IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2025-092980
In the matter between:
CAPE UNION MART
INTERNATIONAL (PTY) LTD
First Applicant
PHILIP JOSEPH KRAWITZ Second Applicant
AND
MAGHMUDA OCKARDS First Respondent
MUHAMMAD SHAFIQ GAMIET Second Respondent
MOHAMED ZAIN JEENAH Third Respondent
SHERAZAAD RAHIMA SYLVESTER Fourth Respondent
SAYED RIDHWAAN MOHAMED Fifth Respondent
UNIDENTIFIED PROTESTERS AT
CAPE UNION MART PREMISES
Sixth Respondent
PALESTINIAN SOLIDARITY
CAMPAIGN, CAPE TOWN
Seventh Respondent
AND
CENTRE FOR APPLIED LEGAL
STUDIES
Amicus Curiae
Coram: Justice J Cloete, Justice C N Nziweni et Justice R Barendse
Heard: 15, 17 and 18 June 2026
Delivered electronically : 4 September 2026
ORDER
1 The application to strike out by the first to fifth and seventh respondents is
dismissed.
2 The respondents are interdicted and restrained from making any claim that
the first applicant (Cape Union Mart) or one of its brands, including Poetry,
Old Khaki and K-Way, are associated with the State of Israel in any way.
3 The respondents are interdicted and restrained from making any claim that
the first applicant (Cape Union Mart) or one of its brands, including Poetry,
Old Khaki and K -Way, are funding “genocide” or any military conflict in
Gaza in any way.
4 The respondents are interdicted and restrained from making any claim that
the second applicant is “funding genocide”, the Israeli army, or the conflict
in Gaza in any way.
5 The respondents are interdicted and restrained from claiming that the
applicants are killing children or are complicit in the killing of children.
6 The respondents are interdicted and restrained from publishing, in any way,
defamatory statements to the effect that the applicants support a genocide in
Gaza, or that the applicants have “killer(s) ways”.
7 The respondents are interdicted and restrained from preventing access to the
first applicant’s stores by its customers.
8 The respondents shall, during any protest action held at the first applicant’s
stores or premises, comply with the provisions of the Regulation of
Gatherings Act 205 of 1993.
9 Each party shall pay their own costs.
JUDGMENT
Cloete J ( Nziweni J et Barendse J concurring) :
Introduction
[1] The applicants (Cape Union Mart and Mr Krawitz respectively) have
approached this court for a final interdict against the respondents for what they
contend is continuing defamatory and other unlawful conduct. The application
is opposed by the first to fifth and seventh respondents. The second, third and
fourth respondents are members of the seventh respondent, the Palestinian
Solidarity Campaign, Cape Town (PSC). Although the first and fifth
respondents are not members of the PSC, they were referred to collectively with
the second, third, fourth and seventh respondents as the ‘PSC respondents’. The
sixth respondent, namely the unidentified protestors at Cape Union Mart’s
premises, have not participated 1 . The Centre For Applied Legal Studies
(CALS) was admitted as amicus curiae.
[2] Cape Union Mart is a South African company operating a chain of retail
stores across Southern Africa. It owns brands such as K -Way, Poetry, Old
Khaki and Travel & Safari. It has a board of nine directors. Mr Krawitz is the
executive chairperson. He is not a shareholder.
[3] Mr Krawitz has close historic ties to Cape Union Mart. His grandfather
founded the business in 1933, and he joined it as a young man. Mr Krawitz and
his family are Jewish, and he is a prominent member of the South African
Jewish and business communities.
1 Despite the applicants having complied with a substituted service order.
[4] Although the first and fifth respondents are not members of the PSC, they
often attend PSC arranged protests. The PSC describes itself as a voluntary
organisation and grassroots civil society movement based in Cape Town,
committed to advocating for human rights, justice and equality for the
Palestinian people. It is a secular organisation, but has members of all faiths. It
states that it operates through peaceful campaigns, public education, boycotts
and protest action, aimed at ending the oppression of Palestinians, including
Israel’s occupation of Palestinian territories and what it describes as Israel’s
other violations of international law. It maintains that it rejects anti -semitism
unequivocally, just as it rejects Islamophobia and all forms of ethnic or religious
bigotry.
The context of the dispute
[5] There are disagreements on the papers about various factual aspects, but
over the course of the three days the matter was argued, many became side
issues which no longer require consideration. I will thus focus on what is now
common cause, or no longer materially disputed, insofar as these are relevant to
determination of the true issues.
[6] From November 2023, and following developments in Gaza, the PSC and
other supporters, both known and unknown, began gathering regularly to protest
outside Cape Union Mart stores within this Court’s jurisdiction. These protests
continued for 19 months until the applicants approached this court for relief, as
well as thereafter, despite the terms of an interim order. 2 According to the PSC,
the purpose of these gatherings was to urge the public to boycott Cape Union
Mart’s stores as part of a broader campaign ‘to boycott businesses linked to the
State of Israel’s military campaign in Gaza, whether through ownership, or
because of their support for Israel’s conduct’. The PSC says that Cape Union
2 The application was brought on 19 June 2025 and opposed by the respondents on 1 July 2025. On
6 August 2025, an order was made by agreement providing for certain interim relief and postponing the matter
to 16 and 17 February 2026 for hearing. It was then again postponed for hearing before us.
