THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 139/2020

In the matter between:

JULIUS SELLO MALEMA

APPELLANT

and

THEMBINKOSI RAWULA

RESPONDENT

Neutral citation: Malema v Rawula (139/2020) [2021] ZASCA 88 (23 June
2021)

Coram:
PETSE AP, DAMBUZA AND SCHIPPERS JJA AND LEDWABA
AND ROGERS AJJA

Heard:
25 February 2021

Delivered:   23 June 2021

Summary: Civil Procedure – motion proceedings – application for declaratory
order that published statements defamatory – defence of justification – truth and
public interest – sustainable foundation in papers – declarator sought and interdict
not justified – appeal dismissed.

ORDER

On appeal from: Eastern Cape Division of the High Court, Port Elizabeth
(Mullins AJ sitting as court of first instance):
The appeal is dismissed.

JUDGMENT

Schippers JA (Petse AP, Dambuza JA and Ledwaba AJA concurring):

[1] The appellant, Mr Julius Sello Malema, is the President of the Economic
Freedom Fighters (EFF), the third largest political party in South Africa, and a
Member of Parliament (MP). The Deputy President of the EFF is Mr Floyd
Shivambu, also an MP. The respondent is a former member of the EFF who
resigned from the party in April 2019. He served on its highest decision-making
body, the Central Command Team (CCT), represented it in Parliament and was the
National Chairperson of the EFF’s National Disciplinary Committee (NDC).

[2] On 5 April 2019 the respondent 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?’. I shall refer to the statement as the Facebook
post.

[3] On 18 April 2019 the appellant applied to the Eastern Cape Division of the
High Court, Port Elizabeth (the high court), for an order declaring that the
Facebook post was unlawful and defamatory; restraining the respondent from

publishing any further defamatory statements; and directing him to pay damages
in the sum of R1 million. The high court dismissed the application. The appeal is
with its leave.

[4] The respondent appeared in person at the hearing of the appeal, as he had
done in the high court. He indicated that he did not wish to address this Court and
would abide by its decision.

Facts
[5] Shortly before his resignation from the EFF on 10 April 2019, the respondent
published the Facebook post. It reads:
‘EFF REMAINS A FINANCIAL FISHING NET FOR THE PAIR, AN ANTITHESIS OF
EVERYTHING IT PURPORT[S TO BE]. I AM NOW UNLEASHED WHO CARES?
"Since when [is] the individual interest . . . asserted above the interest of the collective and the
organization?" Lenin once lamented in his death bed when he learnt that Stalin had taken
decisions that undermined the organization but assert[ed] and affirm[ed] his grip over the
organization.
When Jacob Zuma was facing his corruption charges, the liberation movement was confronted
with a possibility of fracturing like a glass into pieces. The SACP, Cosatu and the faction of the
liberation movement were up [in] arms against the leadership of Mbeki.
Mbeki equally like Lenin, lamented as well, since when [is] the individual . . . held above the
organizational interest? Have we arrived to the time where [a] personality cult and individual
interest has come to reign over the collective and organizational interest?
No one dared to listen to Mbeki sanity because many of us in the SACP and organized labour
Cosatu were emotionally perturbed by the macro economic policies, position [on] HIV/ AIDS
and the disorientation of the ANC led alliance on decision making processes in particular as it
relates to the marginalization of SACP and Cosatu under the Mbeki leadership. Accordingly, the
climate was emotiona[l] and denied many of us an opportunity to allow sanity to prevail.
History has a way of repeating itself, yes, we are angry with the current economic policy direction
of the country which embraces NDP a graduation of gear, the macro economic policy. Yes we
are angry that our economy is not growing and instead it is leading us to job shedding and failing

to create jobs. Indeed all this is taking place under the leadership of ANC and indeed the
leadership of the ANC is guilty as charged when it comes to corruption.
Fellow fighters and comrades, whilst we are emotional about these objective realities, it gives no
one a licence to climb on the band wagon in the name of left working-class politics to commit
corruption and hide behind the slogans of Economic Freedom for dejected African masses of our
people.
If we demand clean governance and corrupt free and accountable government from the ANC and
the state apparatus in the name of our respect for the rule of law, supremacy of our Constitution,
[s]urely we must lead the society in abiding with the rule of law as an advance movement of the
working class, the Economic Freedom Fighters. We ought to demonstrate highest discipline in
the management of the state and our organization fiscus.
In parliament, the Presidency and the executive remain accountable to the legislature for
everything, policy direction and the management of the state funds and the fiscus in general. It is
so because those who are elected to public office are accountable through the representatives of
the people. The mechanism of the legislature is meant to hold the executive accountable on behalf
of the people.
In our organizations, we go to National conferences or National Peoples Assemblies to elect
leadership and the top 6 led by the Presidency is the executive and latter number of 35 or 90
remains the NEC/ CCT additional members. Whilst the executive is in charge for the direction
and management of resources of the organization . . . it remains accountable to the full
complement of the NEC/ CCT both for political direction and management of resources including
money.
The point is that, no one must be a holy cow when it comes to accountability including the
Economic Freedom Fighters.
The EFF receives levies from 61 MPs / MPLs and each pays not less than R6800 monthly x61.
EFF has 852 Councillors comprising metros, district and local municipalities. On average these
Councillors contribute R2000.00 monthly x852. Whilst on it, the EFF is recorded to have reached
a million paid up membership, R10 x1 000 000.
EFF is receiving from parliament per quarter not less than R25 Million from National Assembly
and Provincial Legislatures comprising of Party Funding, Constituency Funds and Caucus funds.
The Constituency funds [are] suppose[d] to assist MPLs and MPs to assist them with logistical
traveling arrangements such as accommodation and transport. The Caucus funds . . . [are]

suppose[d] to enable the Caucus in the legislature to plan their approach and direction in the
Province.
All these [monies] are centralized in the EFF under the control, abuse and dictatorship of Julius
Malema and Floyd Shivambu. [The] pair have made it clear, this is their organization and all of
you have come to join us not the other way round. In the EFF there is . . . a Treasurer General
called Leigh Ann Marthys, unfortunately she only administers petty cash of the EFF.
I have been a national leader, a Central Command Team member of the EFF since 2014 and we
have never had a Financial Report and when occasionally we find courage to ask about it, we are
chastised as spouses and treated with disdain and threatened to be removed from Parliament, so
for the past 5 years we had to think with our stomachs rather than objectively engaging the
executive, holding it accountable.
The Parliament money of the EFF cannot be cashed in terms of treasury rules, but the pair would
use Training Providers who would inflate costs [by] 250% so that they can run away with 150%
of the inflated cost, in the absence of financial reports from the pair, we would be forced to
conclude as such. These service providers are in the form of alcohol party retailers, lawyers,
security (Defenders of Revolution and Body and logistics service providers).1 No report
whatsoever.
On the VBS saga which has led to my sacrifice in the EFF list conference and ultimate
endorsement on the list.
The political overview of Julius Malema in the most recent CCT meeting admitted to EFF taking
VBS money to finance the revolution. In fact he said, "sometimes we are forced to kiss dogs or
[the] devil to get funding". The VBS money was done under the full knowledge of the leadership.
The meeting was preceded by two important occasions. When the VBS saga broke out one of the
EFF senior CCT members, Cmsr. Sam Matiase, wrote a letter to Julius Malema and pleaded for
a special meeting which in short he denied and claimed to have everything under control as
officials. The fellow was dismissed like that.
We are further aware, that there is a letter in which Dr Mbuyiseni Ndlozi wrote to the officials
complaining about the lifestyle of Julius Malema and how he abuse[s] the EFF funds. It is
reported that Ndlozi went to tell people closer to Julius Malema who reported him . . . . Ndlozi
was summoned to officials where he was embarrassed and reduced into nothing to a point he was
told that he joined the EFF through an interview. So he must not come here and be curious here.

1 This is an unknown entity to the Court. Presumably it is a reference to the private security services hired by the
EFF.

