Malusi Gigaba tries to block ex-wife's 'explosive claims' on Showmax with an interdict
A media law expert weighs in on the case...
Malusi Gigaba, co-chairperson of Parliament's Standing Committee on Defence during debate in the National Assembly on 15 May, 2025. Picture: Phando Jikelo/Parliament
John Maytham (standing in for CapeTalk's Lester Kiewit) speaks to media law expert, Emma Sadleir Berkowitz.
Listen below:
There's a legal battle between former Cabinet Minister Malusi Gigaba and streaming platform Showmax, over an episode of the Untied docuseries that's said to feature "explosive claims" from Gigaba's ex-wife, Nomachule Mngoma.
Gigaba is seeking to block the broadcast, citing reputational damage and the impact on his children, since Mngoma reportedly opens up about Gigaba's alleged affairs, addiction to pornography, and the use of taxpayers' money displayed during their marriage.
Sadleir Berkowitz shares professional insight into the legal rights of public figures, the obligations of broadcasters, and how South African courts weigh up personal privacy against the public’s right to know.
"What we're seeing in the age of social media and in the last decade, is the courts moving away from being prepared to grant pre-publication interdicts... by pre-publication interdict, you feel like someone is going to write a story about you or broadcast something about you on radio or television which is going to irreparably harm a constitutional right - whether that might be dignity or safety. In this case, it's a subsect of dignity which is reputation... if you can show that you have this clear right and you can show demonstrable harm, then there are circumstances where you can go and get it."
- Emma Sadleir Berkowitz, Media Law Expert
"But the problem with the age of social media is that, invariably, by the time these things land up in the court room, the allegations are well and truly out there, because everybody has this voice. So, what happens is when people think they're going to be interdicted, they often try to quickly get the allegations out there, they go online and put it out there... and in circumstances where the content is already in the public domain, the courts will not grant an interdict because they will only grant an interdict if it's going to have an effect."
- Emma Sadleir Berkowitz, Media Law Expert
"... that's the rule of all courts. They're not going to hand down an order unless it's going to be implemented. To hand down a pre-publication order when that content is already out there is a bit like closing the door after the horse has bolted. It's very unusual that these interdicts are granted, and I don't think it will succeed in this case."
- Emma Sadleir Berkowitz, Media Law Expert
"If you're going to write an article or broadcast a show which contains defamation of a person, you have to give that subject an opportunity to response to the allegations and include the nub of that response. My understanding in this case, is that Malusi Gigaba was given the right to reply, the allegations were put to him that were going to be included in the show, and he said that he wouldn't answer the allegations unless he was given the opportunity to watch the interview with his ex-wife and then be able to reply..."
- Emma Sadleir Berkowitz, Media Law Expert
"The courts have held time and again, and that's not going to change, that you don't have the right to watch the show before it's broadcast. As long as the negative allegations were put to you and the responses are included, then you certainly don't have to show them the show."
- Emma Sadleir Berkowitz, Media Law Expert
"It wasn't like they just published the story and were going to have a one-sided affair. They offered the opportunity to Malusi Gigaba to respond to those allegations, and instead of responding he's brought this interdict application."
- Emma Sadleir Berkowitz, Media Law Expert
"We're dealing with a public figure... we're dealing with someone who has access to government funds. Part of the allegations was that he organised with the Hawks to arrest his wife and that arrest was later found to be unlawful... it's very important to remember that the rules are different when we're dealing with a public figure. When we're dealing with a member of the public, we are a bit stricter about what we publish... but the tallest trees must endure the most wind, we know that."
- Emma Sadleir Berkowitz, Media Law Expert
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