Mart was targeted because Mr Krawitz as its executive chairperson ‘ and
principal owner … is known to hold leadership positions in organisations that
raise funds for Israel (including for its military and settler enterprises)’.
[7] Posters displayed at various of these gatherings, and utterances by PSC
members and/or its supporters thereat, are admitted by the PSC respondents to
be the following: (a) a poster held by the first respondent, with her face
disguised, bearing the words ‘K -Way Killers Way’ alongside an equation mark
next to a photograph of Mr Krawitz; (b) posters depicting the swastika (the hate
symbol of Nazi Germany) superimposed on an Israeli flag; (c) a poster bearing
the words ‘Boycott Cape Union Mart: They fund genoci de’; (d) protesters
chanting ‘Philip, Philip, what do you say, how many children have you killed
today’, referring directly to Mr Krawitz; (e) the first respondent holding a
poster bearing the words ‘Phillip Krawitz Genocide Funder’ next to a
photograph of Mr Krawitz and his wife; (f) the first respondent holding a poster
reading ‘I know your suffering and your poverty (but you are rich), and how
you are BLASPHEMED & SLANDERED by those who say they are Jews
(Zio’s) and are not THEY ARE THE SYNAGOGUE OF SATAN ’; (g) a
poster(s) bearing the words ‘Cape Union Mart supports killing of children in
Palestine’; (h) the first respondent holding a manipulated photograph of Mr
Krawitz with devil’s horns, i.e. Satan; and (i) the first respondent holding a
poster with an arrow pointed towards a Cape Union Mart store with the words
‘ISRAEL KILLS/ starves BABIES’.
[8] Furthermore, the fifth respondent admits posting pictures of himself at
these protests on his public Instagram account, including where he was holding
a poster with the name and photograph of Mr Krawitz alongside a Cape Union
Mart logo and the words ‘Cape Union Mart supports genocide. Proudly supports
MURDERS OF KIDS’.
[9] The PSC respondents allege that they learned of Mr Krawitz’s affiliations
through public sources (media interviews, newspaper articles and reports); and
that given that Cape Union Mart ‘is a family -owned company, headed by Mr
Krawitz, it was deemed appropriate to target the business for a consumer
boycott in protest of his close association with Israel and its atrocities in Gaza’.
[10] They say that their admitted conduct cannot be viewed in a vacuum.
They proceeded to deal in some detail with the conflict in Gaza and their views
about it, as well as the views of others. They are of course entitled to their
views, but it is important to contextualise the actual litigation before us, since
we are not a court of public opinion but a court of law.
[11] In the words of the Constitutional Court in Masuku3:
‘[1] At the heart of this matter are three fundamental rights, all indispensable to any healthy
constitutional order. These rights – the rights to equality, human dignity, and the right to
freedom of speech and expression – are rights that carry unique and troubled pasts
interwoven into the fabric of apartheid history. In this constitutional dispensation, they are
inextricably interconnected with what it means to be a citizen of a democracy, free to live a
life in a condition of dignity and humanity. In this matter, these rights meet each other.
[2] The background to this matter is disturbing, and the genesis of the legal question with
which this Court now finds itself seized, lies in four statements made orally and in writing by
Mr Bongani Masuku in respect of the protracted feud between Israel and Palestine in the
Middle East. It should be said at this earliest opportunity that what this Court is not called
upon to do is to make any pronouncement on that situation, which is a concern of
international relations and not a justiciable issue. To pronounce on this situation would be
both wholly inappropriate and totally irrelevant to the legal questions that are the objects of
our attention. Now that any ambiguity as to what we are doing here has been eradicated, let
us turn to the background of this matter – the reason we are here.’
[12] It is also necessary to say what the dispute before us is not about. No
relief is sought to limit the respondents’ criticism of the State of Israel and the
3 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another
2022 (4) SA 1 (CC).
events that unfolded in Gaza in any way whatsoever. No general relief is
sought to ‘insulate the applicants from any public scrutiny or accountability ’ as
the respondents suggest. Nor is any relief sought to prevent the respondents
from assembling in public places or from boycotting Cape Union Mart.
[13] In their amended form, the orders sought by the applicants include: (a)
restraining the respondents from making what the applicants contend are false
claims that they are funding a genocide and killing babies; (b) harassing and
preventing access to customers of Cape Union Mart at its stores; and (c)
compliance with the Regulation of Gatherings Act 4 (Gatherings Act), which the
PSC respondents have now undertaken to do, thus leaving only the sixth
respondent (the unknown protestors who have not participated in this litigation).
[14] Put differently, the applicants ask inter alia for an interdict to prevent the
respondents from defaming them, and offending the dignity of Mr Krawitz,
under the guise of freedom of expression, and for them to behave lawfully and
comply with a piece of legislation that no -one (including the CALS, which I
deal with later) has sought to impugn.
