The executive mayor of the City of Ekurhuleni has obtained an urgent interdict against self described journalist Modibe Modiba, from badmouthing him on social media following the publication of several statements accusing the mayor of, among others, dishonesty.

Mayor Doctor Xhakaza turned to the Gauteng High Court, Johannesburg, to gag Modiba from making statements regarding him and to have the statements declared defamatory. He further demanded R500,000 in compensation from Modiba.

Xhakaza cited suspended City chief information officer Moloko Monyepao as the second respondent in the application based on Xhakaza’s belief that he was behind the defamatory statements.

Monyepao, who was placed on precautionary suspension due to allegations of mismanagement against him, denied that he was behind the posts. In light of the potential dispute of fact, Xhakaza did not proceed with his application against Monyepao.

In his application against Modiba, Xhakaza asked Judge Leonie Windell to declare the allegations made on X and other social media platforms, as false and defamatory. These relate specifically to allegations that he is responsible for the death of the employees of the City of Ekurhuleni, that he  is threatening employees of the City and that he lied during a radio interview about the details regarding Monyepao’s suspension.

Xhakaza told the court that as a result of these publications, he has been subjected to threats, his ability to govern effectively has been undermined, and his standing in the community has been compromised. 

He argued that the harm is ongoing, as the statements continue to circulate, and Modiba has shown no intention of retracting or refraining from repeating them. This, in spite of a formal demand to do so. 

There is also a compelling public interest that the reputation of the City’s Mayor should be clarified without delay, he said.

Judge Windell said there is no doubt that the statements by Modiba are defamatory and portray Xhakaza in a bad light. She noted that Modiba, in his answer to this application, did not meaningfully engage with the established defences to defamation. He did not plead truth and public benefit, did not deny wrongfulness, and he did not advance a case for fair comment. “His answering papers are notable for their lack of substantive defence,” the judge said.

Counsel for Modiba invoked freedom of expression and contended that the publications were made in his capacity as a journalist in the public interest, adding that he could not at this stage be compelled to disclose his sources. 

But the judge said the defences are not sustainable and that Modiba did not prove that his statements were true, nor that they were substantially in the public benefit. The defence of fair comment is also unavailable because the statements were presented as fact, not opinion, and in any event were not based on true facts, the judge said.

She added that the persistence of Modiba in repeating and defending the statements demonstrates malice. Modiba was ordered to remove and delete the impugned statements from X and any other social media platforms under his control within 48 hours of service of this order.

He is also interdicted from publishing further statements of a similar nature. The application for damages to be paid was postponed as it was not an issue which could be resolved during urgent court proceedings. 

zelda.venter@inl.co.za

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