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[2019] ZAGPJHC 157
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Manuel v Economic Freedom Fighters and Others (13349/2019) [2019] ZAGPJHC 157; [2019] 3 All SA 584 (GJ); 2019 (5) SA 210 (GJ) (30 May 2019)
Links to summary
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13349/2019
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
30
MAY 2019
In
the matter between:
TREVOR
ANDREW
MANUEL
Applicant
and
ECONOMIC
FREEDOM
FIGHTERS
First
Respondent
MBUYISENI
QUINTIN
NDLOZI
Second
Respondent
JULIUS
SELLO
MALEMA
Third
Respondent
JUDGMENT
MATOJANE
J
Introduction
[1]
This is a semi-urgent application for final interdictory relief
against the respondents relating to the publication of an alleged
defamatory statement. The publication occurred in the form of a
'tweet' on the respondents micro blogging service known as Twitter
on
27 March 2019.
[2]
Two conflicting values are at
stake in this matter - on the one hand, is the freedom of expression
and on the other, the right to
dignity,
[1]
which includes reputation. While freedom of expression is a
fundamental freedom protected by section 16
[2]
of the Constitution, human dignity is stated in section 1 of the
Constitution to be a foundational value of our democratic state.
[3]
The challenge for the courts has been to strike an appropriate
balance between these rights in articulating the common law of
defamation. In this case, the Court is asked to consider, once again,
whether this balance requires further adjustment.
[3]
The applicant, Mr Trevor Andrew Manuel, seeks a declaratory order to
the effect that the impugned statement is defamatory, false
and
unlawful. He states that this order is necessary to vindicate his
good name and reputation and to finally settle the dispute
between
him and the respondents about the lawfulness of the publication of
the impugned statement.
[4]
Second, the applicant seeks an order directing the respondents to
remove the impugned statement from all their media platforms.
This
relief is contingent on the Court declaring that the ongoing
publication of the impugned statement is unlawful.
[5]
Third, the applicant seeks an order interdicting the Economic Freedom
Fighters (the EFF), Dr Ndlozi and Mr Malema from publishing
the same
or similar defamatory allegations about him in the future. The
applicant says that if there is no accompanying order interdicting
any subsequent publication after the respondents have been ordered to
remove the impugned statement from their media platforms,
there is
every likelihood that they will make substantially the same false
allegations against him.
[6]
Fourth, the applicant asks that the respondents be ordered to publish
an unconditional public retraction and apology for the
allegations
made about him in the impugned statement, in order to set the record
straight.
[7]
Lastly, the applicant claims general damages as a
solatium
for
the alleged injury to his reputation.
[8]
The respondents deny that the impugned statement is defamatory, but
if it is found to be defamatory, the respondents submit
that they are
protected from liability as the impugned statement is either
substantially true; constitutes reasonable publication;
is the result
of fair comment; or is in the public interest.
The
parties to the application
[9]
The applicant, Mr Manuel, was appointed as South Africa's Minister of
Finance in 1996. Before that, he served as the Minister
of Trade and
Industry from 1994 until 1996. Between 2009 and 2014, he served as a
Minister in the Presidency for the National Planning
Commission. He
has held positions in numerous international bodies, including the
World Bank, the International Monetary Fund and
the African
Development Bank. He retired from politics in 2014 and no longer
served on the leadership structures of the African
National Congress.
Currently, he is the chairperson of Old Mutual Limited, a senior
adviser to Rothschild South Africa (in addition
to being its Deputy
Chairperson) and he also serves as the trustee on the Alan Gray Orbis
Endowment Trust.
[10]
The first respondent, the EFF, is a political party widely
represented in the national, provincial and local legislatures
throughout South Africa. Dr Ndlozi, the second respondent, is the
national spokesperson of the EFF, and Mr Malema, the third
respondent,
is the president of the EFF. Both Dr Ndlozi and Mr Malema
are members of Parliament and serve in the National Assembly as
elected
representatives of the EFF.
Preliminary
Objections
[11]
The respondents submit that the relief sought is overboard because Mr
Manuel does not identify with any particularity which
portions of the
statement violate his rights. The first five paragraphs of the
impugned statement (quoted below) accuse Mr 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 courts have previously found that allegations of
corruption and nepotism are defamatory per
se, and it is not
necessary for Mr Manuel to point out that portion of the statement.
[12]
In prayer 1.3 of his Notice of Motion, Mr Manuel seeks to have those
allegations made about him in the statement declared defamatory
and
false. The respondents argue that the entire statement does not
relate to Mr Manuel, and he therefore cannot request a retraction
of
the full statement. In this regard Mr Manuel states that he will not
object to an order that the respondents remove only those
specific
aspects of the impugned statement that refer to him if the Court
decides that it will be appropriate to do so. There is
no merit to
the respondents' submission, as the entire statement is coloured by
the allegations made against Mr Manuel.
[13]
The respondents also complained that Mr Manuel's prayer to have the
statement removed is overboard in the sense that the statement
refers
not only to himself, but also to Mr Kieswetter and Treasury, and that
Mr Manuel has no authority to represent them or bring
proceedings on
their behalf.
[14]
Mr Manuel explains that he
brings this application in his name to vindicate his reputation and
dignity. He does not seek relief
on behalf of Mr Kieswetter and
Treasury. In terms of section 38
[4]
of the Bill of Rights, anyone acting in the public interest can
approach a court to enforce rights. See
Ruta
v Minister of Home Affairs.
