South Africa

EDITORIAL

Corruption Sans Frontières: Supreme Court of Appeal teaches Malema an important lesson about lying & corruption

Illustrative image | Sources: Economic Freedom Fighters leader Julius Malema. (Photo: Gallo Images / The Times / Alon Skuy) | VBS Mutual Bank customers in long queues outside the bank. (Photo: Antonio Muchave / Sowetan) | Nadine Hutton / Bloomberg via Getty Images

Julius Malema received a smackdown from the Supreme Court of Appeal on Wednesday in his R1-million defamation case against former top EFF member Thembinkosi Rawula.

Four Supreme Court of Appeal (SCA) judges made short shrift of Julius Malema’s “bald denials” this week when the court held that it would not declare former EFF member Thembinkosi Rawula’s Facebook post – in which he accused Malema and his deputy, Floyd Shivambu, of using EFF funds for their personal benefit – to be unlawful and defamatory.

Based on two corroborating affidavits and without the benefit of any explanation from Malema, the SCA found that he “apparently had no difficulty in accepting funds that were the subject of corruption as an opportunity for the EFF to be in government”.

Said media lawyer Dario Milo: “The SCA held that an interdict could not be granted because Rawula had laid a foundation for a defence of truth to be asserted.”

The court decided that Rawula’s version of events “wasn’t so far-fetched as to be rejected”, albeit that the court did not go so far as saying Rawula’s statements were indeed true, Milo continued.

During his argument, Malema’s counsel dropped his claim for R1-million in damages as well as the demand for a retraction and apology and an interdict against further publication of the Facebook post.

What was left for the court to decide was Malema’s demand to declare Rawula’s Facebook post unlawful and defamatory.

In a majority judgment written by Judge Ashton Schippers, this, too, was dismissed.

Rawula used to serve on the EFF’s highest decision-making body, the Central Command Team (CCT), he represented the party in Parliament and was the national chairperson of the EFF’s National Disciplinary Committee. He sat in a privileged position, the court found, that made him privy to information that few people could access.

The beginnings of the court saga date back to February 2019, when Rawula baulked at Malema’s attempt to draw the EFF leadership into a “collective responsibility” for receipt of stolen VBS money. At a meeting, Malema explained to the CCT that he, Shivambu and the EFF did indeed receive loot from VBS Mutual Bank, Rawula claimed.

Malema’s reason for accepting the VBS money, Rawula said, was “to support the revolution”.

(VBS Bank was defrauded by its managers, lawyers and auditors, as well as ANC and EFF politicians and politically linked businesspeople between 2015 and 2018.)

The SCA found, notably, that Malema must have known the money was the proceeds of crime because he attempted to hide its source by employing money laundering tactics.

Rawula’s extraordinary accusation was confirmed, under oath, by Zolile Rodger Xalisa, an EFF MP.

In a handwritten affidavit, Xalisa said Malema, at a CCT meeting, “made an admission that the EFF had received donations from VBS which is the subject of corruption. He said that no capitalist or government is willing to support a revolutionary movement like EFF so VBS saw an opportunity that the EFF could be in government, it could assist to ensure that it thrives better.”

Even more interestingly, Xalisa stated that Malema “confirmed that they could not receive the donation with [the] EFF account of theirs (him and Floyd Shivambu) but had to devise other means, he said sometimes you must kiss dogs or the devil to get money…”

Malema then wanted the entire CCT to take “collective responsibility” for receiving the VBS loot.

On 5 April 2019, Rawula published a Facebook post in which he accused Malema and Shivambu of being corrupt, of laundering money and of contravening a cardinal pillar of the EFF’s constitution – fighting for an anti-corrupt society.

“All these [monies] are centralised in the EFF under the control, abuse and dictatorship of Julius Malema and Floyd Shivambu,” he wrote.

Rawula signed his Facebook post with an emphatic challenge:

“Bring it on, insult me.

Bloody crooks.”

Rawula argued that the EFF had failed the moral test it set for itself and society.

He deleted the post later, but never backed down from its consequences in court.

By then, Daily Maverick’s investigative journalist Pauli van Wyk had written several articles proving that, while Malema and Shivambu were positioning themselves as the moral leaders of the oppressed, they were knowingly participating in the fraud at VBS. The loot propped up their lifestyle and political aspirations.

VBS bank heist: EFF’s family ties and moneyed connections

Public pressure on Malema was piling up. He promised to show journalists the EFF’s financial statements, but for obvious reasons did not do so.

