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The leader of the EFF, Julius Malema. (Photo: Gallo Images / Thulani Mbele) / Former Finance Minister Trevor Manuel. (Photo: EPA / JEON HEON-KYUN)
Last week, on Thursday, the Supreme Court of Appeals (SCA) ruled in such defamation cases in the Economic Freedom Fighters (EFF) request for permission to appeal against Trevor Manuel, the former cabinet minister. Manuel’s dignity received protection approved by the court; his good name was restored.
“The good name, in man and woman, dear my lord, is the immediate jewel of their souls,” writes Shakespeare in OTHELLO. Defamation law is the area of law that exists to protect one’s “good name”. Inherent in that very notion is that defamation law protects only good reputation: the remedies it provides are not available if the plaintiff does not deserve a good reputation. There is also no law to suppress the right to freedom of expression.
So what happens is that the law does a delicate dance to balance the rights of freedom of expression of the editor with the rights of human dignity of the recipient of the speech.
He does this by crafting defenses like the truth: as long as what he says is true and is in the public interest, he will not be liable under defamation law. In a similar vein, at least in cases involving media editors, acting reasonably, taking steps to verify the accuracy of the allegation, is a path to success in a libel lawsuit.
Now, libel law is often abused by those who do not deserve its protection, often to stifle criticism and speak the truth.
As evidence of this phenomenon, we need not look beyond former President Jacob Zuma who, between 2006 and 2010, instituted defamation complaints in 15 cases totaling more than 50 million rand against eight newspapers, one radio station, two cartoonists, columnist, opinion piece. writers and journalists. It took the brave cartoonist Zapiro to denounce Zuma’s deception, forcing the former president to drop his case and bidding costs, causing the dominoes to drop as the other lawsuits were also quickly withdrawn.
Another more recent example, in the High Court of England, involved actor Johnny Depp, who sued a newspaper that ran a story alleging that he was a ‘wife beater’. Depp scored a spectacular own goal: the court found that he had indeed physically abused his ex-wife, Amber Heard, 12 times during their relationship.
These are not the types of plaintiffs that defamation law should protect, nor are they the many powerful public figures and corporations who turn to this area of the law to launch ‘SLAPPS’ – strategic lawsuits against public participation – litigation designed to intimidate and intimidate the speaker into silence and dissuade others from doing the same.
But libel law gains strength and strives to protect dignity in cases involving a genuinely aggrieved plaintiff, a person who deserves a good reputation but is the victim of calculated, reckless, or unreasonable falsehood. And conversely, the speaker who has damaged someone’s reputation by posting such a hoax does not deserve the protection that freedom of expression provides otherwise.
Last week, on Thursday, the Supreme Court of Appeals (SCA) ruled in such defamation cases in the Economic Freedom Fighters (EFF) request for permission to appeal against Trevor Manuel, the former cabinet minister.
… Manuel managed to prove that he had been illegally defamed by the EFF. Therefore, the SCA had no difficulty in confirming the High Court’s statement that the EFF had published false, defamatory and illegal statements about him. This statement is worth its weight in gold, as is the SCA’s confirmation that the EFF must remove the statement and is prohibited from repeating it in the future.
In March 2019, the EFF published a defamatory statement about Manuel on his Twitter account, to his 750,000 followers. Julius Malema, leader of the EFF, retweeted the statement to his two million followers. The statement followed the recommendation to the chairman of a committee chaired by Manuel that Edward Kieswetter should be appointed the new commissioner of the South African Revenue Service. The EFF objected to the “blatantly nepotistic and corrupt process” of selecting Kieswetter, saying that “it has now emerged that the reason is … Kieswetter … is not only related to Trevor Manuel, but a close business partner and partner.”
After a demand letter was effectively ignored by the EFF, Manuel turned to defamation law for protection and submitted a semi-urgent request. This is a case presented in an affidavit unlike the other legal option: issue a summons and, in due course, have the case resolved by oral evidence. Judge Elias Matojane of the Johannesburg High Court ruled in Manuel’s favor. The EFF asked the SCA to appeal.
