Artwork: Philippa Hobbs, *Received By the Tongue*, 1996. This artwork is part of the Images of Human Rights print portfolio, which features artistic representations of each section of the Bill of Rights (this one represents freedom of expression). This print forms part of the Constitutional Court Art Collection and is also sandblasted on this Court's facade, along with the other artworks in this portfolio.

A defamatory post or other publication happens in an instant. It can be screenshotted, shared and reposted like wildfire. The law’s only real answer to that speed is, structurally, one of the slowest things it does – it requires a trial to be run. Social media’s velocity (cheap, yet damaging) meets litigation’s glacial pace (which does not come cheap). Recent case law has dealt with this slowness, but a resolution seems far away, if not unlikely.

Defamation law offers two routes to different remedies. The first is an interdict – an order telling someone to stop saying something defamatory. Courts can grant that on motion: affidavits, no trial, comparatively fast, if you can show a clear right, an actual or reasonably apprehended infringement, and no better alternative. The second is anything that looks backwards rather than forward: damages (a monetary award) for harm already done, a retraction, an apology. That kind of relief is ‘unliquidated’ that has always, as a matter of ordinary civil procedure, needed a trial: pleadings, discovery, oral evidence, cross-examination. Trials take much, much longer: both to get a court date and to run it in court.

For a long time, courts treated that approach as basically settled. Then, in September 2023, a Johannesburg High Court judge, Wilson J, examined a case in Ndlozi v Media 241 in which the split seemed to be causing more harm than it prevented, and decided to adopt a hybrid approach.

Mbuyiseni Ndlozi, at the time a senior EFF leader and MP, was named, on a Daily Sun billboard, under the headline ‘MBUYISENI NDLOZI RAPED ME!’ The story ran on a tip-off from a confidential police source about a rape complaint against him. Ndlozi went to court seeking, in one application: a declaration that three statements were defamatory, an order to pull them down, a printed retraction and apology, and R120,000 in damages, or a referral of the damages question to oral evidence if the exact figure couldn’t be decided on the papers.

That last part is the shortcut. Wilson J called it a ‘hybrid procedure’: decide what can be decided now – was this defamatory, take it down – and send only the genuinely disputed, evidence-heavy part (the money, the apology) off to a later hearing, rather than forcing the whole claim to start over as a fresh trial action. Here, nobody disputed what was published or when; the only live questions were legal ones (was the sting defamatory, was it true, was it for the public benefit), which the judge could decide on the papers without hearing witness testimony. He said:

‘To decide otherwise would impede access to justice and over-complicate legal procedure to no valuable end. I see no reason why, if a case can be fairly decided using the hybrid procedure Dr. Ndlozi engages here, it should not be so decided. I also see no reason in principle why, if a litigant is entitled to final declaratory or interdictory relief in restraint of defamation on the undisputed facts, they should have to await the outcome of a contested trial on their unliquidated damages before they are able to obtain it.’2

Wilson J drew that entitlement from a comment the SCA itself had made two years earlier in EFF v Manuel3 – the Court there hadn’t struck down a similar hybrid approach outright, just commented that its judgment ‘should not be seen as endorsing’ it as general practice.4

Wilson J read that comment as permission for exceptional cases. He was careful about it. He expressly required no foreseeable prejudice, no real dispute of fact underlying the primary claim, and no procedural objection from the other side. On those conditions, he split Ndlozi’s claim: declared two of the three statements defamatory and ordered them removed immediately, and sent the apology and damages to oral evidence (an expedited approach), to be argued later on the existing affidavits standing as pleadings. Two remedies, one application. The judgment endeavoured to better harmonise a mismatch between how fast reputations are wrecked and how slowly the machinery designed to repair them turns.

Blocking the hybrid approach

The SCA has long been sceptical of such a hybrid approach. In a case decided two years before Ndlozi, being NBC Holdings v Akani (2021),5 a pension fund administrator had gone to court on an urgent, hybrid basis after a rival circulated a letter claiming a judge had found ‘strong evidence of corruption’ against it. The High Court granted relief in a form that Wallis JA, on appeal and writing for a unanimous five-judge SCA bench, plainly found troubling. His judgment reads as a warning: a litigant is entitled to ‘a single global remedy’,6 not in ‘a piecemeal fashion, granting some now while leaving open the possibility of further relief being claimed and granted later’.7 Further: ‘A claim for damages for defamation... was always unliquidated,’ he wrote, ‘and the damages could only be determined in proceedings by way of action, or possibly in special circumstances after hearing oral evidence in application proceedings.’8 An apology or a retraction, he held, is compensatory relief in exactly the same sense damages are, and needs exactly the same evidentiary foundation (oral evidence, typically the province of trials).9

NBC Holdings didn’t, however, slam the door on every conceivable hybrid arrangement – which is how Wilson J found room to attempt his own version two years later, on what he took to be materially different, genuinely undisputed facts.

But the SCA, in July 2024, shut that option in IRD Global v The Global Fund.10 The case itself turned on jurisdiction (an international NGO trying to sue a Swiss-based donor body over a report accessed in Johannesburg – the Court found no real connection to South Africa). But in the course of dismissing it, Baartman AJA addressed the retraction-and-apology-on-motion question head-on, and didn’t leave much room for Wilson J’s reading of Manuel: ‘It is now settled law that an apology or a retraction may serve the same purpose as an award of damages... However, that relief requires the institution of an action.’11 And then, explicitly: ‘I therefore respectfully disagree with the court in Ramos and hold that motion proceedings remain unsuited to deal with defamation allegations. A trial is necessary to determine the veracity of the alleged defamatory statements and thereafter an award can be made consisting of an apology, a monetary amount, a retraction or a combination of same.’12

Ramos13 – the 2021 High Court case that had granted a retraction and apology on motion, on the theory that no damages were being claimed – was singled out and disapproved. Wilson J’s Ndlozi judgment wasn’t cited by name, but the reasoning it depended on, that the Manuel concession left room for a considered hybrid approach, didn’t survive either.

