Staff Reporter
The Supreme Court of Appeal (SCA) has dismissed an appeal by EFF leader Julius Malema against a ruling of the Eastern Cape High Court which set aside an application in which he wanted a statement made by former party member Thembinkosi Rawula declared defamatory.
Malema also wanted the High Court to stop Rawula from publishing any further defamatory statements and to order him to pay R1 million in damages.
The matter dates back to April 5, 2019 when Rawula – who served on the EFF’s highest decision-making body, the Central Command Team (CCT) – posted a statement on his Facebook page entitled ‘EFF remains a financial fishing net for the pair, an antithesis of everything it (purports to be). I am now unleashed, who cares?’
Aggrieved by the statement, Malema approached the Eastern Cape High Court in Port Elizabeth seeking an order declaring the Facebook post defamatory.
In brief, the post alleged that funds received by the EFF were centralised under the “control, abuse and dictatorship of the appellant (Malema) and the deputy president of the EFF, Floyd Shivambu, who had made it clear that the EFF was their organisation”.
It also claimed that they had used training providers who inflated costs to the EFF by 250 percent and, in the absence of financial reports (which had not been tabled before the CCT since 2014), the respondent was forced to conclude that the two had pocketed the difference; and that the appellant, in a meeting of the CCT had admitted to receiving money from VBS Bank, saying “sometimes we are forced to kiss dogs or the devil to get funding”.
These statements, Malema said, were understood to mean or imply that he is corrupt; is stealing money; conducted himself in an unlawful and undemocratic manner; and is of base moral character.
The majority judgment of the SCA by justices Xola Petse, Nambitha Dambuza, Ashton Schippers and Aubrey Ledwaba held that Rawula had “established a sustainable foundation by way of evidence that a defence of truth and public interest or fair comment was available to be pursued”.
According to the judgment, there was nothing in the evidence to support the claim that he had obtained access to privileged information because he served on the CCT.
It is also claimed in the court papers that when Malema received money from VBS, he knew that it was the subject of corruption and said that it could not be paid into the EFF’s account and that he had to “devise other means” to receive the money.
The Limpopo-based VBS Mutual Bank collapsed in 2018 after incurring debts of more than R2 billion.
It held savings of many disadvantaged people and local municipalities.
Following its collapse, many elderly people in Limpopo lost their lifetime savings.
Investigations revealed that much of this money had been siphoned into private bank accounts with some spent on property or luxury cars.
The National Prosecuting Authority has described the VBS scandal as “probably the biggest bank robbery in this country”.
Several VBS officials have been arrested on charges of corruption, racketeering, money laundering, fraud and theft.
The SCA further found that the fact that Malema or the EFF had received VBS money – which he denied in the papers – and that the appellant had personally benefited from it were already in the public domain by September 2018.
“It was telling that the applicant had taken no action against the print or electronic media for any injury to his good name or reputation,” the SCA pointed out.
It said the statement that the EFF “was their organisation”, when considered in the context of the Facebook post as a whole, was an example of a recurring theme: a lack of accountability and abuse of funds on the part of the leadership of the EFF.
The party received levies from 61 Members of Parliament and provincial legislatures of not less than R6 800 each and 852 councillors contributed at least R2 000 a month.
It had a million members who each paid R10.
The EFF received not less than R25 million per quarter from the National Assembly and provincial legislatures.
All these funds were centralised “under the control, abuse and dictatorship” of Malema and Shivambu.
As to the inflation of costs, Rawula alleged that at a function of the EFF held in Pretoria, they could not purchase alcohol, because its price had been inflated threefold.
The majority judgment held that his inability to cite further examples of the inflation of costs by service providers was potentially at least the product of the secrecy regarding the accounts of the EFF, which was not rebutted.
The SCA supported the High Court ruling that the final interdict for defamation cannot be granted unless a respondent has no defence.
It said the High Court had rightly concluded that the appellant did not make out a case for a final interdict.
It said since the appellant accepted that there was no risk of future re-publication by the respondent, an interdict could not be granted, as there was nothing left to restrain and no risk of future injury.
The appeal was accordingly dismissed.
In a minority judgment by Justice Owen Rogers, it was found that Malema had failed to show that Rawula acted unlawfully by publishing statements that the appellant’s conduct as leader of the EFF was undemocratic and unlawful.
However, the minority judgment held that the respondent did not put up admissible evidence in support of his allegations that the appellant was corrupt, stole money or was of base moral character.
This was essentially for the following reasons: there was no evidence that when the appellant received the money from VBS, it was the subject of scandal or known to be fleecing its depositors.
The newspaper article which the respondent had put up to show that the applicant had received VBS money and had benefited from it could not be produced as evidence of the truth of what the journalist had written.
The facts concerning the inflation of the price of alcohol were hearsay and inadmissible evidence.