Heroldt v Wills

• Jurisdiction: South Africa
• Citation: 2013 (2) SA 530 (GSJ)

Heroldt v Wills
2013 (2) SA 530 (GSJ)

2013 (2) SA p530

Citation	2013 (2) SA 530 (GSJ)
Case No	12/10142
Court	South Gauteng High Court, Johannesburg
Judge	Willis J
Heard	October 19, 2012
Judgment	January 30, 2013
Counsel	T Engelbrecht for the applicant.; S van Aswegen for the respondent.

Flynote : Sleutelwoorde E

F Delict — Specific forms — Iniuria — Right to privacy — Injurious posting on Facebook — Considerations applying to granting of interdict in respect of.

Headnote : Kopnota

In this case W posted a message on her Facebook page concerning H that H alleged was defamatory of him. H later applied to a high court for it to order W to desist from posting any information about him on Facebook or on any G other social media; for an order that should W fail to comply with the preceding order, she be placed under arrest; that W remove the offending posting from Facebook; and that should she not do so that the sheriff remove it. (Paragraphs [1] – [2] at 533A – G.)

The court concluded that the posting was defamatory and that with respect to the requirements for an interdict H had a clear right to his privacy and H reputation and that the posting was injurious thereto. In issue was the third requirement for an interdict, that there be no other remedy available, specifically: whether there was another remedy available; if not, whether other considerations counted against it exercising its discretion to order removal of the post; and the scope of an appropriate order. (Paragraph [30] at 543E/F – G.)

I W argued that at least two other remedies were available to H besides an interdict: he could institute an action for damages; or he could approach Facebook to ask it to remove W's post. The court was unconvinced by both suggestions, concluding that an action would be needlessly expensive and time-consuming, and that there was no assurance Facebook would comply with a request to remove the post. (Paragraphs [30] and [38] – [39] at 543E/F – G and 545G – 546D.) J

2013 (2) SA p531

Accordingly the court turned its attention to other considerations impacting on A its discretion to order an interdict. It noted in this regard that the social media, of which Facebook formed a part, and considerations applying thereto, were to be distinguished from the electronic news media. While news might be circulated on the social media, they were primarily a platform for social activity, and thus interdicting a social post was not likely to disrupt the free flow of news. And the financial implications of B interdicting a print news medium, as in stopping a printing press, did not apply to the electronic social media. (Paragraphs [34] – [35] at 544G – 545C.)

As to the scope of the order, the court declined to prospectively restrain W posting 'any' information on H on Facebook or on other social media, in C that future circumstances might justify such publications; and declining this order entailed refusing the order which was ancillary to it that W be arrested should she make a future posting. The court also refused to order that in the event of W failing to remove the posting the sheriff should do so: it doubted the competence of the sheriff to do this and in any event the order would be premature. Thus so narrowed, the court granted H's requested order that W remove the offending post from Facebook. (Paragraphs [40] – [42] and [47] at 546D/E – 547A and 548D – E.) D

Cases Considered

Annotations:

Case law

Southern Africa E

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): referred to

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): referred to

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): referred to F

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Borgin v De Villiers and Another 1980 (3) SA 556 (A): referred to

Bothma v Els and Others 2010 (2) SA 622 (CC) (2010 (1) SACR 184): referred to G

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC) (2009 (11) BCLR 1075; [2009] ZACC 21): referred to

Crawford v Albu 1917 AD 102: applied

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to H

Dutch Reformed Church Vergesig Johannesburg and Another v Sooknunan 2012 (6) SA 201 (GSJ): referred to

Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A): dictum at 464 applied

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to I

Jacobs en 'n Ander v Waks en Andere 1992 (1) SA 521 (A): referred to

Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) ([1993] 2 All SA 619): referred to

Johncom Media Investments Ltd v M and Others 2009 (4) SA 7 (CC): referred to J

2013 (2) SA p532

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): dictum in para [18] applied A

Laugh it Off Promotions CC v SAB International (Finance) BV t/a SabMark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743): referred to

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577): applied B

Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): dictum at 1170 applied

Minister of Police v Mbilini 1983 (3) SA 705 (A): referred to

Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) (1998 (7) BCLR 880; [1998] ZACC 10): C referred to

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) (2004 (11) BCLR 1182; [2004] 3 All SA 511): dictum in para [25] applied

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others D 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): referred to

National Media Ltd and Another v Jooste 1996 (3) SA 262 (A) ([1996] 2 All SA 510): referred to

National Media Ltd and Others v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347): referred to

O'Keeffe v Argus Printing and Publishing Co Ltd and Another 1954 (3) SA 244 (C): referred to E

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): referred to

S v I and Another 1976 (1) SA 781 (RA): referred to

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449; [2001] ZACC 17): referred to F

Setlogelo v Setlogelo 1914 AD 221: dictum at 227 applied

South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC) ((1999) 20 ILJ 2265; 1999 (6) BCLR 615; [1999] ZACC 7): referred to

Van der Berg v Coopers & Lybrand Trust (Pty) Ltd and Others 2001 (2) SA 242 (SCA) ([2001] 1 All SA 425): referred to. G

United States

Largent v Reed & Pena (39th Judicial District of Pennsylvania, Franklin H County Branch, case No 2009 – 1823): referred to.

Case Information

An application for an order that the respondent remove a posting from Facebook. The order is at [47].

T Engelbrecht for the applicant. I

S van Aswegen for the respondent.

Cur adv vult.

Postea (January 30). J

2013 (2) SA p533

Judgment

Willis J: A

[1] The applicant seeks an order against the respondent in the following terms:

1.

Interdicting and restraining the respondent from posting any information pertaining to the applicant on Facebook or any other social media; B

2.

In the event that the respondent fails to comply with the abovementioned order, that the respondent then be placed under arrest for non-compliance for a period of 30 days or a period as determined by the court;

3.

Removing the postings so posted by the respondent from Facebook C or any other social site on which they might have been placed;

4.

If and in the event that the respondent fails, alternatively neglects, alternatively refuses, to remove such postings from Facebook or any other social-media site upon which they might have been posted, that the sheriff of Randburg be ordered and authorised to remove the postings so listed by the respondent; D

5.

Costs of the application.

[2] The respondent is the author of the posting on Facebook [1] which has given rise to this litigation. It was posted on 27 February 2012. Its rubric reads: 'Letter to Warren Heroldt — for public consumption'. Warren Heroldt is the applicant in this matter. Included in the posting is the E following:

'I wonder too what happened to the person who I counted as a best friend for 15 years, and how this behaviour is justified. Remember I see the broken hearted faces of your girls every day. Should we blame the alcohol, the drugs, the church, or are they more reasons to not have to F take responsibility for the consequences of your own behaviour? But mostly I wonder whether, when you look in the mirror in your drunken testosterone haze, do you still see a man?'

[3] It is common cause that the applicant enjoys a good party and that he likes his social intercourse to be lubricated with alcoholic beverages. The applicant is an active social networker in that he has both a Facebook G

2013 (2) SA p534

Willis J

A and Twitter [2] account on which he often communicates and therefore shares information. The respondent has relied on these facts as grounds of justification for publishing the posting in question. The respondent has refused to remove the posting, despite having been requested so to do by the applicant, acting through his attorney.

B [4] The applicant is an insurance broker who is...