THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2026-091623
In the matter between:
THEUWEDI TRADING ENTERPRISE
(PTY) LTD
First Applicant
NAKAMPE AUBREY MOLIWA Second Applicant
and
MEDIA 24 (PTY) LIMITED
First Respondent
ADRIAAN BASSON
Second Respondent
SIKONATHI MANTSHANTSHA Third Respondent
JEFF WICKS
Fourth Respondent
JUDGMENT
DU PLESSIS J
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 02 May 2026
2
Introduction
[1] This is an urgent application in which the applicants seek final interdictory relief
against the respondents for an article published online by the first respondent,
News24, on 16 April 2026 under the headline “Ekurhuleni millions: Questionable
operations of shadowy company involved in toilet scandal”. The relief sought includes
the removal of the article from News24’s digital platforms and an order restraining the
respondents from publishing any statement that says or implies, among other things,
that the applicants were directly or indirectly complicit in the killing of Mr Mpho Mafole
[2] The applicants contend that the article is defamatory. Their case is that the
questions put to them before publication concerned only their role in the tender,
whereas the article, as published, did something materially different: it placed them
within a wider narrative concerning Mr Mafole’s investigation into tender irregularities,
his murder shortly thereafter, and News24’s broader HUNTED series concerning that
murder.
[3] The applicants’ central complaint is not that the article expressly states that
either applicant murdered Mr Mafole. Rather, their case is that, through its structure,
language, imagery and context, the article conveys the defamatory implication that the
first applicant is a non-existent company that does not conduct lawful business and
was unlawfully involved in the tender; that the second applicant is corrupt or dishonest;
and that the applicants had a motive to procure or participate in Mr Mafole’s murder.
[4] The respondents deny that the article bears any such meaning. They further
contend that the publication concerns matters of obvious public interest: the award
and performance of a municipal tender funded by public money; the payments made
under it; the difficulties encountered in verifying the first applicant’s operational
presence and performance; and the background fact that Mr Mafole had probed the
presence and performance; and the background fact that Mr Mafole had probed the
tender before his murder. They say that, read as a whole, the article does not accuse
the applicants of murder, corruption or criminality, and that, in any event even if it does,
the publication is protected by the principles of truth and public interest, fair comment,
and reasonable publication as recognised in National Media Ltd v Bogoshi.
1
1 1998 (4) SA 1196 (SCA).
3
[5] Since this is an urgent application for interdictory relief, I will approach the
judgment as follows: I will first set out some general background information, then
address the matter of urgency. Thereafter, I will deal with whether the applicants have
established a clear right to final interdictory relief. To determine this, I need to establish
whether the article is reasonably capable of bearing the meanings contended by the
applicants and whether those meanings are defamatory. I will address certain ancillary
questions as they arise. Thereafter, I will address the one other requirement for a final
interdict, namely alternative remedies, before turning to costs.
Background
[6] The first applicant is a private company. The second applicant is its sole
director. The first applicant was one of fifteen companies appointed by the Ekurhuleni
Metropolitan Municipality to provide chemical toilet services under the 2022 contract
and again under the 2025 contract.
[7] Before publication, the third respondent, an investigative journalist, put
questions to the second applicant and to the applicants’ attorneys concerning the first
applicant’s place of operation, the location of its offices, its ability to service the
contract, and related matters. The applicants’ attorneys responded that, although the
first applicant’s registered address was in Tzaneen, it had permanent operational
offices and staff in Gauteng, including in Edenvale, and that the director and his
immediate family were domiciled in Gauteng. No specific address was provided.
[8] The applicants say that these exchanges show that the contemplated story
concerned only the tender and the first applicant’s ability to perform it, and that they
would have had no difficulty had the publication been confined to that topic. Their
complaint is that the article as published went beyond that by placing the first applicant
and the second applicant inside a broader narrative concerning Mr Mafole’s murder.
and the second applicant inside a broader narrative concerning Mr Mafole’s murder.
