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[2019] ZAECPEHC 83
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Malema v Rawula (1204/2019) [2019] ZAECPEHC 83 (12 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
REPORTABLE
Case No: 1204/2019
Date Heard: 10
October 2019
Date Delivered: 12
November 2019
In
the matter between:
JULIUS
SELLO
MALEMA
APPLICANT
and
THEMBINKOSI
RAWULA
RESPONDENT
JUDGMENT
MULLINS,
AJ
[1]
The Applicant,
JULIUS SELLO MALEMA
, is the president and
commander in chief of the Economic Freedom Fighters (“the
EFF”), a political party registered
in accordance with the
Electoral Act, 73 of 1998
, and a member of parliament.
[2]
The Respondent,
THEMBINKOSI RAWULA
, was until the events
described hereunder, a member of the EFF, who served on its Central
Command Team (“the CCT”),
which is the EFF’s most
senior decision-making body, and prior to the last general election a
member of parliament.
[3]
At the hearing of this matter the Applicant was represented by Mr
Premhid
and the Respondent appeared in person.
[4]
Alleging that a Facebook post written by the Respondent is defamatory
of him, in an
application launched in this Court on 21 May 2019, the
Applicant seeks the following relief:
a)
That the statements made by the Respondent, contained in annexure
“FA1” to the founding affidavit (“the statements”),
are declared to be defamatory of the Applicant;
b)
That the Respondent’s publication of the statements is
unlawful;
c)
That the Respondent be ordered to remove the statements from
all his
social media accounts, and his Facebook account in particular, within
24 hours of the granting of this Order;
d)
That the Respondent is ordered to publish on his social media
accounts, and his Facebook account in particular, a statement in
which he unconditionally retracts and apologises for the statements
made about the Applicant;
e)
That the Respondent is interdicted from publishing any further
statement that says or implies that the Applicant engaged in conduct
as described in, or similar to, the conduct described in annexure
“FA1” to the founding affidavit;
f)
That the Respondent is ordered to pay damages of R1,000,000.00
(one
million rand) to the Applicant;
g)
That the Respondent is to pay the costs of this application
on the
attorney and client scale.
[5]
The Respondent has opposed the application.
[6]
At the commencement of the matter there were a number of
interlocutory skirmishes.
The Applicant objected to what it referred
to as formal irregularities in the Respondent’s answering
affidavit, which rendered
it
pro non scripto,
and submitted
that I should have no regard thereto. The Applicant also
objected to the fact that the Respondent’s heads
of argument
were filed late. On his part the Respondent applied on notice
for condonation for the defects to his affidavit,
for the late filing
of the heads and also, from the bar, applied to file two
supplementary affidavits.
[7]
So as not to burden this judgment I do not intend dealing with these
preliminary issues
at length because, ultimately, they do not have a
bearing on the outcome. After hearing argument I delivered an
ex tempore
judgment and made the following orders:
(a)
In my discretion and in the interests of justice I condoned the
formal
defects in the Respondent’s answering affidavit;
(b)
On the basis that there was no prejudice to the Applicant, and none
was
alleged, I condoned the late filing of the Respondent’s
heads of argument;
(c)
I refused the Respondent’s application to file the two
supplementary
affidavits (one of which is 264 pages long inclusive of
annexures), which also consisted of two audio-visual discs, on the
basis
that a proper case had not been made out. In any event, on a
cursory perusal of these affidavits they consist largely of
repetitive,
irrelevant and hearsay allegations. For example,
the Respondent deals at length with the manner in which his
membership of
the EFF was terminated – did he resign or was he
expelled – which is totally irrelevant to the dispute before
me.
[8]
The Respondent’s answering affidavit also contains numerous
irrelevant and hearsay
allegations many which are repeated,
ad
nauseam
. No regard will be had thereto.
[9]
The background to the dispute is to be found to a large extent in the
Applicant’s
founding affidavit, as supplemented by the relevant
portions of the Respondent’s answering affidavit, and is mostly
common
cause, or not in dispute, and may be summarised as follows:
(a)
Prior to the 2019 general election the EFF elected its list of
parliamentary
candidates. The Respondent, who was a sitting member of
parliament at the time, was not on the list. The reasons for his
omission
differ. According to the Applicant the Respondent did not
make the cut. According to the Respondent he did, but his name was
removed
because the powers that be were unhappy with the
uncomfortable questions he was asking about the VBS Bank scandal and
the management
of the EFF’s finances in general;
(b)
Whatever
the reason, the Respondent was disgruntled by the snub and on 5 April
2019 he wrote a post on his Facebook page (attached
to the founding
affidavit as annexure “FA1”) which read as follows:
[1]
“
Dear Julius and
your surrogates
Re: Resignation from
the Economic Freedom Fighters immediately
1.
