United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others

The appellants, the United Democratic Movement (UDM) and its leader Mr Bantu Holomisa, sent a letter dated 26 June 2018 to the President of South Africa alleging that the respondents (including a former Deputy Minister and business entities) had conducted themselves unlawfully in relation to the Public Investment Corporation (PIC). The letter contained allegations of impropriety, corruption and conflict of interests. The letter was published on the UDM website. The respondents contended the remarks were defamatory and sought interim relief pending an action for damages. On 16 July 2018, Tlhapi J in the Gauteng Division of the High Court, Pretoria granted an interim interdict forbidding the appellants from repeating the allegations and ordering removal of the letter from the UDM website within 3 hours. The order was to lapse if the action was not instituted within one month. On 26 August 2019, the high court granted leave to appeal to the Supreme Court of Appeal, finding the interests of justice warranted an appeal. The defamation action was subsequently instituted and pleadings closed.

• Whether an interim interdict pending a defamation action is appealable
• Whether the interests of justice require that an appeal against an interim order be entertained
• The test for appealability of interim orders under the Constitution
• Whether the interim order causes irreparable harm
• The balance between freedom of expression and the right to dignity in defamation cases
• Whether political actors are subject to different rules regarding interim interdicts in defamation matters
• The role of the defence of truth and public interest in applications for interim interdicts

The appeal was struck from the roll. The appellants were ordered to pay the respondents' costs jointly and severally, including costs of two counsel.

Per majority: An interim interdict pending a defamation action is not appealable unless the interests of justice require it. The interests of justice do not require an appeal to be entertained where: (1) the interim order does not cause irreparable harm; (2) the contentious remarks are already in the public domain; (3) the applicants can express their views through alternative protected forums (such as Parliament); and (4) the temporary restraint does not render the applicants obsolete or cause them to suffer ongoing irreparable harm. The fact that an interim order may engage constitutional rights does not automatically make it appealable. Political actors are not subject to special exemptions from interim interdicts merely because of their status or the political nature of their speech. The test remains whether irreparable harm would result if leave to appeal is not granted.

Per majority: The proper forum to examine whether political actors should be subject to different rules regarding defamation is in trial proceedings determining final relief, not on appeal against an interim order. Such findings on appeal would pre-empt the enquiry the trial court is required to make regarding justification. Systemic delays in litigation cannot be relied upon to support appealability without proper evidence that the delay is beyond the applicants' control. The availability of section 18(3) of the Superior Courts Act as a remedy for irreparable harm was noted. Per minority (Molemela JA): A retraction and apology are aspects relating to final interdicts as they presuppose wrongfulness of utterances. An order requiring removal of a letter from a website seems to put the cart before the horse when the court has not yet been satisfied that the statement is unlawful. Political utterances should be assessed with recognition that right-thinking people are not likely to be greatly influenced by derogatory statements made by politicians about other politicians. Courts have historically allowed considerable latitude for comment in political matters. The threshold for obtaining an interim interdict in defamation cases involving political speech and public interest allegations should be high, requiring something more compelling than was demonstrated in this case.

This case is significant for clarifying the test for appealability of interim interdicts in South African law post-Constitution. It confirms that while the common law test (final in effect) has been subsumed under the constitutional "interests of justice" standard, not all interim orders are appealable merely because constitutional rights are engaged. The case demonstrates the Court's approach to balancing freedom of expression with dignity rights in the context of political speech and defamation. It also highlights the division within the judiciary on when the interests of justice warrant entertaining appeals against interim orders, particularly in politically charged defamation cases involving allegations of corruption against public figures. The case reaffirms principles from Hix Networking Technologies regarding interim interdicts in defamation matters and the need for a factual foundation for defences.