THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 399/2020

In the matter between:

NBC HOLDINGS (PTY) LTD

APPELLANT
and
AKANI RETIREMENT FUND
ADMINSTRATORS (PTY) LTD

RESPONDENT

Neutral citation: NBC Holdings (Pty) Ltd v Akani Retirement Fund
Administrators (Pty) Ltd (299/2020) 2021 ZASCA 136
(6 October 2021)
Coram:
WALLIS, MAKGOKA, SCHIPPERS, PLASKET and
CARELSE JJA
Heard:
3 September 2021
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down
is deemed to be 09h45 on 6 October 2021
Summary: Defamation – application proceedings – relief directed at
compensating the claimant for harm caused by publication of defamatory
material – such relief, whether damages, an apology or a retraction cannot

be claimed in motion proceedings where there are disputes of fact, but
requires evidence to be led.
Discretion of judge in granting relief in defamation case – factors to be
taken into account
Interpretation of allegedly defamatory material – approach of reasonable
reader – statement that findings had been made in judgment of the
existence of strong evidence of corruption – thrust of defamation lies in the
implication of corruption, not that it was a finding by a judge – respondent
leading evidence of corruption – such evidence relevant to support possible
defences of truth and public interest or privilege – no order can be made in
motion proceedings where respondent produces evidence in support of the
existence of a defence.

ORDER

On appeal from: Gauteng Division, Johannesburg of the High Court
(Sutherland ADJP, as court of first instance):
The application to lead further evidence on appeal is dismissed with
costs, such costs to include the costs of two counsel.
The appeal is upheld with costs, such costs to include the costs of
two counsel.
The order of the high court is set aside and replaced by the following:
'The application is dismissed with costs, such costs to include the costs of
two counsel.'

JUDGMENT

Wallis JA (Makgoka, Schippers, Plasket and Carelse JJA concurring)

[1] The appellant, NBC Holdings (Pty) Ltd (NBC), and the respondent,
Akani Retirement Fund Administrators (Pty) Ltd (Akani), are competitors
in the field of pension fund administration. The present dispute arises out
of an ultimately successful endeavour by Akani to supplant NBC as the
administrator of the Chemical Industries National Provident Fund (the
Fund). The threat of this precipitated an urgent application by certain
trustees, supported by NBC, to interdict the transfer of the Fund's
administration from NBC to Akani. On 27 February 2020 the court ruled
that the status quo should be maintained until 10 March 2020 when the
urgent review proceedings were to be determined. The urgent application
for interim relief was heard on 10 March 2020 and, on 12 March 2020,
Vally J granted an interim interdict restraining the respondents, which

included Akani, from implementing Akani's appointment to provide
administrative, consulting and actuarial services to the Fund.1

[2] The order granted by Vally J was expressly limited in its operation
until 31 July 2020, unless extended by the court. The balance of the order
was directed at securing that the review proceedings would be finally
determined before 31 July 2020. On receipt of the order, NBC addressed a
letter dated 12 March 2020 to the employers in relation to the Fund. They
referred to the urgent case to interdict the termination of NBC's
appointment as fund administrators, consultants and actuaries and said:
‘The court handed down judgment today (12 March 2020), having found strong
evidence of corruption in the matter at hand and that the appointment of Akani was
unlawful.
The interdict remains in force until 31 July 2020 unless extended by the court of its own
accord or upon good cause being shown.’

[3] Shortly after 27 March 2020, and apparently prompted by the
publication of an article in a Lesotho based newspaper, Akani launched
urgent proceedings against NBC and its Lesotho-based subsidiary for
declaratory relief in relation to both the letter and the article.2 As against
NBC it contended that the portion of the letter quoted above was
defamatory and it sought extensive relief aimed at ‘restoring’ Akani’s
reputation. NBC opposed the application saying, in the first instance, that
the passage in the letter was justified by the terms of Vally J’s judgment.
Apart from that, it contended that the letter contained a statement about the
contents of the judgment and was subject to qualified privilege,
alternatively was published on a privileged occasion, alternatively was true

1 There was no official transcript of the judgment and the case proceeded on the basis of what was said
to be a transcript of a recording by counsel on his mobile phone of the judgment as it was being delivered
ex tempore.
2 An order was granted by the high court against the subsidiary, but that is not the subject of this appeal.

and its publication was in the interest of the members of the public to whom
it was directed.

[4] The case was argued and decided by Sutherland ADJP on an urgent
basis on the papers. He granted an extensive order declaring that the
passage quoted above was a material distortion of Vally J's judgment and
was defamatory, wrongful and unlawful. He then granted ancillary relief
in paras 3, 4 and 5 of the order, consisting of:
(a)
an order that NBC publish to every recipient of the previous letter a
statement detailed in the order consisting of three paragraphs, the last one
of which contained seven sub-paragraphs;
(b)
an order that the statement be published within 10 days of the order
and that the Chief Executive Officer of NBC was to depose to an affidavit
that to the best of his knowledge it had been distributed as directed;
(c)
an order that a copy of the statement and the affidavit be filed with
the registrar of the court, uploaded on the Caselines digital platform and
sent to Akani's attorney of record.3

3 Paragraph 3 of the order read as follows:
'The first respondent is ordered to publish to every recipient of the letter of 12 March 2020 the following
statement:
3.1
On 11 May 2020 the Gauteng Local (sic) Division of the High Court of South Africa ordered
us to communicate this statement to you.
3.2
Our letter of 12 March 2020, insofar as it purported to report on the order and judgment of Vally
J (the Vally judgment) in the legal proceedings between Akani Retirement Fund Administrators (Pty)
Ltd (Akani) and NBC concerning the alleged impropriety of Akani's appointment to manage the CIPF
and thereby replace NBC as manager, did not accurately report the meaning and import of the Vally
judgment when it stated that:
"[The Court] [h]aving found strong evidence of corruption in the matter at hand and that the appointment
of Akani was unlawful."
3.3
The respects in which the quoted statement did not accurately or fairly convey the meaning and
import of the Vally judgment were, in particular, that:
3.3.1.
It suggested that a finding of corruption on the part of Akani had been made when there had
been no such final finding, and merely that ostensibly plausible evidence had been tendered that could
support such an allegation;
3.3.2.
It suggested that a finding of unlawful conduct on the part of Akani had been made when there
had been no such finding;
3.3.3. It omitted to fairly contextualise the proceedings which were in respect of an application for an
interim status quo order to keep NBC in office until such time as the allegations of corruption and
unlawful conduct made by NBC were adjudicated in subsequent proceedings;