[15] It is also appropriate to deal briefly at this juncture with the PSC
respondents’ application to strike out portions of the applicants’ replying
affidavits on the basis that they constitute impermissible matter which, it is
alleged, are scandalous, vexatious and/or irrelevant, hearsay, new matter or
secondary evidence. The first overall complaint is that in their replying
affidavits, the applicants introduced evidence of further happenings that
occurred after their application was launched. Given the PSC respondents’
concessions, it is not necessary to consider that evidence.
[16] The second overall complaint is one pertaining to supporting affidavits
introduced in reply. The short answer is that, ironically, the PSC respondents
4 Regulation of Gatherings Act 205 of 1993.
relied almost exclusively on hearsay evidence to support their claims against Mr
Krawitz in the form of articles and reports downloaded off the internet. In these
circumstances, it ill -behoved the PSC respondents to complain, after the
applicants were obliged to deal therewith, that the allegedly offending portions
of their replying affidavits fell to be struck out.
The applicants’ case in the founding papers
[17] The principal founding affidavit was deposed to by Mr Krawitz. His
evidence was as follows. Neither he nor Cape Union Mart have any
involvement in the war in Gaza. The ties he has with Israel in his personal
capacity stem solely from his family’s religion of Judaism, which he says are
ties with the Jewish state as a spiritual homeland for Jews and not with the
government of Israel.
[18] He explained that his late grandfather, also Philip Krawitz, came to South
Africa at the time of intensifying persecution of Jews. Since he founded Cape
Union Mart in 1933, the Krawitz family has been involved in the business,
although it has expanded into a large corporate entity. Currently it has
approximately 3000 employees and 270 stores. The group’s employees, on all
levels, come from different ethnic, religious, cultural and demographically
diverse backgrounds.
[19] As is expected from all major businesses in South Africa, Cape Union
Mart has a comprehensive Corporate Social Investment (CSI) policy.
Donations are given to qualifying organisations. The CSI policy includes a
requirement that Cape Union Mart may only make donations in the
communities in which it conducts business, and he could therefore categorically
state that it has never donated anything to any person or organisation outside of
Southern Africa.
[20] In his personal capacity, Mr Krawitz has served, and continues to serve,
in several leadership positions. These include being a trustee of the Cape Town
Holocaust & Genocide Centre, a past president of the South African Chamber
of Business and the Cape Town Chamber of Commerce, protector of the
Ikamva Labantu Trust, and the South African chairperson of Keren Hayesod,
which he described as a public benefit company and non -profit organisation
based in Israel.
[21] He explained that he has been privileged to receive several awards during
his career, amongst them, for present purposes, the Keren Hayesod Yakir
Award for philanthropy in 2015 (he was one of four international recipients).
He annexed a report on that award, published in the SA Jewish Report of
24 June 2015. He said that the timing of that award was a surprise to him, given
that he had been involved in both Jewish and non -Jewish organisations his
entire career. At the award ceremony, a photograph was taken of him and his
wife with Israeli Prime Minister Netanyahu.
[22] During 2014, there was another well -publicised conflict between Israel
and who Mr Krawitz described as Hamas -affiliated Palestinian militants, which
came to be known as ‘Operation Protective Edge ’ or the ‘2014 Gaza War ’.
Keren Hayesod spearheaded a fundraising campaign for the Fund for Victims of
Terror, which was already founded in 2002, providing assistance on a purely
humanitarian basis to civilians of any religious background affected by
terrorism on Israeli soil.
[23] Mr Krawitz believed it was his involvement in Keren Hayesod that led to
allegations during 2023 that he had pledged to ‘raise money for the Israeli war
fund’, which he described as completely false, but which were repeated after his
2015 award was then brought up. Mr Krawitz attributed this falsehood to a
member of an organisation called the SA Boycott, Divestment and Sanctions
Coalition. He also believed that this falsehood propelled the respondents to
hold the protests and make the claims which they did.
[24] He also referred to a video of an interview in which he took part on
28 October 2024, during a private function of the non -profit organisation ORT
Jet at which he was guest speaker, and which was subsequently widely
distributed on social media. During the interview, when asked about the
boycott campaign against Cape Union Mart (which by that time had been
ongoing for almost a year) he responded:
‘“The Jewish Report published a picture of me together with my wife together with (Israeli
Prime Minister) Netanyahu.
Suddenly I became, quote unquote, the biggest funder of the Israeli army.
I would be privileged to be the biggest funder of anything in Israel..
And so, they picked up on that, “I’m the biggest funder to the Israeli army and you must
boycott K-Way and you mustn’t buy from K- Way”’.
[25] According to Mr Krawitz, during the same interview he emphatically
denied funding the Israeli army, and the above statement was ‘clearly sarcastic
to illustrate the ludicrous nature ’ of the allegations against him. He had in fact
said he would be privileged if he were, indeed, the biggest funder of anything in
Israel as that would imply he was a man of such wealth that he could, ‘let alone
the Israeli army’.