You note I have joined EFF in 2013 when it started in North
West Province, and along with many courageous men and women, we built
EFF from the ground up.
2.
I was elected in the CCT with a ticket of my province because
of hard work and dedication to the mission and vision of the EFF at
the time.
3.
I served the EFF as the CCT member and the member of the War
Council and in all these years, amongst many things I have suffered
is your abuse of power, abuse of organisational resources and funds
and intimidation of your fellow leaders.
4.
I have taken time in comfort and in calmness and made few
observations about the EFF I have joined in 2013 and the EFF we have
now
in 2019.
5.
The EFF I have joined committed itself to a corrupt free
society and as person of good morals, I joined EFF on the basis of
the
ticket of committing to a corrupt free society.
6.
In committing to the mission of economic freedom and building
a corrupt free society, I have dedicated my time and resources to
ensure the fulfilment of the mission.
7.
The organisation had no money or resources, but in our own
small corners we made it possible to build EFF from next to nothing.
8.
We did this because we believed in you as a leader also in the
mission of the Economic Freedom fighters, despite the fact that, all
of us were warned about you and your love for money.
9.
Indeed we were often reminded about your Limpopo gates of
scandals and how you looted it to the ground, we were reminded how
you
avoided legal compliance with the South African taxes and further
how you managed to stretch a simple R 25 0000 salary of the ANCYL
into millions to serve your lavish lifestyle and your Lousi Vittoni
lifestyle.
10.
Our commitment to the mission for economic freedom indeed
blinded us and to a large extent forced us to give you a benefit of
the
doubt. Indeed you fooled us all.
11.
Under your leadership, indeed we managed to get 6% of the 2014
elections, this is the power we could have used to engage black
people led political parties for more productive gains but instead
we have spent almost 5 years sharing your anger and hatred against
Zuma and the leadership of the ANC, because you are not happy with
the manner and the process that led your expulsion from the
ANC
.
12.
With the 6% of the EFF, you managed to get 61 seats across the
legislatures and extracted from your MPs/MPL’s almost R 7000
without consulting them because you argued that they are in
Parliament because of your popularity, a 7 000 which in to
total
gives you 427 000 monthly. Further to that, you are receiving not
less than 20 million per quarter in a year from these legislatures.
13.
This the money to make your MPs/MPL’s to do their job as
public representatives easier, using the constituent funds but you
took that money and service yourself and those in your proximity. You
have never taken your collective into confidence about your
expenditure of the EFF funds, this is despite the Constitution demand
for accountability from you as the Commander In Chief.
14.
You use the EFF money in whatever way you deemed fit without
consulting any of us, you threw parties whenever you feel after our
meeting trying to appease your guilt of EFF money consumption by
sharing the crumbs of it with EFF CCT members just to make them
feel
important around you, when you are just doing to appease your guilt.
15.
The little we could have appreciated at least, if you are
taking care of our deployment cost instead of guillotining with
exorbitant
costs of weekly deployment cost, such as car hire,
accommodation cost, buying T-shirts for EFF fighters and providing
food for
fighters at our own cost. If that was not abuse and
exploitation you will never know what is abuse and exploitation in
the EFF.
16.
In 2016 Local government elections, the EFF got an average of
10% votes and received 852 Councillors who on average pay the levy
of
almost R 2000 each which roughly equals to R1,704000. (1.7 Million).
Monthly. Again you never reported about this money in the
CCT and the
War Council, you refuse to be held accountable nor account about
these funds.
17.
If you willing to go extra miles to escape accountability
about organisational funds, what is your motives and what must we
make
about these motives should people of South Africa give you
political power over state resources?
18.
It is more worrying when you circumvent the process of the
election of a TREASURE GENERAL instead of complying with the
constitution,
you resort to tactics and appoint your favorable person
to be the custodian of funds and further impose yourself as the
signatory
despite the fact that you are a major beneficiary on those
funds, through allowances and credit card allocation to you.
19.
I have come to a decision that I am resigning from the
Economic Freedom Fighters, it is becoming clear that the EFF is your
bedroom,
kitchen, toilet and your yacht and I you will stop at
nothing to demonstrate that. You intimidate people who dare question
you,
you threaten them of possible removal from Parliament and you
scare them. You have turned good men and women into your surrogates
and political zombies. Indeed you force people to think with their
stomachs than their brains.
20.
It is my decision that I can no longer associate with the
Economic Freedom fighters in light of the above observations.