[5] The present appeal is against that judgment and order with the leave
of the high court. The appeal suspended the operation of the order, so that
no effect was given to the ancillary relief. An application under s 18 of the
Superior Courts Act 10 of 2013 to enforce the order pending the appeal
was refused. In the meantime events moved on. The balance of the original
review proceedings was heard and disposed of by Vally J before 31 July
2020. He dismissed the application and made no finding in favour of NBC
that Akani’s behaviour was corrupt. He suggested that the financial
authorities were better equipped than a court to investigate these issues and
highlighted potential malfeasance on the part of both parties.

Mootness
[6] Arising from this it seemed possible that the high court order had
been overtaken by events. In Akani's heads of argument, counsel said in
regard to the portions of the order summarised in para 4 that:
‘Publishing that correction now would achieve nothing, because Part B has been
determined and the judgment therein speaks for itself. No party will now be concerned
with the Part A interim order or judgment – or any inaccurate characterisations thereof
– in circumstances where Part B has overtaken and discharged the Part A regime.
[7] By reference to this passage in the heads, the court directed the
Registrar to address an enquiry to Akani's attorneys asking whether their
client was undertaking not to seek to enforce paras 3, 4 and 5 of the high
court's order. They confirmed that their client would not seek to enforce

3.3.4.
In proceedings for interim relief a court deals with allegations on affidavit and on the basis
thereof, in this case, Vally J had to decide whether it was appropriate, in the interim, to allow the
arrangements which exist for the management of the CIPF to remain undisturbed and left in the hands of
NBC;
3.3.5.
The decision to grant the interim order in favour of NBC was not a final order and the question
whether or not the allegations that Akani is corrupt or acted unlawfully, are yet to be decided;
3.3.6.
The Vally judgment expressed the view that on the allegations on affidavit presented to the
court there was strong evidence alleged that supported the possibility that Akani was corrupt, and that
were acts of corruption to be proven in later proceedings, the inference could be drawn that Akani had
acted unlawfully in procuring an appointment to manage the CIPF;
3.3.7
A copy of a transcript of the Vally judgment is available and anyone who wants a copy may ask
for it to be sent.'

those paragraphs of the order. As it was possible that the issues in the
appeal were now of such a nature that the decision sought would have no
practical effect or result, we directed that we would first hear argument on
that issue. This was in accordance with the established jurisprudence of
this court under s 16(2)(a)(i) of the Superior Courts Act 10 of 2013. At the
end of the argument we directed that the parties proceed to argue the
remaining issues.

[8] It is unnecessary to traverse the issue of mootness in detail. Counsel
for NBC submitted that the case was not moot because the effect of the
judgment remained that the statement was defamatory of Akani and that
NBC had no defence to a claim based on defamation. There can be no doubt
that this was correct. If the judgment remained in place, it would possibly
provide a foundation for a claim for damages and could, in any event, be
used in the market place to discredit NBC. The submission that NBC was
entitled to clear its name by having the judgment overturned was a
powerful one, which we accepted. The ensuing debate in court also
demonstrated that certain important issues in regard to the conduct of
proceedings based on defamation required the attention of this court.

The issues
[9] It was accepted that the statement that a judge had 'found strong
evidence of corruption in the matter at hand and that the appointment of
Akani was unlawful' was calculated to damage the esteem in which Akani
was held by the recipients of the letter. It was therefore prima facie
defamatory and NBC bore the onus of showing either that it was not
published unlawfully, or that it was not published with the intent to injure
(animo injuriandi). The only further question related to the relief to be
granted to Akani if successful. Historically relief in a defamation action

consisted of an award of damages and possibly an interdict. The damages
were compensation for the loss already caused and the interdict was
directed at preventing further loss in the future. Now that remedies other
than, or in addition to, the payment of damages, such as apologies,
retractions and the publication of corrections, may be given in defamation
cases, the determination of appropriate relief has become a potential
minefield in such cases.4

[10] A good deal of the complexity of this case arose because Akani
sought relief by way of urgent motion proceedings and not by way of
action. In order to do this, it tied its claim for the publication of a retraction
to a vague and general interdict. Furthermore it said that it reserved its right
'to pursue other aspects and relief flowing from NBC's … misconduct at
later date', justifying this on the basis that only urgent matter could be
traversed in these proceedings. This procedural manoeuvring unravelled as
the case proceeded. The judge rightly rejected the claim for an interdict,
thereby exposing the true nature of the proceedings as being for final relief
to remedy the damage that Akani claimed it had suffered as a result of the
publication of the letter. This left lingering in the background the claim to
pursue at a later stage such other remedies as it might deem fit.

[11] The outcome of this was a failure by the parties to address the true
nature of the proceedings and the proper test to be applied to the assessment
of the defences raised by NBC. There was also a failure to appreciate the
proper approach to remedies for defamation because of the attempt to
engage in the piecemeal disposal of litigation, contrary to long-established
procedure. In the result the appeal must succeed for three reasons. First, the

4 Economic Freedom Fighters and Others v Manuel [2021] ZASCA 172; 2021 (3) SA 425 (SCA) paras
128-130 (EFF v Manuel).

dispute was not one that could be disposed of in application proceedings
without the hearing of oral evidence. Second, the confused procedural
approach to the litigation resulted in a misdirection in determining how to
exercise the judicial discretion in regard to remedy. Third, on a proper
appreciation of the nature of the claim for defamation and the defences
raised to it, Akani was not entitled to relief.

