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[2019] ZAGPJHC 166
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Brown v Economic Freedom Fighters and Others (14686/2019) [2019] ZAGPJHC 166; [2019] 3 All SA 499 (GJ); 2019 (6) SA 23 (GJ) (6 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 14686/2019
In
the matter between:
KAREMA
BROWN
Applicant
and
ECONOMIC
FREEDOM FIGHTERS
First
Respondent
JULIUS
SELLO MALEMA
Second
Respondent
ELECTORAL
COMMISSION
Third
Respondent
JUDGMENT
DIPPENAAR
J
:
Introduction and chronology of
events
[1]
This application concerns the obligations
of political parties and their leaders under the Electoral Code of
Conduct. The first
respondent, the Economic Freedom Fighters, and the
second respondent, Mr Julius Sello Malema, will collectively be
referred to
as “the respondents”. For the sake of
convenience, the parties will be referred to by name where
appropriate.
[2]
From the papers it is clear that the
parties have an acrimonious relationship and have publicly criticised
each other on various
occasions. The applicant, Ms Karema Brown, is
critical and condemning of the EFF and has expressed her views on
various social
and other media platforms. The respondents on the
other hand express “a long held belief” that Ms Brown is
not a bona
fide journalist but harbours and actively pursues a
political agenda under the guise of independent journalism. She is
accused
of being an ANC operative and mole, rather than a journalist,
and her conduct is criticised as being provocative and falling foul
of the Press Code. They further consider her biased and prejudiced
against the EFF.
[3]
The events which gave rise the present
application is the latest of a spate of well publicised incidents
between the respondents
and various journalists, resulting in
proceedings which are currently pending in the Equality Court. These
events are relied on
by Ms Brown to illustrate a pattern of “hit
and run” behaviour on the part of the respondents in relation
to journalists,
particularly in relation to female journalists who
are critical of the EFF. Although the EFF’s alleged conduct
vis-à-vis
journalists forms the subject-matter of different
legal proceedings the existence of such proceedings is at least a
factor which
is relevant to contextualize the events presently under
consideration.
[4]
The alleged conduct of the EFF vis-à-vis
journalists has attracted substantial concern and criticism from
various quarters,
including national and international media
organisations such as the South African National Editors Forum and
Media Without Borders
regarding the issue of media freedom in South
Africa.
[5]
The genesis of the present application lies
in a message erroneously sent by Ms Brown, a senior political
journalist, on 5 March
2019 to the EFF’s WhattsApp group, a
platform created by the EFF’s national spokesperson, Dr Ndlozi,
to communicate
directly with journalists covering political and
current affairs and to encourage them to report on the EFF’s
activities.
The message had been intended for another WhattsApp group
comprising of Ms Brown’s colleagues and is described as “a
briefing note” by her. The message reads:
“
Keep an
eye out for this. Who are these elders. Are they all male and how are
they chosen. Keep watching brief
”.
[6]
In response, Mr Malema published a
screenshot of the applicant’s message which contained her name
and personal cellular telephone
number on Twitter, circled in a thick
marker. In the same Twitter post, he claimed that Ms Brown was
sending moles to the EFF’s
event. Mr Malema is followed by
approximately 2.38 million Twitter users.
[7]
On 6 March 2019, Dr Ndlozi on behalf of the
EFF published a statement on its Facebook page, claiming that Ms
Brown is not a journalist
but an openly admitted ANC operative. He
further stated that journalists who hold legitimate positions, and
whose integrity has
always been consistent with journalistic ethics,
should care about what role she plays in the media.
[8]
It was undisputed that subsequent to these
statements and up to late April 2019, Ms Brown received a barrage of
anonymous threatening
phone calls and written threats on Twitter and
WhatsApp from self-professed EFF supporters. These included
deplorable insults and
threats of rape, violence and death.
[9]
Mr Malema refused to delete the post after
various requests from journalists to him, Dr Nlozi and the EFF, via
Twitter, to do so
and to condemn the threatening behaviour. Mr Malema
only removed the tweet from his Twitter account after he had been
threatened
with the termination of such account pursuant to a
complaint by Media Monitoring Africa.
[10]
On 6 March 2019 the EFF held a press conference at
which Mr Malema stated that no person should be threatened with rape
and violent
crime. He further stated of Ms Brown that she was not a
journalist, was not governed by bodies that govern journalists and
that
those rules do not apply to her. He contended that she was a
state agent and intelligence operative and was working for state
security.
[11]
In response, Ms Brown posted a number of
posts on the EFF WhattsApp group, accusing the respondents of
unlawfulness. The posts included
statements such as “
We
need to ask the IEC how such a party can be on the ballot box”
and:
“
This is
for the EFF leadership and my colleagues in journalism. I am not
afraid of you. Your threats mean nothing to me. And more
importantly
I will not ask your permission to do my job. I don’t need you
to tell me what I can do and can’t say. You
are fascist Thugs.
Who masquerade as politicians with your bullying tactics. I will not
be deterred by you. Nor am I worried that
your supporters will try
and hurt me. We live in a constitutional state. And we will defeat
forces such as the EFF who want to
try and push back the democratic
space in which we work. As for the cowards who don’t have the
courage to stand up to you
publicly here on this platform say shame
on you. Today its me. Tomorrow its you. I fought against apartheid
colonialism and I will
fight against thugs today who try and take my
freedom away. I am not afraid of you. Any of you. Here me on that.
Let it sink in.
I will not go away and hide…you have no idea
about me. And you cannot stand the fact that I am not afraid or
intimidated
by you. You are not a political party. You are thugs who
intimidate journalists. And I am telling you it won’t work with
me’.
