Malema v Rawula (139/2020) [2021] ZASCA 88 (23 June 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 88
|

|

Malema v Rawula (139/2020) [2021] ZASCA 88 (23 June 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case No: 139/2020
In
the matter between:
JULIUS
SELLO MALEMA
APPELLANT
and
THEMBINKOSI
RAWULA

RESPONDENT
Neutral
citation:
Malema
v Rawula
(139/2020)
[2021] ZASCA 88
(23 June 2021)
Coram:
PETSE
AP, DAMBUZA AND
SCHIPPERS
JJA AND LEDWABA AND ROGERS AJJA
Heard:
25
February 2021
Delivered:
23
June 2021
Summary:
Civil
Procedure – motion proceedings – application for
declaratory order that published statements defamatory –

defence of justification – truth and public interest –
sustainable foundation in papers – declarator sought and

interdict not justified – appeal dismissed.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Port Elizabeth (Mullins AJ sitting
as court of first instance):
The
appeal is dismissed.
JUDGMENT
Schippers
JA (Petse AP, Dambuza
JA
and Ledwaba AJA concurring
):
[1]
The
appellant, Mr Julius Sello Malema, is the President of the Economic
Freedom Fighters (EFF), the third largest political party
in South
Africa, and a Member of Parliament (MP). The Deputy President of the
EFF is Mr Floyd Shivambu, also an MP. The respondent
is a former
member of the EFF who resigned from the party in April 2019. He
served on its highest decision-making body, the Central
Command Team
(CCT), represented it in Parliament and was the National Chairperson
of the EFF’s National Disciplinary Committee
(NDC).
[2]
On 5
April 2019 the respondent posted a statement on his Facebook page
entitled, ‘EFF REMAINS A FINANCIAL FISHING NET FOR
THE PAIR, AN
ANTITHESIS OF EVERYTHING IT [PURPORTS TO BE]. I AM NOW UNLEASHED, WHO
CARES?’. I shall refer to the statement
as the Facebook post.
[3]
On 18
April 2019 the appellant applied to the Eastern Cape Division of the
High Court, Port Elizabeth (the high court), for an order
declaring
that the Facebook post was unlawful and defamatory; restraining the
respondent from publishing any further defamatory
statements; and
directing him to pay damages in the sum of R1 million. The high court
dismissed the application. The appeal is
with its leave.
[4]
The
respondent appeared in person at the hearing of the appeal, as he had
done in the high court. He indicated that he did not wish
to address
this Court and would abide by its decision.
Facts
[5]
Shortly
before his resignation from the EFF on 10 April 2019, the respondent
published the Facebook post. It reads:
‘
EFF
REMAINS A FINANCIAL FISHING NET FOR THE PAIR, AN ANTITHESIS OF
EVERYTHING IT PURPORT[S TO BE]. I AM NOW UNLEASHED WHO CARES?
"Since
when [is] the individual interest . . . asserted above the interest
of the collective and the organization?" Lenin
once lamented in
his death bed when he learnt that Stalin had taken decisions that
undermined the organization but assert[ed] and
affirm[ed] his grip
over the organization.
When
Jacob Zuma was facing his corruption charges, the liberation movement
was confronted with a possibility of fracturing like
a glass into
pieces. The SACP, Cosatu and the faction of the liberation movement
were up [in] arms against the leadership of Mbeki.
Mbeki
equally like Lenin, lamented as well, since when [is] the individual
. . . held above the organizational interest? Have we
arrived to the
time where [a] personality cult and individual interest has come to
reign over the collective and organizational
interest?
No
one dared to listen to Mbeki sanity because many of us in the SACP
and organized labour Cosatu were emotionally perturbed by
the macro
economic policies, position [on] HIV/ AIDS and the disorientation of
the ANC led alliance on decision making processes
in particular as it
relates to the marginalization of SACP and Cosatu under the Mbeki
leadership. Accordingly, the climate was
emotiona[l] and denied many
of us an opportunity to allow sanity to prevail.
History
has a way of repeating itself, yes, we are angry with the current
economic policy direction of the country which embraces
NDP a
graduation of gear, the macro economic policy. Yes we are angry that
our economy is not growing and instead it is leading
us to job
shedding and failing to create jobs. Indeed all this is taking place
under the leadership of ANC and indeed the leadership
of the ANC is
guilty as charged when it comes to corruption.
Fellow
fighters and comrades, whilst we are emotional about these objective
realities, it gives no one a licence to climb on the
band wagon in
the name of left working-class politics to commit corruption and hide
behind the slogans of Economic Freedom for
dejected African masses of
our people.
If
we demand clean governance and corrupt free and accountable
government from the ANC and the state apparatus in the name of our

respect for the rule of law, supremacy of our Constitution, [s]urely
we must lead the society in abiding with the rule of law as
an
advance movement of the working class, the Economic Freedom Fighters.
We ought to demonstrate highest discipline in the management
of the
state and our organization fiscus.
In
parliament, the Presidency and the executive remain accountable to
the legislature for everything, policy direction and the management

of the state funds and the fiscus in general. It is so because those
who are elected to public office are accountable through the

representatives of the people. The mechanism of the legislature is
meant to hold the executive accountable on behalf of the people.
In
our organizations, we go to National conferences or National Peoples
Assemblies to elect leadership and the top 6 led by the
Presidency is
the executive and latter number of 35 or 90 remains the NEC/ CCT
additional members. Whilst the executive is in charge
for the
direction and management of resources of the organization . . . it
remains accountable to the full complement of the NEC/
CCT both for
political direction and management of resources including money.
The
point is that, no one must be a holy cow when it comes to
accountability including the Economic Freedom Fighters.
The
EFF receives levies from 61 MPs / MPLs and each pays not less than
R6800 monthly x61. EFF has 852 Councillors comprising metros,

district and local municipalities. On average these Councillors
contribute R2000.00 monthly x852. Whilst on it, the EFF is recorded

to have reached a million paid up membership, R10 x1 000 000.
EFF
is receiving from parliament per quarter not less than R25 Million
from National Assembly and Provincial Legislatures comprising
of
Party Funding, Constituency Funds and Caucus funds. The Constituency
funds [are] suppose[d] to assist MPLs and MPs to assist
them with
logistical traveling arrangements such as accommodation and
transport. The Caucus funds . . . [are] suppose[d] to enable
the
Caucus in the legislature to plan their approach and direction in the
Province.
All
these [monies] are centralized in the EFF under the control, abuse
and dictatorship of Julius Malema and Floyd Shivambu. [The]
pair have
made it clear, this is their organization and all of you have come to
join us not the other way round. In the EFF there
is . . . a
Treasurer General called Leigh Ann Marthys, unfortunately she only
administers petty cash of the EFF.
I
have been a national leader, a Central Command Team member of the EFF
since 2014 and we have never had a Financial Report and
when
occasionally we find courage to ask about it, we are chastised as
spouses and treated with disdain and threatened to be removed
from
Parliament, so for the past 5 years we had to think with our stomachs
rather than objectively engaging the executive, holding
it
accountable.
The
Parliament money of the EFF cannot be cashed in terms of treasury
rules, but the pair would use Training Providers who would
inflate
costs [by] 250% so that they can run away with 150% of the inflated
cost, in the absence of financial reports from the
pair, we would be
forced to conclude as such. These service providers are in the form
of alcohol party retailers, lawyers, security
(Defenders of
Revolution and Body and logistics service providers).
[1]
No report whatsoever.
On
the VBS saga which has led to my sacrifice in the EFF list conference
and ultimate endorsement on the list.
The
political overview of Julius Malema in the most recent CCT meeting
admitted to EFF taking VBS money to finance the revolution.
In fact
he said, "sometimes we are forced to kiss dogs or [the] devil to
get funding". The VBS money was done under the
full knowledge of
the leadership.
The
meeting was preceded by two important occasions. When the VBS saga
broke out one of the EFF senior CCT members, Cmsr. Sam Matiase,
wrote
a letter to Julius Malema and pleaded for a special meeting which in
short he denied and claimed to have everything under
control as
officials. The fellow was dismissed like that.
We
are further aware, that there is a letter in which Dr Mbuyiseni
Ndlozi wrote to the officials complaining about the lifestyle
of
Julius Malema and how he abuse[s] the EFF funds. It is reported that
Ndlozi went to tell people closer to Julius Malema who
reported him .
. . . Ndlozi was summoned to officials where he was embarrassed and
reduced into nothing to a point he was told
that he joined the EFF
through an interview. So he must not come here and be curious here.
The
contrast in between the above two letters, one was given audience and
the other one was dismissed.
Back
to VBS, when given the opportunity to raise our views on the
political input. We had further learnt that prior to the CCT meeting

there was a Caucus meeting of Chairperson's convened by the pair
instructing them to defend the officials.
When
I rose to raise my views, I argued that whilst we appreciate to be
taken into confidence about the VBS by the leadership .
. . it would
have been better that we were taken into confidence prior to the
acquisition of the VBS money, not after.
I
further argue[d] that the people of Limpopo had lost hope [in] the
ANC and SACP and EFF was providing the glimmer of hope, now
EFF is
mentioned in the same line with these organizations.
It
is my submission that the scandal of VBS has put the EFF cardinal
pillar number 7 on trial in the Court of the public opinion.
EFF will
have a tough time to remedy itself to the poor grannies of Limpopo
and the country as the whole.
I
landed in the meeting by saying, the EFF has two options: to remove
cardinal pillar number 7 which states that we will fight for
a
corrupt-free and accountable government. Accordingly, we have failed
to pass the test of morality we have set for the society.
The
other option is to simply close shop and renounce the position we
have held and mobilize[d] the society under. If we fail to
pass the
test of corruption, how are you going to be trusted to nationalize
mines and put under your regime state custodianship
because instead
of committing to equitable redistribution you will squander the
funds.
How
are you going to build state capacity when you are engaged in
activities that weaken the state through engagement in corruption?