The contrast in between the above two letters, one was given audience and the other one was
dismissed.
Back to VBS, when given the opportunity to raise our views on the political input. We had further
learnt that prior to the CCT meeting there was a Caucus meeting of Chairperson's convened by
the pair instructing them to defend the officials.
When I rose to raise my views, I argued that whilst we appreciate to be taken into confidence
about the VBS by the leadership . . . it would have been better that we were taken into confidence
prior to the acquisition of the VBS money, not after.
I further argue[d] that the people of Limpopo had lost hope [in] the ANC and SACP and EFF was
providing the glimmer of hope, now EFF is mentioned in the same line with these organizations.
It is my submission that the scandal of VBS has put the EFF cardinal pillar number 7 on trial in
the Court of the public opinion. EFF will have a tough time to remedy itself to the poor grannies
of Limpopo and the country as the whole.
I landed in the meeting by saying, the EFF has two options: to remove cardinal pillar number 7
which states that we will fight for a corrupt-free and accountable government. Accordingly, we
have failed to pass the test of morality we have set for the society.
The other option is to simply close shop and renounce the position we have held and mobilize[d]
the society under. If we fail to pass the test of corruption, how are you going to be trusted to
nationalize mines and put under your regime state custodianship because instead of committing
to equitable redistribution you will squander the funds.
How are you going to build state capacity when you are engaged in activities that weaken the
state through engagement in corruption? How will people trust you with freeing this country from
corruption?
Lastly I refused to take collective responsibility on VBS. I am poor, live like a church mouse
despite the fact that I have been a member of Parliament for the past 4 years. The pair has milked
every cent I worked for in Parliament but despite that, my integrity remains intact.
I will wait for those who demonstrate that they are fighters with zero revolutionary content, the
populist who will do mudslinging to appease the pair.
I endured the past 4 years for convenience and the only leash they had on me was deployment to
parliament. Now that I am not in the list, I am leashed away so let the ball roll.
We are made to believe that we were picked from the streets with no prospects of employment.
When EFF called me for deployment to Parliament I was a professional public servant in the
sphere of local government with post graduate qualifications. I left the ANC because amongst

the reason[s] was the dispensation of patronage and corruption, it is hypocritical to stand for it in
the EFF.
In terms of the subjective and objective analysis, Rawula is emotional because he does not find
expression on the deployment list and now is getting back at EFF leadership, sour grapes. Say
for argument[’s] sake, there is truth in that. None of the subjective factors can outweigh the
objective reality.
You commit to an open and corrupt-free society and you instead you are found at the centre of
corruption. In your analysis kindly JUXTAPOSE THE SUBJECTIVE REALITY OF
EMOTIONALISM AND THE OBJECTIVE REALITY OF A PARTY ENGAGE[D] IN A
CASH HEIST OF THE STATE MONEY.
Bring it on, insult me.
Bloody crooks.’

[6] The respondent’s publication of the Facebook post led to extensive media
coverage, and repetition and republication of the statements complained of. These
included the following publications: an article published on News24, entitled
‘Former EFF leader accuses Malema, Shivambu of taking VBS donation, party
denies claims’; and two articles on the website of Eyewitness News, entitled
‘SNUBBED EFF COMMITTEE MEMBER MAKES SERIOUS ALLEGATIONS
AGAINST MALEMA’ and ‘SNUBBED EFF COMMITTEE MEMBER GIVES
REASONS FOR SPEAKING OUT’, respectively. A further article entitled,
‘Malema, Shivambu accused of financial mismanagement’ was published on the
website of eNews Channel Africa (eNCA). An article was also published by Ms K
Madisa on the Sowetan Live website entitled, ‘EFF MP accuses Malema,
Shivambu of using party millions to fund their lifestyles’.

[7] These publications, the repetition of the statements in the Facebook post
during an interview with the respondent on eNCA on 5 April 2019 and a radio
interview with Power FM the next day, led the appellant’s attorneys to write to the
respondent on 6 April 2019. The letter recorded that the following statements were

defamatory of the appellant. Monies received ‘are centralised in the EFF under the
control, abuse and dictatorship of Julius Malema and Floyd Shivambu’. They had
used training providers who inflated costs to the EFF by 250% and in the absence
of financial reports from them, the respondent would be forced to conclude that
they ‘[ran] away with 150% of the inflated cost’. In a meeting of the CCT, the
appellant had ‘admitted to EFF taking VBS money to finance the revolution’.

[8] VBS Mutual Bank, which held the savings of many disadvantaged people
and local municipalities, collapsed in 2018 with more than R2 billion in debt. The
aged of Limpopo lost their lifetime savings. Investigations revealed that much of
this money had been siphoned into private bank accounts and some spent on
property or luxury cars. The Head of the National Prosecuting Authority has
described the VBS scandal as ‘probably the biggest bank robbery in this country’.2
Officials of VBS have been arrested on charges of corruption, racketeering, money
laundering, fraud and theft.3

[9] The letter of 6 April 2019 went on to state that the alleged defamatory
statements were deliberately intended to impugn the appellant’s integrity and good
name by suggesting, alternatively implying, that he was corrupt; was stealing
money; conducted himself in an unlawful and undemocratic manner; and was
engaged in various unlawful activities, including irregularities in respect of VBS
bank. In the letter it was also alleged that during the radio interview, the respondent
had conceded that he had no evidence of these allegations. The letter ended with a
demand that the respondent retract the offending statements in a public apology,

2 Jason Burke ‘South African police make arrests over notorious bank corruption scandal’ 17 June 2020 The
Guardian, available at https://www.theguardian.com/world/2020/jun/17/south-african-police-make-arrests-vbs-
bank-scandal-notorious-corruption.
3 NPA and Hawks media briefing on the VBS investigation, 17 June 2020 Times Live, available at
https://www.timeslive.co.za/news/south-africa/2020-06-17-watch-live-npa-and-hawks-media-briefing-on-vbs-
investigation/.

by way of a press statement to all the media houses which had interviewed him
concerning the Facebook post.

[10] In reply to the letter of 6 April 2019, the respondent said that he would not
retract the offending statements and that he had referred to the appellant and Mr
Shivambu in the Facebook post because they were the most senior members of the
EFF. He went on to say that his statement concerning the absence of evidence ‘was
a reference to hardcopy evidence only’. He also requested the EFF to provide
audited statements, invoices showing payments to service providers, and minutes
showing reports concerning the EFF’s finances and documents proving financial
accountability. He challenged the appellant to prove that he had never used EFF
funds for his personal benefit or abused his power. The respondent made it clear
that he had never said that the appellant had stolen money, and that the latter had
admitted that the ‘EFF did receive money from the VBS’ in a meeting of the CCT.

[11] As already stated, the appellant launched an application in the high court for
an order declaring that the statements contained in the Facebook post were
defamatory and unlawful. He sought consequential relief in the form of an order:
(a) directing the respondent to remove the Facebook post from all his social media
accounts and his Facebook account in particular; (b) that the respondent publish an
unconditional retraction and apology on all his social media accounts; (c)
interdicting the respondent from publishing any further statement that says or
implies that the appellant engages in conduct of the kind described in the Facebook
post; and (d) that the respondent pay damages in the sum of R1 million.

[12] In the founding affidavit the appellant alleged that the respondent was
‘motivated by political self-interest’; that he was ‘deliberately engaging in acts of
political sabotage’ aimed at inflicting maximum damage on the appellant and the

EFF; and that the respondent had ‘admitted that he has no evidence to support any
of the claims he has made’. The specific statements alleged in the founding
affidavit to be defamatory of the appellant and the EFF, were these:
‘5.1
. . . All these [monies] are centralised in the EFF under the control, abuse and dictatorship
of Julius Malema and Floyd Shivambu. [The] pair have made it clear, this is their organization
and all of you have come to join us not the other way round.
5.2
. . . the pair would use Training Providers who would inflate costs by 250% so that they
can run away with 150% of the inflated cost, in the absence of financial reports from the pair,
we would be forced to conclude as such.
5.3
The political overview of Julius Malema in the most recent CCT meeting admitted to
EFF taking VBS money to finance the revolution. In fact he said, “sometimes we are forced to
kiss dogs or [the] devil to get funding”. The VBS funding was done under the full knowledge of
the leadership.’
These will be referred to as the offending statements.

[13] The offending statements, the appellant said, were made with the intention,
alternatively, had the effect of being defamatory and were understood to mean or
imply that he:
‘66.1 is corrupt;
66.2
is stealing money;
66.3
conducts himself in an unlawful and undemocratic manner;
66.4
is of base moral character.’

[14] In his answering affidavit the respondent denied that he had failed to
‘dislodge [the appellant] from the party leadership’. He said that there had been no
elective conference or assembly at which the leadership of the EFF could be
challenged, and that he had no ambition of becoming the leader of the EFF. He had
already occupied a leadership position, namely, National Chairperson of the NDC,
which, in his words, ‘put me on [a] collision course with the [appellant] and other

officials of the organization in the efforts to assert the independence and the
integrity of the National Disciplinary Committee’.

[15] As to his alleged disgruntlement, the respondent said that he was an elected
leader of the EFF and was not at risk of losing that position at least until the
National People’s Assembly, which would have been convened in December 2019.
In any event, his name had never been included in the list of candidates for
Parliament in 2014, as he had been working in the South African Local
Government Association.

[16] The respondent’s detailed answers to the offending statements quoted in
paragraph 12 above, are dealt with below. For now, it suffices to say that the
Facebook post was not a random publication, but as the respondent put it, based on
‘privileged information because [he] was sitting in the highest structure of the
EFF’.  The reason for publishing the Facebook post is summed up in the following
statement in the answering affidavit:
‘I have never had any personal business with the applicant, Mr Julius Malema and have no reason
to tarnish his personal image, but have every right to expose his 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.’

