Manuel v Malema – defamation law in the Supreme Court of Appeal

"Good name in man and woman, dear my lord, is the immediate jewel of their souls," writes Shakespeare in Othello. The law of defamation is the area of law that exists to protect one's "good name". Inherent in that very notion is that defamation law protects good reputations only – the remedies it provides are not there for the taking if the plaintiff does not deserve a good reputation. Nor is the law there to stifle the right to freedom of expression.

So what happens is that the law does a delicate dance to balance the free speech rights of the publisher with the human dignity rights of the target of the speech.

It does this by crafting defences such as truth: as long as what you say is true and in the public interest, you won't be liable under defamation law.  In a similar vein, at least in cases involving media publishers, acting reasonably – taking steps to verify the accuracy of the allegation – is a road to success in a defamation claim.

Now, defamation law is often abused by those who are not deserving of its protection, frequently to stifle criticism and truth-telling.

As evidence of this phenomenon, we need look no further than former president Jacob Zuma who, between 2006 and 2010, instituted defamation claims in 15 cases totalling over R50-million against eight newspapers, a radio station, two cartoonists, a columnist, op-ed writers and journalists. It took the brave cartoonist Zapiro to call Zuma's bluff – forcing the former president to withdraw his case and tender costs and resulting in the dominoes falling as the other lawsuits were also swiftly withdrawn.

Another more recent example, in the English High Court, involved the actor Johnny Depp, who sued a newspaper that published a story alleging he was a "wife-beater". Depp scored a spectacular own goal: the court found that he had indeed physically abused his ex-wife, Amber Heard, on 12 occasions during their relationship.

These are not the kinds of plaintiffs that defamation law should protect, nor are the many powerful public figures and corporations that turn to this area of law to launch “SLAPPs" – strategic lawsuits against public participation – litigation designed to intimidate and bully the speaker into shutting up, and deterring others.

But defamation law comes into its own and flexes its muscles to protect dignity in cases involving a genuinely aggrieved plaintiff – a person who deserves his or her good reputation but who is the victim of a calculated, reckless or unreasonable falsehood. And conversely, the speaker who has harmed someone's reputation by publishing such a falsehood does not deserve the protection that freedom of expression otherwise rightly provides.

Last week Thursday, the Supreme Court of Appeal (SCA) handed down a decision in this kind of defamation case in the leave to appeal application by the Economic Freedom Fighters (EFF) against Trevor Manuel, the former Cabinet minister.

... Manuel succeeded in showing that he had been unlawfully defamed by the EFF. The SCA thus had no difficulty confirming the High Court's declaration that the EFF had published false, defamatory and unlawful statements about him. This declaration is worth its weight in gold, as is the SCA's confirmation that the EFF must remove the statement and is interdicted from repeating it in the future.

In March 2019, the EFF published a defamatory statement about Manuel on its Twitter account, to its 750,000 followers. Julius Malema, the EFF's leader, retweeted the statement to his 2 million followers. The statement followed the recommendation to the president by a committee chaired by Manuel that Edward Kieswetter should be appointed as the new commissioner of the South African Revenue Service. The EFF objected to the "patently nepotistic and corrupt process" of selecting Kieswetter, saying "it has now emerged that the reason is that … Kieswetter … is not only a relative of Trevor Manuel, but a close business associate and companion".

After a letter of demand was effectively ignored by the EFF, Manuel turned to the law of defamation for protection, bringing a semi–urgent application. This is a case brought on affidavit as opposed to the other legal option­ ­– issuing a summons and in due course having the case decided through oral evidence. Judge Elias Matojane in the Johannesburg High Court found in favour of Manuel. The EFF petitioned the SCA to appeal.

On appeal, the SCA confirmed that the EFF had unlawfully defamed Manuel and upheld the order of the High Court requiring the EFF to remove the statement within 24 hours (which the EFF has now done). It also upheld the interdict preventing the EFF from repeating the statement. And the punitive costs award against the EFF for the costs of the court below was also reinstated.

In relation to the damages award of R500,000, which the High Court had awarded, the SCA took the view that damages for defamation can only be obtained after oral evidence and not in an application procedure on affidavit; it was also "extraordinarily high". And because, said the SCA, orders to apologise are linked to damages awards, the order requiring the EFF to apologise to Manuel suffered a similar fate. These two aspects of the case were therefore referred for oral hearing, a small blemish on an otherwise complete victory for Manuel.

It is worth unpacking the SCA's reasoning on all of these issues - not least because this is probably the most significant SCA decision on defamation since the seminal Bogoshi case of more than two decades ago.

The issue of whether the statement was defamatory of Manuel was clear: it plainly accused him of being nepotistic and corrupt. The onus then shifted to the EFF to establish a defence.  It relied on three, all of which were rejected by the SCA.

The EFF could not come home on its first defence of truth and public interest. It had made "no attempt to refute Mr Manuel's statements that he was not related to Mr Kieswetter and that they were neither business associates or companions". This also meant that the second defence, of fair comment, was not available to the EFF because even if the statements were comments they had to be based on true facts, which they were not.

That left the defence of reasonable publication. The Bogoshi case had developed this defence for media defendants. The effect of the defence is that if the publisher reasonably believed in the truth of the statement, it will not be liable for defamation. The EFF urged the SCA to develop this defence so that it also protected non-media publishers. The SCA concluded that this was not the appropriate case to develop the common law but that this made no difference on the facts. Whichever standard was adopted, the EFF fell woefully short of it. All that the EFF could show was a WhatsApp message sent to its deputy leader alleging that Kieswetter and Manuel were relatives, close friends and business associates. The SCA said the EFF "relied on the untested word of its source without taking any steps to verify the correctness of the statements they made". An obvious step which the EFF had not taken, one very familiar to the media, was to approach Manuel and Kieswetter for comment but, said the SCA, "making an enquiry and being told the correct facts risked turning a possible bombshell into a damp squib".  The lack of any verification by the EFF showed a "willingness to wound irrespective of the truth of the allegations". This was all made worse by the EFF's conduct after Manuel complained. On Twitter Malema said "he can go to hell" and this attitude of defiance prevailed throughout the litigation.

All of this meant that Manuel succeeded in showing that he had been unlawfully defamed by the EFF. The SCA thus had no difficulty confirming the High Court's declaration that the EFF had published false, defamatory and unlawful statements about him. This declaration is worth its weight in gold, as is the SCA's confirmation that the EFF must remove the statement and is interdicted from repeating it in the future. Manuel's dignity was thus given court-sanctioned protection; his good name was restored.

As for the SCA's decision that the quantum of damages and apology relief should be referred to oral evidence, the SCA is, with respect, wrong on this score. It is illogical to rule that apologies should only be ordered in conjunction with a damages award: this forces a plaintiff to seek damages even if all they want is an apology. And saying a deserving plaintiff must proceed with a trial on the issue of damages even in a case where no material dispute of fact arises is cold comfort. It means a deserving plaintiff must wait for his day in trial court – often years down the line – and incur significant resources to get a small amount in damages, to hold the publisher of disinformation to account for something the public has by then long forgotten about. This problem – of belated vindication through a damages award in an oral hearing – is exacerbated in the social media era, where the viral spread of lies requires a swift, decisive response.

These shortcomings, notwithstanding, the judgment clearly vindicates Manuel. And it sends a strong message to purveyors of disinformation – on social media and otherwise. You can run for a while, but you can't hide. DM

Dr Dario Milo is a partner at Webber Wentzel attorneys. Milo acted for Trevor Manuel in the case. He is an adjunct professor in law at the University of the Witwatersrand.