[5]
It is in the public interest that any allegations that the
appointment process of the new Commissioner·of SARS was
corrupt,
should be exposed to assure the public that the Commissioner
was appointed on merit and not because he was related to the
applicant,
or because he was his close business associate and
companion.
[15]
There is no doubt that the allegations in the impugned statement that
the Commissioner of SARS is a dodgy character who was
appointed
unlawfully harm the integrity of SARS and the National Treasury, and
contributes to the already compromised tax morality
among the South
African public being undermined.
Urgency
[16]
The respondents dispute the urgency of the application. They contend
that Mr Manuel's fears of harm are based on mere anxiety
that his
reputation may be harmed and that he has not provided any evidence of
such harm. The respondents argue that this case
is an abuse of legal
process, as it was brought to be heard on the day before the national
elections by Mr Manuel, who is their
political rival, in order to
cause maximum damage to the respondents.
[17]
Mr Manuel is accused of grave
allegations of corruption and nepotism. Allegations of dishonesty and
immoral or dishonourable conduct
are defamatory.
[6]
There is no reason why Mr Manuel ought to submit himself to further
indignities and assaults on his dignity before this matter
can be
determined. Dignity is not only a value fundamental to the
Constitution, but it is also a justiciable and enforceable right
that
must be respected and protected.
[7]
[18]
There is nothing in the papers to suggest that Mr Manuel is the
respondents' political rival. The appointment process, as will
appear
below, was designed to be apolitical, and members of the selection
panel were chosen because they were people of impeccable
reputation
and probity, and not because of their political affiliation.
[19]
In Safcor
Forwarding
(Johannesburg) (Pty) Ltd v National Transport Commission
[8]
Corbett JA held that:
·... Naturally, it is for the
Court to decide whether the matter is really one of urgency and
whether the circumstances warrant
a departure from the normal
procedures. To hold otherwise would, in my view, make the Court the
captive of the Rules. I prefer
the view that the Rules exist for the
Court, rather than the Court for the Rules.'
[20]
The respondents have been afforded ten days to prepare their
answering affidavits, all the papers have been filed, and the
matter
is ripe for hearing. The respondents have not complained that the
time frames in the notice of motion prejudiced them. The
manner is
which dignity is engaged in this matter renders the matter urgent.
Having regard to the relevant factors and, in particular,
the fact
that it is in the public interest to urgently determine whether
National Treasury conducted a corrupt and nepotistic appointment
process of the new Commissioner of SARS, I am satisfied that Mr
Manuel was justified in bringing this matter on a semi-urgent basis.
Requirements
for an interdict
[21]
Mr Manuel has met the requirements of an interdict, contrary to the
argument of the respondents. He has a clear right to protect
his
dignity and reputation, which he alleges the respondents have
infringed. Secondly, he has suffered and continues to suffer
harm to
his reputation, both in his personal and professional capacity,
through the widespread dissemination of the impugned statement.
He
has no alternative remedy to the persisting injury, as the
respondents have refused to apologise or to take down the defamatory
statement from their social media platforms. There is also ongoing
harm to the well-being of the country as the public labours
under the
misapprehension that SARS is led by a person who was appointed for
nepotistic and corrupt reasons.
[22]
The threat to Mr Manuel's right to dignity and the compelling public
interest in disabusing the public of the idea that the
Treasury
conducted a corrupt appointment process of the Commissioner renders
this matter urgent.
The
circumstances in which the impugned statement was published
[23]
The relevant circumstances are
in the public domain. The Nugent Commission of Inquiry into Tax
Administration and Governance at
SARS ('the Nugent Commission')
recommended the removal of former SARS Commissioner Mr Tom Moyane (Mr
Moyane) in November 2018.
[9]
The Commission recommended that the President take steps, without
delay, to appoint a new Commissioner of SARS to replace him.
[24]
President Ramaphosa adopted the recommendation of the Commission and
asked the Minister of Finance to oversee the appointment
of a panel
which would shortlist interviewees and submit a list recommending a
suitable and competent candidate for appointment.
The panel was
required to publish its recommendations, together with its reasons,
to enable the public to see whom the panel recommended
and the basis
of the recommendation.
[25]
The President was not obliged to appoint a panel to recommend a
suitable candidate to him because section 6 of the South African
Revenue Services Act 34 of 1997 (the SARS Act) empowers the President
to appoint the Commissioner of SARS in any manner he sees
fit.
[26]
To inspire confidence in the
new SARS Commissioner, the Nugent Commission recommended that the
Commissioner be appointed through
an open, transparent and apolitical
process. The Commission recommended that persons providing the input
should be selected for
their merit, including their impeccable
reputation and probity, and on the basis of being a representative of
any particular organisation.
The Commission recommended a specific
process for the appointment of the next Commissioner of SARS
[10]
and set out set its recommendation as follows:
'In paragraph [39] it is recommended
that the SARS Act be amended to provide for the appointment of the
Commissioner of SARS by
the President, after consultation with the
Minister of Finance, in accordance with a transparent process, which
it is recommended
should be along the following lines:
16.3
In paragraph [39] it is recommended that the SARS Act
be amended to provide for the appointment of the Commissioner of SARS
by the
President, after consultation with the Minister of Finance, in
accordance with a transparent process, which it is recommended should
be along the following lines:
16.3.1
The President should, of his own volition, or after a
call for nominations, at his discretion, select one or more suitable
candidates
for appointment.