[26] After detailing the nature of the protests, and unsuccessful attempts by
Cape Union Mart senior representatives to engage with the protestors, Mr
Krawitz referred to the recent presence of counter -protestors bearing the Israeli
flag. He feared that this could escalate into physical altercations between
opposing groups. As he put it: ‘Cape Union Mart, and its customers, are now
being drawn into a battlefield of opposing views about a war we have no part in.
The applicants are suffering ongoing, intensifying and irreparable harm’.
The PSC respondents’ case
[27] The PSC respondents admitted most of the conduct complained of. They
did not seriously suggest that the utterances made (whether in posters or
verbally) are not defamatory, and correctly so. However, they denied that their
conduct is wrongful on two grounds: (a) truth and public benefit; and (b)
protected commentary.
[28] Their answering affidavits and annexures thereto are voluminous (almost
900 pages). I will endeavour to isolate the pertinent portions. By way of an
overview of their opposition, they said that the relief, if granted, would operate
as a prior restraint on core political speech and peaceful assembly, protected
under s 16 and s 17 of the Constitution. Their boycott and protest campaign is a
form of political expression and conscientious activism, directed at Mr Krawitz
‘and by extension Cape Union Mart’s, support of, and connections to, the
unlawful and genocidal conduct of the State of Israel in Gaza ’. The ‘by
extension’ theme in relation to Cape Union Mart ran throughout their papers.
[29] The respondents claimed that Mr Krawitz’s public statements and official
roles make him, and by extension, Cape Union Mart, fair subjects of moral and
political criticism. They also claimed in emphatic terms that their statements
about both applicants are true and for the public benefit.
[30] The admitted sources of the information upon which they relied were
reports and articles downloaded from the internet, as well as the interview of
October 2024. From these articles and reports, they had formed the view that
Mr Krawitz holds ‘senior positions in bodies ’ that directly support Israel’s
military and settlement actions and policies. One of his ‘most significant’ roles
is in Keren Hayesod – United Israel Appeal (UIA). According to them, the
sources to which they referred revealed that, under Israeli law, Keren Hayesod
works in close coordination with the Israeli government to advance Israel’s
works in close coordination with the Israeli government to advance Israel’s
national priorities, one of which is supporting members of the Israeli military
and paramilitary infrastructure (IDF).
[31] The PSC respondents first referred to Mr Krawitz’s position in Keren
Hayesod to link him to these activities. They claimed that although it runs a
charitable foundation, Keren Hayesod is effectively an Israeli governmental
entity, which not only supports its military and paramilitary structure but also
supports Jewish settler organisations operating in occupied East Jerusalem and
which include forcibly displacing Palestinian residents.
[32] They linked Mr Krawitz to the activities complained of by claiming that
Keren Hayesod -South Africa is ‘the local affiliate that raises funds from the
Jewish community and others for Keren Hayesod’s programmes in Israel ’.
Although the PSC respondents did not dispute that Mr Krawitz in his capacity
as chairperson of Keren Hayesod -South Africa was instrumental in raising
funds in 2014/2015 to assist ‘Israeli’ victims of conflict, they maintained that
Keren Hayesod’s leadership’s appreciation of his ‘unswerving devotion to Israel
at that time demonstrates a broader commitment beyond any one project, and by
accepting the 2015 award he held himself out as a ‘champion of Israeli causes’.
[33] They further alleged, in support hereof, that Mr Krawitz also serves on
Keren Hayesod’s international governing body as Campaign Executive,
advising its World Chairman; and that through Keren Hayesod he has become
directly involved with the Jewish Agency for Israel (JAFI). Although formally
independent, JAFI is, according to them, another of Israel’s national institutions,
established by law to collaborate with the state, and it focuses on immigration,
settlement and diaspora, having historically played a role in establishing and
expanding Israel. It is also claimed by them to have security -related
programmes.
[34] Keren Hayesod is further alleged to be intertwined with JAFI, with more
than 50% of the former’s funds raised being earmarked for JAFI projects. Since
2020, Mr Krawitz has served on JAFI’s board of governors to represent Keren -
Hayesod. The PSC respondents also placed emphasis on Mr Krawitz’s other
local activities, which they claim link him to ‘Zionist’ organisations.
[35] As far as Cape Union Mart is concerned, the ‘by extension’ theme was
encapsulated in the following paragraph in the principal answering affidavit:
‘[s]tatements directed at Cape Union Mart track the publicly -embraced identity of Mr
Krawitz, as its executive chairperson, and brand association. The statements articulate
derivative complicity and are also true in substance, or are protected opinion.’
[36] Although the PSC respondents relied on hearsay evidence, no proper
attempt was made to have it introduced under s3 (1)(c) of the Law of Evidence
Amendment Act 5. This subsection confers on a court a wide discretion to
receive hearsay evidence in the interests of justice, having regard to the
following: (a) the nature of the proceedings; (b) the nature of the evidence; (c)
the purpose for which the evidence is tendered; (d) the probative value of the
evidence; (e) the reason why the evidence is not given by the person on whose
credibility the probative value of such evidence depends; (f) any prejudice to a
party which the admission of such evidence might entail; and (g) any other
factor which in the opinion of the court should be taken into account.
