Malema v Rawula

In considering publishing defamatory statements the SCA disallowed the appeal from the high court and confirmed that an interdict must always be directed at future conduct and if there is no risk of future re-publication an interdict will not be granted because there is nothing left to restrain and no risk of future injury. The high court rightly concluded that the appellant failed to make out a case for this relief.

But in a judgment that dissented in part from the majority judgment, Rogers AJA stated that ‘while the respondent put up a ‘colourable defence, based on evidence’ to justify saying that the appellant conducted himself in an unlawful and undemocratic way, he did not in my opinion do so in relation to the allegations that the appellant was corrupt, stole money and was of base moral character’.

Essence

Publishing defamatory statements considered by SCA and Rogers AJA dissented in part relating to ‘corrupt, stole money and was of base moral character’.

Decision

(SCA139/2020) [2021] ZASCA 88 (23 June 2021)

Order:

Disallowed the appeal from the judgment and order of  Mullins J on 12 November 2019 in the high court but Rogers AJA dissented in part.

Judges

Schippers JA (Petse AP, Dambuza JA and Ledwaba AJA concurring and Rogers AJA dissented in part):

Heard: 25 February 2021

Delivered: 23 June 2021

Reasons

“[98] In the circumstances, while the respondent put up a ‘colourable defence, based on evidence’ to justify saying that the appellant conducted himself in an unlawful and undemocratic way, he did not in my opinion do so in relation to the allegations that the appellant was corrupt, stole money and was of base moral character. It follows that I would have upheld the appeal in part. Since this is a minority judgment, there is little point in considering how his partial success would have affected costs in this Court and in the high court.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

Rogers AJA:

[67] I have read the judgment of my colleague Schippers JA (the first judgment), which sets out the relevant factual background. I shall adopt the abbreviations used in the first judgment.

I agree with what is said in the first judgment (paras 22-30) about bringing defamation claims on motion.

I also agree with the first judgment’s conclusion (paras 49-56) that the appellant failed on the papers to show that the respondent acted unlawfully by publishing statements that the appellant’s conduct, as leader of the EFF, was undemocratic and unlawful (in the sense of behaviour inconsistent with the EFF’s constitution).

Contrary to the first judgment, however, I consider that the respondent acted unlawfully by publishing statements conveying that the appellant was corrupt, stole money and was of base moral character.

[68] At the hearing of the appeal, counsel for the appellant said that if the appeal succeeded he pressed only for the relief claimed in paras 1 and 2 of the notice of motion. In those paragraphs the appellant prayed for orders declaring that the statements made by the respondent in the Facebook post published on 5 April 2019 are defamatory and unlawful. Para 3 sought the removal of the offending statements from the respondent’s social media accounts, but it is common cause that this has occurred.

The appellant does not persist with his claims in para 4 for a retraction and apology; in para 5 for an interdict against further publication; or in para 6 for damages.

[69] The relief in paras 1 and 2 is directed at statements contained in the Facebook post. Although the appellant made allegations about later statements by the respondent (these include those quoted in para 12 of the first judgment), these were not the subject of the relief claimed, though they were relevant, at the time the proceedings were launched, to the question of an apprehension of continuing unlawful conduct.

[70] In para 66 of the founding affidavit the appellant alleged that the defamatory statements were understood to mean and imply

  • (a) that he is corrupt;
  • (b) that he is stealing money;
  • (c) that he conducts himself in an unlawful and undemocratic manner; and
  • (d) that he is of base moral character.

Meaning (d) is a conclusion from meanings (a) and (b).

Since the appellant only sought relief in connection with statements contained in the Facebook post, I read para 66 to be his case as to the defamatory meaning of statements contained in the Facebook post.

In this respect, I differ from the first judgment, which (in para 12) treats para 66 of the founding affidavit as referring to statements made by the respondent in a subsequent media interview, though perhaps not much turns on the distinction.