16.3.2
The candidate or candidates should
16.3.2.1
be, and be reputed to be, of unblemished integrity;
16.3.2.2
have proven experience of managing a large organization
at a high level;
16.3.2.3
not be aligned to any constituency, and if so aligned,
should renounce that alliance upon appointment.
16.3.3
The candidate or candidates for appointment should
submit to a private interview by a panel of four or more members
selected by
the President. The function of the panel is to evaluate
the candidate or candidates against the criteria above and make
motivated
non prescriptive recommendations to the President.
16.3.4
Members of the panel should be apolitical and not
answerable to any constituency and should be persons of high standing
who are
able to inspire confidence across the tax paying
spectrum.
16.3.5
The panel must, upon its evaluation, make motivated
non-prescriptive recommendations to the President on the suitability
or otherwise
for the appointment of the candidate or candidates. If
the recommendation is against the appointment of a particular
candidate,
it is the prerogative of the President to reject the
recommendation and appoint the candidate nonetheless or to select an
alternative
candidate or candidates to repeat the process.
16.3.6
Upon appointment
of a candidate, the recommendations of the panel, in whichever
direction, should be made public.'
[11]
[27]
On 7 February 2009, the Minister of Finance announced the composition
of the panel. The task of the panel was to interview
candidates and
to recommend to the President a shortlist of candidates for the
position of SARS Commissioner. Participation in
the panel was a
non-remunerative public service. The advertisement for the position
of SARS Commissioner was advertised by National
Treasury in national
newspapers on 16 December 2018 with a closing date of 18 January
2019. On 8 February 2019, the press reported
on the candidates who
were shortlisted for interview by the panel.
[28]
On 13 February 2019, when retired Justice Nugent presented his Report
to the Parliamentary Standing Committee on Finance, Mr
Floyd
Shivambu, the Deputy President of the EFF, addressed a letter to the
Minister of Finance complaining that Retired Justice
Nugent had
recommended a
'secret interview process'
and addressed
specific questions to the Minister in this regard. The EFF was
advised to address its questions to the Minister through
Parliament,
and after that, the EFF addressed parliamentary questions to the
Minister, to which he responded on 5 March 2019.
[29]
Mr Manuel was appointed as the Chair of the panel, which comprised
seven members, including himself The other members were
people of
very high standing, including a senior High Court judge with tax
expertise, a former director-general, an advocate, business
people,
and a senior member of National Treasury.
[30]
Before the interviews were conducted, panel members were asked to
disclose any relationships they had with candidates for the
interviews. Mr Manuel recused himself, out of an abundance of
caution, from the interview of Mr Kieswetter. This was because Mr
Kieswetter had previously worked at SARS as head of the Large
Business Centre, and subsequently as a Deputy Commissioner, while
Mr
Manuel was the Minister of Finance.
[31]
Mr Kiewetter was anonymously recommended by the panel as being, by
far, the most suitable and preferred candidate for the position.
He
was duly appointed by the President as the Commissioner of SARS.
The
impugned statement
[32]
It is not in dispute that on 27 March 2019, the EFF published a tweet
on its official Twitter account. The statement in the
tweet is
indicated as being issued by the EFF and reads as follows:
THE EFF REJECTS SARS COMMISSIONER
INTERVIEW PROCESS
Wednesday, 27 March 2019
The Economic Freedom Fighters objects
to the patently nepotistic, and corrupt process of selecting the
South African Revenue Services'
Commissioner.
In February 2019, the EFF sent a
letter, and Parliamentary questions to the outgoing President Mr
Cyril Ramaphosa and Mr Tito Mboweni,
to specifically ask why they are
conducting the SARS selection process in secret. It is confirmed that
a panel chaired by the former
minister, Trevor Manuel, conducted
secret interviews to select the SARS Commissioner, and this goes
against the spirit of transparency
and openness.
It has now emerged that the reason is
that, one of the candidates who was interviewed and favoured by the
panel, is a dodgy character
called Edward Kieswetter, who is not just
a relative of Trevor Manuel, but a close business associate and
companion.
Kieswetter used to be a Deputy SARS
Commissioner, unlawfully appointed to that position by Trevor Manuel
when Pravin Gordhan was
SARS Commissioner. Kieswetter was in SARS
during the time of the illegal intelligence unit established by
Pravin Gordhan, to hound
off
political opponents and commit
corruption.
After SARS, Kieswetter joined
Alexander Forbes and was subsequently removed from the company due to
alleged corruption and unethical
conduct. After Alexander Forbes,
Kieswetter became a vice chancellor of an institution whose academic
credentials are questionable.
This is now a candidate whom Trevor
Manuel and Tito Mboweni want to impose into SARS.
The EFF is profusely opposed to the
imposition of a secretly assessed candidate by conflicted
individuals, and we will do everything
in our power to stop, and
reverse the appointment of Kieswetter as SARS Commissioner. We will
immediately write a legal letter
to Mr Ramaphosa and Mr Mboweni, to
demand the disclosure of all processes that were followed in the
process of selecting a SARS
Commissioner.
Furthermore, the EFF will explore
legal options to invalidate the unlawful appointment of SARS
Commissioner.
The EFF is particularly concerned
about SARS because our Elections Manifesto states that, part of our
immediate plans when we take
over Government will be the capacitation
of SARS so that it can maximally collect revenue. The EFF
particularly advocates for a
SARS that will decisively fight against
illicit financial flows, base erosion and profit shifting. A secretly
chosen SARS Commissioner
with a clear connection to the white
capitalist establishment will not maximally collect taxes.
The EFF, therefore, demands that the
process to select SARS Commissioner should be restarted, and be
opened to public scrutiny.