The high court’s judgment
[17] The high court (Mullins AJ) dismissed the application and made no costs
order. The document quoted in the judgment as being the Facebook post, is in fact
not the Facebook post, but the respondent’s letter of resignation from the EFF.
Nothing however turns on this as the court’s decision is based on the former. Its
main conclusions were these. The appellant had established the first two
requirements for the grant of a final interdict, namely a clear right to his good name
and an injury: his good name had been besmirched by the Facebook post. The third

requirement – the absence of any other satisfactory remedy – was however not met.
In this regard the judge said:
‘As far as I have been able to ascertain, bringing a defamation claim by way of application for a
final interdict and damages is a new phenomenon in our law (as opposed to an interim interdict
pending an action for damages). In my view, it is inappropriate and undesirable. The reason I say
this is the following: the person making the defamatory statement may have a very good reason
for doing so but may not have the hard evidence to hand, which evidence may be in the
possession of the person who claims to have been defamed and/or third parties; in an action a
defendant will have the benefit of the pleadings in which the issues are narrowly defined, of the
discovery process, of requesting particulars for trial, of a pre-trial conference and the
subpoenaing of witnesses and documents duces tecum; he/she will be entitled to cross-examine
the plaintiff and the witnesses called on behalf of the plaintiff in order to test their version and to
give evidence and call his/her own witnesses; evidence of an expert nature might be necessary.
An application deprives a respondent of all these extremely valuable and necessary litigation
tools.’

[18] This, the judge said, was precisely what had happened in this case. The
respondent had been a member of the CCT and had good grounds to believe that
the EFF’s financial and other records in its possession would prove the truth of his
statements, were he to be given access to those documents. He also said that there
were witnesses who would support his version. The respondent had laid a factual
foundation in the evidence and had done enough to establish a triable issue in
relation to the defences of truth and public benefit, privileged occasion and fair
comment.

[19] The judge concluded as follows:
‘Taking everything into account, I am of the view that bringing a defamation claim by way of
application for a final interdict and damages was misguided and bad in law. The Applicant has a
perfectly acceptable and appropriate alternative remedy, namely the institution of an action.’

[20] The judge then went on to consider whether there were material disputes of
fact that could not be resolved on the papers. He ruled that there were none and for
that reason declined to exercise a discretion to refer the matter to oral evidence in
terms of rule 6(5)(g) of the Uniform Rules of Court.4 He concluded that the
respondent had not merely relied on his say-so, neither was his defence to the relief
claimed a bare denial of the appellant’s allegations. The respondent had
demonstrated that he would be able to produce evidence to the contrary.5

[21] The judge also considered that the statements were made in the run-up to the
general election of 8 May 2019, and the suppression of speech in an electoral
context had severe negative consequences. Further, the EFF had refuted the
respondent’s allegations in the press. The application for an interdict was dismissed
also on the ground that the Facebook post had been removed on 9 April 2019.

[22] The appropriateness of bringing a defamation claim by way of application
for a final interdict and damages, in contradistinction to an interim interdict
restraining the publication of defamatory material pending an action for damages,
was a reason for granting leave to appeal. In this regard, the high court held that
there were conflicting judgments as to whether the use of application proceedings
in a case such as the present was appropriate, and that future litigants were entitled
to clarity as to the proper procedure.

[23] It is necessary to deal with this issue before considering the appellant’s
contentions. The remedy of an interdict to restrain the imminent or continued

4 Rule 6(5)(g) provides:
‘Where an application cannot properly be decided on affidavit the court may dismiss the application or make such
order as it deems fit with a view to ensuring a just and expeditious decision. In particular, but without affecting the
generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving
any dispute of fact and to that end may order any deponent to appear personally or grant leave for such deponent or
any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the
matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.’
5 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163.

publication of a defamatory statement is not new.6 In 1931 in Heilbron v Blignaut,7
an application for an interdict to stop publication of a newspaper article allegedly
defaming a boxing referee as being dishonest and unfair, Greenberg J said:
‘If an injury which [would] give rise to [a] claim in law is apprehended, then I think it is clear
law that the person against whom the injury is about to be committed is not compelled to wait
for the damage and sue afterwards for compensation, but can move the Court to prevent any
damage being done to him. As he approaches the Court on motion, his facts must be clear, and
if there is a dispute as to whether what is about to be done is actionable, it cannot be decided on
motion. The result is that if the injury which is sought to be restrained is said to be a defamation,
then he is not entitled to the intervention of the Court by way of interdict, unless it is clear that
the defendant has no defence. Thus if the defendant sets up that he can prove truth and public . .
. benefit, the Court is not entitled to disregard the statement on oath to that effect, because, if his
statement were true, it would be a defence, and the basis of the claim for an interdict is that an
actionable wrong, i.e. conduct for which there is no defence in law, is about to be committed.’

[24] This dictum was cited with approval in Hix Networking Technologies,8 in
which it was held that the Heilbron case was not based on English law but on
accepted principles in our law. As to how the phrase ‘set up a defence’ in Greenberg
J’s judgment was to be interpreted, Plewman JA said:
‘As the detailed analysis . . .  by Coetzee J shows, Greenberg J had not held (as was suggested
by counsel in the Buthelezi case) that the mere ipse dixit of a deponent alleging a defence of
justification should be accepted. It is, I think, implicit in this discussion and I think also in both
judgments read as a whole, that no departure from the established rules was being proposed or
indeed applied.’9

6 See 14 Lawsa 3 ed at 164 para 136 and the authorities there cited.
7 Heilbron v Blignaut 1931 WLD 167 at 168-169.
8 Hix Networking Technologies CC v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A).
9 Hix Networking Technologies fn 8 at 399G. The Buthelezi case referred to is Buthelezi v Poorter and Others 1974
(4) SA 831 (W).

[25] Recently, the above analysis was explained by Wallis JA in Herbal Zone v
Infitech Technologies10 in this way:
‘The clarification was to point out that Greenberg J did not hold that the mere ipse dixit of a
respondent would suffice to prevent a court from granting an interdict. What is required is that a
sustainable foundation be laid by way of evidence that a defence such as truth and public interest
or fair comment is available to be pursued by the respondent. It is not sufficient simply to state
that at a trial the respondent will prove that the statements were true and made in the public
interest, or some other defence to a claim for defamation, without providing a factual basis
therefor.’

[26] The high court was thus incorrect to hold that a claim for defamation by way
of application for an interdict (as opposed to an action in which a defendant has the
benefit of the issues defined in the pleadings, discovery, further particulars and
cross-examination), is a new phenomenon in our law, and is inappropriate and
undesirable. Most recently, in EFF v Manuel,11 this Court affirmed the
appropriateness of the remedy of an interdict as follows:
‘There is, of course, no problem with persons seeking an interdict, interim or final, against the
publication of defamatory statements proceeding by way of motion proceedings, on an urgent
basis, if necessary. If they satisfy the threshold requirements for that kind of order, they would
obtain instant, though not necessarily complete, relief. There is precedent for this in the well-
known case of Buthelezi v Poorter, where an interdict was granted urgently in relation to an
egregious piece of character assassination. Notably, however, the question of damages was dealt
with separately.’12

[27] Damages for defamation however, may not be claimed in motion
proceedings. It appears that the appellant followed the approach in EFF v Manuel,
in which the applicant, Mr Trevor Manuel, a former MP and Minister of Finance

10 Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd and Others [2017] ZASCA 8; [2017] 2 All SA 347 (SCA)
para 38.
11 EFF and Others v Manuel [2020] ZASCA 172; [2021] 1 All SA 623 (SCA); 2021 (3) SA 425 (SCA).
12 EFF v Manuel fn 11 para 111, footnotes omitted.

of this country, obtained a declaratory order in the High Court, Johannesburg, that
certain allegations published by the EFF concerning him were defamatory, together
with an order that the EFF pay damages in the sum of R500 000. The High Court
refused leave to appeal.

[28] This Court referred the EFF’s application for leave to appeal to it for oral
argument. At that hearing it dealt with all the issues on their merits, in the context
of assessing the prospects of success. It refused leave against the order declaring
that the allegations concerning Mr Manuel were defamatory and false, and that
their publication was unlawful. However, it granted leave and simultaneously
upheld with costs, an appeal against the orders directing the respondents to publish
a retraction and apology, and to pay the applicant damages in an amount of
R500 000. These issues were remitted for evidence in the High Court.

[29] This Court held that motion proceedings ‘are particularly unsuited to the
prosecution of claims for unliquidated damages, whether in relation to defamation
or otherwise’.13 Its reasons, tersely stated, were these:
‘In contested cases, following on the close of pleadings, evidence is led in an attempt to justify
the amount claimed. The defendant is entitled to challenge that evidence and present
countervailing evidence. How else would a court be able to determine an appropriate award?
Relevant evidence has to be presented and fully explored. The factors to be considered by a trial
court in determining an appropriate award include: the character and status of the plaintiff; the
extent of the defamatory publication; its envisaged and actual impact on the plaintiff; and the
subsequent conduct of the person who made the defamatory statement, including his or her
efforts, if any, to make amends after the publication. This list is not exhaustive.’14

13 EFF v Manuel fn 11 para 105. In fn 83 of the judgment this Court noted the approach of the high court quoted in
paragraph 17 above.
14 EFF v Manuel fn 11 para 96, footnotes omitted.

