Recent judgments and current court cases involving Julius Malema, the leader of the EFF, are helping to clarify the acceptable limits of political comment.  

They involve outspoken attacks on social media that Malema and EFF supporters made against former Finance Minister Trevor Manuel, senior journalist Karima Brown, journalist and author Professor Anton Harber, former SABC journalist Thandeka Gqubuli-Mbeki, and the South African National Editors Forum (SANEF).

In the first of these cases, Malema accused Trevor Manuel of corruption, nepotism, and a lack of transparency in appointing the new South African Revenue Service chief, Edward Kieswetter. This was despite the fact that the appointment was made by President Ramaphosa and that Mr Manuel had recused himself from the process precisely because he knew Commissioner Kieswetter. Manuel understandably sued the EFF for defamation and the Johannesburg High Court decided in his favour on 30 May 2019, after Manuel had sought an apology and asked the EFF to remove the derogatory post from its social media platforms. In his judgment, Judge Matojane identified two key issues at conflict, the first being that of freedom of expression and the second being the right to dignity (including the right to reputation). In Judge Matojane’s words, “the challenge for the courts has been to strike an appropriate balance between these rights in articulating the common law of defamation”.  Malema gave notice that he intended to appeal against the judgment and its award of R500 000 for defamation, plus punitive costs. On 18 June 2019, the South Gauteng High Court dismissed the EFF’s application for leave to appeal.  

A week after the Manuel judgment, senior journalist Karima Brown won her case against the EFF. During the run-up to the 8 May elections, she sued the EFF for breaching the Electoral Code. The EFF published her phone number and details on social media. This, after she accidentally sent a message to the EFF’s WhatsApp group instead of to a colleague - to alert her to a breaking story regarding the party’s meeting with elders on its campaign trail. Despite Brown’s attempts to explain her mistake and her deletion of the message, the EFF leadership and its supporters unleashed a torrent of attacks against her on social media, including misogynistic threats of rape and death and the racist refrain that “Indians [should] go back to India”. In arguing that the EFF leadership had contravened the Electoral Code of Conduct, Brown’s counsel told the court that “Malema’s conduct constitutes a contravention of the Electoral Code as he took no reasonable steps to ensure compliance with the Electoral Act, to make sure that journalist are not facing any harassment, intimidation, threats by political parties”. High Court Judge Fiona Dippenaar found that the EFF had violated the Electoral Code of Conduct and that, “there was no attempt to curtail the self-professed EFF supporters from continuing their harassment of her or any instruction to them to desist from their conduct”.    

The two judgments have provided useful markers on the unacceptability of defamation and of intimidating journalists during election campaigns. Surprisingly, the EFF  welcomed “…the court judgment on the Karima Brown matter and will comply”.          

The EFF is currently involved in two other cases relating to the manner and content of its communication.  The first arises from its accusation in April 2018, following Winnie Mandela’s death, that journalists Anton Harber and Thandeka Gqubule-Mbeki had been “Stratcom” operatives (in other words, in the employ of the State security apparatus before 1994). Both journalists fiercely denied the accusation and, after demanding that the EFF provide evidence to back up its accusations, have sought relief in the courts demanding a retraction and apology.    

The second outstanding case arose from the SANEF decision on 19 December 2018 to lodge a complaint against the EFF in the Equality Court. In its submission SANEF said that it had “...approached the court in defense of media freedom and seeking protection of journalists against sustained intimidation and threats against journalist by EFF leader Julius Malema and his supporters”. Several individual journalists have joined forces with SANEF in this complaint including Pauli van Wyk, who continues to unravel the role of the EFF in the demise of VBS Bank in Limpopo Province. 

These cases bear testimony to the importance of using the courts to  push back against the EFF’s racist and intimidatory communication.  The EFF has consistently failed to respond to requests for apologies and retractions of unacceptable comments from social media platforms.  It is learning that there may be a heavy price to pay - both in legal costs and reputation -  for irresponsible, defamatory and unconstitutional communication. 

Written by Zohra Dawood, Senior Fellow, FW de Klerk Foundation