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[2026] ZAGPJHC 569
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Malatjie v Modiba (2026/105783) [2026] ZAGPJHC 569 (28 May 2026)
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FLYNOTES:
CIVIL
LAW
–
Defamation
–
Social
media
–
Urgent
application by political leader against journalist for defamatory
posts on X alleging corruption and unlawful enrichment
–
Allegations widely disseminated, apology equivocal and withdrawn –
Court held statements plainly defamatory,
respondent failed to
justify publication, reliance on fair comment and reasonable
publication rejected – Ongoing harm
established, damages
inadequate, requirements for final interdict satisfied –
Order declaring statements unlawful,
directing removal and
interdicting further publication, costs on attorney and client
scale.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number:
2026-105783
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
28
May 2026
In
the matter between:
COLLEN
MALATJIE
Applicant
and
VLADIMIR
MODIBA
Respondent
Delivered:
This judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically and by
circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of his matter on Caselines.
The date for handing
down is deemed to be 28 May 2026.
ORDER
(a)
The application is heard as one of urgency and
non-compliance with the Uniform Rules of Court is condoned.
(b)
It is declared that the statements published by
the respondent on X on or about 5 May 2026 alleging that:
i.
the applicant is associated with corrupt companies
benefitting from the City of Ekurhuleni;
ii.
the applicant is corrupt;
iii.
the applicant has been unlawfully enriched; and
iv.
a lifestyle audit of the applicant would reveal
corruption or unlawful enrichment, are false, defamatory and
unlawful.
(c)
The respondent is directed to remove and delete
the impugned publications from X and any other social-media platforms
under his
control within 48 hours of service of this order.
(d)
The respondent is interdicted from publishing any
further statements of like import.
(e)
The applicant’s claims for apology,
retraction and damages are reserved for determination in separate
proceedings should the
applicant elect to pursue such relief.
(f)
The respondent is ordered to pay the applicant’s
costs on the attorney and client scale.
JUDGMENT
CARELSE
AJ
Introduction
[2]
This is an urgent application in which the
applicant seeks declaratory and interdictory relief arising from
publications made by
the respondent on the social media platform X.
[3]
The applicant is the President of the African
National Congress Youth League (“ANCYL”). The respondent
describes himself
as a freelance journalist.
[4]
The applicant seeks orders declaring certain
statements published by the respondent to be false, defamatory and
unlawful; directing
their removal; interdicting further publication
of statements of similar import; compelling a retraction and apology;
and costs
on the attorney and client scale.
[5]
The respondent opposes the application.
The
relevant facts
[6]
On 5 May 2026, the respondent published the
following statement, which was accompanied by a photograph of the
applicant, on the
social media platform X:
“
If
you want to understand the mess in Ekurhuleni and corrupt companies
that are benefiting in the city, please do a lifestyle audit
of the
President of the ANCYL Collen Malatjie.
I’ll
release more EVIDENCE on Friday night.”
[7]
The publication, under the circumstances,
expressly identified the applicant by name, office, and photograph
and without a doubt
conveyed to the ordinary reasonable reader, who
would understand it to mean that the applicant was corrupt,
associated with corrupt
companies benefitting from the City of
Ekurhuleni, and unlawfully enriched and that a lifestyle audit of the
applicant would reveal
this.
[8]
The publication further represented that the
respondent possessed evidence substantiating those allegations.
[9]
On 6 May 2026, one day after the impugned
publication, the applicant’s attorneys addressed a
cease-and-desist letter to the
respondent demanding removal of the
publication, a retraction, an apology, and an undertaking against
repetition.
[10]
In response to the demand, the respondent, on the
same day, published a further post attaching the cease-and-desist
letter and stating:
"So
Collen Malatjie sent his lawyers to send me a cease and desist letter
after I said I'll release everything on Friday. Kanti
what is he
scared of if he's innocent? So I hereby state that we shall go to
court and I shall release my EVIDENCE in an open court.
There 's no
retraction or apology I'll issue. Whether they like if or not, the
truth shall come out. Once again, TRY ME BOYS”
[11]
The respondent’s response did not merely
refuse compliance. It republished and amplified the original
allegations, expressly
refused retraction, and threatened further
disclosure of purported “evidence”.
[12]
The present application was thereafter launched on
an urgent basis and served on the respondent by email on 11 May 2026
at 13:40.
The applicant’s attorneys explained in their service
email that, due to the urgency of the matter, the applicant’s
founding affidavit was unsigned, but that a duly commissioned one
would be served in due course. The commissioned affidavit was
served
on the respondent by email on 12 May 2026 at 13:49.