How will people trust you with freeing this country from corruption?
Lastly
I refused to take collective responsibility on VBS. I am poor, live
like a church mouse
despite
the fact that I have been a member of Parliament for the past 4
years. The pair has milked every cent I worked for in Parliament
but
despite that, my integrity remains intact.
I
will wait for those who demonstrate that they are fighters with zero
revolutionary content, the populist who will do mudslinging
to
appease the pair.
I
endured the past 4 years for convenience and the only leash they had
on me was deployment to parliament. Now that I am not in
the list, I
am leashed away so let the ball roll.
We
are made to believe that we were picked from the streets with no
prospects of employment. When EFF called me for deployment to

Parliament I was a professional public servant in the sphere of local
government with post graduate qualifications. I left the
ANC because
amongst the reason[s] was the dispensation of patronage and
corruption, it is hypocritical to stand for it in the EFF.
In
terms of the subjective and objective analysis, Rawula is emotional
because he does not find expression on the deployment list
and now is
getting back at EFF leadership, sour grapes. Say for argument[’s]
sake, there is truth in that. None of the subjective
factors can
outweigh the objective reality.
You
commit to an open and corrupt-free society and you instead you are
found at the centre of corruption. In your analysis kindly
JUXTAPOSE
THE SUBJECTIVE REALITY OF EMOTIONALISM AND THE OBJECTIVE REALITY OF A
PARTY ENGAGE[D] IN A CASH HEIST OF THE STATE MONEY.
Bring
it on, insult me.
Bloody
crooks.’
[6]
The
respondent’s publication of the Facebook post led to extensive
media coverage, and repetition and republication of the
statements
complained of. These included the following publications: an article
published on News24, entitled ‘Former EFF
leader accuses
Malema, Shivambu of taking VBS donation, party denies claims’;
and two articles on the website of Eyewitness
News, entitled ‘SNUBBED
EFF COMMITTEE MEMBER MAKES SERIOUS ALLEGATIONS AGAINST MALEMA’
and ‘SNUBBED EFF COMMITTEE
MEMBER GIVES REASONS FOR SPEAKING
OUT’, respectively. A further article entitled, ‘Malema,
Shivambu accused of financial
mismanagement’ was published on
the website of eNews Channel Africa (eNCA). An article was also
published by Ms K Madisa
on the Sowetan Live website entitled, ‘EFF
MP accuses Malema, Shivambu of using party millions to fund their
lifestyles’.
[7]
These
publications, the repetition of the statements in the Facebook post
during an interview with the respondent on eNCA on 5 April
2019 and a
radio interview with Power FM the next day, led the appellant’s
attorneys to write to the respondent on 6 April
2019. The letter
recorded that the following statements were defamatory of the
appellant. Monies received ‘are centralised
in the EFF under
the control, abuse and dictatorship of Julius Malema and Floyd
Shivambu’. They had used training providers
who inflated costs
to the EFF by 250% and in the absence of financial reports from them,
the respondent would be forced to conclude
that they ‘[ran]
away with 150% of the inflated cost’. In a meeting of the CCT,
the appellant had ‘admitted to
EFF taking VBS money to finance
the revolution
’
.
[8]
VBS
Mutual Bank, which held the savings of many disadvantaged people and
local municipalities, collapsed in 2018 with more than
R2 billion in
debt. The aged of Limpopo lost their lifetime savings. Investigations
revealed that much of this money had been siphoned
into private bank
accounts and some spent on property or luxury cars. The Head of the
National Prosecuting Authority has described
the VBS scandal as
‘probably the biggest bank robbery in this country’.
[2]
Officials of VBS have been arrested on charges of corruption,
racketeering, money laundering, fraud and theft.
[3]
[9]
The
letter of 6 April 2019 went on to state that the alleged defamatory
statements were deliberately intended to impugn the appellant’s

integrity and good name by suggesting, alternatively implying, that
he was corrupt; was stealing money; conducted himself in an
unlawful
and undemocratic manner; and was engaged in various unlawful
activities, including irregularities in respect of VBS bank.
In the
letter it was also alleged that during the radio interview, the
respondent had conceded that he had no evidence of these
allegations.
The letter ended with a demand that the respondent retract the
offending statements in a public apology, by way of
a press statement
to all the media houses which had interviewed him concerning the
Facebook post.
[10]
In
reply to the letter of 6 April 2019, the respondent said that he
would not retract the offending statements and that he had referred

to the appellant and Mr Shivambu in the Facebook post because they
were the most senior members of the EFF. He went on to say that
his
statement concerning the absence of evidence ‘was a reference
to hardcopy evidence only’. He also requested the
EFF to
provide audited statements, invoices showing payments to service
providers, and minutes showing reports concerning the EFF’s

finances and documents proving financial accountability. He
challenged the appellant to prove that he had never used EFF funds

for his personal benefit or abused his power. The respondent made it
clear that he had never said that the appellant had stolen
money, and
that the latter had admitted that the ‘EFF did receive money
from the VBS’ in a meeting of the CCT.
[11]
As
already stated, the appellant launched an application in the high
court for an order declaring that the statements contained
in the
Facebook post were defamatory and unlawful. He sought consequential
relief in the form of an order: (a) directing the respondent
to
remove the Facebook post from all his social media accounts and his
Facebook account in particular; (b) that the respondent
publish an
unconditional retraction and apology on all his social media
accounts; (c) interdicting the respondent from publishing
any further
statement that says or implies that the appellant engages in conduct
of the kind described in the Facebook post; and
(d) that the
respondent pay damages in the sum of R1 million.
[12]
In the
founding affidavit the appellant alleged that the respondent was
‘motivated by political self-interest’; that
he was
‘deliberately engaging in acts of political sabotage’
aimed at inflicting maximum damage on the appellant and
the EFF; and
that the respondent had ‘admitted that he has no evidence to
support any of the claims he has made’. The
specific statements
alleged in the founding affidavit to be defamatory of the appellant
and the EFF, were these:
‘
5.1
. . . All these [monies] are centralised in the EFF under the
control, abuse and dictatorship
of Julius Malema and Floyd Shivambu.
[The] pair have made it clear, this is their organization and all of
you have come to join
us not the other way round.
5.2
. . . the pair would use Training Providers who would inflate costs
by 250% so that they
can run away with 150% of the inflated cost, in
the absence of financial reports from the pair, we would be forced to
conclude
as such.
5.3
The political overview of Julius Malema in the most recent CCT
meeting admitted to EFF taking
VBS money to finance the revolution.
In fact he said, “sometimes we are forced to kiss dogs or [the]
devil to get funding”.
The VBS funding was done under the full
knowledge of the leadership.’
These
will be referred to as the offending statements.
[13]
The
offending statements, the appellant said, were made with the
intention, alternatively, had the effect of being defamatory and
were
understood to mean or imply that he:
‘
66.1
is corrupt;
66.2
is stealing money;
66.3
conducts himself in an unlawful and undemocratic manner;
66.4
is of base moral character.’
[14]
In his
answering affidavit the respondent denied that he had failed to
‘dislodge [the appellant] from the party leadership’.
He
said that there had been no elective conference or assembly at which
the leadership of the EFF could be challenged, and that
he had no
ambition of becoming the leader of the EFF. He had already occupied a
leadership position, namely, National Chairperson
of the NDC, which,
in his words, ‘put me on [a] collision course with the
[appellant] and other officials of the organization
in the efforts to
assert the independence and the integrity of the National
Disciplinary Committee’.
[15]
As to
his alleged disgruntlement, the respondent said that he was an
elected leader of the EFF and was not at risk of losing that
position
at least until the National People’s Assembly, which would have
been convened in December 2019. In any event, his
name had never been
included in the list of candidates for Parliament in 2014, as he had
been working in the South African Local
Government Association.
[16]
The
respondent’s detailed answers to the offending statements
quoted in paragraph 12 above, are dealt with below. For now,
it
suffices to say that the Facebook post was not a random publication,
but as the respondent put it, based on ‘privileged
information
because [he] was sitting in the highest structure of the EFF’.
The reason for publishing the Facebook post
is summed up in the
following statement in the answering affidavit:
‘
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 interest 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.’
The
high court’s judgment
[17]
The
high court (Mullins AJ) dismissed the application and made no costs
order. The document quoted in the judgment as being the
Facebook
post, is in fact not the Facebook post, but the respondent’s
letter of resignation from the EFF. Nothing however
turns on this as
the court’s decision is based on the former. Its main
conclusions were these. The appellant had established
the first two
requirements for the grant of a final interdict, namely a clear right
to his good name and an injury: his good name
had been besmirched by
the Facebook post. The third requirement – the absence of any
other satisfactory remedy – was
however not met. In this regard
the judge said:
‘
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.’
[18]
This,
the judge said, was precisely what had happened in this case. The
respondent had been a member of the CCT and had good grounds
to
believe that the EFF’s financial and other records in its
possession would prove the truth of his statements, were he
to be
given access to those documents. He also said that there were
witnesses who would support his version. The respondent had
laid a
factual foundation in the evidence and had done enough to establish a
triable issue in relation to the defences of truth
and public
benefit, privileged occasion and fair comment.
[19]
The
judge concluded as follows:
‘
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.’
[20]
The
judge then went on to consider whether there were material disputes
of fact that could not be resolved on the papers. He ruled
that there
were none and for that reason declined to exercise a discretion to
refer the matter to oral evidence in terms of rule
6(5)
(g)
of the Uniform Rules of Court.
[4]
He concluded that the respondent had not merely relied on his say-so,
neither was his defence to the relief claimed a bare denial
of the
appellant’s allegations. The respondent had demonstrated that
he would be able to produce evidence to the contrary.
[5]
[21]
The
judge also considered that the statements were made in the run-up to
the general election of 8 May 2019, and the suppression
of speech in
an electoral context had severe negative consequences. Further, the
EFF had refuted the respondent’s allegations
in the press. The
application for an interdict was dismissed also on the ground that
the Facebook post had been removed on 9 April
2019.
[22]
The
appropriateness of bringing a defamation claim by way of application
for a final interdict and damages, in contradistinction
to an interim
interdict restraining the publication of defamatory material pending
an action for damages, was a reason for granting
leave to appeal. In
this regard, the high court held that there were conflicting
judgments as to whether the use of application
proceedings in a case
such as the present was appropriate, and that future litigants were
entitled to clarity as to the proper
procedure.
[23]
It is
necessary to deal with this issue before considering the appellant’s
contentions. The remedy of an interdict to restrain
the imminent or
continued publication of a defamatory statement is not new.
[6]
In 1931 in
Heilbron
v Blignaut
,
[7]
an application for an interdict to stop publication of a newspaper
article allegedly defaming a boxing referee as being dishonest
and
unfair, Greenberg J said:
‘
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 a
dispute as to whether what
is about to be done is actionable, it cannot be decided on motion.
The result is that if the injury
which is sought to be restrained is
said to be a defamation, then he is not entitled to the intervention
of the Court by way of
interdict, unless it is clear that the
defendant has no defence. Thus if the defendant sets up that he can
prove truth and public
. . . benefit, the Court is not entitled to
disregard the statement on oath to that effect, because, if his
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.’
[24]
This
dictum was cited with approval in
Hix
Networking Technologies
,
[8]
in which it was held that the
Heilbron
case was not based on English law but on accepted principles in our
law. As to how the phrase ‘set up a defence’ in
Greenberg
J’s judgment was to be interpreted, Plewman JA said:
‘
As
the detailed analysis . . .  by Coetzee J shows, Greenberg J had
not held (as was suggested by counsel in the
Buthelezi
case) that the mere
ipse
dixit
of a deponent alleging a defence of justification should be accepted.
It is, I think, implicit in this discussion and I think also
in both
judgments read as a whole, that no departure from the established
rules was being proposed or indeed applied.’
[9]
[25]
Recently,
the above analysis was explained by Wallis JA in
Herbal
Zone v Infitech Technologies
[10]
in this way:
‘
The
clarification was to point out that Greenberg J did not hold that the
mere
ipse
dixit
of a 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 a 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 therefor.’
[26]
The
high court was thus incorrect to hold that a claim for defamation by
way of application for an interdict (as opposed to an action
in which
a defendant has the benefit of the issues defined in the pleadings,
discovery, further particulars and cross-examination
),
is a
new phenomenon in our law, and is inappropriate and undesirable. Most
recently, in
EFF
v Manuel
,
[11]
this Court affirmed the appropriateness of the remedy of an interdict
as follows:
‘
There
is, of course, no problem with persons seeking an interdict, interim
or final, against the publication of defamatory statements
proceeding
by way of motion proceedings, on an urgent basis, if necessary. If
they satisfy the threshold requirements for that
kind of order, they
would obtain instant, though not necessarily complete, relief. There
is precedent for this in the well-known
case of
Buthelezi
v Poorter
,
where an interdict was granted urgently in relation to an egregious
piece of character assassination. Notably, however, the question
of
damages was dealt with separately.’
[12]
[27]
Damages
for defamation however, may not be claimed in motion proceedings. It
appears that the appellant followed the approach in
EFF
v Manuel
,
in which the applicant, Mr Trevor Manuel, a former MP and Minister of
Finance of this country, obtained a declaratory order in
the High
Court, Johannesburg, that certain allegations published by the EFF
concerning him were defamatory, together with an order
that the EFF
pay damages in the sum of R500 000. The High Court refused leave
to appeal.
[28]
This
Court referred the EFF’s application for leave to appeal to it
for oral argument. At that hearing it dealt with all the
issues on
their merits, in the context of assessing the prospects of success.
It refused leave against the order declaring that
the allegations
concerning Mr Manuel were defamatory and false, and that their
publication was unlawful. However, it granted leave
and
simultaneously upheld with costs, an appeal against the orders
directing the respondents to publish a retraction and apology,
and to
pay the applicant damages in an amount of R500 000. These issues
were remitted for evidence in the High Court.
[29]
This
Court held that motion proceedings ‘are particularly unsuited
to the prosecution of claims for unliquidated damages,
whether in
relation to defamation or otherwise’.
[13]
Its reasons, tersely stated, were these:
‘
In
contested cases, following on the close of pleadings, evidence is led
in an attempt to justify the amount claimed. The defendant
is
entitled to challenge that evidence and present countervailing
evidence. How else would a court be able to determine an appropriate

