REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

EX- TEMPORE JUDGMENT

In the matter between: Case no: HC-MD-CIV-MOT-GEN-2018/00369

TJAMA TJIVIKUA FIRST APPLICANTNEAVERA TJIVIKUA SECOND APPLICANTWATERBERG INVESTMENTS (PTY) LTD THIRD APPLICANT

and

TOMMY TJARONDA RESPONDENT

Neutral citation: Tjivikua v Tjaronda (HC-MD-CIV-MOT-GEN-2018/00369) [2019]

NAHCMD 405 (14 May 2019)

Coram: GEIER J

Heard: 30 April 2019Delivered: 14 May 2019Released on: 15 October 2019

Flynote: Media — Social media — Defamation — Remedies — Interim interdict

restraining social media postings of allegedly defamatory comments pending action

for defamation — Requirements for interim interdict met — Application granted.

REPORTABLE

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Interdict - Interim interdict - Interdict restraining publication on ground of defamation -

Proper approach to grant or refusal of - Plea of justification - Court believing it

prudent not to dispose of the matter through the final determination of the conflicting

rights relied upon by the parties in order not to prejudge any of the issues in respect

of which the trial court will ultimately have to make findings and where a trial court

after having heard viva voce evidence will in any event be better placed to decide on

these matters finally. In this regards it was kept in mind that the object of interdict

proceedings is the preservation of a right until it can finally be determined who is

entitled to it.

In finding that the applicants had succeeded in proving prima facie rights, which

rights were worthy of protection, at least on a pendente lite basis, the court also took

into account that the inherent probabilities of the matter and thus, whether or not in

that consideration the applicant would obtain final relief at the trial, showed that, the

respondent, in the circumstances of this matter, was not justified - because of his

perceived non-performance of the applicants in a commercial contract – to publish

statements, based only on his perception, of the true underlying facts and where the

respondent’s remedy lay in approaching the court for appropriate relief and where

the reasonable aggrieved person should rather take lawful action to vindicate his

rights and that the resorting to the violation of the rights of others, by injuring their

reputation, amounted to taking the law into one’s own hands and where it so became

clear that the respondent was acting with the intention to harm the applicants

because they did not pay him what he believed was due to him and that against such

background and context the respondent had used his access to the media platforms

in question to publish the complained of statements which also proved that the

respondent posts were actuated by malice.

The complained of publications where posted on the respondent’s Facebook and

Twitter accounts – The continued presence of these posts on such platforms thus

constituted a continuing defamation as - every time - that a social media user would

log on to the respondent’s social media accounts – a new publication of the

complained of posts would occur, either to an existing user or to a new user – In that

sense there was also a more than likely risk of the ongoing and ever increasing

dissemination of the posted material to an even greater audience – The respondent

had in any event vowed that he had ‘ … only just got started with this …’. Also as the

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respondent, who had initially been prepared to give an undertaking not to publish

further defamatory statements relating to the applicants - pending the outcome of the

mediation – had now refused to renew/extend such undertaking pendente lite the

instituted action - it was found that the applicants harbored a real – and well-

grounded apprehension of the continuation of the alleged wrong which would thus

obviously cause irreparable harm to their reputation, especially should they ultimately

succeed in establishing their rights.

In the determination whether or not the balance of convenience would militate for or

against the granting of interim relief the court considered that should interim relief not

be granted the complained of prima facie defamatory posts would continue to be

accessible to the public on social media and particularly to current and new users

that would log on to the respondent’s Facebook, Twitter and Instagram accounts and

where, in such scenario, the defamation would be ongoing. This pointed to the

probability of actual and real injury that the applicants would stand to suffer, should

the interdict pendente lite not be granted, and should the applicants, ultimately,

obtain relief in the instituted action, as opposed to the temporary prejudice the

respondent would suffer during this time, should he be interdicted from continuing to

publish the defamatory statements relating to the applicants, which he would also be

requested to temporarily remove from his social media accounts, merely through the

click of a button, pending the finalisation of the action in which his defences, which

had been raised in justification, might also be vindicated.

Here it was taken into account further that it has been held that the object of interdict

proceedings is the preservation of a right until it can ultimately be determined who is

entitled to it.

In the determination whether or not the instituted action for damages was an

alternative adequate remedy through which the applicants could obtain adequate

redress in due course through an appropriate award the Court held that the instituted

action for damages would not grant adequate relief to the applicants immediately in

circumstances where - the continued existence of the defamatory posts on the

respondent’s social media accounts – constituted an ongoing publication of prima

facie defamatory allegations relating to the applicants – in respect of which they

would continue to potentially suffer harm. An interdict would however afford

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immediate relief to them – at least on a temporary basis – This was clearly an

adequate remedy in the circumstances – where the question can and should be

posed – why should the applicants be compelled to endure and tolerate a situation

where further damage to their reputations would occur in respect of which they

should only sue afterwards In such circumstances it had to be concluded that the

temporary interdict sought was not only ordinary and reasonable, but is also the only

adequate remedy to be sought.

The Court thus found that the requirements pertaining to the granting of interim relief

had been met. It thus granted the relief sought.

Summary: The facts appear from the judgment.

ORDER

1. The Applicants’ non-compliance with Rule 8 and 65(5) of this Honourable

Court and the time periods prescribed therein in so far as these have not been

complied with are hereby condoned and it is directed that this matter be heard

as one of urgency, as provided for in Rule 73.

2. The Respondent is hereby interdicted and prohibited with immediate effect

from continuing to publish defamatory, unfounded and untruthful statements or

allegations of or concerning first and second Applicants on Respondent’s

social media platforms such as Facebook, Twitter, Instagram and other social

media platforms, pending the finalisation of the action for defamation instituted

by the Applicants against Respondent under case number HC-MD-CIV-ACT-

OTH-2018/00601.

3. The Respondent is hereby ordered to forthwith remove any and all defamatory

material related to the applicants from all his social media platforms, pending

the finalisation of the action for defamation as aforesaid.

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4. No relief is granted in respect of the third applicant.

5. The costs of this application are to be costs in the main action.

6. The matter is removed from the roll and the case regarded as finalised.

JUDGMENT

GEIER J:

[1] The applicants, by way of an urgent application, seek to interdict the

respondent from continuing to publish certain alleged defamatory statements

concerning them on the respondent’s social media accounts, pending the finalisation

of an action for defamation, which has been instituted by the applicants against

respondent under case HC-MD-CIV-ACT-2018/00060.