[12]
On 9
March 2019, Ms Brown referred a complaint to the Independent
Electoral Commission (“IEC”)
[1]
with a request under section 95 of the Electoral Act
[2]
(“the Act”) that its chairperson institute criminal
proceedings as well as civil proceedings against the respondents
and
to impose an appropriate remedy under section 96(2) for breaches of
section 94 of the Act. She alleged breaches of sections
1, 3(a)-(c),
4, 6, 8(c), 9(a)-(d) of the Electoral Code and reserved the right to
institute proceedings if the IEC declined to
do so.
[13]
On 21 March 2019, she was informed by the
independent investigators appointed by the IEC, Bowmans attorneys,
that if she wished
to institute proceedings against the respondents
whilst the investigation was pending, the IEC should be informed
accordingly.
[14]
On 15
April 2019, the IEC addressed a communication, styled “resolution”,
to the parties in which it pointed out the
limitation on its powers
to adjudicate alleged prohibited conduct under Part 1 of Chapter 7 of
the Act and sought agreement from
the parties to attempt to resolve
their disputes through conciliation
[3]
.
No conciliation took place.
[15]
On 18 April 2019, after investigation, the
IEC declined Ms Brown’s request. Its resolution concludes:
”
Given
that there remain disputes of fact and there are issues outside the
jurisdiction of the Commission, the Chief Electoral Officer
will not
be instituting or joining proceedings against the EFF or Mr Malema
which Ms Brown may institute. In addition, the Chief
Electoral
Officer will not be in a position to join Ms Brown in laying criminal
charges against the EFF or Mr Malema, as proposed.”
[16]
In the interim, and on 10 April 2019, at a
further press conference of the EFF, Mr Malema offered an apology to
Ms Brown “if
she was offended by what I did”, stating
that it was not his intention to publish her number or that people
would insult
her.
[17]
Pursuant to the IEC’s resolution, Ms
Brown launched an urgent application in the high court, in which she
sought orders:
(a) Granting her leave to
institute these proceedings in the high court;
(b) Declaring that the
respondents have contravened clauses 2, 3, 6 and 8 of the Electoral
Code as contained in Schedule 2
to the Electoral Act 73 of 1998 (the
Act”) and section 94 of the Act.
(c) Issuing a formal warning to
the respondents in terms of section 96(2)(a) of the Act;
(d) Directing the respondents to
pay a fine of R100 000, jointly and severally, the one paying the
other to be absolved, in
terms of section 96(2)(b) of the Act;
(e) Directing the respondents to
publish an apology to her on their respective Twitter handles within
24 hours of the granting
of an order;
(f) Costs of suit on a punitive
scale.
[18]
Ms Brown brought the application in her own
interest and in the public interest under section 38 of the
Constitution, specifically
in the interests of women and journalists,
who are expressly afforded protection by the Electoral Code.
[19]
The third respondent, the IEC, abides the
decision of this court and has not participated in the proceedings.
[20]
The respondents raised a number of
technical defences. It is to those defences that I now turn
before considering the merits
of Ms Brown’s application.
Rule 30(1) application
[21]
The respondents launched an interlocutory
application in terms of r 30(1) of the Uniform Rules of Court in
which they sought an
order declaring the founding papers an irregular
step and striking the application from the roll with costs. The
application raised
two primary issues; jurisdiction and urgency.
[22]
The nub of the application related to the
applicant’s failure to properly set the matter down in the
Electoral Court. It was
contended that the High Court lacks
jurisdiction and, in the alternative, that the application breached
the Uniform Rules of Court
and the Practice Manual of this division
pertaining to urgency. Ancillary thereto, they objected to Ms Brown’s
attempts at
obtaining directions from the Deputy Judge President of
this division regarding the allocation of a date for the hearing of
this
application.
Jurisdiction
[23]
During argument the respondents sought a
determination of the question of jurisdiction as a preliminary issue.
They advised that
appeal proceedings might follow if the ruling was
adverse to them. Ms Brown objected to their approach.
[24]
A
determination of the question of jurisdiction must be made before any
other issue, because without jurisdiction this court has
no power to
make any order in this application
[4]
.
It does not however mean that the question must be determined
separately and in isolation before argument on any other issue can
be
presented. Each case must be determined on its own merits. I declined
the respondents’ application that the question be
determined in
limine and separate from the remainder of the issues. In my view,
this would not be in the interests of justice and
would have resulted
in a piecemeal hearing and adjudication of the application.
[25]
Whilst
it was not disputed that the high court has concurrent
jurisdiction
[5]
under s 20(4) of the Electoral Commission Act
[6]
,
it was contended that Ms Brown disregarded the practice that the
courts prefer the specialist forum where there are two forums
with
concurrent jurisdiction over a particular matter. Reliance was placed
on various authorities pertaining to the purpose-built
employment
framework created by the Labour Relations Act and associated
legislation, which are distinguishable. Mindful of the
policy
consideration that the Constitution recognises the need for
specificity and specialisation in a modern and complex society
under
the rule of law and that the legislature is sometimes specifically
mandated to create detailed legislation for a particular
purpose
[7]
,
it is necessary to consider the relevant legislation.
[26]
Sections 20 (4)(a) and (b) of the Electoral
Commission Act empowers and enjoins the Electoral Court to make rules
regarding electoral
disputes and complaints about infringements of
the Electoral Code of Conduct as defined in
section 1
of the
Electoral Act and
to determine which courts shall have jurisdiction
to hear particular disputes. The Electoral Court has made such rules,
being the
Rules Regulating Electoral Disputes and Complaints about
Infringements of the Electoral Code in Schedule 2 of the
Electoral
Act 73 of 1998
and Determination of Courts Having Jurisdiction (“the
Rules”).
[27]
In terms of r 2, the magistrates court and
the high court have jurisdiction and this court has the jurisdiction
to impose the sanctions
presently sought by the applicant under
section 96(2) of the Act. It is furthermore undisputed that the
complaint has arisen within
the area of jurisdiction of this court.