award? Relevant evidence has to be presented and fully explored. The
factors to be considered by a trial court in determining an

appropriate award include: the character and status of the plaintiff;
the extent of the defamatory publication; its envisaged and
actual
impact on the plaintiff; and the subsequent conduct of the person who
made the defamatory statement, including his or her
efforts, if any,
to make amends after the publication. This list is not
exhaustive.’
[14]
[30]
The
appellant did not persist in his claim for damages of R1 million and
no more need be said about it. The appellant also abandoned
his
claims for a retraction and apology and an interdict against further
publication.
Did the appellant
make out a case for an interdict?
[31]
The
high court found that the appellant had demonstrated a clear right to
his good name and reputation and that the Facebook post
was
defamatory, ie it was likely to injure the appellant’s
reputation by lowering him in the estimation of right-thinking

members of society.
[15]
That
being so, it is presumed that publication of the Facebook post was
both wrongful and intentional.
[16]
The onus was thus upon the respondent to raise and establish a
defence to rebut either wrongfulness or intention.
[17]
[32]
As
stated earlier, the respondent opposed the application in person in
the high court. This is how he described his defence:
‘
My
prayer to the honourable High Court is that:
a.
The
court must declare that there is no ground or basis [for a]
defamation order.
b.
The
published statement [should] not be declared defamatory as the
respondent has made the remarks in the public interest and from
[a]
privileged position.’
[33]
The
publication of a defamatory statement which is true, provided that
the publication is in the public interest, is not wrongful.
[18]
A defendant relying on this defence must plead and prove that the
defamatory statement is substantially true and was published
in the
public interest.
[19]
[34]
Thus,
the central question that the high court had to decide was whether
the respondent had established a sustainable foundation
by way of
evidence that the defence of truth and public interest (or fair
comment or the absence of
animus
iniuriandi
),
was available to be pursued.
[20]
Put simply, did the respondent produce evidence sufficient to
establish a defence of truth and public interest, or that he acted

without
animus
injuriandi
?
[35]
Counsel
for the appellant submitted that the high court had ignored the prima
facie burden that an applicant bears in defamation
cases and ‘imposed
a false burden on the appellant to pre-emptively and conclusively
disprove allegations that needed to
be proved by the respondent’.
The appellant, so it was contended, had presented ‘strong and
indisputable facts’
whilst the respondent failed to establish a
sufficient factual basis to overcome a defamation interdict. Simply
stated, the respondent,
like the appellants in
EFF
v Manuel
,
had not put up any facts to justify his defamatory statements. It was
further contended that the high court had misdirected itself
by
having regard to the respondent’s motives in raising the issues
contained in the Facebook post; and in grounding the respondent’s

opposition to the application in freedom of speech.
[36]
Two
preliminary points are required to be made at the outset. The first
is that inasmuch as the appellant sought an interdict declaring
that
the statements contained in the Facebook post were defamatory, a
reasonable or right-thinking person would read the Facebook
post in
context and as a whole. In
Demmers
v Wyllie
,
[21]
Muller JA stated the principle thus:
‘
From
the above it is clear, I think, that the words “reasonable
person” or “reasonable man” referred to
in the
decisions cited is a person who gives a reasonable meaning to the
words used within the context of the document as a whole
and excludes
a person who is prepared to give a meaning to those words which
cannot reasonably be attributed thereto.’
[37]
The
second is that on its facts, this case is entirely distinguishable
from
EFF
v Manuel
.
There, the EFF published a statement alleging that the process of
selecting the Commissioner of the South African Revenue Service
(the
Commissioner), chaired by Mr Manuel was ‘patently nepotistic,
and corrupt’. Mr Manuel alleged that the sting of
the statement
was that he had conducted a corrupt, unlawful and clandestine process
in the selection of the Commissioner, who was
said to be a relative
and close associate. These statements, he said, cast aspersions on
his character, were false and could not
be justified. The EFF’s
counsel accepted that the statement was defamatory.
[22]
[38]
The
EFF’s defence was that the statement that Mr Manuel was related
to the Commissioner, which had been disclosed to it by
a confidential
source, was substantially true, was reasonable in the circumstances
and was also fair comment. The defence of truth
and public interest
failed for the simple reason that the foundation for the defamatory
statement – that Mr Manuel was related
to the Commissioner and
that they were business associates and companions – was untrue.
The EFF had made no attempt to refute
Mr Manuel’s statements to
the contrary.
[23]
The defence
of fair comment that the appointment process was nepotistic and
corrupt failed for the same reason: it was based on
the allegation
that the Commissioner was Mr Manuel’s relative, business
associate and companion.
[24]
[39]
By
contrast, in this case the respondent laid a supportable foundation
that the defence of truth and public interest was available
to be
pursued. To begin with, the statements in the Facebook post did not
emanate from an unidentified source. When the post was
published the
respondent was a member of the EFF and served on the CCT – its
highest decision-making body. As he put it:
‘
The
Court will note that I have privileged information because I was
sitting in the highest structure of the EFF and the information
could
not be manufactured but could be received as communicated by the
applicant himself.’
[40]
The
statement that the EFF had received VBS funding with the full
knowledge of its leadership illustrates the point. It is clear
from
the answering papers that the appellant had disclosed receipt of VBS
funding at a meeting of the CCT. That disclosure and
the respondent’s
reaction to it was described in the answering affidavit as follows:
‘
Furthermore,
the irritation [of the appellant at the Facebook post] was further
informed by my publication of the applicant’s
admission to have
received the VBS money under the guise of financing of the revolution
since there was no capital nor government
that could finance the
revolution and therefore called for collective responsibility, a
request that I refused to give into. (RA
6 Cmsr. Xalisa affidavit).
I further commented
that, whilst we appreciate that the CIC [Commander-in-Chief] is
taking us into confidence, it would have been
better that we could
have been taken into confidence prior [to] the acquisition of the
funds not after, the people of Limpopo had
known that the ANC and its
alliance partners as corrupt and have seen the EFF as the bearer [of]
hope, but for the EFF to be mentioned
in [a] corruption scandal
involving the VBS which had carried the savings of poor people of
Limpopo is unacceptable. As a result
of that, our Cardinal pillar
number 7 is now on trial in terms of the public opinion. (Annexure RA
16, applicant admitted in an
interview with Scopa of Daily Maverick
of having received donations from VBS & RA 6 Cmsr. Xalisa
affidavit).
I further called for
the EFF to consider two options, one to expunge Cardinal Pillar
number 7 since we have failed to pass the moral
test we have set for
the society, or two, to close shop as we will lose relevance on the
stance of corruption in particular to
the people of Limpopo.’
[41]
The
appellant’s counsel sought to make much of the fact that the
appellant had informed journalists that neither he nor the
EFF had
benefited directly or indirectly from illicit VBS money. But that
misses the point and ignores the evidence. First, could
the
respondent’s version quoted above have been rejected on the
papers as being patently implausible, far-fetched or clearly