[2] Due to the simmering commercial dispute in the background of this

application, the parties, at the suggestion of the court, first endeavored to resolve

that dispute amicably. For this purpose - and to allow for meaningful negotiations -

the respondent furnished an undertaking not to publish any further statements

concerning the applicants. When these settlement negotiations failed - and in

circumstances in which it had become clear that the applicants would institute an

action for defamation against the respondent, which action the respondent would

defend - the respondent then refused to extend the given undertaking further,

pending the outcome and finalisation of the said action. It was in such circumstances

that the application was persisted with.

[3] It so became apparent that the original nature of the relief would be affected

by these developments. Accordingly such developments were reflected in the

amended notice of motion filed on 3 April 2019, through which it was made clear that

the applicants would now only be seeking a temporary interdict pending the

determination and finalisation of the said action for defamation.

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[4] It is in this context that the applicants continued to maintain that the sought

relief - albeit in amended form – remained necessary – as the complained of

statements are defamatory and where the respondent had vowed to continue with his

publications in respect of which he had stated in no unclear terms that “he just got

started”.

[5] The complained of statements - which admittedly where made- or posted by

the respondent on his Facebook and Twitter accounts - and which the respondent

claims as being true, that they constitute fair comment and that these statements

were made in the public interest and on a privileged occasion - where the following:

‘2.1 Annexure “TT1” published by respondent on both Facebook and twitter

account states: “NUST Vice Chancellor Tjama Phillemon Tjivikua and First Lady Neavera Francisca Olivier are crooks who going around doing unacceptable things and bullying people with their perceived political power. I too was warned after defaulting on payment due to me that I if I do not surrender to their abuse they will deal with me politically. I am obviously not that type to fall for such. I persisted and now it’s time to act and I will play by their rules. This is just the beginning….. Tjama Tjivikua.”

2.2 The aforesaid statement is published together with a patriot newspaper article

with the title Tjivikua goes rogue and two photos of the applicants are also published

alongside the article.

2.3 Respondent further published that: “He is rogue. He has warned me to after defaulting on payment due to me that I don’t surrender to he’s abuse he will deal with me politically. This is just the beginning of the untold story.”

2.4 He continued to assert that: “From experience it is safe to say that Tjama Philemon Tjivikua and wife Neavera Francisca Olivier are international 419s (crooks)”. “419s” refers to highly organised and highly successful criminal gangs.

2.5 The respondent refer to applicants as criminals when he states that: “Two wanted crooks Tjama Philemon Tjivikua and Neveara were spotted having a meal at the Grove mall of Namibia last night. One looked relaxed and other anxious. (As per Pic).” Again the same picture as previous is attached to the

publication.

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2.6 “5-Tjama Tjivikua and Co remain crooks and the 24 hour threat by @ndjavie2 has lapsed and nothing happened.”

[6] In this regard the applicants’ complaint is further that the general readers of

these articles are provided with limited background information why the respondent is

alleging that the applicants are “wanted international 419s crooks”.

[7] It was against this background also submitted that the published statements

are defamatory of the applicants, in that the respondent, in making them, intended to

convey thereby that the applicants are criminals, part of a criminal gang, fraudsters,

dishonest, cheaters and petty criminals.

[8] Ms Angula who argued the case on behalf of the applicants submitted further

that:

‘3.1 This matter is obviously urgent. The urgency commenced once the

undertaking by respondent was revoked. The respondent in his answering affidavit is

misdirected and misguided by stating that “I submit that this matter is not urgent, the

allegedly defamatory statements have already been made.”

3.2 The continued presence of the statements on the respondent’s social media

platform poses a continuing defamation of the applicant’s reputation and dignity.

3.3 The respondent has vowed to continue with his publications and has indicated

that he “just got started”. Not only does the continued presence of the statements

violate the applicants clear rights to their dignity, the statements that the respondent

made and published on his social media platform are untrue, unfounded and there is

no conceivable public interest in the information published.

3.4 There are members of society that have not as yet had regard to these

statements. If any social media user log onto respondent social media accounts, a

new publication of defamatory statements takes place, publication remains on his

account and is visible to every user who come in contact with respondent’s tweets or

posts.

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3.5 The untrue and unfounded publications by the respondent on his social media

platforms do not automatically disappear unless removed by the respondent himself.

The interdict continues to be urgent as there nothing preventing further publication.

3.6 The court is invited to have regard to the Facebook and Twitter account of the

respondent since the undertaking was revoked. It is common cause that the

publication had intensified and is continuing.’

[9] After dealing with the requirements set by Rule 73(3) pertaining to urgency

and in the quest to address these aspects, and the delay which was initially

occasioned due to respondent’s insistence to be served with the application, while at

the same time refusing to provide a service address - and after a letter of demand

had been sent to him – she pointed out that the respondent then reacted by posting:

‘5-Tjama Tjivikua and Co remain crooks and the 24 hour threat by @ndjavie2 has

lapsed and nothing happened.’

[10] The submission was then made that:

‘3.16 The applicants would not be afforded substantial redress in due course because

by the time the action for defamation is heard, the defamatory statements would have

been on social media platform of the applicant for years. This delay in the finalization of

the action is no effective remedy for a continued wrong.

3.17 The respondent on the other hand, will enjoy his social media platforms without

the need to continue to perpetuate the wrong which he is resolute in continuing. There is

no prejudice and no inconvenience to the respondent.’

[11] Ms Angula then went on to submit that:

‘4.1 The right that the applicants are seeking to protect is one which is also

constitutionally protected. The respondent asserts equally his right to freedom of

speech which is similarly constitutionally guaranteed.

4.2 In other words the applicants are to establish if their rights to privacy and

dignity are violated on a balance of probabilities. The applicants’ rights to dignity are

violated if the on balance of probabilities, the respondent fails to discharge the onus

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that the statements made in paragraphs 2 above are true, in the public interests and

are fair and privileged.

4.3 The respondent’s defenses are straightforward. He claims that the

statements are true, fair comment, privileged and in public interest. The Respondent

in paragraph 48 of his answering affidavit states that:

“I deny that I have defamed the reputations and good names of the applicants. I submit that I have fully set up a defense of fair comment and truthfulness in respect of the conduct of a public official.”

4.4 It is common cause that the first applicant is a public official but there is no

allegations made that the second applicant is a public official. The second applicant is

married to the first applicant.

4.5 There is equally no evidence of the alleged defence of “fair comment” and

“truth and in the public interest”. Nothing that the respondent alleges in his

statements about the applicant’s is attributable to public’s interest. The respondent

has invaded the applicant’s privacy and dignity. We submit that that there is

absolutely no public interest in the statements published by the respondent.’