[71] The respondent did not deny that the Facebook post had the meanings alleged in para 66. Although the appellant should, in his founding affidavit, have identified the precise passages in the Facebook post which conveyed these meanings, no point was taken about inadequate pleading, either by the respondent or by the high court or in this Court. The Facebook post must be read as a whole. So read, the passages which would have been understood by the ordinary reader as meaning that the appellant is corrupt and steals money are readily identifiable:

(a) The post identified ‘the pair’ as the appellant and Mr Floyd Shivambu.
(b) The post’s heading was: ‘EFF remains a financial fishing net for the pair . . .’.
(c) In the post, the respondent, after stating that the ANC leadership was guilty of corruption, said that no one should have ‘a license to climb on the band wagon in the name of left working class politics to commit corruption and hide behind the slogans of Economic Freedom for dejected African masses of our people’.
(d) After identifying various sources of EFF funding, the respondent alleged that ‘[a]ll these moneys are centralized in the EFF under the control, abuse and dictatorship of Julius Malema and Floyd Shivambu’.
(e) Among the abuses alleged by the respondent was the following: ‘The parliament money of the EFF cannot be cashed in terms of treasury rules, but the pair would use Training Providers who would inflate costs 250% so that they can run away with 150% of the inflated cost, in the absence of financial reports from the pair, we would be forced to conclude as such’. Such service providers were said to include ‘alcohol party retailers, lawyers [and] security’.
(f) The respondent referred to a letter written by Dr Mbuyiseni Ndlozi to party officials ‘complaining about the lifestyle of Julius Malema and how he abuse the EFF funds’.
(g) With reference to the ‘VBS saga’, the respondent claimed that the appellant had, at the most recent meeting of the party’s CCT, ‘admitted to EFF taking VBS money to finance the revolution’. The respondent stated that the party had ‘failed to pass the test of morality we have set for the society’: ‘If we fail to pass the test of corruption, how are you going to be trusted to nationalize mines and put under your regime state custodianship because instead of committing to equitable redistribution you will squander the funds’. He followed this with another rhetorical question: ‘How are you going to build state capacity when you are engaged into activities that weaken the state through engagement into corruption? How will people trust you with freeing this country from corruption?’.
(h) The respondent stated that he had refused to take collective responsibility on VBS. He remained poor, despite having been in parliament for four years: ‘The pair has milked every cent I worked for in parliament . . .’.
(i) The respondent declared that among the reasons for which he left the ANC was ‘the dispensation of patronage and corruption’ and that it was ‘hypocritical to stand for it in the EFF’.
(j) He concluded his post thus (capitalisation is the original):

‘You commit to an open and corrupt free society and instead you are found at the centre of corruption. In your analysis kindly JUXTAPOSE THE SUBJECTIVE REALITY OF EMOTIONALISM AND THE OBJECTIVE REALITY OF A PARTY ENGAGED IN CASH HEIST OF THE STATE MONEY.
Bring it on, insult me.
Bloody crooks.’

[72] In defamation proceedings, the delictual element of fault is styled animus iniuriandi. Proof of animus iniuriandi is a necessary element of a claim for damages. Where, however, an injured party seeks an interdict, he does not need to prove fault, and this applies also to interdicts alleging defamation and injurious falsehood. It is thus irrelevant whether or not the respondent honestly believed that he was entitled to publish the defamatory material. The same is true of the declaratory relief aimed at establishing that the statements in question were defamatory and that their publication was unlawful.

[73] We are also not dealing, in this case, with an anticipatory interdict in respect of defamatory material which has not yet been published (cf Herbal Zone v Infitech Technologies). The Facebook post was published, and the question is whether it was lawfully published.

[74] Since the Facebook post was defamatory of the appellant, the onus rested on the respondent to neutralise the presumption of unlawfulness by establishing a defence going to lawfulness. The only one which need detain us is that the publication was true and in the public interest.