[30] The appellant did not persist in his claim for damages of R1 million and no
more need be said about it. The appellant also abandoned his claims for a retraction
and apology and an interdict against further publication.

Did the appellant make out a case for an interdict?
[31] The high court found that the appellant had demonstrated a clear right to his
good name and reputation and that the Facebook post was defamatory, ie it was
likely to injure the appellant’s reputation by lowering him in the estimation of right-
thinking members of society.15 That being so, it is presumed that publication of the
Facebook post was both wrongful and intentional.16 The onus was thus upon the
respondent to raise and establish a defence to rebut either wrongfulness or
intention.17

[32] As stated earlier, the respondent opposed the application in person in the
high court. This is how he described his defence:
‘My prayer to the honourable High Court is that:
a.
The court must declare that there is no ground or basis [for a] defamation order.
b.
The published statement [should] not be declared defamatory as the respondent has made
the remarks in the public interest and from [a] privileged position.’

[33] The publication of a defamatory statement which is true, provided that the
publication is in the public interest, is not wrongful.18 A defendant relying on this
defence must plead and prove that the defamatory statement is substantially true
and was published in the public interest.19

15 Lawsa fn 6 at 134 para 111. Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice
Centre as amici curiae) [2011] ZACC 4; 2011 (3) SA 274 (CC) para 89.
16 Lawsa ibid.
17 Borgin v De Villiers [1980] 2 All SA 261 (A); 1980 (3) SA 556 (A) at 571F; National Media Ltd v Bogoshi [1998]
4 All SA 347 (SCA) at 364; Khumalo v Holomisa 2002 (5) SA 401 (CC) para 18.
18 Lawsa fn 6 at 151 para 124; Modiri v Minister of Safety and Security [2011] ZASCA 153; 2011 (6) SA 370;
[2012] 1 All SA 154 (SCA) para 20.
19 Lawsa fn 18 para 124.

[34] Thus, the central question that the high court had to decide was whether the
respondent had established a sustainable foundation by way of evidence that the
defence of truth and public interest (or fair comment or the absence of animus
iniuriandi), was available to be pursued.20 Put simply, did the respondent produce
evidence sufficient to establish a defence of truth and public interest, or that he
acted without animus injuriandi?

[35] Counsel for the appellant submitted that the high court had ignored the prima
facie burden that an applicant bears in defamation cases and ‘imposed a false
burden on the appellant to pre-emptively and conclusively disprove allegations that
needed to be proved by the respondent’. The appellant, so it was contended, had
presented ‘strong and indisputable facts’ whilst the respondent failed to establish a
sufficient factual basis to overcome a defamation interdict. Simply stated, the
respondent, like the appellants in EFF v Manuel, had not put up any facts to justify
his defamatory statements. It was further contended that the high court had
misdirected itself by having regard to the respondent’s motives in raising the issues
contained in the Facebook post; and in grounding the respondent’s opposition to
the application in freedom of speech.

[36] Two preliminary points are required to be made at the outset. The first is that
inasmuch as the appellant sought an interdict declaring that the statements
contained in the Facebook post were defamatory, a reasonable or right-thinking
person would read the Facebook post in context and as a whole. In Demmers v
Wyllie,21 Muller JA stated the principle thus:
‘From the above it is clear, I think, that the words “reasonable person” or “reasonable man”
referred to in the decisions cited is a person who gives a reasonable meaning to the words used

20 Herbal Zone (Pty) Ltd and Others v Infitech Technologies (Pty) Ltd and Others fn 10 para 38; Mohamed v Jassiem
1996 (1) SA 673 (A) at 709H-I; Le Roux v Dey fn 15 para 85.
21 Demmers v Wyllie [1980] 1 All SA 391 (A), 1980 (1) SA 835 (A) at 842H.

within the context of the document as a whole and excludes a person who is prepared to give a
meaning to those words which cannot reasonably be attributed thereto.’

[37] The second is that on its facts, this case is entirely distinguishable from EFF
v Manuel. There, the EFF published a statement alleging that the process of
selecting the Commissioner of the South African Revenue Service (the
Commissioner), chaired by Mr Manuel was ‘patently nepotistic, and corrupt’. Mr
Manuel alleged that the sting of the statement was that he had conducted a corrupt,
unlawful and clandestine process in the selection of the Commissioner, who was
said to be a relative and close associate. These statements, he said, cast aspersions
on his character, were false and could not be justified. The EFF’s counsel accepted
that the statement was defamatory.22

[38] The EFF’s defence was that the statement that Mr Manuel was related to the
Commissioner, which had been disclosed to it by a confidential source, was
substantially true, was reasonable in the circumstances and was also fair comment.
The defence of truth and public interest failed for the simple reason that the
foundation for the defamatory statement – that Mr Manuel was related to the
Commissioner and that they were business associates and companions – was
untrue. The EFF had made no attempt to refute Mr Manuel’s statements to the
contrary.23 The defence of fair comment that the appointment process was
nepotistic and corrupt failed for the same reason: it was based on the allegation that
the Commissioner was Mr Manuel’s relative, business associate and companion.24

[39] By contrast, in this case the respondent laid a supportable foundation that
the defence of truth and public interest was available to be pursued. To begin with,

22 EFF v Manuel fn 11 para 35.
23 EFF v Manuel fn 11 para 35.
24 EFF v Manuel fn 11 para 39.

the statements in the Facebook post did not emanate from an unidentified source.
When the post was published the respondent was a member of the EFF and served
on the CCT – its highest decision-making body. As he put it:
‘The Court will note that I have privileged information because I was sitting in the highest
structure of the EFF and the information could not be manufactured but could be received as
communicated by the applicant himself.’

[40] The statement that the EFF had received VBS funding with the full
knowledge of its leadership illustrates the point. It is clear from the answering
papers that the appellant had disclosed receipt of VBS funding at a meeting of the
CCT. That disclosure and the respondent’s reaction to it was described in the
answering affidavit as follows:
‘Furthermore, the irritation [of the appellant at the Facebook post] was further informed by my
publication of the applicant’s admission to have received the VBS money under the guise of
financing of the revolution since there was no capital nor government that could finance the
revolution and therefore called for collective responsibility, a request that I refused to give into.
(RA 6 Cmsr. Xalisa affidavit).
I further commented that, whilst we appreciate that the CIC [Commander-in-Chief] is taking us
into confidence, it would have been better that we could have been taken into confidence prior
[to] the acquisition of the funds not after, the people of Limpopo had known that the ANC and
its alliance partners as corrupt and have seen the EFF as the bearer [of] hope, but for the EFF to
be mentioned in [a] corruption scandal involving the VBS which had carried the savings of poor
people of Limpopo is unacceptable. As a result of that, our Cardinal pillar number 7 is now on
trial in terms of the public opinion. (Annexure RA 16, applicant admitted in an interview with
Scopa of Daily Maverick of having received donations from VBS & RA 6 Cmsr. Xalisa
affidavit).
I further called for the EFF to consider two options, one to expunge Cardinal Pillar number 7
since we have failed to pass the moral test we have set for the society, or two, to close shop as
we will lose relevance on the stance of corruption in particular to the people of Limpopo.’

[41] The appellant’s counsel sought to make much of the fact that the appellant
had informed journalists that neither he nor the EFF had benefited directly or
indirectly from illicit VBS money. But that misses the point and ignores the
evidence. First, could the respondent’s version quoted above have been rejected on
the papers as being patently implausible, far-fetched or clearly untenable?25 I think
not. It shows that (a) the appellant had disclosed his receipt of VBS funds at a
meeting of the CCT; (b) when the disclosure was made, and before publication of
the Facebook post, it was already known that VBS had corruptly misappropriated
the funds of poor people in Limpopo; (c) the money was received ‘under the guise
of financing the revolution’; (d) the respondent refused to accept responsibility for
that decision and had taken the view that the appellant should not have disclosed
receipt of VBS funds only after the fact; and (e) the EFF had failed the moral test
that it had set for itself and society.

[42] Second, the respondent’s version was confirmed by Mr Zolile Rodger
Xalisa, a member of the EFF and MP who also served on the CCT and the War
Council (the body responsible for the execution of decisions of the CCT). In a
handwritten affidavit he said:
‘On the 05-06 February 2019 the CCT convened its ordinary meeting of the term. The President
and the CIC of the EFF during the political overview 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.
Then . . . the President 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. After this . . . CCT members were invited to speak on the

25 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C. The rule was
crisply stated by Schutz JA in Simelane NO and Others v Seven-Eleven Corporation SA (Pty) Ltd and Another
[2002] ZASCA 141; [2001-2002] CPLR 13; [2003] 1 All SA 82 (SCA) para 10, as follows: ‘[T]he decision must
be based on those facts averred by the applicant which are admitted by the respondent, together with the facts averred
by the respondent.’

impact. All CCT members were present and some are MPCs, MPs and councillors could also
attest [and were] given [an] opportunity.’