Accordingly
I have decided to escape your wrath, and your
intimidation tactics, consider this letter as my resignation as of
immediately.
Thank
you.”
(c)
The Facebook post was seized upon by the media in general and was
reproduced
and expanded upon in one form or another by,
inter
alia
, News 24, Eyewitness News, the Sunday Times, YouTube and
various TV news broadcasts. The Respondent also gave an interview to
the
radio station Power FM and gave two television interviews in
which he apparently repeated many of the allegations;
(d)
On 6 April 2019 the Applicant’s attorney sent the Respondent a
letter
of demand calling upon him to retract the statements made
about the Applicant, such retraction to be in the form of a public
statement
in which he apologises to the Applicant on account of the
allegations being untrue and defamatory, such public statement to be
posted on all the Respondent’s social media accounts and
distributed to all media houses with which he had conducted
interviews.
The letter of demand required the retraction to be given
effect to by 8 April 2019, failing which further legal action would
be
instituted against him;
(e)
On 7 April 2019 the Respondent replied to the Applicant’s
attorney
in a lengthy letter (it is six typed pages long),
inter
alia
, refusing to retract the allegations unless he is provided
with certain documentary information, mostly relating to the EFF’s
financial affairs.
Inter alia
, he asked for: the
production of various bank account statements for the past four
years; credit card statements together
with invoices corresponding to
their use; invoices relating to payment to service providers since
December 2014; agenda items and
minutes that demonstrated that at
each meeting of the EFF Central Meeting the treasurer general had
reported on the organisation’s
finances; audited and verified
statements and detailed reports on the use of EFF funds by the
Applicant in his personal capacity
and by his family; a resolution as
to how parliamentary funds are utilized;
(f)
Also on 7 April 2019 an EFF spokesperson responded to the
Respondent’s
claims on YouTube denying his allegations and
stating that he was disgruntled because he had been left off the
EFF’s election
list. The denial was apparently also aired
on the eNews TV Channel. His resignation as a member of the EFF
was welcomed
in colourful language;
(g)
There followed a further Facebook post in which the Respondent stated
that he was aware that he was in breach of the EFF’s
constitution, that he was aware that he was bringing the organisation
into disrepute and that his actions were a betrayal of the
organisation;
(h)
During argument it emerged that the Facebook post has been removed by
the Respondent on 9 April 2019, and that he had not written any
further posts concerning the Applicant and/or the EFF. Mr
Premhid
could not dispute this because he conceded that he
(presumably meaning his attorney) had not checked the Respondent’s
Facebook
page prior to issuing the application papers. (Had the
Applicant’s legal advisers done so they would no doubt not have
asked for the relief set out in paragraph [4](c) above).
[10]
Given the above events, on 21 May 2019 the Applicant launched this
application. In his founding
affidavit the Applicant alleges that the
Facebook post, and further statements, were defamatory of him in that
they were made with
the intention, alternatively had the effect, of
being defamatory, and were understood to mean, alternatively implied,
that the
Applicant:
(a)
Is corrupt;
(b)
Is stealing money;
(c)
Conducts himself in an unlawful and undemocratic manner;
(d)
Is of base moral character;
(e)
Is of questionable moral character and is engaged in unlawful
activities.
[11]
The Applicant alleges that the Respondent’s conduct is
injurious of him and that the statements:
(a)
Damage his political persona; and
(b)
Cast aspersions upon his character.
[12]
In his answering affidavit the Respondent denies that the statements
are defamatory of the Applicant
and alleges that:
(a)
His attack was not directed at the Applicant directly, but at him as
the
leader of the EFF and as its ultimate authority;
(b)
He had raised the issues as a member of the EFF and member of
parliament;
(c)
As a public representative, political figure and leader of a
political
party that had mobilised the public on an “anti-corruption
ticket” he (the Respondent) had every right to expose the
Applicant’s leadership in the interests of the public;
(d)
The Applicant is not an ordinary citizen and as leader of the third
biggest
party in parliament, which party champions anti-corruption,
the Applicant cannot demand accountability from others in respect of
public funds, specific reference being made to former President Zuma,
and at the same time refuse to be accountable himself;
(e)
The public has a right to know how the Applicant, as a public
representative,
fails to account to the EFF as to the utilisation of
public funds.
[13]
In argument before me the Respondent also relied on sec 16(1) of the
Constitution, and I quote
paragraph 32 of his heads of argument:
“
32.
In terms of the South African Constitution in terms of Section 16(1)
I enjoy a Freedom of expression
to an extent, all matters been
collated in my facebook post (annexure RA15 page 109-112)
[2]
are reasonable, justifiable in an open and democratic society based
on human dignity, equality and freedom in consideration of
my right
to express the political opinion and views.”