[9] The article states that the municipality paid more than R100 million to the first
applicant in relation to successive chemical toilet contracts; that the first applicant is
one of fifteen companies that obtained a share of a R1.8 billion contract; that its
4
registered address is in Tzaneen; that it would not disclose the location of its local
offices; and that, according to the journalists, it appeared not to meet the tender
requirement that successful suppliers maintain offices within the municipal area from
which they would operate the toilets.
2
[10] The article records the responses given on behalf of the first applicant. It states
that the applicants’ attorneys said that the first applicant had permanent operational
offices and staff based in Midrand and Edenvale, that Edenvale lies within Ekurhuleni,
and that the suggestion that services were rendered from a base 400 kilometres away
was incorrect and did not reflect the operational reality of the business.
3
[11] The article then turns to Mr Mafole. It reports that three days before he was
killed in June 2025, he led a probity audit report raising irregularities on the
municipality’s part in the choice of the companies awarded contracts; that his boss
later altered and sanitised the report’s findings; and that, three weeks after the killing,
the police arrested Thabani Goodwill Ntshalintshali in connection with the murder.
[12] The article appears under the broader “HUNTED” banner, which forms part of
a News24 investigative series concerning the murder of Mr Mafole. The applicants
submit that the use of that label, together with the image of Mr Mafole and the
sequencing of the article, causes a reasonable reader to understand the publication
as implying that the applicants had a motive to murder Mr Mafole or were complicit in
his murder, and that this is defamatory.
[13] With this background, I now turn to the legal analysis.
Urgency
[14] From mid-February 2026, the third respondent engaged the applicants and their
attorneys with detailed questions concerning the first applicant’s role in the Ekurhuleni
2 See footnote 21.
3 “DL Grundlingh wrote on behalf of Theuwedi on 18 February:
2 See footnote 21.
3 “DL Grundlingh wrote on behalf of Theuwedi on 18 February:
Accordingly, the suggestion that services arerendered from a base 400 kilometres away isincorrect and does not
refl ect the operational realityof the business or how services are delivered underthe tender.
Asked for the address of the facilities, Grundlingh said the information could beobtained directly from the
municipality.
The municipality, in turn, pointed us to Theuwedi."
5
chemical-toilets tender, its operational footprint, its offices, its employees and the sums
it had been paid. On 13 March 2026, the respondents made what they described as a
final request for information and indicated, in express terms, the broad nature of the
intended story.
[15] The article was published on 16 April 2026. The applicants then sent a demand
for its removal on 17 April 2026. The application was launched thereafter and
ultimately enrolled for a hearing on 28 April 2026.
[16] The respondents argue that any urgency was self-created because the
applicants had ample notice of the investigation and of the broad issues to be
ventilated. This might be so. The applicants were not ambushed in the ordinary sense.
They were aware that their role in the tender, the payments received, and questions
about operational capacity were all under active investigation for weeks before
publication.
[17] That said, the application is directed not merely at anticipated publication but at
an article already published and still accessible online. The applicants say that the
publication constitutes an ongoing invasion of reputation and dignity because it
remains searchable, shareable and continuously accessible.
4 The modern digital
reality means that such a complaint cannot be dismissed out of hand simply because
the first publication has occurred.
[18] I am not persuaded that the proper course is to dispose of the application solely
based on urgency. The matter is fully before the Court, the papers are complete, and
the issues have been comprehensively argued. The principal disputes concern the
meaning of the article, its alleged unlawfulness, and the availability of final interdictory
relief. Those questions are materially intertwined with the issue of urgency itself. In
those circumstances, little would be gained by attempting to decide one while
withholding judgment on the other. The interests of justice in this case lie in resolving
withholding judgment on the other. The interests of justice in this case lie in resolving
the real dispute between the parties based on the complete record and full argument
4 Relying on Moepya v Mokubedi [2025] ZAGPJHC 1035.
6
already before the Court, rather than postponing that determination behind a
procedural ruling on urgency alone. I accordingly proceed to determine the merits.
