South Africa's Economic Freedom Fighters (EFF) lost a defamation matter last week, against the country's former Minister of Finance – Trevor Manuel. The EFF had released a statement which essentially accused Manuel of "conducting a nepotistic, corrupt and clandestine process in the appointment of Mr Kieswetter as the Commissioner of the South African Revenue Service (SARS)."
The statement was posted on the EFF’s Twitter account and it went on to be retweeted over 200 times. The EFF’s Julius Malema also posted the statement on his Twitter account.
The EFF’s defences and reaction to the Johannesburg High Court’s judgment reminded me of my two young kids. It happens often that one teases the other and refuses to apologise, resulting in a cacophonous shouting match . This is where I have to intervene. After an enquiry, one of them usually ends up in the naughty corner. This is typically followed by a stubborn refusal to apologise, which is quickly reconsidered, when he or she realises that crucial cartoon watching time is being lost.
How to guarantee that you lose your defamation case
So, having read the Court’s judgment, I’m confounded at how the EFF thought it could successfully defend the merits of Manuel’s court application and how it hopes to succeed in its contemplated appeal (one of the bases of its contemplated appeal is that Manuel’s matter should never have been heard on a semi-urgent basis). If you have a chance to, read the judgment: it is well written and easy to follow.
It reads like a Defamation Law 101 course, especially the module titled: How to guarantee that you lose your defamation case.
The EFF raised a number of (standard) defences to Manuel’s defamation claim. The reality is that the EFF fared dismally on each of them and dismissing them was, in my view, as easy as taking candy from a baby. Their defences were:
- Truth and the public interest: As the judgment says, a complete defence to a defamation claim is that the statement is true and in the public interest. The meaning of the words must be substantially true in order for the defence to succeed. The “sting” of the charge that Mr Manuel is corrupt and nepotistic must be proved by the [EFF]. The EFF claimed that they had been given information on Manuel from a confidential source. Other than this, they could put up no facts to support the claims they made against him. The Court essentially found that there was no truth in the EFF’s statements, which speedily disposed of this defence.
- Reasonable publication: The EFF claimed that they were acting as a whistle-blower, and had received information from a confidential source. This is a defence that is available to the media to rebut the unlawfulness of the publication of defamatory material. The Court said that in considering this defence, what will be important is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information. This defence did not fly because, amongst others, the EFF did not take steps to verify the information they had received and did not allow Mr Manuel an opportunity to respond to the allegations before they published them.
- Fair comment: Fair comment is essentially expressing an opinion on a matter, provided that the opinion is based on true facts. The EFF argued that its defence was one of fair comment. This defence crashed and burned because it failed to show that any of the facts on which it based its allegations, were true.
- Public interest: The EFF claimed that its statements were made in the public interest. The Court gave short shrift to this defence, essentially saying that there must be truth that accompanies statements that are made in the public interest. Statements made in the public interest, but which lack truth, cannot be used as a defence.
All the EFF’s defences failed because there was no truth whatsoever in them and in any event, they failed to make any attempts to verify the truth of the information before the statements were published.
Having found that the statements lacked any truth, the Court decided to make a number of orders in Manuel’s favour, including one of damages. In assessing what compensation to award Manuel, the Court took note of the EFF’s and its representatives’ behaviour. The Court said that Malema’s and Mbuyiseni Ndlozi’s (the EFF’s national spokesperson) conduct had been egregious and hurtful.
The Court also considered the EFF’s, Malema’s and Ndlozi’s motive and conduct. It said that they had stubbornly refused to retract, apologise or remove the impugned statement from their social media platforms, when it is evident that they should do so. These factors collectively establish the existence of actual malice and a desire to hurt Manuel in his person, and professionally, through the widespread dissemination of the defamatory statement. Such conduct warrants a punitive costs order.
The Court therefore awarded damages of R500,000.00 together with other orders including that an apology be issued and that the statements be removed within 24 hours, from the EFF’s and Malema’s Twitter accounts.
The EFF, Malema and Ndlozi will be appealing the judgment. I think that, while they sit in the naughty corner awaiting the appeal, they should seriously consider the wisdom of such an appeal. In my view, they risk the possibility of the appeal Court increasing the damages award that was given. This will definitely be a little more painful than missing out on cartoon watching time!
You can find the judgment here.