[12] With reference to the applicable case law she continued to argue in regard the

rights relied on that:

‘4.30 In the circumstance of this case, it is not justified for respondent aggrieved by

non-performance of other parties to a commercial contract- accepting that respondent

can prove his case- to publish statements that are only based on his perception or

reality concerning of the applicants. A party aggrieved by an alleged breach of

commercial contract must approach court for an appropriate relief.

4.31 It is contrary to morals of society that unsatisfied business persons resort to

publication of statements, especially on social media, with the view to simply injure

those who disagreed with them. This is no justification for publication of any

statement whether true or not true.

4.32 A reasonable person aggrieved as alleged by the respondent, must take

lawful action to vindicate his rights. This is so because an aggrieved person might

take the law into his own hands. Resorting to violation of rights of others by injuring

their reputation amounts to taking law into one own hands.

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4.33 It is therefore clear that the respondent is acting with clear intention to harm

the applicants because they did not pay him what he believe is due to him. The

publication of statement regarding the dealings between the applicants and

respondent might be interesting to the public but is not in the public interests to make

known.

4.34 The court has discretion to grant an interdict upon a consideration of all the

circumstances and upon weighing the probabilities of success of the claim for

damages and the defences of the respondent. The only justification offered by the

respondent may be discern from his answering papers in paragraph 4 thereof when

he states:

“I shall demonstrate in this affidavit that the allegations I have made in respect of the

applicants… amounts to fair comment and in addition certain allegations relates to

matters that were already reported by mainstream media and to my knowledge the

first applicant has not sought to either bring and interdict against the

publishers…..The applicants have been described by mass media outlets as rogue, land barons who are involved in controversial land deals….”

4.35 Applicants have not been called rogue as alleged. The only reference to

rogue is in an article by the Patriot Newspaper that first applicant goes rogue on an

alleged appointment of certain officials at NUST. In the context in which the word

rogue was used, it was clearly intended to mean that the applicant had gone wild in

dealing with an aggrieved employee at NUST. The respondent fails to explain the

article and why he believe that calling applicants crooks is fair comment.

4.36 Secondly, the word baron is used to denote novelty and not criminality. In any

event this was the two publications relied on by respondent when he decided to jump

on the bandwagon of alleged fair comment. None of the allegations made against the

applicants by respondent were in the mainstream media as alleged. If respondent

intended to denote rogue with first applicant, why did he not distinguish that comment

in respect of second applicant, instead of sweeping them with one brush.

4.37 The photos of the applicants used by the respondent in the publication were

not used by the Patriot newspaper. They were taken by respondent from another site

and posted with his statements. The respondent was set to create a bad association

between the photos of the applicants and the Patriot newspaper, without making a

distinction about his publication and that of the newspaper.

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4.38 The respondent did not make a fair comment because the article he relied on

to make fair comment. The respondent made himself guilty of making defamatory

statements as he did not have the appropriate context. He also failed to place any

context or provide information of the occasion of privilege in these proceedings.

4.39 The respondent having raised the defence of fair comment bears a burden of

rebuttal. The respondent has been unable to justify his posting on facts and evidence

in his answering papers. The statements were made purely out of malice and

improper motive to force the applicants’ hands.

4.40 The background in making the statements on the respondent’s social media

platforms, together with the words themselves, indicates that the respondent acted

out of malice when making the offending statements and or publications. The court

must further bear in mind that the respondent made these statements without having

full knowledge of the status of the transaction.

4.41 The sharing of private messages, the posting of untrue and unfounded

statements about the applicants business dealings and character, the revealing of

confidential contractual terms and conditions does not equate to fair comment or

public interest as alleged by the respondent. His malicious motive must negate any

defence on fair comment or any other defence available in defamation matters.

4.42 The respondent is clearly aggrieved when in paragraph 7 of his affidavit he

states that: “Applicants did not turn out to be persons on whose word one can rely.

The applicants have sought to cheat myself and my partners”

4.43 These are no objective facts upon which this court can make a reasonable

conclusion that the applicants are crooks. These allegations clearly a subjective view

of the respondent. Even such a view is justified in the circumstances of the case; it is

not the objective facts upon which the court can rely. The objective facts upon which

the court can rely are set out in the affidavits of the applicants. The private text

messages between the parties, which are published without applicants consent,

demonstrate that there was willingness to resolve the dispute if the respondent was

to act in a civil manner.

4.44 The respondent while believing that he was cheated did nothing to approach

lawyers to demand payment. Just because respondent believe that he was cheated

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does not entitled him to injure the applicant. The respondent is very much economical

with the truth.

4.45 On the papers before court respondent had denied that he was previously

interdicted by M&Z. He stated under oath that: I point out that the M&Z motors matter

was resolved by way of a confidential settlement agreement.” I attach to this heads

the two orders of court in which respondent was interdicted from making defamatory

statements on social media against M&Z.

4.46 The words and statements made by the respondent against applicants were

clearly intended to mean, and are read and understood by the readers on Facebook

and Twitter to mean that the applicants’ are: “Corrupt, criminals and dishonest

business people; are not law abiding citizens; abuse political power and exert

unlawful undue influence on people; are untrustworthy and will do anything to hurt

others; and are generally not of good characters”.

4.47 The words and or statements posted on the respondents Facebook and

Twitter accounts which are in issue in this case indeed contain the defamatory

meaning of which the applicants complain.

4.48 There is no reasonable way to determine the intellectual capacity of all social

media users, social media users come from different walks of life, it can be

reasonably submitted on behalf of the applicants that the statements are defamatory

in nature and their continued presence on the respondent’s accounts is a continued

violation of the applicants’ rights as stated above.

4.49 In our law, it is not good enough, as a defence or ground of justification for

defamation, that the published words may be true. The Respondent in his answering

affidavit submits to this Honourable Court that his statements were true, for public

interest and are of fair comment.

4.50 The respondent’s alleged claim for payment based on unestablished agreement

is not extinguished by the interdict, but would be enhanced thereby. He is now to

commence with legal action if he so deem fit. In any event, the respondent has not

established any right to the alleged money in these proceedings nor on his social media.

He fails dismally to provide evidence of the alleged agreement.’

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[13] Finally she submitted that the balance of convenience is often a decisive

factor in interim relief, which is discretionary in nature- and she also argued that a

claim for damages would not grant similar protection to the applicants as it was not

an effective remedy in the circumstances. In this regard her argument ran further:

‘4.53 A claim for damage is not a similar protection as it is not an effective remedy.

Where infringements of privacy and dignity take place in the social media, there are

no appropriate relief. Social media make the case qualitatively different from the

publication in newspapers, which are printed in hardcopy and distributed. Items on

social media are posted and circulated at the click of a button and they can similarly

be removed at no costs at all.

