Tau v Mashaba and Others

Parks Tau, an ANC member and former Mayor of the City of Johannesburg, made public statements at a funeral on 28 August 2016 concerning Herman Mashaba, a DA member and his successor as Mayor. Tau stated that Mashaba believed that senior female executives in the City had prostituted themselves for their positions and that Mashaba would not want to be black if he had the choice. These statements were made in response to Mashaba's earlier remark on 10 August 2016 about "girlfriends running state institutions." COSATU and the ANC Women's League subsequently issued statements supporting Tau's characterization of Mashaba's comments as sexist. On 1 November 2016, Mashaba launched an application seeking interdicts pending the institution of a defamation action, including orders for retraction, apology, restraint from repetition, and publication. Tau defended on the basis that his statements were a fair representation of Mashaba's own offensive remarks and constituted political commentary, fair comment, and truth in the public interest. Van der Linde J granted a declaratory order that the statements were defamatory and a final interdict restraining repetition, while deferring other relief to the pending defamation action.

• Whether a court can grant relief not sought by the parties in motion proceedings
• Whether the high court erred in granting a declaratory order mero motu that the statements were defamatory
• Whether an interim or final interdict was properly sought and granted
• Whether the requirements for an interim interdict pending a defamation action were met
• Whether a defence of justification (truth and public benefit) was sufficiently established to prevent the grant of an interdict
• Whether the inappropriate application of rule 33(4) to defer certain relief was competent in application proceedings

The appeal was upheld with costs, including costs of two counsel. The order of the high court was set aside and replaced with an order dismissing the application with costs, including costs of two counsel where so employed.

The binding legal principles established are: (1) In motion proceedings, parties define the nature and scope of the dispute through their pleadings and affidavits, and a court may not grant relief mero motu that was not sought by the parties, as this violates the adversarial nature of civil litigation and may prejudice a party's right to a fair hearing under section 34 of the Constitution; (2) An interdict to restrain the publication of allegedly defamatory statements is granted infrequently because it impinges on the constitutionally protected right to freedom of speech, and the party alleging injury is ordinarily left to their remedy of damages; (3) Where a defendant in defamation proceedings establishes a factual foundation for a defence of justification (truth and public benefit) or fair comment, the court is not entitled to disregard that defence in motion proceedings, and the matter must proceed to trial where the truth can be determined; (4) To obtain an interim interdict pending a defamation action, the applicant must establish: (a) a prima facie right, (b) a well-grounded apprehension of irreparable harm, (c) that the balance of convenience favours the interdict, and (d) the absence of another satisfactory remedy; (5) An interdict is a prospective remedy concerned with present and future conduct, not past invasions of rights, and requires evidence of an intention or likelihood to repeat the conduct; (6) Where damages would adequately vindicate the right to reputation if defamation is later established, an anticipatory interdict will seldom be necessary or appropriate.

The court made several obiter observations: (1) Van der Linde J's acknowledgment that his purported application of rule 33(4) to defer certain relief was erroneous, as the definition of "action" in the Uniform Rules does not include "application" - the correctness of whether a court has inherent jurisdiction to separate issues in application proceedings was left open, citing Theron v Loubser; (2) The court noted the general undesirability of disposing of applications piecemeal, stating that where affidavits serve as both evidence and pleadings, the entire application should be disposed of in a single hearing; (3) The court observed that in the context of political discourse, harsh criticism and robust political commentary must be tolerated, though this does not extend to unlawful action; (4) The court noted that "one has to be thick-skinned to survive as a politician" but that this does not include tolerance of unlawful defamation; (5) The court's analysis suggested (without finally deciding) that Tau's statements had to be considered in the context of political rivalry and as a response to Mashaba's own controversial public statements about affirmative action, racial classification, and women in leadership positions.

This case is significant in South African civil procedure and defamation law for several reasons: (1) It reaffirms the fundamental principle in adversarial proceedings that parties define the dispute and courts may not grant relief mero motu that was not sought, even where constitutional rights are involved; (2) It clarifies the restrictive approach to interim interdicts in defamation cases, particularly in the context of political speech, recognizing that such interdicts impinge on the constitutional right to freedom of expression; (3) It confirms that where a defendant establishes a factual foundation for a defence of justification (truth and public benefit), an interdict will not be granted and the matter must proceed to trial; (4) It demonstrates the importance of context in defamation cases, particularly political commentary and the right to respond to perceived offensive statements; (5) It emphasizes that interdicts are prospective remedies concerned with present and future harm, not past invasions of rights, and that damages ordinarily provide an adequate remedy for defamation; and (6) It confirms the undesirability of disposing of applications piecemeal and the limited (or non-existent) application of rule 33(4) to application proceedings as opposed to actions.