[14]
Essentially, the Respondent’s defence is that his utterances
are the truth and in the public
interest and/or fair comment and/or
privileged and/or protected by sec 16(1) of the Constitution.
[15]
Not so argues the Applicant, relying on the tried and tested common
law position that defamation
consists of the wrongly and intentional
publication of a statement concerning another person which has the
effect of injuring that
person’s reputation in the eyes of the
public. The test is objective.
[16]
Once the aggrieved person establishes that there has been publication
of a statement which, objectively
viewed, is injurious of that
person’s reputation, the onus shifts to the person who uttered
the statement to rebut the defamatory
nature thereof by means of one
of the recognised defences, none of which the Respondent had
established on the papers. It
was also submitted, in response
to a question from me, that no dispute of fact had arisen, in that
the Respondent’s argument
that his attack was aimed at the EFF
and not the Respondent, was patently untenable.
[17]
The Applicant argues that the mere fact that in response to his
attorney’s letter of demand
the Respondent called for the
production of various documents is proof enough that he (the
Respondent) was unable, at the time
at which he posted the message on
Facebook, to establish the truth of the statements.
[18]
The Applicant has approached this Court on notice of motion for a
final interdict and damages.
An interdict is the appropriate remedy
where a person requires protection against an unlawful interference,
or threatened interference,
of his/her rights.
Godongwana v
Mpisana
1982 (4) SA 814
(Tk) at 817 C – D. An interdict is
not concerned with the past invasion of rights, but is concerned with
present and/or future
and/or on-going infringements thereof.
[19]
In order to succeed the Applicant must satisfy the requirements for a
final interdict,
all
of which must be established, namely:
(a)
A clear right;
(b)
An injury actually committed or reasonably apprehended;
(c)
The absence of any other satisfactory remedy.
[20]
In two recent matters the High Court has entertained defamation
claims brought on notice of motion
for a final interdict and damages,
namely
Manuel
v Economic Freedom Fighters and Others
2019 (5) SA 210 (GJ)
[3]
and
Hanekom
v Zuma
Case No D6316/2019 (KZN, Durban).
[4]
[21]
In
Manuel
the applicant, a prominent ANC politician, a former
member of parliament and cabinet minister and current chairperson of
a panel
appointed to select a new Commissioner for SARS, had been
accused on Twitter by the EFF and its president (ironically, the
Applicant
in the present matter) on the social media platform Twitter
of nepotism and the unlawful appointment of a particular individual
as the new Commissioner. Manuel brought an application on a
semi-urgent basis for an order declaring the statements defamatory,
that the Respondent refrain from repeating the statements in the
future, that the tweet be removed and that the respondents publish
an
unconditional retraction and apology. He also sought general damages
as a
solatium
for the injury to his reputation. The Court
granted the relief and awarded him R500,000.00 in damages (see para
[84] of the judgment).
[22]
The Learned Judge dealt with the requirements for a final interdict
(at para [21]) as follows:
“
[21]
Mr Manuel has met the requirements for 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 the
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.”
(My underlining).
[23]
In
Hanekom
the applicant, a prominent ANC politician, a former
member of parliament and cabinet minister, had been accused by the
respondent
(former President Zuma) on Twitter of being “…
a known enemy agent”
, the implication being that he
(Hanekom) had been a spy for the Apartheid regime. He applied
on an urgent basis for, and
was granted almost identical relief to
that which was granted in the
Manuel
matter, save that the
issue of damages was referred to oral evidence.
[24]
Although the learned judge makes a passing reference to the
requirements for a final interdict
(at para [82]), she does not
actually deal with the requirements, and whether they had been met,
at all. She also mistakenly
lists urgency as one of the
requirements.
[25]
In the present matter I am satisfied that the Applicant has met the
first requirement: he
has a clear right to his good name. For
present purposes I also accept that an injury, namely the
besmirchment of the Applicant’s
good name, has occurred. It
is the third requirement, the absence of any other satisfactory
remedy, that requires further
scrutiny.
[26]
An application for a final interdict must allege and
establish
on a balance of probabilities that he/she has no alternative legal
remedy. In
Chapmans Peak Hotel (Pty) Ltd and Another v Jab
and Annalene Restaurants CC t/a O’Hagans
[2001] 4 All 415
(C) at 420d –f the test for an alternative remedy was expressed
thus:
“
It must be
borne in mind in this regard that the alternative remedy postulated
in this context must –
(a)
be
adequate in the circumstances;
(b)
be
ordinary and reasonable;
(c)
be
a legal remedy; and
(d)
grant
similar protection.”
