REPUBLIC OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 2022-032755
In the matter between:
BARLOWORLD SOUTH AFRICA (PTY) LTD Applicant
and
FISOKUHLE MULTI SERVICES CC First Respondent
FELICIA FISOKUHLE BUTHELEZI Second Respondent
JUDGMENT
ROBERTSON, AJ
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _____
DATE SIGNATURE
Introduction
1. This is the return day of Part B of an application brought by the applicant for final
relief arising from a series of social media publications made by or on behalf of
the respondents.
2. The applicant seeks, in substance, an order declaring certain publications
defamatory, directing their removal, and interdicting the respondents from
publishing further defamatory matter concerning the applicant and its employees.
3. Part A of the application was heard in the urgent court on 26 October 2022 before
Dosio J. An interim interdict was granted pending the determination of Part B.
4. The matter initially proceeded on an unopposed basis. It was set down before
Fischer J on 12 October 2023. The respondents filed a notice of opposition
shortly before that hearing and were directed to deliver an answering affidavit.
5. The respondents’ answering affidavit was filed late. They seek condonation. The
delay is explained principally by reference to the urgent contempt proceedings
subsequently brought by the applicant, and to the personal circumstances of the
second respondent. The applicant did not persist in opposing condonation at the
hearing. In the interests of justice, and because the matter was fully argued on
the merits, condonation is granted.
The Parties and Background
6. The applicant is Barloworld South Africa (Pty) Ltd. The first respondent is
Fisokuhle Multi Services CC. The second respondent is Ms Felicia Fisokuhle
Buthelezi, the sole member of the first respondent.
7. The first respondent previously rendered services to the applicant. These
included canteen services and security services. The relationship arose in the
context of the applicant’s Siyakhula programme, which is described in the papers
as a programme aimed at supporting small businesses, particularly those owned
by historically disadvantaged persons.
8. The applicant terminated the contracts. The lawfulness of those terminations is
disputed in other proceedings. That dispute is not before me, and I make no
finding on it.
9. The second respondent also raised complaints concerning alleged racist and
abusive conduct by a former employee of the applicant, Mr Marais. Those
complaints were investigated by KPMG. The respondents contend that the
applicant has refused to provide them with the KPMG report and that this refusal
lies at the heart of the present dispute.
10. The applicant accepts, at least on the basis of correspondence referred to in the
papers, that the KPMG investigation found that certain conduct by Mr Marais was
in breach of the applicant’s policies. The applicant says, however, that Mr Marais
resigned during the investigation and that the matter was thereafter closed. The
applicant also contends that the KPMG report is privileged and confidential.
11. The papers also reflect that allegations relating to racism and sexism were
referred to the Equality Court. On 27 October 2022, after considering the
evidence then before it, the presiding magistrate determined that the matter
should not be referred to the Equality Court in terms of section 20(3)(a) of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. I
mention this only as part of the broader factual context. Nothing in this judgment
turns on the correctness of that decision.
12. It is neither necessary nor appropriate for this Court to determine the full merits
of the underlying complaints concerning the contracts, the KPMG report, or the
allegations made against Mr Marais. Those issues are either the subject of other
proceedings or are not properly before this Court. The question in this application
is narrower: whether the publications identified by the applicant are defamatory
and, if so, whether the respondents have established a defence to their
publication.
The Publications
13. The publications were made on social media platforms, principally LinkedIn and
13. The publications were made on social media platforms, principally LinkedIn and
Facebook, during or around public online events hosted by the applicant.
14. The applicant relies on a number of publications set out in the founding affidavit.
They include statements to the effect that:
14.1. the applicant and its employees bullied, deceived and tortured the second
respondent;
14.2. the applicant unlawfully terminated the first respondent’s contracts;
14.3. the applicant was involved in corruption and racism;
14.4. the applicant used, abused and exploited black women and black-owned
businesses for BEE scoring and public relations purposes;
14.5. the applicant presented a false image of transformation in public while
acting differently in private; and
14.6. black employees or staff were referred to by grossly racist and sexist
terms.
15. By way of illustration, two of the impugned publications, on which the applicant
principally relies, read as follows:
“… I reported what were referred to baboons and pussy while trying to save
Barloworld. Nothing have happened. KPMG was appointed to investigate my
allegations until today no report was shared with me. I was chased out of …”
(LinkedIn, during the “Table Is Big” virtual live event hosted by the applicant on
19 August 2022, founding affidavit paragraph 38.7)
“Friday there as a celebration of transformation at Barloworld which is a lie. It
is not true” (LinkedIn, 19 August 2022, founding affidavit paragraph 38.8).
16. The statements were made in public-facing online spaces. They were directed at
the applicant, its employees, and its public reputation.
17. Publication by the respondents is effectively common cause.
The applicable legal principles
18. Defamation is the wrongful and intentional publication of a defamatory statement
concerning another.
19. A statement is defamatory if, objectively assessed, it is likely to lower the plaintiff
in the estimation of reasonable members of society or undermine the plaintiff’s
good name and reputation.
20. A juristic person does not enjoy human dignity in the same sense as a natural
person, but it has a protectable common -law interest in its reputation and good
name.