Procedural issues
[12] Akani's founding affidavit dealt with the relief being sought under
the heading 'The requirements for an interdict are met'. It claimed that an
award of damages would not be an adequate remedy for the commercial
harm it had suffered by the two offending publications. However, an
interdict was only claimed as a secondary remedy to its primary relief of a
declaration that the statement in the letter:
'… having found strong evidence of corruption in the matter at hand and that the
appointment of Akani was unlawful';
was false and defamatory of Akani. In addition it sought relief directed at
procuring an immediate retraction of those words, by way of a letter of
correction addressed to each of the recipients of the letter.

[13] The claim for an interdict following these prayers was couched in
general terms, namely:
'Interdicting the respondents from making any further statements of a defamatory nature
and effect against the applicant, including but not limited to repeating the statements
made in the NBC letter …'
The ostensible aim was to prevent future publication of the same or
additional defamatory statements. The interdict was directed at preventing
future unlawful conduct and needed to be based on a reasonable

apprehension of future harm.5 Absent a risk of the defamation being
repeated an interdict was unjustified.6 Granting a prohibitory interdict in
respect of conduct that has already occurred is pointless, because the
prohibition relates to the future and cannot undo what is past.7

[14] The only evidence presented by Akani in support of the notion that
there might be further publication of defamatory matter by NBC was a
paragraph in the founding affidavit reading in material part:
'There is every reason to believe that NBC … will continue to disseminate their
defamatory and false statements if their conduct is not interdicted and they are not
required to issue an apology and a retraction.'
There can be little surprise that the response in the answering affidavit, not
refuted in reply, was that NBC had not further distributed the letter and
would have no reason to do so. It is even less surprising that the learned
judge held that the chances of future publication were so slim that no
interdict, final or interim, was warranted.

[15] Once the question of an interdict to restrain future unlawful
publication of defamatory material fell away, the only remaining issue in
regard to remedy was compensation for the harm already done by the
publication of the letter. Such compensation is no longer confined to an
award of damages as was the case in the past. It has been extended by our
courts recognising that an apology, or a publicised retraction of the
defamatory slur, may serve a similar purpose to damages, or may be
ordered in conjunction with an award of damages. Whether individually or

5 Setlogelo v Setlogelo 1914 AD 221 at 227. As to what is a reasonable apprehension of harm see Minister
of Law and Order and Others v Nordien and Others 1987 (2) SA 894 (A) at 896; End Conscription
Campaign and Others v Minister of Defence and Others [1989] 4 All SA 82 (C) at 110.
6 Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd and Others [2017] ZASCA 8; [2017] 2 All SA
347 (SCA), para 36.
7 Philip Morris Inc v Marlboro Shirt Co SA 1991 (2) SA 720 (A) at 735B-C; Tau v Mashaba and Others
[2020] ZASCA 26; 2020 (5) SA 135 (SCA) para 26.

collectively, these are all directed at the same purpose, namely
compensating an injured party for the harm caused by the publication of
defamatory matter.

[16] That means that the high court was confronted with the difficulty
adverted to in EFF v Manuel,8 where this court said:
'In our view, whether an order for an apology should be made is inextricably bound up
with the question of damages.'
The published retraction Akani sought stood on the same footing as the
apology in that case, as would any other remediatory measure. But one
cannot determine what is appropriate compensatory relief in a piecemeal
fashion, granting some now while leaving open the possibility of further
relief being claimed and granted later.

[17] Akani purported to reserve its right to 'pursue other aspects and
relief' against NBC. On the face of it this included a possible future claim
for damages against NBC. The damage it alleged was suffered as a result
of the letter's publication was not distinguished from the damage
occasioned by the publication of the article in Lesotho. A general allegation
was made that it had suffered and would continue to suffer financial loss
in the market place as a result of both publications and would lose market
share and business opportunities. It sought to justify the claim for urgent
relief by alleging that these losses could not be quantified in terms of
definite future profits, so that damages would not be an alternative remedy
to an interdict.

8 Op cit, fn 4, para 130. In fairness to both counsel and the learned judge that judgment had not yet been
delivered when this case was argued in the high court.

[18] These allegations were vigorously denied and it was not suggested
that they could be resolved on the papers. A successful claimant in a
defamation action is entitled to an award of general damages to compensate
for the damage to its reputation. It is also entitled to claim special damages
in the form of financial loss occasioned by the defamatory publication.9
The alleged difficulties facing Akani in proving that it had suffered special
damages as a result of the publication of defamatory matter should not be
overstated. In this type of case the court does the best it can on the material
placed before it. Its assessment of damages will inevitably be no more than
a rough estimate.10 Had a plausible case for an interdict been made the
judge would still have needed to consider whether damages would be a
suitable alternative remedy.

[19] Akani was only entitled to a single global remedy against NBC to
remedy all the harm occasioned to it by the publication of the letter. In
general the law requires a party with a single cause of action to claim in
one and the same action whatever remedies the law accords them upon
such a cause.11 Akani was not entitled to separate its claim for the
publication of a retraction from its claim for a permanent interdict and any
possible claim for damages. This is well illustrated by the two
Constitutional Court cases in which the problem has been considered. In
one12 an apology was ordered as an adjunct to an award of damages. In the
other damages were ordered, but the court declined to order an apology.13

9 Ibid, para 91.
10 Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A) at 573H-I.
11 Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 471H- 472F. Whether the grant
of relief to Akani in these proceedings would debar it from pursuing a claim for damages, in the face of
the 'once for all' rule, was not debated before us. As matters stood in the high court there was a real
possibility of such an action being brought.
12 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as amici
curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC) paras 199, 202 and 203.
13 The Citizen 1978 (Pty) Ltd and Others v McBride [2011] ZACC 11; 2011 (4) SA 191 (CC) para 134.

