An interdict granted three years ago ordering a Port Shepstone businessman to remove a prominent billboard - claiming the government “hijacked” his property in a “land grab” - has been set aside.

In his ruling, Durban high court judge Mahendra Chetty said the interim interdict, which was final in effect, should never have been granted in the first place because of entrenched law that the government and state organs cannot be “defamed”.

“The common thread in case law is that the state should not use courts as a means to muzzle or stifle the right of freedom of its citizens to criticise government, no matter how harsh it may be perceived to be,” he said.

The ministers of police and public works and Stats SA sought the order in May 2017 against Silvermoon Investments 145 CC, trading as Ocean Echo Properties, and its owner Sean Naidoo.

This was after Naidoo erected a large signboard on his Marburg property, in view of the busy N2, stating: “SA government’s first land grab in the new South Africa! This property has been hijacked by the department of public works for the SAPS”.

The department had a lease agreement with Silvermoon for SAPS and Stats SA.

But a legal skirmish has been ongoing, with Silvermoon claiming it is owed as much as R20m in outstanding rental arrears. On several occasions it attempted to “lock out” the two departments.

The department says it has not paid the rental because the Special Investigation Unit (SIU) had reported R37m had been overpaid and this had to be off-set against any unpaid rentals.

In April 2017, Naidoo wrote to the state attorney, threatening to install the 6m-by-3m billboard on his property.

“One of you stole my rent - and between you [the department] and Stats SA, you can decide who the guilty party is,” he said.

The billboard went up the same day.

The department and the ministers complained to the local municipality. But when an official visited Naidoo, he reportedly chased him away.

In his papers before court, Naidoo said he had applied for municipal approval, but it emerged that he had stated that it was a “for sale” sign and it was never granted.

The state entities then launched an urgent court application, citing defamation and saying the billboard would result in a “serious erosion of public confidence” in them.

Judge Mokgere Masipa granted the interim order and Naidoo took it down. The issue of whether the interdict should be made final was argued before Judge Chetty late last year.

Naidoo said the sign was true and fair, although he conceded it did have a “ring of sensationalism”.

But judge Chetty, in his recent ruling, said while the defence’s arguments “were thin”, he did not have to make any finding on them because he agreed with the point raised by Naidoo’s legal team, advocates Pops Aboobaker and Satch Morgan, that state entities cannot be defamed.

He also agreed with their submissions that only the municipality could apply to a court for an interdict in the event of a breach of municipal bylaws.

Silvermoon has obtained an eviction order against SAPS and StatsSA, but discussions are ongoing and the rent dispute remains unresolved.