This should be so because a Commissioner
of the ultimate Revenue Collector in South Africa should be beyond
reproach and must stand
public scrutiny. SARS has over the years been
involved in a lot of illegal and unlawful activities, and tax payers
deserve to know
who will be responsible for the institution.
We also caution Mr Ramaphosa and Mr
Mboweni to not engage in activities that led to the downfall of Mr
Jacob Zuma. If they become
arrogant and ignore the EFF's logical
demands, they must know that they too will fall very hard on their
own sword.
[33] At the time of publication of the
statement, the EFF had over 725 000 Twitter followers. The tweet was
retweeted 237 times
from the EFF Twitter account. Mr Malema also
tweeted the statement from his personal Twitter account. He has over
2 million Twitter
followers who also may have retweeted the
statement. The tweet received wide coverage in the media and on
online channels that
draw high volumes of daily traffic.
What
the parties contend the tweet meant
[34]
Mr Manuel submits that the statement is highly defamatory of him, as
well as Mr Kieswetter and other members of the panel,
as the
statement implies that he:
(a) is corrupt,
(b) is nepotistic,
(c) conducted 'secret interviews' and
participated in a secretive process to select the new SARS
Commissioner;
(d) conducted an unlawful appointment
process, which led to the appointment of Mr Kieswetter as the SARS
Commissioner, who was not
deserving of the appointment;
(e) made previous unlawful
appointments to positions at SARS during his tenure as Minister of
Finance;
(f) is connected to a 'white
capitalist establishment' that acts contrary to the best interests of
SARS.
[35]
Mr Manuel submits that the sting of the statement is that, in his
capacity as Chair of the panel, he appointed his relative
and close
business associate and companion, Mr Kieswetter, as a Commissioner of
SARS in a corrupt manner for nepotistic and corrupt
reasons. His
primary concern is the restoration of his good reputation in the eyes
of the public.
[36]
In their answering affidavit, the respondents put up no facts to
support the truth of their averments, nor do they refute the
sting of
the defamation contained in the first five paragraphs of the impugned
statement. Instead, the respondents contend that
their actions were
reasonable, because the EFF was given information by a confidential
source (which it states that it had no reason
to doubt), and that
their only other option after exhausting parliamentary avenues was to
disclose their concerns about the appointment
of the SARS
Commissioner 'more robustly' in the public domain.
[37]
The respondents argue that the
essence of the statement is the EFF's concern about the 'lawfulness'
of the appointment process.
They aver that the process was 'entirely
executive-controlled and run' and occurred outside the public arena
in contravention of
section 195 of the Constitution, which requires
openness and transparency in the public administration.
[12]
[38]
The respondents concede that the appointment of the Commissioner was
made pursuant to the recommendation of the Nugent Commission
, and
that in terms of s 6 of the SARS Act, the President was empowered to
appoint a Commissioner of his choice. Their concern
was that the
appointment of such a strategically important constitutional office
bearer could occur with no meaningful role being
played by
Parliament.
[39]
Counsel for the respondents, Mr Ngalwana SC, sought to escape the
sting of the statement by submitting that the averments in
the
impugned statement were not about Mr Manuel, but the secrecy
surrounding the interview process of the SARS Commissioner. He
argued
that it is the transparency of the interview process that has been an
issue for the respondents. He stated that, after receiving
the
information from the confidential source, the EFF wrote to Parliament
to ask whether a potential conflict of interest by members
of the
panel and the interviewees were taken into account when the panel was
constituted.
[40]
The respondents submit that they are protected from liability as the
impugned statement is either substantially true, a reasonable
publication, the result of fair comment, or made in the public
interest.
[41]
It will be necessary to return in more detail to the contentions of
the parties. However, before doing that, it is necessary
to set out
the relevant law which I have to apply in resolving this dispute.
The
respondents knew that the impugned statement was false
[42]
The EFF members of parliament were present on 7 February 2019 when
the President announced that he was implementing the recommendations
of the Nugent Commission to appoint a new SARS Commissioner in his
State of the Nation Address. They were also present on 13 February
2019 when retired Justice Nugent presented his Report to the
Parliamentary Standing Committee on Finance. As detailed above, the
EFF sent a parliamentary question to the Minister of Finance asking
why Justice Nugent had recommended a 'secret interview process'.
[43]
The respondents also knew that Mr Manuel played no role whatsoever in
determining that the process would be conducted in accordance
with
the recommendations of the Nugent Commission. They knew that the
appointment process was conducted in accordance with the
recommendation of the Nugent Commission, the Terms of Reference and
the SARS Act. There is there no basis for saying that the process
was
secretive. Even if the process was secretive, they had a legal remedy
that they could have resorted to.
[44]
The allegation that Mr Manuel unlawfully appointed Mr Kieswetter to
the position of Deputy SARS Commissioner when he was Minister
of
Finance is also patently false. The President appointed Mr Kieswetter
in terms of the SARS Act.
The
definition of defamation
[45]
An individual's reputation is
central to his or her sense of self-worth and dignity. The importance
of freedom of expression cannot,
however, be overstated. Defamation
consists of the wrongful and intentional publication of a defamatory
statement concerning a
person.
[13]
The applicant must first prove that the publication of the defamatory
matter concerned himself; a presumption of unlawfulness and
intent
then arises, which can be rebutted by the respondent by raising a
defence which rebuts either the requirement of wrongfulness
or
intention.