Clear right
[19] For a final interdict, the applicant must establish a clear right, and injury actually
committed or reasonably apprehended, and the absence of any other satisfactory
remedy.
5
[20] The Constitutional Court and the Supreme Court of Appeal have repeatedly
emphasised the constitutional value of freedom of expression, and especially media
freedom, in the dissemination of information and ideas on matters of public concern,
and cautioned against prior restraint. In Print Media South Africa v Minister of Home
Affairs,
6 the Constitutional Court stated:
"In answering this question, regard must, of course, be had to our current jurisprudence
on prior restraint, with a view to achieving an appropriate balancing of the scales in
relation to this matter. In the context of court interdicts, the Supreme Court of Appeal
has, correctly in my view, endorsed the following statement of Lord Scarman:
“[T]he prior restraint of publication, though occasionally necessary in serious
cases, is a drastic interference with freedom of speech and should only be
ordered where there is a substantial risk of grave injustice”.
The case law recognises that an effective ban or restriction on a publication by a court
order even before it has ‘seen the light of day’ is something to be approached with
circumspection and should be permitted in narrow circumstances only."
[21] That does not mean the media is insulated from defamation or free to write what
they like. It remains a legal inquiry as to whether the respondents have crossed the
threshold of acceptable speech.
5 Setlogelo v Setlogelo 1914 AD 221.
6 Print Media South Africa v Minister of Home Affairs 2012 (6) SA 443 (CC) at para 44.
7
Defamation inquiry
[22] To determine whether a publication was defamatory requires a two-step inquiry.
Firstly, to establish the meaning of the statement, and secondly, to determine whether
this meaning is defamatory.7
[23] In the first step, the meaning of the words must be determined objectively. The
question is not what the publisher intended, nor what particular readers in fact
understood, but what meaning the reasonable reader of ordinary intelligence would
attribute to the publication read as a whole, in context, and in its proper setting.
8 This
test is applied to express the words used and the implied meaning of those words.
[24] The reasonable reader or observer is a legal construct that the court relies on
to determine meaning. It is an objective test where the court may not hear evidence in
the sense in which the actual reader or observer of the statement or publication
understood the statement.
9 The comment section on the News24 website is therefore
of no assistance to the applicants.
[25] Apart from the ordinary express and implied meanings, innuendos can also
amount to defamation in particular circumstances. This is the case where words that
otherwise have seemingly innocent meanings on the face of the word can have special
(almost hidden) meanings, for reasons that arise from special circumstances that
endow them with this meaning.
10 These special circumstances must be pleaded (i.e.
that certain innocent words have a specific defamatory meaning in a particular case)
and evidence must be led on it.11
[26] To summarise: when reliance is placed on ordinary express or implied meaning,
no evidence may be led to assist the court in determining the reasonable reader’s
7 Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) para 89. See Khumalo
and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 para 18 onwards for the elements
of delict of defamation.
of delict of defamation.
8 Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) para 89.
9 Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) para 90.
10 A classic example is Cassidy v Daily Mirror Newspapers Ltd 2 KB 331, where an apparently innocent
engagement announcement became defamatory only to readers who knew that Mr Cassidy was already married
to the plaintiff, and therefore understood the publication to brand her as an immoral woman living in sin.
11 Le Roux para 87.
8
meaning. When reliance is placed on innuendo, not only must the innuendo be
properly pleaded, but evidence must also be led to the special circumstances.
[27] Against that background, it is necessary to consider what the applicants
pleaded. They plead that the first respondent intended to convey the innuendo that the
first applicant was unlawfully awarded the tenders and, as a result, after Mr Mafole’s
report was issued, had a motive to have him killed. They say that “[t]he impression
that the respondents are creating is false and unjustified”. Properly characterised,
however, this is a complaint about an implied defamatory meaning arising from the
article itself, rather than a true innuendo in the technical sense.