[28]
The
jurisdiction issue was expressly addressed in
National
Congress v Democratic Alliance
[8]
,
where it was found that in terms of the Rules, the Electoral Court
may only be approached as a court of first instance when a
violation
of the
Electoral Act might
justify a sanction in terms of sections
96(2)(h) and (i) of the Act. In all other instances, justifying a
lesser sanction under
section 96(2), the relevant high court or
magistrates court has jurisdiction. The jurisdiction of the high
court is thus extended,
but the high court does not become an
electoral court for these purposes.
[9]
I respectfully agree with these conclusions.
[29]
Considering the structure of the relevant
provisions, no preference is expressed by the legislature for the
specialist court as
a court of first instance save in relation to
sanctions under section 96(2)(h) and (i) of the Act. The respondents’
challenge
to the jurisdiction of this court must thus fail.
[30]
The
respondents’ alternative contention that the matter should have
been brought in the magistrates court, also lacks merit.
A
magistrates court has no jurisdiction to make a declaratory
order
[10]
,
which is part of the relief sought by Ms Brown.
[31]
In
terms of the full bench decision of the Gauteng Division in
Nedbank
v Thobejane and related matters
[11]
,
leave is required to bring a matter before the high court where it
shares concurrent jurisdiction with the magistrates court.
Although
Thobejane
may
be distinguishable on the basis that it pertains to matters where
civil money judgments are sought, I consider myself bound
by it. In
the circumstances of this matter and specifically the nature of the
relief sought, which includes declaratory relief
extraneous to the
relief sought under section 96(2) of the Act, I consider it in
the interests of justice to grant Ms Brown
leave to institute these
proceedings in the high court.
Urgency
[32]
The respondents disputed the urgency of the
application and they contended that it was not properly enrolled and
did not comply
with the requirements of the Practice Manual relating
to urgent applications. These contentions underpin the second ground
of the
Rule 30 application.
[33]
The applicant
inter
alia
relied on sections 20(1), 20(2),
20(4) and 20(5) of the Electoral Commission Act which provide that
hearings and appeals shall enjoy
precedence in the courts of law, and
Rules 4(6) to (8), which provide for truncated time periods for the
exchange of affidavits
in matters which involve an infringement of
the Electoral Code. Rule 4 (11) of the Rules expressly provides that
the Uniform rules
are, subject to that rule,
mutatis
mutandis
applicable in respect of
applications except insofar as otherwise provided. The Practice
Manual does not expressly provide for
the enrollment of matters
concerning a breach of the Electoral Code. The rules create a regime
in terms of which infringements
of the Electoral Code are to be dealt
with on an expedited and urgent basis.
[34]
The respondent’s criticism of Ms
Brown’s attempts at obtaining directions from the Deputy Judge
President’s office
lacks merit. The correspondence culminated
in a directive from the Chairperson of the Electoral Court that the
matter be dealt
with by the urgent court of the court where the
application was issued.
[35]
Every matter must be considered on its own
merits in order to determine whether any deviation from the rules and
practice is permissible
in a given situation. In the present
instance, I was persuaded that the nature and extent of the
deviations were justified and
that sufficient grounds existed to
enroll the matter on the urgent roll.
[36]
Ms Brown sought a determination of the
matter prior to the elections on 8 May 2019 on the basis that the
outcome of the application
should be known prior to members of the
public exercising their votes in the election. Despite sufficient
grounds having been established
to hear the matter on the urgent
roll, I was not persuaded that the urgency was such that it required
an immediate determination,
considering the political undertones of
the application. In addition, as the characterisation of the
penalties under section 96(2)
and the applicable test was not fully
addressed in argument on 6 May 2019, the parties were requested to
provide additional submissions
on the issue early the morning after
the hearing. These were not timeously received to enable a proper
consideration and determination
of the matter prior to the election.
[37]
Ms Brown urged me to find that the Rule 30
application was an abuse of the process of this court and a stratagem
to avoid the application
being heard, justifying the granting of a
punitive costs order. Whilst I conclude that there is merit in
this contention
and the application should be refused, I am not
persuaded that a punitive costs order would be appropriate. The Rule
30 application
falls to be dismissed with costs.
The legislative framework
[38]
The relevant provisions of the Act must be
interpreted applying section 39(2) of the Constitution which
provides: “
When interpreting any
legislation and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
object of the Bill of Rights
”.
[39]
The Act provides in general terms for the
regulation of elections for the National Assembly, the Provincial
Legislature and Municipal
Councils and related matters.
[40]
Section 2 of the Act provides as follows:
“
Every
person interpreting or applying this act must-(a) do so in a manner
that gives effect to the constitutional declarations,
guarantees and
responsibilities contained in the constitution; and (b) take into
account any appropriate code”.
[41]
Section 94 forms part of the prohibitions
under Part 1 of Chapter 7 of the Act. It provides as follows:
“
No person
or registered party bound by the Code may contravene or fail to
comply with a provision of the Code”.
[42]
In terms of section 27(2)(a) of the Act,
any registered party that intends to contest an election must, when
it submits a list of
its candidates, provide a prescribed undertaking
binding the party, persons holding political office in the party and
its representatives
and members to the Electoral Code. Under section
99 of the Act, the Electoral Code must be subscribed to by every
registered party
before that party is allowed to contest an election,
and by every candidate before that candidate may be placed on a list
of candidates.
The respondents are thus expressly bound by the Code.
[43]
The Electoral Code of Conduct Is contained
in Schedule 2 to the Act. The purpose of the provision is informed by
Item 1 of the Electoral
Code of Conduct which provides:
“
The
purpose of this Code is to promote conditions that are conducive to
free and fair elections, including:- (a) tolerance of democratic
political activity; and (b) free political campaigning and open
public debate
.
[44]
The relevant provisions of the Code which
the applicant contends have been contravened by the respondents,
state as follows:
“
2
Promotion of Code:
Every registered
party and every candidate bound by this Code must:- (a) promote the
purpose of the Code when conducting an election;
(b) publicise the
Code widely in any election campaign: and (c) promote and support
effort in terms of this Act to educate voters.