As pointed out in EFF v Manuel, which of these different remedies should
be granted and in what combination, requires a single exercise of judicial
discretion at the close of the case. For that reason this court held that the
claims for damages and an apology could only be resolved after hearing
oral evidence on damages.14

[20] I can see no basis for distinguishing this case from EFF v Manuel,
so far as these principles are concerned. That would have been so even if
Akani had expressly eschewed any claim for further relief beyond the
published retraction. The relief being claimed would still have been relief
directed at compensating it for harm caused by the publication of the letter
and its defamatory contents.15 It made no difference whether that relief was
couched in monetary terms or was claimed on some other basis. The
purpose it served remained the same. It was to compensate the claimant for
the harm caused by the defamation and the same factors were relevant to
the relief whatever form it took. The facts in regard to that harm were
disputed. How then was the court to determine whether the publication of
a retraction was an appropriate remedy? In order to determine what was
appropriate it had to know what harm had been caused by the publication
and its impact on Akani's reputation.16 It would have been highly relevant
to hear the reaction of the recipients of the letter to its contents. In
consequence of its receipt, did any of them join the parties trying to block
the change in administrator of the Fund? Did the employer trustees adopt
a more cautious, or even a hostile, attitude to Akani's endeavours to
persuade them to move the Fund's administration? We do not know and

14 An application for leave to appeal to the Constitutional Court against this order was dismissed.
15 For present purposes it is assumed that the letter is defamatory of Akani and that NBC had no defence
to the claim for defamation, so that the only issue would be that of remedy.
16 See for example the discussion on what evidence may be led in such cases in Naylor and Another v
Jansen; Jansen v Naylor and Others 2006 (3) SA 546 (SCA) paras 15 and 16.

nor did the judge, because there was no evidence in this regard. Would a
retraction serve any useful point in restoring Akani's reputation, or was its
reputation largely untarnished? These are the questions that needed to be
asked and answered before the grant of relief in this case, but they were
not.

[21] A claim for damages for defamation, whether general or special, was
always unliquidated 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. The position has not
changed as a result of courts now being empowered to grant other
compensatory remedies, either in addition to, or to the exclusion of, a claim
for damages. Relief such as an apology or the publication of a retraction
remains compensatory relief and for that reason requires oral evidence in
the same way as a claim for damages requires oral evidence. That is
inevitably so when the facts concerning the claimant's allegedly damaged
reputation are disputed.

[22]  I fully appreciate that in a trial action the plaintiff may rely solely
on the defamatory nature of the publication and the presumption that
everyone has a reputation that may be harmed by a defamatory utterance
or publication,17 for the assessment of damages. The plaintiff may give no
evidence, relying on the right to lead evidence of rebuttal to refute any
evidence from the defendant directed at diminishing the effect of the
defamatory publication. But, if the defendant then chooses not to give
evidence, the plaintiff loses the opportunity to bolster the damages by
giving evidence of the effect of the defamation on their reputation and

17 Tuch and Others NNO v Myerson and others NNO [2009] ZASCA 132; 2010 (2) SA 462 (SCA) para
17.

standing. Where the proceedings start by way of application the evidence
has already been led. If the matter proceeds on the papers and the damage
to the applicant's reputation has been placed in issue, no relief can be
granted, because there is a dispute of fact on the papers and the rules
governing the resolution of disputes of fact on paper apply. For that reason
it was inappropriate for the high court to grant the order it made in this
case. That is the first ground upon which the appeal must succeed.

Judicial discretion
[23] The determination of the appropriate compensatory relief in a
defamation case is a matter for the discretion of the judge at first instance
and the discretion is a wide one. That proposition requires little citation of
authority.18 However, the nature of the discretion and, if relief were to be
granted, how it fell to be exercised in this case, appears not to have attracted
any attention in argument and consequently in the high court's judgment.
The only paragraphs in the judgment dealing with it read as follows:
'[66] Relief for what has already occurred is appropriate as a clear right has been
violated. The irreparable harm is axiomatic. There is no suitable alternative relief
obtainable in respect of the misrepresentation of the judgment of Vally J and no more
suitable time to say so than now.
[67] In respect of NBC, a letter to correct the misleading letter is the appropriate way
to address the harm the first letter causes. The text need not be grovelling; a bland
correction in the terms set out in the order suffices.'
[24] Several errors occur in these paragraphs. There was nothing
axiomatic about the harm allegedly suffered by Akani. Even assuming that
the letter was defamatory of it, for the reasons canvassed in paragraph 20,
the nature and extent of that harm was indeterminate. There was a clear
dispute of fact on the papers in regard to whether Akani suffered any harm

18 Ibid para 19.

arising out of this letter. Whether it was substantial, or trivial, or virtually
non-existent, could not be decided on these papers.

[25]  Second, and also for reasons canvassed in the previous section of
this judgment, it was by no means clear that there was no alternative relief
available to Akani. One distinct possibility was that they might be
vindicated in the forthcoming review litigation, due to be heard within a
couple of months. Another was whether any retraction was required. If the
harm was exiguous the appropriate remedy might have been the 'damages
of one farthing' with which British juries were wont to condemn successful
plaintiffs in defamation cases, where they regarded the claim as trivial or
otherwise inappropriate.19 These instances are not purely relics of the
Victorian era. In the trial court in the famous case of Reynolds v Times
Newspapers20 that led to Mr Reynolds downfall as Taoiseach (Prime
Minister) of Ireland, the jury dismissed the newspaper's defence, but
awarded nothing by way of damages, an award that the judge altered to one
penny.

[26]  Third, given the proximity of the hearing in the review, far from
'now' being the appropriate time to grant an order, the caution of waiting
should have been considered. The judge accepted that there was no risk of

19 In the famous defamation case between the artist James Whistler and the critic John Ruskin over the
latter's comment in a review of the exhibition of Whistler's Nocturnes - a series of paintings exploring
light – that:
'For Mr. Whistler’s own sake, no less than for the protection of the purchaser, Sir Coutts Lindsay ought
not to have admitted works into the gallery in which the ill-educated conceit of the artist so nearly
approached the aspect of wilful imposture. I have seen, and heard, much of Cockney impudence before
now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the
public’s face.'
Whistler won, but the jury awarded him only a farthing – the smallest coin in circulation – as damages
and he was refused costs. The result bankrupted him. Similarly in the litigation between Cadbury
Brothers Ltd and Others v Standard Newspapers Ltd (unreported) the jury awarded the successful
plaintiffs one farthing over an article suggesting that it was complicit in using slave labour to produce
cocoa in São Tomé and Príncipe.
20 Reynolds v Times Newspapers Ltd and Others [1999] UKHL 45; [2001] 2 AC 127; [1999} 4 All ER
609 (HL).

further publication of the letter. Any harm that it did, had already occurred.
A delay would enable feelings to subside and Akani (and the court) to
assess whether the letter had indeed done any significant damage. The
alleged urgency was based on the need for an interdict to prevent future
publication. Once that disappeared there was no need to deal with this
litigation urgently. Furthermore, granting an order at that point in time ran
the risk that NBC's charges of corruption would be vindicated in the
review. In that event an order to correct a 'misrepresentation' of Vally J's
judgment would have been pointless, especially as it would have been
accompanied by the later judgment vindicating NBC's claims. Lastly under
this head, the issues canvassed were of such a nature that they led to
feelings on both sides running high, so that there was a risk that the high
court's order would be the subject of an appeal, as indeed happened. The
result of granting leave was to stultify the order that the court had just
made. The immediacy the judge perceived in paragraph 66 of his judgment
was removed by his order granting leave to appeal.