[28] Only once the meaning is established, the second leg of inquiry kicks in,
namely, whether the meaning thus established is defamatory. Our courts accept that
a statement is defamatory of a plaintiff if it is likely to injure the good esteem in which
they are held by the reasonable or average person to whom it has been published.
12
Defamation on motion proceedings (the interdict)
[29] Once that is established, then it is assumed that the publication was unlawful
and intentional. In trial proceedings, the onus will then rest on the defendant to raise
a defence which rebuts unlawfulness and intention.
13 On motion proceedings, the
normal rules of motion court, and the well-known Plascon-Evans14 rule will apply. 15
The consequence is that an applicant who comes to court on affidavit must be aware
that where genuine disputes of fact arise, the court will decide them on the
respondent's version, unless that version is so far-fetched or untenable as to be
rejected out of hand. That principle governs factual disputes only. It has no bearing on
the determination of the meaning inquiry, which is an objective inquiry conducted by
the court independently of what either party says the publication means.
the court independently of what either party says the publication means.
[30] In this matter, there is no material dispute of fact. The Plascon-Evans rule,
therefore, does not do significant work. The issues are mainly legal: what meaning the
12 Le Roux and Others v Dey [2011] ZACC 4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) para 91.
13 Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 para 18.
14 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
15 See Malema v Rawula [2021] ZASCA 88 paras 72 – 77 for an explanation of how this will operate.
9
article bears, whether that meaning is defamatory, and whether the respondents'
defences are sustainable on the undisputed facts.
Defences
[31] There are mainly three defences available in an instance like this: reasonable
publication, fair comment and truth and public benefit.
[32] In National Media Ltd v Bogoshi,
16 the court held that in appropriate
circumstances, the media may avoid wrongfulness if the publication was reasonable,
having regard to all the circumstances, including the nature, extent and tone of the
allegation, the steps taken to verify it, the opportunity afforded for comment, the
reliability of the sources, and the importance of the matter published. This speaks to
the professional standards that journalists are subjected to.
[33] The defence of fair comment provides that evaluative language and comment
may also, where the requirements are met, be protected as fair comment or as
protected opinion if based on facts that are substantially true and sufficiently stated,
and if the comment is one that a fair person might honestly express on those facts.
[34] Lastly, the defence of truth and public benefit is exactly that: the statement is
true and in the benefit of the public. It must be both.
17
The pleaded statements
[35] The applicants’ complaint arises from the article’s own language, visual
presentation, sequencing, and placement within the “HUNTED” series. That is a case
of implied meaning derived from the publication itself. With this in mind, I now turn to
evaluate the specific defamatory statements pleaded.
16 1998 (4) SA 1196 (SCA).
17 Ketler Investment CC t/a Ketler Presentations v Internet Service Providers’ Association 2014 (2) SA 569 (GJ)
paras 56 – 83.
10
Thuewedi is a non-existing company that does not conduct lawful business
[36] Firstly, the applicants contend that the article implies that the first applicant is a
non-existent company. However, the article expressly identifies the company, refers
to the Companies and Intellectual Properties Commission records, states that it has
obtained contracts from the municipality over several years, 18 and has received
substantial payments, identifies its registered address, 19 and names the second
applicant as its sole director.20
[37] The article treats the company as an existing commercial actor, which cannot,
in any sensible, objective reading, also convey that it does not exist at all. That pleaded
meaning therefore fails at the threshold.
Theuwedi was unlawfully appointed as a service provider
[38] The second pleaded implied meaning is that the first applicant does not conduct
lawful business, or was unlawfully appointed. The article does not expressly say that
the applicants committed a crime or that the award to them was unlawful in the legal
sense. But it does state that it appears the first applicant does not meet stringent
tender requirements, and it links that concern to Mr Mafole’s audit findings about
irregularities on the municipality’s part in the bid-evaluation process.
