Economic Freedom Fighters and Others v Manuel

Following the announcement that a panel chaired by Trevor Manuel had recommended Edward Kieswetter for appointment as Commissioner of the South African Revenue Service (SARS), the Economic Freedom Fighters (EFF) issued a public statement and tweets alleging that the selection process was secret, corrupt and nepotistic, and that Kieswetter was a relative and close associate of Manuel. The statement further implied that Manuel had previously unlawfully appointed Kieswetter and was connected to corrupt and ‘white capitalist’ interests. Manuel denied the allegations, asserted that Kieswetter was neither a relative nor business associate, and explained that the selection process followed the Nugent Commission recommendations, with the President retaining the sole power of appointment. After the EFF refused to retract or apologise, Manuel brought an application in the Gauteng Division of the High Court seeking declaratory, interdictory relief, an apology, and damages for defamation.

Leave to appeal was partly refused and partly granted. The appeal succeeded only in respect of the damages award and the order compelling an apology. Those portions were set aside and replaced with an order referring the determination of damages and the appropriateness of a retraction and apology to oral evidence. The remaining declaratory and interdictory relief was left intact.

The case is significant for clarifying that defamatory statements made by political parties and individuals on social media are subject to ordinary defamation principles, and that political speech does not enjoy immunity where allegations of fact are false and published recklessly. It also provides important guidance that damages for defamation should generally not be finally determined in motion proceedings, and addresses the developing question of extending the defence of reasonable publication beyond traditional media defendants.