[27]
Defamation actions have traditionally been brought by way of action,
although
interim
interdicts pending an action for damages, while rare, have been
granted, but are limited to preventing a respondent from making
defamatory statements in the future.
In
Herbal Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd
and Others
[2017] 2 All SA 347
(SCA) at 361d – 362a, Wallis JA stated:
[5]
“
[37]
The contentions in regard to the onus of proof were also contrary to
established authority, to which for
some reason we were not referred.
This Court dealt with the proper approach of a court to an
application for an interdict to restrain
the publication of
defamatory matter in
Hix Networking.
[6]
There
it approved, with some clarification, the following passage from the
judgment of Greenberg J in
Heilbron v Blignaut:
[7]
‘
If an injury
which would give rise to a claim in law is apprehended, then I think
it is clear law that the person against whom the
injury is about to
be committed is not compelled to wait for the damage and sue
afterwards for compensation, but can move the Court
to prevent any
damage being done to him.
As he approaches the Court on
motion, his facts must be clear, and if there is dispute as to
whether what is about to be done is
actionable, it cannot be decided
on motion. Thus if the defendant sets up that he can prove truth and
public benefit, the Court
is not entitled to disregard his statement
on oath to that effect, because, if the statement were true, it would
be a defence,
and the basis of the claim for an interdict
is that an actionable wrong, i.e. conduct for which there is no
defence in law, is
about to be committed.’
[38]
The clarification was to point out that Greenberg J did not hold that
the mere
ipse dixit
of the respondent would suffice to prevent
a court from granting an interdict.
What is required is
that a sustainable foundation be laid by way of evidence that a
defence such as truth and public interest or
fair comment is
available to be pursued by the respondent.
It is not
sufficient simply to state that at the trial the respondent will
prove that the statements were true and made in the
public interest,
or some other defence to a claim for defamation, without providing a
factual basis therefore.”
(My underlining).
[28]
Referring to the case made out by the respondent in the
Herbal
Zone
matter, Wallis JA goes on to say (at 362c):
“
There is no
need for us to determine whether that defence will succeed at trial.
But it is a colourable defence and a factual
basis has been laid for
it that cannot be rejected out of hand.”
[29]
Dealing with a similar situation, Cachalia J (as he then was) stated
in
Lieberthal
v Primedia Broadcasting (Pty) Ltd
2003
(5) SA 39
(WLD) at 43 G – 44 B:
[8]
“
Of course,
before a court can be called upon to exercise its discretion it must
first be persuaded that the allegations are defamatory.
If there is
serious doubt as to whether the allegations are defamatory no
interim
interdict will be granted. Once the applicant overcomes this
hurdle he or she must demonstrate that the respondent threatens
or
intends to publish or further publish the defamatory words or similar
words. This is because the whole purpose of an interim
interdict is to prevent prejudicial information concerning the
applicant from being unlawfully published in the future.
Its
purpose is not to punish passing
[9]
infractions of the law
.
A
court must thereafter decide whether the publisher has a sustainable
defence. (See Hix Networking Technologies v System
Publishers
(Pty) Ltd and Another
[1996] ZASCA 107
;
1997 (1) SA 391
(A) at 398A). If it does
have a sustainable defence, the publication will not be restrained no
matter how damaging the allegations
may be.
However in
assessing the sustainability of the defence offered by the respondent
the court is not required at this stage to enter
into a detailed
consideration of the likely result should the matter ultimately
proceed to trial
. What the court is called upon to do in
the exercise of its discretion of granting or refusing the interim
interdict is to
consider inter alia
‘
the
strength of the applicant’s case; the seriousness of the
defamation; the difficulty a respondent has in proving in the
limited
time afforded to it in cases of urgency, the defence which it wishes
to raise and the fact that the order may, in substance
though not in
form, amount to a permanent interdict’.
(Per
Plewman JA in Hix (supra) at 402E-F).”
(My
underlining).
[30]
The Applicant submits that he must succeed on the basis that,
objectively viewed, the Respondent
has uttered defamatory statements
concerning him and that the Respondent, the onus having shifted to
him, has not been able to
prove that the statements are true and in
the public interest, or that any other defence is available to him.
[31]
So, how does the Respondent deal with the Applicant’s
allegations? In his answering affidavit
he states,
inter alia
,
as follows:
“
7.
It is my submission that all the issues and allegations I have raised
publicly against
the applicant, were directed to the applicant as the
leader of the EFF, President and Commander in Chief and also the
Member of
Parliament who is leading the third biggest political party
in South Africa, not on his personal capacity.