untenable?
[25]
I think not. It
shows that (a) the appellant had disclosed his receipt of VBS funds
at a meeting of the CCT; (b) when the disclosure
was made, and before
publication of the Facebook post, it was already known that VBS had
corruptly misappropriated the funds of
poor people in Limpopo; (c)
the money was received ‘under the guise of financing the
revolution’; (d) the respondent
refused to accept
responsibility for that decision and had taken the view that the
appellant should not have disclosed receipt
of VBS funds only after
the fact; and (e) the EFF had failed the moral test that it had set
for itself and society.
[42]
Second,
the respondent’s version was confirmed by Mr Zolile Rodger
Xalisa, a member of the EFF and MP who also served on the
CCT and the
War Council (the body responsible for the execution of decisions of
the CCT). In a handwritten affidavit he said:
‘
On
the 05-06 February 2019 the CCT convened its ordinary meeting of the
term. The President and the CIC of the EFF during the political

overview made an admission that the EFF had received donations from
VBS which is the Subject of Corruption. He said that no Capitalist
or
government is willing to support a revolutionary movement like EFF so
VBS saw an opportunity that the EFF could be in government,
it could
assist to ensure that it thrives better.
Then . . . the
President confirmed that they could not receive the donation with
[the] EFF account of theirs (him and Floyd Shivambu)
but had to
devise other means, he said sometimes you must kiss dogs or [the]
devil to get money. After this . . . CCT members were
invited to
speak on the impact. All CCT members were present and some are MPCs,
MPs and councillors could also attest [and were]
given [an]
opportunity.’
[43]
Mr
Xalisa’s affidavit makes three things clear. First, the
appellant, when he received funding from VBS, knew that VBS was
‘the
subject of corruption’. Otherwise viewed, there would have been
no need ‘to devise other means’ to
get the money, when
according to Mr Xalisa the EFF had two bank accounts: one at First
National Bank and the other at Standard
Bank. Second, this is
underscored by the appellant’s utterance, which is not
commonplace: ‘sometimes you must kiss
dogs or the devil to get
money’. Third, the appellant apparently had no difficultly in
accepting funds that were the subject
of corruption as an opportunity
for the EFF to be in government.
[44]
Therefore,
the conclusion in the minority judgment that the appellant’s
admission of the receipt of VBS funds was not made
at a time when VBS
was the subject of scandal or known to be fleecing its depositors, in
my respectful opinion, is at odds with
the evidence –
a
fortiori
when the appellant denied that the meeting took place at all. On this
issue he said that the respondent’s version was ‘based
on
hearsay evidence’ and lacked specificity. Mr Xalisa’s
evidence (an affidavit sworn to at a police station) was brushed

aside on the basis that it ‘purports to be an affidavit’;
and that ‘in the absence of a confirmatory affidavit
by the
deponent’, inexplicably, fell to be struck out. All of this, of
course, was no answer to the facts set up by the respondent
that
formed the foundation of a defence of truth and public interest.
[45]
What
is more, statements that the EFF had in fact received VBS funding and
that the appellant had personally benefited from those
funds, were
already in the public domain. It will be recalled that the Facebook
post was published on 5 April 2019. The respondent
annexed an email
to the answering affidavit, which the appellant had sent to the media
on 19 November 2018 in response to questions
by Scorpio, Daily
Maverick. It reads inter alia:
‘
Questions
to Mr Malema:
6.
During the press conference of 16 October 2018, I asked very
specifically if you or the EFF have ever benefited directly or
indirectly and in any shape or form from the illicit VBS money. You
denied the allegation. I have now proved that you lied. Your
comment?
I
don’t lie Sesi, I stand by what I said in the press conference.
7.
During the press conference of 16 October 2018 I asked whether you or
the EFF ever received money from Sgameka or Mahuna.
[26]
At first you denied the allegation, and later backtracked by stating
that you may have received “donations”. I have
now proved
that you lied. Your comment?
I
stand by what I said in the press conference, I don’t lie
Sesi.’
[46]
Concerning
this exchange, two observations are necessary. First, and tellingly,
the appellant has not sought declaratory relief
nor damages against
the print or electronic media for any injury to his good name or
reputation, arising from his or the EFF’s
receipt of funds from
VBS bank. And this, when on 21 November 2018, the Daily Maverick
published an article on its Scorpio website
(also annexed to the
answering affidavit) entitled, ‘VBS bank heist: EFF’s
family ties and moneyed connections’,
after receiving the
appellant’s email of 19 November 2018. It reads in relevant
part:
‘
EFF
President Julius Malema and his “corruption busting”
political party directly benefited from the VBS Mutual bank
heist, a
Scorpio investigation has found. Scorpio traced the flow of illicit
VBS funds, earmarked for a property in the affluent
Johannesburg
suburb of Sandown, through three fronts that also dished out money to
the EFF. Julius Malema stayed for years at the
property which is now
registered as an EFF asset. Over R1.8 million of the same illicit VBS
funds were used to prop up the EFF,
Scorpio has found. Stripped to
its essence, a company officially owned by Floyd Shivambu’s
brother made questionable payments
to a company owned by Malema’s
cousin. Both these companies operated like slush funds which
dispersed money to where it was
needed. This is a story of how the
constituency Malema claims to fight for – the poor, the young
and vulnerable – was
robbed to feed the EFF leader’s
private and political interests.’
[47]
The
appellant did not deny the statements in this article in reply. He
merely responded that the article ‘falls to be struck
out on
account of the fact that it is irrelevant to these proceedings’.
It was highly relevant – the appellant sought
an interdict on
the basis that his admission to taking VBS money in a meeting of the
CCT, was defamatory.
[48]
Second,
the mere fact that the respondent had access to the email of 19
November 2018, reinforces his claim that he had access to
‘privileged
information’ because he served on the CCT. There is nothing in
the record to gainsay this. In this regard,
I respectfully disagree
with the statement in the minority judgment that the email of 19
November 2018 was a public document which
the respondent attached to
his affidavit. That was not the appellant’s evidence. On the
contrary, his statement: ‘It
is curious that the respondent has
come into possession of this e-mail when he is not a recipient
thereof’, shows that the
appellant was of the view that the
respondent was not entitled to be in possession of it.
[49]
That
brings me to the statements in the Facebook post that the ‘pair
have made it clear, this is their organisation and all
of you have
come to join us not the other way round’, and that costs had
been inflated by the EFF’s leadership. When
these statements
are considered in the context of the Facebook post as a whole, they
are but examples of a recurring theme: a lack
of accountability and
abuse of funds on the part of the leadership of the EFF.
[50]
The
immediate context of these statements, as is evidenced by the
Facebook post quoted in paragraph 5 above, can be summarised as

follows. The EFF received levies from 61 MPs of not less than R6800
each and 852 councillors contributed at least R2000 per month
to the
EFF. It had 1 million members who each paid R10. The EFF received not
less than R25 million per quarter from the National
Assembly and
provincial legislatures. All these funds were centralised in the EFF
‘under the control, abuse and dictatorship’
of the
appellant and Mr Shivambu, who had made it clear that the EFF was
their organisation which members had joined, not the other
way
around. The Treasurer General of the EFF, the respondent said, ‘only
administers petty cash’. Since 2014 no financial
report has
been tabled before the CCT. When the respondent and others questioned
this, they were chastised, treated with disdain
and threatened with
removal from Parliament. As a result, in the respondent’s
words, they had to ‘think with [their]
stomachs’, rather
than holding the executive of the EFF accountable.
[51]
What
then follows is the respondent’s statement about the inflation
of costs. The context speaks for itself:
‘
The
Parliament money of the EFF cannot be cashed in terms of treasury
rules, but the pair would use Training Providers who would
inflate
costs [by] 250% so that they can run away with 150% of the inflated
cost,
in
the absence of financial reports from the pair, we would be forced to
conclude as such
.
[27]
These service providers are in the form of alcohol party retailers,
lawyers, security (Defenders of Revolution and Body and logistics

