Freddie Nyathela of the South African Roadies Association, who has been accused of unrelentingly attacking and publicly slandering the National Arts Council of South Africa and management on social media platforms, will not go to jail at this stage.
The Gauteng High Court, Johannesburg, earlier ordered Nyathela’s incarceration for 60 days, as it was said that he had contravened an order which interdicted him from slandering the arts council on social media and other platforms.
The arts council, in an urgent application, asked for his imprisonment, as it said he continued with his social media campaign.
However, Nyathela has now filed an application for leave to appeal the order that committed him to prison for contempt of the previous court order. This placed the order committing him to jail on ice pending the appeal.
He wants to appeal the matter either before the Supreme Court of Appeal or before a full bench (three judges) of the high court.
In his application for leave to appeal, he stated that he has good prospects of success on appeal. Nyathela has stated several points in his application in which he argued that the acting judge who ordered his imprisonment had erred.
The Gauteng High Court, Johannesburg, found that there was no excuse for Nyathela’s continued posting on social media, with the gist of the posts claiming that the National Arts Council is corrupt.
The Council has been engaged in a legal battle with Nyathela and the South African Roadies Association for many years regarding his social media postings. It earlier instituted legal action against Nyathela for wrongly and unfairly attacking and slandering it, its chairperson, members of council, management, and staff publicly on various platforms.
In September 2018, the National Arts Council won a court case against Nyathela which interdicted him and the South African Roadies Association from publishing defamatory statements concerning the entity. However, it said he has forged ahead despite the ruling.
Nyathela has over the years vigorously fought all the applications against him, and he also tried to appeal some of the orders. Nyathela also argued that the National Arts Council of South Africa has failed to make out a case against him for contempt of court.
He said the postings on social media on which the applicant is relying to hold him in contempt are “totally different from the previous events” which were the subject matter of the previous applications.
He said his recent social media postings regarding the National Arts Council of South Africa are neither defamatory of the applicant (on the basis that the applicant as an organ of state cannot sue for defamation) nor unlawful, as they represent the exercise of his right to free expression.
These arguments advanced by him earlier also formed part of his reasons to appeal his incarceration. He said that the initial order granted in 2018 was only for him to remove certain statements which formed the subject matter of that application. It did not bar him from further expressing his views regarding the arts council, to which he has a right, he said.
Thus, Nyathela said, he is not in contempt of court and the judge erred in committing him to prison.
“The court erred in declaring that the statements that formed the subject matter of the initial application and those that form the subject matter of the instant application are the same. No case was made out for such a finding…” he said.
He added that the court erred in law to direct the Registrar of the Gauteng Division to issue a warrant of arrest, “when the Registrar in law does not have the authority to issue a warrant of arrest.”
No date has meanwhile been set for the leave to appeal application.