Economic Freedom Fighters and Others v Manuel

In March 2019, the Economic Freedom Fighters (EFF), the third largest political party in Parliament, issued a media statement on Twitter and other platforms alleging that Trevor Manuel, chair of a panel selecting the new SARS Commissioner, had conducted a "patently nepotistic and corrupt" process. The statement alleged that one candidate, Edward Kieswetter, was Manuel's "relative" and "close business associate and companion." The statement further alleged Manuel had conducted secret interviews and had unlawfully appointed Kieswetter as Deputy SARS Commissioner when Manuel was Minister of Finance. The statement was published by Dr Mbuyiseni Ndlozi (EFF national spokesperson) and Julius Malema (EFF Commander in Chief) on their Twitter accounts with over 725,000 and 2 million followers respectively. The EFF based its statement on a WhatsApp message from a confidential source. Manuel denied the allegations, stating they were false, and demanded retraction. When the EFF refused, Manuel approached the Gauteng High Court seeking declarations, an interdict, damages of R500,000, a retraction and apology, and costs on an attorney-client scale. The high court (Matojane J) granted all relief sought. The EFF applied for leave to appeal, claiming the publication was reasonable, akin to whistle-blowing, and that defences available to the media should apply to them.

• Whether the statement published by the EFF was defamatory and unlawful
• Whether the defence of truth and public interest was established
• Whether the defence of fair comment was established
• Whether the defence of reasonable publication was available to non-media defendants
• Whether the defence of absence of animus iniuriandi was established
• Whether the procedure of claiming unliquidated damages by way of application was appropriate
• Whether an award of damages could be made without hearing oral evidence
• Whether declaratory and interdictory relief was appropriate
• Whether an order for retraction and apology was competent

Application for leave to appeal dismissed in relation to paragraphs 1-3 and 5 of the high court order (declarations, interdict, removal order) with costs including two counsel. Leave to appeal granted in relation to paragraphs 4 and 6 (apology and damages). Appeal upheld in relation to those paragraphs with costs including two counsel. Paragraphs 4 and 6 set aside and replaced with an order referring the determination of quantum of damages to oral evidence and directing the high court to determine in conjunction with damages whether an order for retraction and apology should be made.

The binding legal principles are: (1) Claims for unliquidated damages in defamation must be pursued by way of action with oral evidence, not by application, as motion proceedings are not suited to resolve the factual disputes inherent in determining damages for injury to dignity and reputation; (2) A defendant relying on reasonable publication or absence of animus iniuriandi must take reasonable steps to verify seriously defamatory allegations before publication, particularly when the allegations are based on a single unverified source; (3) Persistence in defamatory allegations after being informed of their falsity is inconsistent with absence of animus iniuriandi; (4) Even where a publication concerns matters of public interest and is made by a political party, this does not justify publication of seriously defamatory allegations without verification; (5) The defence of truth and public interest requires proof that the defamatory statements are substantially true; (6) The defence of fair comment requires that the facts on which the comment is based must be true and clearly stated; (7) Final interdictory relief against further publication of defamatory material may be granted where defamation is established and defences are properly rejected on the papers; (8) Orders for retraction, apology and damages are interconnected remedies that should be determined together after hearing evidence.

The court made several non-binding observations: (1) The question whether the Bogoshi defence of reasonable publication should be extended to non-media defendants was left open for determination in a future case with proper argument, as this case was not an appropriate vehicle for developing the common law; (2) The court noted concerns about the spread of misinformation and disinformation on social media platforms but cautioned that the solution should not compromise constitutional rights, fundamental legal principles, and due process; (3) The court suggested that a simplistic approach of allowing quick damages claims on motion might incentivize abuse and stifle freedom of expression; (4) The court noted the differences between publication by private individuals and the media, and questioned whether the same standards of reasonableness should apply; (5) The court observed that the rise of social media and "citizen journalists" has created new challenges for defamation law but that each jurisdiction must address these within its own legal framework; (6) The court commented on the limited utility of comparing damages awards across different cases given that each turns on its own facts; (7) The court noted that while media defendants are familiar with the Bogoshi requirements, extending this to all social media users might either restrict defences or impose media-type constraints on ordinary citizens.

This case is significant for several reasons: (1) It clarifies that claims for unliquidated damages for defamation must be pursued by action with oral evidence, not by application, maintaining the long-established procedural requirements despite the rise of social media; (2) It addresses but declines to definitively resolve whether the Bogoshi defence of reasonable publication should be extended from media to non-media defendants, including political parties; (3) It recognizes the dangers of social media platforms in spreading defamatory material while emphasizing the need to balance freedom of expression with protection of dignity and reputation; (4) It demonstrates that political parties and their leaders are not entitled to publish defamatory statements without verification simply because they claim to be acting in the public interest or as whistle-blowers; (5) It reaffirms that substantial damages awards in defamation cases require proper evidentiary foundation and that courts must guard against awards that may unnecessarily stifle freedom of expression; (6) It provides guidance on when interdicts against future publication are appropriate in defamation cases; (7) It discusses the role of apologies in defamation cases and their relationship to damages awards. The judgment is important in the context of increasing use of social media platforms for political communication and the spread of misinformation and disinformation.