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REPUBLIC OF SOUTH AFRICA

 IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 29585/2018

In the matter between:

BELINDA NETSHIPISE                                                                                         Applicant

and

SHANTYE MUNNICK                                                                               First Respondent

THEMBENI JOYCE MPAZA                                                               Second Respondent

RETHABILE SEEMA                                                                              Third Respondent

BOITUMELO STOFILE                                                                         Fourth Respondent

JUDGMENT

PETERSEN AJ:

[1] This matter came before me as an urgent application on 14 August 2018. The applicant initially sought an order against all four respondents. The third and fourth respondents have subsequently furnished written undertakings to refrain from the behavior complained of in the relief sought and the relief sought is limited to the first and second respondents.

[2] The applicant seeks an order essentially in the following terms:

1. That the Rules of Court be dispensed with and the matter be treated as one of urgency in terms of Rule 6(12) of the Rules of Court.

2. That the Respondents be interdicted and restrained from:-

2.1 Posting, publishing, spreading, alternatively perpetuating the spreading of false, malicious and derogatory remarks and messages about the Applicant and her business on Twitter, Instagram or any other social media platforms, to friends, clients and all existing and potential clients of the Applicant’s business.

2.2 Threatening or intimidating the Applicant by way of text messages, telephone calls and all manner of electronic or verbal communication, be they direct or indirect.

2.3 Visiting or approaching the Applicant’s residential or business premises for any purpose whatsoever, including but not limited to inciting violence, harassing the Applicant, her family members and threatening the life of the Applicant.

2.4 Contacting the Applicant or her friends and relatives telephonically for whatever purpose.

3. That leave be granted to effect service of the application or order of the court by way of substituted service or any manner the court deems fit.

4. That the Sheriff of the Court or his lawfully appointed Deputy is authorized to approach the South African Police Services (“SAPS”) for whatever assistance he may require in giving effect to the terms of the court’s order.

5. That the First and Second Respondents be directed to pay the costs of this Application, including any costs incurred by the Sheriff of this court or his lawfully appointed Deputy in executing any order of this court, on the attorney client scale.

6. That the applicant be granted such other or alternative relief as the Court may deem fit.

[3] Rule 6(12) of the Uniform Rules of Court regulates the enrolment of a matter as urgent. In terms of rule 6(12)(b) an applicant in every affidavit in support of an urgent application “…must set forth explicitly the circumstances which is averred render the matter urgent and the reasons why the applicant claims that the applicant could not be afforded substantial redress at a hearing in due course.” The applicant is therefore required to: (1) set forth explicitly the circumstances which render the matter urgent; and (2) state the reasons why she cannot be afforded substantial redress at a hearing in due course.

[4] The applicant premises the relief she seeks on an urgent basis on two bases: (1) the impact of slanderous remarks being made on social media and in particular Twitter and Instagram which impacts on the goodwill of her business and livelihood; and (2) a construed threat on her life, in particular, by the first respondent on Twitter.

[5] The relief sought by the applicant on the first basis, impacts on her right to engage in business and essentially her commercial interests. The right to seek relief on an urgent basis in the context of commercial interests may in appropriate circumstances justify invoking rule 6(12) as with any other interests deserving of protection on an urgent basis. See Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) at 586G.

[6] In H v W 2013 (2) SA 530 GJ at para [22], Willis J, said the following about Twitter, as the platform stood at that time:

“‘Twitter’ is also commonly known as being part of the social media. It is an information sharing and micro-blogging site available on the internet. It was founded in 2006 by Jack Dorsey and Christopher ‘Biz’ Stone. Registered subscribers ‘tweet’ (which means send messages or share information), limited to 140 characters or less, to their followers. Twitter has 517 million users worldwide, sending some 175 million ‘tweets’ per day. ‘Tweets’ are publicly visible by default…”

Twitter currently has 335 million registered users who are limited to tweets not exceeding 280 characters, with users now being able to upload photos and short videos.[1] The distribution of information on social media and in particular Twitter cannot be downplayed; it reaches far and wide and has the potential for devastating consequences, when one has regard to an ever present unenlightened audience on what may and may not constitute acceptable behavior in interacting on Twitter or Instagram.

[7] The second basis on which the applicant relies speaks to the right life and dignity. The applicant perceives a tweet by the first respondent that: “…Someone needs to let this girl know I’m out for blood … you should have kept your mouth shut…ima end you…” as being a threat on her life. The applicant fails to add the end of the tweet which reads: “and you owe me money bitch”. The responses which follow speak to the wealth or purported absence thereof in respect of the applicant.

[8] In the context of the totality of the tweets it is arguable whether or not this constitutes a threat on the life of the applicant or is merely in reference to destroying the image of the applicant and her business. Be that as it may, at face value it constitutes a threat to the livelihood of the applicant, which on the first basis I accept is deserving of protection considering the context of the tweets. I am satisfied that a case has been made on urgency.

[9] In seeking an interim interdict, the applicant is to meet the following requirements:

1. a prima facie right;

2. a reasonable apprehension of harm if the interdict is not granted;

3. no alternative satisfactory remedy;

4. the balance of convenience favours the granting of the interim relief.

[10] I am satisfied that the applicant has demonstrated a prima facie right to dignity and her right to unfettered engagement in the business sphere. The tweets which form the subject matter of this application impacts on the reputation of the applicant, whether true or not, and being acutely mindful of the nature of social media has the potential to cause irreparable harm to the applicant. Whilst the applicant has engaged the South African Police Services to lodge a charge of Intimidation and anticipates litigating on a defamation suit, it may be too late when such legal avenues do come to fruition, with the balance of convenience favouring the granting of the interim relief sought.    

[11] In the result, it is ordered:

1. That the Draft Order, marked “X”, as amended, the contents of which is set out below, be made an order of Court.

2. Having read the documents filed and having heard counsel the following order is made:

1. That the Rules of this Honourable Court be dispensed with and that this matter be treated as one of urgency in terms of Rule 6(12) of the Rules of this Honourable Court.

2. That the First and Second Respondents be interdicted and restrained from:-

2.1 Posting, publishing, spreading, alternatively perpetuating the spreading of false, malicious and derogatory remarks and messages about the Applicant and her business on Twitter, Instagram or any other social media platforms, to friends, clients and all existing and potential clients of the Applicant’s business.

2.2 Threatening or intimidating the Applicant by way of text messages, telephone calls and all manner of electronic or verbal communication, be they direct or indirect.

2.3 Coming closer to or approaching the Applicant’s residential or business premises with the purpose of inciting violence, harassing the Applicant and threatening the life of the Applicant.

2.4 Contacting the Applicant or her friends and relatives telephonically for whatever purpose.

3. That leave be and is hereby granted to the Applicant and the Sheriff of this court or his lawfully appointed Deputy as authorised, to effect service of the order of this court by way of substituted service, including but not limited to email, WhatsApp, Facebook, Twitter and Instagram.

4. That the Sheriff of the Court or his lawfully appointed Deputy is authorized to approach the South African Police Services (“SAPS”) for whatever assistance he may require in giving effect to the terms of this order.

5. That the First and Second Respondents be directed to pay the costs of this Application, including any costs incurred by the Sheriff of this court or his lawfully appointed Deputy in executing the order of this court, the one paying the other to be absolved.

 

______________________

AH PETERSEN

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

 

For the Applicant: Adv. L. Leeuw

On instruction by: Bazuka & Company Incorporated  

For the Respondents: No appearance

Date Heard: 14 August 2018 at 10h30am

Date of Judgment:  14 August 2018 at 14h00pm

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