EFF court losses mount as Karima Brown wins battle, but faces criticism of her own

“The EFF welcomes the court judgment on the Karima Brown matter and will comply.”

This was the unusually docile response from the Fighters to Thursday’s ruling from the South Gauteng High Court that the party had contravened the Electoral Act by failing to ensure that journalists did not face harassment, intimidation or threats in the run-up to the May elections.

Broadcaster Karima Brown took the EFF to court after party leader Julius Malema posted a tweet alleging that Brown was attempting to spy on the EFF, alongside a screengrab of a message that Brown had erroneously sent to the EFF’s media Whatsapp group which included her phone number.

Brown had mistakenly sent the EFF group a message meant for her journalist colleagues which instructed them to “keep [a] watching brief” on an EFF event: a common journalistic term which refers to monitoring an ongoing news story. Malema knowingly or unwittingly misinterpreted her message to mean that Brown was engaging in covert surveillance of the party.

In the wake of Malema’s tweet, Brown was subjected to a torrent of abuse both on social media and in messages sent to her phone which included rape and death threats.

Arguing for the EFF, Vuyani Ngalwana SC had contended that Brown had a clear track record of unprofessional and biased conduct when it came to the EFF, including an earlier unsuccessful attempt to have the party de-registered before the elections.

But Brown’s lawyer, Geoff Budlender SC, had argued before the court that Malema’s conduct “constitutes a contravention of the electoral code as he took no reasonable steps to ensure compliance with the Electoral Act, to make sure that journalists are not facing any harassment, intimidation, threats by political parties”.

Instead, Malema had actively invited his Twitter followers to harass Brown through his tweet – and although Malema subsequently apologised to Brown during a media briefing, Budlender described the apology as “too little, too late”.

In her ruling, Judge Fiona Dippenaar wrote that from Brown’s public statements, “it is clear that she participated actively in very robust political debate and held very strong negative views regarding [the EFF]. There may well be merit in their criticism of her conduct, but it does not avail the respondents to simply attack her conduct in order to deflect attention from their own”.

Judge Dippenaar further pointed out that it was the EFF who were beholden to the conditions of the electoral code, and not Brown.

The judge found that the EFF had violated the electoral code by failing to “instruct and take reasonable steps to ensure that their supporters do not harass, intimidate, threaten or abuse journalists and especially women”.

Not everything swung in Brown’s favour, however. The judge found that Brown’s “provocative stance” amounted to “a weighty mitigating factor in determining an appropriate sanction”.

The judge dismissed Brown’s request for a fine of R100,000 to be imposed on the EFF, and also dismissed Brown’s request for a public apology from the EFF, pointing out that it was not disputed that Malema had already publicly apologised to her.

“In my view, Ms Brown will be adequately vindicated by the order I propose to make and an apology would only serve to foster the animosity which already exists between the parties,” Judge Dippenaar wrote.

The judgment ultimately confirmed that the EFF contravened sections of the Electoral Act, issued the party with a formal warning as a result, and ordered the EFF to pay the costs of the legal action.

This is the second consecutive legal smackdown for the party directly related to its social media conduct, with the first coming after former Finance Minister Trevor Manuel successfully took the EFF to court over defamatory, false and unlawful statements about him posted on the party’s Twitter account.

The EFF has indicated that it intends to appeal the Manuel ruling, in contrast to its acceptance of Thursday’s judgment in the Brown matter.

In complying with Thursday’s ruling, the EFF may be conscious of the need to conserve legal resources – because this is not the end of the EFF’s potential legal woes when it comes to the harassment of journalists. The case brought to the Equality Court by the South African National Editors Forum (Sanef) against the EFF requires the political party to file responding papers by 12 June.

Sanef has asked the court to interdict EFF leadership from intimidating, threatening or assaulting journalists, publishing journalists’ personal information and tacitly endorsing the harassment of journalists by EFF followers.

The editors’ body brought the complaint against the EFF in December 2018, and are joined in the court application by five individual journalists, including Daily Maverick’s Pauli van Wyk.

What prompted the court action were statements made by Malema to EFF supporters in November 2018, during which he singled out particular journalists as part of the “Ramaphosa defence force” and called on EFF supporters to “attend to them decisively”. The EFF’s official Twitter account then further broadcast Malema’s statements to over 660,000 online followers.

Sanef argues in the court papers that the net effect of incidents like these has been to create “an environment enabling the abuse, intimidation and harassment of journalists”.

It adds that one effect that has already been felt is that “journalists are choosing not to report critically on the EFF because they are aware they may be subjected to personal attacks and fear for the safety of themselves and their families”.

In addition to the Sanef case, the EFF has also been taken to court by veteran journalists Thandeka Gqubule and Anton Harber, after the EFF published an April 2018 statement accusing Gqubule and Harber of having worked for the apartheid government’s notorious Stratcom unit. Harber and Gqubule have demanded a retraction of the EFF’s claims and a public apology.

Rulings like Thursday’s may reassure journalists that their rights are protected by the courts – but some would argue that in the sphere of public opinion, the EFF’s damage has already been done. Among the social media responses to the ruling was a new torrent of abusive tweets aimed at Brown. DM