3 Compliance
with Code and electoral laws:
Every registered party and every
candidate must:- (a) comply with this Code; (b) instruct- (i) in the
case of a party, its candidates,
persons who hold political office in
the party, and its representatives, members and supporters, to comply
with this code, and
any applicable electoral laws; or (ii) in the
case of a candidate, the representatives and supporters of the
candidate to comply
with this Code and any applicable electoral laws;
(c) take all reasonable steps to ensure- (i) in the case of a party,
that its
candidates, persons who hold political office in the party,
and its representatives, members and supporters, comply with this
Code
and any applicable electoral laws; or (ii) in the case of a
candidate, that the representatives and supporters of the candidate
comply with this Code and any applicable electoral laws.
6
Role of women:
Every registered party and every
candidate must- (a) respect the right of women to communicate freely
with parties and candidates;
(b) facilitate the full and equal
participation of women in political activities; (c) ensure the free
access of women to all public
political meetings, marches,
demonstrations, rallies and other public political events; and (d)
take all reasonable steps to ensure
that women are free to engage in
any political activities.
8
Role of Media:
Every registered party and every
candidate- (a) must respect the role of the media before, during and
after an election conducted
in terms of this Act; (b) may not prevent
access by members of the media to public political meetings, marches,
demonstrations
and rallies; and (c) must take all reasonable steps to
ensure that journalists are not subjected to harassment,
intimidation, hazard,
threat or physical assault by any of their
representatives or supporters.”
[45]
Section 96(2) of the Act provides:
“
If a
court having jurisdiction by virtue of section 20(4)(b) finds that a
person or registered party has contravened a provision
of Part 1 of
this Chapter, it may in the interest of a free and fair election
impose any appropriate penalty or sanction on that
person or party”,
(including the sanctions listed in (a) to (g))
[46]
Section 96(3) provides:
“
Any
penalty or sanction provided for in this section will be in addition
to any penalty provided for in Part 3 of this chapter”.
[47]
Part 3 of Chapter 7 regulates offences and
penalties. Section 97 provides: “
Any
person who contravenes a provision of Part 1 of this Chapter or a
provision of section 107, 108 or 109, is guilty of an offence”.
Under section 98, any person convicted
of any offence in terms of section 94, is liable to a fine or to
imprisonment for a period
not exceeding 10 years. These sections make
no reference to a registered party.
[48]
To determine what the applicable test is to
determine whether the respondents have breached the Code it is
necessary to consider
the characterisation of the sanctions and
penalties imposed by section 96(2) of the Act.
[49]
As
stated by the Constitutional Court in
Democratic
Alliance v African National Congress
[12]
,
these are tough provisions, which could operate with calamitous
effect on a person or party who falls foul of them. In case of
doubt,
the prohibitions are to be interpreted restrictively. Any ambivalence
or uncertainty about their meaning, must be resolved
in favour of
liberty. There is further an interpretive presumption that a penal
provision includes a requirement of fault, unless
there are clear and
convincing indications to the contrary.
[13]
The Constitutional Court further cautioned that where criminal
liability and the imposition of the severe penalties under the Act
are sought to be enforced, the issue of fault would become
crucial
[14]
.
I accept that for present purposes, fault is a requirement and strict
liability is excluded.
[50]
In the present instance, there is no doubt,
ambivalence or ambiguity in the provisions of Section 94. It was not
contended in argument
that there was any ambiguity, either in section
94 or in the provisions of the Code relied upon by Ms Brown.
[51]
It is
apposite to follow the approach adopted by the Supreme Court of
Appeal in
Pather
and Another v Financial Services Board and Others
[15]
to determine whether the penalties are of a criminal nature.
As
in
Pather
,
the present proceedings are not of a criminal nature. That the facts
underpinning the complaint can as well give rise to a criminal
offence does not alter the nature of the present complaint, which is
primarily concerned with the exercise of a disciplinary power
in
respect of a limited group of persons possessing a special status.
There is no formal accusation of a breach of the criminal
law and the
proceedings are not initiated by way of a criminal charge.
[52]
Ordinarily,
the purpose of an administrative penalty is to ensure compliance with
the legislation and to give any regulatory authority
an effective
means of enforcing it. Contraventions have to be discouraged and
offences punished for the system to be viable
[16]
.
In
determining the nature of the penalty, the following was said by the
Supreme Court of Appeal in
Pather
:
“
The
relevant question is not the amount of the penalty in absolute terms,
it is whether the amount serves regulatory rather than
penal
purposes. The fact that the penalty is intended to have a deterrent
effect does not mean it is not administrative in nature,
because
deterrence ‘may serve civil as well as criminal goals’.
Accordingly, to hold that the mere presence of a deterrent
purpose
renders such sanctions ‘criminal’ for double jeopardy
purposes would severely undermine the Government’s
ability to
effectively regulate institutions.
[17]
[53]
In
applying these principles, I am not persuaded that the penalties in
section 96(2) impose ‘a true penal consequence’
in the
sense of deprivation of liberty. As was the case in
Pather
,
the administrative penalties and regulatory provisions are collateral
to the other provisions of the Act and whilst some have
a punitive
aspect, they are not criminal or quasi criminal in nature
[18]
.
These proceedings cannot be characterised as being criminal in
nature.
[54]
The
applicable standard to be applied is the normal civil standard
[19]
.
It should however be borne in mind that these are motion, not
action proceedings.
Merits
[55]
The
relief which Ms Brown seeks is final in nature and the application
falls to be determined applying the test enunciated in
Plascon
Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[20]
,
thus on the respondents’ version, together with any facts Ms
Brown admitted, unless the respondents’ version is so
far-
fetched and untenable that it can be rejected on the papers alone. As
these are motion proceedings, a balance of probabilities
is not
applicable.
