhaustive
definition of the category of artificial persons which should be denied the right to sue for
defamation because they are “the state”, “the alter ego of the state”, and “an organ of state”, “an
instrumentality of the state” or “an instrument of governance”.’38
I am in agreement with these comments. Accordingly, in my view, it does not follow that
every entity defined as an ‘organ of state’ in the Constitution would necessarily be an
‘organ of state’ for purposes of the law of defamation.
[44] I have been referred to the decisions in Lackay39 and Silvermoon40. In Lackay
the court rejected a claim for defamation by South African Revenue Services,
exclusively on the basis that SARS was an ‘organ of state’ in the context of the
Constitution.41 But the principle in issue does not derive from the Constitution. It
requires, in my view, a contextual enquiry in each case to determine whether it may
rightly be said that the body is an organ of government. While the ultimate outcome of
the matter was probably correct, for the reasons set out earlier, I do not think that the
approach to ‘organs of state’ adopted in Lackay accords with the common law principle
developed over an extensive period. In Silvermoon a similar approach was adopted to
the concept of an ‘organ of state’. To that extent, I disagree with these decisions. I
prefer to adopt the approach set out in Modus Publications.
[45] That brings me back to the facts of the present matter. The governing bodies of
public universities in South Africa are not democratically elected bodies and to that
extent differ materially from local government. Ms Sidlai argued that I should find that
extent differ materially from local government. Ms Sidlai argued that I should find that
universities are controlled by government and should accordingly be considered to be
38 At p 1122I-J.
39 Moyane and Another v Lackay [2017] ZAGPPHC 1262 (24 November 2017).
40 Minister of Police and Others v Silvermoon Investments 145 CC and Others 2020 [6) SA 586 (KZD).
41 Lackay paras 9 and 13.
‘organs of state’ for purposes of defamation. In terms of the Higher Education Act 42 the
Minister appoints a council of higher education to advise him in respect of education,
from members nominated by the public. He may, after consulting with the council for
higher education43, establish a university 44 or declare an existing educational institution
providing higher education as a university. 45 Similarly, he may, after consulting the
council for higher education, merge two public higher education institutions into one.
[46] However, a public university is governed by a ‘council’ defined in the Act as the
governing body.46 The council must consist of not more than thirty members of which
five may be appointed by the Minister. The chairman and the vice -chairman must be
elected from the members appointed by the Minister, however, the ministerial
appointees constitute a small minority of the council.
[47] In terms of the Act, the council of NMU has developed an institutional statute that
has been published, and which has been approved by Parliament, 47 which empowers
the council:
(1) To approve policies and strategic plans of the university at the institutional level.48
(2) To monitor the implementation of structures and policies approved by the
council.49
(3) To identify and monitor the risks relevant to the business of the university.50
(4) To adopt its own rules, including the code of conduct of members of the council,
in terms of which it conducts its activities.51
(5) To approve the annual budget of the university.52
42 Act 101 of 1997.
43 Section 4 and s 8(3) of the Higher Education Act.
44 Section 20(1) of the Higher Education Act.
45 Section 21 of the Higher Education Act.
46 Section 1 and 27(1) of the Act.
47 Section 33 of the Act.
48 Section 4(3)(b).
49 Section 4(3)(c).
50 Section 4(3)(d).
51 Section 4(3)(h).
52 Section 4(3)(p).
[48] Accordingly, the council of the applicant is the highest decision -making authority
in matters relating to governance and is responsible for the overall governance,
strategic mission and financial policy of the institution. It enjoys a significant measure of
autonomy in its administration.
[49] In respect of its financial autonomy the Minister must, subject to the government
policy on the funding of public higher education, allocate funds to public higher
education on a fair and transparent basis. However, the university is not wholly funded
or controlled by the State. Public universities, although created by statutes, are
financially and operationally hybrid institutions. The applicant said that it is partially
funded by the State, but its continued functioning and sustainability depends materially
on student fees, third stream income, fundraising, donor contributions, research grants
and external private partnerships, amongst other revenue sources. They contended
that damage to the reputation of the university will impact on the number of students
wishing to study at the university and the people willing to work and lecture there. It
would have a major impact on donor grants and funding for research grants. Thus,
without students, lecturers, research and donor funding, it said that it may cease to
exist.
[50] It may be accepted that the provision of higher education is an essential service,
but it is not one traditionally provided by government and the NMU is certainly not a
monopoly. It operates in competition with other tertiary educational institutions, both
private and public. That they have a material interest in the protection of their good
name and reputation is indisputable.
[51] The question whether a public university can sue for defamation has not arisen in
any reported judgments in South Africa and it is therefore an open question in our law.
