It was second time unlucky for a man who tried to gag a couple from allegedly badmouthing him on social media following claims from the couple that he is paying their drug-addict daughter for sex – money they said she then uses to fuel her drug habit.
The Gauteng High Court, Johannesburg earlier this year refused to confirm an interim gagging order the man, only identified as MMS in court papers, sought. He claimed the couple’s persistent publication of defamatory material and “falsehoods” regarding him constituted harassment.
According to MMS, he was nothing more than their daughter’s mentor, and while he was trying to help her, the parents targeted him.
Judge Stuart Wilson in February refused to issue a final gagging order as he found that while the statements made by the couple were on the face of it defamatory, they may have a legitimate concern regarding their daughter.
He also found that it was impossible on only papers before court to determine who was actually speaking the truth.
MMS, unhappy with the finding, now returned to court in a bid to appeal the February order.
The respondents, HK and VG, still maintain that MMS paid their daughter for sex and that MMS’s money had been used to sustain her illicit drug habit. This, they said, is in circumstances where the daughter was in long-term treatment for a chronic and likely incurable form of cancer.
The respondents said that they made their allegations public in order to induce MMS to break off his relationship with the daughter.
In this application for leave to appeal, it was argued on behalf of MMS that another court may rule in his favour. It was suggested that as the court found the posts were on the face of it defamatory, a final gagging order should have followed.
The respondents, on the other hand, maintained the truth of their publications.
Judge Wilson said he cannot see on what basis the court could determine MMS’ entitlement to interdictory relief without being able to make final factual findings about whether what the respondents said about MMS was true or not.
“The disputes on the papers precluded me from doing so,” he said.
But, the judge added, MMS is now free to seek relief by way of trial action (where the parties will testify in court). He commented that it would be equally impossible for a judge on appeal to determine the matter simply on court papers in light of the disputed facts.
While the publications may be defamatory on the face of it, it could be that the parents are publishing true facts about a man who had paid the daughter for sex in a manner that funded her drug habit.
It could also be that the publications were intended to induce MMS to leave the daughter alone. The only way to establish the truth was for the applicant to refer the matter for trial, if he so wished, the court said in turning down the application for leave to appeal.
