Yet another court loss for EFF in defamation case against Trevor Manuel

But damages awarded must be heard in court

17 December 2020 - 13:39
The SCA has dismissed the EFF's appeal against a high court judgment which ruled that comments the party's leader Julius Malema made about former finance minister Trevor Manuel were derogatory.
The SCA has dismissed the EFF's appeal against a high court judgment which ruled that comments the party's leader Julius Malema made about former finance minister Trevor Manuel were derogatory.
Image: Sizwe Ndingane

The Supreme Court of Appeal (SCA) has dismissed the EFF's appeal against a high court ruling that comments party leader Julius Malema made about former finance minister Trevor Manuel were derogatory.

The court, however, referred the aspect of the R500,000 damages the court awarded to Manuel back to the trial court for oral evidence to be heard.

The matter dates back to March 2019, when Manuel was chairperson of a committee appointed to advise President Cyril Ramaphosa on the appointment of a new commissioner for revenue service Sars.

After the committee's recommendation of Edward Kieswetter for the post was published, the EFF issued a statement condemning the recommendation. It alleged that Kieswetter's appointment was corrupt, his recommendation was nepotistic and suggested his selection was made in secret as a result of the pair's relationship. The party said it would “do everything in our power to stop and reverse the appointment of Kieswetter as Sars commissioner”. 

The SCA said the basis of the allegations was a WhatsApp message addressed to EFF deputy leader Floyd Shivambu. A demand by Manuel for a retraction was rebuffed in strong terms, leading to him bringing an application against the then EFF spokesperson Mbuyiseni Ndlozi, who was responsible for the statement, and Malema, who posted it on his Twitter account.

The high court held that the statement was defamatory. It ordered that the statements be removed from Twitter accounts and that a retraction and apology be issued. It also awarded Manuel damages of R500,000.

In its latest ruling, the SCA held that the statement was clearly defamatory and that it was neither true nor in the public interest, and was not fair comment.

“The reason was simply that the allegation of a relationship between Mr Manuel and Mr Kieswetter was denied by Manuel and the EFF made no attempt to prove such a relationship existed,” the ruling said.

The EFF made no attempt to establish whether the information given to it by its informant was true.
SCA ruling

“Instead it advanced a defence of reasonable publication or absence of intention to injure Mr Manuel. In doing so, it relied upon the WhatsApp message.

“The defence failed because the EFF had made no attempt to establish whether the information given to it by its informant was true. It was not reasonable in the circumstances for it to have relied on it to make defamatory statements and this unreasonable conduct showed that it was intended to defame Mr Manuel.”

On the amount of damages which the EFF previously complained was too high, the SCA said claiming damages in application proceedings without hearing oral evidence was impermissible, saying such claims may only be pursued through a trial action.

“The basis of Mr Manuel's claim to have suffered damages to his reputation was disputed and could only be resolved by hearing evidence. Additionally, the amount of award far exceeds the awards in comparable cases.”  

The SCA granted leave to appeal in regard to the award of damages. It also held that an order for the publication of a retraction and apology could be considered only in light of any damages award.

In a statement, Manuel said he welcomed the ruling and was waiting for the EFF to remove the offending statements by Friday morning.

“I welcome today's decision of the Supreme Court of Appeal ... The SCA rejected all of the defences put up by the EFF to justify their continued publication of a statement which was false and which they knew to be false,” he said.

Manuel said that he would discuss the issue of damages and an apology with his lawyers after the judgment.

“The SCA found that the EFF's statements about me were false, unlawful and defamatory, and ordered that they must remove them and can't repeat them. I accordingly await the EFF's removal of the statement from their media platforms by tomorrow morning,” he said.

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