8.
Equally myself I have raised these allegations against the applicant
in my capacity
as a member of the EFF, leader of the EFF and as
Member of Parliament.
9.
I have never had any personal business with the applicant, Mr Julius
Malema and
have no reason to tarnish his personal image but have
every right to expose his leadership in the interests of the public
as the
public figure and public representative and most importantly
as the leader of the political party that has mobilised the public
on
an anti-corruption ticket.
10.
The applicant is Julius Malema, an adult male who is the President
and the Cmdr in Chief of the Economic Freedom
Fighters, in that
capacity served as the leader and the authority of the EFF the
applicant is the ultimate authority of the organisation,
very
powerful and direct the operations even do so against the EFF
constitution. The applicant is also member of Parliament in
South
Africa and the leader of opposition, third largest organisation.
…
19.
Furthermore the applicant claims that I (respondent) have made
defamatory and vicious attacks
on himself, he is factually incorrect
that are made defamatory attacks on him, rather I published the truth
about the President
and the CIC
[10]
of the Economic Freedom fighters who is the leader of the public
organisation and the member of Parliament, to the extent that
he is
the President and CIC that preside over the financial expenditures of
the EFF which have not been authorised by the CCT as
the highest
decision-making structure, use service providers which have not been
approved or authorised and procured by the Central
Command team who
inflate the cost in a manner that is unaccountable by you and other
officials. Further use the EFF money without
the CCT authority to
finance a property which he is allegedly to have been staying over
three years and in that three years, the
property has been subject to
investigation given the alleged VBS money paid into the property.
(Annexure 14, Edward Rubinstein
property valued R5,250 million
paid by the EFF).
…
27(b).
It is my submission, none of the allegations have been made with the
intention of defamation of both EFF
and the Applicant, but with the
intention to publish the truth about the manner in which EFF funds
are used inconsistently with
it constitution under President, CIC
Julius Malema who is the applicant in this case.
…
54. The
applicant is not an ordinary citizen but a President and the Cmdr in
Chief of the third biggest political party
in South Africa, a Member
of Parliament and the leader of the opposition and the champion of
anti-corruption. The applicant cannot
demand accountability from the
former State President of South Africa on the public funds
mismanagement resulting to failure to
be held accountable yet the
applicant refuses to be held accountable for the organisational funds
coming from the state. (Annexure
RA 11, Resignation letter of Xalisa)
& (RA 6 Cmsr. Xalisa affidavit).
55.
The applicant and myself as the respondent, we have taken oath as
Public Representatives, to defend, advance
and uphold the
Constitution and applicable laws of the Republic of Africa. Whilst
there has been an observation of refusal
to be held accountable but
the VBS cash heist was turning point for the EFF Commander in Chief
to openly admit receipt of funds.
It was a turning point because EFF
had mobilised the society behind the banner and ticket of anti
corruption (annexure RA 12 Member
of Parliament statement of Oath).
…
72. On
the 5
th
April, 2019 I published a document on social media
exposing the applicant office as the President and Cmdr in Chief
along with
his Deputy President as they constitute the office of
Presidency in the EFF. (Annexure RA 15 published document on
facebook).
73. I
published the document as the member and the leader of EFF with the
intention to expose the hidden truth about
the manner in which the
EFF funds are managed without an ounce of accountability under the
Presidency of Julius Malema and his
Deputy President.
…
95(b).
The published statement not to be declared defamatory as the
respondent has made the remarks in the public
interest and from
privilege position.”
[11]
[32]
Bearing in mind that the Respondent is a layperson, and some
allowance must be made for the manner
in which he has expressed
himself, has he (to paraphrase
Heilbron
at p. 169) done enough
to set up that he can prove truth and public benefit, or one of the
other defences available to him? Or,
(to paraphrase
Herbal
Zone
at p. 362c) has he made out a colourable defence and has a
factual basis been laid that cannot be rejected out of hand? To put
it another way, is the Respondent relying on more than just his
ipse
dixit
? I will return to this aspect below.
[33]
As far as I have been able to ascertain, bringing a defamation claim
by way of application for
a final interdict and damages is a new
phenomenon in our law (as opposed to an interim interdict pending an
action for damages).