[56]
To
determine whether the respondent’s version should be rejected
on the papers, the Supreme Court of appeal enunciated the
test thus
in
Wightmant/a
JW Construction v Headfour (Pty) Ltd and Another
[21]
:
“
A real
genuine and bona fide dispute of fact can exist only where the court
is satisfied that the party who purports to raise the
dispute has in
his affidavit seriously and unambiguously addressed the fact said to
be disputed…when the facts averred are
such that the disputing
party must necessarily possess knowledge of them and be able to
provide an answer (or countervailing evidence)
if they be not true or
accurate but, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally
have difficulty in finding
that the test is satisfied. I say ‘generally’ because
factual averments seldom stand apart
from a broader matrix of
circumstances all of which needs to be borne in mind when arriving at
a decision”.
[57]
The
present application must be viewed in the context of the right to
freedom of the press under section 16(1) of the Constitution
and the
importance of the role of the mass media in a democratic society.
[22]
It must also be viewed in the context of the relationship between the
parties. The parties were in agreement that this application
does not concern the right to free speech.
[58]
The background facts which triggered the
application were by and large undisputed.
[59]
Ms Brown is a senior political journalist
who has denied that she is part of the intelligence community or that
she is a member
of the ANC or any other political party. She
justified her message, which she erroneously had sent to the EFF
WhattsApp group,
as one emanating from “a bona fide and
responsible, if critical, journalist”.
[60]
The respondents strongly contend the
opposite, which is put up to justify their conduct. It is alleged
that Ms Brown is not a private
person but a well-known public figure,
who is biased and prejudiced against the EFF and that these are
reasonable grounds to have
treated her messages with suspicion and to
have drawn attention to them on Twitter. It was further argued that
Ms Brown’s
conduct falls foul of the press code and amounts to
a relentless campaign against the EFF. Thus, it was argued that the
respondents
have merely expressed their right to freedom of
expression, that there was no harassment or intimidation of the
applicant and that
their comments are justified, considering Ms
Brown’s conduct. It was contended that a journalist who attacks
a political
party outside the prescripts of journalistic pursuit and
the press code is not entitled to the protection normally afforded by
the Constitution. It was further contended that the application is an
abuse, intended to disrupt the election campaign of the EFF
in
violation of its rights and those of Mr Malema.
[61]
These arguments however disregard the focus
of the present enquiry; it is not the conduct of Ms Brown, who is not
bound by the Code,
but the respondents’ compliance with their
own obligations under section 94 of the Act and the Code. The
respondents did
not launch any counter application for relief against
Ms Brown consequent upon her alleged conduct. They have
appropriate
remedies at their disposal to address any improper
conduct on the part of Ms Brown which they may perceive. There is no
evidence
that they have pursued them.
[62]
The respondents’ mistrust of Ms Brown
and criticism of her conduct however provides context and informs
their conduct. Ms
Brown’s own strident and politically laced
responses to the barrage of abuse served to further fuel the flames
of discord.
It is not surprising that her WhattsApp message was
considered provocative and was treated with suspicion by the
respondents and
their stance was hardened as a result of Ms Brown’s
resultant conduct.
[63]
From her communications on certain social
media and other platforms it is clear that she participated actively
in very robust political
debate and held very strong negative views
regarding the respondents. There may well be merit in their criticism
of her conduct,
but it does not avail the respondents to simply
attack her conduct in order to deflect attention from their own.
[64]
To determine whether there was a
contravention of the Code, the conduct of both the EFF and Mr Malema
must be considered throughout
the period which followed Mr Malema’s
post on Twitter and in context of his influence over his
approximately 2.38 million
Twitter followers.
[65]
There is no evidence to gainsay Mr Malema’s
express evidence that he did not intentionally include Ms Brown’s
cellular
telephone number in his tweet of 5 March 2019 but
inadvertently did so as he wished to place the entire message in
context to avoid
being accused of distributing “fake news”.
He tendered this explanation in a press statement on 6 March 2019. Ms
Brown’s
averment that this was intentional is not supported by
any evidence and is controverted by Mr Malema’s direct evidence
as
to his intention.
[66]
On 6 March 2019, the EFF published a
statement on its Facebook page containing various statements
regarding Ms Brown, including
that she is not a real journalist, but
an ANC operative and state agent and had sought to send moles to an
EFF event on behalf
of the ANC. This resulted in an emotional
response from numerous persons who, on their self-expressed versions,
are supporters
of the EFF. There is no reason to doubt the source of
the threats as emanating from these self-professed EFF supporters.
[67]
The respondents allege that the EFF
supporters took to Twitter to voice their frustration with Ms Brown
and her bias and would not
have done so but for her own WhattsApp
message. This illustrates that the respondents were well aware that
their posting of the
message on Twitter and subsequent Facebook
statement would foster mistrust in Ms Brown and reasonably must have
anticipated that
it would elicit a response from EFF supporters.
[68]
Whilst Mr Malema also stated at a press
conference on 6 March 2019 that no person should be threatened with
rape and violent crime,
he made statements of and concerning Ms Brown
which restated and emphasised the very basis on which the harassment
of Ms Brown
had been based. There was no attempt to curtail the
self-professed EFF supporters from continuing with their harassment
of her
or any instruction to them to desist from their conduct. It is
also unclear whether all of the 2.83 million Twitter followers would
have been aware of the press statement or would properly have
contextualised or appreciated Mr Malema’s statement that no
person should be threatened with rape and violence. Absent proper
contextualisation by Mr Malema, his comments would not have the
requisite results of calling the EFF supporters to order and to
instruct them not to harass journalists and specifically Ms Brown.
[69]
In their answering papers, the respondents
did not meaningfully address their failure to take any steps to stop
or stem the tide
of abuse and intimidation directed at Ms Brown,
despite such facts being peculiarly within their knowledge. It was
not suggested
that they were not aware of their obligations under the
Code or that there was any attempt at compliance with such
obligations.