[14]
[46]
There is no dispute that the tweet refers to Mr Manuel, (because it
refers to him by name) and that it has been publicised
widely. The
issue here is what the tweet means and whether it defames Mr Manuel.
Whether a statement is defamatory depends on the
natural or ordinary
meaning of the words, considered in the context of the publication as
a whole.
Is
the impugned statement is defamatory?
[47]
The legal principles to be
applied where an applicant alleges that the statement, in itself, is
defamatory were summarised by the
Constitutional Court in
Le
Roux and Others v
Dey
[15]
as follows:
'Where the plaintiff is content to
rely on the proposition that the published statement is defamatory
per se, a two-stage enquiry
is brought to bear. The first is to
establish the ordinary meaning of the statement. The second is
whether that meaning is defamatory.
In establishing the ordinary
meaning, the court is not concerned with the meaning which the maker
of the statement intended to
convey. Nor is it concerned with the
meaning given to it by the persons to whom it was published, whether
or not they believed
it to be true, or whether or not they then
thought less of the plaintiff. The test to be applied is an objective
one. In accordance
with this objective test, the criterion is what
meaning the reasonable reader of ordinary intelligence would
attribute to the statement.
In applying this test, it is accepted
that the reasonable reader would understand the statement in its
context and that he or she
would have had regard not only to what is
expressly stated but also to what is implied.'
[48]
The standard of what
constitutes a reasonable or ordinary member of the public is
difficult to articulate.
[16]
It should not be so low as to stifle free expression unduly, nor so
high as to imperil the ability to protect the integrity of
a person's
reputation.
[49]
It is important in this case to point out that the tweet was not a
publication on a newspaper or broadcast. It was a publication
on
Twitter. The hypothetical ordinary reader must be taken to be a
reasonable representative of users of Twitter who follow the
EFF and
Mr Malema and share his interest in politics and current affairs.
[50]
In my view, a reasonable person of ordinary intelligence would
understand the tweet to mean that Mr Manuel is corrupt, nepotistic,
and has conducted the appointment process for a new SARS Commissioner
secretly in a deliberate attempt to disguise his familial
relationship with Mr Kieswetter, and that he is connected to a 'white
capitalistic establishment' that acts contrary to the best
interest
of SARS.
[51]
The second stage of the enquiry is the question whether the meaning
conveyed by the impugned tweet genuinely tarnishes Mr Manuel's
reputation and dignity. There is no doubt that the statement would
generally tend to lower Mr Manuel's reputation in the estimation
of
right-thinking members of society, as the tweet implies that is was
dishonest, unscrupulous and lacking in integrity.
[52]
The respondents submit that by
accepting the presidential appointment to chair the panel for the
appointment of the head of an organ
of state as contested as SARS, Mr
Manuel had thrust himself firmly
'in
the political eye'
and must
consequently display a greater degree of tolerance to criticism than
ordinary private individuals. There is no merit in
this submission,
as high profile public office bearers are also entitled to a right to
dignity and to not having their reputations
unlawfully harmed. The
decision of the SCA in
Mthembu-Mahanyele
v Mail
&
Guardian
Ltd and Another
[17]
is instructive in this
regard. Lewis JA at para 42 stated:
'The decision of the court below in
denying to a cabinet minister
locus standi
to claim damages
for defamation is, with respect, incorrect. It does not give
sufficient weight to the right to dignity and to not
having one's
reputation unlawfully harmed. It elevates freedom of expression above
that of dignity when there is not, and there
should not be, a
hierarchy of rights. It denies to a class of people the ability to
protect their reputations, save where defamatory
statements are made
with malice.'
[53]
I find that the tweet, when reading it as a whole, is
per se
defamatory. Mr Manuel's reputation and dignity have been
tarnished. It is common ground that the respondents published the
defamatory
statement in the tweet and that they refer to Mr Manuel.
It is thus presumed that the publication of the statement is wrongful
and intentional, and the respondents have the onus of demonstrating
that the publication of the statements lacked wrongfulness or
intention.
The
defences raised by the respondents to rebut unlawfulness
Truth
and public interest
[54]
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
respondents.
[18]
[55]
It is not true that the appointment process was 'secretive' as
details of the appointment process were made publicly available
from
the outset. The process was open and transparent, even if the
interviews themselves were not public. The respondents admit
that
they lacked proper facts because they were not provided with
meaningful information.
[56]
The respondents have failed to
prove that the sting of the statement was true. Instead, in their
defence, they only raised concerns
about the lack of transparency in
the appointment process, concerns about state capture, the dismissal
of Mr Tom Moyane, the Nugent
Commission's recommendations and the
'Rogue Intelligence Unit'. All these are peripheral facts which are
unrelated to the sting
of the defamatory statement in respect of Mr
Manuel.
[19]
[57]
The EFF argues that the fact that Mr Manuel recused himself from Mr
Kieswetter's interview demonstrates that he was sufficiently
related
to him to justify an inference that he was nepotistic. As previously
stated, Mr Manuel explained that he was never related
to Mr
Kieswetter in any way.
[58]
If the respondents rely on
these facts to infer that Mr Manuel was biased, they must show that
"'a reasonable, objective and
informed person would, on the
correct facts, reasonably apprehend bias." In other words, they
must show a reasonable apprehension
of bias to succeed.
[20]
[59]
The mere fact that Mr Manuel once had an employment association with
Mr Kieswetter many years ago will not, without anything
more, form
the basis for a reasonable apprehension of bias. In any event, Mr
Manuel disclosed, in writing, his association with
Mr Kieswetter and
recused himself from the interview despite the panel not viewing his
relationship with Mr Kieswetter as a conflict
of interest.