Not everyone thought the SCA got this right, for what it’s worth. Dario Milo, a media law partner at Webber Wentzel, who was Manuel’s legal representative in that case, wrote in Daily Maverick in March 2022, calling the SCA’s approach ‘retrogressive’ and arguing the Court had confused two different things: the process of putting evidence before a court, and the process of testing it. His point was that the Plascon-Evans test already gives affidavit proceedings a mechanism for resolving factual disputes – decide on the respondent’s version unless it’s untenable – so there was no need to bar unliquidated defamation relief from motion court altogether. He ended by predicting that plaintiffs would be stuck in this ‘parallel universe’ where even retraction or apology was barred in motion proceedings, until someone took the fight all the way to the Constitutional Court.

Milo states that the Constitutional Court, in 2021, dismissed an appeal in the Manuel case, finding that it was not in the interests of justice ‘at this stage’ to hear the issue of using the motion procedure to obtain damages and apologies. Nobody has been successful in trying again, yet.

Instead, the line just kept on hardening. In Shezi v Sunday Times,14 decided in August 2025, a public-entity CEO tried to interdict corruption reporting and, separately, get a retraction and apology, on motion. Windell J struck the application from the roll for want of urgency on two main grounds. First, applying Manuel, NBC Holdings and IRD Global together as by-then uncontroversial authority: retraction and apology relief is unliquidated, and unliquidated claims go by action, full stop. Second, the interdict failed too, because the reporting was already public and restraining its future republication would have been an impermissible form of prior restraint on a story that had already run. Windell J stated that ‘Declarators of past defamation serve no practical purpose, amount to no more than abstract opinion, and risk being used as a springboard for future claims, giving rise to piecemeal litigation and issue estoppel.’15

The most recent precedent landed in June 2026. In Thembekwayo v Dhlomo16 entrepreneur Vusi Thembekwayo took radio personality Sizwe Dhlomo to court over years of social media posts calling Thembekwayo ‘a punk and a fraud’ who’d allegedly built his career on plagiarised content. Thembekwayo sought a final interdict, a retraction and an apology, on motion. The court dismissed the application on the same two grounds as Shezi. The interdict similarly failed because the posts had been up for years and restraining their future republication would do nothing but censor material already in the public domain.

Principle over practicality

Read the cases in sequence and the precedent set by the SCA is clear. No hybrid procedure. While defamation happens in an instant, the law’s only mechanism for repairing that, if defamation is found to have occurred, now runs at the snail’s pace of a trial: ordinary civil trials were struggling to be heard within half a decade, while more recent figures have put this around 2–5 years. An improvement, but still a very long wait. Stack the correct doctrine on top of the actual state of the court roll, and you get a right without much of a practical remedy attached to it, for anyone who can’t afford years of litigation to get there.

If a defamation damages claim falls below R200,000 and R400,000, respectively, that matter can be brought in the Magistrates’ and Regional Courts, but their waiting times are often even longer than those of the High Court. Most high-profile defamation matters end up in the High Court.

Notwithstanding the precedent, there is a case for something to be done – a dedicated, faster forum for defamation specifically. South Africa already runs something adjacent for the press: a self-regulatory ombud system, complaints resolved in weeks, with real if limited teeth – corrections, published rulings, apologies where warranted. Whether that model could be adapted more broadly to civil cases is doubtful. Milo, cited above, said this would be the position until a ‘brave soul’ challenges this all the way to the highest court. A brave soul with deep pockets and a lot of patient dedication.

About the author

Ndlozi v Media 24 t/a Daily Sun and Others (21/25599) [2023] ZAGPJHC 1040; 2024 (1) SA 215 (GJ); [2024] 1 All SA 392 (GJ) (19 September 2023)

Ndlozi para 34

Economic Freedom Fighters and Others v Manuel (711/2019) [2020] ZASCA 172; [2021] 1 All SA 623 (SCA); 2021 (3) SA 425 (SCA) (17 December 2020)

Ndlozi para 32

NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators (399/2020) [2021] ZASCA 136; [2021] 4 All SA 652 (SCA) (6 October 2021)

NBC Holdings para 19

NBC Holdings para 16

NBC Holdings para 21

IRD Global Limited v The Global Fund to fight AIDS, Tuberculosis and Malaria (504/2023) [2024] ZASCA 109; 2025 (1) SA 117 (SCA) (4 July 2024)

IRD Global Limited para 24

IRD Global Limited para 26

Ramos v Independent Media (Pty) Ltd and Others (01144/21) [2021] ZAGPJHC 60 (28 May 2021)

Shezi v Sunday Times (Arena Group Division) and Another (2025/123276) [2025] ZAGPJHC 834 (27 August 2025)

Shezi para 15

Thembekwayo v Dhlomo (2024/148555) [2026] ZAGPPHC 667 (5 June 2026)

Francois Lion-Cachet

Defamed in a day, only vindicated in years