Although the onus rested on the respondent to raise some such defence, this did not alter the operation of the Plascon-Evans rule. If there was a material dispute of fact as to whether or not the published statements were true and in the public interest, the dispute of fact had to be resolved in the respondent’s favour, meaning that the appellant would not have been entitled to the declaratory relief he sought.

[75] In regard to interdicts against the publication of defamatory material, we were referred to the judgment of Greenberg J in Heilbron v Blignaut. The learned judge said that there were no features peculiar to defamation. The law to be applied ‘is the law which would apply to any apprehended injury’.

As this Court said in Hix Networking Technologies, Heilbron did not signal any departure from established rules.

Hix Networking Technologies was a case about an interim interdict. Particularly in the constitutional era, the elements of balance of convenience and discretion are where a court will factor in the right to freedom of speech. Where one is dealing with a final interdict or declaratory relief, however, the focus is on whether the applicant has established his right and its unlawful invasion.

Since we were not asked to develop the common law, defamation does not in this respect stand on a different footing from other allegedly unlawful conduct, though naturally the Constitution may affect the assessment of elements of conventional defences, such as, for example, whether publication of particular allegations was in the public interest.

[76] This Court’s judgment in Herbal Zone cannot be read as altering, in relation to defamation, the ordinary law of interdicts. This Court emphasised, as had already been made clear in Hix Networking Technologies, that Heilbron was not authority for the proposition that in an application for an order to interdict the publication of defamatory material the respondent’s mere ipse dixit suffices.

Wallis JA explained:

‘What is required is that a sustainable foundation be laid by way of evidence that a defence such as truth and public interest or fair comment is available to be pursued by the respondent. It is not sufficient simply to state that at a trial the respondent will prove that the statements were true and made in the public interest, or some other defence to a claim for defamation, without providing a factual basis therefor.’

[77] In Herbal Zone, the appellant had, by admissible evidence, made out the case that its allegation of counterfeiting against the first respondent was true and in the public interest.

Wallis JA said that it was unnecessary to determine whether the appellant’s defence would succeed at trial; the appellant had raised ‘a colourable defence’ and laid a ‘factual basis … for it that cannot be rejected out of hand’.

By using the expression ‘colourable defence’, Wallis JA was not signifying anything less than admissible evidence which, if true, made out the defence.

His concluding words (‘that cannot be rejected out of hand’) shows that he had in mind evidence that passed the Plascon-Evans test. ‘Colourable’ here means ‘appearing to be correct or justified’.

[78] Since truth and public benefit is obviously a good defence in law, the question for present purposes is whether the respondent laid a factual foundation for it by way of evidence. In the context of judicial proceedings, evidence means admissible evidence. While some leeway could properly be allowed to the respondent as a litigant in person, departure from accepted principles should not be allowed to prejudice the appellant. The rules of evidence exist to ensure fair play and reliable outcomes. While one can readily accept, as stated in the first judgment, that the respondent was an insider who might have had access to information not available to the general public, the question remains whether, by virtue of his inside position, he had evidence to support the defamatory allegations and, if so, whether he adduced that evidence in the proceedings before the high court. One cannot assume that his defamatory statements are true just because he was an insider.

[79] What admissible evidence did the respondent put up in support of his allegation that the appellant was corrupt, stole money and was of base moral character? The respondent claimed in his answering affidavit to have been present at a meeting, held in early February 2019, where the appellant admitted to having received money from VBS to fund the revolution. In support of this allegation, he also filed an affidavit from Mr Zolile Xalisa who swore that he was present at the meeting and that the appellant, in the course of giving a political overview, admitted that the EFF had received donations from VBS.

In context, the respondent’s allegations convey that the appellant was instrumental in allowing the EFF to receive donations from VBS in order to finance its political activities. The respondent stated in his affidavit that on receiving this information he had observed that while he appreciated the fact that the appellant was taking them into his confidence, it would have been better for this to have happened before rather than after receipt of the money.