[60]
The EFF's claim that it
published the words with an honest belief in the truth thereof, based
on the reliable information provided
by an anonymous source, does not
absolve it from liability. Under the Repetition Rule, the person who
repeats a defamatory allegation
made by another is treated as if he
had made the allegation himself, even if he attempts to distance
himself from the allegation.
[21]
Reasonable
publication
[61]
The respondents contend that
their conduct was reasonable because it acted in a manner akin to a
whistle-blower. They were given
information by a confidential source,
which they accepted to be true, and had no reason to doubt. The
Protected Disclosures Act
[22]
encourages people to report serious wrongdoing in their workplace by
protecting employees who want to 'blow the whistle'. The Act
lists
prescribed ways of reporting wrongdoing and does not protect people
who publish their unsubstantiated defamatory disclosures
worldwide.
[62]
The respondents contend that the EFF's statement must be seen in the
light of the public disclosure role it was playing, that
would
ordinarily have been played by the media. They state that the media
could not play that role because it was kept in the dark
regarding
the conduct of the President and the Minister of Finance in the
appointment of the panel and the panel's subsequent activities.
They
seek to invoke the reasonableness of the publication, although
containing false allegations, to rebut the unlawfulness of
the
publication.
[63]
The defence of reasonable publication is available to the media to
rebut the unlawfulness of the publication of defamatory
material.
This defence was introduced by the SCA in
National
Media Ltd and Others v Bogoshi,
where
[23]
Heter JA held that:
'. . . the publication in the press of
false, defamatory allegations of fact will not be regarded as
unlawful if, upon consideration
of all the circumstances of the case,
it is found to have been reasonable to publish the particular facts
in a particular way and
at the particular time.
In considering the reasonableness of
the publication account must obviously be taken of the nature, extent
and tone of the allegations.
We know, for instance, that greater
latitude is usually allowed in respect of political discussion
(Pienaar and Another v Argus
Printing and Publishing Co Ltd
1956 (4)
SA 310
(W) at 318 C-E), and that the tone in which a newspaper
article is written, or the way in which it is presented, sometimes
provides
additional, and perhaps unnecessary, sting. What will also
figure prominently 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. Ultimately there can be
no
justification for the publication of untruths, and members of the
press should not be left with the impression that they have a
licence
to lower the standards of care which must be observed before the
defamatory matter is published in a newspaper'.
[64]
The court in
Bogoshi
made it clear that there can be no
justification for the publication of untruths, and members of the
press may not lower standards
of care which must be observed before a
defamatory matter is published in a newspaper.
[65]
Because of social media platforms like Twitter, Facebook and
others, ordinary members of society now have publishing capacities
capable of reaching beyond that which the print and broadcast media
can. Twitter users follow news in general on the service worldwide.
They get their news either through scrolling their Twitter feeds or
browsing the tweets of those they follow. When there is breaking
news, they become even more participatory, commenting, posting their
opinions and retweeting. Statements are debated and challenged,
and
people can make up their minds on the issue.
[66]
The difference between an ordinary person communicating
matters of public interest or concern to the general public on social
media,
and a journalist publishing the same statement in a newspaper,
is that in the case of the former, the communication is capable of
reaching millions more instantaneously than, for example, printed
copies of newspapers.
[67]
There is no
justification as to why the press should enjoy the privilege of
freedom of expression greater than that enjoyed by a
private
individual. The liberty of the press is no greater than the liberty
of any individual. There is, therefore, no justification
for limiting
the defence of reasonableness as it pertains to both wrongfulness and
fault to the media only. In my view, this limitation
cannot be
justified under section 36 of the Constitution.
[24]
[68]
The defence of
reasonable publication cannot assist the respondents in the present
case, as they have failed to show that it was
reasonable in the
circumstances to publish the particular facts, in a particular way
and at the particular time.
[25]
[61]
The EFF alleged that Mr Manuel was related to Mr Kieswetter on
the strength of an allegation in an undated SMS brought to their
attention. They did not take reasonable steps to verify the
defamatory allegations in the SMS before the publication of the
statement
in question. They did not allow Mr Manuel to respond before
publication. It was only in response to a letter demanding a
retraction
from Mr Manuel's attorneys that the respondents, through
their lawyer's letter of 5 April 2019, wanted to know from Mr Manuel
how
long he has had a relationship with Mr Kieswetter and whether he
had discussions with him regarding, amongst other things, SARS,
the
findings of Nugent Commission and the allegations against (and the
ultimate suspension and dismissal) of Mr Moyane, including
any
litigation related thereto.
[62]
It follows that the defence of reasonable publication must
fail.
Fair
comment
[63]
The respondents contend that they can rely on the defence of
fair comment because it and the rest of South Africa were 'kept in
the dark' regarding the constitution and the work of the panel. The
respondents argue that Mr Manuel should have taken steps to
make the
process open to the public. They argue that the mandatory
requirements of section 195 of the Constitution were not given
effect
to, which is a sufficient basis 'in terms of which the appointment of
the new SARS Commissioner may be challenged'.
[64]
The above allegations do
not relate to the defence of fair comment or opinion that Mr Manuel
is corrupt and nepotistic. To succeed
with this defence, the
respondents must show that the statement was based on true facts. In
The Citizen 1978 (Pty) Ltd
and Others v McBride
[26]
the Constitutional Court
explained that:
'Protected comment need thus not be
"fair or just at all" in any sense in which these terms are
commonly understood. Criticism
is protected even if extreme, unjust,
unbalanced, exaggerated and prejudiced, so long as it expresses an
honestly-held opinion,
without malice, on a matter of public interest
on facts that are true. In the succinct words of Innes CJ, the
defendant must "justify
the facts; but he need not justify the
comment".'
