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South Africa Order

North Gauteng High Court, Pretoria

Gupta and Others v Malema and Others (9797/16) [2016] ZAGPPHC 65 (9 February 2016)

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01

Holding and result

The court found that the applicants had established a clear right to protection from threats, intimidation, and incitement of violence. The respondents' conduct, including public statements and actions, created a reasonable apprehension of harm to the applicants and their employees, particularly journalists. The relief sought was justified to prevent further unlawful conduct and to protect constitutional rights to safety, property, and freedom of expression. The court held that the respondents' political speech did not justify threats or incitement of violence, and urgent interdictory relief was warranted.

Court disposition

Application granted; interdict issued against first to third respondents; protection ordered for applicants; costs awarded to applicants.

Orders

  • The first to third respondents are interdicted from repeating threats of violence against the applicants or their employees and from inciting imminent violence.
  • The first to third respondents are interdicted from interfering with the activities of journalists employed by the seventh and eighth applicants, including preventing attendance at public events.
  • The first to third respondents are interdicted from inciting imminent violence against the applicants or their employees by public announcements, media releases, or public speech.
  • The first to third respondents are interdicted from causing or promoting damage to the applicants, their property, or employees.
  • The first to third respondents are interdicted from entering or inciting followers to enter the premises of the applicants except for bona fide commercial purposes.
  • The first to third respondents are interdicted from intimidating the applicants or their employees, including conduct causing fear for safety or limiting freedom of movement and trade.
  • The first to third respondents are interdicted from infringing the seventh and eighth applicants' right to freedom of expression and media.
  • The first to third respondents are interdicted from promoting the removal of any applicants from Gauteng or South Africa except in accordance with lawful process.
  • The fourth respondent is ordered to take necessary steps to protect the interests of the applicants against unlawful criminal activity resulting from the conduct of the first to third respondents.
  • The applicants may approach the court on an urgent basis for further relief if the respondents fail to comply with the terms of the order.
  • Costs of the application, including costs of two counsel, are awarded to the applicants.

02

Material facts

Parties

Ajay Kumar Gupta

Applicant

Atul Kumar Gupta

Applicant

Rajesh Kumar Gupta

Applicant

Confident Concepts (Pty) Ltd

Applicant

Oakbay Investments (Pty) Ltd

Applicant

Sahara Computers (Pty) Ltd

Applicant

TNA Media (Pty) Ltd

Applicant

Infinity Media (Pty) Ltd

Applicant

VR Laser Services (Pty) Ltd

Applicant

Shiva Uranium (Pty) Ltd

Applicant

Westdawn Investments (Pty) Ltd

Applicant

Tegeta Exploration and Resources (Pty) Ltd

Applicant

Julius Sello Malema

Respondent

Economic Freedom Fighters

Respondent

Ntobeng Ntobeng

Respondent

Lieutenant General Khomotso Phahlane NO Acting Police Commissioner

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Interdict Application Before Court; Final Order Issued

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants argued that the respondents made public threats and incited violence against them and their employees, including journalists. They contended that such conduct endangered their safety, property, and business operations, and infringed their constitutional rights to freedom of movement, trade, and expression. They sought an urgent interdict to prevent further threats, intimidation, and interference, and requested protection from law enforcement.
Respondent
The respondents denied inciting violence or threatening the applicants, arguing that their conduct was political speech protected under the Constitution. They contended that the applicants failed to establish a real threat or imminent harm and that the relief sought was overly broad and would unjustifiably limit their rights to freedom of expression and political activity.

05

Court’s reasoning

  1. 01

    Setlogelo v Setlogelo 1914 AD 221

    An applicant for an interdict must demonstrate a clear right, an injury actually committed or reasonably apprehended, and the absence of adequate alternative remedy.

  2. 02

    Section 16, Constitution of the Republic of South Africa, 1996

    Freedom of expression is protected under the Constitution but does not extend to incitement of violence or threats to safety and property.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants had established a clear right to protection from threats, intimidation, and incitement of violence. The respondents' conduct, including public statements and actions, created a reasonable apprehension of harm to the applicants and their employees, particularly journalists. The relief sought was justified to prevent further unlawful conduct and to protect constitutional rights to safety, property, and freedom of expression. The court held that the respondents' political speech did not justify threats or incitement of violence, and urgent interdictory relief was warranted.

Obiter and limits

  • The court noted that political discourse must remain within the bounds of lawful conduct and should not infringe upon the rights and safety of others.
  • The protection of journalists and media freedom is essential to the functioning of a democratic society and must be safeguarded against intimidation and interference.

Court disposition

Application granted; interdict issued against first to third respondents; protection ordered for applicants; costs awarded to applicants.

