Lies undermine EFF defence – Manuel's counsel
Publish date: 15 May 2019
Issue Number: 4697
Diary: Legalbrief Today
Although the EFF claimed that to rule its statements on former Finance Minister Trevor Manuel were defamation would have a ‘chilling effect on free speech’, Carol Steinberg, counsel for Manuel, countered that such an argument didn’t hold up – because the EFF’s claims were false, notes Legalbrief. She told the Gauteng High Court (Johannesburg) yesterday the EFF could not use defences usually relied on in defamation matters because the party lied. Judge Elias Matojane reserved judgment. Manuel has asked the court to declare that allegations of nepotism and corruption made by the party, EFF leader Julius Malema and spokesperson Mbuyiseni Ndlozi were defamatory. He has also asked the court to order the EFF to retract the statement containing the allegations and to apologise for them, notes a TimesLIVE report. In a statement published in March, the EFF accused Manuel of nepotism and corruption in influencing the appointment of the new SARS Commissioner Edward Kieswetter. There are a number of defences that an alleged ‘defamer’ can rely on to defend a defamation claim, including showing that the offending statement was true and that it was fair comment. Steinberg, however, argued neither stood up in this case. The facts before the court had shown that the EFF's allegations against Manuel were false. She said the facts showed Manuel was not a relative of Kieswetter and had no business relationship with the new commissioner. She said there was no corruption on Manuel's part in the appointment of Kieswetter. ‘It has been shown that the allegations are false; the defence on substantial truth must fail,’ Steinberg said. She said once it had been established that the ‘facts’ the EFF relied on to make the defamatory statements were false, the defence of fair comment also fell away.
Steinberg told the court that if the EFF statement remained unchallenged, Manuel would suffer continued damage to his reputation. She was explaining why Manuel's application should be heard on an urgent basis, says another TimesLIVE report. She said the statement against Manuel was prejudicial to the many organisations with which he was associated. ‘He is the longest-serving Finance Minister in the world. He now represents SA unofficially. He has various roles in international multilateral structures and in the private sector, where he is chairman of Old Mutual,’ said Steinberg. She said while the statement by the EFF remained in the public domain, the public was being told that the new SARS Commissioner was appointed not because he was the best candidate, but because he was a relative of Manuel, a close companion whose appointment was made in secret. ‘The case has everything to do with the fact that Mr Kieswetter started his duties on 2 May. The reason that Mr Manuel brought this application was to ensure that SARS’ reputation was cleared as soon as possible.’
Among other things, the EFF claimed Kieswetter was a ‘dodgy character’ – a claim that served to undermine SARS, argued Steinberg. ‘When there are statements bandied about that the new head of SARS is a dodgy character, obviously tax morality would be impaired. If SARS is undermined, government is undermined,’ she told the court, according to a Fin24 report. Meanwhile, it is the EFF's case that its initial statement on Manuel and Kieswetter's relationship was not defamatory. Advocate Vuyani Ngalwana, representing the EFF, told the court that Manuel had not ‘shown evidence’ that his reputation had been harmed. ‘Declaring the statement defamatory would have a chilling effect on free speech….and for a citizen of this country not to be able to make a statement on something they reasonably believe to be true,’ he said. And Manuel's claim that his reputation had been harmed did not give him the right to approach the court on an urgent basis, according to Advocate Kameel Premhid, Ngalwana's junior associate. He said there was no reason why Manuel's defamation claim should be heard urgently, notes TimesLIVE. 'The existence of negative perception is not enough for urgent relief. In the absence of direct harm, the court should not grant Manuel the indulgence to hear the matter now,' he said. Premhid said following the EFF's statement, Manuel issued a statement in which he rebutted everything that was said by the EFF. He said this received lots of media attention. 'It demonstrates that the urgency that qualifies him to be in this court does not exist,' he argued.
Premhid made the point it was no secret that SARS had been under public scrutiny and that all sorts of political interference at the revenue service had been highlighted in news reports, notes a Daily Maverick report. However, when Ngalwana claimed that even though the allegations made might be false, it was not defamatory as the EFF did not make up the claims – rather they were sent as tip-offs via text message – Matojane interjected, saying the EFF should have verified the facts first before it posted a statement on social media platforms such as Twitter. Steinberg said what needed to be taken into consideration was how the ‘ordinary reader’ of the EFF comments would interpret the statement. ‘The ordinary reader of the EFF (statement) would not take away that the EFF are uncomfortable, it would take away that Mr Manuel and Mr Kieswetter are dodgy, corrupt and nepotistic,’ Steinberg said. Premhid argued that ‘the people that follow Mr Malema or Dr Ndlozi or the EFF don’t follow them because they read News24. They know it’s a political party with a political agenda’.