[27] None of these considerations were addressed in the judgment. It
appears that the learned judge concluded that merely because he upheld
Akani's claim he was obliged, given the form of the relief Akani sought, to
grant relief in that form, albeit not in the terms they suggested. This resulted
in his granting an order in very different terms. Those terms are set out
above in a footnote, but their very prolixity should have raised a warning
flag that imposing this obligation on NBC might not be appropriate relief.
Consideration should have been given to whether any of the addressees
would bother to read such a technical description of the contents and effect
of Vally J's judgment. And if they were unlikely to do so what was the
point of the remedy? In not considering the matters set out above, the
learned judge misdirected himself in regard to the remedy. It suffices for

me to say that the order he crafted was not as anodyne or bland as he
intended. In view of the misdirection we would have been at large to
reconsider the relief he granted. Had matters turned out differently it would
have been necessary to consider what order should be made, but as the
appeal must succeed in its entirety there is no need to do so.

The merits
[28]  This leads directly to the next problem. Akani elected to proceed by
way of motion and did not ask for the proceedings to be referred to trial or
for the hearing of oral evidence. Where final relief is sought in motion
proceedings the Plascon-Evans rule provides that the case is determined
on the respondent's version of the facts, together with any undisputed facts
forming part of the applicant's version. The only exception to this is where
the respondent's version is so inherently unworthy of belief that it can be
rejected on the papers. The fact that the onus in relation to its defences
rested on NBC did not affect the operation of the Plascon-Evans rule. The
case had to be decided on the evidence advanced by NBC in support of its
defences, together with any undisputed evidence from Akani that bore on
those defences.21

[29] In principle there has never been an objection to pursuing a claim
for an interdict against the future publication of defamatory matter by way
of an urgent application. This court reaffirmed that in EFF v Manuel22 in
saying:
'There is, of course, no problem with persons seeking an interdict, interim or final,
against the publication of defamatory statements proceeding by way of motion

21 Ngqumba en ń Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en
Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259H-263D; President of the
Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA) paras 13 and 14.
22 Op cit, fn 4, para 111.

proceedings, on an urgent basis, if necessary. If they satisfy the threshold requirements
for that kind of order, they would obtain instant, though not necessarily complete,
relief.'
However, the entitlement to proceed in that way is constrained by the fact
that in motion proceedings, where the issue is whether the defendant has a
defence to a claim based on defamation, it cannot be decided on motion if
there is a dispute as to the applicant's right to that relief. As Greenberg J
said:23
'… if the injury which is sought to be restrained is defamation, then he is not entitled to
the intervention of the Court by way of interdict, unless it is clear that the defendant has
no defence.'
In Hix Networking24 the court emphasised that this did not mean that the
mere ipse dixit of the respondent would suffice to establish a defence. It
must be based on evidence.

[30]  A respondent wishing to resist an interdict against the future
publication of defamatory material can do so by presenting evidence that
provides a sustainable foundation for a defence recognised in law.25 This
may be done not only by way of direct evidence, but also by making the
case that at a trial further evidence could be procured and would be
available to sustain the defence. A plausible claim by a respondent that,
with the advantage of discovery and being able to subpoena witnesses and
documents, they will be able at trial to produce evidence to sustain their
defence, will ordinarily suffice to establish the requisite foundation for the
defences raised.26 This is well-illustrated by the recent judgment of this

23 Heilbron v Blignaut 1931 WLD 161 at 168-169.
24 Hix Networking Technologies v System Publishers (Pty) Ltd & another 1997 (1) SA 391 (A).
25 Herbal Zone, op cit, fn 6, para 38.
26 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty Ltd 1949 (3) SA 1155 (T) at 1163.

court in Malema v Rawula 27 where, after analysing the evidence, Schippers
JA concluded that:
'These facts comprise not only direct information placed before the court, but material
showing other information not in his control but potentially available at a trial in due
course, such as the EFF’s financial records and documents relating to receipt of VBS
funds. All these factors must be weighed up in order to decide whether there is a dispute
of fact regarding the existence of a defence.'28

[31] It appears that these principles were not drawn to Sutherland ADJP's
attention, as they were not referred to in his judgment and counsel did not
refer us to them in the heads of argument. The result was that the learned
judge embarked upon a detailed analysis, first of Vally J's judgment to
determine what it had decided, and then of the letter, where his focus fell
upon the words 'having found' as a description of the contents of the
judgment. He concluded that the 'commuter on the Parkhurst bus' would
have concluded that a final judgment had been made by a court in regard
to what followed, namely corruption on the part of Akani and the
unlawfulness of Akani's appointment in place of NBC. This so he held was
a misrepresentation by NBC and defamatory of Akani.

[32] In my view that was not the correct approach. In the first place it
treated the letter as if it stood alone. It did not. It had been preceded by a
letter dated 28 February 2020 written shortly after the review was launched
and its subject was the same, namely the payment of contributions by
employers to the Fund. It read:
'At the end of November 2019 NBC received an email notice from the Chemical
Industry National Provident Fund ('the Fund") purporting to terminate all services
rendered to the Fund by NBC, effective 29 February 2020.

