Afriforum and Another v Pienaar

• Jurisdiction: South Africa
• Citation: 2017 (1) SA 388 (WCC)

Afriforum and Another v Pienaar
2017 (1) SA 388 (WCC)

2017 (1) SA p388

Citation	2017 (1) SA 388 (WCC)
Case No	4357/16
Court	Western Cape Division, Cape Town
Judge	Donen AJ
Heard	July 8, 2016
Judgment	July 8, 2016
Counsel	Counsels' details not supplied.

Flynote: Sleutelwoorde B

Defamation — Defences — Fair comment — Social media postings that during 'rape culture' awareness campaign first applicant's supporters 'shouted rape threats' at campaigners, and that second applicant had 'use[d]' rape to intimidate campaigner' — Reasonable reader would understand comments in context, and within such context comments were fair — Politically C charged nature of event entitling commentator to some latitude in describing it — Comments constituted exercise of constitutional right to freedom of expression.

Media — Social media — Defamation — Remedies — Interim interdict restraining further social media postings of allegedly defamatory comments pending D action for defamation — Requirements for interim interdict not met — Application dismissed.

Headnote: Kopnota

Afriforum and an employee of theirs, Mr Pawson, applied on an urgent basis for a final interdict that the respondent (Mr Pienaar) remove certain allegedly E defamatory postings from his Facebook and Twitter accounts, and for a temporary interdict that he be prohibited from posting any such statement in any form of social media pending the finalisation of an action for defamation and possible further interdicts to be instituted by the applicants against him. (The court found it unnecessary to consider the alternative relief that was sought, ie that the orders sought operate as an interim order F pending a return date — see [18].)

Mr Pienaar had posted on social media that 'he had witnessed Afriforum supporters threaten to rape women today', and in three further posts invited readers to watch attached video footage showing that Afriforum supporters 'shouted rape threats' and that 'Marcus Pawson from Afriforum use[d] rape G to intimidate a rape survivor'. These posts related to an altercation which had occurred on the University of Stellenbosch campus between students from the 'End Rape Culture Campaign' (the ERCC) and Afriforum employees and student supporters. (The court observed that only those postings which referred to the applicants personally could sustain a delictual claim of defamation, ie those against Mr Pawson — see [12] and [69].)

H As to the final interdict, held:

Because of the dispute of fact about what exactly happened and was said during the incident which gave rise to the postings, the Plascon-Evans rule applied so that the matter fell to be decided on the respondent's version (see [53].) This version (set out in affidavits from respondent's witnesses at [22] – [52]) I showed that Afriforum supporters sexually assaulted and intimidated three female ERCC protestors, and that Mr Pawson and another Afriforum supporter sexually intimidated two of them by shouting rape related comments. These facts embodied the 'rape culture' that the ERCC sought to eliminate, and did not justify granting a final interdict (see [20] and [53]). The application for a mandatory interdict was therefore without merit (see J [71] and [72]).

2017 (1) SA p389

As to the temporary interdict, held: A

The applicants had not established a prima facie right (see [68]), given that —

•

serious doubts were cast upon their version by the contradicting facts set up by the respondent (see [54]);

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the political, emotional and bitter nature of events described entitled Mr Pienaar to some latitude in describing the events that took place (see [59]); B

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a reasonable reader would understand his comments in the context of the ERCC campaign (see [61]);

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within the context of the acts described by the witnesses who deposed affidavits in his support, Mr Pienaar's comments were fair and therefore not unlawful (see [65] – [66]);

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Mr Pienaar's robust political riposte constituted an exercise of freedom of C expression which did not involve defamatory statements concerning the applicants (see [63]).