21
[39] Read objectively, the article conveys that the first applicant may have been
awarded a contract in circumstances that raise serious questions about compliance
with procurement requirements. That meaning is not far-fetched. But it does not follow
that the reasonable reader would understand the article to say that the applicants
18 E.g.“Theuwedi has also won a stake in the same three-year rolling chemical toilets tender in 2022”.
19 In Tzaneen.
20 “Nakampe Aubrey Moliwa is the sole director of Theuwedi, which was registered in July 2008”.
21 “Adding to the murk is the company’s refusal to divulge where its business operates from within the Ekurhuleni
municipal area – a key requirement of the lucrative three-year chemical toilets deal.
As part of the tender specifications, prospective suppliers had to maintain offices within the municipal area from
which they would operate the chemical toilets, among other requirements, to win a slice of the contract.”
And, for example
“Three days before he was killed in June last year, Ekurhuleni chief auditor Mpho Mafole filed a probity audit report
raising several glaring irregularities on the municipality’s part in the choice of the companies awarded.
The current contract runs until June 2028. Theuwedi was also a participant in the various chemical toilets contracts
since at least 2016, including the one that came to an end in June 2025.
[…]
Mafole found that the evaluation of bids “was not fair and consistent” as the municipal officials had not applied
“proper due diligence” when examining the proposals for compliance with the evaluation criteria.”
11
themselves procured the award unlawfully, as opposed to having benefited from an
irregular or incompetently administered municipal process.
[40] This distinction is important. A reasonable reader may think less of a contractor
if it appears “murky”, evasive, or non-compliant. But the article attributes the glaring
irregularities to the municipality, stating that the bid evaluation was neither fair nor
consistent because municipal officials failed to exercise due diligence. That makes the
statement softer than the pleaded allegation of their unlawful appointment, and is
rather aimed at the municipality, not the applicants.
[41] Even if the meaning is taken to be defamatory to some extent, the defences set
out in Bogoshi
22 apply. The article addresses public expenditure, municipal tender
compliance, and the circumstances surrounding an auditor’s investigation into
procurement irregularities. That is plainly a matter of high public benefit. The article is
also reasonable: the investigative journalist sought comment from the second
applicant and the applicants’ attorneys, made repeated requests for information,
quoted the applicants’ responses, recorded the municipality’s stance, and anchored
the allegations in documentary material, including Mr Mafole’s report and municipal
payment information. The applicants have not shown that a reasonable-publication
defence to this aspect of the article is so clearly unavailable that a final interdict must
be granted.
The second applicant is a corrupt criminal, a thief and a fraudster
[42] Third: The applicants also plead that the article means that they are corrupt
criminals, and that the second applicant is, in particular, a thief and a fraudster. The
article uses none of those words. The pleaded case is therefore necessarily one of
implied meaning.
[43] There is substance in the applicants' submission that, at a general level, the
article allows for an everyday, broad (non-legal) understanding of “corrupt” as being
article allows for an everyday, broad (non-legal) understanding of “corrupt” as being
opaque, dubious, or tainted by irregularity. This is borne out by the description of the
22 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
12
first applicant as “shadowy”23 and by the use of the word “murk”24 in the context of the
applicant’s refusal to disclose the location of local offices and the suggestion that the
company may not be meeting tender requirements. Taken together, all this can
contribute to the loose, everyday impression of the company as “corrupt”.
[44] This, however, is not the same as an article conveying the applicants as
criminals, thieves or fraudsters in any legal sense. Nowhere in the article is any of
these things alleged. At most, the article raises suspicion and suggests this should be
scrutinised. But it does not clearly imply that the applicants committed an identified
crime.
[45] To the extent that “shadowy” and “murky” might imply a defamatory meaning,
they are an evaluation or opinion of the journalist (fair comment). Seen in context, they
are clearly expressions of journalistic scepticism borne by the facts he discloses in the
article itself: the lack of publicly available contact details, the reluctance to disclose an
address, and the surrounding procurement concerns. This falls within the defence of
fair comment, and is therefore a valid defence to defamation. Also, on this point, the
applicants have not shown that a defence to this aspect of the article is so clearly
unavailable as to warrant a final interdict.
