Economic Freedom Fighters and Others v Manuel

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2021 (3) SA 425 (SCA)

Economic Freedom Fighters and Others v Manuel
2021 (3) SA 425 (SCA)

2021 (3) SA p425

Citation	2021 (3) SA 425 (SCA)
Case No	711/2019; [2020] ZASCA 172
Court	Supreme Court of Appeal
Judge	Navsa JA, Wallis JA, Saldulker JA, Molemela JA and Poyo-Dlwati AJA
Heard	December 17, 2020
Judgment	December 17, 2020
Counsel	C Steinberg SC (with M Mbikiwa) for the respondent.; S Budlender SC for the amicus curiae.

Flynote : Sleutelwoorde

Defamation — Defences — Reasonable publication — Whether available to non-media defendants.

Defamation — Damages — Whether claim may be brought in motion proceedings.

Headnote : Kopnota

In this matter second applicant (Mr Ndlozi), the spokesperson of first applicant (the Economic Freedom Fighters (EFF)), made a statement on its behalf concerning first respondent (Mr Manuel). The statement was published on the widely subscribed Twitter accounts of both the party and its leader, the third respondent (Mr Malema) (see [2] and [5]).

Considering the statements defamatory, Mr Manuel demanded an apology and a retraction, but both were refused. Manuel then instituted motion proceedings for a declarator that the statement was false and defamatory and that its publication was unlawful. As relief he sought its removal from the Twitter accounts; a retraction and apology; an interdict of future publication; damages of R500 000; and costs on the attorney and client scale. In the alternative he sought a declarator that the respondents were jointly and severally liable for damages, and that quantification be referred to oral evidence (see [3]).

The High Court granted relief in the following terms: it declared the statements defamatory and false and that their publication was and continued to be unlawful. It ordered removal of the statements within 24 hours from all respondents' media platforms, including the EFF and Mr Malema's Twitter accounts, and that respondents within 24 hours publish on those platforms an unconditional retraction and apology. It also interdicted the respondents making further similar statements and granted damages of R500 000. Lastly it ordered payment of costs on the attorney – client scale.

The High Court refused leave to appeal against its order, after which the applicants applied for leave directly from the Supreme Court of Appeal (see [4]). In dismissing the application in the main and upholding it in part (see [133]), the SCA pointed out the following:

•

that the granting of leave to appeal depended on the merits of Mr Manuel's case and the applicants' defence (see [26]);

•

that the High Court's finding that the statements were defamatory had been correct (see [35]);

•

that the High Court had correctly rejected the defences of truth and public interest and fair comment (see [37] and [39]);

•

that the High Court had, however, erred in extending the defence of reasonable publication to non-media defendants because this development had been insufficiently motivated, was based in misconstruction of precedent, and would have adverse consequences (see [26], [40], [62] and [65] – [66]);

•

that, regardless of the nature of the defence (whether it rebutted intention or wrongfulness), it should fail because the applicants' failure to check the

2021 (3) SA p426

veracity of the statements supplied by their source was unreasonable, and, along with the applicants' later behaviour, was consistent with animus iniurandi (see [68], [81], [84] and [86]). Therefore, in this respect (the dismissal of the defence), the High Court had been correct, and, in the light of this and the findings as to truth and public interest and fair comment, leave to appeal against would be refused (see [86]);

•

so, too, would leave to appeal be refused in respect of the declarator and interdict: damages would be an unsatisfactory substitute for the latter in the circumstances of the applicants' obduracy and the harm the statement was doing to an organ of state concerned (see [89]).

•

However, in respect of the award of damages on motion, leave should be granted: established procedure in claims for unliquidated damages was that they be brought by action, and any development of that procedure to allow such claim to be brought on motion had been inadequately motivated (see [27], [92], [108] and [111]). The ramifications of any such development required careful consideration (see [113]).

•

As for the alternative relief sought — referral of the quantum of damages to oral evidence — such was appropriate in the circumstance of the limited material in the affidavits going to quantum and the High Court's brief reasoning thereon (see [114], [116] and [119]).

•

Insofar as the issue of retraction and apology was concerned, this was inextricably entwined with the question of damages, and it was only appropriate that this issue too be referred to oral evidence (see [130]).

•

Lastly, the award of punitive costs was indeed justified against the backdrop of the applicants' obduracy when faced with the untruthfulness of the statement (see [82] – [84] and [131]).

