The legal consequences of posting certain content on social media websites has landed many individuals in hot water in recent years. Indeed, whilst many rely on the constitutional right to freedom of expression in such circumstances, this right is not absolute and is subject to certain limitations including prohibitions against hate speech, defamation, incitement of violence or other statements which intrude upon another person's privacy or human dignity.
In South Africa, ex parte applications (namely an application without first giving notice to the opposite side) often play an important role in seeking relief urgently – thereby circumventing the right to be heard. Importantly, a court will only grant a final order in ex parte applications if it is of the opinion that the application will not affect the rights of other persons. However, if the rights of others are likely to be impacted, the court will at best for the applicant and upon being satisfied that there is good reason for not first giving notice to the opposite party (for example, because if notice is given, the other party may frustrate the fulfilment of any order being requested) issue a 'rule nisi' calling upon the named respondents and any other interested parties to show cause on a specified future date why the order should not be made final. A rule nisi is typically granted together with some form of interim relief (such as an interim interdict) which operates pending the return date.
The South African Supreme Court of Appeal's ('SCA') in Francois Jurie Nicolaas Harman v Pieter Hendrik Strydom examined whether the granting of relief sought in the ex parte application brought before the court a quo had appropriately denied an individual's right to be heard.
Background facts
Mr Strydom ran a legal practice in Pretoria. His clients included the Land and Agricultural Development Bank of South Africa ('the Land Bank') and its financial agent, Unigro Financial Services (Pty) Ltd ('Unigro'). The Land Bank and Unigro advanced loans to farmers, subject to certain terms and conditions, which included mortgaging their farms as collateral. If a farmer defaulted under the loan agreement, the Land Bank would instruct Mr Strydom's law firm to institute legal proceedings to recover the debt. In this case, Mr Harman fell into arrears on his loan. Consequently, he and his company Redlex 321 (Pty) Ltd, which had stood surety for the loan, were sued for the outstanding balance of the loan. Redlex – unable to repay this debt – was placed under final liquidation, whereafter the Land Bank obtained judgment against Mr Harman on 15 May 2020 for ZAR3 038 624.46 plus interest.
Following this judgment, Mr Harman posted on his Facebook account that Mr Strydom and other officials in the Land Bank had acted unethically and impartially. This post garnered much attention and resulted in several other Facebook user profiles commenting and directing hateful statements at Mr Strydom. As a result, Mr Strydom obtained a protection order on 29 June 2022 in the form of an interim interdict which prohibited Mr Harman, pending its return date of 1 August 2022, from "committing verbal abuse through electronic communication of and concerning Mr Strydom; refraining from contacting Mr Strydom directly and indirectly; as well as refraining from committing psychological harassment or abusing him".
The following day, Mr Strydom's office attempted to serve this protection order on Mr Harman. However, they were refused access to his house. Instead, Mr Harman took photos of them, which he later posted on Facebook together with a statement denouncing the business practices of Mr Strydom and the Land Bank/Unigro. He further alleged that Mr Strydom "enjoys chasing the farmers from their farms with his mafia so that they can live like squatters with children or friends". This post once again attracted numerous defamatory comments from other Facebook user profiles – many of which hurled racist insults and threats against Mr Strydom's life.
On 1 July 2022, Mr Strydom lodged an urgent ex parte application in the High Court against Mr Harman. The presiding judge found that Mr Harman had published offensive and life-threatening defamatory statements concerning Mr Strydom and accordingly ordered him to remove this material from the public domain in all forms (paragraph 2). Mr Harman was further ordered, under paragraphs 3 and 4 of the order, to submit a list of the particulars of the other Facebook user profiles who had commented defamatory statements under his posts. Paragraphs 3 and 4 were interim orders granted in the form of a rule nisi with a return date of 4 August 2022. This return date was later extended to 13 March 2023 whereupon the Deputy Judge President confirmed the interim orders.
The matter before the SCA
When this matter proceeded on appeal to the SCA, Mr Harman contended that the orders granted by the High Court in Mr Strydom's urgent application operated as final interdicts in effect. Accordingly, his right to be heard had been violated as well as section 34 of the Constitution.
The SCA disagreed and held that Mr Harman could have protected his rights in a variety of manners. Firstly, Mr Harman could have delivered an application for leave to appeal which he failed to do. Secondly, the SCA noted that when an urgent court grants relief in an ex parte application, any person whose rights are affected by such an order may apply for its reconsideration in terms of Rule 6(12)(c) of the Uniform Rules of Court. Thirdly, Mr Harman could have lodged an application for recission of the judgment in terms of Rule 42 of the Uniform Rules of Court.
The SCA further disagreed that Mr Strydom's urgent application constituted an abuse of the court's process and resources. The SCA held that Mr Harman's conduct had triggered these proceedings as he had acted in contempt of the protection order by posting further defamatory statements concerning Mr Strydom on Facebook. The SCA accordingly rejected Mr Harman's argument regarding the violation of his right to be heard.
The SCA thereafter addressed Mr Harman's second argument in terms of which he contended that paragraphs 3 and 4 of the High Court's order were overbroad and incapable of compliance. Mr Harman argued that he did not possess the details of these other Facebook user profiles, and furthermore, he was not entitled to divulge such information due to the Protection of Personal Information Act 4 of 2013 ('POPIA'), read with section 14 of the Constitution. The SCA rejected this second argument outright and noted that Mr Harman had failed to inform the court of any attempts made to compile this list or adequately explain why he could not comply with this court order. The SCA further noted that neither section 14 of the Constitution, nor any provision of POPIA, offers protection to a person who posts defamatory material concerning another person on a social media platform.
The SCA held that the right to freedom of expression has limits which includes circumstances when its exercise intrudes into the domain of another person's rights. On the facts of this case, the SCA held that Mr Harman's Facebook posts encroached upon Mr Strydom's right to personal safety from harm and loss of life, as well as his rights to dignity and his reputation as a business professional. The SCA accordingly dismissed the appeal with costs, including the costs of two counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