[37] In addition, on 24 July 2025 the PSC respondents availed themselves of
uniform rule 35, but without first seeking leave of the court to make the rules of
discovery applicable to motion proceedings as they were required to do.
Despite this, the applicants delivered a comprehensive response on 25 August
2025, long before the PSC respondents delivered their answering affidavits on
17 and 21 November 2025 respectively. As part of that response, the applicants
provided detailed information, including extracts from Cape Union Mart’s
records reflecting the entities to which it had donated money since 2020.
5 Law of Evidence Amendment Act 45 of 1988.
[38] Moreover, the PSC respondents launched an urgent application on
19 August 2025, seeking to make the rules of discovery applicable to these
proceedings under rule 35(13), but subsequently abandoned that application.
Their belated attempt during argument to persuade us that the evidence was not
hearsay in light of the Electronic Communications and Transactions Act 6 took it
no further, since even if the material upon which the PSC respondents relied fell
within the definition of ‘data message’, this had never been their case and the
applicants could thus not have dealt with it in their affidavits.
The response of the applicants
[39] Mr Krawitz deposed to the principal replying affidavit as well. He
maintained that, apart from the obvious hearsay material squarely relied upon
by the PSC respondents, they had been selective in what they had placed before
the court. For example, in a recorded interview in 2002, which he said was
similarly publicly available, he had specifically distanced himself from what
was happening in Gaza, and stated that war is not the answer. His position has
not changed over the years since then, and he has expressed it whenever
appropriate. Since the PSC respondents have access to the internet and a search
engine, they must have known of his publicly expressed stance and elected to
withhold this.
[40] He also took issue with the PSC respondent’s interpretation of Zionism
and said that he certainly does not subscribe to that interpretation (no expert
evidence was placed before us by any party on this score). He denied that either
Keren Hayesod or JAFI, in which he is involved as a local, South African
leader, are Israeli ‘government entities ’. In support hereof, he referred to
affidavits deposed to by Mr Shlomo Zomer and Mr Moshe Ashirie, who are the
international chief financial officers of Keren Hayesod and JAFI respectively.
6 Electronic Communications and Transactions Act 25 of 2002.
[41] Mr Zomer’s evidence was as follows. Keren-Hayesod is an organisation
which funds various social aid and Zionist education programmes. While it is
regarded as a ‘national institution’ it is independent of the government of Israel.
It does not provide any funding whatsoever to the Israeli government or the
Israeli Defence Force. It only supports philanthropic, non -political, social and
humanitarian purposes. Its mechinot and lone soldier programmes do not offer
any military training whatsoever, and do not involve the Israeli Defence Force.
It holds a 20% stake in JAFI and focuses much of its fund -raising efforts on
JAFI’s programmes and projects.
[42] Keren Hayesod -South Africa supports specific programmes of Keren
Haysod in Israel, primarily through fundraising. Keren Hayesod has a policy of
requesting an indication of intent for all sizeable donations; donors are required
to specify for which programme or project the funds are intended; and donations
are ring fenced accordingly. Neither Mr Krawitz nor Keren Hayesod -South
Africa have ever been involved in any way with the mechinot programmes,
whether through fundraising or otherwise.
[43] The donations received from Mr Krawitz and /or Keren Hayesod -South
Africa have, in accordance with this policy, been applied as follows: (a) the
Net@Ramie project, which provided hundreds of Arab -Israeli adolescents with
computer access and education on the use of technology; (b) the Beit Issie
Shapiro therapeutic centre for children with disabilities; (c) the Fund for
Victims of Terror, a first responder that provides short -term financial stipends
within 48 hours to terror victims of all backgrounds; (d) the Youth Futures
programme, which provides educational and mentoring programmes for at -risk
Arab adolescents , amongst others , in different cities in Israel, most of which
have been used in the mixed (i.e. Muslim -Jewish) city of Lod; (e) the Barzilai
have been used in the mixed (i.e. Muslim -Jewish) city of Lod; (e) the Barzilai
Medical Center in Ashkelton which serves significant numbers of Arab -Israelis
and patients from Gaza; (f) the landscaping and development of the Karnel
Ramon residential neighbourhood for young families in the Mitze Ramon
development town in the Negev; and (g) subsidised housing programmes
benefitting Israel’s elderly and disabled, regardless of religious affiliation.
[44] Mr Ashirie’s evidence was as follows. JAFI, although also recognised as
one of Israel’s ‘national institutions’, similarly operates independently from the
Israeli government and provides no funding whatsoever to that government or
the Israeli Defence Force. It has the same policy as Keren Hayesod regarding
ring fencing of donations.