[80] Although these allegations were denied by the appellant in his replying affidavit, they cannot, on the Plascon-Evans approach, be rejected out of hand. If true, they support the respondent’s complaint of the appellant’s lack of financial accountability and a complaint that the VBS scandal tarnished the EFF by association. But they fall well short of making the case that the appellant is corrupt and steals money. Although VBS later became the subject of scandal, the respondent does not allege that the donations, the receipt of which the appellant allegedly admitted, were made at a time when VBS was known to be fleecing its depositors or that the appellant admitted taking the money for himself rather than for the EFF.

[81] Publicly available information, including court judgments, reveal that in February 2018 VBS experienced a liquidity crisis as a result of withdrawals of deposits. This may have been precipitated by a circular which National Treasury sent to municipalities in August 2017 stating that they were not permitted by the Local Government: Municipal Finance Management Act 56 of 2003 to place deposits with mutual banks such as VBS.

The liquidity crisis led to VBS being placed under curatorship on 11 March 2018 at the instance of the South African Reserve Bank. By late July 2018 its curator had formed the view that certain of VBS’ officers had, as from 2017, embarked on a massive fraud which continued until the curatorship order. On 5 October 2018 the South African Reserve Bank published a report by an advocate, Terry Motau SC, with the title ‘The Great Bank Heist’, which set out Mr Motau’s findings of malfeasance at VBS. With no prospect of being restored to well-being, VBS was placed in final liquidation on 13 November 2018.

[82] I mention this information not because it is admissible evidence in the present proceedings but to show that one needs to be cautious, in the absence of clear evidence, about inferring that an admission made by the appellant in February 2019 that the EFF had received donations from VBS meant that the appellant had taken donations from a bank at a time when he knew it to be engaged in looting. In fact, since VBS’ curator and liquidator would not have caused the bank to make donations to the EFF or the appellant, any such donations must have predated 11 March 2018, ie at a time, so it seems, that there was no public scandal surrounding VBS.

[83] In the first judgment it is stated, at para 41, to be beside the point that the respondent failed to allege or provide evidence that the appellant personally benefited from the VBS donations.

In my respectful view, however, evidence to this effect, together with evidence that the donations were received at a time when VBS was known to be engaged in widespread theft from vulnerable depositors, was crucial if the respondent wished to establish the truth of statements conveying that the appellant was corrupt or a thief.

[84] In his answering affidavit the respondent claimed that the appellant had admitted to a Scorpio journalist, Ms Pauli van Wyk, that he (or the EFF) had received donations from VBS. The document he attached in support of this allegation (being questions posed to the EFF, the answers furnished by Messrs Malema and Shivambu and Dr Ndlozi, and the journalist’s subsequent article) do not contain any such admission. (Scorpio is the investigative arm of Daily Maverick.)

To the extent that my colleague considers that the passage he quotes in para 44 of the first judgment embodies such an admission, I respectfully disagree, though not much turns on this because there is other evidence (albeit disputed) that the appellant made such an admission at the CCT meeting of February 2019.

I also disagree, in passing, with the statement in para 48 of the first judgment that the respondent’s possession of these email exchanges is evidence of his access to inside information. Ms van Wyk’s Daily Maverick article contained links to supporting documentation, one such link being the email exchanges between her and the three EFF functionaries. It was this linked document, ie a linked document available to the public at large, which the respondent attached to his affidavit.

[85] The respondent alleged in the answering affidavit that it was publicly known that the appellant had stayed in a house in Sandown, Johannesburg, for more than three years as from 2012 and that the house ‘has been the subject of investigation due to the VBS financial illicit flows to the property’. He said that R430 000 had allegedly been ‘pumped’ into the property from VBS funds. The EFF had later bought the property (he attached a deed of transfer dated 21 June 2017). The acquisition of this property had not been reported to the CCT. The EFF’s spokesperson, Dr Ndlozi, allegedly told the Scorpio journalist, when asked about the R430 000, that ‘at least the money was not for the purposes of the [EFF], implying that the funds were pumped for the tenant of the house owned by EFF under the leadership of [the appellant]’. In this context, the respondent again referred to the questions posed by the Scorpio journalist and her article.

