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

The United Democratic Movement (UDM) and its president, Mr Bantubonke Holomisa, addressed a letter on 26 June 2018 to the President of South Africa alleging corruption, conflict of interests, and fraud involving the respondents (investment companies and their directors) and the Public Investment Corporation (PIC). The letter was published on the UDM's website and Mr Holomisa's Twitter account with sensational language accusing the respondents of "fleecing the PIC", "double and triple dipping", being "hyenas", and engaging in state capture worse than the Gupta family. The respondents sought an interim interdict pending a defamation action. The High Court granted the interim interdict, restraining the applicants from repeating the allegations and ordering them to remove the letter from their platforms. The High Court granted leave to appeal. The Supreme Court of Appeal, by a 3-2 majority, struck the appeal from the roll on the grounds that the interim interdict was not appealable. The applicants then sought leave to appeal to the Constitutional Court.

• Whether the Supreme Court of Appeal has the power to interfere with a High Court's grant of leave to appeal
• Whether an interim interdict is appealable when it is alleged to infringe constitutional rights to freedom of expression
• Whether the interests of justice dictate that an interim interdict should be treated as a 'decision' within the meaning of section 16(1)(a) of the Superior Courts Act 10 of 2013
• Whether the High Court correctly granted the interim interdict pending a defamation action
• Whether the applicants' publication was justified by freedom of expression or the defences of truth and public interest or fair comment

Leave to appeal granted. The Supreme Court of Appeal's order striking the appeal from the roll was set aside. However, the appeal against the High Court's interim interdict was dismissed with costs of two counsel. The applicants were ordered to pay the respondents' costs in the Constitutional Court, including costs of two counsel.

1. The test for appealability of interim orders is whether it is in the interests of justice to treat the order as an appealable 'decision' under section 16(1)(a) of the Superior Courts Act 10 of 2013, not solely whether the order meets the common law Zweni requirements (finality in effect, definitiveness, and disposal of substantial relief). 2. An interim interdict that restricts freedom of expression for a potentially extended period constitutes a sufficiently grave and far-reaching intrusion on constitutional rights that the interests of justice require it be treated as appealable. 3. In defamation law, once a statement is shown to be defamatory, wrongfulness is presumed, and the defendant bears the onus to establish defences such as truth and public interest. 4. The defence of truth and public interest requires a sustainable factual foundation - it is not established by merely alleging perceptions of impropriety, conveying unverified information from whistle-blowers, or requesting investigation by authorities. 5. Publication of defamatory statements that the publisher admits are unverified constitutes wrongful conduct, even when undertaken by political actors claiming to execute constitutional duties to expose corruption.

The Court observed that conveying information about alleged corruption to the President for investigation was appropriate and lawful, but publication of unverified defamatory material elsewhere rendered the conduct wrongful. The Court noted that constitutional duties to expose corruption and hold public institutions accountable must be exercised within the law. The Court also commented that embellishments such as describing individuals as 'hyenas' fleecing public funds, and references to 'state capture worse than the Guptas' demonstrated the applicants' ownership of the defamatory content rather than being mere conduits, and evidenced recklessness. The Court stated it was deciding the appeal on the merits rather than remitting to the Supreme Court of Appeal to avoid delay, duplication of costs, and because full argument had been heard - a pragmatic approach to finality in litigation involving constitutional rights.

This judgment clarifies that the modern test for appealability of interim orders in South Africa is whether the interests of justice require it, not merely the strict common law Zweni test. It establishes that interim interdicts restricting freedom of expression are particularly likely to be appealable given the constitutional significance of free speech rights. The case also reinforces defamation law principles: that those who publish defamatory statements bear the onus to prove defences such as truth and public interest; that merely relaying unverified allegations does not satisfy this defence; and that even political actors exercising constitutional duties to expose corruption must act within the law and verify serious allegations before publication. The judgment balances freedom of expression against dignity and reputation, holding that constitutional duties do not provide a license to defame without factual foundation.