As Theuwedi's only director, the second applicant had a motive to murder Mr Mafole
and/or was complicit in the murder of Mr Mafole
[46] The more difficult meanings relate to the murder of Mr Mafole. The first is
whether the article implies that the second applicant had a motive to murder Mr Mafole.
The article reports that Mr Mafole was investigating irregularities in the tender process;
that the first applicant was one of the successful tenderers; that the first applicant had
been paid substantial sums under successive contracts; and that Mr Mafole was killed
three days after filing his report. When that sequence is placed inside the “HUNTED”
three days after filing his report. When that sequence is placed inside the “HUNTED”
series and under the visual framing used by News24, a reasonable reader could
indeed infer that all persons whose interests may have been affected by Mr Mafole’s
23 “The Ekurhuleni Metropolitan Municipality has paid more than R100 million to a shadowy Limpopo company for
successive chemical toilets contracts…”
24 “Adding to the murk is the company’s refusal to divulge where its business operates from within the Ekurhuleni
municipal area – a key requirement of the lucrative three-year chemical toilets deal.”
13
report (including successful bidders like the applicants) 25 might have had a motive to
wish him silence.
[47] I therefore accept that the article, by implication, conveys that the applicants
were among those for whom Mr Mafole’s investigation posed a threat, inconvenience,
or problem, and thus among those who might, in the broad sense, have had a motive
to see him dead. However, that does not mean the applicants have established a right.
[48] The applicants have two difficulties. Firstly, the existence of a motive does not
constitute wrongdoing, nor does it attribute damage to reputation in any legally
cognisable sense. Every person whose interests are threatened by an investigator has
a motive to wish that investigation to end. It does not mean that a person acted on that
motive. The article does not expressly or impliedly (see below) accuse the applicants
of murder. Rather, it places a factual narrative from which a suspicious reader might
draw an inference, but not a reasonable reader.
[49] The second difficulty is that the article’s main point is that the applicants are
part of a group whose commercial interests might have been threatened by Mr
Mafole’s audit. This is an inference based on the facts, not an explicit or implied
assertion of criminal conduct. It attributes a common interest to a group of tender
recipients, without stating that any individual, including the applicants, is guilty.
[50] For these reasons, I am not persuaded that the murder-motive meaning the
applicants attribute to the article is the meaning a reasonable reader would extract
from it. If I am wrong about that, in other words, if the article does carry some
imputation of suspicious proximity to the murder, that imputation falls short of the clear
defamatory sting required to sustain a final interdict.
[51] The pleaded meaning that the applicants were directly or indirectly complicit in
the killing of Mr Mafole goes further. In my view, that meaning is not borne by the
the killing of Mr Mafole goes further. In my view, that meaning is not borne by the
25 “According to Mafole’s report, which News24 obtained, the audit team only examined a sample of losing bidders
for the project and some of the 15 companies shortlisted for award. They found that some companies were unfairly
disqualified, while others were awarded contracts based on similar information provided by the disqualified
bidders.”
14
article when it is read as a whole. The article does not say that either applicant killed
Mr Mafole. It does not say that either applicant arranged the killing, paid for it, or acted
in concert with those who committed it. It does not identify any factual link between the
applicants and the arrested suspect, Thabani Goodwill Ntshalintshali.
26
[52] It is also relevant that the article expressly states that the glaring irregularities
identified by Mr Mafole were “on the municipality’s part”, that his audit was directed at
the evaluation of bids, and that others in the municipal structure altered and sanitised
his report.
27 The article thus casts the principal spotlight on the municipality and those
involved in its procurement processes, not specifically on the applicants as
perpetrators of murder.
