- The court found the Facebook posts were, at first glance, likely to be defamatory.
- A temporary interdict was granted to prevent further harm before the full case is heard.
- The appeal failed because interim orders are rarely appealable and showed no prospects of success.
The High Court in the Northern Cape has dismissed an application for leave to appeal in keeping in place a court order that forced the removal of Facebook posts and restricted further publication.
Acting Judge L Roach ruled that the order remains necessary to protect reputations for now, even though the court has not yet made a final decision on whether the posts are unlawful.
The dispute began when Johannes Zacharias Human Muller, Deon Marius Botha, and Pieter Hendrik Strydom approached the court on an urgent basis. They complained that statements published on the “Genoeg is Genoeg” Facebook page were damaging their reputations as professionals involved in liquidation and insolvency matters.
The court granted an interim interdict. It ordered that certain posts be removed within 24 hours, prohibited further similar statements, and required affidavits confirming compliance. It also allowed the applicants to approach the court again if the order was not followed, including for contempt proceedings.
Carel Aron Van der Merwe, cited as the first respondent in the main application, opposed that relief and later applied for leave to appeal the order.
Van der Merwe’s arguments
Van der Merwe argued that the order went too far and had the effect of silencing him before the truth of the matter could be tested. He claimed the interdict limited his right to freedom of expression and affected public interest discussions around the conduct of liquidators.
He further argued that the order was effectively final in its impact, saying it caused ongoing harm and should therefore be appealable. He also raised complaints about how the urgent application was handled, including alleged procedural unfairness and the way evidence was considered.
The case was also framed as involving broader public interest issues, including transparency in insolvency processes and the right to speak out on matters affecting creditors and the public.
The legal test
Judge Roach explained that the court was not deciding, at this stage, whether the Facebook posts were ultimately lawful or unlawful. Instead, the question was whether there was enough evidence, on a preliminary basis, to justify temporary protection.
The judge stated, “I fail to see how posting the statement ‘Liquidators are the same as paedophiles in an orphanage (sic)’ … is not prima facie defamatory in nature.” That finding, even at a provisional level, was enough to support the interim order.
Judge Roach emphasised that interim interdicts are designed to protect rights while a case is still ongoing. He stated, “It cannot be said that the order disposed of a substantial part of the main application,” making it clear that the final decision will still be made later in Part B of the case.
Why the appeal failed
The court then turned to whether the order could be appealed. Judge Roach explained that interim interdicts are generally not appealable unless there are exceptional reasons.
He stated, “Ultimately, it is not in the interests of justice to allow an appeal under the circumstances,” confirming that this case did not meet that threshold.
The judge also found that the appeal itself was poorly constructed. He said the grounds were “framed in the most generalised and broad terms” and largely repeated arguments that had already been dealt with in the earlier judgment.
Importantly, the court noted that Van der Merwe had another option available. Instead of appealing, he could have asked the same court to urgently reconsider the order under Rule 6(12)(c). Judge Roach pointed out that this step was not taken.
On the key requirement for leave to appeal, the judge said, “I am not persuaded that another court will come to a conclusion different from my conclusion.”
Costs and order
The application for leave to appeal was dismissed with costs on the attorney and client scale. The order includes the costs of two counsel, one of whom is a senior counsel.
Judge Roach ordered that the interim interdict remain in force while the main proceedings continue.
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