27 Malema v Rawula [2021] ZASCA 88 paras 34 to 64.
28 Ibid para 64.

A number of Fund members, together with the NBC, lodged an urgent review
application with the South Gauteng High Court in Johannesburg on 5 February 2020 in
terms of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") to have
NBC's termination and the appointment of substitute service providers in its place set
aside. PAJA is the legislation which protects the constitutional right of persons to
administrative action that is lawful, reasonable and procedurally fair.
CONTRIBUTIONS DUE ON OR BEFORE 7 MARCH 2020 (FOR THE MONTH
OF FEBRUARY 2020)
The hearing commenced on 26 February 2020, but has not yet completed and it is set
to continue on 10 March 2020. Accordingly, on 27 February 2020, the Court ruled that
the status quo pertaining to Fund service providers is retained until 10 March 2020 or
such time as the urgent PAJA proceedings have been adjudicated upon, that is when
judgment is delivered. In the circumstances, please ensure all contributions to the
Fund for and on behalf of your employees takes place as normal …'

[33]  Although not addressed specifically to the employers to whom the
offending letter was addressed, it appears to have come to their attention
because the later letter commenced by referring to it. The letter of
28 February informed its readers that review proceedings had been
instituted to prevent NBC being removed as administrators of the Fund.
The recipients would presumably have been aware of the intended change
of administrator from NBC to Akani. The notice of termination of NBC's
appointment had been given at the end of November. Employers, who bore
the responsibility of deducting members' contributions from their salaries
and adding their own before remitting payment to the administrator, would
have needed to know that they would have to adjust their systems
accordingly to be ready for the change with effect from 29 February 2020.
Documents in the record indicate that issues over NBC's continued
appointment had been simmering for several months prior to the notice of
termination.

[34] The 28 February letter provides the background to the later letter. It
told its readers that the validity of the termination of NBC's appointment
was disputed and that NBC claimed that it was unlawful. Given the
references to PAJA and the right to administrative action that is lawful,
reasonable and fair, they would have understood that this was not a
contractual dispute arising from the interpretation of the terms of a
contract, but that the source of the alleged unlawfulness lay elsewhere. It
is likely that some, and possibly many, of the readers would have realised
that charges of untoward behaviour by someone was at issue. They would
also have realised that the court might have thought there was some
substance in these charges, as it had stopped the transfer of administration
from NBC to Akani until the urgent proceedings had been adjudicated
upon. In other words there was to be a temporary delay in implementing
the transfer.

[35] The hearing continued on 10 March and Vally J handed down his
judgment on 12 March. Regrettably the only transcript is one produced
from a recording made by counsel attending to note the judgment on behalf
of Akani. It does not appear to have been submitted to Vally J for checking
and it would not have been available to NBC, although presumably they
had someone present to note the judgment and make some record of what
the judge said. The result is that what was presented to the high court has
had headings and paragraph numbering inserted that are not part of the
judgment. Whoever transcribed it also inserted punctuation. The transcript
suffers from a malady, with which the judges of this court are familiar, of
obvious imperfect hearing and transcription of what was said. Be that as it
may the parties accepted it as accurate, notwithstanding its shortcomings.

[36]  Vally J granted an interdict restraining the Fund's trustees from
implementing the appointment of Akani and two other companies that had
played no active part in the litigation from providing administrative,
consulting and actuarial services to the Fund. He granted a further order
that NBC and an associated company were to continue providing those
services until 31 July 2020, unless extended by the court. He had earlier
said that if the Fund was dissatisfied with NBC's performance it was not
possible to draw the inference that its termination had been engineered for
corrupt purposes. Accordingly, these orders were not directed at
overturning the termination of NBC's services. They appear to have been
directed at avoiding a vacuum in the Fund's administration. Even if the
conduct of certain named individuals and Akani was corrupt, that did not,
in his view, allow for a conclusion that the Board of the Fund was
contaminated by that corruption.

[37] The key passage in the judgment reads as follows:
'With that said then, it cannot be, it cannot nevertheless, on the other hand, be said that
the applicants are not entitled to the relief sought. Their case has been that even if the
termination of the contract with NBC is allowed to stand, the applicant, uh, the
appointment of Akani should not be allowed to stand. This is because Akani is engaged,
or is accused of engaging in unlawful conduct, which conduct is a breach of Section 12
of PRECCA.29 In this they are correct.
The evidence that they, that they have brought before the court indicates evidence of an
alleged corrupt relationship between Akani and Messrs Chaane [and] Ginya is very
strong. And Akani and the two individuals will have to do better than what they did in
these papers to show that the applicants are incorrect in their allegation. This is despite
the fact that the allegations presented [are] presently founded on inferential logic. So
strong is the evidence that if no equally strong evidence is forthcoming from them, the
inference may well be drawn. In that case the Fund will be legally bound to have no

29 The Prevention and Combating of Corrupt Activities Act 12 of 2004.

relationship with them, failing which Board members will be acting in breach of their
statutory and common law fiduciary duties. Hence it remains a reasonable prospect that
should it be found that Akani, that the appointment … that the relationship between
Akani and the two individuals is one that is tainted by corruption, then the appointment
of Akani may well be set aside.'(Emphasis added.)

[38] Two further passages are relevant for present purposes. In the one
Vally J said that:
'As I said on the basis of these papers it cannot be said that there is a prospect of the
appointment of Akani being set aside is relatively high. In the circumstances the most
practical and reasonable solution woold be to grant the interdict and to leave NBC, er,30
and to leave the issue of NBC providing the services as it has been doing over the last
few years in place. That will be only until this issue is finalised …'
On the same page of the judgment he added:
'I wish to once again reiterate that [t]his judgment makes no finding that there has been
any untoward conduct on the part of the Fund or on the part of CEPPWAWU. At this
stage, it is mainly the allegations against Messrs Chaane and Ginya and Akani which
leads me to make the following order that I will now make.'

[39] The letter of 12 March that was sent to employers, the Fund, the
trade union and Akani was sent the same day as the judgment was handed
down. It referred to the earlier letter and the urgent application to interdict
the termination of NBC's appointment. It then continued:
'The court handed down judgment today (12 March 2020), having found strong
evidence of corruption in the matter at hand and that the appointment of Akani was
unlawful.
The interdict remains in force until 31 July 2020 unless extended by the court of its own
accord or upon good cause being shown.'

