Manuel v Economic Freedom Fighters and Others

• Jurisdiction: South Africa
• Judge: Matojane J
• Judgment Date: 30 May 2019
• Citation: 2019 (5) SA 210 (GJ)
• Docket Number: 13349/2019
• Hearing Date: 30 May 2019
• Counsel: C Steinberg (with M Mbikiwa) for the applicant. V Ngalwana SC (with K Premhid and F Karachi) for the respondents.
• Court: Gauteng Local Division, Johannesburg

Matojane J: A

Introduction

[1] This is a semi-urgent application for final interdictory relief against the respondents relating to the publication of an alleged defamatory statement. The publication occurred in the form of a 'tweet' on the B respondents' microblogging service known as Twitter on 27 March 2019.

[2] Two conflicting values are at stake in this matter — on the one hand is the freedom of expression and, on the other, the right to dignity, [1] which includes reputation. While freedom of expression is a fundamental C freedom protected by s 16 [2] of the Constitution, human dignity is stated in s 1 of the Constitution to be a foundational value of our democratic state. [3] The challenge for the courts has been to strike an appropriate balance between these rights in articulating the common law of defamation. In this case, the court is asked to consider, once again, whether this balance requires further adjustment. D

[3] The applicant, Mr Trevor Andrew Manuel, seeks a declaratory order to the effect that the impugned statement is defamatory, false and unlawful. He states that this order is necessary to vindicate his good name and reputation and to finally settle the dispute between himself E and the respondents about the lawfulness of the publication of the impugned statement.

[4] Second, the applicant seeks an order directing the respondents to remove the impugned statement from all their media platforms. This relief is contingent on the court declaring that the ongoing F publication of the impugned statement is unlawful.

[5] Third, the applicant seeks an order interdicting the Economic Freedom Fighters (the EFF), Dr Ndlozi and Mr Malema from publishing the same or similar defamatory allegations about him in the future. The applicant says that if there is no accompanying order interdicting G any subsequent publication after the respondents have been ordered to

Matojane J

remove A the impugned statement from their media platforms, there is every likelihood that they will make substantially the same false allegations against him.

[6] Fourth, the applicant asks that the respondents be ordered to publish an unconditional public retraction and apology for the allegations made B about him in the impugned statement, in order to set the record straight.

[7] Lastly, the applicant claims general damages as a solatium for the alleged injury to his reputation.

[8] The respondents deny that the impugned statement is defamatory, C but if it is found to be defamatory, the respondents submit that they are protected from liability as the impugned statement is either substantially true; constitutes reasonable publication; is the result of fair comment; or is in the public interest.

The parties to the application D

[9] The applicant, Mr Manuel, was appointed as South Africa's Minister of Finance in 1996. Before that, he served as the Minister of Trade and Industry from 1994 until 1996. Between 2009 and 2014 he served as a Minister in the Presidency for the National Planning Commission. He has held positions in numerous international bodies, including the E World Bank, the International Monetary Fund and the African Development Bank. He retired from politics in 2014 and no longer served on the leadership structures of the African National Congress. Currently, he is the chairperson of Old Mutual Ltd, a senior adviser to Rothschild South Africa (in addition to being its deputy chairperson) and he also F serves as the trustee on the Alan Gray Orbis Endowment Trust.

[10] The first respondent, the EFF, is a political party widely represented in the national, provincial and local legislatures throughout South Africa. Dr Ndlozi, the second respondent, is the national spokesperson of the EFF, and Mr Malema, the third respondent, is the president of the EFF. G Both Dr Ndlozi and Mr Malema are members of Parliament and serve in the National Assembly as elected representatives of the EFF.

Preliminary objections

[11] The respondents submit that the relief sought is overbroad because H Mr Manuel does not identify with any particularity which portions of the statement violate his rights. The first five paragraphs of the impugned statement (quoted below) accuse Mr Manuel of conducting a nepotistic, corrupt and clandestine process in the appointment of Mr Kieswetter as the commissioner of the South African Revenue Service (Sars). The courts have previously found that allegations of corruption and I nepotism are defamatory per se, and it is not necessary for Mr Manuel to point out that portion of the statement.