service providers).
[28]
No
report whatsoever.’
[52]
The
answering affidavit states that the appellant refused to disclose the
EFF’s financial state of health to its leadership,
or to be
held accountable for the administration of EEF funds. The respondent
said:
‘
The
applicant has refused to disclose EFF’s financial state of
health from the 1
st
April 2014 to 31 March 2019. . . . The applicant is not honest when
he says, he is ready to open the financial books of the EFF
to
journalists when he has not been able to open the EFF financial books
to EFF national leadership as provided by the constitution
since 2014
to 2019/03/30.
As the Senior leader
of the Economic Freedom Fighters serving in the national leadership
and Member of Parliament, I have the privileged
information in terms
of the sources of funds of the Economic Freedom Fighters and [am]
further alert [to] the constitutional obligation
at least in the
organisation in terms of democratic use of the finances of the
organisation. It is my submission that the EFF funds
are used in
terms of the wisdom of the applicant and those closer to him to the
exclusion of the collective of the national leadership
as dictated by
the Constitution. The provisions of the constitution are not complied
with.’
[53]
The
respondent cited three instances in March 2017, May 2017 and November
2018 respectively, where officials of the EFF had appeared
before its
NDC on charges of lack of financial accountability. The respondent
presided over those hearings and attached the findings
of the NDC.
The sanctions imposed were expulsion from the EFF and suspension of
membership of the organisation for a period of
at least three years.
He went on to say:
‘
I
am raising the above 3 incidents . . . to demonstrate the extent to
which I am privileged to understand and know the information
and the
extent to which the EFF as the organisation is intolerant and strict
[with regard] to . . . any conduct that is inconsistent
with its
policies in handling of the finances. . . . [T]he lack of financial
accountability from the applicant and other officials
should be
deemed serious as it was deemed to the Northern Cape Provincial
leaders that were expelled.’
[54]
Then,
under the heading ‘PUBLIC INTEREST’ in the answering
affidavit, the respondent said this:
‘
The
applicant is not an ordinary citizen but a President and the
Commander-in-Chief of the third biggest political party in South

Africa, a Member of Parliament and the leader of the opposition and a
champion of anti-corruption. The applicant cannot demand

accountability from the former State President of South Africa on the
public funds mismanagement resulting in failure to be held

accountable yet the applicant refuses to be held accountable for the
organizational funds coming from the state. . . .
. . . [P]ublic
representatives that are presiding over organizations that receive
state funds have an obligation to remain accountable
to the
organisation they lead and the state equally. The public has the
right to know that the applicant as the public representative
does
not account to the organization about the use of organizational funds
and therefore is in violation of the EFF Constitution.’
[55]
Again,
the respondent’s statements about the lack of accountability
and abuse of funds by the leadership of the EFF were confirmed
by Mr
Xalisa. He said:
‘
I
further wish to state under oath that the EFF is receiving money from
Parliament and 9 legislatures, Party levies from 852 councillors,

R6800 from 61 MPs and MPL’s including R10 membership for an EFF
member but has never given a financial report in the CCT
since we
were elected [in] 2014. . .  The money that is used is not
disbursed by the CCT but by President Julius and the Deputy
President
as Senior Authorities of the organisation.’
[56]
The
facts in the Facebook post referred to in paragraphs 49 to 51 and 54
above, and those relating to the appellant’s admission
of his
receipt of VBS funds when it was the subject of corruption, would
never have been known to outsiders. Therefore, the respondent’s

position as an insider serving on the CCT, and the evidence he
presented to demonstrate that the defence of truth and public
interest
was available to him, cannot be over-emphasised.
[57]
What
remains is the allegation that in the absence of financial reports,
the respondent would be forced to conclude that the leaders
of the
EFF had inflated the costs of training providers so that they could
pocket the difference. When this statement is read in
the context of
the Facebook post as a whole, it means no more than this. In keeping
with the ‘control, abuse and dictatorship’,
and lack of
accountability regarding the funds of the EFF by its leaders, and in
the absence of financial reports from them, the
inference is
compelling that the costs of service providers, such as alcohol
retailers, lawyers, security and logistics service
providers, were
inflated. Indeed, the Facebook post says so.
[58]
In
addition, the respondent put up sufficient facts to show that on this
score also, the defence of truth and public interest, and
fair
comment,
[29]
could be mounted.
He immediately went on to say:
‘
The
recent function of the EFF, GALA dinner which was held in Pretoria
after the Soshanguve Rally. The service provider of beverages,
both
alcohol and soft drinks, told us [in] no uncertain terms that a
bottle of Tanqueray with a normal price of R200.00 was sold
for
R800.00. On enquiry we were told that it was [the appellant's]
instruction that prices must be inflated, in the result we could
not
drink the bottle.’
[59]
On the
facts, the respondent demonstrated that there was a dinner in
Pretoria after a rally of the EFF; that on enquiry he was told
that
the price of alcohol had been inflated; that he was not alone when
the enquiry was made; that they could not buy the alcohol
because of
its exorbitant price; and that there are persons who would be able to
verify his version. Even if the respondent’s
statement as to
who gave the instruction that the price of alcohol should be
inflated, that alone was not defamatory. His evidence
of inflated
prices at an EFF event was first hand. In these circumstances, it
cannot be said that the respondent’s version
is far-fetched,
clearly untenable or palpably implausible that it could be rejected
as false merely on the papers,
[30]
which warranted the grant of a final interdict.
[60]
Neither
was the respondent’s statement that the price of alcohol had
been inflated, untrue: the very reason why the alcohol
was not
bought. The appellant’s reply once more, was a bald denial. He
said that the statement lacked specifics and was hearsay.
This, when
the facts show that the costs of service providers and the manner in
which EFF funds are expended lie purely within
the appellant’s
knowledge. Despite this, he did not produce a single document to show
that those costs had not been inflated,
or to rebut the allegation
that there were no financial reports tabled since 2014. Thus, the
respondent’s inability to cite
further examples of the
inflation of costs by service providers was potentially at least a
product of the secrecy regarding the
accounts of the EEF, which was
not rebutted. In the circumstances, in my opinion, and apart from the
facts stated in paragraphs
58 and 59 above, the inference drawn by
the respondent that costs had been inflated was a readily apparent
and plausible one.
[61]
In
addition, the respondent, in his capacity as a senior leader of the
EFF and an MP, had personally raised all the issues which
he had
published in the Facebook post, with the appellant. This too, was
denied and dismissed with an allegation that the appellant
should
have raised the issues within the structures of the EFF. The
appellant’s answer to the respondent’s claim that
he had
not produced a financial report in the CCT since 2014, which was
confirmed by Mr Xalisa, was also a bald denial.
[62]
As
to the hearsay statement by the service provider, it must be borne in
mind that the respondent was an unrepresented litigant
in person, who
is not legally qualified. The claim he was called upon to answer was
a not a simple legal matter, as
EFF
v
Manuel
and
this case illustrates. In his affidavit, the respondent said:
‘
2.
I am a 39 year old male currently employed and [a] student at Nelson
Mandela University, I will be representing myself in this
case.
3.
I pray that the Honourable High Court bear with me.’
[63]
This,
of course, is not to say that the respondent was entitled to any
better treatment than a represented party. That said, the
advice to
judges when dealing with litigants in person, referred to most
recently by the UK Supreme Court in
Serafin
v Malkiewicz
,
[31]
is instructive:
‘Litigants in person may be stressed and worried: they are
operating in an alien environment in what is for them effectively
a
foreign language. They are trying to grasp concepts of law and
procedure about which they may have no knowledge. They may well
be
experiencing feelings of fear, ignorance, frustration, anger,
bewilderment and disadvantage, especially if appearing against
a
represented party.’
[64]
The
defence of truth and public interest is founded on the recognition of
a right to publish a defamatory statement which is true,
where the
publication is in the public interest.
[32]
The facts put up by the respondent demonstrated that the defence was
available to be pursued. These facts comprise not only direct

information placed before the court, but material showing other
information not in his control but potentially available at a trial

in due course, such as the EFF’s financial records and
documents relating to receipt of VBS funds. All these factors must
be
weighed up in order to decide whether there is a dispute of fact
regarding the existence of a defence. Since
Heilbron
,
[33]
the position has been that a final interdict for defamation cannot be
granted unless a respondent has no defence.
[65]
Further,
as this Court has affirmed in
Herbal
Zone
,
[34]
and
Tau
v Mashaba
,
[35]
an interdict is always directed at future conduct. If there is no
risk of future re-publication by the respondent – as the

appellant seems to have accepted – an interdict will not be
granted, because there is nothing left to restrain and no risk
of
future injury. The high court rightly concluded that the appellant
failed to make out a case for this relief.
[66]
In the
result the appeal is dismissed.
__________________
A SCHIPPERS
JUDGE OF APPEAL
Rogers
AJA:
[67]
I have
read the judgment of my colleague Schippers JA (the first judgment),
which sets out the relevant factual background. I shall
adopt the
abbreviations used in the first judgment. I agree with what is said
in the first judgment (paras 22-30) about bringing
defamation claims
on motion. I also agree with the first judgment’s conclusion
(paras 49-56) that the appellant failed on
the papers to show that
the respondent acted unlawfully by publishing statements that the
appellant’s conduct, as leader
of the EFF, was undemocratic and
unlawful (in the sense of behaviour inconsistent with the EFF’s
constitution). Contrary
to the first judgment, however, I consider
that the respondent acted unlawfully by publishing statements
conveying that the appellant
was corrupt, stole money and was of base
moral character.
[68]
At the
hearing of the appeal, counsel for the appellant said that if the
appeal succeeded he pressed only for the relief claimed
in paras 1
and 2 of the notice of motion. In those paragraphs the appellant
prayed for orders declaring that the statements made
by the
respondent in the Facebook post published on 5 April 2019 are
defamatory and unlawful. Para 3 sought the removal of the
offending
statements from the respondent’s social media accounts, but it
is common cause that this has occurred. The appellant
does not
persist with his claims in para 4 for a retraction and apology; in
para 5 for an interdict against further publication;
or in para 6 for
damages.
[69]
The
relief in paras 1 and 2 is directed at statements contained in the
Facebook post. Although the appellant made allegations about
later
statements by the respondent (these include those quoted in para 12
of the first judgment), these were not the subject of
the relief
claimed, though they were relevant, at the time the proceedings were
launched, to the question of an apprehension of
continuing unlawful
conduct.
[70]
In
para 66 of the founding affidavit the appellant alleged that the
defamatory statements were understood to mean and imply (a) that

