We are all aware of the serious legal consequences of defamatory posts on social media, but as discussed in my article on defamation and the elements that need to be proven, it is an intricate area of law and there is a constant weighing of individual rights by the courts.
This case is an excellent example of social media content that might at the outset be seen as immediately defamatory – the allegation of rape without a conviction. However, this case gives us insight into 1) how the court considers the rights of each party involved, 2) the urgency of matters like this and 3) whether actual damage or harm has occurred or will occur.
During 2016, June Dolley-Major posted on Facebook that Melvin Booysen raped her in Makhanda in 2002 – 18 years prior. At the time of the Facebook post, both parties were Anglican priests and Dolley-Major alleged that the reason she went to social media was because the state declined to prosecute her case.
In March 2021, Dolley-Major posted a similar post on Facebook which gained considerable traction and prompted Booysen to take action.
In the social media posts, Dolley-Major included photos of Booysen and his full name.
Booysen brought an application to the Western Cape High Court for an urgent interdict against Dolley-Major to remove the allegations as he deemed it defamatory in nature, untruthful and intended to harm his reputation, good name and standing in the community. He also claimed that Dolley-Major incited third parties to re-publish the defamatory statement (the videos posted have been viewed by over 18 000 people).
On 25 March 2021, Acting-Judge Hockey issued a rule nisi on the following terms:
- interdicting Dolley-Major from ‘directly or indirectly posting any information whatsoever regarding the application on any and all social media platforms’
- ordering Dolley-Major to change her Facebook account and her Facebook page dedicated to this matter to block posts or comments containing the words “Melvin Booysen” as well as blocking this on any other social media account used by her
On the return date of the interim order on 30 August 2021, Judge Baartman held that Booysen was aware of the posts since 2016 and ‘it appears as if the earlier posts had no effect on his reputation and his ability to do his work’. The fact that Booysen withheld information relevant to the urgency of his matter and the application, was grounds for dismissal of the application on that basis alone.
The court further held that Booysen has a right to have his dignity and good reputation protected, but he had known for years that his reputation was being tarnished. The irreparable harm that he claimed, was non-existent as the community had been talking about the matter for years and this had no effect on his reputation.
Furthermore, Dolley-Major had effectively created a platform to educate and support victims. The posts had moved on from Dolley-Major’s initial identification of Booysen as a rapist to reporting on the 18-year progress on the matter. Ultimately Judge Baartman found that the horse had already bolted.
Booysen’s attorney argued that Dolley-Major should in her posts state that she “alleges” that Booysen raped her instead of stating that he did rape her. In respect hereof, the Judge held:
“It is an astounding proposition that the alleged rapist should have editorial rights over his alleged victim’s narrative…The applicant is merely seeking to exert dominance over the respondent in light of the progress in the complaint against him…The balance of convenience also does not favour the applicant. More harm will be caused to the respondent and the 8 000 who have either shared their experiences or have been encouraged to speak out and seek help in respect of their own abuse…Considering the rape culture in South Africa, and in the circumstances of this matter, where he has already been identified in 2016, the order sought is untenable.”
It was held by the court that this case was different to the facts in the EFF v Manuel matter as it was not a case where the applicant would continue to suffer reputation harm. The appropriate relief Booysen should apply for was a defamation action where a court would determine if the posts were indeed defamatory. In this respect, Booysen had a satisfactory alternative remedy, and he had not shown a well-grounded apprehension of irreparable harm. Lastly, the court held that Dolley-Major had shown a defence against the claim for defamation.
The Judge found that Booysen had not been truthful and had not made a compelling case that he’d suffered reputational damage. She refused to interdict Dolley-Major and dismissed the application with costs.
It is important that each defamation matter be consider on its own set of facts. A defamation matter is never a clear-cut court case, and you should consider your legal routes carefully before proceeding. If you are the victim of defamation or are being accused of defamation, contact us for assistance.
 Economic Freedom Fighters and others v Manual 2021 (3) SA 425 (SCA)
 Tau v Mashaba 2020 (5) SA 135 (SCA)