“Tellingly”, the SCA noted, Malema did not attempt to sue Daily Maverick, Van Wyk or any other media for defamation or to interdict any further articles. Malema also did not claim any damages.

Instead, he gunned for Rawula. Malema realised he would never survive a discovery process against Daily Maverick or Van Wyk. So, in a cowardly fashion, he picked on someone whom he knew did not have the funds to fight him in court.

Rawula had no lawyer representing him at the SCA, but indicated he would abide by the court’s ruling. Malema, on the other hand, had top-class advocates Tembeka Ngcukaitobi SC and Kameel Premhid fighting in his corner. But it is sometimes impossible, even for such heavy hitters, to defend the indefensible.

A moment should be had for Rawula’s steadfastness and bravery. Under enormous pressure from his former colleagues and co-“fighters for justice”, Rawula was the only person to stand up against the EFF leaders on matters of principle, personal price be damned.

In an affidavit before the high court, Rawula stated: 

“…for the EFF to be mentioned in [a] corruption scandal involving the VBS which had carried the savings of poor people in Limpopo is unacceptable”.

Offering his reason for speaking out on Facebook, Rawula later explained in an answering affidavit: 

“I have… every right to expose [Malema’s] leadership in the interest of the public as the public figure and public representative and most importantly as the leader of the political party that has mobilised the public on an anti-corruption ticket.”

From experience, Daily Maverick and Van Wyk know that it is not easy to stand up against the populist, cult-like figure of Malema, who can easily rally his troops to intimidate anyone on his behalf. For Rawula, who, because of his principles, found himself out of Parliament, out of a job and at the mercy of his former colleagues, it must have been a tough experience.

Much has been said and written in the past years about whistle-blowers and the harsh journey they embark upon when standing up for principle. Hopefully, Rawula will find an embrace he deserves, for having in his heart what it takes to stand up for what is right. South Africa needs more people like him.

As for Julius Malema and Floyd Shivambu, the VBS noose is ever-tightening. 

Two weeks ago, Van Wyk exposed Floyd Shivambu’s brother, Brian Shivambu’s admission that he received R4.55-million from VBS for no valid reason, a devastating blow to the entirety of Malema/Shivambu explanations (and there were a few of those). 

For a man gifted with an array of talents, Malema’s response to this crucial building block in the case against him was surprisingly, outlandishly pathetic: he likened Brian Shivambu’s “compromise” with Vele Investments with the compromise made in the early 1990s between the ANC and NP that made modern South Africa possible. 

Go figure. The logic behind this will probably remain forever hidden, even to the EFF’s commander-in-chief himself. 

Wednesday’s SCA decision has blown open another heavy door into the heart of the Malema/Shivambu corruption syndicate. Coupled with Brian Shivambu’s “compromise”, it does not require for anyone in the NPA/Hawks/SAPS universe to use their imagination any more. This is now a case of simple arithmetic: 2+2=4. 

The ball should now be firmly in the hands of the South African legal system. 

The Third and Fourth Estates have done their job. South Africa now needs the First and Second Estates to do what’s right. DM

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All Comments 30

  • Eish, when will journalists ever learn that the skin of Malema is as thick as that of an elephant. “He has been taught a lesson….”. Are you for real?. This man is incapable of even understanding the verdict of the court. In fact, I’ll be surprised if he even took notice of it. He already forgot about it by the time he made this defamation case. This was purely a tactic to scare others from even trying to take him on, in person, in a court of law, at one of his press meetings, anywhere in a public space, in parliament, you name it. And truth be said: It works! The whole country fears him, are shit scared of him. He, by and large, has the judiciary, the press, other political parties, and on, and on, by the proverbial balls!

    • Ja, I tend to agree, but his power is fading and he is now becoming desperate to become relevant again. This matters not to you and I but the voters – this next election will be telling. Is Julius being percieved as saviour or just another political thief (without clout to change policy)? We shall see.

      • I for one hope you are right. The elections will be telling. There is one thing that worries me immensely, that no journalist ever reports on. It is the support that Malema enjoy’s from the intellectual youth in South Africa. Virtually at all the University and colleges in South Africa the student councils are dominated by EFF supporters, most whom are also members. These students have immense power and say in the opinions of the youth, whom in turn influence their parents. In the bigger scheme of things, individuals like Rawula has no real say or influence.

        • Absolutely correct…it boggles my mind that intelligent students who have no memory of the struggle, apartheid or have been never been marginalized in anyway can think that the EFF’s policies have merit. I can only assume that, like the students in the 60’s who protested about Vietnam, they need a cause that is opposed to what the status quo represents! They need to grow up and recognize what empty promises made by crooked politicians look like!