[53] Fifteen bidders were successful. The article highlights a broad range of parties
that may be affected by Mr Mafole’s report. Jumping from the idea that “this contractor
benefited from the tender and might have been concerned about scrutiny” to claiming
"this contractor was involved in murder” is a significant leap. A reasonable reader is
neither a scandal-hunter nor overly suspicious.
Alternative remedies
[54] The respondents mainly rely on the availability of the Press Ombud process. It
is relevant to the enquiry whether there exists some other satisfactory remedy,
especially once the publication has already occurred. As subscribers to the Press
Code, the respondents fall within the jurisdiction of the Press Council of South Africa
(PCSA), which offers cost-effective and accessible remedies such as ordering a
retraction, a correction, an apology and so forth. This is a viable alternative remedy in
the context of interdictory relief.
28 Given that this case fails on the “clear right”
requirement, I need not address it in detail.
26 “Three weeks later, the police arrested Thabani Goodwill Ntshalintshali in connection with the murder.”
27 “Mafole found that the evaluation of bids “was not fair and consistent” as the municipal officials had not applied
“proper due diligence” when examining the proposals for compliance with the evaluation criteria.
He and his team of auditors were to review paperwork related to the bid evaluation committee (BEC) and the bid
adjudication committee (BAC) to ensure fair evaluation policies in choosing or rejecting bids were followed.
[…]
This, after his boss, internal audit head Phillip Rakgwale, immediately altered and sanitised the report’s findings,
endorsing the probity of the three-year tender to station portable toilets across the metro municipality’s townships.”
28 Mabote v Fundudzi Media (Pty) Ltd 2020 JDR 2411 (GJ) paras 30 onwards.
15
Conclusion on the merits
[55] The article may create unease. It may cast a shadow. It may suggest that the
applicants are part of a troubling procurement story. But it does not clearly accuse
them of complicity in murder. It does not cross the threshold of legally unacceptable
speech.
[56] The respondents are also correct that one must distinguish between a damages
action for defamation and a final media interdict.
29 The substantive law of defamation
remains the same, but the remedy of restraining publication requires additional
constitutional caution.
[57] In this regard, one should be cautious about viewing the legal inquiry as a binary
contest between the applicant’s right to dignity and reputation on the one hand, and
the respondent’s right to publish on the other. This is an incomplete picture of the
constitutional rights involved. There is always a third dimension, namely the public’s
constitutionally protected interest in receiving information,
30 which provides the
guidance and framework for the inquiry into the defences.
[58] This right is guaranteed in section 16(1)(b) of the Constitution, and was
elaborated on in Midi Television (Pty) Ltd v Director of Public Prosecutions (Western
Cape):
31
“It is important to bear in mind that the constitutional promise of a free press is not one
that is made for the protection of the special interests of the press. As pointed out by
Anthony Lewis, in a passage that was cited by Cameron J in Holomisa v Argus
Newspapers Ltd: ‘Press exceptionalism – the idea that journalism has a different and
superior status in the Constitution – is not only an unconvincing but a dangerous
doctrine.’ The constitutional promise is made rather to serve the interest that all citizens
have in the free flow of information, which is possible only if there is a free press. To
abridge the freedom of the press is to abridge the rights of all citizens and not merely
the rights of the press itself.”
the rights of the press itself.”
29 See the discussion above in the paragraph on defamation on motion proceedings.
30 Mazetti Management Services (Pty) Ltd v Amabhungane Centre for Investigative Journalism NPC 2023 (6) SA
578 (GJ) para 19.
31 2007 (5) SA 540 (SCA).
16
[59] A final interdict to remove publication or a prior restraint not only affects the
parties before the court, but it also removes information that citizens have a
constitutional interest in receiving, as in this case. The public has an interest in an
article that investigates the award of money, the integrity of a public procurement
process, and the fate of an official who investigated and reported on irregularities in
that process. These are governance matters of direct constitutional importance, as
they engage the founding values of accountability, responsiveness and openness in
section 1 of the Constitution. Adhering to those values will, at times, cause discomfort.