[43] Mr Xalisa’s affidavit makes three things clear. First, the appellant, when he
received funding from VBS, knew that VBS was ‘the subject of corruption’.
Otherwise viewed, there would have been no need ‘to devise other means’ to get
the money, when according to Mr Xalisa the EFF had two bank accounts: one at
First National Bank and the other at Standard Bank. Second, this is underscored by
the appellant’s utterance, which is not commonplace: ‘sometimes you must kiss
dogs or the devil to get money’. Third, the appellant apparently had no difficultly
in accepting funds that were the subject of corruption as an opportunity for the EFF
to be in government.

[44] Therefore, the conclusion in the minority judgment that the appellant’s
admission of the receipt of VBS funds was not made at a time when VBS was the
subject of scandal or known to be fleecing its depositors, in my respectful opinion,
is at odds with the evidence – a fortiori when the appellant denied that the meeting
took place at all. On this issue he said that the respondent’s version was ‘based on
hearsay evidence’ and lacked specificity. Mr Xalisa’s evidence (an affidavit sworn
to at a police station) was brushed aside on the basis that it ‘purports to be an
affidavit’; and that ‘in the absence of a confirmatory affidavit by the deponent’,
inexplicably, fell to be struck out. All of this, of course, was no answer to the facts
set up by the respondent that formed the foundation of a defence of truth and public
interest.

[45] What is more, statements that the EFF had in fact received VBS funding and
that the appellant had personally benefited from those funds, were already in the
public domain. It will be recalled that the Facebook post was published on 5 April
2019. The respondent annexed an email to the answering affidavit, which the

appellant had sent to the media on 19 November 2018 in response to questions by
Scorpio, Daily Maverick. It reads inter alia:
‘Questions to Mr Malema:
6. During the press conference of 16 October 2018, I asked very specifically if you or the EFF
have ever benefited directly or indirectly and in any shape or form from the illicit VBS money.
You denied the allegation. I have now proved that you lied. Your comment?
I don’t lie Sesi, I stand by what I said in the press conference.
7. During the press conference of 16 October 2018 I asked whether you or the EFF ever received
money from Sgameka or Mahuna.26 At first you denied the allegation, and later backtracked by
stating that you may have received “donations”. I have now proved that you lied. Your comment?
I stand by what I said in the press conference, I don’t lie Sesi.’

[46] Concerning this exchange, two observations are necessary. First, and
tellingly, the appellant has not sought declaratory relief nor damages against the
print or electronic media for any injury to his good name or reputation, arising from
his or the EFF’s receipt of funds from VBS bank. And this, when on 21 November
2018, the Daily Maverick published an article on its Scorpio website (also annexed
to the answering affidavit) entitled, ‘VBS bank heist: EFF’s family ties and
moneyed connections’, after receiving the appellant’s email of 19 November 2018.
It reads in relevant part:
‘EFF President Julius Malema and his “corruption busting” political party directly benefited from
the VBS Mutual bank heist, a Scorpio investigation has found. Scorpio traced the flow of illicit
VBS funds, earmarked for a property in the affluent Johannesburg suburb of Sandown, through
three fronts that also dished out money to the EFF. Julius Malema stayed for years at the property
which is now registered as an EFF asset. Over R1.8 million of the same illicit VBS funds were
used to prop up the EFF, Scorpio has found. Stripped to its essence, a company officially owned
by Floyd Shivambu’s brother made questionable payments to a company owned by Malema’s

26 It has been reported that Mahuna Investments received significant funds from VBS (some R6 million) that the
appellant allegedly used as a slush fund to pay personal expenses such as designer clothing and school expenses to
maintain an affluent lifestyle. See Pauli van Wyk ‘VBS Theft, Money Laundering & Life’s Little Luxuries: Julius
Malema’s time of spending dangerously’ 8 September 2019 Daily Maverick Scorpio, available at
https://www.dailymaverick.co.za/article/2019-09-08-vbs-theft-money-laundering-lifes-little-luxuries-julius
malemas-time-of-spending-dangerously/.

cousin. Both these companies operated like slush funds which dispersed money to where it was
needed. This is a story of how the constituency Malema claims to fight for – the poor, the young
and vulnerable – was robbed to feed the EFF leader’s private and political interests.’

[47] The appellant did not deny the statements in this article in reply. He merely
responded that the article ‘falls to be struck out on account of the fact that it is
irrelevant to these proceedings’. It was highly relevant – the appellant sought an
interdict on the basis that his admission to taking VBS money in a meeting of the
CCT, was defamatory.

[48] Second, the mere fact that the respondent had access to the email of 19
November 2018, reinforces his claim that he had access to ‘privileged information’
because he served on the CCT. There is nothing in the record to gainsay this. In
this regard, I respectfully disagree with the statement in the minority judgment that
the email of 19 November 2018 was a public document which the respondent
attached to his affidavit. That was not the appellant’s evidence. On the contrary,
his statement: ‘It is curious that the respondent has come into possession of this e-
mail when he is not a recipient thereof’, shows that the appellant was of the view
that the respondent was not entitled to be in possession of it.

[49] That brings me to the statements in the Facebook post that the ‘pair have
made it clear, this is their organisation and all of you have come to join us not the
other way round’, and that costs had been inflated by the EFF’s leadership. When
these statements are considered in the context of the Facebook post as a whole,
they are but examples of a recurring theme: a lack of accountability and abuse of
funds on the part of the leadership of the EFF.

[50] The immediate context of these statements, as is evidenced by the Facebook
post quoted in paragraph 5 above, can be summarised as follows. The EFF received

levies from 61 MPs of not less than R6800 each and 852 councillors contributed at
least R2000 per month to the EFF. It had 1 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 in the EFF
‘under the control, abuse and dictatorship’ of the appellant and Mr Shivambu, who
had made it clear that the EFF was their organisation which members had joined,
not the other way around. The Treasurer General of the EFF, the respondent said,
‘only administers petty cash’. Since 2014 no financial report has been tabled before
the CCT. When the respondent and others questioned this, they were chastised,
treated with disdain and threatened with removal from Parliament. As a result, in
the respondent’s words, they had to ‘think with [their] stomachs’, rather than
holding the executive of the EFF accountable.

[51] What then follows is the respondent’s statement about the inflation of costs.
The context speaks for itself:
‘The Parliament money of the EFF cannot be cashed in terms of treasury rules, but the pair would
use Training Providers who would inflate costs [by] 250% so that they can run away with 150%
of the inflated cost, in the absence of financial reports from the pair, we would be forced to
conclude as such.27 These service providers are in the form of alcohol party retailers, lawyers,
security (Defenders of Revolution and Body and logistics service providers).28 No report
whatsoever.’
[52] The answering affidavit states that the appellant refused to disclose the
EFF’s financial state of health to its leadership, or to be held accountable for the
administration of EEF funds. The respondent said:
‘The applicant has refused to disclose EFF’s financial state of health from the 1st April 2014 to
31 March 2019. . . . The applicant is not honest when he says, he is ready to open the financial

27 Emphasis added.
28 This is an unknown entity to the Court. Presumably it is a reference to the private security services hired by the
EFF.

books of the EFF to journalists when he has not been able to open the EFF financial books to
EFF national leadership as provided by the constitution since 2014 to 2019/03/30.
As the Senior leader of the Economic Freedom Fighters serving in the national leadership and
Member of Parliament, I have the privileged information in terms of the sources of funds of the
Economic Freedom Fighters and [am] further alert [to] the constitutional obligation at least in
the organisation in terms of democratic use of the finances of the organisation. It is my
submission that the EFF funds are used in terms of the wisdom of the applicant and those closer
to him to the exclusion of the collective of the national leadership as dictated by the Constitution.
The provisions of the constitution are not complied with.’

[53] The respondent cited three instances in March 2017, May 2017 and
November 2018 respectively, where officials of the EFF had appeared before its
NDC on charges of lack of financial accountability. The respondent presided over
those hearings and attached the findings of the NDC. The sanctions imposed were
expulsion from the EFF and suspension of membership of the organisation for a
period of at least three years. He went on to say:
‘I am raising the above 3 incidents . . . to demonstrate the extent to which I am privileged to
understand and know the information and the extent to which the EFF as the organisation is
intolerant and strict [with regard] to . . . any conduct that is inconsistent with its policies in
handling of the finances. . . . [T]he lack of financial accountability from the applicant and other
officials should be deemed serious as it was deemed to the Northern Cape Provincial leaders that
were expelled.’