  • The first to third respondents are interdicted from repeating threats of violence against the applicants or their employees and from inciting imminent violence.
  • The first to third respondents are interdicted from interfering with the activities of journalists employed by the seventh and eighth applicants, including preventing attendance at public events.
  • The first to third respondents are interdicted from inciting imminent violence against the applicants or their employees by public announcements, media releases, or public speech.
  • The first to third respondents are interdicted from causing or promoting damage to the applicants, their property, or employees.
  • The first to third respondents are interdicted from entering or inciting followers to enter the premises of the applicants except for bona fide commercial purposes.
  • The first to third respondents are interdicted from intimidating the applicants or their employees, including conduct causing fear for safety or limiting freedom of movement and trade.
  • The first to third respondents are interdicted from infringing the seventh and eighth applicants' right to freedom of expression and media.
  • The first to third respondents are interdicted from promoting the removal of any applicants from Gauteng or South Africa except in accordance with lawful process.
  • The fourth respondent is ordered to take necessary steps to protect the interests of the applicants against unlawful criminal activity resulting from the conduct of the first to third respondents.
  • The applicants may approach the court on an urgent basis for further relief if the respondents fail to comply with the terms of the order.
  • Costs of the application, including costs of two counsel, are awarded to the applicants.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment text

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Source document

North Gauteng High Court, Pretoria

Order

[2016] ZAGPPHC 65

CASE NO: 9797/2016

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

PRETORIA 09 February 2016

BEFORE THE HONOURABLE MR

JUSTICE LOUW JW

In the matter between:

AJAY

KUMAR

GUPTA

1ST APPLICANT

ATUL

KUMAR

GUPTA

2ND APPLICANT

RAJESH

KUMAR

GUPTA

3RD APPLICANT

CONFIDENT CONCEPTS (PTY)

LTD

4TH APPLICANT

OAKBAY INVESTMENTS (PTY)

LTD

5TH APPLICANT

SAHARA COMPUTERS (PTY)

LTD

6TH APPLICANT

TNA MEDIA (PTY)

LTD

7TH APPLICANT

INFINITY MEDIA (PTY)

LTD

8TH APPLICANT

VR LASER SERVICES (PTY)

LTD

9TH APPLICANT

SHIVA URANIUM (PTY)

LTD

10TH APPLICANT

WESTDAWN INVESTMENTS (PTY)

LTD

11TH APPLICANT

TEGETA EXPLORATION AND RESOURCES (PTY) LTD

12TH

APPLICANT

AND

JULIUS

SELLO

MALEMA

1ST RESPONDENT

ECONOMIC

FREEDOM

FIGHTERS

2ND RESPONDENT

NTOBENG

NTOBENG

3RD RESPONDENT

LIEUTENANT

GENERAL

KHOMOTSO

4TH RESPONDENT

JOHANNES

PHAHLANE NO ACTING POLICE

COMMISSIONER

HAVING read the documents filed of record, heard counsel and considered the matter:

IT IS ORDERED THAT:

1. The first to third respondents, jointly and severally, be interdicted from:

1.1 Repeating previous or further threats of violence against the person or property of the applicants or any of its employees and in particular from making public announcements inciting imminent violence against the applicants or any of its employees.

1.2 Interfering with activities of any journalist employed or deployed by the Seventh and Eight applicants and in particular be interdicted from any conduct or making or promoting any remarks preventing any journalist or investigator employed or deployed by the Seventh and Eight applicants from attending any events of relevance to the public in general including but not limited to any marches, gatherings or public meetings of a political nature by any political party including those of the second respondent.

1.3 Inciting imminent violence against the applicants or any of its employees in any way whatsoever by public announcements, media releases or public speech.

1.4 Causing damage, directly or indirectly or promoting damage to be caused to any of the applicants in person, its property or any of its employees.

1.5 Entering or threatening to incite its followers to enter any of the premises of the applicants for any other reason than as a bona fide and/or for normal commercial purpose and in particular the addresses of the applicants as they appear in Annexure “A” hereto being schedule of business addresses of the applicants.

1.6 Promoting or maintaining any conduct which could reasonably intimidate any of the applicants including any conduct or propaganda causing the employees of the applicants to fear for their lives, safety or unreasonably limiting their freedom of movement and trade.

1.7 Promoting infringement of the seventh and eight applicants’ right to freedom of expression and in particular the right to freedom of press and media in order for the seventh and eight applicants to maintain their business of reporting to the general public with fair comment and accurate balanced journalism.

1.8 Participating in any conduct to promote the removal of any of the applicants from Gauteng or the Republic of South Africa, serve in accordance with lawful process.

2. An order be granted requesting the fourth respondent to take the necessary steps in order to protect the interest of the applicants in as far as they might unlawfully be infringed upon by criminal activity resulting from the conduct of the first to third respondents

and in particular any non-compliance of the provisions of the interdict referred to in prayer 2 above.

3. An order be granted that the applicants may approach this Court on an urgent basis with supplemented papers under the aforesaid case number for ancillary or further relief should the respondents fail and/or refuse to comply with any of the terms of the relief granted under this application.

4. Costs of this application , including the costs of two counsel.

BY THE COURT

REGISTRAR

CB

Attorney:

VAN DER MERWE

302

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Setlogelo v Setlogelo 1914 AD 221

Case cited

Constitution of the Republic of South Africa, 1996

Legislation

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