[65]
The defence of protected commen, in this case, is defeated by
the fact that the respondents have failed to demonstrate that the
underlying facts upon which the statement is based are true.
[66]
The conduct of the respondents both before and after the
publication of the impugned statement shows that they were actuated
by
malice. They published the tweet with reckless indifference as to
whether it was true or false. The statement remains published
online
despite it being subsequently shown to be false, and the respondents
refuse to take it down. There can never be a justification
for the
ongoing publication of a defamatory statement which has been revealed
to be untrue unless the principal purpose is to injure
a person
because of spite or animosity.
Public
interest
The
respondents state that the statement was made in the public interest,
and for that reason, it is justifiable as it increased
public
scrutiny of SARS. The mere fact that the content of the statement
relates to issues that are in the public interest is not
determinative in itself. The defence of public interest applies only
if other defamation defences are in the public interest, e.g.
the
defence of truth and fair comment. On its own, the public interest is
not a defence to a defamation claim.
Remedy
[67]
Mr Manuel's primary concern, in this case, is the restoration
of his good reputation and dignity of the individual. False
allegations
can so very quickly and destroy a good reputation. Mr
Manuel asks that the respondents be ordered to publish an
unconditional public
retraction and an apology for the allegations
made about him in the statement. The court in
Le Roux v Dey
explained-
'...Respect for the dignity of others
lies at the heart of the Constitution and the society we aspire to.
That respect breeds tolerance
for one another in the diverse society
we live in. Without that respect for each other's dignity, our aim to
create a better society
may come to nought. It is the foundation of
our young democracy. And reconciliation between people who opposed
each other in the
past is something which was, and remains, central
and crucial to our constitutional endeavour. Part of reconciliation,
at all different
levels, consists of recantation of past wrongs and
apology for them. That experience has become part of the fabric of
our society.
The law cannot enforce reconciliation but it should
create the best conditions for making it possible; We can see no
reason why
the creation of those conditions should not extend to
personal relationships where the actionable dignity of one has been
impaired
by another.’
[27]
[68]
Mr Manuel has sought
only general damages as a solatium for the injury to his reputation.
In Hattingh J said in
Esselen
v Argus Printing and Publishing
Co
Ltd and others
[28]
Hatting J said:
'In a defamation action the plaintiff
essentially seeks the vindication of his reputation by claiming
compensation from the defendant;
if granted, it is by way of damages
and it operates in two ways - as a vindication of the plaintiff in
the eyes of the public,
and as conciliation to him for the wrong done
to him. Factors aggravating the defendant's conduct may, of course,
serve to increase
the amount awarded to the plaintiff as
compensation, either to vindicate his reputation or to act as a
solatium."
[69]
I have taken the following factors into account in determining
the seriousness of the defamation, amongst other things, the nature
of the defamatory statement, the nature and extent of the
publication, and the reputation, character and conduct of the
parties.
[70]
The conduct of the EFF, Dr Ndlozi and Mr Malema has been
egregious and hurtful. In response to a letter to the EFF by Mr
Manuel,
in which he refuted the claims in respect of Mr Kieswetter
and where he requested the EFF to withdraw the allegations or face
legal
action, Mr Malema replied in a tweet to Annika Larsen of eNCA
that Mr Manuel
'can go to hell, we are not scared of him'.
[71]
The motive and conduct of the respondents are relevant. They
stubbornly refuse 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 Mr Manuel in his person, and
professionally, through the widespread dissemination of the
defamatory statement. Such conduct warrants a punitive costs order.
[72]
Mr Manuel has indicated that should he be awarded damages, he
will donate the entire amount to a charitable organisation.
[73]
Having regard to the foregoing and the general trend of awards
in recent times, I believe that an award of R500 000 in general
damages
is merited.
lnterdictory
relief
[71]
Mr Manuel seeks a permanent interdict against the respondents
to prevent future defamatory comments. Mr Manuel has a reasonable
apprehension that in the absence of an interdict, the EFF, Dr Ndlozi
and Mr Malema will commit further injuries of the same kind
given
that they have steadfastly refused to acknowledge their wrongdoing or
to take down the defamatory statements.
[72]
Mr Manuel has been injured in his dignity. He is entitled to
the declaratory order that he seeks including an apology from the
respondents.
That apology should be ordered in addition to the sum of
compensation that the respondents must pay to him. He is also
entitled
to the punitive costs he has asked for.
In
the result, I make the following order:
1. The allegations made about the
applicant, Trevor Andrew Manuel, in the statement titled 'The EFF
Rejects SARS Commissioner Interview
Process' dated 27 March 2019 are
defamatory and false;
2. It is declared that the
respondents' unlawful publication of the statement was, and continues
to be, unlawful;
3. The respondents are ordered to
remove the statement, within 24 hours, from all their media
platforms, including the first and
third respondents' Twitter
accounts;
4. The respondents are ordered, within
24 hours, to publish a notice on all their media platforms, on which
the statement had been
published, in which they unconditionally
retract and apologise for the allegations made about the applicant in
the statement.
5. The respondents are interdicted
from publishing any statement that says or implies that the applicant
is engaged in corruption
and nepotism in the selection of the
Commissioner of the South African Revenue Service.