[70]
The respondents further did not contend
that they were not aware of the threats received by Ms Brown. These
threats were expressly
brought to the attention of the Mr Malema and
other members of the EFF leadership by other journalists who
requested them to intervene
and stop the abuse. Mr Malema expressly
refused to do so and effectively fueled the flames by repeating
accusations regarding Ms
Brown’s status as an ANC operative and
mole.
[71]
The respondents’ bald denial that
their allegations that Ms Brown is a member or agent of the ANC was
the catalyst which triggered
the barrage of abuse from self-professed
EFF supporters, is untenable. The abuse commenced immediately after
the posting of Mr
Malema’s Tweet and endured until as late as
27 April 2019, well after Mr Malema tendered an apology on 10 April
2019, more
than a month later.
[72]
The
respondents’ bald denial of a causal connection between them
and the conduct of the EFF supporters is also untenable.
The
respondents’ respective obligations as political party and
candidate under Item 3 of the Code, insofar as it pertains
to
supporters of the EFF, are to instruct both its members and
supporters to comply with the Code
[23]
and to take all reasonable steps to ensure that both members and
supporters comply with the Code
[24]
.
The use of the conjunctive “and” between members and
supporters indicate that these obligations are not limited to
the
leadership or members of the EFF but also apply to EFF supporters.
[73]
Under
Item 2 of the Code, the respondents are obliged to promote and
support efforts to educate voters and to widely publicise the
Code in
any election campaign.
[25]
The respondents are thus obliged to educate and thus familiarise
their members and supporters with the provisions of the Code,
so that
the latter are aware of what is expected of them.
[74]
Under
Item 8 of the Code, the respondents
are
expressly obliged to take all reasonable steps to ensure that
journalists are not subjected to harassment, intimidation, hazard,
threat or physical assault by any of their representatives or
supporters
[26]
.
Upon a reading of the express provisions, the respondents’
obligations extend beyond the ambit of members of a political
party
and includes its supporters.
[75]
What steps would be considered objectively
as reasonable would depend on the circumstances. In the present
instance it would be
reasonable to expect the respondents, once they
had been aware of the barrage of threats directed at the applicant,
to take active
steps to admonish their supporters and to caution and
instruct them to refrain from their offending conduct. Considering
the content
of the threats directed at Ms Brown, they fall well
within the ambit of being harassing, intimidatory, hazardous and
threatening.
[76]
The respondents’ conduct falls short
of what a reasonable person would consider reasonable in all the
circumstances. When
requested to intervene and instruct their
followers on Twitter to stop their harassment of Ms Brown, the EFF
ignored the requests
and Mr Malema refused to do so.
[77]
The respondents repeated and emphasised
their views regarding Ms Brown whilst fully aware of the intimidatory
conduct it was eliciting
from their followers. Whilst Mr Malema later
publicly stated that it was wrong to threaten people with rape and
violent crimes
in general terms, he did not condemn the abuse of Ms
Brown directly and did not instruct his supporters from desisting
from such
conduct, rather addressing the issue in broad and generic
terms. Their conduct exhibited scant regard for the fact that Ms
Brown,
as a woman, was especially vulnerable to threats of rape and
violence in a society in which gender-based violence is prevalent.
[78]
The respondents contended that the issue
could have been amicably resolved if Ms Brown had approached Mr
Malema directly instead
of turning to the IEC and had provided the
EFF with the names and contact details of the individuals who had
sent the threatening
messages and made the abusive calls, as she was
invited to do by the EFF’s national chairperson. It was
suggested that she
could obtain such information through the various
cellular service providers and could get the SAPS to assist her.
Absent such
information, they were powerless to do anything
meaningful to protect her. It was further contended that the EFF
would not have
hesitated to take disciplinary steps against the
offenders. Considering the stance adopted by the respondents and
their conduct,
including their disavowal of any responsibility for
the conduct of their supporters, these averments are speculative and
untenable.
[79]
On the respondents’ own version, it
was not disputed that they were fully aware of their actions and
specifically the consequences
of their inaction, the impact thereof
on their supporters and the conduct and consequences which followed.
If the respondents did
not deliberately intend them, they at least
stood reckless to the results which, although they may not have
foreseen them initially,
were reasonably foreseeable once they had
been brought to their attention on more than one occasion from
different sources.
[80]
The explanations proffered for failing to
take any active steps do not pass muster. The respondents did not
need to know the identities
of their followers to instruct them in
general to stop intimidating or threatening Ms Brown. A general and
abstract condemnation
of abuse is not what was reasonably required
from the respondents.
[81]
I find, therefore, that the respondents
failed to instruct their supporters to comply with the Code and to
take reasonable steps
to ensure compliance therewith, as expressly
required by Items 3 and 8 of the Code.
[82]
For the above reasons I find that the
respondents failed to comply with their obligations as specified by
Items 3(a), 3(b) and 8(c)
of the Code.
[83]
In failing to comply with their obligations
under Item 8(c) of the Code, the respondents in the process further
failed to adhere
to their obligations under Item 6(a) of the Code,
being to respect the right of women to communicate freely with
parties and candidates.
[84]
In my view, the wording of section 94 of
the Act is not ambiguous and relates to any transgression of the
Code. It was not contended
in argument that the wording of the
various items of the Code relied on are ambiguous or unclear or that
the breaches alleged were
not material.
[85]
It follows that the first and second
respondents have failed to comply with the Code and have contravened
section 94 of the Act.
[86]
The evidence, however, in my view does not
establish any breach of the remaining Items of the Code relied on by
Ms Brown, and she
cannot succeed with the relief sought in respect
thereof.
Declaratory relief
[87]
The
determination of whether declaratory relief should be granted is
subject to a two- stage enquiry
[27]
.
First it must be determined whether Ms Brown has an interest in any
existing, future or contingent right or obligation
[28]
,
notwithstanding that she cannot claim any relief consequent upon the
determination. If this is established, a discretion must
be exercised
whether she should be granted relief.
