Francois Jurie Nicolaas (Cois) Harman v Pieter Hendrik Strydom

Mr Pieter Hendrik Strydom, an attorney and insolvency practitioner, obtained a judgment on behalf of the Land Bank against Mr Francois Harman (a farmer and estate agent) for over R3 million in unpaid loans. Harman responded by posting statements on his Facebook account alleging unethical conduct by Strydom and Land Bank officials. On 29 June 2022, Strydom obtained a harassment protection order from a magistrate's court. The next day, when police officers attempted to serve the order, Harman photographed them and posted further material on Facebook. This post triggered numerous vitriolic responses from Harman's Facebook followers, containing defamatory statements, threats to Strydom's life, racist comments, and insults, including statements like "needs a bullet between the eyes". On 1 July 2022, Strydom launched an urgent ex parte application in the North West High Court. Petersen J granted an order requiring Harman to remove all published material concerning Strydom from his Facebook account (paragraph 2 - final order) and to provide a list with full particulars of persons who made the postings (paragraphs 3 and 4 - interim orders). The interim orders were made returnable on 4 August 2022. Harman delivered an answering affidavit on 2 August 2022, and the return date was extended to 13 March 2023. On that date, Djaje DJP confirmed the interim orders as final. Harman appealed to the Supreme Court of Appeal.

• Whether the high court violated the audi alteram partem principle by granting an order of a final nature in an ex parte application
• Whether the appellant's rights under section 34 of the Constitution (right to access to courts) were violated
• Whether paragraphs 3 and 4 of the order granted by the urgent court were overbroad and incapable of compliance
• Whether the Protection of Personal Information Act 4 of 2013 (POPIA) and section 14 of the Constitution protect a person from having to disclose particulars of individuals who posted defamatory material on their social media account
• Whether the final order in paragraph 2 was moot

The appeal was dismissed with costs, including costs of two counsel. The order of Djaje DJP dated 13 March 2023 confirming the interim orders (paragraphs 3 and 4) was upheld.

The binding legal principles established are: (1) The grant of a final order on an ex parte basis does not automatically violate the audi alteram partem principle or section 34 constitutional rights where adequate remedies exist, including appeal (section 17 of Superior Courts Act), reconsideration (Rule 6(12)(c)), or rescission (Rule 42); (2) Rule 6(12)(c) provides built-in protection for respondents by allowing them to set down urgent applications for reconsideration without prior leave, which serves to cure potential breaches of the right to be heard; (3) Where a party complies with an order they contend was improperly granted, they render moot any subsequent challenge to that order; (4) Freedom of expression under section 16 of the Constitution does not protect the posting or facilitation of defamatory statements, threats of violence, or statements that endanger another person's life, safety, dignity, or reputation; (5) Neither section 14 of the Constitution (privacy) nor POPIA protect a person from disclosure orders requiring them to provide particulars of individuals who posted unlawful defamatory and threatening material on their social media account; (6) Courts have jurisdiction to order social media account holders to disclose the identities of persons who posted unlawful content on their platforms; (7) A person who establishes they were subjected to threats, defamation, and harassment via social media is entitled to obtain the identities of those responsible to vindicate their constitutional rights; (8) Orders requiring disclosure of identities of persons who posted unlawful content are not overbroad where the applicant has made no genuine attempt to comply and has provided no specific legal basis for non-compliance.

The Court made several non-binding observations: (1) The Court quoted approvingly from Botha v Smuts regarding social media's intersection with privacy and freedom of expression in the digital age; (2) The Court described the practice of "doxxing" (the phenomenon of followers posting vitriolic responses on social media); (3) The Court emphasized the serious nature of the threats made against Strydom, including the statement that he "needs a bullet between the eyes," characterizing this as an impermissible exercise of freedom of expression; (4) The Court noted that Harman acted "unlawfully and disingenuously" by including paragraph 2 of Petersen J's order in his notice of appeal when he had obtained leave to appeal only against Djaje DJP's order; (5) The Court observed that Harman's conduct in posting material after being served with the magistrate's protection order demonstrated contempt for that order and justified the subsequent high court proceedings; (6) The Court commented that the right to freedom of expression, like all rights, has limits, with the obvious limit being when its exercise encroaches into the domain of another person's rights; (7) The Court noted that Harman "asserts excuses as defences" regarding his inability to compile the list without first attempting to do so; (8) The Court observed that Harman must have known at least some of his Facebook friends' names, as he referred to having "Facebook friends" in his answering affidavit.

This case is significant in South African jurisprudence as it addresses the intersection of constitutional rights in the digital age, specifically: (1) The balance between freedom of expression (section 16) and rights to dignity, reputation, and personal safety in the context of social media; (2) The procedural protections available to respondents in ex parte applications, particularly Rule 6(12)(c) providing for expedited reconsideration; (3) The limits of freedom of expression when exercised through social media platforms, establishing that posting or facilitating threats of violence and defamatory content falls outside constitutional protection; (4) The inapplicability of POPIA protections to persons who facilitate unlawful defamatory publications on social media; (5) The phenomenon of "doxxing" and the legal consequences for social media account holders who enable threatening and defamatory posts by their followers; (6) The enforcement of the audi alteram partem principle in urgent applications while recognizing the legitimacy of ex parte relief in appropriate circumstances. The case confirms that social media account holders can be held accountable for facilitating defamatory and threatening content on their platforms and may be compelled to disclose the identities of those responsible.