In my view, it is inappropriate and
undesirable. The reason I say this is the following: the person
making the defamatory
statement may have a very good reason for doing
so, but may not have the hard evidence to hand, which evidence may be
in the possession
of the person who claims to have been defamed
and/or third parties; in an action a defendant will have the benefit
of the pleadings
in which the issues are narrowly defined, of the
discovery process, of requesting particulars for trial, of a
pre-trial conference
and the subpoenaing of witnesses and documents
duces tecum
; he/she will be entitled to cross-examine the
plaintiff and the witnesses called on behalf of the plaintiff in
order to test their
version and to give evidence and call his/her own
witnesses; evidence of an expert nature might be necessary. An
application
deprives a respondent of all these extremely valuable and
necessary litigation tools.
[34]
That, in my view, is precisely what has happened in the present
matter. The Respondent says that
if he is given access to the EFF’s
financial and other records he can prove the truth of the
statements. The Respondent
does not rely on his
ipse dixit
.
On the contrary, he says that he was a senior member of the EFF and
part of the CCT, its most senior decision-making body.
He says
he raised his concerns often and has, or on good grounds believes
there is, information in the form of financial and other
documents
which will prove the truth of the statements he has made, which
documents are in the possession of the Applicant and/or
the EFF
and/or third parties (such as financial institutions). He also
says that there are witnesses who will support him.
[35]
In my view the Respondent has done enough to establish that there is
a triable issue. Although
inelegantly phrased, he has raised the
defences of truth and public benefit and/or privileged occasion
and/or fair comment.
He also relies on his constitutional right
to freedom of speech.
[36]
It is also relevant that the statements were made in the run-up to
the general election (which
was held on 8 May 2019). In
Democratic
Alliance v African National Congress and Another
2015
(2) SA 232
(CC) (which was an application arising out of the run-up
to the 2015 general election) the DA made certain statements
concerning
former President Zuma and the manner in which the
up-grades to his Nkandla homestead had been financed. The ANC
challenged
the statements under the
Electoral Act. Dealing
with
the penal provisions provided for in the Act versus freedom of
speech, the Constitutional Court stated (at p. 275
et
seq
) as
follows:
[12]
“
[130] The
restrictive interpretation of penal provisions is a long-standing
principle of our common law. Beneath it
lies considerations
springing from the rule of law. The subject must know clearly
and certainly when he or she is subject
to penalty by the state.
If there is any uncertainty about the ambit of a penalty provision,
it must be resolved in favour
of liberty.
[131] This
court has endorsed this approach. And indeed the Bill of Rights
gives these considerations added force.
It posits the rule of
law as a founding value of our constitutional democracy. It
entrenches the common law’s protections
against arbitrary
deprivation of liberty and imprisonment. The common law
presumption in favour of interpreting penalty provisions
restrictively therefore applies with added force under the
Constitution. And the interpretive injunction in the Bill of
Rights itself requires us to interpret s 89(2) and item 9(1(b) to
promote its spirit, purport the objects.
[132]
Conversely, suppressing speech in the electoral context will
inevitably have severely negative consequences. It will inhibit
valuable speech that contributes to public debate and to
opinion-forming and holds public office bearers and candidates for
public
office accountable
. Because those who speak may not
know - indeed, often cannot know – in advance whether their
speech will be held to
be prohibited, they may choose not to speak at
all.
[133] To
these propositions, which earlier we called obvious, we add a further
observation. Political life in
democratic South Africa has
seldom been polite, orderly and restrained. It has always been
loud, rowdy and fractious. 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.
[134]
During an election this open and vigorous debate is given another,
more immediate, dimension. Assertions,
claims, statements and
comments by one political party may be countered most effectively and
quickly by refuting them in public
meetings, on the internet, on
radio and television and in the newspaper. An election provides
greater opportunity for intensive
and immediate public debate to
refute possible inaccuracies and misconceptions aired by one’s
political opponents.
[135] So
freedom of expression to its fullest extent during elections
enhances, and does not diminish, the right to
free and fair
elections. The right individuals enjoy to make political
choices is made more meaningful by challenging, vigorous
and
fractious debate.”
[37]
It is relevant that the EFF also approached the press to vigorously
refute the Respondent’s
allegations.
[38]
Taking everything into account, I am of the view that bringing a
defamation claim by way of application
for a final interdict and
damages was misguided and bad in law. The Applicant has a
perfectly acceptable and appropriate
alternative remedy, namely the
institution of an action.
[39]
Insofar as my approach differs from that which was adopted in
Manuel
and
Hanekom
, I make the following observations:
(a)
In both of those matters at the time the applications
were
launched the offending statements were still extant. In the
present matter the Facebook post was deleted on 9 April
2019, four
days after it was posted and some seven weeks before the application
was launched;
(b)
In the
Manuel
matter the applicant appears to have dealt in
his founding affidavit with the substance of the offending
allegations and shown
conclusively that they were false. In the
present matter the Applicant has made no attempt to counter the
statements made
by the Respondent, relying on the shifting of the
onus to make out his case;
(c)
In the
Hanekom
matter the respondent’s case is muddled,
but he appears, ultimately, to rely on the submission that his
offending statement
was taken out of context, which the Court
rejected.
