Approaching the courts for an interdict for looming defamation: FAQs and tips

25 Apr 2024

A common threat to South Africans is defamation to one’s reputation. Defamation involves causing harm to a person’s reputation, usually by making a defamatory statement about that person to a third party. Examples of defamation may include statements made to and published by the press, posts made over social media, familiar gossip stories, and the like.

A defamed party may file a criminal complaint against a person who has defamed them and may also sue in the civil court for damages. These measures can usually only be taken after the incident has transpired.

However, suppose a person wishes to avoid impending defamation or threatening defamation. In that case, the person must apply to the courts for an interdict order to prevent the defamation.

Below are some frequently asked questions and answers regarding applications for said interdict.

What must I prove to succeed with an interdict?

The requirements for an interdict, as set out in V&A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and Others and Masstores (Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd, are:

1. A clear right (a legal right to be protected against infringement);
2. Infringement of the explicit right, which includes an injury committed or a reasonable apprehension of such infringement; and
3. The lack of an adequate alternate remedy.

A person’s reputation is a right worthy of protection, which cannot simply be infringed upon without justification. Should the person be able to show that said right is threatened with imminent infringement, that person could apply to the courts for an interdict.

Could I not apply for a protection order instead?

Notably, interdicts and protection orders are often referred to interchangeably and confused. While the effect of the two orders is similar in that the courts can order that a respondent is prohibited from doing something, they are not the same.

Protection orders are sought in terms of the Domestic Violence Act, where the parties are in a domestic relationship with one another, and in terms of the Protection from Harassment Act, as amended, where the parties are not in a domestic relationship.

In terms of the former Act, one can seek a protection order for abuse, as defined by the Act. In terms of the latter act, one can seek protection from harassment, as defined by the Act. On the other hand, the protection afforded by an interdict is much broader. It is not limited to protection from domestic abuse and harassment.

In JR v TR and Another, the question arose whether, when there is a threat of defamation, one should not instead rely on a protection order, in terms of the Protection from Harassment Act, as opposed to applying for an interdict. In this matter, the respondents raised a point in limine, where an applicant applied for an interdict to prohibit the respondents from making defamatory statements about them, that the applicant could also have applied for a protection order and should, therefore, have followed that route – noting the abovementioned third requirement for a protection order, that there must be lack of an alternative remedy.

The Court, however, held that as the Act does not explicitly stipulate protection from harm against defamation or to one’s reputation, the appropriate remedy is applying for an interdict rather than applying for a protection order in terms of the Protection from Harassment Act.

It is submitted that this approach would probably apply to protection orders in terms of the Domestic Violence Act, too. Therefore, when faced with a defamation threat, one should apply for an interdict rather than a protection order.

Can I not just sue the person for damages?

It is essential to remember that suing for damages involves an action procedure, meaning that one issues and serves a summons. In cases of defamation, it is often advisable to sue for damages. However, an action for damages cannot prohibit harm from occurring and, therefore, cannot be used instead of an interdict.

In Du Toit v Becket and Another, the Court, when considering an interdict based on defamation, stated in par. 109:

“Recognising that an action for damages is likely to be protracted and costly, an interdict in appropriate cases may be justified.”

The Court in Du Toit (supra) also held that an action for damages cannot be regarded as a reasonable alternative remedy to an interdict, prohibiting an applicant from applying for an interdict. In par. 117, the Court stated:

“Regarding the availability of an alternative remedy, I believe that in this case, a claim for damages is not a satisfactory alternative remedy. I do not believe that it would be reasonable for the applicant, who has explicitly stated that he does not wish to pursue a claim for damages and seeks only the interdicting of future defamatory conduct, together with a retraction and apology, to pursue such a costly and time-consuming remedy.”

Therefore, when a party is faced with the threat of defamation, that party may apply for an interdict and potentially sue for damages in due course.

What if the defamatory statement is true?

One of the most common defences to defamation is truth and public interest. The requirement is, therefore, two-fold: the essence of the statement must be true, and the publicising thereof must be in the interest of the party to whom it was made.

Regarding the truthfulness of the statement, the Court stated the following in Modiri v Minister of Safety and Security and Others:

“(i)t is a matter of settled law that the defendant is not required to prove that the defamatory statement was true in every detail. The defence requires proof that the gravamen or the sting of the statement was true. The legal construct of a reasonable reader determines the gist or sting of a statement. It is the meaning that the reasonable reader of ordinary intelligence would attribute to the statement. The test is thus an objective one. Evidence of how the plaintiff or, for that matter, any actual reader of the article understood the statement is of no consequence.”

However, the mere fact that a statement is true does not qualify as a complete defence. As stated above, the statement must also be in the public’s interest – or of the person/s to whom it was made. In Du Toit (supra), at par. 25, the Court stated:

“It is partly for these reasons that our courts have long held that whether the publication of a defamatory statement is for the public benefit depends critically on the content of the statement and the time, manner and occasion of its publication. The question is whether there was an overall public benefit to the statement’s publication in how it was published and when it was published.”

Some other defences include the defendant never making the statement, public-media privilege, and fair comment.

Can the prohibition be requested in broad terms?

When it comes to an interdict prohibiting future defamation, the prohibition must be narrowly phrased and not broadly. As such, a party can only be interdicted from making a specific defamatory statement.

In Halewood International South Africa (Pty) Ltd v Van Zyl and Another at par. 29, the

Court stated:

“The courts do not interdict future defamation in broad terms. It is impossible to prevent a respondent in broad and general terms from defaming an applicant in the future. Rather, a court may interdict specific acts of defamation; for example, it may interdict the respondent from repeating an allegation that the applicant stole money from his employer.”

Conclusion

When it comes to a threat of defamation, you can approach the courts to request an interdict, notwithstanding that party’s right to sue for damages. The respondent will have to provide some defence if it can be proven that a defamatory statement was made. The relief must be sought in narrow terms.

See also:

• Can your freedom of speech be limited? Defamation of character vs. crimen injuria
• Defamation in the Fifth Industrial Revolution: Can an emoji convey defamatory meaning?
• Defamation on social media: A case study of Hartland v APC Marketing
• The Bill of Rights

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)