PROCEEDINGS ARE INAPPROPRIATE 19. The applicant is mindful of the risk in proceeding byway of motion. She refers to the case of Malema v Rawula 4 in her heads of argument. In that case Mullins AJ stated the following, which is also quoted in the applicant’s heads of argument - “As far as I have been able to ascertain, bringing a defamation claim by way of application fora final interdict and damages is anew phenomenon in our law (as opposed to an interim interdict pending an action for damages). In my view, it is inappropriate and undesirable. The reason Iii say this is the following The person making the defamatory statement may have a very good reason for doing so, but may not have the hard evidence to hand, which evidence maybe in possession of the person who claims to have been defamed and/or third parties in an action a defendant will have the benefit of pleadings in which the issues are narrowly defined, of the discovery process, of requesting particulars for trial, of a pretrial conference and the subpoenaing of witnesses and documents duces tecum; he/she will be entitled to cross-examine the plaintiff and the witnesses called on behalf of the plaintiff in order to test their version and to give evidence and call his/her own witnesses evidence of an expert nature might be necessary. An application deprived the respondent of all these extremely valuable and necessary
- 7 - litigation tools (our underlining) 20. This case is on all fours with the Malema-case. The respondent is deprived of subpoenaing witnesses having the benefit of cross-examining the applicant and having an opportunity to prove the truth of the statement made. 21. We submit that the applicant should have foreseen this and on this basis the application ought to be dismissed with costs. 22. The applicant contends that Mullins AJ’s above judgment in Malema is on appeal and is clearly wrong. 23. The applicant has ignored the SCA authority cited therein, namely Herbal Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and Others where Wallis JA stated the following - “ The contentions in regard to onus or proof were also contrary to established authority, to which for some reason we were not referred. This court dealt with the proper approach of a court to an application for an interdict to restraint the publication of defamatory matter in Hix Networking . 6 There it approved, with some clarification, the following passages from the judgment of Greenberg J in Heilbron v Blignaut : 7 ‘If an injury which would give rise to a claim in law is apprehended, then I think it 4 Unreported judgment under case number 1204/2019 in the Eastern Cape, Port Elizabeth Division. 5  2 All SA 347 (SCA) at DA) SA 391 (A. 7 1931 WLD 167 at 169.
- 8 - is clear law that the person against whom the injury is about to be committed is not compelled to wait for the damage and sue afterwards for compensation, but can move the court to prevent any damage being done to him. Ashe approaches the court on motion, his facts must be clear, and if there is a dispute as to whether what is about to be done is actionable, it cannot be decided on motion. Thus if the defendant sets up that he can prove truth and public benefit, the court is not entitled to disregard his statement on oath to that effect, because, if the statement were true, it would be a defence, and the basis of the claim for an interdict is that an actionable wrong, i.e. conduct from which there is no defence in law, is about to be committed. ’  The clarification was to point out that Greenberg J did not hold that the mere ipse dixit of the respondent would suffice to prevent a court from granting an interdict. What is required is that a sustainable foundation be laid byway of evidence that a defence such as truth and public interest or fair comment is available to be pursued by the respondent. It is not sufficient simply to state that at the trial the respondent will prove that the statements were true and made in the public interest, or some other defence to a claim for defamation, without providing a factual basis therefor. ” (my underlining) 24. We submit further that an application fora final interdict must allege and establish on a balance of probabilities that he/she has no alternative remedy. In Chapman’s Peak Hotel (Pty) Ltd and Another v Jab and Annalene Restaurants CC ta O’Hagans. 8 The test for an alternative remedy was expressed thus - “It must be borne in mind in this regard that the alternative remedy postulated in this context must
- 9 - (a) be adequate in the circumstances (b) be ordinary and reasonable (c) be a legal remedy and (d) grant similar protection 25. This case was also referred to by Mullins AJ. The learned judge also stated that defamation actions have traditionally been brought byway of action, although interim interdicts pending an action for damages, while rare, have been granted, but are limited to preventing a respondent from making defamatory statements in the future. 26. What the applicant seeks in this case is relief that would ordinarily follow byway of action, i.e. damages and an order declaring the statements to be defamatory. 27. It is within this context that the defences raised by the respondent ought to be regarded. 28. We only include the respondent’s defences insofar as the MEC states that this Court must find that the statements or questions put in the post are defamatory and that they have the sting for which the MEC contends (which is denied.