[13]
In terms of the notice of motion, the matter was
enrolled for hearing on 19 May 2026. The respondent had until 16:00
on 12 May 2026
to indicate whether he would oppose the application
and until 16:00 on 14 May 2026 to deliver his answering affidavit.
[14]
After receipt of the application, on 13 May 2026,
the respondent posted on X the following:
“
I’ve
got three legal challenges and all are on urgent basis.
I
don’t money to challenge all Legal cases on urgent basis, so
therefore
I
humble apologise to the President of the ANCYL AND retract.
Goodnight”
[15]
The matter was initially enrolled for hearing on
Thursday, 21 May 2026, at 11:30. The respondent delivered his notice
of intention
to oppose only on 19 May 2026 and his answering
affidavit on 20 May 2026. The applicant, notwithstanding the
compressed time periods,
delivered a comprehensive replying affidavit
before the hearing. The matter ultimately served before me on Friday,
22 May 2026,
at 14:00. The respondent seeks condonation for the late
delivery of his answering affidavit, which the applicant opposes. In
light
of the view I take of the matter, it is unnecessary to deal
with condonation in any detail. The applicant suffered no material
procedural prejudice arising from the late filing and, in the
interests of justice, the late delivery of the answering affidavit
is
condoned.
[16]
The respondent admits publication of the impugned
statements in his answering affidavit. He contends, however, that he
acted as
a journalist investigating allegations of corruption
involving the City of Ekurhuleni; that he received information from a
source;
and that he was shown documents that revealed that various
companies were giving kickbacks to officials of the said city and
politicians
in exchange for work and orders.
[17]
He further stated in his affidavit that “
[t]he
Applicant appears to be affiliated, albeit not directly, to some of
these companies and appeared to be receiving kickbacks
from these
companies”
and that this conduct
had been ongoing for a considerable amount of time.
[18]
The respondent further, with reference to the 13
May 2026 post, alleges that he later apologised, retracted the
statement and deleted
the post. The replying affidavit deals
extensively with those allegations.
[19]
The applicant points out in reply that
notwithstanding the alleged retraction:
(a)
the publication remained accessible;
(b)
the respondent persisted in opposing the
application;
(c)
the respondent continued defending the lawfulness
of the publication;
(d)
the respondent’s subsequent publications
continued drawing attention to the allegations; and
(e)
the publication continued attracting substantial
public engagement.
[20]
By the time the cease-and-desist letter was
transmitted on 6 May 2026, the publication had already attracted
approximately 218 000
views. The replying affidavit further
demonstrates that by 20 May 2026, at 19h03, the publication had
attracted approximately
683 000 views, 12 000 likes, 4 700 reposts
and 662 comments notwithstanding the alleged deletion.
[21]
The applicant further demonstrated in reply that
the respondent, on 18 May 2026, publicly withdrew his earlier apology
and declared
“LETS MEET IN COURT”. The respondent’s
subsequent conduct is difficult to reconcile with any genuine
withdrawal
of the allegations. On the papers before me, the alleged
retraction did little, if anything, to arrest continued dissemination
of the defamatory material.
Urgency
[22]
The allegations concern corruption and unlawful
enrichment by a senior political office bearer. They are plainly
serious.
[23]
The publication achieved extensive dissemination
and remained accessible online. The respondent thereafter publicly
refused, at
least initially, to retract the allegations and
threatened further publication. The harm is ongoing.
[24]
In
matters involving online publication, reputational harm is capable of
continuing repetition and amplification. Social-media publication
may
justify urgent interdictory relief because of the continuing nature
of online dissemination.
[1]
The
applicant acted promptly. I am satisfied that substantial redress
cannot be obtained in due course and that the requirements
of Rule
6(12) are met.
The
respondent’s defences
[25]
The publication is plainly defamatory. It accuses
the applicant of corruption and unlawful enrichment.
[26]
The
respondent admits publication. Wrongfulness and intention are
therefore presumed. The respondent bears the evidentiary burden
of
advancing a recognised defence.
[2]
[27]
The respondent states that he acted as a
journalist investigating allegations of corruption involving the City
of Ekurhuleni; that
he received information from a source; and that
he was shown documents implicating politically connected persons and
companies.
[28]
The difficulty with the respondent’s case is
that no substantiating material is placed before Court.
[29]
No affidavit from the alleged source is attached.
No report, forensic investigation, procurement document or other
evidential material
implicating the applicant is annexed to the
answering affidavit.