[54] Then, under the heading ‘PUBLIC INTEREST’ in the answering affidavit,
the respondent said this:
‘The applicant is not an ordinary citizen but a President and the Commander-in-Chief of the third
biggest political party in South Africa, a Member of Parliament and the leader of the opposition
and a champion of anti-corruption. The applicant cannot demand accountability from the former
State President of South Africa on the public funds mismanagement resulting in failure to be
held accountable yet the applicant refuses to be held accountable for the organizational funds
coming from the state. . . .

. . . [P]ublic representatives that are presiding over organizations that receive state funds have an
obligation to remain accountable to the organisation they lead and the state equally. The public
has the right to know that the applicant as the public representative does not account to the
organization about the use of organizational funds and therefore is in violation of the EFF
Constitution.’

[55] Again, the respondent’s statements about the lack of accountability and
abuse of funds by the leadership of the EFF were confirmed by Mr Xalisa. He said:
‘I further wish to state under oath that the EFF is receiving money from Parliament and 9
legislatures, Party levies from 852 councillors, R6800 from 61 MPs and MPL’s including R10
membership for an EFF member but has never given a financial report in the CCT since we were
elected [in] 2014. . .  The money that is used is not disbursed by the CCT but by President Julius
and the Deputy President as Senior Authorities of the organisation.’

[56] The facts in the Facebook post referred to in paragraphs 49 to 51 and 54
above, and those relating to the appellant’s admission of his receipt of VBS funds
when it was the subject of corruption, would never have been known to outsiders.
Therefore, the respondent’s position as an insider serving on the CCT, and the
evidence he presented to demonstrate that the defence of truth and public interest
was available to him, cannot be over-emphasised.

[57] What remains is the allegation that in the absence of financial reports, the
respondent would be forced to conclude that the leaders of the EFF had inflated the
costs of training providers so that they could pocket the difference. When this
statement is read in the context of the Facebook post as a whole, it means no more
than this. In keeping with the ‘control, abuse and dictatorship’, and lack of
accountability regarding the funds of the EFF by its leaders, and in the absence of
financial reports from them, the inference is compelling that the costs of service
providers, such as alcohol retailers, lawyers, security and logistics service
providers, were inflated. Indeed, the Facebook post says so.

[58] In addition, the respondent put up sufficient facts to show that on this score
also, the defence of truth and public interest, and fair comment,29 could be
mounted. He immediately went on to say:
‘The recent function of the EFF, GALA dinner which was held in Pretoria after the Soshanguve
Rally. The service provider of beverages, both alcohol and soft drinks, told us [in] no uncertain
terms that a bottle of Tanqueray with a normal price of R200.00 was sold for R800.00. On
enquiry we were told that it was [the appellant's] instruction that prices must be inflated, in the
result we could not drink the bottle.’

[59] On the facts, the respondent demonstrated that there was a dinner in Pretoria
after a rally of the EFF; that on enquiry he was told that the price of alcohol had
been inflated; that he was not alone when the enquiry was made; that they could
not buy the alcohol because of its exorbitant price; and that there are persons who
would be able to verify his version. Even if the respondent’s statement as to who
gave the instruction that the price of alcohol should be inflated, that alone was not
defamatory. His evidence of inflated prices at an EFF event was first hand. In these
circumstances, it cannot be said that the respondent’s version is far-fetched, clearly
untenable or palpably implausible that it could be rejected as false merely on the
papers,30 which warranted the grant of a final interdict.

[60]  Neither was the respondent’s statement that the price of alcohol had been
inflated, untrue: the very reason why the alcohol was not bought. The appellant’s
reply once more, was a bald denial. He said that the statement lacked specifics and
was hearsay. This, when the facts show that the costs of service providers and the
manner in which EFF funds are expended lie purely within the appellant’s
knowledge. Despite this, he did not produce a single document to show that those
costs had not been inflated, or to rebut the allegation that there were no financial

29 See in this regard EFF v Manuel fn 11 paras 38 and 39.
30 Plascon-Evans fn 25.

reports tabled since 2014. Thus, the respondent’s inability to cite further examples
of the inflation of costs by service providers was potentially at least a product of
the secrecy regarding the accounts of the EEF, which was not rebutted. In the
circumstances, in my opinion, and apart from the facts stated in paragraphs 58 and
59 above, the inference drawn by the respondent that costs had been inflated was a
readily apparent and plausible one.

[61] In addition, the respondent, in his capacity as a senior leader of the EFF and
an MP, had personally raised all the issues which he had published in the Facebook
post, with the appellant. This too, was denied and dismissed with an allegation that
the appellant should have raised the issues within the structures of the EFF. The
appellant’s answer to the respondent’s claim that he had not produced a financial
report in the CCT since 2014, which was confirmed by Mr Xalisa, was also a bald
denial.

[62]  As to the hearsay statement by the service provider, it must be borne in mind
that the respondent was an unrepresented litigant in person, who is not legally
qualified. The claim he was called upon to answer was a not a simple legal matter,
as EFF v Manuel and this case illustrates. In his affidavit, the respondent said:
‘2. I am a 39 year old male currently employed and [a] student at Nelson Mandela University, I
will be representing myself in this case.
3. I pray that the Honourable High Court bear with me.’

[63] This, of course, is not to say that the respondent was entitled to any better
treatment than a represented party. That said, the advice to judges when dealing
with litigants in person, referred to most recently by the UK Supreme Court in
Serafin v Malkiewicz,31 is instructive:

31 Serafin v Malkiewicz and others [2020] UKSC 23 para 46. The extract is from the Equal Treatment Bench Book,
issued by the Judicial College which provides training for judges in England and Wales.

‘Litigants in person may be stressed and worried: they are operating in an alien environment in
what is for them effectively a foreign language. They are trying to grasp concepts of law and
procedure about which they may have no knowledge. They may well be experiencing feelings of
fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing
against a represented party.’

[64] The defence of truth and public interest is founded on the recognition of a
right to publish a defamatory statement which is true, where the publication is in
the public interest.32 The facts put up by the respondent demonstrated that the
defence was available to be pursued. These facts comprise not only direct
information placed before the court, but material showing other information not in
his control but potentially available at a trial in due course, such as the EFF’s
financial records and documents relating to receipt of VBS funds. All these factors
must be weighed up in order to decide whether there is a dispute of fact regarding
the existence of a defence. Since Heilbron,33 the position has been that a final
interdict for defamation cannot be granted unless a respondent has no defence.

[65] Further, as this Court has affirmed in Herbal Zone,34 and Tau v Mashaba,35
an interdict is always directed at future conduct. If there is no risk of future re-
publication by the respondent – as the appellant seems to have accepted – an
interdict will not be granted, because there is nothing left to restrain and no risk of
future injury. The high court rightly concluded that the appellant failed to make out
a case for this relief.

[66] In the result the appeal is dismissed.

32 See Lawsa fn 18.
33 Heilbron fn 7.
34 Herbal Zone fn 10 para 36.
35 Tau v Mashaba and Others [2020] ZASCA 26; 2020 (5) SA 135 (SCA) para 26.

__________________

A SCHIPPERS

JUDGE OF APPEAL
Rogers AJA:
[67] I have read the judgment of my colleague Schippers JA (the first judgment),
which sets out the relevant factual background. I shall adopt the abbreviations used
in the first judgment. I agree with what is said in the first judgment (paras 22-30)
about bringing defamation claims on motion. I also agree with the first judgment’s
conclusion (paras 49-56) that the appellant failed on the papers to show that the
respondent acted unlawfully by publishing statements that the appellant’s conduct,
as leader of the EFF, was undemocratic and unlawful (in the sense of behaviour
inconsistent with the EFF’s constitution). Contrary to the first judgment, however,
I consider that the respondent acted unlawfully by publishing statements conveying
that the appellant was corrupt, stole money and was of base moral character.

[68] At the hearing of the appeal, counsel for the appellant said that if the appeal
succeeded he pressed only for the relief claimed in paras 1 and 2 of the notice of
motion. In those paragraphs the appellant prayed for orders declaring that the
statements made by the respondent in the Facebook post published on 5 April 2019
are defamatory and unlawful. Para 3 sought the removal of the offending
statements from the respondent’s social media accounts, but it is common cause
that this has occurred. The appellant does not persist with his claims in para 4 for
a retraction and apology; in para 5 for an interdict against further publication; or in
para 6 for damages.
[69] The relief in paras 1 and 2 is directed at statements contained in the Facebook
post. Although the appellant made allegations about later statements by the
respondent (these include those quoted in para 12 of the first judgment), these were
not the subject of the relief claimed, though they were relevant, at the time the

proceedings were launched, to the question of an apprehension of continuing
unlawful conduct.

[70] In para 66 of the founding affidavit the appellant alleged that the defamatory
statements were understood to mean and imply (a) that he is corrupt; (b) that he is
stealing money; (c) that he conducts himself in an unlawful and undemocratic
manner; and (d) that he is of base moral character. Meaning (d) is a conclusion
from meanings (a) and (b). Since the appellant only sought relief in connection
with statements contained in the Facebook post, I read para 66 to be his case as to
the defamatory meaning of statements contained in the Facebook post. In this
respect, I differ from the first judgment, which (in para 12) treats para 66 of the
founding affidavit as referring to statements made by the respondent in a
subsequent media interview, though perhaps not much turns on the distinction.