21. Once publication of defamatory matter concerning the applicant is established,
wrongfulness and intention are presumed. The onus then rests on the
respondents to establish a defence which rebuts wrongfulness or intention.
22. The relevant defences raised in the papers are truth and public interest, fair
comment and, in the respondents’ heads of argument, reasonable publication.
23. For truth and public interest, the respondents must establish that the defamatory
sting of the publication is substantially true and that publication was in the public
interest.
24. For fair comment, the respondents must establish that the statement was
comment and not fact; that the comment was fair in the sense of being an
honestly held opinion within permissible limits; that the facts on which the
comment was based were true or notorious; and that the matter was one of public
interest.
Whether the publications are defamatory
25. The statements complained of plainly bear defamatory meanings.
26. They convey, expressly or by implication, that the applicant is racist, sexist,
dishonest, corrupt, unethical, exploitative, unprofessional and hypocritical in its
public commitment to transformation and empowerment.
27. These are serious imputations. They are not mere expressions of dissatisfaction
with a former contracting party. They strike at the applicant’s reputation as a
business, particularly in relation to ethics, transformation, race, gender, and the
treatment of black women-owned businesses.
28. The publications are therefore defamatory of the applicant.
Respondents’ defence
29. Read fairly and as a whole, the respondents’ defence is, in substance, that:
29.1. the publications were true or substantially true;
29.2. they concerned matters of public interest, particularly racism and the
treatment of black women-owned businesses;
29.3. they constituted fair comment based on the second respondent’s
personal experience; and
29.4. the applicant could have avoided the publications by providing the KPMG
report.
30. In heads of argument, the respondents also referred to the principles in National
Media Ltd v Bogoshi and reasonable publication. During argument, however, the
respondents did not ultimately persist with a discrete defence of reasonable
publication. In any event, the answering affidavit does not contain the factual
allegations ordinarily necessary to sust ain such a defence, including proper
allegations concerning verification, source reliability and the reasonableness of
publication.
31. The respondents accordingly bear the onus of establishing the pleaded defences
of truth and public interest and fair comment.
The KPMG report and the Attorney’s letter
32. The respondents place considerable weight on the applicant’s attorney’s letter
dated 28 May 2021.
33. The respondents submit that the letter records that KPMG found that the conduct
of Mr Marais was in breach of the applicant’s policies. They argue that this
supports the truth of the publications.
34. The letter does provide some support for the respondents’ contention that they
had raised complaints which were not frivolous and that at least some conduct
complained of was found to be contrary to the applicant’s policies.
35. That is an important contextual matter. It explains why the second respondent
may have felt aggrieved and why she may have believed that the applicant had
failed to deal with her complaints adequately.
36. But that is not the end of the enquiry.
37. The KPMG report is not before the Court. The respondents do not have it. They
cannot identify its full findings, the scope of its conclusions, the evidence on
which those conclusions were based, or whether it made any findings concerning
the broader allegations published on social media.
38. The letter does not establish that the applicant is racist as an organisation. It
does not establish corruption. It does not establish that the applicant exploits
black women-owned businesses for BEE scoring. It does not establish that the
applicant presents fake transformation to the public. It does not establish that the
first respondent’s contracts were unlawfully terminated. It does not establish that
the applicant’s executives engaged in dishonest or unethical conduct in the broad
terms published.
39. At most, the letter provides a factual basis for the respondents to say that they
had complained of racist or abusive conduct by Mr Marais, and that the
applicant’s own investigation found that some conduct by him breached its
policies.
40. That limited factual foundation does not justify the wider defamatory sting of the
publications.
Truth and public interest
41. There is no doubt that allegations of racism, sexism and abuse in commercial
relationships may be matters of public interest. Allegations of racism and the
treatment of black women -owned businesses by large corporates are plainly
matters capable of engaging legitimate public concern and debate.
42. But public interest alone is not enough. Where the defence is truth and public
interest, the respondents must establish substantial truth of the defamatory sting.
43. They have not done so.
44. The respondents rely principally on the attorney’s letter and on the second
respondent’s personal experience. That evidence falls materially short of
establishing the truth of the broader allegations of corruption, fake
transformation, exploitation for BEE scoring, unlawful termination, dishonesty,
unethical conduct and racism by the applicant.
45. Some of the issues raised by the respondents are also the subject of other
pending proceedings. The question whether the contracts were lawfully
terminated is not determined in this application. The respondents cannot
establish the truth of the allegation that the contracts were unlawfully terminated
merely by asserting it in opposition to a defamation application.
46. The defence of truth and public interest must therefore fail.
Fair comment
47. The respondents also rely on fair comment. The second respondent says that
she was sharing her experience as a black woman who had been promised
empowerment, and that the comments were a cry for the applicant to prioritise
her complaints and provide the KPMG report.
48. I accept that portions of the publications reflect the second respondent’s personal
grievance. I also accept that fair comment need not be polite, moderate or
pleasing to the subject of the criticism.