[30]
More importantly, the respondent’s own
version is that the investigation remained incomplete when
publication occurred.
[31]
Defamatory
statements may nevertheless be lawful if it is found that their
publication was reasonable in the circumstances, having
regard to the
specific facts, the manner of publication, and the time at which they
were published
.
[3]
The
respondent claims he attempted to obtain feedback from the applicant,
and when it failed, he published these defamatory allegations.
No
explanation was provided as to why publication occurred before the
allegations were properly verified or why further investigation
could
not first be undertaken.
[4]
[32]
The respondent nevertheless published allegations
of corruption, publicly claimed to possess “evidence”,
and threatened
further disclosure, yet ultimately placed no
substantiating evidence before the Court. He also relied on his
unsuccessful attempts
to contact the applicant before publication.
But the absence of a response to media enquiries cannot, without
more, justify publishing
serious allegations of corruption
unsupported by verified evidence.
[33]
The respondent’s reliance on the alleged
apology and retraction sits uneasily with his continued opposition to
the application,
his continued defence of the lawfulness of the
publication, and the continued dissemination of the impugned
material, as demonstrated
in the reply.
[34]
Serious
allegations published without adequate verification will not satisfy
the requirements of reasonable publication.
[5]
[35]
The defence of reasonable publication cannot
succeed on these papers.
[36]
The respondent publicly asserted that he possessed
evidence implicating the applicant in corruption and repeatedly
represented that
such evidence would be disclosed. Yet when called
upon to justify those allegations on oath, the respondent produced no
admissible
evidential material substantiating them. The answering
affidavit ultimately rests on assertion rather than proof.
[37]
Nor does the defence of fair comment avail the
respondent.
[38]
Fair
comment protects comment or opinion rather than assertions of fact
and requires that the facts upon which the comment is based
be true.
A hallmark of comment is that it derives from discernible facts that
are either true or not disputed. While the commentator
need not
justify the opinion itself, the underlying factual foundation must be
justified.
[6]
[39]
The publication in the present matter was framed
as a statement of fact. The respondent expressly linked the applicant
to: “corrupt
companies”.
[40]
He further represented that he possessed
additional evidence implicating the applicant.
[41]
The publication was not framed as conjecture,
suspicion or opinion.
[42]
The factual substratum necessary for fair comment
has not been established.
[43]
The respondent further relied on the applicant’s
own social-media publications and submitted that the applicant
himself participates
in robust and aggressive political discourse.
The respondent contended that the applicant, therefore, could not
genuinely have
regarded the impugned publication as defamatory.
[44]
The submission cannot be upheld.
[45]
Public office bearers must tolerate robust
scrutiny and criticism. Allegations concerning corruption and abuse
of public office
plainly concern matters of public interest. However,
this does not extend to the unreasonable publication of defamatory
factual
allegations unsupported by verified material
.
[46]
Even if the applicant himself previously published
intemperate or defamatory material concerning others, that would not
render the
respondent’s publication lawful.
The
issue before this Court is whether the respondent lawfully published
allegations that the applicant
was corrupt
and associated with corrupt companies benefitting from the City of
Ekurhuleni.
[47]
The publication was framed as factual assertion,
not political hyperbole or rhetorical abuse. The respondent expressly
represented
that evidence existed implicating the applicant in
corruption.
[48]
The respondent’s reliance on the applicant’s
own publications, therefore, does not avail him.
[49]
In
Xhakaza
v Modiba
,
[7]
Windell
J granted urgent declaratory and interdictory relief against this
same respondent arising from defamatory social-media
publications. Although this prior judgment does not determine
the present dispute, it is, however, relevant to demonstrate
that,
absent an interdict, there exists a reasonable apprehension of
repetition.
Relief
[50]
The requirements for final interdictory relief are
trite.
[51]
The applicant has established a clear right to
dignity and reputation.
[52]
The harm is ongoing. The publication achieved
substantial dissemination and remained accessible online.
[53]
Damages in due course do not constitute an
adequate remedy for continuing online dissemination capable of
ongoing repetition and
amplification.
[54]
In appropriate circumstances, courts are competent
to grant removal and narrowly tailored interdictory relief in motion
proceedings
involving defamatory online publication
.
[55]
The applicant has accordingly established
entitlement to interdictory relief.
[56]
Certain aspects of the notice of motion are,
however, too wide. Relief restraining publication of unspecified
future “evidence”
would constitute an impermissibly broad
prior restraint.
[57]
The interdict must therefore be confined to the
defamatory allegations forming the subject matter of these
proceedings.