Investigative journalists who serve those values by providing information that enables
citizens to hold government accountable perform a function that is indispensable to a
constitutional democracy. It is their independence from the state, not any usurpation
of the police's function, that makes their work constitutionally valuable. The public’s
constitutional interest in this reporting is substantial.
[60] The applicants are not without rights, and the respondents are not without
obligations. Bogoshi
32 makes it clear that journalistic freedom entails a duty of care:
journalists must act reasonably, verify what they publish, seek responses, and
exercise circumspection. Aggrieved parties may thus have a case in principle when
journalists overstep that boundary, but the question this court had to answer was
whether the applicant made a case for the remedy they sought.
[61] In the present matter, some of the applicants’ pleaded meanings fail outright,
while others are only partially sustainable. Those that are partially sustainable are met
with defences grounded in the truth and public benefit, reasonable publication and fair
comment. This is not the kind of case in which a final interdict against media
publication can be granted.
publication can be granted.
[62] Lastly, it should be stated that an interdict that targets allegations already in the
public domain and is aimed at one party is ineffective. As Moultrie AJ (as he then was)
put it:
33
32 National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
33 K.N.G. v T.L. [2025] ZAGPJHC 1142. See also Mokate v United Democratic Movement [2020] ZAGPPHC 377,
para 7 and Mabote v Fundudzi Media Pty Ltd t/a Sunday World [2020] ZAGPJHC 287, para 28.
17
“In those circumstances, I cannot see what useful purpose would be served by
interdicting the respondent, and her alone, from publishing the allegation when others
appear to be able to do so with impunity. Not only has the “proverbial horse” already
bolted, it has evidently been left in the meadow to enjoy a life of freedom.”
[63] On the applicants’ own version, the article has been repeated on other
platforms in various forms, not merely by linking to the News24 website. An order that
only interdicts News24 would amount to censorship.
Prayer 4
[64] Prayer 4 seeks to restrain the respondents from publishing any statement that
suggests or implies that the applicants were involved in Mr Mafole’s killing, engaged
in irregular or corrupt activities, or that the first applicant was unlawfully appointed
under the relevant bid. However, this prayer is overly broad. It is expressed at a very
high level of abstraction and would require the court to ban future reports based on
meanings not tied to any specific text, factual context, or publication. It would also
unduly interfere with future public-interest journalism about a municipal contract, public
expenditure, and the murder of an auditor.
Costs
[65] The respondents seek punitive costs on the attorney and client scale, motivated
in part by the personal citation of the journalist respondents. I decline to award costs
on that scale. Punitive costs are reserved for conduct that is dishonest, vexatious, or
an abuse of process. I am not persuaded that it crossed the threshold of the kind of
reprehensible conduct that attracts a punitive order.
[66] The applicants are to be ordered to pay the respondents' costs on scale C. As
to the number of counsel, the matter raises constitutional questions about freedom of
expression, the right of access to information, the requirements for a final media
interdict, and the application of the Bogoshi defence in the context of investigative
interdict, and the application of the Bogoshi defence in the context of investigative
journalism. These are questions of sufficient complexity and public importance to
justify the employment of two counsel. The applicants are accordingly to pay the costs
of two counsel.
18
Order
[67] The following order is made:
1. The application is enrolled and heard as one of urgency in terms
of Rule 6(12)(a) of the Uniform Rules of Court.
2. The application is dismissed.
3. The applicants are ordered to pay the respondents' costs on
Scale C as contemplated in Rule 67A of the Uniform Rules of
Court, including the costs of two counsel.
________________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
30 April 2026
Date of judgment:
2 May 2026
For the applicant:
JH Groenewald instructed by Grundlingh
and Associates Attorneys
For the respondent:
A Friedman & S B Nxumalo, instructed by
Lionel Murray Schwormstedt & Louw