The appellant, Christiaan Jurie Els, was a well-known South African singer living in New Zealand in February 2008. On 11 February 2008, Beeld newspaper published an article stating that a 21-year-old singer, Robbie Klay, had been sexually molested by a well-known entertainment figure (referred to only as 'die oom'). Journalist Marie Opperman from Media 24's magazines (Huisgenoot and You, edited by first respondent Esmaré Weideman) contacted Els alleging he was the person referred to, seeking comment. On 13 February 2008, Els obtained an urgent interim interdict from Sutherland AJ in the South Gauteng High Court prohibiting publication of 'the article' (a draft article sent to Els for comment). On 21 February 2008, Huisgenoot and You published a censored version of the article with names and identifying details blacked out, accompanied by an editorial written by Weideman identifying Els as the person who obtained the interdict, and a cover design using a recognizable photograph from Els's recent CD/DVD (with face obscured). Els brought contempt proceedings in the Western Cape High Court against Weideman (editor), Media 24 (publisher), and Venter (editorial head, Johannesburg office). Dlodlo J dismissed the application, finding the Western Cape High Court lacked jurisdiction and, obiter, that the publication did not breach the order and that mala fides had not been established.
1. The appeal succeeded in respect of the first and second respondents (Weideman and Media 24). 2. The appeal was dismissed in respect of the third respondent (Venter). 3. The order of the court a quo was set aside and replaced with: (1) The first and second respondents are convicted of contempt of court. (2) The application against the third respondent is dismissed. 4. The application was remitted to the court a quo to consider and if necessary hear evidence as to appropriate sanctions for the first and second respondents and to make an appropriate award of costs. 5. The first and second respondents were ordered to pay the costs of the appeal jointly and severally.
The binding principles established are: (1) A High Court has jurisdiction to hear contempt proceedings relating to breach of an order made by another High Court where there is a proper jurisdictional basis under s 19(1) of the Supreme Court Act (residence of parties or cause of action arising within jurisdiction), given that s 26(1) provides that judgments of one High Court are enforceable throughout the Republic. The principle that only the court making an order can try contempt of that order does not apply to the relationship between High Courts in South Africa. (2) An order prohibiting publication of 'the article' prohibits publication of the substance of the article, not merely the verbatim text. Publication of a censored version together with other material (editorial, cover) that leads readers to the prohibited information constitutes a breach. (3) For contempt of court, once the applicant proves the order, service or notice, and non-compliance, the respondent bears an evidential burden to establish reasonable doubt as to whether non-compliance was wilful and mala fide. Deliberate and mala fide defiance of a court order, demonstrated through the totality of conduct including intentionally creating a 'trail' for readers to deduce prohibited information, constitutes contempt. (4) A corporate publisher that authorizes an editor to act on its behalf and accepts the editor's actions and intentions as its own is equally liable for contempt committed by the editor.
Heher JA made obiter observations on: (1) The unclear legal basis for corporate liability in contempt proceedings, questioning whether it depends on proof of individual mens rea or whether the test in s 332 of the Criminal Procedure Act (vicarious liability) should apply, and why corporate liability should differ from individual employer liability. (2) The nature of contempt proceedings, disagreeing with the proposition that 'contempt of court is not an issue inter partes' but rather between the court and the disobedient party, noting that in civil proceedings the party in whose favour the order is made will bring the breach to the court's notice if he has an interest, bears the onus to establish contempt, and persuade the court that sanction is merited. Nugent JA observed obiter that: (1) This case is not about media freedom but about obedience to court orders. The time to assert media freedom is during adjudication, but once a court makes its order, even the media must submit to judicial authority. Without preservation of that authority all rights become vulnerable, including media freedom itself. (2) The issue of negligence as sufficient mens rea for contempt by an editor was raised but not decided, as it was unnecessary given the finding of deliberate and mala fide conduct.
This judgment is significant for several reasons: (1) It clarifies the jurisdictional reach of High Courts in South Africa regarding enforcement of orders made by other High Courts, affirming that contempt proceedings need not be brought only in the court that made the original order where there is a proper jurisdictional basis. (2) It establishes that publication of the 'substance' of prohibited material, even if technically altered or censored, can constitute a breach of an interdict. Courts will look at the practical effect of publication, not merely technical compliance. (3) It reinforces that media freedom does not extend to deliberate circumvention of court orders through creative editing or indirect disclosure techniques. (4) It demonstrates that courts will scrutinize the totality of a publication (including cover, editorial, and article) when determining whether an order has been breached. (5) It confirms that for contempt of court, the required mens rea is deliberate and mala fide defiance of the order, and that an evidential burden shifts to the respondent to establish reasonable doubt once the order, service, and non-compliance are proved. (6) It establishes principles regarding corporate liability for contempt where a corporate publisher authorizes an editor to act on its behalf.