4.54 The competing interests of the parties must be weighed. Why should the

innocent party bear continued defamation when the defamatory statements can

merely be removed at the click of the button?’

[14] She concluded by submitting that:

‘5.1 In the circumstances of this case, the applicants have made out a case for

interdictory relief as prayed for in the amended notice of motion pending the outcome

of the action as aforesaid.

5.2 The respondent did not rebut the onus that the statements were fair comment

or in the public interest. The statements are not true and are not based on facts.

5.3 The applicants have satisfied the requirement for an interdict pendete lite and

are entitled to protect their dignities and privacy and there was no alternative remedy.

It is submitted that the reliefs sought in the notice of motion should be granted.’

Argument on behalf of the respondent

[15] On behalf of the respondent reliance was placed on the Hix Networking

Technology case,1 which case had held that attempts to restrain publications had to

be approached with caution and that the right to freedom of speech was not to be

overridden lightly and that the appropriate stage for this consideration would, in most

cases, be the point at which the balance of convenience would be determined.

1 Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A).

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[16] Mr Namandje, who appeared for the respondent, submitted firstly that no case

had been made out vis a vis the third applicant and that the application should thus

be dismissed in this regard.

[17] He submitted that interdicts are aimed at preventing future events not

something that had occurred in the past. The applicant should show a right which

would be irreparably damaged if an interdict would not be granted. The applicant

would thus not be entitled to obtain an interdict directing or compelling the

respondent to positively take steps in relation to past events. He dealt with the

alleged defamatory posts as follows:

‘16. We however submit that whether the Applicants are seeking interim interdict

or a final one, in either respect no case was made out. The case pleaded by the Applicants

would have to be considered in the light of constitutional provisions protecting fundamental

rights to freedom of expression and speech.2

17. The Applicants settled the facts leading to the application from paragraph 22 of the

Founding Affidavit. The First Applicant, without setting out a factual basis, inter alia alleges

that the Respondent “continues to intimidate and threaten me and try to extort3 money out of

me.”4

18. First Applicant complains under paragraph 29 about the allegations of him and

the Second Applicant being referred to a “crook”, and further referring to the

Respondent attaching to his Facebook and Twitter accounts a publicly available

Patriot newspaper article titled “Tjivikua goes rogue”. Under paragraph 31 the First

Applicant complains about publication of text message exchanges between him and

2 See Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) at para. 28:

“[28] South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society. The right has been described as ‘one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the development of every one of its members …. As such it is protected in almost every international human rights instrument. In Handyside v The United Kingdom the European Court of Human Rights pointed out that this approach to the right to freedom of expression is

‘applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb …. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.’ (Own emphasis)

3 The allegation of extortion against the Respondent, if one adopts a cry baby approach as adopted by the Applicants, would equally have been objectionable and defamatory.4 Paragraph 26 of the Founding Affidavit.

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the Respondent.

19. Under paragraph 34 the First Applicant refers to the Respondent’s Twitter post of 5

October 2018 wherein the Respondent, like the Patriot newspaper, referred to the First

Applicant as rogue. Under paragraph 44 the Applicants lament the fact that the allegations

being made by the Respondent may be believed by people that read them. Under paragraph

44 the Applicants then make conclusive and bare general statements that they have

established clear rights that are being violated and threatened to be violated if the interim

orders are not granted.

20. Under paragraph 45 the Applicants, in the most meaningless and terse terms attempt

to make out allegations relating to balance of convenience by simply stating that: “I am

advised that the balance of convenience favours the granting of the interim orders. I am

further advised that there is no inconvenience that will be suffered by the respondent if these

orders sought are granted, whilst the rights of the second applicant and I would continue to

be violated.”5’

[18] With reference to the submission made by Mrs Angula, on the balance of

convenience, he submitted that these arguments where insufficient if regard was had

to what the court had stated in the National Treasury case at paragraph [55].6

[19] In regard to the applicants’ attempts at satisfying the requirement of the

absence of an alternative remedy his argument was:

‘22. In an attempt to prove the absence of an alternative satisfactory remedy, the

Applicants allege under paragraph 46 of the Founding Affidavit that there are no alternative

remedies available to them. The Applicants proceed in a dismissive manner to cast doubt on

the effectiveness of a damages claim against the Respondent by stating that: “The other

remedy of bringing an action for damages against respondent is not an adequate remedy.”7

23. To the contrary, and in a manner inconsistent with the content of paragraph 46 of the

Founding Affidavit, the Applicants have destroyed any hope and chance of getting an

5 See para. 45 of the Applicants’ Founding Affidavit.6 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) : ‘[55] A court must be satisfied that the balance of convenience favours the granting of a temporary interdict. It must first weigh the harm to be endured by an applicant, if interim relief is not granted, as against the harm a respondent will bear, if the interdict is granted. Thus a court must assess all relevant factors carefully in order to decide where the balance of convenience rests.’7 See para. 46 of the Applicants’ Founding Affidavit.

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interdict as they proceeded to institute a defamation claim which they, under oath, allege that

it is not available to them and even if it was available it is not adequate. These inconsistent

acts on the part of the Applicants and their flip-flop cavil will prove fatal to the Applicants’

case.’

[20] In regard to the defence of public and fair comments it was stated:

‘26. The Respondent then advances defences of public and fair comments and

truthfulness of the comments made, and deny that the allegations posted are defamatory of

the Applicants. He also contends that the allegations he made are either reproduction of

news articles already in circulation in the mainstream media or they represent the truth.8 The

Respondent most importantly make the following allegations:

26.1 The First Applicant struggled to arrange funds to secure the land that had

been allocated to him and others.

26.2 The First Applicant, contrary to what he stated in the Founding Affidavit,

actually approached the Respondent through a nephew working at City of Windhoek.9

26.3 The Respondent makes allegations confirmed by Diego Majiedt that the

agreement was to the effect that he was to be paid 10% of the purchase price of the

land on the deal closure, i.e. signing of the agreement.

26.4 The Respondent denies that his remuneration/commission was linked to profit

in respect of phase 1.

26.5 The Respondent alleges that the agreed fee was at a later stage reduced to

7.5% of the land purchase price.10 The deal closure was on 23 December 2016.

26.6 The Applicants to this date have been avoiding to pay the agreed purchase for

over two years and is actually using “strong man” tactics and mentality to avoid

payment.

26.7 The allegations being made by the Respondent were accurately reflected in

the transcripts he made, attached on his opposing affidavit as TT3(a) to (c).

8 See paras. 15 and 16 of the Respondent’s Answering Affidavit.9 See para. 17 of the Respondent’s Answering Affidavit.10 See para. 19 of the Respondent’s Answering Affidavit.