[86] The question which the journalist posed was: ‘Is the above-mentioned EFF leadership – along with its national chair – aware that at least R430 000 in illicit VBS funds were pumped into the property?’ The recorded response from Dr Ndlozi was: ‘It is not true, at least not for EFF purposes.’ In her article, the journalist remarked, ‘It is unsure why Ndlozi felt the need to qualify his answer.’ According to the journalist’s article, the payments totalling R430 000 were made in the months after the EFF took transfer. Dr Ndlozi’s answer, assuming it to be accurately recorded, does not show that the appellant is corrupt or a thief. Not even the journalist drew that conclusion.

[87] Once again, the appellant in his replying affidavit objected to the admissibility of the Scorpio article. I do not question the value of investigative journalism, but articles of this kind cannot simply be put up in court proceedings as evidence of the truth of what the journalist has written. Apart from the fact that Ms van Wyk did not make an affidavit (there is no evidence that she was asked), self-evidently the content of the article is not within her personal knowledge. Understandably, she does not identify all her sources. The documents to which she refers would, if they were to constitute evidence in court, have to be produced and properly proved. Production of the article by the respondent constituted double or triple hearsay.

[88] The respondent alleged in his answering affidavit that the appellant appointed service providers without being accountable to the CCT and that these service providers inflated their costs. He claimed that at a recent gala dinner in Pretoria following a Soshanguve rally, the service provider of the beverages told them in no uncertain terms that a bottle of Tanqueray with a normal price of R200 was sold for R800 and that ‘[o]n enquiry we were told that it was your instructions that prices must be inflated, as the result we could not drink the bottle’. Later in his affidavit the respondent described his informant as the ‘bar lady’.

[89] The occasion on which the respondent queried the Tanqueray price is the only incident he identified. No other examples of service providers (whether training providers, as alleged in the Facebook post, or otherwise) inflating their charges (whether by 250%, as alleged in the Facebook post, or otherwise) were given. And in relation to the Tanqueray incident, he does not state under oath that the bar lady told him that the price was inflated so that the appellant could pocket the difference.

In his replying affidavit the appellant objected to the evidence about the Tanqueray incident. The respondent’s evidence on this score was undoubtedly hearsay. The respondent did not identify his informant by name. He did not produce an affidavit by her or say that he had tried to get her evidence. It is not self-evident that a bar lady could speak reliably about the appellant’s interactions with the service provider. In the circumstances, the respondent’s allegations about this incident do not constitute admissible evidence that the appellant instructed the supplier of beverages to inflate prices or that he did so in order to steal the difference.

[90] The respondent made allegations that the appellant is undemocratic and dictatorial in his running of the EFF, that he and Mr Shivambu are not accountable to the party’s structures in their management of its money, and that he has failed to produce financial reports to the CCT. Although the appellant denied these allegations in reply, they must in terms of the Plascon-Evans rule be accepted for present purposes, but they do not show that the appellant is corrupt or a thief.

[91] The high court referred to the well-known passage from Room Hire Co v Jeppe Street Mansions where Murray AJP identified the main ways in which disputes of fact arise.

The first and clearest instance, he said, was when the respondent denies all the material allegations made by the applicant’s deponents, and produces ‘or will produce’ positive evidence by deponents or witnesses to the contrary.

With reference to the words I have placed in quotation marks, Murray AJP observed that the respondent ‘may have witnesses who are not presently available or who, though adverse to making an affidavit, would give evidence viva voce if subpoenaed’.

The high court in the present case considered that the respondent fell into this category:

‘Due to his senior position in the EFF he has certain information and he says that the statements are true, and given the opportunity he will prove it. He does not rely on a bare denial or his ipse dixit’.