he is corrupt; (b) that he is stealing money; (c) that he
conducts himself in an unlawful and undemocratic manner; and
(d) that
he is of base moral character. Meaning (d) is a conclusion from
meanings (a) and (b). Since the appellant only sought
relief in
connection with statements contained in the Facebook post, I read
para 66 to be his case as to the defamatory meaning
of statements
contained in the Facebook post. In this respect, I differ from the
first judgment, which (in para 12) treats para
66 of the founding
affidavit as referring to statements made by the respondent in a
subsequent media interview, though perhaps
not much turns on the
distinction.
[71]
The
respondent did not deny that the Facebook post had the meanings
alleged in para 66. Although the appellant should, in his founding

affidavit, have identified the precise passages in the Facebook post
which conveyed these meanings, no point was taken about inadequate

pleading, either by the respondent or by the high court or in this
Court. The Facebook post must be read as a whole. So read, the

passages which would have been understood by the ordinary reader as
meaning that the appellant is corrupt and steals money are
readily
identifiable:
(a)
The post identified ‘the pair’ as the appellant and Mr
Floyd Shivambu.
(b)  The
post’s heading was: ‘EFF remains a financial fishing net
for the pair . . .’.
(c)  In
the post, the respondent, after stating that the ANC leadership was
guilty of corruption, said that no one should
have ‘a license
to climb on the band wagon in the name of left working class politics
to commit corruption and hide behind
the slogans of Economic Freedom
for dejected African masses of our people’.
(d)  After
identifying various sources of EFF funding, the respondent alleged
that
‘
[a]ll
these moneys are
centralized in the EFF under the control, abuse and dictatorship of
Julius Malema and Floyd Shivambu’.
(e)  Among
the abuses alleged by the respondent was the following: ‘The
parliament money of the EFF cannot be cashed
in terms of treasury
rules, but the pair would use Training Providers who would inflate
costs 250% so that they can run away with
150% of the inflated cost,
in the absence of financial reports from the pair, we would be forced
to conclude as such’. Such
service providers were said to
include ‘alcohol party retailers, lawyers [and] security’.
(f)  The
respondent referred to a letter written by Dr Mbuyiseni
Ndlozi
to party officials
‘complaining about the lifestyle of Julius Malema and how he
abuse the EFF funds’.
(g)  With
reference to the ‘VBS saga’, the respondent claimed that
the appellant had, at the most recent meeting
of the party’s
CCT, ‘admitted to EFF taking VBS money to finance the
revolution’. The respondent stated that
the party had ‘failed
to pass the test of morality we have set for the society’: ‘If
we fail to pass the test
of corruption, how are you going to be
trusted to nationalize mines and put under your regime state
custodianship because instead
of committing to equitable
redistribution you will squander the funds’. He followed this
with another rhetorical question:
‘How are you going to build
state capacity when you are engaged into activities that weaken the
state through engagement
into corruption? How will people trust you
with freeing this country from corruption?’.
(h)  The
respondent stated that he had refused to take collective
responsibility on VBS. He remained poor, despite having
been in
parliament for four years: ‘The pair has milked every cent I
worked for in parliament . . .’.
(i)  The
respondent declared that among the reasons for which he left the ANC
was ‘the dispensation of patronage
and corruption’ and
that it was ‘hypocritical to stand for it in the EFF’.
(j)  He
concluded his post thus (capitalisation is the original):
‘
You
commit to an open and corrupt free society and instead you are found
at the centre of corruption. In your analysis kindly JUXTAPOSE
THE
SUBJECTIVE REALITY OF EMOTIONALISM AND THE OBJECTIVE REALITY OF A
PARTY ENGAGED IN CASH HEIST OF THE STATE MONEY.
Bring
it on, insult me.
Bloody
crooks.’
[72]
In
defamation proceedings, the delictual element of fault is styled
animus
iniuriandi
.
Proof of
animus
iniuriandi
is
a necessary element of a claim for damages. Where, however, an
injured party seeks an interdict, he does not need to prove fault,

and this applies also to interdicts alleging defamation and injurious
falsehood.
[36]
It is thus
irrelevant whether or not the respondent honestly believed that he
was entitled to publish the defamatory material.
The same is true of
the declaratory relief aimed at establishing that the statements in
question were defamatory and that their
publication was unlawful.
[73]
We are
also not dealing, in this case, with an anticipatory interdict in
respect of defamatory material which has not yet been published
(cf
Herbal
Zone v Infitech Technologies
).
[37]
The Facebook post was published, and the question is whether it was
lawfully published.
[74]
Since
the Facebook post was defamatory of the appellant, the onus rested on
the respondent to neutralise the presumption of unlawfulness
by
establishing a defence going to lawfulness. The only one which need
detain us is that the publication was true and in the public

interest. Although the onus rested on the respondent to raise some
such defence, this did not alter the operation of the
Plascon-Evans
rule.
[38]
If there was a material dispute of fact as to whether or not the
published statements were true and in the public interest, the

dispute of fact had to be resolved in the respondent’s favour,
meaning that the appellant would not have been entitled to
the
declaratory relief he sought.
[75]
In
regard to interdicts against the publication of defamatory material,
we were referred to the judgment of Greenberg J in
Heilbron
v Blignaut.
[39]
The learned judge said that there were no features peculiar to
defamation. The law to be applied ‘is the law which would
apply
to any apprehended injury’.
[40]
As this Court said in
Hix
Networking Technologies
,
[41]
Heilbron
did
not signal any departure from established rules.
Hix
Networking Technologies
was
a case about an interim interdict. Particularly in the constitutional
era, the elements of balance of convenience and discretion
are where
a court will factor in the right to freedom of speech.
[42]
Where one is dealing with a final interdict or declaratory relief,
however, the focus is on whether the applicant has established
his
right and its unlawful invasion. Since we were not asked to develop
the common law, defamation does not in this respect stand
on a
different footing from other allegedly unlawful conduct, though
naturally the Constitution may affect the assessment of elements
of
conventional defences, such as, for example, whether publication of
particular allegations was in the public interest.
[76]
This
Court’s judgment in
Herbal
Zone
cannot
be read as altering, in relation to defamation, the ordinary law of
interdicts. This Court emphasised, as had already been
made clear in
Hix
Networking Technologies
,
that
Heilbron
was
not authority for the proposition that in an application for an order
to interdict the publication of defamatory material the
respondent’s
mere
ipse
dixit
suffices.
Wallis JA explained:
[43]
‘
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 a 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 therefor.’
[77]
In
Herbal
Zone
,
the appellant had, by admissible evidence, made out the case that its
allegation of counterfeiting against the first respondent
was true
and in the public interest. Wallis JA said that it was unnecessary to
determine whether the appellant’s defence
would succeed at
trial; the appellant had raised ‘a colourable defence’
and laid a ‘factual basis … for
it that cannot be
rejected out of hand’.
[44]
By using the expression ‘colourable defence’, Wallis JA
was not signifying anything less than admissible evidence which,
if
true, made out the defence. His concluding words (‘that cannot
be rejected out of hand’) shows that he had in mind
evidence
that passed the
Plascon-Evans
test. ‘Colourable’ here means ‘appearing to be
correct or justified’.
[78]
Since
truth and public benefit is obviously a good defence in law, the
question for present purposes is whether the respondent laid
a
factual foundation for it by way of evidence. In the context of
judicial proceedings, evidence means admissible evidence. While
some
leeway could properly be allowed to the respondent as a litigant in
person, departure from accepted principles should not
be allowed to
prejudice the appellant. The rules of evidence exist to ensure fair
play and reliable outcomes. While one can readily
accept, as stated
in the first judgment, that the respondent was an insider who might
have had access to information not available
to the general public,
the question remains whether, by virtue of his inside position, he
had evidence to support the defamatory
allegations and, if so,
whether he adduced that evidence in the proceedings before the high
court. One cannot assume that his defamatory
statements are true just
because he was an insider.
[79]
What
admissible evidence did the respondent put up in support of his
allegation that the appellant was corrupt, stole money and
was of
base moral character? The respondent claimed in his answering
affidavit to have been present at a meeting, held in early
February
2019, where the appellant admitted to having received money from VBS
to fund the revolution. In support of this allegation,
he also filed
an affidavit from Mr Zolile Xalisa who swore that he was present at
the meeting and that the appellant, in the course
of giving a
political overview, admitted that the EFF had received donations from
VBS. In context, the respondent’s allegations
convey that the
appellant was instrumental in allowing the EFF to receive donations
from VBS in order to finance its political
activities. The respondent
stated in his affidavit that on receiving this information he had
observed that while he appreciated
the fact that the appellant was
taking them into his confidence, it would have been better for this
to have happened before rather
than after receipt of the money.
[80]
Although
these allegations were denied by the appellant in his replying
affidavit, they cannot, on the
Plascon-Evans
approach, be rejected out of hand. If true, they support the
respondent’s complaint of the appellant’s lack of
financial
accountability and a complaint that the VBS scandal
tarnished the EFF by association. But they fall well short of making
the case
that the appellant is corrupt and steals money. Although VBS
later became the subject of scandal, the respondent does not allege