          • The actual support is far less than you would think. Student elections are, on the whole, an exercise in the vocal minority getting their supporters to vote, whereas the vast majority of students don’t bother going to the polls. And then there is the system: at one institution, for example, every student has a vote for every position, so a simple majority of those that vote then elects a complete slate – no proportional representation here!

          • What an incomprehensible comment. How would you know who has been marginalised or not? FYI, 10.6% of voters think the EFF policies have merit. If you do not, that is no reason to make sweeping generalisations that are easily shown to be without any merit whatsoever.
            So your solution is for “EFF voters to grow up”? I shudder to think what you may say about people who consistently voted for the implementation of “a crime against humanity” from 1948 to 1990.

            Madam, you might be one reason why people do vote for the EFF.

    • Mostly I agree. However to state that Malema is incapable of understanding the verdict I believe is Far from the truth. IMO the man is clever – an amoral, charismatic rabble rouser. The verdict will be largely ignored (by Malema) and declared that the judiciary are prejudiced.

  • Completely agreed about Rawula. I do not respect his organization for a second, but I respect him. That took courage, and what he says going forwards I will consider far more seriously than anything Malema has to say. Ha ha ha – ‘bloody crook’ indeed – must have been quite a moment typing that.

  • Well done to Thembinkosi Rawula, taking the stand and fighting to the end was courageous. It’s one thing that he won, but winning against ‘top-class advocates Tembeka Ngcukaitobi SC and Kameel Premhid’ just sweetens the whole deal. Also says a lot about the ‘top-class advocates’ who benefit of defending the indefensible, not sure what’s top class about that.

  • I agree no heavy hitter advocate can defend the indefensible and succeed, no matter who he is – a client’s case is only as strong as the evidence and the legal principles in favour of his case – advocates only 50% win of their cases – and then it’s when they GOOD

  • So can someone pl,ease tell me how it works? I steal 12 million from VBS. I admit and return 4.5 million, and they say thank you sir, and I walk away? NO, I tell you I would be arrested on the spot for admitting guilt! but not these guys. Thye are amazing people. they just WALK AWAY ! Bathoi , surely does have enough to pull them in, but doesnt! Why do we all sit and wait for people to be arrested whom we know are as guilty as sin!

    • The NPA only prosecutes it does not lay charges or arrest. Cele and Suthole are the folks who sit on their hind legs like the donkeys they are

  • And now, in another article on DM, the EFF are threatening senior women health official staff at the South African Health Products Regulatory Authority, including via WhatsApp messages
    Surely this is an extremely serious matter, as apart from marching tomorrow to the Authorities Head Office, they will also do a “sleep-in” at the CEO’s house. The police has to act, and act firmly, failing which this could result in the most dire sequences. Should they get away with it, I am afraid the the country can just as well hand over power to Malema

  • All credit to Rawula who stuck to his guns against a heavily loaded Malema legal council, but why is it always the Whistle Blower who has to sacrifice…the man seems to have lost a lot!

  • Lying to save your own skin is such a cowardly action. It is not clever. It is not noble. It is not justified.

    If your convictions are so strong that you feel you can steal money from the poor to advance your cause, if the end truly justifies the means, then surely you should be prepared to defend those convictions publicly, no matter the outcome.

    Malema’s lies expose him for what he is: a coward.

    • It’s not just stealing money from the poor; it is doing so whilst loudly trumpeting that one is the champion of the same poor, that is so nauseatingly cynical. It shows their claims to be fraudulent, as well as all the other stuff of course. I watched the Neille/Poplak film “Influence” last night and it makes one ill. It’s the same thing: claim to be championing the very poor whilst one is busy stealing their healthcare, education, roads, electricity, grants, police, … but we must not forget that is also exactly what apartheid took from people. Thus, the poor become fodder of the wealthy. This suggests it is not the colour of the person in power but the system itself that is flawed.

  • Mr Rawula, I salute you for standing firm on your principles and I know that there are many that feel as I do. Stealing that which does not belong to you is morally wrong, but stealing from the poor and vulnerable while claiming to be representing them, is unconscionable! Enjoy your victory and may it lead you to do more good things.

  • How refreshing that persons with morals and integrity still exist in SA … kudos Rawula, SCA et al – hope all the compromised lawyers find their ethics and drop their crooked clients (that’s if their greed allows them…)