[71] The respondent did not deny that the Facebook post had the meanings
alleged in para 66. Although the appellant should, in his founding affidavit, have
identified the precise passages in the Facebook post which conveyed these
meanings, no point was taken about inadequate pleading, either by the respondent
or by the high court or in this Court. The Facebook post must be read as a whole.
So read, the passages which would have been understood by the ordinary reader as
meaning that the appellant is corrupt and steals money are readily identifiable:
(a)  The post identified ‘the pair’ as the appellant and Mr Floyd Shivambu.
(b)  The post’s heading was: ‘EFF remains a financial fishing net for the pair . . .’.
(c)  In the post, the respondent, after stating that the ANC leadership was guilty of
corruption, said that no one should have ‘a license to climb on the band wagon in
the name of left working class politics to commit corruption and hide behind the
slogans of Economic Freedom for dejected African masses of our people’.

(d)  After identifying various sources of EFF funding, the respondent alleged that
‘[a]ll these moneys are centralized in the EFF under the control, abuse and
dictatorship of Julius Malema and Floyd Shivambu’.
(e)  Among the abuses alleged by the respondent was the following: ‘The
parliament money of the EFF cannot be cashed in terms of treasury rules, but the
pair would use Training Providers who would inflate costs 250% so that they can
run away with 150% of the inflated cost, in the absence of financial reports from
the pair, we would be forced to conclude as such’. Such service providers were
said to include ‘alcohol party retailers, lawyers [and] security’.
(f)  The respondent referred to a letter written by Dr Mbuyiseni Ndlozi to party
officials ‘complaining about the lifestyle of Julius Malema and how he abuse the
EFF funds’.
(g)  With reference to the ‘VBS saga’, the respondent claimed that the appellant
had, at the most recent meeting of the party’s CCT, ‘admitted to EFF taking VBS
money to finance the revolution’. The respondent stated that the party had ‘failed
to pass the test of morality we have set for the society’: ‘If we fail to pass the test
of corruption, how are you going to be trusted to nationalize mines and put under
your regime state custodianship because instead of committing to equitable
redistribution you will squander the funds’. He followed this with another
rhetorical question: ‘How are you going to build state capacity when you are
engaged into activities that weaken the state through engagement into corruption?
How will people trust you with freeing this country from corruption?’.
(h)  The respondent stated that he had refused to take collective responsibility on
VBS. He remained poor, despite having been in parliament for four years: ‘The
pair has milked every cent I worked for in parliament . . .’.
(i)  The respondent declared that among the reasons for which he left the ANC was
‘the dispensation of patronage and corruption’ and that it was ‘hypocritical to stand
for it in the EFF’.

(j)  He concluded his post thus (capitalisation is the original):
‘You commit to an open and corrupt free society and instead you are found at the centre of
corruption. In your analysis kindly JUXTAPOSE THE SUBJECTIVE REALITY OF
EMOTIONALISM AND THE OBJECTIVE REALITY OF A PARTY ENGAGED IN CASH
HEIST OF THE STATE MONEY.
Bring it on, insult me.
Bloody crooks.’

[72] In defamation proceedings, the delictual element of fault is styled animus
iniuriandi. Proof of animus iniuriandi is a necessary element of a claim for
damages. Where, however, an injured party seeks an interdict, he does not need to
prove fault, and this applies also to interdicts alleging defamation and injurious
falsehood.36 It is thus irrelevant whether or not the respondent honestly believed
that he was entitled to publish the defamatory material. The same is true of the
declaratory relief aimed at establishing that the statements in question were
defamatory and that their publication was unlawful.

[73] We are also not dealing, in this case, with an anticipatory interdict in respect
of defamatory material which has not yet been published (cf Herbal Zone v Infitech
Technologies).37 The Facebook post was published, and the question is whether it
was lawfully published.

[74] Since the Facebook post was defamatory of the appellant, the onus rested on
the respondent to neutralise the presumption of unlawfulness by establishing a
defence going to lawfulness. The only one which need detain us is that the
publication was true and in the public interest. Although the onus rested on the

36 See Hawker v Life Offices Association of South Africa and Another 1987 (3) SA 777 (C) at 780I-J;  Elida Gibbs
(Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) at 353F-355I; Democratic Alliance v African
National Congress and Another [2015] ZACC 1; 2015 (2) SA 232 (CC) para 52 (minority) and para 159 (majority);
Nativa (Pty) Limited v Austell Laboratories (Pty) Limited [2020] ZASCA 11; 2020 (5) SA 452 (SCA) para 33.
37 Fn 10 above, para 26.

respondent to raise some such defence, this did not alter the operation of the
Plascon-Evans rule.38 If there was a material dispute of fact as to whether or not
the published statements were true and in the public interest, the dispute of fact had
to be resolved in the respondent’s favour, meaning that the appellant would not
have been entitled to the declaratory relief he sought.

[75] In regard to interdicts against the publication of defamatory material, we
were referred to the judgment of Greenberg J in Heilbron v Blignaut.39 The learned
judge said that there were no features peculiar to defamation. The law to be applied
‘is the law which would apply to any apprehended injury’.40 As this Court said in
Hix Networking Technologies,41 Heilbron did not signal any departure from
established rules. Hix Networking Technologies was a case about an interim
interdict. Particularly in the constitutional era, the elements of balance of
convenience and discretion are where a court will factor in the right to freedom of
speech.42 Where one is dealing with a final interdict or declaratory relief, however,
the focus is on whether the applicant has established his right and its unlawful
invasion. Since we were not asked to develop the common law, defamation does
not in this respect stand on a different footing from other allegedly unlawful
conduct, though naturally the Constitution may affect the assessment of elements
of conventional defences, such as, for example, whether publication of particular
allegations was in the public interest.

[76] This Court’s judgment in Herbal Zone cannot be read as altering, in relation
to defamation, the ordinary law of interdicts. This Court emphasised, as had already
been made clear in Hix Networking Technologies, that Heilbron was not authority

38 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634-635.
39 Fn 7 above.
40 At 169.
41 Fn 8 above at 399B-H.
42 Hix Network Technologies at 401D-402F.

for the proposition that in an application for an order to interdict the publication of
defamatory material the respondent’s mere ipse dixit suffices. Wallis JA
explained:43
‘What is required is that a sustainable foundation be laid by way of evidence that a defence such
as truth and public interest or fair comment is available to be pursued by the respondent. It is not
sufficient simply to state that at a trial the respondent will prove that the statements were true
and made in the public interest, or some other defence to a claim for defamation, without
providing a factual basis therefor.’

[77] In Herbal Zone, the appellant had, by admissible evidence, made out the case
that its allegation of counterfeiting against the first respondent was true and in the
public interest. Wallis JA said that it was unnecessary to determine whether the
appellant’s defence would succeed at trial; the appellant had raised ‘a colourable
defence’ and laid a ‘factual basis … for it that cannot be rejected out of hand’.44
By using the expression ‘colourable defence’, Wallis JA was not signifying
anything less than admissible evidence which, if true, made out the defence. His
concluding words (‘that cannot be rejected out of hand’) shows that he had in mind
evidence that passed the Plascon-Evans test. ‘Colourable’ here means ‘appearing
to be correct or justified’.
[78] Since truth and public benefit is obviously a good defence in law, the
question for present purposes is whether the respondent laid a factual foundation
for it by way of evidence. In the context of judicial proceedings, evidence means
admissible evidence. While some leeway could properly be allowed to the
respondent as a litigant in person, departure from accepted principles should not be
allowed to prejudice the appellant. The rules of evidence exist to ensure fair play
and reliable outcomes. While one can readily accept, as stated in the first judgment,
that the respondent was an insider who might have had access to information not

43 Herbal Zone para 38.
44 Para 39.

available to the general public, the question remains whether, by virtue of his inside
position, he had evidence to support the defamatory allegations and, if so, whether
he adduced that evidence in the proceedings before the high court. One cannot
assume that his defamatory statements are true just because he was an insider.

[79] What admissible evidence did the respondent put up in support of his
allegation that the appellant was corrupt, stole money and was of base moral
character? The respondent claimed in his answering affidavit to have been present
at a meeting, held in early February 2019, where the appellant admitted to having
received money from VBS to fund the revolution. In support of this allegation, he
also filed an affidavit from Mr Zolile Xalisa who swore that he was present at the
meeting and that the appellant, in the course of giving a political overview,
admitted that the EFF had received donations from VBS. In context, the
respondent’s allegations convey that the appellant was instrumental in allowing the
EFF to receive donations from VBS in order to finance its political activities. The
respondent stated in his affidavit that on receiving this information he had observed
that while he appreciated the fact that the appellant was taking them into his
confidence, it would have been better for this to have happened before rather than
after receipt of the money.
[80] Although these allegations were denied by the appellant in his replying
affidavit, they cannot, on the Plascon-Evans approach, be rejected out of hand. If
true, they support the respondent’s complaint of the appellant’s lack of financial
accountability and a complaint that the VBS scandal tarnished the EFF by
association. But they fall well short of making the case that the appellant is corrupt
and steals money. Although VBS later became the subject of scandal, the
respondent does not allege that the donations, the receipt of which the appellant
allegedly admitted, were made at a time when VBS was known to be fleecing its

depositors or that the appellant admitted taking the money for himself rather than
for the EFF.