that the donations, the receipt of which the appellant allegedly
admitted, were made at a time when VBS was known to be fleecing
its
depositors or that the appellant admitted taking the money for
himself rather than for the EFF.
[81]
Publicly
available information, including court judgments, reveal that in
February 2018 VBS experienced a liquidity crisis as a
result of
withdrawals of deposits. This may have been precipitated by a
circular which National Treasury sent to municipalities
in August
2017 stating that they were not permitted by the
Local Government:
Municipal Finance Management Act 56 of 2003
to place deposits with
mutual banks such as VBS. The liquidity crisis led to VBS being
placed under curatorship on 11 March 2018
at the instance of the
South African Reserve Bank. By late July 2018 its curator had formed
the view that certain of VBS’
officers had, as from 2017,
embarked on a massive fraud which continued until the curatorship
order.
[45]
On 5 October 2018
the South African Reserve Bank published a report by an advocate,
Terry Motau SC, with the title ‘The Great
Bank Heist’,
which set out Mr Motau’s findings of malfeasance at VBS.
[46]
With no prospect of being restored to well-being, VBS was placed in
final liquidation on 13 November 2018.
[82]
I
mention this information not because it is admissible evidence in the
present proceedings but to show that one needs to be cautious,
in the
absence of clear evidence, about inferring that an admission made by
the appellant in February 2019 that the EFF had received
donations
from VBS meant that the appellant had taken donations from a bank at
a time when he knew it to be engaged in looting.
In fact, since VBS’
curator and liquidator would not have caused the bank to make
donations to the EFF or the appellant,
any such donations must have
predated 11 March 2018, ie at a time, so it seems, that there was no
public scandal surrounding VBS.
[83]
In the
first judgment it is stated, at para 41, to be beside the point that
the respondent failed to allege or provide evidence
that the
appellant personally benefited from the VBS donations. In my
respectful view, however, evidence to this effect, together
with
evidence that the donations were received at a time when VBS was
known to be engaged in widespread theft from vulnerable depositors,

was crucial if the respondent wished to establish the truth of
statements conveying that the appellant was corrupt or a thief.
[84]
In his
answering affidavit the respondent claimed that the appellant had
admitted to a Scorpio journalist, Ms Pauli van Wyk, that
he (or the
EFF) had received donations from VBS. The document he attached in
support of this allegation (being questions posed
to the EFF, the
answers furnished by Messrs Malema and Shivambu and Dr Ndlozi, and
the journalist’s subsequent article) do
not contain any such
admission. (Scorpio is the investigative arm of
Daily
Maverick
.)
To the extent that my colleague considers that the passage he quotes
in para 44 of the first judgment embodies such an admission,
I
respectfully disagree, though not much turns on this because there is
other evidence (albeit disputed) that the appellant made
such an
admission at the CCT meeting of February 2019. I also disagree, in
passing, with the statement in para 48 of the first
judgment that the
respondent’s possession of these email exchanges is evidence of
his access to inside information. Ms van
Wyk’s
Daily
Maverick
article
contained links to supporting documentation, one such link being the
email exchanges between her and the three EFF functionaries.
It was
this linked document, ie a linked document available to the public at
large, which the respondent attached to his affidavit.
[85]
The
respondent alleged in the answering affidavit that it was publicly
known that the appellant had stayed in a house in Sandown,

Johannesburg, for more than three years as from 2012 and that the
house ‘has been the subject of investigation due to the
VBS
financial illicit flows to the property’. He said that R430 000
had allegedly been ‘pumped’ into the
property from VBS
funds. The EFF had later bought the property (he attached a deed of
transfer dated 21 June 2017). The acquisition
of this property had
not been reported to the CCT. The EFF’s spokesperson, Dr
Ndlozi, allegedly told the Scorpio journalist,
when asked about the
R430 000, that ‘at least the money was not for the
purposes of the [EFF], implying that the funds
were pumped for the
tenant of the house owned by EFF under the leadership of [the
appellant]’. In this context, the respondent
again referred to
the questions posed by the Scorpio journalist and her article.
[86]
The
question which the journalist posed was: ‘Is the
above-mentioned EFF leadership – along with its national chair

– aware that at least R430 000 in illicit VBS funds were
pumped into the property?’ The recorded response from
Dr Ndlozi
was: ‘It is not true, at least not for EFF purposes.’ In
her article, the journalist remarked, ‘It
is unsure why Ndlozi
felt the need to qualify his answer.’ According to the
journalist’s article, the payments totalling
R430 000 were
made in the months after the EFF took transfer. Dr Ndlozi’s
answer, assuming it to be accurately recorded,
does not show that the
appellant is corrupt or a thief. Not even the journalist drew that
conclusion.
[87]
Once
again, the appellant in his replying affidavit objected to the
admissibility of the Scorpio article. I do not question the
value of
investigative journalism, but articles of this kind cannot simply be
put up in court proceedings as evidence of the truth
of what the
journalist has written. Apart from the fact that Ms van Wyk did not
make an affidavit (there is no evidence that she
was asked),
self-evidently the content of the article is not within her personal
knowledge. Understandably, she does not identify
all her sources. The
documents to which she refers would, if they were to constitute
evidence in court, have to be produced and
properly proved.
Production of the article by the respondent constituted double or
triple hearsay.
[88]
The
respondent alleged in his answering affidavit that the appellant
appointed service providers without being accountable to the
CCT and
that these service providers inflated their costs. He claimed that at
a recent gala dinner in Pretoria following a Soshanguve
rally, the
service provider of the beverages told them in no uncertain terms
that a bottle of Tanqueray with a normal price of
R200 was sold for
R800 and that ‘[o]n enquiry we were told that it was your
instructions that prices must be inflated, as
the result we could not
drink the bottle’. Later in his affidavit the respondent
described his informant as the ‘bar
lady’.
[89]
The
occasion on which the respondent queried the Tanqueray price is the
only incident he identified. No other examples of service
providers
(whether training providers, as alleged in the Facebook post, or
otherwise) inflating their charges (whether by 250%,
as alleged in
the Facebook post, or otherwise) were given. And in relation to the
Tanqueray incident, he does not state under oath
that the bar lady
told him that the price was inflated so that the appellant could
pocket the difference. In his replying affidavit
the appellant
objected to the evidence about the Tanqueray incident. The
respondent’s evidence on this score was undoubtedly
hearsay.
The respondent did not identify his informant by name. He did not
produce an affidavit by her or say that he had tried
to get her
evidence. It is not self-evident that a bar lady could speak reliably
about the appellant’s interactions with
the service provider.
In the circumstances, the respondent’s allegations about this
incident do not constitute admissible
evidence that the appellant
instructed the supplier of beverages to inflate prices or that he did
so in order to steal the difference.
[90]
The
respondent made allegations that the appellant is undemocratic and
dictatorial in his running of the EFF, that he and Mr Shivambu
are
not accountable to the party’s structures in their management
of its money, and that he has failed to produce financial
reports to
the CCT. Although the appellant denied these allegations in reply,
they must in terms of the
Plascon-Evans
rule be accepted for present purposes, but they do not show that the
appellant is corrupt or a thief.
[91]
The
high court referred to the well-known passage from
Room
Hire Co v Jeppe Street Mansions
[47]
where Murray AJP identified the main ways in which disputes of fact
arise. The first and clearest instance, he said, was when the

respondent denies all the material allegations made by the
applicant’s deponents, and produces ‘or will produce’

positive evidence by deponents or witnesses to the contrary. With
reference to the words I have placed in quotation marks, Murray
AJP
observed that the respondent ‘may have witnesses who are not
presently available or who, though adverse to making an
affidavit,
would give evidence
viva
voce
if subpoenaed’. The high court in the present case considered
that the respondent fell into this category: ‘Due to
his senior
position in the EFF he has certain information and he says that the
statements are true, and given the opportunity he
will prove it. He
does not rely on a bare denial or his
ipse
dixit
’.
[92]
I
disagree. Save for the Tanqueray incident, there was no evidence, not
even hearsay, of occasions when service providers inflated
their
prices so that the appellant could steal the difference from the EFF.
As to the Tanqueray incident, the respondent did not
say that he knew
where the bar lady was or that he had asked her for an affidavit or
that he would be able or wished to obtain
her evidence under subpoena
at trial. In regard to the Scorpio article, the respondent did not
express any intention of procuring
admissible evidence of the matters
stated therein.
[93]
I
should add that in my respectful view the high court’s
reasoning on this part of the case was also conceptually flawed.
The
high court considered that the appellant had made out the first two
requirements for a final interdict, namely a clear right
(the
appellant’s right to his good name) and injury (the besmirching
of the appellant’s good name). The high court
treated the
supposed dispute of fact as going to the question whether the
appellant had another satisfactory remedy. That is incorrect.
If the
respondent raised a genuine dispute of fact, it was a dispute as to
whether the defamatory material was true and its publication
in the
public interest, ie whether the publication was unlawful. Injury, in
the delictual sense, means an unlawful invasion of
the claimant’s
right.
[48]
If there was a
genuine dispute of fact about whether the publication was true and in
the public interest, the appellant failed
to establish the element of
injury. If an applicant for a final interdict does not establish the
unlawfulness of the respondent’s
conduct, an interdict cannot
be granted,
[49]
and the
question of alternative remedies is irrelevant.
[94]
Before
concluding, I wish to make brief reference to this Court’s
recent judgment in
EFF
v Manuel
,
[50]
since counsel for the appellant placed some reliance on passages in
that case (paras 70 ff) in which this Court criticised the
EFF for
having relied on an undisclosed source without investigating the
accuracy of the source’s information. I agree with
the first
judgment that this case does not assist the appellant, though my
reasons for that conclusion differ from those expressed
in
paras 37-39 of the first judgment.
[95]
Manuel
,
in the passages upon which counsel for the appellant relied, was not
dealing with the question whether the defamatory publication
was
justified. In that case the EFF did not seriously contend that its
allegations about Mr Manuel were true. Although a defence
of truth
and public benefit was raised, this Court gave it short shrift (para
37). What thereafter engaged this Court’s attention
was whether
the EFF had nevertheless acted reasonably in publishing the
defamatory statement. This was treated as being relevant
either to a
defence of reasonable publication (if such a defence applied to
parties other than the press, a question which this
Court left open)
or to a conventional defence by a non-press respondent of an absence
of
animus
iniuriandi
.
(In
Manuel
the
complainant was persisting with his claim for damages, so
animus
iniuriandi
was
an essential element of the cause of action.)
[96]
The
nature of evidence bearing on the question whether a respondent acted
reasonably in publishing defamatory material, or whether
the
respondent honestly though mistakenly believed that the defamatory
material was true and in the public interest, is qualitatively