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26.8 “Crook”, amongst others, refers to a wrongdoer, a law breaker while “rogue”

inter alia means being unprincipled, etcetera. If the facts alleged by the Respondent

were to be correct (as should be the case) the Applicants are not far from being

crooked and rogue. They are thus not entitled to an interdict. They are involved in a

commercial dispute which, because of their position in public will become public

material. The quarrelsome discussion between them and the Respondent will

necessarily become public. They rushed to Court driven and propelled by their

egotistical dislike of publicity inconvenience.

27. To avoid an interdict such as the one being sought by the Applicants, the Respondent

simply needs, subject to the applicable motion proceedings in respect of facts, to allege a

colourable defence and a factual basis in which case his case cannot be rejected out of

hand.11

28. It is clear from the facts proffered by the Respondent that the parties are involved in a

commercial transaction in which the Applicants are trying tooth and nail to escape liability to

pay the commission and fee due to the Respondent, in a manner that smacks of greed on

the part of the Applicants after they have been assisted by the Respondent.

29. The facts placed by the Respondent on his social media accounts are therefore

correct, alternatively even if they are not facts, they were comments that the Respondent

was entitled to make as they were substantially fair and correct.12’

[21] In conclusion it was submitted that:

‘30. The Applicants’ case is hopelessly flawed for:

30.1 It is poorly and insufficiently pleaded.

30.2 It does not address all the requisites of the interdict sought.

30.3 The Applicants inter alia, in a manner inconsistent with the ratio behind an

interdict, attempt to seek a structural interdict in respect of matters that occurred in

the past.

30.4 While the Applicants cast doubt on the possibility of a damages claim they, in

11 See Herbal Zone supra para. 39.12 See Democratic Alliance v African National Congress 2015 (2) SA 232 (CC). See further McBride (Johnstone and Others amicus curiae) 2011 (4) SA 191 (CC).

18

a manner inconsistent with the above position, proceeded and instituted a defamation

claim after the institution of this application. In this respect the interdict application

must fall away.

30.5 The Applicants did not make out a case in their Founding Affidavit as per the

Stipp authority referred to above.

30. In view of the aforesaid we ask the Court to dismiss the Applicants’ ill-conceived

application with costs, such costs to include costs of two legal practitioners where employed.’

Resolution

[22] Firstly it should be stated that I uphold Mr Namandje’s submission that no

case for interim relief has been made out vis a vis the third applicant. Accordingly no

relief will be granted in regard of the third applicant.

[23] As far as the interim relief sought by the remaining applicants is concerned,

their entitlement to such relief, will have to be determined with reference to the

applicable principles.

The requisites for temporary interdicts.

[24] These are that the applicants must show:

a) that the right which is the subject matter of the main action and which they

seek to protect by way of interim relief is clear or, if not clear, is at least prima facie

established, though open to some doubt; and

b) that if the right is only prima facie established, there is a well-grounded

apprehension of irreparable harm to the applicants, if interim relief is not granted and

they ultimately succeed in establishing their right; and

c) that the balance of convenience favours the granting of interim relief; and

d) that the applicants have no other satisfactory remedy.13 13 See for instance: Mtambanengwe J in Rössing Uranium Ltd v Cloete and Another 1999 NR 98 (LC) at p100 and the authorities referred to and adopted there and Mudge v Ulrich NO and Others 2006 (2) NR 616 (HC) at [5] as referred to by Ms Angula.

19

[25] As the applicants are seeking a temporary interdict – i.e one that is to operate

pendente lite the defamation action - it needs to be determined whether the

applicants have met the said requirements for such relief. I will thus deal with these

requirements seriatim.

Have the applicants established a clear right?

[26] In this regard the applicants are obliged to establish the existence of a clear

right in terms of the substantive law – Here it is clear that the applicants have the

right to dignity as guaranteed by Article 8 of the Namibian Constitution – They also

have the right to privacy and the right not to be defamed, all of which are personal

rights. These rights are clear rights.

[27] However, in opposition to the relief sought, the respondent has, in his

defence, advanced his rights of freedom of speech and the defences of public fair

comments and truthfulness – and - that the complained of statements are not

defamatory. These are also clear rights.

[28] In view of the fact that there is an action pending between the parties, I

believe however it to be prudent not to dispose of this matter through the final

determination of these conflicting rights in order not to prejudge any of the issues in

respect of which the trial court will ultimately have to make findings and where a trial

court, after having heard viva voce evidence, will, in any event, be better placed to

decide on these matters finally.

[29] After all the court in Fourie v Uys14 has stated that the object of interdict

proceedings is the preservation of a right until it can finally be determined who is

entitled to it15 – Accordingly, I will proceed to determine whether the applicants have

established a prima facie right or rights, though open to some doubt, worthy of

protection?

Have the applicants established a prima facie right?

14 Fourie v Uys 1957 (2) SA 125 (C).15 Fourie v Uys at 127.

20

[30] Here it must first be taken into account that where there are disputes of fact -

an aspect that has been raised on behalf of the respondent – that this aspect must

be resolved with reference to the prescribed approach16, which tasks the court to

take the facts, as set out by the applicants, together with any facts set out by the

respondent, which the applicant cannot dispute and then to consider, having regard

to the inherent probabilities, whether the applicants would, on those facts, obtain

relief at the trial of the main action.

[31] If one then turns, with this test in mind, to the facts set out by the applicants, it

appears in essence that the applicants’ complaint is based on the continuation of

what they call ‘unfounded statements relating to them’, as posted by the respondent

on his Facebook and Twitter accounts.

[32] The relied upon statements were quoted by the applicants’ counsel in her

heads of argument, which portions where already copied into this judgment in

paragraph [5] supra.

[33] The applicants’ case is that these statements are defamatory in that they

intend to convey, to those reading these publications, that the applicants are

criminals - part of a criminal gang or organization – the 419’s – fraudsters, dishonest,

cheaters and petty criminals.

[34] These statements, at least, on a prima facie basis and upon applying the

objective test17 –would be considered as defamatory for the simple reason that they

would injure the persons to whom they refer – the applicants in this instance – by

lowering them in the estimation of ordinary intelligent right – thinking members of

society generally.18

[35] In addition it is the applicants’ case that:

(a) the continued presence of these statements on the respondent’s social media

platforms constitutes a continuing defamation of the applicants;

16 LAWSA at 324.17 See for instance : Mohamed and Another v Jassiem 1996 (1) SA 673 (A) at 703 -794.18 See also: Afshani v Vaatz 2006 (1) NR 35 (HC) at [22] for instance.