The SCA ordered that the application for leave to appeal against the declarators that the statements were defamatory and their publication unlawful, and the order interdicting publication of like statements, be dismissed. It ordered in addition that the application for leave to appeal against the orders to retract the statements, apologise, and to pay damages of R500 000 be granted, and the appeals upheld, and the High Court order substituted to refer determining of the quantum of damages to oral evidence, and in conjunction with that, the issue of whether an order of retraction and apology should be made (see [133]).

Cases cited

Southern Africa

Adbro Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A): referred to

Basner v Trigger 1946 AD 83: dictum at 94 applied

Branko v Moffat and Another [2014] ZAGPJHC 304: referred to

Buthelezi v Poorter and Others 1974 (4) SA 831 (W): referred to

Buthelezi v Poorter and Others 1975 (4) SA 608 (W): referred to

Bytes Technology Group v Michael [2014] ZAGPPHC 926: distinguished

Cadac (Pty) Ltd v Weber-Stephen Products Co and Others 2011 (3) SA 570 (SCA) ([2011] 1 All SA 343; [2010] ZASCA 105): referred to

Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A): referred to

Craig v Voortrekkerpers Bpk 1963 (1) SA 149 (A): referred to

Crawford v Albu 1917 AD 102: referred to

De Flamingh v Pakendorf en 'n Ander; De Flamingh v Lake en 'n Ander 1979 (3) SA 676 (T): referred to

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10): referred to

2021 (3) SA p427

Dorfling v Coetzee 1979 (2) SA 632 (NC): referred to

Fripp v Gibbon & Co 1913 AD 354: applied

Gelb v Hawkins 1960 (3) SA 687 (A): referred to

Gqubule-Mbeki and Another v Economic Freedom Fighters and Another [2020] ZAGPJHC 2: referred to

Grindrod (Pty) Ltd v Delport and Others 1997 (1) SA 342 (W): referred to

Hanekom v Zuma [2019] ZAKZDHC 19: referred to

Heilbron v Blignaut 1931 WLD 167: referred to

Herbal Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and Others [2017] 2 All SA 347 (SCA): referred to

Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) ([1996] 4 All SA 675): distinguished

Jordaan v Van Biljon 1962 (1) SA 286 (A): referred to

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; [2005] 8 BLLR 749; [2005] ZACC 8): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): referred to

Kleynhans v Van der Westhuizen NO 1970 (2) SA 742 (A): referred to

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): dictum in para [89] applied

Maisel v Van Naeren 1960 (4) SA 836 (C): referred to

Malema v Rawula [2019] ZAECPEHC 83: referred to

Manuel v Economic Freedom Fighters and Others 2019 (5) SA 210 (GJ) ([2019] 3 All SA 584): reversed on appeal

Manyi v Dhlamini [2018] ZAGPPHC 563: referred to

Marais v Richard en 'n Ander 1981 (1) SA 1157 (A): referred to

MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (2017 (12) BCLR 1528; [2017] ZACC 37): dictum in para [31] applied

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6): applied

Media 24 Ltd t/a Daily Sun and Another v Du Plessis [2017] ZASCA 33: referred to

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) (2007 (2) SACR 493; 2007 (9) BCLR 958; [2007] 3 All SA 318; [2007] ZASCA 56): referred to

Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34): referred to

Minister van Veiligheid en Sekuriteit en 'n Ander v Kyriacou 2000 (4) SA 337 (O): referred to

Mokone v Tassos Properties CC and Another 2017 (5) SA 456 (CC) (2017 (10) BCLR 1261; [2017] ZACC 25): referred to

Mthembi-Mahanyele v Mail & Guardian Ltd and Another 2004 (6) SA 329 (SCA) (2004 (11) BCLR 1182; [2004] 3 All SA 511; [2004] ZASCA 67): referred to

Mthimunye v RCP Media and Another 2012 (1) SA 199 (T): referred to

Muller v SA Associated Newspapers Ltd and Others 1972 (2) SA 589 (C): referred to

National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2009] 2 All SA 243; [2009] ZASCA 1): referred to

2021 (3) SA p428

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) (1999 (1) BCLR 1; [1998] 4 All SA 347; [1998] ZASCA 94): considered

New Zealand Insurance Co Ltd v Du Toit 1965 (4) SA 136 (T): considered

Nydoo v Vengtas 1965 (1) SA 1 (A): referred to

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