IRD Global Limited v The Global Fund to Fight AIDS, Tuberculosis and Malaria

The appellant, a global health delivery and research organisation registered in Singapore with operations in 17 countries including South Africa, acted as a technical assistance provider for a tuberculosis grant in Pakistan funded by the respondent, an international organisation established in Switzerland. Following an investigation by the respondent's Office of the Inspector General (OIG), a report was published on 1 April 2021 on the respondent's website containing allegations the appellant considered defamatory, including conflict of interest, collusive practices, data inflation and overcharging. The report was globally accessible on the internet and was downloaded by the appellant's attorney in Johannesburg. On 15 January 2021, an initial draft report had been leaked and published in Arab News. The appellant had been given an opportunity to respond to preliminary findings in June 2020 and submitted a comprehensive exculpatory response in July 2020, but the respondent persisted with the allegations. In May 2021, the appellant launched urgent proceedings in the Gauteng Division seeking interim relief including retraction, apology, and interdictory relief pending institution of a defamation action. Both parties are peregrini with no immoveable property in South Africa.

• Whether the Gauteng Division of the High Court had jurisdiction to entertain an application for interim relief where both parties are peregrini and the only connection to South Africa was the downloading of an internet publication by the applicant's attorney in Johannesburg
• Whether the requirements for interim interdictory relief were satisfied
• Whether a retraction and apology could be ordered on motion proceedings in a defamation matter
• Whether it was appropriate to order additional security for costs
• Whether South Africa was a forum of convenience for the dispute

The appeal was dismissed with costs including the costs of two counsel, where so employed.

1. In matters involving internet publications accessed in South Africa, jurisdiction requires more than mere accessibility - there must be an adequate connection between the suit and South Africa from the point of view of appropriateness and convenience, including consideration of where the cause of action arose. 2. A South African court lacks jurisdiction where both parties are peregrini with no real connection to South Africa, process was not served in South Africa, and the cause of action arose entirely in a foreign jurisdiction, even if the allegedly defamatory publication was accessed via the internet in South Africa. 3. Retractions and apologies in defamation matters constitute final relief that presupposes a finding that statements were defamatory, and therefore cannot be granted on motion proceedings but must be sought through trial action proceedings. An interim retraction or apology is untenable as it cannot be undone if the court ultimately finds the statements were not defamatory. 4. Motion proceedings are unsuited to determine the veracity of alleged defamatory statements - this requires trial proceedings even where damages are not claimed, as damages may now consist of retractions, apologies, monetary amounts or combinations thereof.

The Court made observations about the global reach of internet publications and the need to contain potential litigation arising therefrom, noting that allowing jurisdiction based solely on accessibility would lead to the untenable situation of multiple actions in jurisdictions with no real connection to the parties or issues. The Court also noted that three years after publication, with no evidence of ongoing harm, there was arguably no basis for urgent interim relief even if jurisdiction had been established. The Court commented that where a respondent puts up a valid defence to a defamation charge and stands by the truth of allegations after comprehensive investigation, interim interdictory relief is not competent. The Court noted that although the jurisdiction issue was dispositive, it deemed it necessary to address the requirements for interim interdict and the nature of relief claimed. The Court observed the complexity that arises when parties seek defamation relief by way of urgent motion proceedings rather than by action.

This case is significant for establishing important principles regarding jurisdiction in internet defamation cases in South African law. It clarifies that mere accessibility of internet publications in South Africa is insufficient to establish jurisdiction where neither party has meaningful connections to South Africa. The judgment reinforces the principle that adequate connecting factors must exist beyond mere publication to justify a South African court's jurisdiction. The case also confirms and strengthens the principle that retractions and apologies in defamation matters cannot be obtained through motion proceedings but require trial action, expressly disagreeing with the contrary view in Ramos v Independent Media. It provides important guidance on when South African courts will decline jurisdiction over international disputes involving internet publications, emphasizing the need for appropriateness and convenience factors beyond mere accessibility. The judgment is also significant for its application of security for costs principles where both parties are peregrini.