The Gauteng Division of the High Court of South Africa, Johannesburg in Mbiza and Another v Timati considered a contempt of court application that was instituted by Mr Mbiza, a spiritual guide and founder of the Revelation Spiritual Home ("the church"), and by the church against Mr Timati, a former member of the church.
This application followed an order that was granted in the urgent court on 21 June 2023 in terms of which Mr Timati was interdicted from inter alia disseminating directly and indirectly injurious falsehoods about Mr Mbiza and the church pending the outcome of Part B of the application (which concerned final interdictory relief against Mr Timati). Mr Mbiza and the church contended that Mr Timati is in contempt of the urgent court order as a result of certain offending statements that were posted by Mr Timati on Facebook, in contravention of the court order.
Points in limine
The High Court first determined the points in limine that were raised by Mr Timati, one of which included an alleged non-compliance with the provisions of the Electronic Communications and Transactions Act, 2002 ("ECTA"). This challenge related to the admissibility of screenshots that were annexed to the founding affidavit. These screenshots allegedly reflected offending posts made by Mr Timati, in defiance of the 21 June 2023 order.
The High Court decided this point as follows:
- Section 1 of ECTA defines a 'data message' as being "data generated, sent, received or stored by electronic means and include - (a) voice, where the voice is used in an automated transaction; and (b) a stored record".
- Section 15 provides that:
"(1), 'In any legal proceedings, the rules of evidence must not be applied to as to deny the admissibility of a data message in evidence-(a) on the mere grounds that it is constituted by a data message; or (b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
(2) Information in the form of a data message must be given due evidential weight.
(3) In assessing the evidential weight of a data message, regard must be had to-(a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other relevant factor.
(4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such data message, certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organisation or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract."
- Based on these provisions, the High Court held that the screenshots were admissible and that due evidential weight should be given to them. It reasoned that the screenshots are of Mr Timati's Facebook account; he is the author of the comments and the posts which appear thereon; and a confirmatory affidavit from an employee of the church who monitors social media in accordance with section 15(4) was provided. The High Court further found that in these circumstances, the screenshots was the best evidence that Mr Mbiza and the church could reasonably have been expected to obtain. Mr Timati's challenge was therefore rejected.
The posts
The alleged offending posts in question were as follows:
- First post: On 12 July 2023, Mr Timati posted various comments in response to a video posted by a certain Pastor Mboro on his Facebook page on 2 July 2023. According to Mr Mbiza and the church, this video contained numerous false and malicious allegations against Mr Mbiza and the church which included allegations that people from the church wanted to kill Pastor Mboro. Mr Timati posted that he believed these allegations and that Mr Mbiza had a strong back up; and people close to him are his hitmen.
- Second post: On 13 July 2023, Mr Timati posted the following on Facebook "I will post the voice note that contains the comments of the Upper House members when I had a private meeting with your leader at a certain place. Arrogance (followed by three vomiting emoji's). If they want my apology they must apologize to me first or pour poison for me to die". Mr Mbiza and the church contended that the reference to the Upper House refers to a group of elders within the church and the three emojis imply that Mr Mbiza and the church are ugly and repulsive.
- Third post: On 17 July 2023, Mr Timati posted the first page of the notice of motion in the urgent application and a comment which, when translated, reads as follows "There is something I need to say. I have been through situations but I'm slippery and can't get caught".
- Fourth post: On 30 August 2023, Mr Timati posted a comment on Facebook which, when translated, reads as follows "Who own travel agency that book buses for travelling in your church take a guess it's the brother –in – law of Mborofeta who is Bishop the guy whose allowed to do business. The cleaning money and it's a shame you don't know". This post elicited various responses. One of these responses was a comment which read "obsession over The Revelation spiritual home institution and leader IMboni is reaching higher height".
High Court's findings
The requirements for civil contempt of court are as follows: (a) an order must exist; (b) it must be duly served on or brought to the notice of the respondent; (c) there must be a non-compliance with the order; (d) the non-compliance must be willful and mala fide.
Once the applicant proved the existence and service of the order and its non-compliance, the respondent bears an evidential burden to present evidence in relation to willfulness and mala fides, which casts reasonable doubt on whether his non-compliance with the order was willful and mala fide.
Mr Timati admitted to the existence and his knowledge of the urgent court order. However, he disputed that he made wrongful or defamatory publications about Mr Mbiza and the church, thus disputing the non-compliance with the urgent court order. He also disputed that his conduct was willful or mala fide. It is these disputed issues that had to be determined by the High Court.
Were Mr Timati's posts and comments wrongful and/or defamatory (non-compliance with the order)
The High Court found that:
- Mr Timati's comments refer to Mr Mbiza and the church in such a way that they are readily identifiable, although they are not referred to by name. The court thus held that the comments made by Mr Timati are defamatory as they meet the threshold laid down in Le Roux v Dey, namely that they are "(a) wrongful and (b) intentional (c) publication of (d) a defamatory statement (3) concerning [Mr Mbiza and the church]".
- The second post was not defamatory. The court held that the word 'arrogance' and the three sick emoji's are open to interpretation, and it was not persuaded by the interpretation that this post meant that Mr Mbiza and the church are ugly and repulsive. Additionally, although the people who knew the church may understand the reference to the "upper House" to mean the structures of the church, this interpretation will not necessarily be made by an objective person reading the post.
- The third post was also not defamatory. However, it illustrates mala fide on the part of Mr Timati and the willingness to disregard the urgent court order. It thus disrespects the court and the rule of law and evidences an intention of continuing with his course of conduct.
- The fourth post was defamatory since the comments under the post indicate that Mr Timati's post was about Mr Mbiza and the church although they are not directly referenced. The responses also illustrate that Mr Timati's post incited others in making defamatory remarks about Mr Mbiza and the church.
The High Court held that it was incumbent on Mr Timati to put up facts that illustrated a valid defence or at the very least gave context to his statements. However, he elected not to do so. In reaching this conclusion, the High Court considered the following:
- Mr Timati disputed that the statements were defamatory in bald and unsubstantiated terms;
- He contended that the statements he made were true and constituted fair comment. The onus was on Mr Timati to establish that the facts on which his comments were based are true or constitute fair comment. He simply did not put up primary facts supporting such conclusions, nor made out any such case in his papers. Therefore, such defence lacked merit.
- Mr Timati also contended, in broad terms, that his right to freedom of speech was impeded. Again, no facts were put up in support of such bald and unsubstantiated conclusion and he did not make out any case that his right to freedom of expression has been curtailed.
- Mr Timati's contention that oral evidence was required as a result of 'the multiple disputes of fact' also lacked merit. On the material issues, Mr Timati's bald denials can be rejected on the papers and do not raise bona fide disputes of fact.
The High Court thus concluded that the comments and posts made by Mr Timati were wrongful and defamatory, save as qualified elsewhere in the judgment.
Did Mr Timati cast reasonable doubt on whether his non-compliance with the order was willful and mala fide?
The High Court held that Mr Timati failed to discharge the evidentiary burden to cast reasonable doubt on whether his non-compliance with the urgent court order was wilful and mala fide. He did not put up cogent evidence on these issues, other than a bald denial. It follows that he is in contempt of the court order, applying the standard of proof beyond a reasonable doubt.
Conclusion
The High Court concluded that Mr Timati was in contempt of the urgent court order. He was committed to prison for a period of 30 days. Such imprisonment was suspended on certain conditions, including that he complies with the urgent court order pending the finalisation of Part B of the interdict application.
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