[45] Mr Krawitz has only been involved in fundraising for the Fund for
Victims of Terror (which Mr Ashirie said also provides long -term rehabilitative
aid) and the Youth Futures programme. The Fund for Victims of Terror
provides assistance exclusively to civilians who have been harmed in terrorist
attacks and are lawfully present in Israel. No assistance is provided to members
of the security forces, whether they be soldiers, police officers or any other
member. JAFI does not fund, undertake, or support any settlement activities
outside of the ‘Green Line’, being the 1949 Armistice border.
Evaluation of the evidence
[46] The admissible evidence establishes that Mr Krawitz is not funding a
genocide or murdering babies, whether directly or indirectly through the
positions he holds in Keren Hayesod or JAFI; and that Cape Union Mart, a
separate legal entity with an independent board and shareholders, is not doing
so either. To this I would add that the PSC respondents’ notion of ‘derivative
complicity’ which is not found in South African law and in some foreign
jurisdictions is a term for strict or vicarious liability, was quickly abandoned
during argument before us.
[47] The PSC respondents and the sixth respondent (the unknown protesters)
have regrettably conflated their reliance on articles and reports downloaded
from the internet, and their own perceptions, with facts. Courts must determine
the cases before them on proven or uncontested facts, and not speculation,
opinions and inadmissible material. In addition, any right thinking person with
an independent mind will be alive to the dangers of relying on what is found on
the internet as the truth; our time honoured rules of evidence are there for a
reason, namely to assist courts in administering justice; and if Judges were to
depart from those rules to appease a litigant, irrespective of how strong the
views of that litigant might be, our legal system would descend into chaos.
Legal principles applied to the evidence
[48] Matters involving an attempt to restrain publication are to be approached
with caution. It must be ‘clear that the defendant has no defence ’.7 This is
subject to the qualification that the mere ipse dixit of a respondent is not enough
to prevent a court from granting an interdict. As was stated by the Supreme
Court of Appeal in Herbal Zone (Pty) Ltd and Others v Infitech Technologies
(Pty) Ltd and Others 8: ‘[w]hat is required is that a sustainable foundation be
laid by way of evidence that a defence such as truth and public interest or fair
comment is available to be pursued by a respondent ’. At the risk of repetition,
the evidence required to be put up by a respondent must be both admissible and
relevant to lay a sustainable factual foundation.
[49] The two-stage enquiry whether a publication is defamatory and therefore
prima facie wrongful is trite. A court must consider the ordinary meaning of
the words used and then decide whether that meaning is, objectively speaking,
defamatory.9 In the present case the utterances (I use this in the loose sense of
the word) are such that, as I have already said, not even the PSC respondents
seriously contend that they are not defamatory. The words and symbols are
egregiously so, and of this there can be little doubt.
7 Hix Networking Technologies v System Publishers and Another 1997 (1) SA 391 (A) at 399D -E and 402C-D,
referring to Heilbron v Blignaut 1931 WLD 167.
8 Herbal Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and Others [2017] 2 All SA 347 (SCA)
para 38. See also Tau v Mashaba and Others 2020 (5) SA 135 (SCA) para 23.
9 Le Roux and Others v Dey 2011 (3) SA 274 (CC) para 38.
[50] Further, even a carefully worded statement understood by a ‘reasonable
reader’ to be an allegation only, as opposed to an established fact, does not undo
the defamatory nature thereof. As was stated by the Supreme Court of Appeal
in Times Media Ltd and Others v Niselow and Another 10 :
‘[20] That does not mean, of course, that the article is not capable of bearing a defamatory
meaning. Where the words complained of are capable of bearing the imputation that there are
reasonable grounds to suspect that a person has committed the impugned act they are
defamatory…’
[51] Although the PSC respondents were initially categoric in their principal
answering affidavit that their utterances were true, they later claimed that some
utterances were ‘not a literal allegation of personally committing genocidal acts
with intent’, or were ‘a morally and factually informed viewpoint ’, or were ‘an
accusatory question ’. Times Medi a makes it clear that , on the proven facts
before us, this does not assist them.
[52] Once an applicant for a defamation interdict has shown that prima facie
defamatory matter was published about them, the respondent bears the onus to
rebut wrongfulness or intention. 11 A respondent can discharge this onus in one
of two ways: by presenting direct evidence, or by making a plausible c ase that,
with the advantage of discovery and subpoenaing witnesses and documents,
they will be able to produce evidence to sustain their defence.12
[53] In the present matter, the PSC respondents have failed to produce direct
evidence, and have not made out a plausible case, let alone suggested, that a
referral to oral evidence or trial will support any sustainable defence. What they
instead did was to advance defences based on inadmissible hearsay evidence,
despite having other avenues available to them, and then to seek,
unsuccessfully, to strike out those portions of the applicants’ replying affidavits
unsuccessfully, to strike out those portions of the applicants’ replying affidavits
10 Times Media Ltd and Others v Niselow and Another [2005] 1 All SA 567 (SCA).
11 Malema v Rawula [2021] ZASCA 88 para 31.
12 NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators [2021] 4 All SA 652 (SCA) para 30,
referring to Malema v Rawula paras 34-64.
which demonstrated that their allegations were untrue. That is the end of their
defence of truth and public benefit.
