Mpendulo v Groundup and Another (1050/2023) [2023] ZAWCHC 263 (24 October 2023)

Mpendulo v Groundup and Another (1050/2023) [2023] ZAWCHC 263 (24 October 2023)

The court held that it was precluded from granting the relief sought for retraction and apology because the applicant elected to proceed by way of application, and there remained a live claim for damages with disputed facts regarding reputational harm. The Supreme Court of Appeal authority (NBC Holdings) requires that all compensatory remedies for defamation, including apology and damages, be determined together and only after oral evidence where facts are contested. As the applicant did not withdraw his damages claim and the dispute of fact persisted, the application for retraction and apology could not succeed on the papers. Costs were awarded against the applicant, with consideration...

Citation
[2023] ZAWCHC 263
Parties
Applicant: Sibusiso Mpendulo; Respondent: Groundup; Respondent: Media24
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 October 2023
Case Number
1050/2023
Procedural Posture
Urgent Application / Application for Retraction, Apology, and Damages
Outcome
Application dismissed with costs.
Judges
J Cloete
Legal Topics
Defamation, Retraction and Apology, Damages Claim, Dispute of Fact, Costs Award
Civil Procedure Delict Defamation Retraction and Apology Damages Claim Dispute of Fact Costs Award

Case Brief

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Parties

Sibusiso Mpendulo

Applicant

Groundup

Respondent

Media24

Respondent

Procedural Posture

Urgent Application / Application for Retraction, Apology, and Damages

Legal Issues

  1. 1 Whether the applicant is entitled to an order compelling the respondents to retract and apologise for a published article alleged to be defamatory.
  2. 2 Whether the applicant can pursue retraction and apology relief by way of application while damages claims remain alive and disputed.
  3. 3 Whether the dispute of fact regarding reputational harm precludes relief on the papers.

Ratio Decidendi

The court held that it was precluded from granting the relief sought for retraction and apology because the applicant elected to proceed by way of application, and there remained a live claim for damages with disputed facts regarding reputational harm. The Supreme Court of Appeal authority (NBC Holdings) requires that all compensatory remedies for defamation, including apology and damages, be determined together and only after oral evidence where facts are contested. As the applicant did not withdraw his damages claim and the dispute of fact persisted, the application for retraction and apology could not succeed on the papers. Costs were awarded against the applicant, with consideration...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs on the scale as between party and party, including any reserved costs orders as well as the costs of counsel.
  • This order does not preclude the applicant from instituting action against the respondents for relief based on alleged defamation should he so elect.