different from evidence bearing on the question whether the
defamatory material was in fact true and in the public interest.
Evidence
of the sources of information known to a respondent at the
time of publication might be inadmissible to prove the truth of the
information but might be highly relevant to the question whether the
respondent had a reasonable basis for publishing or an honest
belief
that the allegations were true. For the latter purposes, it would
also be relevant to know whether the respondent took reasonable
steps
to verify his or her sources, and it is in these respects that this
Court in
Manuel
criticised
the EFF.
[97]
In the
present case, however, we are not concerned with reasonable
publication or a defence of absence of
animus
iniuriandi
.
We are dealing with an objective enquiry: were the defamatory
allegations true or not? The enquiries which the respondent made
or
should have made do not bear on that question. Either he has or has
not adduced admissible evidence that the defamatory allegations
are
true. In the respects I have identified, the respondent did not
produce such admissible evidence.
[98]
In the
circumstances, while the respondent put up a ‘colourable
defence, based on evidence’ to justify saying that the

appellant conducted himself in an unlawful and undemocratic way, he
did not in my opinion do so in relation to the allegations
that the
appellant was corrupt, stole money and was of base moral character.
It follows that I would have upheld the appeal in
part. Since this is
a minority judgment, there is little point in considering how his
partial success would have affected costs
in this Court and in the
high court.
O L ROGERS
ACTING JUDGE OF
APPEAL
APPEARANCES
For
appellant:

T Ngcukaitobi SC
K
Premhid
Instructed
by:

Ian Levitt Attorneys, Sandton
Lovius
Block Attorneys, Bloemfontein
For
respondent:

In person
[1]
This is an
unknown entity to the Court. Presumably it is a reference to the
private security services hired by the EFF.
[2]
Jason Burke
‘South African police make arrests over notorious bank
corruption scandal’ 17 June 2020
The
Guardian
,
available at
https://www.theguardian.com/world/2020/jun/17/south-african-police-make-arrests-vbs-bank-scandal-notorious-corruption.
[3]
NPA and Hawks
media briefing on the VBS investigation, 17 June 2020
Times
Live
,
available at
https://www.timeslive.co.za/news/south-africa/2020-06-17-watch-live-npa-and-hawks-media-briefing-on-vbs-investigation/.
[4]
Rule 6(5)
(g)
provides:
‘
Where an application
cannot properly be decided on affidavit the court may
dismiss the application or make such order
as it deems fit with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the
aforegoing, it may
direct that oral evidence be heard on specified issues with a view
to resolving any dispute of fact
and to that end may order
any deponent to appear personally or grant leave for such deponent
or any other person to be subpoenaed
to appear and be examined and
cross-examined as a witness or it may refer the matter to trial with
appropriate directions as
to pleadings or definition of issues,
or otherwise.’
[5]
Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163.
[6]
See 14
Lawsa
3 ed at 164 para 136 and the
authorities there cited.
[7]
Heilbron v
Blignaut
1931
WLD 167
at 168-169.
[8]
Hix
Networking Technologies CC v System Publishers (Pty) Ltd and Another
1997 (1) SA 391 (A).
[9]
Hix
Networking Technologies
fn 8 at 399G. The
Buthelezi
case referred to is
Buthelezi
v Poorter and Others
1974 (4) SA 831 (W).
[10]
Herbal Zone (Pty) Ltd v
Infitech Technologies (Pty) Ltd and Others
[2017]
ZASCA 8
;
[2017] 2 All SA 347
(SCA) para 38.
[11]
EFF and
Others v Manuel
[2020] ZASCA 172; [2021] 1 All SA 623 (SCA); 2021 (3) SA 425 (SCA).
[12]
EFF v Manuel
fn
11 para 111, footnotes omitted.
[13]
EFF v Manuel
fn
11 para 105. In fn 83 of the judgment this Court noted the approach
of the high court quoted in paragraph 17 above.
[14]
EFF v Manuel
fn
11 para 96, footnotes omitted.
[15]
Lawsa
fn
6 at 134 para 111.
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amici curiae
)
[2011] ZACC 4
;
2011 (3) SA 274
(CC) para 89.
[16]
Lawsa
ibid.
[17]
Borgin v De Villiers
[1980] 2 All SA 261
(A);
1980
(3) SA 556
(A) at 571F;
National
Media Ltd v Bogoshi
[1998] ZASCA 94
;
[1998] 4 All SA 347
(SCA) at 364;
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5)
SA 401
(CC) para 18.
[18]
Lawsa
fn 6
at
151 para 124;
Modiri
v Minister of Safety and Security
[2011] ZASCA 153
;
2011
(6) SA 370
;
[2012] 1 All SA 154
(SCA) para 20.
[19]
Lawsa
fn
18 para 124.
[20]
Herbal Zone (Pty) Ltd and
Others v Infitech Technologies (Pty) Ltd and Others
fn
10 para 38;
Mohamed v
Jassiem
[1995] ZASCA 115
;
1996 (1) SA
673
(A) at 709H-I;
Le
Roux v Dey
fn 15 para
85.
[21]
Demmers v
Wyllie
[1980] 1 All SA 391
(A),
1980 (1) SA 835
(A) at 842H.
[22]
EFF v Manuel
fn
11 para 35.
[23]
EFF v Manuel
fn
11 para 35.
[24]
EFF v Manuel
fn
11 para 39.
[25]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at
634E-635C.
The
rule was crisply stated by Schutz JA in
Simelane
NO and Others v Seven-Eleven Corporation SA (Pty) Ltd and Another
[2002] ZASCA 141
;
[2001-2002]
CPLR 13
;
[2003] 1 All SA 82
(SCA) para 10, as follows:
‘
[T]he
decision must be based on those facts averred by the applicant which
are admitted by the respondent, together with the facts
averred by
the respondent.’
[26]
It has been reported that Mahuna
Investments received significant funds from VBS (some R6 million)
that the appellant allegedly
used as a slush fund to pay personal
expenses such as designer clothing and school expenses to maintain
an affluent lifestyle.
See Pauli van Wyk ‘VBS Theft, Money
Laundering & Life’s Little Luxuries: Julius Malema’s
time of spending
dangerously’ 8 September 2019
Daily
Maverick Scorpio
,
available at
https://www.dailymaverick.co.za/article/2019-09-08-vbs-theft-money-laundering-lifes-little-luxuries-julius
malemas-time-of-spending-dangerously/
.
[27]
Emphasis added.
[28]
This is an
unknown entity to the Court. Presumably it is a reference to the
private security services hired by the EFF.
[29]
See in this
regard
EFF
v Manuel
fn 11 paras 38 and 39.
[30]
Plascon-Evans
fn
25.
[31]
Serafin v
Malkiewicz and others
[2020]
UKSC 23
para 46. The extract is from the Equal Treatment Bench Book,
issued by the Judicial College which provides training for judges
in
England and Wales.
[32]
See
Lawsa
fn 18.
[33]
Heilbron
fn 7.
[34]
Herbal
Zone
fn 10 para 36.
[35]
Tau v Mashaba and Others
[2020] ZASCA 26
;
2020 (5) SA 135
(SCA) para 26.
[36]
See
Hawker
v Life Offices Association of South Africa and Another
1987
(3) SA 777
(C) at 780I-J;
Elida
Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1)
1988
(2) SA 350
(W) at 353F-355I;
Democratic
Alliance v African National Congress and Another
[2015]
ZACC 1
;
2015 (2) SA 232
(CC) para 52 (minority) and para 159
(majority);
Nativa
(Pty) Limited v Austell
Laboratories (Pty) Limited
[2020]
ZASCA 11
;
2020 (5) SA 452
(SCA) para 33.
[37]
Fn 10 above, para 26.
[38]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635.
[39]
Fn 7 above.
[40]
At 169.
[41]
Fn 8 above at 399B-H.
[42]
Hix Network Technologies
at
401D-402F.
[43]
Herbal Zone
para
38.
[44]
Para 39.
[45]
Cf
VBS
Mutual Bank (In Liquidation) v Ramavhunga and Others
[2018] ZAGPJHC 516 (3 August 2018) para 13. (The reference in the
case title to VBS being in liquidation is an error –
it was
still under curatorship.)
[46]
Some of the
history in this regard is recorded in
Msiza
v Motau NO and Another
[2020]
ZAGPPHC 366; 2020 (6) SA 604 (GP).
[47]
Fn 5 above at 1163.
[48]
Bredell v Pienaar
1924
CPD 203
at 209;
Perlman
v Zoutendyk
1934 CPD
151
at 155. This is the essential meaning of the Roman Law term
iniuria
:
J C van der Walt (ed J Labuschagne)
Principles
of Delict
4 ed paras
2, 8 and 72.
[49]
See, eg,
Van
Deventer v Ivory Sun Trading 77 (Pty) Ltd
[2014]
ZASCA 169
;
[2015] 1 All SA 55
(SCA) paras 27-28;
Liberty
Group Limited and Others v Mall Space Management CC t/a Mall Space
Management
[2019]
ZASCA 142
;
2020 (1) SA 30
(SCA) para 35.
[50]
Fn 11 above.