49. But the defence has limits.
50. The statements complained of were not merely comments on disclosed facts.
Many were presented, objectively viewed, as assertions of fact or mixed
statements of fact and opinion. They stated or implied that the applicant engaged
in corruption, racism, exploitation, unlawful termination, fake transformation and
unethical conduct.
51. To the extent that the statements were comments, the factual substratum for
them was not sufficiently established. The facts proved by the respondents do
not support the full sting of the comments.
52. It is one thing for the second respondent to say that she complained about racist
or abusive treatment, that she was dissatisfied with the applicant’s response, and
that she wanted the KPMG report. It is quite another to publish, as fact or as
comment, br oad allegations that the applicant is corrupt, racist, exploitative,
dishonest and engaged in false transformation.
53. The defence of fair comment accordingly fails.
Freedom of Expression
54. The respondents rely on freedom of expression. That right is important. It
protects robust criticism, including criticism of powerful commercial entities.
55. But freedom of expression does not protect the unjustified publication of
defamatory allegations.
56. This judgment does not prevent the respondents from pursuing lawful remedies.
It does not prevent them from litigating the contractual disputes. It does not
prevent them from seeking the KPMG report through lawful processes, if so
advised. Nor does it prev ent them from making truthful, lawful and non -
defamatory statements.
57. Courts exercise caution when granting final interdictory relief in defamation
matters, particularly where future publication is sought to be restrained. In the
present matter, however, the impugned publications are identified with
specificity, publication is admitted, and the order granted is narrowly confined to
defamatory statements of the nature established on the papers.
Final interdict
58. The applicant has a clear right to protect its reputation and good name.
59. The injury has already occurred. The publications were made on public social
media platforms. They carried serious defamatory imputations. There is also a
reasonable apprehension of repetition. The nature and persistence of the
publications indicate a reasonable apprehension of repetition.
60. Damages would not provide adequate protection in the circumstances. The
applicant seeks primarily to restrain further defamatory publication and to secure
removal of the identified posts.
61. The applicant has therefore established the requirements for final interdictory
relief.
62. I do, however, consider the broad formulation in prayer 7 of the amended notice
of motion to be impermissibly wide. An order restraining the respondents from
publishing “any information” pertaining to the applicant or its employees would
unjustifiably restrict lawful expression, including lawful criticism and commentary.
The order must therefore be confined to defamatory publications of the nature
established in this application.
Costs
63. The applicant seeks costs on the party -and-party scale, Scale B, including the
costs of Part A, the adjournment before Fischer J on 12 October 2023, and the
costs of two counsel where employed.
64. The respondents have been unsuccessful. There is no reason to depart from the
ordinary rule that costs should follow the result.
65. The costs sought are appropriate. The matter justified the employment of two
counsel where so employed.
Order
66. The following order is made:
66.1. The late filing of the respondents’ answering affidavit is condoned.
66.2. The following statements made about the applicant by the first and
second respondents are declared defamatory:
66.2.1. the post published on the LinkedIn profile of the Executive
Head: Strategic Sourcing (CPO) at Barloworld South Africa
(Pty) Ltd, dated 19 August 2022, as more fully set out in
paragraph 38.1 of the founding affidavit;
66.2.2. the posts published on the Facebook page of the applicant,
dated 19 August 2022, as more fully set out in paragraphs 38.3
and 38.4 of the founding affidavit;
66.2.3. the post published on the applicant’s LinkedIn profile, dated
17 June 2022, as more fully set out in paragraph 38.6 of the
founding affidavit;
66.2.4. the posts published on the applicant’s LinkedIn profile during
a virtual live event hosted by the applicant, dated 19 August
2022, as more fully set out in paragraphs 38.7 to 38.9 and 47.1
to 47.5 of the founding affidavit; and
66.2.5. the post published on the second respondent’s LinkedIn
profile, dated 19 August 2022, as more fully set out in
paragraph 38.11 of the founding affidavit.
66.3. The first and second respondents are interdicted and restrained from
publishing defamatory statements concerning the applicant and/or its
employees which state or imply that the applicant and/or its employees
are racist, sexist, dishonest, corrupt, unethic al, exploitative,
unprofessional or hypocritical, whether on Facebook, LinkedIn or any
other social media platform, or in any other manner.
66.4. The first and second respondents are ordered, within five days of this
order, to remove the posts referred to in paragraph 66.2 above from
Facebook, LinkedIn or any other social media platform on which they
have been posted, insofar as such posts remain under their control;
66.5. The first and second respondents are directed, jointly and severally, the
one paying the other to be absolved, to pay the costs of the application
on the party-and-party scale, Scale B, including:
66.5.1. the costs occasioned by Part A before Dosio J on 26 October
2022;
66.5.2. the costs occasioned by the adjournment before Fischer J on
12 October 2023; and
66.5.3. the costs of two counsel where so employed.
_____________________________
CL ROBERTSON
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email and by upload to Caselines. The date for hand -down is
deemed to be 2 June 2026.
Date of hearing: 13 May 2026
Date of judgment: 2 June 2026
APPEARANCES
For the Applicant: L T Nkosi
Instructed by: NSD Inc
For the Respondents: K D Masupye
Instructed by Lindy Matlala Attorneys