6. The respondents are ordered jointly
and severally to pay damages of R500 000.00 to the applicant.
7. The respondents are ordered jointly
and severally to pay the applicant's costs on an attorney and client
scale.
___________________
K
E MATOJANE
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing: 14 May 2019
Date
of judgment: 30 May 2019
Appearances:
Counsel
for the Applicant: Adv. C Steinberg, Adv. M Mbikiwa
Instructing
Attorneys: Webber Wentzel Attorneys
Counsel
for the Respondents: Adv. V Ngalwana SC, Adv. K Premhid, Adv. F
Karachi
Instructing
Attorneys: Ian Levitt Attorneys
[1]
Section 10 of the Constitution provides 'Everyone has inherent
dignity and the right to have their dignity respected and
protected'.
[2]
Section 16 of the Constitution provides
(1)
Everyone has the right to freedom of expression, which includes
(a) Freedom of the press and other
media;
(b) Freedom to receive or impart
information or ideas;
(c) …;
[3]
On the relationship between the right to freedom of expression and
dignity, O'Regan J in Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) stated at paragraph 25 that 'although freedom of expression is
fundamental to our democratic society, it is not a paramount
value.
It must be construed in the context of the other values enshrined in
our Constitution. In particular, the values of human
dignity,
freedom and equality.'
[4]
Section 38 of the Constitution provides as follows:
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a) anyone acting in their own
interest;
(b) anyone acting on behalf of
another person who cannot act in their own name;
(c) anyone acting as a member of, or
in the interest of, a group or class of persons;
(d) anyone acting in the public
interest; and
(e) an association acting in the
interests of its members.
[5]
2019 (2) SA 329
(CC) at paragraphs 9-12
[6]
Le Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amicus curiae)
2011 (3) SA 274
(CC)
para 91(c).
[7]
Dawood and Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA
936
(CC) at para 35.
[8]
Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport
Commission
1982 (3) SA 654
(A) at 675H.
[9]
Final Report of the Commission of Inquiry into Tax Administration
and Governance by SARS dated 11 December 2018, accessible at
http://www.thepresidenc y.qov.za/conten t/commission -inquiry-tax
administration-and- qovernance-sars.
[10]
Ibid, page 186, para 40 of the Final Report.
[11]
Ibid, page 186-187 of the Final Report.
[12]
Basic values and principles governing public administration
195.
(1) Public administration must be governed by the democratic values
and principles enshrined in the Constitution, including
the
following principles:
(a) A high standard of professional
ethics must be promoted and maintained.
(b) Efficient, economic and effective
use of resources must be promoted.
(c) Public administration must be
development-oriented.
(d) Services must be provided
impartially, fairly, equitably and without bias.
(e) People's needs must be responded
to, and the public must be encouraged to participate in policy
making.
(f) Public administration must be
accountable.
(g) Transparency must be fostered by
providing the public with timely, accessible and accurate
information.
(h) Good human-resource management
and career-development practices, to maximise human potential, must
be cultivated .
(i) Public administration must be
broadly representative of the South African people, with employment
and personnel management
practices based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to
achieve broad representation.
(2)
...
[13]
Khumalo Holomisa (note 3 above) para 17.
[14]
Le Roux v Dey (note 6 above) para 85.
[15]
Ibid para 89.
[16]
Colman J said the following about a reasonable man Channing v South
African Financial Gazette Ltd and Others
1966 (3) SA 470
(W) at
474A-C:
'From
these and other authorities it emerges that the ordinary reader is a
"reasonable ", "right thinking"
person, of
average education and normal intelligence; he is not a man of
"morbid or suspicious mind", nor is he "super-critical"
or abnormally sensitive; and he must be assumed to have read the
articles as articles in newspapers are usually read. ... It
is no
doubt fair to impute to the ordinary reader of the South African
Financial Gazette a somewhat higher standard of education
and
intelligence and a greater interest in and understanding of
financial matters than newspaper readers in general have. But
this,
I think, is clear: one may not impute to him, for the purposes of
this inquiry, the training or the habits of mind of a
lawyer.'
[17]
2004 (6) SA 329 (SCA).
[18]
Jonson v Rand Daily Mail
1928 AD 190
at 205-207.
[19]
Independent Newspapers Holdings Ltd and others v Suliman
[2004] 3
All SA 137
(SCA) para 36. In respect of peripheral facts the SCA
stated, '... It is a peripheral fact which, even if it had been left
out,
or even if it had been corrected, would have made no difference
whatever to the defamatory import of that part of the article which
was true.'
[20]
Mbana v Shepstone & Wylie
2015 (6) BCLR 693
(CC) para 40,
quoting the Court in Bernert v ABSA Bank 2011 (3) SA 92 (CC).
[21]
Tsedu and Others v Lekota and Another2009 (4) SA 372 (SCA) para 5.
[22]
Act 26 of 2000.
[23]
National Media Ltd and Others v Bog9shi
1998 (4) SA 1196
(SCA) at
1212G-1213A.
[24]
Limitation of rights
36
(1) The rights in the Bill of Rights may be limited only in terms of
law of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account
all
relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of
the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to achieve
the purpose. (2) ...
[25]
National Media Ltd v Bogoshi (note 23 above) at 1212F-H.
[26]
The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and
Others, amici curiae)
2011 (4) SA 191
(CC) para 83.
[27]
Le Roux v Dey (note 6 above) para 202.
[28]
1992 (3) SA 764
(T) at 771F-I.