[88]
The
respondents contended that Ms Brown relied on nothing more than an
anxiety that there is a significant risk of a chilling effect
on
robust media reporting, which she said imperils the prospect of a
genuinely free and fair election. I do not agree. Media freedom
is one of the cornerstones of a democratic society which enjoys
protection under section 16(1) of the Constitution and plays an
important role.
[29]
[89]
In support of this contention, the
respondents relied on what is termed “findings” by the
IEC. It is contended that
these findings, as emanating from a Chapter
Nine Institution, stand until set aside. It is common cause that Ms
Brown has not sought
to institute review proceedings against the IEC
resolution. It is argued that, as considerations of public policy
come into play
in the exercise of a discretion, Ms Brown’s
conduct in seeking a parallel finding from the high court is
impermissible and
against public policy as it sets a precedent that
will have deleterious effects on the rule of law.
[90]
This argument must fail. Ms Brown’s
request to the IEC in its express terms requested the chief Electoral
Officer to institute
proceedings under section 95 of the Act and
approach a court in terms of section 96(2) of the Act to impose an
appropriate sanction.
It did not seek an adjudication of the alleged
breaches, nor did the IEC do so.
[91]
Under
the Electoral Commission Act, the IEC lacks the power to adjudicate
the present dispute, as appreciated by the IEC who notified
the
parties accordingly in its resolution of 15 April 2019. It is only
empowered to “
adjudicate
disputes which may arise from the organisation, administration or
conducting of elections and which are of an administrative
nature
[30]
.
This lack of jurisdiction was also recognised in the IEC’s
resolution of 18 April 2019. Seen in context, the IEC’s
resolution did no more than provide the parties with its reasons for
declining to institute proceedings as requested from it by
Ms Brown.
[92]
I am not persuaded that public policy
considerations militate against the granting of declaratory relief or
that Ms Brown was constrained
to institute review proceedings rather
than the present application. To the contrary, public policy
considerations favour the granting
of relief.
[93]
The respondents further contended that Ms
Brown’s purpose with the application is not to promote free and
fair elections but
rather to act as a nuisance factor. In my view it
cannot be accepted that the purpose of the application is not
bona
fide
. I do, however, not agree with Ms
Brown’s contention that it was imperative that an order be
granted prior to the election,
as there is merit in the respondents’
contention that any order granted could have been used for political
gain.
[94]
I am satisfied that Ms Brown has
illustrated an interest in an existing and future right or
obligation. The issues which arise in
the application pertain to a
historic breach of the Electoral Code during the run up to the 2019
elections and remain germane to
the interests of free and fair
elections going forward.
[95]
Appropriate
and effective relief under section 96(2) of the Act may include a
declaration of rights.
[31]
Were declaratory relief granted in specific terms, it would inform
the respondents as to their duties going forward and may well
have a
deterrent effect on conduct which falls short of the Code. I conclude
that it would in the circumstances be an appropriate
exercise of the
discretion afforded to grant certain declaratory relief.
Sanctions
under section 96 (2) of the Act
.
[96]
Section 96(2) provides:
“
If a
court having jurisdiction by virtue of section 20(4)(b) finds that a
person or registered party has contravened a provision
of Part 1 of
this Chapter, it may in the interest of a free and fair election
impose any appropriate penalty or sanction on that
person or party,
including……..(the sanctions listed in (a) to (g))
[97]
In
considering what penalty or sanction is appropriate, this court has
the duty to ensure that any violation of the Act is cured
with
effective relief.
[32]
The applicant has sought a formal warning and the imposition of a
fine of R100 000.00.
[98]
Considering
the express wording of the section, the sanctions are not limited to
those listed in subsections 2(a) to 2(g) and affords
a discretion
which must be exercised judicially. The listed sanctions do not
relate only to those that can be imposed before an
election, but also
to sanctions that can be imposed thereafter
[33]
.
[99]
In my view, the violation of the Act
principally lies in the respondents’ failure to instruct and
take reasonable steps to
ensure that their supporters do not harass,
intimidate, threaten or abuse journalists and especially women. The
respondents’
previous conduct cannot be countenanced which has
had the effect of jeopardising free and fair elections by fostering a
chilling
effect on robust media reporting. Relief is not rendered
moot because the May 2018 elections have passed.
[100]
The factors which must be taken into
account in determining an appropriate sanction include the context in
which these proceedings
arose and the role Ms Brown herself played in
triggering the chain of events and the resultant discord which
followed. Ms Brown’s
WhattsApp message that had been
erroneously sent to the EFF’s WhattsApp group ignited the
hostility with which the respondents
responded. The strident and
political tone adopted by Ms Brown in her responses on social media
to the EFF, only fueled the flames
of discord and did little to
garner the respondents’ sympathy for her plight. Whilst the
conduct of the respondents must
be severely criticised and the supine
attitude they adopted to their obligations condemned, the provocative
stance adopted by Ms
Brown constitutes a weighty mitigating factor in
determining an appropriate sanction.
[101]
As
stated by the Constitutional Court in
DA
v ANC
:
[34]
“
Political
life in democratic South Africa has seldom if ever been polite,
orderly and restrained. It has always been loud, rowdy
and fractuous.
That is no bad thing. Within the boundaries the Constitution sets, it
is good for democracy, good for social life
and good for individuals
to permit as much open and vigorous discussion of public affairs as
possible”.
[102]
In my view, the imposition of a formal
warning under section 96(2)(a) of the Act would be an appropriate and
effective sanction,
which would serve as a guideline to the
respondents for their obligations and future conduct. It would also
serve as an effective
deterrent against any future transgressions as
in any future proceedings the existence of a prior sanctioned
infringement would
be taken into account in imposing any appropriate
sanction.
[103]
Considering all the facts and factors, I am
not persuaded that the additional imposition of a fine in an
arbitrary amount would
be a necessary further deterrent sanction. It
was not contended in argument that any other sanctions would be
appropriate.