[92] I disagree. Save for the Tanqueray incident, there was no evidence, not even hearsay, of occasions when service providers inflated their prices so that the appellant could steal the difference from the EFF.

As to the Tanqueray incident, the respondent did not say that he knew where the bar lady was or that he had asked her for an affidavit or that he would be able or wished to obtain her evidence under subpoena at trial. In regard to the Scorpio article, the respondent did not express any intention of procuring admissible evidence of the matters stated therein.

[93] I should add that in my respectful view the high court’s reasoning on this part of the case was also conceptually flawed.

The high court considered that the appellant had made out the first two requirements for a final interdict, namely

  • a clear right (the appellant’s right to his good name) and
  • injury (the besmirching of the appellant’s good name).

The high court treated the supposed dispute of fact as going to the question whether the appellant had another satisfactory remedy. That is incorrect.

If the respondent raised a genuine dispute of fact, it was a dispute as to whether the defamatory material was true and its publication in the public interest, ie whether the publication was unlawful.

Injury, in the delictual sense, means an unlawful invasion of the claimant’s right. If there was a genuine dispute of fact about whether the publication was true and in the public interest, the appellant failed to establish the element of injury. If an applicant for a final interdict does not establish the unlawfulness of the respondent’s conduct, an interdict cannot be granted, and the question of alternative remedies is irrelevant.

[94] Before concluding, I wish to make brief reference to this Court’s recent judgment in EFF v Manuel, since counsel for the appellant placed some reliance on passages in that case (paras 70 ff) in which this Court criticised the EFF for having relied on an undisclosed source without investigating the accuracy of the source’s information.

I agree with the first judgment that this case does not assist the appellant, though my reasons for that conclusion differ from those expressed in paras 37-39 of the first judgment.

[95] Manuel, in the passages upon which counsel for the appellant relied, was not dealing with the question whether the defamatory publication was justified. In that case the EFF did not seriously contend that its allegations about Mr Manuel were true. Although a defence of truth and public benefit was raised, this Court gave it short shrift (para 37).

What thereafter engaged this Court’s attention was whether the EFF had nevertheless acted reasonably in publishing the defamatory statement. This was treated as being relevant either

  • to a defence of reasonable publication (if such a defence applied to parties other than the press, a question which this Court left open) or
  • to a conventional defence by a non-press respondent of an absence of animus iniuriandi.

(In Manuel the complainant was persisting with his claim for damages, so animus iniuriandi was an essential element of the cause of action.)

[96] The nature of evidence bearing on the question whether a respondent acted reasonably in publishing defamatory material, or whether the respondent honestly though mistakenly believed that the defamatory material was true and in the public interest, is qualitatively different from evidence bearing on the question whether the defamatory material was in fact true and in the public interest.

Evidence of the sources of information known to a respondent at the time of publication might be inadmissible to prove the truth of the information but might be highly relevant to the question whether the respondent had a reasonable basis for publishing or an honest belief that the allegations were true. For the latter purposes, it would also be relevant to know whether the respondent took reasonable steps to verify his or her sources, and it is in these respects that this Court in Manuel criticised the EFF.

[97] In the present case, however, we are not concerned with reasonable publication or a defence of absence of animus iniuriandi. We are dealing with an objective enquiry: were the defamatory allegations true or not? The enquiries which the respondent made or should have made do not bear on that question. Either he has or has not adduced admissible evidence that the defamatory allegations are true. In the respects I have identified, the respondent did not produce such admissible evidence.

[98] In the circumstances, while the respondent put up a ‘colourable defence, based on evidence’ to justify saying that the appellant conducted himself in an unlawful and undemocratic way, he did not in my opinion do so in relation to the allegations that the appellant was corrupt, stole money and was of base moral character.

It follows that I would have upheld the appeal in part. Since this is a minority judgment, there is little point in considering how his partial success would have affected costs in this Court and in the high court.

Court summary