21

(b) every time a new user logs onto the respondent’s social media accounts, a

new publication of the said defamatory statements occurs;

(c) there is nothing to prevent the respondent from posting further defamatory

statements; and

(d) the fear of additional postings is real as the respondent has vowed to continue

with such publications as he has threatened that ‘ … he just got started … ; and

(e) where, in the interim, apparently, the publications have allegedly been

intensified.

[36] The applicants contend further that the respondent is driven to making these

statements with the clear intention to harm the applicants because of the perceived

non-performance of the applicants of the alleged business agreements in respect of

which he has not been paid.

[37] The respondent on the other hand admits posting the complained of

statements but tries to avoid the consequences thereof, through advancing the

defences of public and fair comments and truthfulness – He also contents that the

allegations are merely a reproduction of newspaper articles already in circulation –

The allegations on which these defences are based are:

‘26.1 The First Applicant struggled to arrange funds to secure the land that had

been allocated to him and others.

26.2 The First Applicant, contrary to what he stated in the Founding Affidavit,

actually approached the Respondent through a nephew working at City of

Windhoek.19

26.3 The Respondent makes allegations confirmed by Diego Majiedt that the

agreement was to the effect that he was to be paid 10% of the purchase price of the

land on the deal closure, i.e. signing of the agreement.

26.4 The Respondent denies that his remuneration/commission was linked to profit

19 See para. 17 of the Respondent’s Answering Affidavit.

22

in respect of phase 1.

26.5 The Respondent alleges that the agreed fee was at a later stage reduced to

7.5% of the land purchase price.20 The deal closure was on 23 December 2016.

26.6 The Applicants to this date have been avoiding to pay the agreed purchase for

over two years and is actually using “strong man” tactics and mentality to avoid

payment.

26.7 The allegations being made by the Respondent were accurately reflected in

the transcripts he made, attached on his opposing affidavit as TT3(a) to (c).

26.8 “Crook”, amongst others, refers to a wrongdoer, a law breaker while “rogue”

inter alia means being unprincipled, etcetera. If the facts alleged by the Respondent

were to be correct (as should be the case) the Applicants are not far from being

crooked and rogue. They are thus not entitled to an interdict. They are involved in a

commercial dispute which, because of their position in public will become public

material. The quarrelsome discussion between them and the Respondent will

necessarily become public. They rushed to Court driven and propelled by their

egotistical dislike of publicity inconvenience.

28. It is clear from the facts proffered by the Respondent that the parties are involved in a

commercial transaction in which the Applicants are trying tooth and nail to escape liability to

pay the commission and fee due to the Respondent, in a manner that smacks of greed on

the part of the Applicants after they have been assisted by the Respondent.

29. The facts placed by the Respondent on his social media accounts are therefore

correct, alternatively even if they are not facts, they were comments that the Respondent

was entitled to make as they were substantially fair and correct.21’

[38] In this regard the following comments can be made in respect of allegations,

made by the respondent, which the applicants cannot dispute:

(a) that the applicants probably struggled to arrange for the funds to secure the

land deals in question;

20 See para. 19 of the Respondent’s Answering Affidavit.21 See Democratic Alliance v African National Congress 2015 (2) SA 232 (CC). See further McBride (Johnstone and Others amicus curiae) 2011 (4) SA 191 (CC).

23

(b) that it is immaterial whether or not the first applicant approached the

respondent through a nephew working at the City of Windhoek;

(c) that the applicants have not paid the respondent for his services;

(d) that the conversations transcribed - and annexed as TT3 a, b, c - did occur;

(e) that the article which appeared in the Patriot newspaper has indeed stated

that the first applicant ‘goes rogue’.

[39] If one then has regard to the resultant picture which so emerges, in order to

consider the inherent probabilities and thus, whether or not in that consideration the

applicant would obtain final relief at the trial, the arguments raised by applicants

counsel, firstly come into play. Here it will be remembered that Ms Angula has

submitted:

(a) that, the respondent, in the circumstances of this matter, was not justified -

because of his perceived non-performance of the applicants in the commercial

contract – to publish statements, based only on his perception, of the true underlying

facts;

(b) that the respondent’s remedy lay in approaching the court for appropriate

relief;

(c) that is was contrary to the morals of society for unsatisfied business persons

to resort to the publication of defamatory statements, especially on social media, with

a view to injure or damage the reputations of those that take a different view;

(d) that the reasonable aggrieved person should take lawful action to vindicate his

rights;

(e) that the resorting to the violation of others, by injuring their reputation,

amounts to taking the law into one’s own hands;

(f) that it was clear that the respondent was acting with the intention to harm the

24

applicants because they did not pay him what he believes is due to him;

(g) that the publication of statements regarding the dealings between applicants

and the respondent might be interesting to the public, but was not in the public

interest;

(h) that the applicants have not been called “rogue” in the relied upon publication

in the sense that the respondent has used this term – this emerges from the context

in which the Patriot newspaper has used the term – and in such circumstances the

respondent has failed to explain - and thus justify - why he could lawfully label the

applicants as “rogue”, which use of the word, in the context used by respondent,

connotes the intention to describe them as “crooks”;

(i) that the respondent failed to distinguish between the first and second

applicants, when he tarred both of them with the same brush, while the article in

question only dealt with the first applicant as having “gone rogue”;

(j) that the photos of the applicants used where not used by the newspaper –

they were taken from another source and “embellished” with the respondent’s

defamatory statements and that, in that way, the respondent attempted to create a

negative association – without making a distinction between the photos – the article -

and his own text;

(k) that the respondent failed to place his posts in proper context in that he failed

to provide the necessary additional information;

(l) that the respondent - who bears a burden of rebuttal - because he relies on

the defence of fair comment – has thus been unable to discharge this onus;

(m) that the background and context in which the respondent has used his access

to the media platforms in question, together with the words posted there, proved that

the respondent was actuated by malice;

(n) that the sharing of private messages, the posting of untrue and unfound

statements about the applicants’ business dealings and character and the revealing

25

of confidential contractual terms does not equate to fair comment or a statements

made in the public interest.

[40] I believe there is merit in these arguments – The respondent is relying on the

defences of fair comment, truth and public benefit – These defences alone show, at

least on a prima facie basis, that the respondent accepts that his posts are of a

defamatory nature relating to applicants, but he tries to avoid the consequences

thereof through the raising of these defences – In my view the arguments, raised by

Ms Angula on behalf of the applicants, which I uphold, and which at the same time

are destructive of the respondent’s defences, point to the inherent probability that the

applicants, would on that basis, at least prima facie, succeed in obtaining final relief

at the trial of the main action.

[41] I accordingly find that the applicants have succeeded in proving prima facie

rights, which rights are worthy of protection, at least on a pendente lite basis.

