It’s a sentiment which appears to be in the air at the moment. Not just Magashule, but also the African Transformation Movement (ATM) party, Public Protector Busisiwe Mkhwebane, ANC Treasurer-General Paul Mashatile and media owner Iqbal Survé are all reported to be pursuing or mooting legal defamation action against their critics.
This week marks the deadline for Buyisile Ngqulwana to retract “false and defamatory” allegations about Magashule, or face a defamation suit.
Ngqulwana is the former secretary-general of the South African Council of Messianic Churches in Christ who set the cat among the pigeons just days before the May 9 general elections by claiming that Magashule and former president Jacob Zuma participated in “consultation sessions” to establish the ATM as a rival party to the ANC.
Ngqulwana made the claims in an affidavit submitted as part of a subsequently-abandoned Electoral Court challenge. The allegations have been vehemently denied by both Magashule and the ATM, but Ngqulwana has stuck to his guns – saying that he is willing to cooperate with the ANC’s probe into the matter, to be led by former president Kgalema Motlanthe.
Now, however, the legal pressure is being applied.
Magashule’s lawyers wrote to Ngqulwana on Wednesday 26 June instructing him to retract his allegations against the ANC secretary-general and apologise within five days, or face a defamation suit. Magashule’s legal letter, reports News24, accused Ngqulwana of making “false and defamatory” allegations which have “painted our client as treacherous and disloyal to the general public, and to members of his own party”.
Magashule’s legal team apparently did not put a price on potential damages at this time – but the ATM party itself has already demanded the princely sum of R22-million from Ngqulwana for reputational damage.
In a letter tweeted by the ATM’s Mzwanele Manyi – which bears the same date as Magashule’s legal threat – Ngqulwana is ordered to cough up R22-million for having “intentionally and wrongfully uttered defamatory statements” which cost the ATM votes during the May elections.
If Ngqulwana does not pay up within 20 days, the letter says, “further legal action” will be taken against him.
A bewildered Ngqulwana was quoted as asking: “How did they arrive at R22-million? I won’t be able to pay.”
He said he believed the legal action was an attempt to intimidate and muzzle him from “speaking the truth” ahead of the ANC’s internal probe.
Allegations of intimidation have also been raised in the context of media owner Iqbal Survé’s defamation suit against veteran labour journalist Terry Bell and Media24.
In papers lodged at the High Court in Cape Town on Friday 28 June, Survé’s lawyers take specific issue with a 2016 Fin24 op-ed written by Bell headlined: “Fact-checking Iqbal Survé’s bold bio leaves more questions”.
The article questioned Survé’s repeated public claim that he was the personal friend of, and doctor to, former president Nelson Mandela.
Bell listed the physicians who are known to have treated Mandela after his release from Robben Island and quotes Mandela’s former personal assistant Zelda la Grange as saying she had no knowledge of any relationship between Survé and Mandela.
It is unclear why it has taken Survé so long to act against an article he considers – according to the court papers – to be “wrongful and defamatory”.
Survé is demanding R100-million in damages: the amount, his lawyers say, that he has lost as a result of the harm done to his “good name, reputation and standing in the media industry”.
Bell raised the spectre of intimidation to the Sunday Times, saying: “I suspect he’s trying to muddy the water as he may have gotten wind about a book that’s to be published about his exploits in October”.
Joining the queue for the courts shortly may be Public Protector Busisiwe Mkhwebane, who has ordered the deputy general secretary of the South African Communist Party (SACP), Solly Mapaila, to retract comments against her or face legal action.
Addressing the national policy conference of the National Education Health and Allied Workers’ Union (Nehawu) in Johannesburg, Mapaila warned that the Public Protector “should not become the hired gun of the fight-back agenda in our movement”, and suggested that Mkhwebane was being fed “rogue intelligence”.
In a statement on Thursday 27 June, Mkhwebane described Mapaila’s comments as “vitriol”, and challenged him to “produce evidence to support his claims or retract the statements and apologise, failing which she will consider taking legal steps against him”.
The SACP has since said the party will be undeterred from calling for a parliamentary inquiry into Mkhwebane’s fitness to hold office.
Also in litigious mood is ANC Treasurer-General Paul Mashatile, who has reportedly filed lawsuits against the EFF, its leader, Julius Malema, and its Gauteng leader, Mandisa Mashego, after the Fighters publicly accused Mashatile of stealing money intended for the Alexandra Renewal Project.
Mashatile is demanding R2-million in damages for the consequent injury to his reputation.
Though some of the parties threatening defamation may have been emboldened by the recent court victory of former finance minister Trevor Manuel over the EFF, the damages awarded in that case – R500,000 – were substantially higher than most damages in South African defamation cases. Indeed, one of the points raised by the EFF in the party’s rejected appeal against the judgment was that the award was “too high” compared to similar judgments in the past.
“South African courts have in the past shown little appetite for vast damage awards in cases of this kind, partly because it’s acknowledged that there is no definitive yardstick for measuring such damages, and partly due to concerns about having a chilling effect on freedom of speech,” an advocate, who wished to remain anonymous, told Daily Maverick.
Courts will take into account factors including the nature of the statement judged defamatory, the malice shown by the defamer, the scale of the audience reached by the defamatory statement, and the remorse or lack thereof shown by the defamer.
But making extravagant financial claims in initial legal threats, said the advocate, is often a tactic designed to intimidate the complainant into settling out of court, or retracting the contentious statement before the matter reaches court.
In the cases involving Magashule and the ATM, there is an obvious incentive to apply pressure to Ngqulwana before he makes good on taking his allegations to the ANC’s investigative probe.
When it comes to Survé, the lawsuit may well be a threatening shot across the bows of the media owner’s real target – the publishers of a forthcoming book by former Independent editors Chris Whitfield and Alide Dasnois.
In the event that a court was to agree with Survé that Bell’s column was defamatory, however, what are the chances that a judge would award Survé R100-million damages?
“Survé is dreaming,” said the advocate. DM
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