Apology
[104]
Ms Brown further sought an apology from the
EEF and Mr Malema on their respective Twitter handles. She has not
particularised the
terms of the apology sought.
[105]
It is not disputed that Mr Malema has
publicly apologised to Ms Brown for publishing her cellular telephone
number on Twitter. Her
complaint is that the apology was belated and
insincere. Mr Malema apologised for publishing Ms Brown’s
number on various
occasions,
inter alia
at a press conference held by the respondents on 10 April 2019. The
apology was recorded thus in a media article, relied on by
the
respondents:
“
If
Karema had said to me you can’t put my number on Twitter and
apologise, I would have apologised…If I offended Karema
in any
way I want to apologise today. If she is offended by what I did my
intention was not to insult her”.
[106]
In the answering papers, such apology was
repeated. In the respondents’ response to the request of the
IEC to engage in voluntary
mediation, they offered to condemn the
contents of the tweets received by Ms Brown as abusive, racist,
misogynist and unlawful
and to repeat such condemnation in public, if
needed. The papers are silent as to whether this was ever done.
[107]
Ms Brown does not accept these apologies,
which she considers to be insincere and an attempt at escaping
liability. Applying the
relevant test, I must accept the respondents’
version, which cannot be rejected on the papers as palpably false or
untenable.
[108]
In my view Ms Brown will be adequately
vindicated by the order I propose to make and an apology would only
serve to foster the animosity
which already exists between the
parties. Considering the context of the application, I am not
persuaded that an order should be
granted in the terms sought.
Costs
[109]
The parties each accused the other of an
abuse of process. As such they each sought a punitive costs order
against the other, including
the costs of two counsel. I am not
persuaded that it is in the interests of justice to grant a punitive
costs order. It was not
disputed that the complexities of the matter
justified the employment of two counsel.
[110]
For the above reasons I am satisfied that
Ms Brown is entitled to relief. There is no reason to deviate
from the normal principle
that costs should follow the result.
Order
[111]
I grant the following order:
(a) The respondent’s
application in terms of Rule 30(1) is dismissed with costs;
(b) The applicant is granted
leave to institute these proceedings in the High Court;
(c) It is declared that the
first and second respondents have contravened section 94 of the Act
by failing to comply with
the provisions of items 3(b), 3(c), 6(a),
6(c) and 8(c) of the Electoral Code as contained in Schedule 2 to the
Electoral Act 73
of 1998 (the Act”).
(d) A formal warning is issued
to the first and second respondents in terms of section 96(2)(a) of
the Act for contravening
section 94 of the Act as stated in (c)
above.
(e) The respondents are directed
to pay the costs of the application, including the costs of two
counsel, jointly and severally,
the one paying, the other to be
absolved.
_____________________________________
F
DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
06 May 2019
DATE
OF JUDGMENT
:
06 June 2019
APPLICANT’S
COUNSEL
: Adv
G Budlender SC
Adv C Steinberg
Adv
M Mbikwa (assisted with heads of argument)
APPLICANT’S
ATTORNEYS
:
Cliffe Dekker Hofmeyr Inc
A Pillay
RESPONDENTS’
COUNSEL
: Adv
V Ngalwana SC
Adv F Karachi
Adv K Premhid
RESPONDENTS’
ATTORNEYS
: Ian
Levitt Attorneys
Ms A Charalambous
[1]
Established under Chapter 9 of the Constitution and regulated by the
Electoral Commission Act 51 of 1996
[2]
73 of 1998
[3]
Acting under section 103A of the Act
[4]
Makhanya v
University of Zululand
2010 (1) SA 62
(SCA) para [29]
[5]
African National Congress v Democratic Alliance 2014 (3) SA 608 (GS)
[6]
51 of 1996
[7]
Gcaba v
Minister of Safety and Security and Others
2010 (1) SA 238
(CC)
paras [56] and [57]
[8]
2014(3)
SA 608 (GSJ) paras [13]-[14]
[9]
In an
appeal to the Constitutional Court in Democratic Alliance v African
National Congress
[2015] ZACC 1
the jurisdiction of the high court
was accepted and it was not suggested on appeal that the high court
had no jurisdiction, nor
that it was inappropriate to approach it as
court of first instance.
[10]
Steenkamp v
South African Broadcasting Corporation 2002 (1) SA 625 A at
para 11 and the authorities referred to therein.
[11]
(2019 (1)
SA 594
GP)
[12]
2015 (2) SA 232
(CC) paras [129]-[131], [154]-[157]
[13]
DA v ANC
Supra p
aras
[154]-[159], where fault was held to be a requirement under section
89(1)
[14]
Para 159
[15]
2018 (1) SA 161
(SCA) paras [12]-[13].
[16]
Pather para 10
[17]
Pather supra para 34, footnotes omitted
[18]
Pather supra para [10]
[19]
Pather
supra para [10] which refers to the civil standard and proof on a
balance of probabilities.
[20]
[1984] ZASCA 51
;
1984 (3) SA 623(A).
See also Zuma v National Director Public
Prosecutions
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para [26]
[21]
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) paras [12]-[13]
[22]
Khumalo and others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) paras [22]-[24];
National Media Ltd and Others v Bogoshi
1998 (4) SA 1196
(SCA) at
1209H-1210F
[23]
3(b)
[24]
3(c)
[25]
2(b) and (c)
[26]
8(c)
[27]
[2015]
ZASCA 118
(11 September 2015) para [17]
[28]
Section 21(1)(c),
Superior Courts Act 10 of 2013
[29]
Khumalo and others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) paras [22]-[24]
[30]
Section 5(1)(o)
of the
Electoral Commission Act 51 of 1996
[31]
African
National Congress v Democratic Alliance
Supra para [14.5]
[32]
African National Congress v Democratic Alliance supra para [14]
[33]
For example
section 96(2)(g)
[34]
2015 2 SA
232
CC para 33