Is there a well-grounded apprehension of irreparable harm?

[42] Here it is apposite - in addition - to consider the consequences to the

applicants if the interim relief sought is not granted and they ultimately succeed in

establishing their rights.

[43] From the facts placed before the court, and which are also undisputed, it

appears that the complained of publications where posted on the respondent’s

Facebook and Twitter accounts – The continued presence of these posts on such

platforms thus constitute a continuing defamation as - every time - that a social

media user logs on to the respondent’s social media accounts – a new publication of

the complained of posts occurs, either to an existing user or to a new user – In that

sense there is also a more than likely risk of the ongoing- and ever increasing

dissemination of the posted material to an even greater audience. The respondent

has in any event vowed that he has ‘ … only just got started with this …’.

[44] In addition I take into account that the respondent, who initially was prepared

to give an undertaking not to publish further defamatory statements relating to the

applicants - pending the outcome of the mediation – has now refused to

26

renew/extend such undertaking pendente lite the instituted action and subsequent to

the mediation having failed. In such circumstances it becomes more than probable –

and given the respondent’s threats that he has only just got started with this - and

given that there will be nothing to stop the respondent from further posting

defamatory material on social media - that he will thus continue to do so - unless

interdicted.

[45] In those circumstances it does not take much to conclude that the applicants

harbor a real – and well-grounded apprehension of the continuation of the alleged

wrong, which will thus obviously also cause irreparable harm to their reputations,

especially should they ultimately succeed in establishing their rights.

[46] After all - why should the applicants be compelled to wait for the damage to

occur and sue for compensation afterwards - in circumstances - where a court can

be approached to immediately prevent the damage or further damage from being

done to them.

Supplementary argument

[47] At this stage it is apposite to mention that counsel agreed to exchange

additional heads of argument, for the consideration of the court.

[48] In his supplementary note to the court Mr Namandje made the following

further submissions:

‘1. We submitted in the main heads of arguments that upon a proper

consideration the essential allegations on the basis of which the Applicants recklessly

approached this Court on urgent basis are the statement to the effect that they are “crooks”

and/or “rogue”. If anything, the words “crooks” and “rogue” are simple and moderate insult

usually made towards public officials who go into commercial deals and use their positions

and standing in society to escape liability to pay the less fortunate in our society (such as the

Applicants).

2. In this case the Applicants’ case bears of all the hallmarks of a senior public official

who is crude and rough in his dealing with others but ultra-sensitive when subjected to a

slightest description of a character he is. The Applicants because of their above state of

27

minds and mentality are convinced they can defame the Respondent that he committed

extortion without any attempt to state how and when such was committed while they cry from

the top of their lungs because of a repetition of a description imputed upon them several

months ago by the media.

3. We highlighted that in the context and in view of what appear to be a highly disputed

commercial transaction between the parties the Applicants were not entitled to approach

Court on urgent basis for an interdict as:-

3.1 There is a media article which referred to the First Applicant as “rogue” and

such article remains available in the public domain on a wider scale;

3.2 The Applicants themselves have levelled serious allegations against the

Respondent that he has sought to commit “extortion” even when they have never, in

their founding affidavit, proffered facts in support of the extortion allegations. We

submit that the allegations of extortion are more serious and are in fact defamatory in

nature than the mere and near insult statements of” crooks” and “rogue”. Both of the

latter words are in the context not defamatory in a disputed commercial transaction in

which the Applicants are trying their best to avoid liability by amongst other things

levelling extortion allegations against the Respondent – as a distraction.

4 We refer to two additional authorities inter alia Manyathse v M & G Media Ltd22 where

the Court inter alia stated under para 10.:-

“[10] In this court the respondents raised the preliminary contention that the appeal

is moot in that, its outcome will have no practical impact, and that it should for that

reason alone be dismissed with costs. The factual basis for the contention was, of

course, that the allegations which the appellant sought to keep out of the public

domain, have long since been published. Moreover, so the respondents contended, if

the appellant suffered any harm as a result of the publication, such harm cannot be

undone by reversing the order of the court a quo. If the publication rendered the

appellant entitled to any relief, so the argument went, such relief should have been

sought in an action for damages.” (Own emphasis)

And further at para. 12:-

22 (415/2008) [2009] ZASCA 96 (17 September 2009).

28

“[12] As has been explained in earlier cases, s 21A is in effect a reformulation of

the well established common law principle that courts of law exist for the settlement

of live, concrete controversies and not to pronounce on hypothetical or abstract

questions of law (see eg Coin Security Group (Pty) Ltd v SA National Union for

Security Officers 2001 (2) SA 872 (SCA) at 875A-E; Rand Water Board v Rotek

Industries (Pty )Ltd 2003 (4) SA 58 (SCA) para 26). On the facts of this case I think it

is plain that the appeal has indeed become moot. Even if we should find that on the

facts of this case and interim interdict should have been granted, it will not help the

appellant because the publication he sought to prevent had taken place. It is water

under the bridge. Nor will it assist in the resolution of future factual disputes, because

every future case will have to be decided on its own facts (see eg Port Elizabeth

Municipality v Smit 2002 (4) SA 241 (SCA) para 10; Radio Pretoria v Chairman,

Independent Communications Authority of South Africa 2005 (1) SA 47 (SCA) para

40).” (Own emphasis)

5. We further refer to a recent judgment The Director General of the Namibia Central

Intelligence Service & Another v Haufiku: Mathias & Another23, which judgment together with

the one in the Court a quo, we submit, both are against the Applicants.

6. We submit that in the NCIS case supra although the Court found that information on

e-justice alone is not enough, unlike in that case, in this case there is sufficient information

that the allegations against the Applicants have been a matter of public domain for more than

six months and the First Applicant has already been subjected to same allegations by the

Patriot Newspaper.

7. We accordingly submit that, as a matter of law the Applicants did not make out a case

on all the four requisites of interim relief. In some instances, they simply made conclusive

statements without making out a case through underlying factual allegations.24

23 (SA 33/2018) [2019] NASC 7 (12 April 2019).24 Kahuure and Another in re Nguvauva v Minister of Regional and Local Government and Housing 2013 (4) NR 932 (SC) at para 25:

“[25]It is a trite principle that an applicant must establish a prima facie case in the founding affidavit in which such a case is sought to be made out. The founding affidavit must set out factual averments, which if established at the hearing would entitle the applicant to some relief. In this regard, Herbstein and Van Winsen (The Civil Practice of the High Courts and the Supreme Court of South Africa, 5th ed. (by Cilliers, Loots and Nel) Juta 2009) at 438 opine that:

'As in the case of a summons, it must appear from the application that the applicant has an interest or special reason entitling the bringing of the application- that he has locus standi in the matter...'