Neither did the applicants establish the other requirements for interim relief —

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a well-founded apprehension of irreparable harm, because the harm complained of had been done, the post had been shared and viewed and the internet world had moved on (see [68]); D

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that the balance of convenience favoured the granting of the interim interdict, because restraining publication had final effect on the publisher but not on the applicants (see [70]); and

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the absence of alternative remedies, because Mr Pienaar's comments could be countered as effectively by refuting them in public meetings, on the internet, on radio and television and in the newspapers (see [66]). E

Cases cited

Southern Africa

Cele v Avusa Media Ltd [2013] 2 All SA 412 (GSJ): compared

De Villiers v Schutte2001 (3) SA 834 (C): dictum at 839D – E applied F

Democratic Alliance v African National Congress and Another2015 (2) SA 232 (CC) (2015 (3) BCLR 298; [2015] ZACC 1): dictum in para [133] applied

Goodall v Hoogendoorn Ltd1926 AD 11: dictum at 11 applied

Hix Networking Technologies v System Publishers (Pty) Ltd and Another1997 (1) SA 391 (A) ([1996] 4 All SA 675): applied

Islamic Unity Convention v Independent Broadcasting Authority and Others G 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): dictum in para [28] applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A): dictum at 634H – I applied

Sokhulu v New African Publications Ltd and Others2001 (4) SA 1357 (W) ([2002] 1 All SA 255): dictum in para [7] applied H

The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae)2011 (4) SA 191 (CC) (2011 (8) BCLR 816; [2011] ZACC 11): dictum in paras [99] and [100] applied

Webster v Mitchell1948 (1) SA 1186 (W): dictum at 1189 applied.

England I

Sim v Stretch[1936] 2 All ER 1237 (HL): dictum at 1240 applied.

Case Information

Counsels' details not supplied.

An application for a final interdict prohibiting defamatory postings on social media, a temporary interdict pending action to be instituted for J

2017 (1) SA p390

A defamation, alternatively a temporary interdict pending a return day. The order (dismissing the application) is at [72].

Judgment

Donen AJ:

[1] The first applicant is Afriforum NPC, a non-profit company which is B described in the founding affidavit as a non-profit organisation with its main purpose being the promotion and advocacy of democracy, equality and civil, human, minority and constitutional rights. It claims to be a well-known public-interest litigant. The second applicant (Mr Pawson) is an adult male employed by Afriforum as the head of local government affairs.

C [2] The respondent (Mr Pienaar) is an adult male who describes himself as a supporter of certain of the actions of the Open Stellenbosch (OS) movement and more recently Fees Must Fall movement (FMF).

[3] OS is a movement that allegedly started in April 2015 in Stellenbosch. It is described as '(a) collective of students and staff working to purge the oppressive remnants of apartheid in pursuit of a truly African university'. D Their aim at this stage is the removal of Afrikaans as a leading medium of instruction at Stellenbosch. The language policy at Stellenbosch is seen by Mr Pienaar, and allegedly by others, as being exclusive and oppressive. The OS movement is supported by movements such as FMF, the Economic Freedom Fighters Students Command (EFFSC), the South E African Students Congress (SASCO) and the Stellenbosch Students Representative Council (SRC).

[4] FMF is a movement which started at the historically black universities and then spread to all of South Africa's universities. It is aimed at protesting against financial exclusion of poor, largely black students, on the basis of F affordability and outsourcing of labour at universities. Mr Pienaar claims that conflict is apparent at universities across the country and that it is part of a broader movement to move the universities towards the realisation of the ideals laid down in our Constitution.

[5] From the utterings of Mr Pawson and Mr Pienaar it is apparent that G they both claim to be fulfilling constitutional aspirations, but they do so from diametrically opposed cultural and political perspectives.

[6] Mr Pienaar alleges that whilst Afriforum is not a registered political party, it is a political organisation. It has a political purpose, and it achieves its aims publicly through demonstrations on social media and in the mainstream media. It has engaged the African National Congress on H the issues challenging the university campuses. It is enmeshed in politics and uses its voice to speak out on a range of social and political issues which Afriforum believes demonstrate that Afrikaners are in need of and deserve special protection.

I [7] Mr Pawson denies that Afriforum is a political organisation. However, he admits that it acts in the interest of various groupings and not exclusively for Afrikaners. It speaks for such groupings. It opposes the groups mentioned by Mr Pienaar mainly because they seek to violate the constitutional rights of Afrikaans-speaking students and because of alleged violence caused during their 'violent protests'. Upon a conspectus of all the facts I agree with J Mr Pienaar that Afriforum is a political organisation.

2017 (1) SA p391

Donen AJ

[8] Upon a conspectus of all the parties, role players and circumstances A of this case, the context of applicants' cause of action was deeply mired in politics upon the Stellenbosch University campus. Any university that aspires to help students grow should aim to expose them to challenging ideas...