Social media fuels defamation cases

Two recent cases involving high-profile politicians have highlighted one of the most vexing issues in defamation law — How quickly can you get an apology?

In August, former Congress of the People youth leader Anele Mda published posts on X implicating ANC secretary general Fikile Mbalula in the 2015 murder of businessman Wandile Bozwana. 

Mbalula approached the North Gauteng High Court in Pretoria through an urgent application and obtained an order directing Mda to remove the posts and publish an apology within 24 hours. 

Mda applied for leave to appeal, which was refused.

In December, ANC Johannesburg chairperson Loyiso Masuku sought urgent relief against political commentator Phapano Phasha for defamatory statements she made on a podcast. 

The South Gauteng High court interdicted further publication of such statements and ordered the removal of the episode and for Phasha to publish a retraction and apology. 

Phasha has indicated that she will appeal the judgment.

Both judgments raised eyebrows. In each, the court ordered an apology through motion proceedings, a development welcomed by many media law specialists but it is inconsistent with recent Supreme Court of Appeal (SCA) judgments.

When someone is defamed, particularly online, speed matters. Reputational harm can spread instantly and litigants often seek urgent applications to secure swift takedowns, interdicts and apologies.

Motion proceedings (applications) are based on the papers (affidavits) rather than evidence and are designed for urgency and work best where facts are common cause.

By contrast, action proceedings are slower and involve pleadings, discovery and often oral evidence. 

They are traditionally used where disputes of fact exist and remain the usual route for final remedies in defamation matters in which the aggrieved party seeks damages and an apology.

However, uncertainty remains about whether the apologies granted on motion in Mbalula and Phasha’s judgments were appropriate, in light of a series of contradictory judgments by the SCA in recent years. 

To solve the conundrum of whether one should institute an action or launch an application when seeking an apology for being defamed, we must look at the past, present and future.

The past

In Hanekom vs Zuma, the high court ordered Jacob Zuma to remove a defamatory tweet, publish a public apology and refrain from repeating the allegation, while postponing damages for later determination. Zuma complied. 

However, in Manuel vs Economic Freedom Fighters, the SCA set aside orders for damages and an apology granted on motion, holding that damages could not be determined without oral evidence or an action. While declaratory and interdictory relief were upheld, the judgment cast doubt on whether apologies could properly be ordered on application.

The present

That doubt was resolved in NBC Holdings versus Akani and IRD Global Ltd versus The Global Fund, where the SCA held that compelling apologies or retractions on motion is generally impermissible, particularly where such relief determines final rights. 

The cases overruled Ramos versus Independent Media, where a high court ordered a retraction and apology after hearing an application brought by Maria Ramos.

The SCA’s caution was further reflected in Mantashe versus Zuma, where a high court refused to order an apology on motion and referred the matter to trial.

The future

Against this backdrop, the recent Mbalula and Masuku decisions appear to depart from established appellate guidance. 

Neither judgment referred directly to the Akani or IRD Global judgments. 

If the judgments are appealed, the SCA might be required to clarify whether apologies granted on motion remain legally competent.

The increase in defamation cases, driven by social media and podcasts, allows reputational harm to spread rapidly. 

Overcrowded courts delay urgent remedies for victims, making apologies and retractions granted on motion a practical solution that limits further harm, reduces litigation time and costs and provides swift reputational relief.

Whether the law can reconcile procedural orthodoxy with the realities of reputational harm in the digital age remains unresolved. For now, the courts appear divided and those whose good names are publicly tarnished bear the cost of that division.

John Makate is an associate at Rupert Candy Attorneys Inc