Herbstein and Van Winsen also point out at 566 that 'a pleading that states conclusions and opinions instead of material facts, or that draws a conclusion without alleging the material

29

8. The Applicants should content themselves with the damages claimed they

themselves have since instituted. The trial Court in the event of it finding against the

Respondent is the one better placed to order removal from social media platforms of the

statements not this Court. If the Respondent successfully defence the Applicants’ pending

defamation claim, how will the complained statements in the meantime having been removed

from the Respondent’s social media platforms be restored? We ask?’

[49] My immediate comment thereon is as follows:

1. I fail to appreciate the distinction, which Mr Namandje attempts to make,

between a simple and a moderate insult. An insult remains an insult, whether simple,

moderate or otherwise, so much is inherent in the term.

2. His submissions fail to take into account in which context the words “crooks”

and “rogue” have been used – and that in such context the use of those terms alone

signifies that they are prima facie defamatory of the applicants.

3. I am also unable to agree with his reliance on the Manyathse and The

Director General of the Namibia Intelligence Service decisions. These cases are to

be distinguished from the present one on the facts. In Manyathse the publication of

the newspaper article had already occurred – the harm that had so been occasioned

could not be condone – In the NCIS case, the information was also already in the

public domain before the to be interdicted article was to be published – Also in such

circumstances it made no sense to interdict information that was already common

knowledge and had already been widely published and was thus in the public

domain.

4. All this is a far cry from the present situation, which is quite different from this,

as was pointed out by Ms Angula in her additional written submissions. Here the

respondent has stated, in no uncertain terms, that he ‘ … will not give any

undertaking to keep quiet and will continue to expose the applicants crookery … ‘ –

The interdict sought would thus be the only effective remedy as the respondent

facts which, if proved, would warrant that conclusion, is defective'.” (Own emphasis)

30

continues to publish on social media that the applicants are crooks, etc. Social media

publications remain alive every day and are thus not ‘water under the bridge’, as was

convincingly argued.

5. Again I have to agree with Ms Angula’s submissions as to me it seems

beyond doubt - as I have found above - that we are here dealing with a scenario in

which the complained of prima facie defamatory statements are ongoing and which

scenario is thus live - and not moot - as was also argued.

The balance of convenience

[50] Here it becomes incumbent on the court to consider the prejudice the

applicants will suffer, if the interim interdict is not granted, against the prejudice the

respondent will suffer, if it is.

[51] In this regard it will by now have become clear that should interim relief not be

granted the complained of prima facie defamatory posts will continue to be

accessible to the public on social media and particularly to current and new users

that would log on to the respondent’s Facebook and Twitter accounts and where, in

such scenario, the defamation would be ongoing.

[52] I have also found that the applicants have established a prima facie right in

the context of which I considered the applicants probabilities of success. These

findings, point to the nature and probability of actual and real injury that the

applicants stand to suffer, should the interdict pendente lite not be granted, and

should the applicants, ultimately, obtain relief in the instituted action, as opposed to

the temporary prejudice the respondent will suffer during this time, should he be

interdicted from continuing to publish the defamatory statements relating to the

applicants, which he will also be requested to temporarily remove from his social

media accounts, merely through the click of a button, pending the finalisation of the

action in which his defences, which have been raised in justification, may also be

vindicated.

31

[53] If one then, in addition, takes into account, that it has been held that the object

of interdict proceedings is the preservation of a right until it can ultimately be

determined who is entitled to it, it becomes even clearer that the balance of

convenience in this matter favours the granting of the interim relief that is sought.

The aspect of the absence of an alternative remedy

[54] In this regard it must firstly be kept in mind that when it comes to the

consideration of this requisite, it must also be taken into account that the alternative

remedy must: a) be adequate in the circumstances, b) be ordinary and reasonable,

c) be a legal remedy and d) grant similar protection.

[55] On behalf of the respondent it was contended that the instituted action for

damages is such an alternative remedy because the applicants may obtain adequate

redress in due course through an appropriate award.

[56] It is however clear that the instituted action for damages will not grant relief to

the applicants immediately – where - the continued existence of the posts on the

respondent’s social media accounts – constitute an ongoing publication of prima

facie defamatory allegations relating to the applicants – in respect of which they

continue to - at least – potentially suffer harm. An interdict on the other hand will

afford immediate relief to them – at least on a temporary basis – This is clearly an

adequate remedy in the circumstances – where the question can and was already

posed – why should the applicants be compelled to endure and tolerate a situation

where further damage to their reputations will occur in respect of which they can only

sue afterwards – or - in respect of the action - which has already been instituted –

they will have to amplify the facts to accommodate further events which have

occurred subsequently. It so becomes clear that the instituted action for damages

does not grant the same protection that is afforded by an interdict.

[57] In such circumstances it must be concluded that the temporary interdict

sought is not only ordinary and reasonable, but is also the only adequate remedy to

be sought. It goes almost without saying that the relief so sought is obviously also a

legal remedy.

32

[58] I thus find that the requirements pertaining to the granting of interim relief have

been met.

The court’s discretion

[59] Finally it must be considered whether the court should refuse to exercise its

discretion against the granting of the temporary relief sought in spite of the fact that

the requirements for interim relief have been established. I can think if no basis –

given the circumstances of this case – and the findings made above – and on which

such discretion can or should be exercised against the granting of interim relief.

[60] In the result the application has to succeed and I thus make the following

orders:

1. The Applicants’ non-compliance with Rule 8 and 65(5) of this Honourable

Court and the time periods prescribed therein in so far as these have not been

complied with are hereby condoned and it is directed that this matter be heard

as one of urgency, as provided for in Rule 73.

2. The Respondent is hereby interdicted and prohibited with immediate effect

from continuing to publish defamatory, unfounded and untruthful statements or

allegations of or concerning first and second Applicants on Respondent’s

social media platforms such as Facebook, Twitter, Instagram and other social

media platforms, pending the finalisation of the action for defamation instituted

by the Applicants against Respondent under case number HC-MD-CIV-ACT-

OTH-2018/00601.

3. The Respondent is hereby ordered to forthwith remove any and all defamatory

material related to the applicants from all his social media platforms, pending

the finalisation of the action for defamation as aforesaid.

4. No relief is granted in respect of the third applicant.

5. The costs of this application are to be costs in the main action.

33

6. The matter is removed from the roll and the case regarded as finalised.

----------------------------

H GEIER

Judge

APPEARANCES

APPLICANTS: E M Angula

Angula Co. Inc., Windhoek

RESPONDENT: S Namandje

Sisa Namandje & Co. Inc., Windhoek