30 This is typed 'err', but that makes no sense. It seems that what was intended was to convey a hesitation.
The Shorter Oxford English Dictionary (6 ed, 2007) gives as the first meaning for 'er': 'interjection Expr
the inarticulate sound made by a speaker who hesitates or is uncertain what to say.'

The letter repeated the earlier letter's admonition that contributions should
continue to be paid to it and that matters would continue as in the past.

[40] The primary purpose of both letters was to secure that there was
administrative continuity while the litigation progressed. Neither was
directed at providing more than a brief update of the litigation. It is
important then to consider Akani's complaint. This is set out in the
following paragraphs of its founding affidavit:
'[35] The NBC letter, however, entirely misrepresented the true position. It refers only
to an urgent case having been brought to secure an interdict, and then states that the
Court found that Akani's appointment was unlawful, on the basis of "strong evidence
of corruption". In so doing, NBC has reported the learned judge's preliminary
observations as if they were final findings of fact made on an assessment of all the
evidence.
[40] … Akani contends that a reader would understand from the NBC letter that:
40.1
A court has weighed up the evidence in the Review application and finally
determined that the appointment of Akani to provide services to the [Fund} was
unlawful.
40.2
A court has reached the aforementioned conclusion, having considered the
allegations of corruption that were relied on by NBC and the members in their papers.
40.33 A Court has found that Akani was itself corrupt or at least party to corruption,
and that this corruption rendered its appointment unlawful.'(Emphasis added.)

[41] The affidavit continued to hammer away at the contention that the
impression given by the letter was that the judgment was a final judgment.
One sees this in the contention that NBC has sought 'to create the
impression … that Akani's appointment … has already been finally
determined to be unlawful' and that this was based on corruption. The sting
of the letter was said to be that Akani 'was corrupt and has been found by
a Court to be corrupt'. It was said 'in short' that Akani had lost a significant

client because it secured its appointment through corruption 'and a Court
has ruled as much'.

[42] These contentions were based upon the faulty premise that the letter
misrepresented the judgment as a final determination of the issues. It did
nothing of the sort. The flaw emerges from the sentence recording that the
interdict would remain in force until 31 July 2020, unless extended by the
court of its own cause or upon good cause being shown. The reasonable
reader31 would readily appreciate that things were therefore not final. The
letter said in plain language that the order would expire on 31 July, unless
extended. The readers knew, because they were told as much in both letters,
that the litigation's purpose was to forestall the termination of NBC's
appointment. If the order were to lapse on 31 July, it was obvious that NBC
would have lost. Any reasonable reader would realise that. Any doubt was
removed by the qualification that the court might of its own volition extend
that date, or might do so if good cause was shown for an extension. The
impetus for that could only come from NBC and the parties supporting it.

[43] None of this involves imputing to the reasonable reader any
knowledge of the subtle distinction between an interim and a final order.
Nor does it involve a pedantic parsing of the relevant sentence, something
in which both sides engaged in the affidavits, with resort to subtle
consideration of the differences between adverbial phrases of time, place,
manner and reason, concepts of misplaced modifiers and other linguistic
analysis more suited to the classroom than an affidavit. I mean no
disrespect to either deponent when I say that these debates were

31 The reasonable reader is a legal construct by which the potentially defamatory nature of a publication
is determined. It is an objective standard and evidence of what any particular reader understood it to
mean is inadmissible. EFF v Manuel, op cit, fn 4, para 30. Whether the reasonable reader corresponds to
the person 'on the Parktown bus' as suggested by the judge, I cannot say.

inappropriate in affidavits and had the appearance of an attempt by the
lawyers who drafted them to smuggle argument into what should be limited
to evidence. The debate as to whether the expression 'strong evidence'
qualified both corruption and the unlawfulness of Akani's appointment was
neither here nor there. Sutherland ADJP rightly said that the reasonable
reader would not worry about such niceties, but would think that there was
serious evidence of corruption and this meant that Akani's appointment was
unlawful.32 After all it was the appointment that was the source of the
dispute between the parties.

[44]   Once it is accepted that the letter did not convey that the court had
made a final and conclusive judgment about anything, the basis for holding
it to be a misrepresentation of Vally J's judgment fell away. The judge had
made preliminary observations, as Akani said in the passage quoted earlier
in paragraph 40. Those observations were clear. Based on the evidence
before him and the absence of any adequate response thereto, there was
strong evidence of corruption. This involved Akani and two employees of
NBC who had been responsible for the Fund and suddenly left their
employment and commenced working for an entity connected to Akani.
The judge said that if corruption was established the appointment of Akani
might well be set aside. That could only be because the appointment of
Akani to replace NBC was unlawful because it was tainted by corruption.

[45] No case was made that if the letter referred to proceedings that had
not been finalised, a claim for defamation could succeed. On the principles

32 In the replying affidavit it was said on behalf of Akani that a reader who knew of the basis for the
review would understand the allegations of strong evidence of corruption and Akani's appointment as
unlawful as being linked and that Akani was guilty of corruption. The reader without that knowledge
would also link the corruption to Akani. The central concern was linkage between the evidence of
corruption and Akani.

outlined earlier in paragraphs 28 to 30 NBC had clearly produced evidence
that might sustain at least one of the three defences it raised specifically.
Accordingly Akani's claim for final relief on the papers had to fail.

[46] On any reading of the letter the heart of the defamation was the
statement that there was strong evidence of corruption. The addition that a
judge had made such a finding would strengthen the reasonable reader's
understanding that the evidence of corruption was strong, but it would not
alter the essential thrust of the defamation, namely that Akani was a party
to corruption. NBC produced some evidence that there had been a corrupt
relationship between Akani and the two individuals formerly employed by
NBC. It seems to me that this evidence was properly relevant to the
defences of truth and public interest and privilege. I leave aside the defence
that this was an accurate report of legal proceedings, because it is by no
means clear to me that a passing statement in a letter about the contents of
a judgment falls within the notion of a report of legal proceedings.

