KwaZulu-Natal top cop Lt-Gen Nhlanhla Mkhwanazi has launched an urgent High Court application in Durban seeking to halt what he describes as a sustained campaign of defamatory statements against him by businessman Calvin Mathibeli.
In papers filed in the KwaZulu-Natal High Court, Mkhwanazi asks the court to declare that a series of statements published on social media, online platforms and broadcast media by Mathibeli are “false and defamatory”.
He further seeks an order interdicting Mathibeli from repeating or disseminating allegations that he is “a criminal or corrupt”, that he “abuses police authority”, that he is “captured by private interests”, or that he “issues instructions to kill persons in unlawful killings”.
The application also calls for Mathibeli to “remove, delete and retract all defamatory publications” within 24 hours. Where the statements were allegedly made in television or radio interviews, Mkhwanazi wants the court to compel Mathibeli to publicly retract them on the same platforms.
However, Mathibeli ‘s legal team on Thursday raised issue with not having been furnished with the founding affidavit.
Sources close to the matter said they only received Mkhwanazi’s founding affidavit after raising the matter with his lawyers.
According to one source familiar with the exchanges, there were tense interactions between the parties’ legal representatives before the affidavit was ultimately provided.
The source alleged that the omission of the affidavit from the initial filing created uncertainty for the respondent’s lawyers about the case they were required to answer.
Mkhwanazi’s legal representatives have not publicly commented on the circumstances surrounding the service of the documents. Insiders say Mathibeli’s lawyers insisted on receiving the affidavit to enable them to prepare and file a responding affidavit within the court’s timelines.
A court application served without a founding affidavit can be challenged before it even begins, according to legal experts.
“There is no proper application until the founding affidavit is filed,” said one legal expert familiar with civil procedure. “The notice of motion on its own is just a shell. The affidavit is where the claim actually lives.”
This means a respondent served only with a notice of motion is entitled to object immediately. They may notify the court that the papers are incomplete or procedurally irregular and challenge the matter before answering any allegations.
Approached for a copy of the founding affidavit, Mkhwanazi’s legal team from Saney Mbatha & Associates said they had no instruction from him to share the key document. “It would be improper for me to do so. I confirm that we have launched an urgent application. Pleadings are now a public document; please request the same from the court.”
Mkhwanazi has asked that the issue of damages be determined separately or referred to trial at a later stage.
The matter has been enrolled on an urgent basis, with the applicant asking the court to dispense with the ordinary forms and time periods provided for in the rules.
