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Manuel vs EFF: 5 key reasons why the court says EFF should cough up and apologise

May 30 2019 18:13
Fin24

The South Gauteng High Court has ordered the Economic Freedom Fighters (EFF) to retract and remove a defamatory and "unlawful" statement against former finance minister Trevor Manuel from all its media platforms within 24 hours.

The judgment was handed down on Thursday, following a hearing in mid-May. 

The party has also been ordered to pay R500 000 in costs - which Manuel previously said he would donate to charity, and apologise. The EFF has since indicated that it would appeal the ruling.

The saga is related to the recent appointment of new SA Revenue Services boss Edward Kieswetter.  Manuel was the head of a selection panel, appointed by Finance Minister Tito Mboweni, tasked with interviewing potential candidates for the top job in the revenue service. The panel made recommendations but did not make the final decision. 

The EFF, in a statement in March, had claimed that Kieswetter was a relative of Manuel's and the two had a close business relationship, without providing evidence. They also said the process to appoint Kieswetter was secretive and Manuel was biased. The statement was tweeted and shared on its platforms.

According to court papers, at the time when the defamatory statement was shared, the EFF had more than 725 000 Twitter followers. The tweet was retweeted 237 times from the EFF Twitter account. EFF leader Julius Malema also tweeted the statement from his personal account, which has more than 2 million followers where it was also retweeted and shared. 

Here are 5 key reasons why the court ruled against the EFF

1. The EFF knew that the statement was false

According to the judgment, the EFF knew that the statement was false as party members were present on February 7 when President Cyril Ramaphosa announced during his State of the Nation address that he was implementing the recommendations of the Nugent Commission in appointing a new SARS Commissioner. The Commission had been tasked with investigating the administration and governance at the tax agency which led to the eventual sacking of its former boss, Tom Moyane.

They were also present on February 13 when retired Judge Robert Nugent presented his report to the Parliamentary Standing Committee on Finance, which further detailed his findings. Nugent had recommended in his report that potential candidates be invited for a private interview.

"As detailed above, the EFF sent a parliamentary question to the Minister of Finance asking why Justice Nugent had recommended a 'secret interview process'," the judgment read, highlighting the fact that it was a known fact that the interviews would be done privately. 

"The respondents also knew that Mr Manuel played no role whatsoever in determining that the process would be conducted in accordance with the recommendations of the Nugent Commission. There is therefore no basis for saying the process was secretive, they had a legal remedy that they could have resorted to.

"The allegation that Mr Manual unlawfully appointed Mr Kieswetter to the position of Deputy SARS Commissioner when he was Finance Minister is also patently false. The President appointed Mr Kieswetter in terms of the SARS Act."

2. Reputation and Defamation

The court found that a "reasonable person of ordinary intelligence would understand the tweet to mean that Mr Manuel is corrupt, nepotistic and that he conducted the appointment process of the new SARS boss secretly in a deliberate attempt to disguise his familial relationship with Mr Kieswetter, and that he is connected to a 'white capitalist establishment' that acts contrary to the best interests of SARS..."

"It is important in this case to point out that the tweet was not a publication on a newspaper or broadcast. It was publication on Twitter. The hypothetical ordinary reader must be taken to be a reasonable representative of users of Twitter who follow the EFF and Mr Malema and share his interest in politics and current affairs," the judgment read.

"...There is no doubt that the statement would generally tend to lower Mr Manuel's reputation in the estimation of right-thinking members of society, as the tweet implies that it was dishonest, unscrupulous and lacking in integrity."

3. Truth and Public Interest

The EFF failed to prove that the statement was true.

"It is not true that the appointment process was 'secretive' as details of the appointment process were made publicly available from the outset. The process was open and transparent, even if the interviews themselves were not public. The respondents [EFF] admit that they lacked proper facts because they were not provided with meaningful information," the judgment read. The court found that as part of its defence, the EFF had only referred to "peripheral facts" such as the lack of transparency and concerns about transparency among other things.

"All these are peripheral facts which are unrelated to the sting of the defamatory statement in respect of Mr Manuel."

The court also said that the fact that Manuel recused himself from Kieswetter's interview and that he had worked with him previously did not "form the basis for a reasonable apprehension of bias". Manuel had said in his court papers that while the panel had not asked him to recuse himself from Kieswetter's interview, he had done so out of an "abundance of caution" as the two knew each other.

4. Reasonable Publication

The EFF argued that the publication of its statement was reasonable because it acted in "a manner akin to a whistle-blower" as they relied on information that was given to it by a confidential source. They accepted the statement to be true and "had no reason to doubt".

The court, however, found that this defence failed due to several reasons and that the party had failed to show that it was "reasonable in the circumstances to publish the particular facts, in a particular way and at the particular time".

According to the judgement, the EFF based their claim that Manuel was related to Kieswetter on an "allegation in an undated SMS". The judge found they took no reasonable steps to verify whether this was true or not before publishing their statement. 

5. Fair Comment

"The conduct of the [EFF] both before and after the publication of the impugned statement shows that they were actuated by malice. They published the tweet with reckless indifference as to whether it was true or false."

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