Court questions Trevor Manuel’s defamation award against EFF

The R500,000 defamation award former finance minister Trevor Manuel last year secured against the Economic Freedom Fighters (EFF) found itself on shaky ground in the Supreme Court of Appeal (SCA) yesterday.

The court seemed unmoved by the defence put forward by the EFF – that the publication of a statement it had issued effectively accusing Manuel of corruption and nepotism, had been reasonable – but it did call into question how exactly the damages Manuel had suffered, had been quantified.

The statement in question was posted to the EFF’s official Twitter account last March, in response to the announcement of Edward Kieswetter as the new commissioner of the South African Revenue Service (Sars).

In it, the party labelled Kieswetter – who was appointed to the position at the recommendation of a panel chaired by Manuel – a “dodgy character” who was “not just a relative of Trevor Manuel, but a close business associate and companion” and charged that Manuel had “unlawfully” appointed him as deputy commissioner previously.

This prompted Manuel – who has vehemently denied the allegations – to approach the High Court in Johannesburg with an application to have the statement declared defamatory.

Judge Elias Matojane, who presided over the application, ended up finding in favour of Manuel. The judge ordered the EFF to take the statement down and apologise, as well as to cough up R500,000 in damages, which Manuel has since indicated he intends donating to charity.

After an unsuccessful attempt to appeal Matojane’s ruling in the high court, the EFF turned to the SCA where its case was heard yesterday. In the high court, the EFF relied on the Bogoshi judgment – which provides for the media to avoid liability for publishing defamatory statements if they acted reasonably in doing so – and yesterday, advocate Tembeka Ngcukaitobi, for the party, stuck to this line.

He argued the information contained in the statement had been provided by an “apparently credible” source and that the EFF had at the time thought it accurate. Asked about whether or not attempts had been made to verify the information, Ngcukaitobi said political parties should be held to a different standard of reasonableness.

“[A political party] is a holder of rights on its own but it also plays another role in society, which is facilitating truth and holding the executive accountable,” he said, before Judge Halima Saldulker cut him off.

“Are you saying political parties have a political license to actually publish information that comes into their possession without verifying it?” she asked.

Ngcukaitobi replied this was not his suggestion but that it was “untenable” to expect political parties to approach their rivals for comment. The judges, however, criticised the award itself for having been made without any oral evidence having been tendered in court.

“There’s a massive amount of cross-examination that would ordinarily take place in an opposed defamation trial – about reputation, the harm to reputation and all the rest of it,” Judge Malcolm Wallis put to advocate Carol Steinberg, for Manuel.

This on the back of repeated suggestions from the bench that while a finding of defamation against the EFF might have been warranted, the issue of quantum should potentially have been referred to oral evidence or trial. Judgment was reserved.

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