Written by Roy Bregman, admitted attorney with over 51 years’ experience in South African civil litigation and social media law.

Introduction: Understanding the Limits of Online Free Speech

South Africa’s Constitution strongly protects the right to freedom of expression, but this right is subject to essential legal limits, especially when one person’s online statements threaten or harm another’s rights. In the digital age, courts have become increasingly active in policing the boundaries between free expression and unlawful conduct. The Supreme Court of Appeal (SCA) decision in Francois Jurie Nicolaas Harman v Pieter Hendrik Strydom [2025] ZASCA 108 is now a leading authority on what South Africans can and cannot say online, and what remedies are available to those targeted by harmful posts.

Legal Principles: Free Speech, Defamation & Online Harm

South Africa’s Approach to Social Media Law

• Section 16 of the Constitution gives everyone the right to freedom of expression, but excludes protections for hate speech, incitement to violence, and unfair discrimination.
• Defamation law prevents individuals from making statements that unjustifiably injure another’s reputation.
• POPIA (Protection of Personal Information Act) governs privacy and personal information but does not allow people to abuse privacy laws to shield themselves when spreading defamatory or life-threatening content.

The Role of Urgent Applications and Interim Relief

Courts can issue interim protection orders—sometimes without advance notice to the alleged wrongdoer (ex parte)—to prevent immediate harm. However, final orders can only be made after the affected party is given a chance to respond, fulfilling the constitutional audi alteram partem (fair hearing) rule.

Case Law: Facts, Proceedings, and Supreme Court of Appeal Decision

The Background: A Debt Dispute Turns to Online Vilification

Mr Harman, after defaulting on a multimillion-rand loan and suffering liquidation, became embroiled in legal proceedings led by attorney Mr Strydom. Upset at these actions, Harman posted accusations on Facebook, alleging unethical conduct by Strydom and Land Bank officials. The posts sparked a flood of abusive, life-threatening, and defamatory comments from Harman’s followers.

Escalation: Protection Order and Further Disregard

Strydom obtained a protection order barring Harman from further online harassment. When served, Harman escalated by posting photos of police and court officials on Facebook and denouncing Strydom, which in turn led to more hostile comments from his followers that threatened violence and included racist insults[1].

High Court Intervention: Swift and Protective Measures

Given the escalating online attacks, Strydom applied ex parte (urgently and without prior notice) for:

• Immediate removal of all defamatory and threatening social media content.
• Identification and disclosure of the people involved in posting threatening comments. The High Court granted interim relief (a rule nisi) and set return dates for Harman to respond, ultimately making these orders final after hearing full argument.

Issues on Appeal: Was the Process Fair and Lawful?

Harman challenged the orders, arguing:

• His constitutional right to be heard (section 34) was breached.
• The POPIA and his privacy rights prevented him from disclosing information on other Facebook users.

Supreme Court of Appeal’s Analysis and Ruling

Right to Be Heard: Was Audi Violated?

The SCA found that Harman’s right to be heard was fully respected:

• Interim relief via ex parte order is constitutionally permitted, especially if there is risk of evidence being destroyed or harm being suffered if notice is given in advance.
• Harman was given ample opportunity to respond (including the ability to file an answering affidavit and argue against final relief at a later date).
• Procedural avenues like appeals, reconsideration (Rule 6(12)(c)), and rescission (Rule 42) were available; Harman failed to properly use these remedies.

Privacy, POPIA, and Disclosure of Other Users

The SCA rejected Harman’s invocation of POPIA and privacy:

• There is no protection for identity information of individuals who themselves commit or aid in the commission of harmful online acts.
• Disclosing the identities of individuals involved in defamatory, threatening, or unlawful online activities is justified to allow victims to pursue legal remedies and protect their rights.

Real-World Limits on Freedom of Expression

It was emphatically held that freedom of expression ends where it infringes another’s right to safety, dignity, and reputation. Harman’s posts and the conduct they encouraged were not constitutionally protected and caused real harm to Strydom.

Judgment

The SCA dismissed the appeal with costs (including costs of two counsel), reasserting the courts’ willingness to order immediate removal of dangerous posts and revelation of offenders, and confirming judicial protection against online hate, harassment, and defamation.

Conclusion: The Significance of Harman v Strydom

The Harman v Strydom decision is now a landmark authority confirming that South African law takes online threats and defamation seriously. Every person using social media:

• Must respect the limits on freedom of expression—harmful, life-threatening, or reputationally damaging digital conduct can and will be met with swift legal action.
• Victims are empowered to seek urgent court protection, removal of content, and identification of those involved.
• The protection of privacy and personal information under POPIA does not extend to those enabling unlawful acts online.