[12] In prayer 1.3 of his notice of motion, Mr Manuel seeks to have those allegations made about him in the statement declared defamatory and false. The respondents argue that the entire statement does not J relate to Mr Manuel, and he therefore cannot request a retraction of the

Matojane J

full statement. In this regard Mr Manuel states that he will not object to A an order that the respondents remove only those specific aspects of the impugned statement that refer to him if the court decides that it will be appropriate to do so. There is no merit to the respondents' submission, as the entire statement is coloured by the allegations made against Mr Manuel.

[13] The respondents also complained that Mr Manuel's prayer to have B the statement removed is overbroad in the sense that the statement refers not only to him, but also to Mr Kieswetter and Treasury, and that Mr Manuel has no authority to represent them or bring proceedings on their behalf.

[14] Mr Manuel explains that he brings this application in his name to C vindicate his reputation and dignity. He does not seek relief on behalf of Mr Kieswetter and Treasury. In terms of s 38 [4] of the Bill of Rights, anyone acting in the public interest can approach a court to enforce rights. See Ruta v Minister of Home Affairs. [5] It is in the public interest that D any allegations that the appointment process of the new commissioner of SARS was corrupt should be exposed to assure the public that the commissioner was appointed on merit and not because he was related to the applicant or because he was his close business associate and companion.

[15] There is no doubt that the allegations in the impugned statement, E that the commissioner of Sars is a dodgy character who was appointed unlawfully, harm the integrity of Sars and the National Treasury, and contribute to the already compromised tax morality among the South African public being undermined.

Urgency F

[16] The respondents dispute the urgency of the application. They contend that Mr Manuel's fears of harm are based on mere anxiety that his reputation may be harmed and that he has not provided any evidence of such harm. The respondents argue that this case is an abuse of legal process as it was brought to be heard on the day before the national G elections by Mr Manuel, who is their political rival, in order to cause maximum damage to the respondents.

Matojane J

[17] A Mr Manuel is accused of grave allegations of corruption and nepotism. Allegations of dishonesty and immoral or dishonourable conduct are defamatory. [6] There is no reason why Mr Manuel ought to submit himself to further indignities and assaults on his dignity before this matter can be determined. Dignity is not only a value fundamental B to the Constitution, but it is also a justiciable and enforceable right that must be respected and protected. [7]

[18] There is nothing in the papers to suggest that Mr Manuel is the respondents' political rival. The appointment process, as will appear below, was designed to be apolitical, and members of the selection panel C were chosen because they were people of impeccable reputation and probity, and not because of their political affiliation.

[19] In Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission [8] Corbett JA held:

'Naturally, D it is for the Court to decide whether the matter is really one of urgency and whether the circumstances warrant a departure from the normal procedures. To hold otherwise would, in my view, make the Court the captive of the Rules. I prefer the view that the Rules exist for the Court, rather than the Court for the Rules.'

[20] E The respondents have been afforded 10 days to prepare their answering affidavits, all the papers have been filed, and the matter is ripe for hearing. The respondents have not complained that the time frames in the notice of motion prejudiced them. The manner in which dignity is engaged in this matter renders the matter urgent. Having regard to the F relevant factors and, in particular, the fact that it is in the public interest to urgently determine whether National Treasury conducted a corrupt and nepotistic appointment process of the new commissioner of Sars, I am satisfied that Mr Manuel was justified in bringing this matter on a semi-urgent basis.

Requirements for an interdict G

[21] Mr Manuel has met the requirements for an interdict, contrary to the argument of the respondents. He has a clear right to protect his dignity and reputation, which he alleges the respondents have infringed. H Secondly, he has suffered and continues to suffer harm to his reputation, both in his personal and professional capacity, through the widespread

Matojane J

dissemination of the impugned statement. He has no alternative remedy A to the persisting injury, as the respondents have refused to apologise or to take down the defamatory statement from their social-media platforms. There is also ongoing harm to the wellbeing of the country as the public labours under the misapprehension that Sars is led by a person who was appointed for nepotistic and corrupt reasons. B

[22] The threat to Mr Manuel's right to dignity and the compelling public interest in disabusing the public of the idea that the Treasury...