High court gives Eastern Cape doctor suing EFF manager for defamation an expensive law lesson

Eastern Cape medical doctor Sizwe Mxenge may be good at recommending medicine for his patients, but it seems he could not prescribe justice for himself.

He might have to revisit his legal war chest for something stronger.

Mxenge sued EFF communications manager Sixolise Gcilishe in the high court in Makhanda for claiming that he “possibly infected” his patients. Comments posted by Gcilishe on Facebook got Mxenge hot under the collar.

According to the judgment, Mxenge found out about Gcilishe’s posts on May 22 while he was “in hospital fighting for his life, suffering from the effects of Covid 19”.

“On April 30 2020 at 4.17, the defendant [Gcilishe] wrote several posts on her Facebook account. Among other things she wrote: ‘I hear of Dr Sizwe Mxenge’s arrogance and contemptuousness after he possibly infected his patients at his surgery. My aunt may have fallen victim. Those who know him must warn him to tread carefully and be easy on commentary, or rather shut up because his disclaim will piss me off and won’t end well for him. I still want us to deal with the incapable Eastern Cape Government first, but if he wants war I may be available to come.’”

“The complainant[Mxenge] alleges the defendant [Gcilishe] further stated: ‘Also tell that Doctor Mxenge that it’s very slutty of him to try to shift the blame on any of his patients. He is the one we know went to attend a funeral in KwaZulu-Natal or something. He must shut up. We are the last hope for all our people.’”

Mxenge told the court  he regarded the “publication” as defamatory “since it had the effect of tarnishing his good name and reputation, which he has built over years, in the medical profession.

The Facebook post, he said, has received wide coverage because of its accessibility to many people, include his family, peers in the medical profession and patients. He said his  patients are his source of income.

The judgment said Mxenge, through his lawyers,  wrote to Gcilishe on May 22 to demand\ a retraction.

“The posts you had written are defamatory, hurtful, cruel, devoid of any truth and were made to injure our client and his good name as a medical practitioner. We have been instructed, as we hereby do, to direct you to remove the posts within two hours of this communication reaching you and that you make a public apology on the same platform, Facebook, within the same period of two hours, failing which our client would be forced to approach the high court for an interdict against yourself with costs,”  Mxenge’s lawyers wrote to Gcilishe.

At 9.31pm that night, Gcilishe issued a three word apology: “Sizwe Mxenge, Sorry.”

She removed the post from her Facebook profile the following day.

This did not cure Mxenge’s anger.

He “further wrote another letter to [Gcilishe] giving her another notice of intention to institute legal proceedings, despite the compliance with the first letter of demand”.

“In this second letter of demand he described the defendant's [Gcilishe] apology to be lacking in detail and said it was not a persuasive apology. The apology further does not refer to him as Dr Sizwe Mxenge, as he is commonly known, but reads ‘Sizwe Mxenge'," the judgment reads.

Mxenge demanded that Gcilishe publish an “unconditional apology” on Facebook and in the Daily Dispatch newspaper.

He supplied the wording: “From on or about April 30 2020 and at 4.17pm, I published a post on my Facebook account which alleged that Dr  Sizwe Mxenge is arrogant and contemptuous as he had possibly infected his patients at his surgery, including my aunt, which I don’t have proof of. I do not know if Dr Sizwe Mxenge has infected any of his patients, and in particular I do not know if Dr Sizwe Mxenge has infected my late aunt as this has not been proved to be true by any credible body. It was wrong and silly of me to publish such allegations or to make the kind of references I have made about him personally.

“I unconditionally withdraw these allegations and I apologise for making these kinds of false, unfounded and malicious allegations. I am sorry for the pain and discomfort  I have placed Dr Sizwe Mxenge under.”

In addition to the apology, Mxenge demanded R250,000 in damages. If Gcilishe failed to comply, he warned that he would haul her before the high court. Gcilishe challenged the lawsuit and insisted that she removed the post and had apologised to Mxenge.

The doctor wanted the court to interdict Gcilishe from any “further defamatory statements” about himself.

The court had to consider if the matter was urgent.

However, Mxenge “conceded during the hearing of this matter that he failed to disclose in his papers that the defendant [Gcilishe] complied with the letter of demand by removing the statement posted on her Facebook profile”.

This month, the court struck the matter off the roll and slapped Mxenge with the legal bill.

“The statement was posted on Facebook on 30 April 2020, which is a month ago. The statement was removed from Facebook after the apology was made. In my view there is less likelihood the statement can be repeated again after the deletion and apology,” the judgment reads.

“The complainant [Mxenge] has already indicated he is suing for damages. This court is of the view that the matter is not urgent. The post in was deleted and the defendant [Gcilishe] gave an apology apparently not acceptable to the complaint [Mxenge], who has no facts that render this matter urgent.”