The EFF and its leadership are known for liberally dispensing public insults to their political rivals. But on Thursday the Gauteng High Court issued a scathing finding against the Fighters in one of the most high-profile South African instances of concrete consequences for spreading misinformation.
On 27 March 2019, the EFF posted a statement on Twitter in response to the announcement that former Alexander Forbes executive Edward Kieswetter would be appointed as the new commissioner of the South African Revenue Service (SARS).
Kieswetter was appointed as SARS commissioner after the recommendation to that effect by a panel chaired by former Finance Minister Trevor Manuel.
The EFF’s statement termed the process of selecting the new SARS commissioner as “patently nepotistic and corrupt”. It claimed that Kieswetter was a “dodgy character” who is “not just a relative of Trevor Manuel, but a close business associate and companion”.
It further alleged that Kieswetter had been “unlawfully” appointed previously as deputy SARS commissioner by Trevor Manuel and that the interview process which culminated in his appointment was conducted in secret.
After Manuel took the EFF to court to “to vindicate his reputation and dignity”, Judge Keoagile Matojane ruled on Thursday that the EFF’s statement was false and defamatory, and ordered the party to face the music.
The EFF had argued that even if the tweeted statement was defamatory, the party was still protected by its right to freedom of expression.
They also contended that Manuel’s court action was “overboard” because the statement referred not just to Manuel but also to Kieswetter and Treasury, on whose behalf Manuel did not have the right to bring any legal proceedings. The EFF’s real beef was with the lack of transparency surrounding the commissioner selection process rather than Manuel himself, lawyers claimed.
Further, the Fighters maintained that Manuel had not provided any evidence that his reputation had been harmed, and that in fact Manuel had brought the application the day before the 9 May elections “in order to cause maximum damage to the respondents”.
The EFF said it posted its statement after receiving information from a confidential source, and that it had no option but to take to the public domain with its concerns after receiving no joy from Parliament. Its defence in posting the tweet was thus akin to a whistleblower exposing wrongdoing.
Judge Matojane didn’t buy it.
The judge found that there was “no basis” for describing the appointment process to select the SARS commissioner as secretive, since the details of the process were made public from the start.
It was also “patently false” to claim that Manuel had previously “unlawfully” appointed Kieswetter as deputy SARS commissioner, since that responsibility falls to the President in terms of the SARS act.
Contrary to the EFF’s accusations that Manuel had acted out of bias in recommending the selection of Kieswetter, noted the judge, “Mr Manuel recused himself, out of an abundance of caution, from the interview of Mr Kieswetter. This was because Mr Kieswetter had previously worked at SARS as head of the large business centre, and subsequently as a deputy commissioner, while Mr Manuel was the Minister of Finance.”
The judge found that the tweet was indeed defamatory and could reasonably be assumed to have tarnished Manuel’s reputation and dignity. Judge Matojane wrote:
“In my view, a reasonable person of ordinary intelligence would understand the tweet to mean that Mr Manuel is corrupt, nepotistic and has conducted the appointment process for a new SARS commissioner secretly in a deliberate attempt to disguise his familial relationship with Mr Kieswetter, and that he is connected to a white capitalistic establishment that acts contrary to the best interest of SARS.”
In one of the most scathing parts of the judgment, Judge Matojane had damning words for the behaviour of the EFF in this case:
“The conduct of the respondents 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. The statement remains published online despite it being subsequently shown to be false, and the respondents refuse to take it down. There can never be a justification for the ongoing publication of a defamatory statement which has been revealed to be untrue unless the principal purpose is to injure a person because of spite or animosity.”
The judgment also carried a wider caution for those using social media to spread disinformation.
The judge noted that people posting on social media are capable of “reaching millions more instantaneously than, for example, printed copies of newspapers”, and had to be held to similar standards to publishers of traditional media.
Media lawyer Dario Milo, who acted for Manuel in the case, told Daily Maverick that the judgment should act as a warning to “those who recklessly publish fake news or false statements that you can be held accountable”.
Milo said that the judgment was unlikely to hold negative implications for freedom of expression, but it confirmed that greater care had to be taken by social media users “particularly if you have a widespread following and are publishing something you have no basis for publishing”.
The EFF has been ordered to delete the statement from all their media platforms within 24 hours, to publish an apology within 24 hours, and to pay R500,000 in damages to Manuel. Manuel has indicated he will donate the damages to charity
But the EFF is not giving up the fight just yet.
“We have instructed our attorneys to appeal,” EFF leader Julius Malema tweeted on Thursday after the judgment.
“Not even the courts should be allowed to silence the truth, also if that truth is against the Thuma Mina group of the ruling elite.” DM