[47]   Akani's counsel sought to avoid this conclusion by contending that
actual corruption was irrelevant to Akani's claim. He argued that the basis
of the claim lay in the statement that a court had found that Akani was
corrupt. He submitted that the stress of the defamation lay on the court's
finding, not the corruption itself. Therefore, if the description of the court's
finding was incorrect, it mattered not whether Akani was in fact corrupt.
The complaint was that the letter had communicated findings by Vally J
that he had not in fact made at that time. The distinction strikes me as
tenuous and artificial. The defamation lay in the content of the alleged
finding, not the fact that it had been made by a judge. Any statement to the
effect that Akani acted corruptly would be defamatory, irrespective of
whether its force was bolstered by saying that a judge had held that there

was strong evidence of the corruption. The fact that a judge was said to
have made such a finding might serve to add weight and credibility to the
essential charge of corruption, but it cannot alter the fact that the imputation
of corruption lay at the heart of the defamation. In both the founding and
replying affidavits it was the imputation of corruption that lay at the heart
of Akani's case.

[48] Proof that Akani had engaged in corrupt activities was therefore
central to the defences that NBC wished to raise. It was also central to other
issues such as the nature and extent of any defamation, the extent of the
harm suffered by Akani and the nature of any relief to which it was entitled.
Even on the basis of the artificial distinction that Akani sought to draw in
argument, a factual finding that Akani had acted corruptly would affect the
final determination of the case. A misrepresentation that Vally J had made
a finding of the existence of strong evidence of corruption would pale into
insignificance against actual proof of corruption. One is reminded of the
line from Shakespeare's King Lear33 that 'Where the greater malady is
fixed, the lesser is scarce felt'.

[49] In summary reasonable readers would not read the offending letter
as relating to a final judgment by a court, but would understand that it
related to something said by a judge in the course of ongoing and yet to be
finalised litigation. They would view the thrust of the sentence in question
as saying that there was strong evidence of corruption on Akani's part in
relation to it securing its appointment as administrator by the Fund in place
of NBC. The unlawfulness of that appointment would flow from the
corruption. Proof of actual corruption in that process would, on that reading

33 William Shakespeare King Lear Act 3, Scene 4, line 10.

of the letter be supportive, if not necessarily decisive, of NBC's defences
to the claim based on defamation. On its own that meant that Akani's claim
could not succeed and, as it chose to proceed on application and not request
a reference to trial or oral evidence, it should have been dismissed. Even
on its own case as to the meaning of the letter, and its focus on the finding
by the court, as opposed to the issue of corruption, that would not assist
Akani as proof of corruption would still be relevant to NBC's defences and
to the court's appreciation of the nature of the harm occasioned by the
defamation; the extent of the damage to Akani's reputation and the
determination of the appropriate remedy. For those reasons, on this ground
also, the application should not have succeeded.

Result
[50] Before concluding I need to deal with an extensive application by
NBC to lead further evidence on appeal. The purpose of the application
was to strengthen the evidential basis for its contentions that the
relationship between Akani and the two former employees of NBC was
corrupt. I do not think the additional evidence tendered by way of this
application satisfied the tests for admitting further evidence on appeal. In
the light of the proper approach to the determination of the application the
additional evidence could not affect the outcome of the appeal. NBC's
defence rested on whether it had laid an evidential basis for saying that it
had proper grounds to resist Akani's claim. If it had then there was no need
for the additional evidence. If it had not it could not remedy that deficiency
at the appellate stage. The application must be dismissed.

[51] In the result the following order is made:

The application to lead further evidence on appeal is dismissed with
costs, such costs to include those consequent upon the employment of two
counsel.
The appeal succeeds with costs, such costs to include those
consequent upon the employment of two counsel.
The order of the high court is set aside and replaced by the following:
'The application is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.'

_________________
M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
C E Watt-Pringle SC (with him K S McLean)
Instructed by:
Shepstone & Wylie, Johannesburg
McIntyre Van der Post, Bloemfontein

For respondent:
J P V McNally SC (with him B L Manetsa)
Instructed by:
Webber Wentzel, Johannesburg
Symington De Kok, Bloemfontein.
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
FROM The Registrar, Supreme Court of Appeal
DATE 6 October 2021
STATUS Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.
NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators (Pty) Ltd
(299/2020) 2021 ZASCA 136.
This appeal arose out of review proceedings in the Gauteng Division of the
High Court, Johannesburg. The proceedings were directed at challenging the
removal of the appellant, NBC Holdings, from its position as administrator of
the Chemical Industries National Provident Fund, and its replacement by the
respondent, Akani Retirement Fund Administrators. The review was brought
as a matter of urgency and on 12 March 2020 an order was granted staying
the transfer and preserving the status quo pending the final determination of
the review. The order provided for the further conduct of the review with a
view to it being disposed of by 31 July 2020.
After this order had been granted, NBC wrote to employers associated with
the Provident Fund saying that:
'The court handed down judgment today (12 March 2020), having found strong
evidence of corruption in the matter at hand and that the appointment of Akani was
unlawful.
The interdict remains in force until 31 July 2020 unless extended by the court of its
own accord or upon good cause being shown.’

Akani brought urgent application proceedings seeking an order compelling NBC to
publish a retraction of this portion of the letter on the grounds that it did not
accurately reflect the judgment leading up to the interim order and was defamatory of
Akani. The case was heard on the papers as a matter of urgency and an order was
made providing for NBC to write a retraction to the recipients of the previous letter.
The terms of the retraction were set out in considerable detail in the order and
involved an explanation that the order had been made in preliminary proceedings
and was not a final determination of the issues. In particular, it had not held that
Akani was corrupt or that its acquisition of the administration contract was unlawful.
The SCA upheld the appeal today and set aside the high court's order on three
grounds. First it held that there was a factual dispute in the affidavits over the
existence of defences to the claim and the extent of the damage to Akani's
reputation. This dispute debarred the grant of relief without hearing oral evidence.
Second, the court held that there was a misdirection in the approach adopted in the
high court to its discretion in regard to the grant of relief. Third, it held that the
statement in the letter did not convey that a final order had been made and because
facts were advanced in support of defences available to NBC and Akani had not
asked for oral evidence to be led, the application had to fail.