[54] The PSC respondents claim that the grant of an interdict would operate as
a ‘prior restraint of speech’. There is a cautionary rule against prior restraint of
publication, given its potential to be a drastic interference with freedom of
speech. Such prior restraints are to be ordered only where there is a substantial
risk of grave injustice. 13
[55] However ‘prior restraint’ can only logically refer to matters not already in
the public domain. It speaks to the ‘free flow of information ’14 and stems from
the premise that one ‘must expect that freedom will not be abused until [ there
are] adequate grounds for believing the contrary ’.15 In the present matter, the
applicants seek to restrain the repetition of defamatory matter which is already
in the public domain; there is no guess work in what the respondents want to
continue saying, and therefore no impediment to the free flow of information.
The respondents have been making the defamatory statements for years. All
they are required to do is to justify those statements or refrain from continuing
to publish them.
[56] Turning now to the defence of protected commentary. The requirements
for this defence in defamation are well -established. The essential elements are:
(a) the statement must be one of comment and not of fact; (b) the comment must
be fair, in that it must be relevant to matter commented upon and must not be
actuated by malice; (c) the facts upon which it is based must be true [my
emphasis]; and (d) the comment must relate to a matter of public interest.16
13 Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape ) 2007 (5) SA 540 (SCA) paras
15 - 16.
14 Midi Television para 6.
15 Midi Television para 27.
16 The Citizen 1978 (Pty) Ltd and Others v McBride 2011 (4) SA 191 (CC) para 159.
[57] It has been established on the admissible evidence that the ‘facts’ upon
which respondents’ statements are based are not true, and accordingly one of
the essential elements underpinning such a defence is absent. However, for
sake of completeness, the following.
[58] In Democratic Alliance v African National Congress and Another 17 the
Constitutional Court referred to prior authorities in order to explain the
difference between factual statements and opinions in our law , and I summarise
them:
58.1 In order to be justifiable as fair comment, it must appear as comment ‘and
must not be so mixed up with the facts that a reader cannot distinguish between
what is report and what is comment’. If fact and comment are intermingled, a
reasonable reader ‘will naturally suppose that the injurious statements are based
on adequate grounds known to the writer, though not necessarily set out by
[them];
58.2 ‘There must … be a placing before the readers of the facts commented
upon before the plea of fair comment can operate at all…[t]here must be some
reference in the article which indicates clearly what facts are being commented
upon. If there is no such reference, then the comment rests merely upon the
writer’s own authority’;
58.3 A defence of fair comment must fail if no reference was made to any
sources from which the writer deduced the facts on which he or she based the
utterance complained of, since ‘no opportunity was afforded to a reader of the
article to know the grounds on which the imputation was based’; and
58.4 It must be clear to those reading the publication which are the facts, and
which are the comments made based upon them. ‘A commentator is not
17 Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) paras 70 -72 and 75
(minority judgment of Zondo J, Jafta J and Leeuw AJ concurring)
protected if he or she chooses to publish an expression of opinion which has no
relation by way of criticism to any fact before the reader.’
[59] In the present case, many of the admitted utterances complained of were
presented as factual statements. Furthermore, there were no extrinsic facts
already in the public domain from which the reasonable reader could deduce
that they were facts. 18 As mentioned, the PSC respondents also assert however
that a reasonable reader would not see these utterances as a ‘literal allegation of
personally committing genocidal acts with intent’.
[60] To my mind the PSC respondents conflate the first enquiry (namely
whether an utterance is prima facie defamatory, which involves the ‘reasonable
reader’ test) and the second enquiry (namely the defences of truth and public
benefit, or fair comment/protected commentary, which must be fact based).
[61] Moreover the PSC respondents themselves implicitly acknowledged that
protected commentary must be fact based. The deponent to their principal
answering affidavit, Mr Usuf Chikte, stated that ‘the PSC makes that connection
[of funding a genocide and murdering babies ] explicit in our campaign
literature and it is protected opinion on disclosed facts ’. This prompted the
applicants to request these materially relevant documents under rule 35(12). Mr
Chikte’s response was that his earlier unequivocal statement was ‘merely
illustrative of a point ’. The PSC respondents also marshalled considerable
effort directed at establishing extrinsic facts that a genocide is happening in
Gaza. But that is not the issue before us – it is whether Mr Krawitz and Cape
Union Mart are funding and facilitating a genocide, including by murdering
babies.
[62] There is a general thread in the PSC respondent’s case pitting ‘political
speech’ against ‘hate speech’. But again, the applicants have not claimed that
18 Such as in the case of Mr McBride, fn 14 above at para 89.
any material – albeit hateful – constitutes prohibited hate speech. Their
complaint is that the utterances defame them and impair the dignity of Mr
Krawitz. A case of hate speech was therefore not one which the PSC
respondents were called upon to meet.
[63] The CALS also misconstrued the applicants’ case, providing us with
argument on s 16 of the Constitution (the freedom of expression provision) in
the context of prohibited hate speech. This was unhelpful. So too was the
argument advanced by the CALS about how s 8(7) of the Gatherings Act should
be interpreted against s 17 of the Constitution (the right to assemble and protest
provision).