[40]
Although not necessary, in the light of my finding on the procedure
adopted, I turn now to the
Applicant’s submission that there is
no dispute of fact on the papers. As previously alluded to, it
is the Applicant’s
argument that as the Respondent cannot prove
the truth of the statements, and as the onus is on him to do so, the
application must
succeed. It is not that simple. In
Room
Hire Co (Pty Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1163 the following was stated:
“
It may be
desirable to indicate the principal ways in which a dispute of fact
arises. The clearest instance is, of course,
(a) when the
respondent denies all the material allegations made by the various
deponents on the applicant’s behalf, and
produces
or
will produce
, positive evidence by deponents or witnesses
to the contrary. He may have witnesses who are not presently
available or who,
though adverse to making an affidavit, would give
evidence viva voce if subpoenaed. There are however other cases
to consider…”
(My underlining).
[41]
In my view, broadly speaking, the Respondent’s case falls into
this category. Due
to his senior position in the EFF he has
certain information and he says the statements are true, and given
the opportunity he
will prove it. He does not rely on a bare
denial or his
ipse dixit.
I accordingly do not agree
with Mr
Premhid’s
submission that there is no dispute of
fact on the papers. Thus, even if I am wrong in regard to
the interdict aspect,
I find that there are material disputes of fact
which cannot be resolved on the papers.
[42]
Perhaps relying on the fact that in two recent matters the High Court
has entertained defamation
claims brought on application, the
Applicant did not apply for the referral of the matter to oral
evidence or to trial, which should
in any event be done at the latest
commencement of the hearing. See
Law Society, Northern
Provinces v Mogami & Others
2010 (1) SA 186
(SCA) at 195C.
Indeed, Mr
Premhid
argued strenuously that this would not be
necessary as there was patently no dispute of fact on the papers.
[43]
I have also given consideration to whether I should exercise my
discretion in accordance with
Rule 6(5)(g) and refer the matter to
trial. In order for me to do so I must be satisfied that there
are disputes of fact
which are incapable of resolution on the papers
which are too wide-ranging for resolution by way of referral to oral
evidence,
which is certainly the case in the present matter,
notwithstanding Mr
Premhid’s
submissions to the
contrary. It has, however, been held that it is undesirable for
a court to do so
mero motu
. See
Joh-Air (Pty) Ltd v
Rudman
1980 (2) SA 420
(TPD) at 428 H – 429 H
; Santino
Publishers CC v Waylite Marketing CC
2010 (2) SA 53
(GSJ) at 56 C
– 57 D
.
[44]
In the light of the above authorities, I decline to exercise my
discretion and
mero motu
refer the matter to trial.
[45]
In conclusion, as the Facebook post had been removed on 9 April 2019,
I am of the view that the
Applicant would not even have succeeded
with an interim interdict, let alone a final one, and intend to
dismiss the application.
[46]
The Applicant is at liberty to institute an action for damages in
accordance with the
actio
iniuriarum
,
if so advised.
[47]
As the Respondent appeared in person I intend to make no order as to
costs.
[48]
In the circumstances I make the following order:
(a)
The application is dismissed;
(b)
There will be no order as to costs.
________________________________
N.J.
MULLINS
ACTING
JUDGE OF THE HIGH COURT
Obo
the Applicant: Adv K. Premhid
Instructed
by: IAN LEVITT ATTORNEYS
c/o
BROWN BRAUDE &
VLOK
317
Cape Road
Newton
Park
PORT
ELIZABETH
Obo
the Respondent: In person
[1]
All passages quoted in this judgment are reproduced exactly as they
appear in their original form, irrespective of grammatical
and
typographical errors.
[2]
Annexure “FA1” to the founding affidavit.
[3]
In this matter leave to appeal has been granted.
[4]
In this matter leave to appeal has been refused.
[5]
Footnotes are excluded.
[6]
Hix Networking Technologies v System Publishers (Pty Ltd) and
Another 1997 (1) SA 391 (A)
[7]
Heilbron v Blignaut
1931 WLD 167
at 169
[8]
Footnotes are excluded.
[9]
I assume the learned judge meant “past”.
[10]
Commander in chief.
[11]
The references in brackets at the end of some of the paragraphs are
to annexures attached to the papers.
[12]
Footnotes have been excluded.