However, it has arisen in other jurisdictions. In Hong Kong Polytechnic University 53 an
However, it has arisen in other jurisdictions. In Hong Kong Polytechnic University 53 an
article had appeared in ‘Next Magazine’ titled ‘Bluffing Lecturers: False Curriculum
53 Hong Kong Polytechnic University and Others v Next Magazine Publishing Limited and Another [1997]
7 HKPLR 286.
Vitae’ and it alleged that the head of department of business studies had put forward
false qualifications, but the university deliberately turned a blind eye to the fraud. The
issue for determination was whether the university’s claim for damages for defamation
was one which could be entertained in law. In the judgment on appeal the court held:
‘In my judgment, the considerations which govern a body like a university are far removed from
those in the Derbyshire County Council case. In no way does the university take part in the
government of Hong Kong. It is not an organ of government, democratically elected or
otherwise. If public interest be the test, I would hold that it strongly favours the protection of the
reputation of institutions of learning like the university.’
I agree with these observations, and for these reasons I do not think that Bitou
Municipality is authority for depriving a public university of its right to protect its good
name and reputation. The matter arose again in England in University of Salford. 54
Eadie J referred with approval to Hong Kong Polytechnic University and expressed the
view that the argument that the Derbyshire County Council case had the effect of
preventing universities from suing for libel on the basis that they are to be regarded as
public or governmental bodies, providing higher education on behalf of central
government, was ‘simply not correct’. He recognised that universities receive large
sums of public money and had to comply with various statutory provisions, as they do in
South Africa, but they were not to be equated with central or local government. A
university has an identity and reputation separate from that of government. It provides
services of a type that can be, and often are, provided by privately funded entities and it
does not ‘govern’ members of the public in the sense of issuing or enforcing regulations
which the public must conform to. Thus, I do not consider that the NMU can be
which the public must conform to. Thus, I do not consider that the NMU can be
considered to be an ‘organ of state’ for purposes of defamation. ‘Organ of state’, as
McNally explained in Modus Publications, is not a term of art, and the fact that a public
university is an organ of state as referred in the Constitution does not necessarily mean
that it is an ‘organ of government’55 or a ‘governmental body’.56
54 Duke v University of Salford [2013] EWHC 196 (QB).
55 As in Bitou Municipality at para 13.
56 As in Derbyshire County Council.
[52] For these reasons I do not think that the second argument can succeed either. In
the result the NMU has established a clear right.
The interdict
[53] At the hearing of the urgent application, the court determined that the statements
made were indeed defamatory. The publication of the statements were not in dispute
and are prima facie wrongful. 57 The onus rested on the respondent to dispel this prima
facie case. 58 Ms Sidlai did not advance any of the traditional defences to rebut the
presumption of wrongfulness. However, she did submit that, in the event that I should
find that the NMU did have locus standi, and therefore a clear right, that it had failed to
establish harm. She submitted, with reference to J v J 59 that the NMU was required to
present clear evidence that its reputation was indeed injured as a result of the
respondent’s conduct. The statement is not correct. In order to obtain an interdict an
applicant is required to establish an injury actually committed or reasonably
apprehended. I have set out earlier the evidence presented by the NMU in respect of
the harm which it may suffer as a consequence of the publication of the statements. In
my view, it does establish a reasonable apprehension of harm. I am accordingly of the
view that the NMU did establish the requirements for a perpetual interdict.
The relief
[54] I have referred earlier to the rule nisi granted at the urgent hearing. As recorded,
the ‘interim interdicts’ granted in terms of paragraphs 2 and 3 of the rule nisi, are
irrespective of their form, final interdicts. Mr Mashalaba has fully complied with these
orders and they are no longer susceptible to alteration by this court. They are definitive
of the rights of the party and had the effect of disposing of a substantial portion of the
relief claimed. The final interdict remains binding until set aside by recission of
judgment, on review or on appeal. There can be no purpose in my confirming the rule
in respect of these orders.
in respect of these orders.
57 Le Roux and Others v Dey 2011 (6) BCLR 577; 2011 (3) SA 274 (CC).
58 National Media Limited and Others v Bogoshi [1998] 4 All SA 347 (A); 1998 (4) SA 1196 (SCA).
59 J v J 2016 ZAKZDHC 33 at para 89 – an unreported judgment of the Durban High Court.
[55] Accordingly, I am of the view that paragraph 1 of the rule nisi should be
confirmed.
Costs
[56] As adumbrated earlier, the Constitutional Court in Harrielall have, for purposes of
the Biowatch60 principle, confirmed that a public university is an organ of state. Mr
Mashalaba has asserted his right to freedom of expression, a fundamental right
enshrined in Chapter 1 of the Constitution. Accordingly, in my view, the approach in
Biowatch dictates that I should make no order as to costs.
[57] Accordingly, paragraph 1 of the rule nisi issued on 30 December 2025 is
confirmed.
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Applicant: Adv MTK Moerane SC with Adv G J Gajjar and Adv K M Morris
Instructed by: Joubert Galpin & Searle
GQEBERHA
For Respondent: Adv A Sidlai
Instructed by: AJ Ntsuntswana & Sons Attorneys Inc
GQEBERHA
Date Heard: 19 March 2026
60 Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC).
Date Delivered: 12 May 2026