[64] Section 8(7) of the Gatherings Act provides:
‘No person shall at any gathering or demonstration wear a disguise or mask or any other
apparel or item which obscures his facial features and prevents his identification.’
[65] The CALS submitted that although framed as a public order measure, the
practical effect of this provision is to restrict the manner in which individuals
may participate in a protest. In so doing, s 8(7) limits the exercise of the right
protected in s 17 of the Constitution, and a ‘broad or inflexible interpretation
risks deterring participation in protests by individuals who fear identification,
surveillance, retaliation or social stigma ’. For this reason, it was argued, s 8(7)
should not be applied as a blanket provision, but rather in a manner that targets
only conduct which genuinely threatens or facilitates unlawful activity.
[66] However what in truth the CALS attempted was persuade us to find a
way to disregard a peremptory provision in a statute, enacted for the purpose of
giving effect to s 17 of the Constitution, without any regard to the principle of
subsidiarity. This is legally impermissible. The subsidiarity principle was once
again spelt out in Mazibuko and Others v City of Johannesburg and Others19 :
19 Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) para 73.
‘This court has repeatedly held that where legislation has been enacted to give effect to a
right, a litigant should rely on that legislation in order to give effect to the right or
alternatively, challenge the legislation as being inconsistent with the Constitution.’
[67] As previously mentioned, the PSC respondents have since undertaken to
comply with the Gatherings Act, despite disputing various claims made by the
applicants in relation to their conduct at the protests. There can also be no
prejudice to the unknown protestors if such an order is made against them,
given that all they need do is comply with the law. The same applies to
preventing Cape Union Mart’s customers from accessing its stores, since those
customers too have rights.
[68] Having regard to all of the aforegoing, I am persuaded that the applicants
have met the requirements for a final interdict, namely: (a) a clear right to their
reputations and protection of access by customers to Cape Union Mart’s stores;
(b) an injury which they are continuing to suffer; and (c) no suitable alternative
legal remedy, in that even an action for damages will not prevent the harm from
continuing. The purpose of an interdict is to put an end to conduct in breach of
an applicant’s rights. Any alternative remedy will have to afford similar
protection.20 Such a remedy is absent in the present case.
Costs
[69] The applicants have been substantially successful, but it must be borne in
mind that some of the relief they sought in their notice of motion was overbroad
(which was conceded during argument), and the PSC respondents had to deal
with that. In my view, even the amended relief handed up by way of a draft
order is too broad for comfort, and may well open up another round of
litigation. I must also factor into account that Mr Krawitz regrettably did
himself no favours during his interview in October 2024 in the full knowledge
of the international outrage generated by the Israeli /Hamas conflict. He could,
of the international outrage generated by the Israeli /Hamas conflict. He could,
20 Hotz v University of Cape Town 2017 (2) SA 485 (SCA) para 36.
and should, have been more sensitive and restrained, and unfortunately, he
probably stoked the proverbial fire for the respondents. In these circumstances
it is appropriate that each party should bear their own costs.
[70] The following order is made:
1 The application to strike out by the first to fifth and seventh respondents
is dismissed.
2 The respondents are interdicted and restrained from making any claim
that the first applicant (Cape Union Mart) or one of its brands, including Poetry,
Old Khaki and K-Way, are associated with the State of Israel in any way.
3 The respondents are interdicted and restrained from making any claim
that the first applicant (Cape Union Mart) or one of its brands, including Poetry,
Old Khaki and K -Way, are funding ‘genocide’ or any military conflict in Gaza
in any way.
4 The respondents are interdicted and restrained from making any claim
that the second applicant is ‘funding genocide’, the Israeli army, or the conflict
in Gaza in any way.
5 The respondents are interdicted and restrained from claiming that the
applicants are killing children or are complicit in the killing of children.
6 The respondents are interdicted and restrained from publishing, in any
way, defamatory statements to the effect that the applicants support a genocide
in Gaza, or that the applicants have ‘killer(s) ways’.
7 The respondents are interdicted and restrained from preventing access to
the first applicant’s stores by its customers.
8 The respondents shall, during any protest action held at the first
applicant’s stores or premises, comply with the provisions of the Regulation of
Gatherings Act 205 of 1993.
9 Each party shall pay their own costs.
_____________________________
J I CLOETE
JUDGE OF THE HIGH COURT
I agree.
_____________________________
C N NZIWENI
JUDGE OF THE HIGH COURT
I agree.
_____________________________
R BARENDSE
JUDGE OF THE HIGH COURT
Appearances
For applicants: Mr C Woodrow SC with Mr H Scholtz
Instructed by: Hurter Spies Inc.
For first to fifth
& seventh respondents: Mr I Jamie SC with Mr U Naidoo and Ms
N Essa
Instructed by: Ashraf Mahomed Attorneys
For Amicus Curiae: Mr J Bhima
Instructed by: Centre for Applied Legal Services