[58]
The applicant also seeks relief compelling a
retraction and apology. The founding affidavit nevertheless draws a
distinction between
the urgent interdictory relief presently sought
and any future claims for apology, retraction and damages, which the
applicant
states are reserved for determination in separate
proceedings should this Court consider that course appropriate.
[59]
In
IRD
Global Limited v The Global Fund to fight AIDS, Tuberculosis and
Malaria
[8]
the
Supreme Court of Appeal affirmed that
it
is now settled law that an apology or a retraction may serve the same
purpose as an award of damages in a defamation action or
may be
ordered in conjunction with an award of damages. However, the Court
held that such relief ordinarily requires the institution
of action
proceedings.
[60]
In the circumstances of the present matter, I am
satisfied that declaratory, removal and interdictory relief
adequately address
the urgent ongoing harm established on the papers.
The question whether further compensatory relief by way of apology,
retraction
or damages should ultimately be granted is best left for
determination in separate proceedings should the applicant elect to
pursue
such relief.
[61]
Finally, on costs. The respondent published
serious allegations accusing the applicant of corruption and unlawful
enrichment. When
called upon to retract them, the respondent did not
merely refuse. He publicly taunted the applicant, attached the
cease-and-desist
letter to a further publication, declared “TRY
ME BOYS”, and threatened further publication of purported
“evidence”.
[62]
The subsequent apology relied upon by the
respondent was, on the papers before me, equivocal and short-lived.
Notwithstanding the
alleged retraction, the respondent persisted in
opposing the application, continued defending the lawfulness of the
publication,
publicly withdrew the apology shortly thereafter, and
declared “LETS MEET IN COURT”.
[63]
The respondent, furthermore, failed to comply with
the time periods stipulated in the notice of motion and delivered his
notice
of intention to oppose and answering affidavit only shortly
before the hearing, notwithstanding the urgency of the matter.
[64]
Most importantly, despite repeatedly representing
publicly that he possessed “evidence” implicating the
applicant in
corruption, the respondent ultimately placed no
substantiating admissible material before Court.
[65]
In all the circumstances, I am satisfied that the
respondent’s conduct warrants a punitive costs order.
Order
[66]
Consequently, the following order is made:
(a)
The application is heard as one of urgency and
non-compliance with the Uniform Rules of Court is condoned.
(b)
It is declared that the statements published by
the respondent on X on or about 5 May 2026 alleging that:
i.
the applicant is associated with corrupt companies
benefitting from the City of Ekurhuleni;
ii.
the applicant is corrupt;
iii.
the applicant has been unlawfully enriched; and
iv.
a lifestyle audit of the applicant would reveal
corruption or unlawful enrichment,
are
false, defamatory and unlawful.
(c)
The respondent is directed to remove and delete
the impugned publications from X and any other social-media platforms
under his
control within 48 hours of service of this order.
(d)
The respondent is interdicted from publishing any
further statements of like import.
(e)
The applicant’s claims for apology,
retraction and damages are reserved for determination in separate
proceedings should the
applicant elect to pursue such relief.
(f)
The respondent is ordered to pay the applicant’s
costs on the attorney and client scale.
CARELSE
AJ
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
Date
of hearing:
22 May 2026
Judgment
delivered: 28 May
2026
Appearances:
For
the Applicant:
M.Q Lebakeng (Ms), assisted by
G Zonke (Ms)
instructed
by Manyaka KW Attorneys
For
the Respondent: S
Shamase (attorney)
of
Shamase Ramotswedi Attorneys
[1]
Xhakaza
v Modiba
,
unreported judgment of the Gauteng Division, Johannesburg, case
number 2025-115868 ( 27 August 2025).
[2]
Economic
Freedom Fighters v Manuel
2021
(3) SA 425
(SCA) (“EFF v Manual”) para 36.
[3]
National
Media Ltd and Others v Bogoshi
1998
(4) SA 1196
(SCA) at 1212G-H.
[4]
EFF
v Manual supra
paras
75 to 77 and 85.
[5]
EFF
v Manual supra
paras
75 to 77 and 85.
[6]
Hardaker
v Phillips
2005
(4) SA 515 (SCA).
[7]
Xhakaza
v Modiba
,
unreported judgment of the Gauteng Division, Johannesburg, case
number
2025-115868 ( 27 August 2025).
[8]
IRD
Global Limited v The Global Fund to fight AIDS, Tuberculosis and
Malaria
2025
(1)
SA
117 (SCA) at [22] to [26].