On appeal, the SCA confirmed that the EFF had unlawfully defamed Manuel and upheld the Superior Court order requiring the EFF to withdraw the statement within 24 hours (which the EFF has now done). He also kept the injunction preventing the EFF from repeating the statement. And the award of punitive costs against the EFF for the costs of the lower court was also reinstated.
Regarding the compensation for damages of R500,000 that had been awarded by the Superior Court, the SCA considered that compensation for defamation can only be obtained through oral evidence and not in an affidavit application procedure; it was also “extraordinarily high”. And because, the SCA said, the apology orders are tied to damages, the order that forces the EFF to apologize to Manuel suffered a similar fate. Therefore, these two aspects of the case were referred to an oral hearing, a small imperfection in a total victory for Manuel.
The SCA’s reasoning on all of these issues is worth unpacking, especially since this is probably the SCA’s most important defamation decision since the seminal Bogoshi case more than two decades ago.
The question of whether the statement was defamatory of Manuel was clear: it clearly accused him of being a nepotist and corrupt. Responsibility then passed to the EFF to establish a defense. It was based on three, all of which were rejected by the SCA.
The EFF was unable to return home to its first defense of the truth and public interest. He had made “no attempt to refute Mr. Manuel’s statements that he was not related to Mr. Kieswetter and that they were not business partners or co-workers.” This also meant that the second defense, of fair comment, was not available to the EFF because even if the statements were comments they had to be based on true facts, which they were not.
That left the defense of a reasonable publication. The Bogoshi case had developed this defense for the media defendants. The effect of the defense is that if the publisher reasonably believes in the truth of the statement, he will not be liable for defamation. The EFF urged the SCA to develop this defense so that it would also protect non-media publishers. The SCA concluded that this was not the appropriate case for developing customary law, but that this did not influence the facts. Whatever standard was adopted, the EFF did not meet it. The only thing the EFF was able to show was a WhatsApp message sent to its vice president claiming that Kieswetter and Manuel were family, close friends and business partners. The SCA said the EFF “relied on the unproven word of their source without taking any action to verify the accuracy of the statements they made.” An obvious step that the EFF had not taken, one very familiar to the media, was to approach Manuel and Kieswetter for comment but, the SCA said, “doing an investigation and being told the correct facts ran the risk of turning possible pump in a jet of water. ”. The lack of verification by the EFF showed a “willingness to hurt regardless of the veracity of the accusations.” All of this was compounded by the conduct of the EFF after Manuel complained. On Twitter Malema said “you can go to hell” and this attitude of defiance was imposed throughout the litigation.
All of this meant that Manuel managed to prove that he had been illegally defamed by the EFF. Therefore, the SCA had no difficulty in confirming the High Court’s statement that the EFF had published false, defamatory and illegal statements about him. This statement is worth its weight in gold, as is the SCA’s confirmation that the EFF must remove the statement and is prohibited from repeating it in the future. The dignity of Manuel thus received protection sanctioned by the courts; his good name was restored.
As for the SCA’s decision that the amount of compensation for damages and apologies should be referred to oral evidence, the SCA is respectfully wrong in this regard. It is illogical to rule that an apology should only be ordered in conjunction with an award for damages – this forces the plaintiff to seek compensation even if all they want is an apology. And to say that a deserving plaintiff must proceed with a judgment on the question of damages, even in a case where no material dispute actually arises, is cold comfort. It means that a deserving plaintiff must wait for his day in trial court, often years later, and incur significant recourse to obtain a small amount in damages, to hold the disinformation publisher accountable for something the public has already done. forgotten. . This problem, of belated claim through compensation for damages in an oral hearing, is exacerbated in the age of social media, where the viral spread of lies requires a swift and decisive response.
Despite these deficiencies, the sentence clearly vindicates Manuel. And send a strong message to providers of disinformation, on social media and otherwise. You can run for a while but you can’t hide. DM
By Dr. Dario Milo, Partner at Webber Wentzel Attorneys. Milo acted on behalf of Trevor Manuel in the case. He is an adjunct professor of law at the University of the Witwatersrand.
