Case Explained: Durban court upholds Mkhwanazi’s victory – Legal Perspective

The Durban High Court has once again dismissed an application by Durban businessman Calvin Mojalefa Mathibeli, who was seeking leave to appeal a ruling that compelled him to retract statements he made against KwaZulu-Natal Police Commissioner, Lieutenant General Nhlanhla Mkhwanazi.

Judge Sanele Hlatshwayo rejected the appeal on Tuesday afternoon, stating he was unconvinced that a different court would overturn his original decision.

In February, Judge Hlatshwayo had interdicted Mathibeli from making further allegations against Mkhwanazi and ordered him to retract his statements, which were published across social media, radio, and television.

The interdict followed an urgent application by Mkhwanazi, who argued that Mathibeli’s claims —that the commissioner was corrupt and had issued instructions to kill people — were damaging his reputation and that of the SAPS.

Mathibeli’s lawyer, Advocate Riley Nigel, argued for leave to appeal to the Supreme Court of Appeal, calling the February retraction order nonsensical pending the full defamation and damages trial. 

Nigel contended that a retraction, which he likened to an apology, was an issue for the trial, stating: “It makes no sense for my client to go on radio and television to apologise.”

He also noted his client was given only 24 hours to comply.

Judge Hlatshwayo pushed back on the nonsensical description, clarifying that he never said Mathibeli must apologise, but rather a withdrawal of the statements.

“It just means that you take back what you said.”

Advocate Muzi Sikhakhane SC, representing Mkhwanazi, urged the court to dismiss the appeal, arguing that interim orders are typically not appealable and agreeing with the judge that retraction does not equate to an apology. 

He asserted that Mathibeli suffered no harm from the order, stating: “Mathibeli published false defamatory statements against Mkhwanazi; it’s not right to insult someone… Mathibeli will suffer no harm withdrawing the insults and putting his statements back if they are facts.”

Sikhakhane pointedly added that Mathibeli has “no entitlement to insult somebody, it’s not even in the Constitution”.

Sikhakhane SC criticised the appeal, asking what was so difficult about deleting something.

“We are forced to come back to Durban to argue a point that does not exist because someone does not want to be stopped from insulting.”

He added that granting leave to appeal would make a mockery of the February order.

Co-representative for Mkhwanazi, Advocate Kgaogelo Maponya, criticised Mathibeli for abusing the court process.

“The only inference that the court can draw from Mathibeli’s affidavit is that he is a wealthy man and he wants to kick this can down the road,” Maponya said. 

Mkhwanazi welcomed the judgment, calling it a valuable lesson for loose-tongued individuals who recklessly defame others with no proof.

“This victory is for law-abiding South Africans who denounce criminality… Anyone can be challenged, but defaming a person should not be part of the debate. The law is for us all, and everyone has constitutional rights, which must be respected at all times.”

[email protected]