[81] Publicly available information, including court judgments, reveal that in
February 2018 VBS experienced a liquidity crisis as a result of withdrawals of
deposits. This may have been precipitated by a circular which National Treasury
sent to municipalities in August 2017 stating that they were not permitted by the
Local Government: Municipal Finance Management Act 56 of 2003 to place
deposits with mutual banks such as VBS. The liquidity crisis led to VBS being
placed under curatorship on 11 March 2018 at the instance of the South African
Reserve Bank. By late July 2018 its curator had formed the view that certain of
VBS’ officers had, as from 2017, embarked on a massive fraud which continued
until the curatorship order.45 On 5 October 2018 the South African Reserve Bank
published a report by an advocate, Terry Motau SC, with the title ‘The Great Bank
Heist’, which set out Mr Motau’s findings of malfeasance at VBS.46 With no
prospect of being restored to well-being, VBS was placed in final liquidation on
13 November 2018.
[82] I mention this information not because it is admissible evidence in the
present proceedings but to show that one needs to be cautious, in the absence of
clear evidence, about inferring that an admission made by the appellant in February
2019 that the EFF had received donations from VBS meant that the appellant had
taken donations from a bank at a time when he knew it to be engaged in looting. In
fact, since VBS’ curator and liquidator would not have caused the bank to make
donations to the EFF or the appellant, any such donations must have predated 11

45 Cf VBS Mutual Bank (In Liquidation) v Ramavhunga and Others [2018] ZAGPJHC 516 (3 August 2018) para
13. (The reference in the case title to VBS being in liquidation is an error – it was still under curatorship.)
46 Some of the history in this regard is recorded in Msiza v Motau NO and Another [2020] ZAGPPHC 366; 2020
(6) SA 604 (GP).

March 2018, ie at a time, so it seems, that there was no public scandal surrounding
VBS.

[83] In the first judgment it is stated, at para 41, to be beside the point that the
respondent failed to allege or provide evidence that the appellant personally
benefited from the VBS donations. In my respectful view, however, evidence to
this effect, together with evidence that the donations were received at a time when
VBS was known to be engaged in widespread theft from vulnerable depositors,
was crucial if the respondent wished to establish the truth of statements conveying
that the appellant was corrupt or a thief.

[84] In his answering affidavit the respondent claimed that the appellant had
admitted to a Scorpio journalist, Ms Pauli van Wyk, that he (or the EFF) had
received donations from VBS. The document he attached in support of this
allegation (being questions posed to the EFF, the answers furnished by Messrs
Malema and Shivambu and Dr Ndlozi, and the journalist’s subsequent article) do
not contain any such admission. (Scorpio is the investigative arm of Daily
Maverick.) To the extent that my colleague considers that the passage he quotes in
para 44 of the first judgment embodies such an admission, I respectfully disagree,
though not much turns on this because there is other evidence (albeit disputed) that
the appellant made such an admission at the CCT meeting of February 2019. I also
disagree, in passing, with the statement in para 48 of the first judgment that the
respondent’s possession of these email exchanges is evidence of his access to
inside information. Ms van Wyk’s Daily Maverick article contained links to
supporting documentation, one such link being the email exchanges between her
and the three EFF functionaries. It was this linked document, ie a linked document
available to the public at large, which the respondent attached to his affidavit.

[85] The respondent alleged in the answering affidavit that it was publicly known
that the appellant had stayed in a house in Sandown, Johannesburg, for more than
three years as from 2012 and that the house ‘has been the subject of investigation
due to the VBS financial illicit flows to the property’. He said that R430 000 had
allegedly been ‘pumped’ into the property from VBS funds. The EFF had later
bought the property (he attached a deed of transfer dated 21 June 2017). The
acquisition of this property had not been reported to the CCT. The EFF’s
spokesperson, Dr Ndlozi, allegedly told the Scorpio journalist, when asked about
the R430 000, that ‘at least the money was not for the purposes of the [EFF],
implying that the funds were pumped for the tenant of the house owned by EFF
under the leadership of [the appellant]’. In this context, the respondent again
referred to the questions posed by the Scorpio journalist and her article.

[86] The question which the journalist posed was: ‘Is the above-mentioned EFF
leadership – along with its national chair – aware that at least R430 000 in illicit
VBS funds were pumped into the property?’ The recorded response from Dr Ndlozi
was: ‘It is not true, at least not for EFF purposes.’ In her article, the journalist
remarked, ‘It is unsure why Ndlozi felt the need to qualify his answer.’ According
to the journalist’s article, the payments totalling R430 000 were made in the
months after the EFF took transfer. Dr Ndlozi’s answer, assuming it to be
accurately recorded, does not show that the appellant is corrupt or a thief. Not even
the journalist drew that conclusion.

[87] Once again, the appellant in his replying affidavit objected to the
admissibility of the Scorpio article. I do not question the value of investigative
journalism, but articles of this kind cannot simply be put up in court proceedings
as evidence of the truth of what the journalist has written. Apart from the fact that
Ms van Wyk did not make an affidavit (there is no evidence that she was asked),

self-evidently the content of the article is not within her personal knowledge.
Understandably, she does not identify all her sources. The documents to which she
refers would, if they were to constitute evidence in court, have to be produced and
properly proved. Production of the article by the respondent constituted double or
triple hearsay.

[88] The respondent alleged in his answering affidavit that the appellant
appointed service providers without being accountable to the CCT and that these
service providers inflated their costs. He claimed that at a recent gala dinner in
Pretoria following a Soshanguve rally, the service provider of the beverages told
them in no uncertain terms that a bottle of Tanqueray with a normal price of R200
was sold for R800 and that ‘[o]n enquiry we were told that it was your instructions
that prices must be inflated, as the result we could not drink the bottle’. Later in his
affidavit the respondent described his informant as the ‘bar lady’.

[89] The occasion on which the respondent queried the Tanqueray price is the
only incident he identified. No other examples of service providers (whether
training providers, as alleged in the Facebook post, or otherwise) inflating their
charges (whether by 250%, as alleged in the Facebook post, or otherwise) were
given. And in relation to the Tanqueray incident, he does not state under oath that
the bar lady told him that the price was inflated so that the appellant could pocket
the difference. In his replying affidavit the appellant objected to the evidence about
the Tanqueray incident. The respondent’s evidence on this score was undoubtedly
hearsay. The respondent did not identify his informant by name. He did not produce
an affidavit by her or say that he had tried to get her evidence. It is not self-evident
that a bar lady could speak reliably about the appellant’s interactions with the
service provider. In the circumstances, the respondent’s allegations about this
incident do not constitute admissible evidence that the appellant instructed the

supplier of beverages to inflate prices or that he did so in order to steal the
difference.

[90] The respondent made allegations that the appellant is undemocratic and
dictatorial in his running of the EFF, that he and Mr Shivambu are not accountable
to the party’s structures in their management of its money, and that he has failed to
produce financial reports to the CCT. Although the appellant denied these
allegations in reply, they must in terms of the Plascon-Evans rule be accepted for
present purposes, but they do not show that the appellant is corrupt or a thief.

[91] The high court referred to the well-known passage from Room Hire Co v
Jeppe Street Mansions47 where Murray AJP identified the main ways in which
disputes of fact arise. The first and clearest instance, he said, was when the
respondent denies all the material allegations made by the applicant’s deponents,
and produces ‘or will produce’ positive evidence by deponents or witnesses to the
contrary. With reference to the words I have placed in quotation marks, Murray
AJP observed that the respondent ‘may have witnesses who are not presently
available or who, though adverse to making an affidavit, would give evidence viva
voce if subpoenaed’. The high court in the present case considered that the
respondent fell into this category: ‘Due to his senior position in the EFF he has
certain information and he says that the statements are true, and given the
opportunity he will prove it. He does not rely on a bare denial or his ipse dixit’.

[92] I disagree. Save for the Tanqueray incident, there was no evidence, not even
hearsay, of occasions when service providers inflated their prices so that the
appellant could steal the difference from the EFF. As to the Tanqueray incident,
the respondent did not say that he knew where the bar lady was or that he had asked

47 Fn 5 above at 1163.

her for an affidavit or that he would be able or wished to obtain her evidence under
subpoena at trial. In regard to the Scorpio article, the respondent did not express
any intention of procuring admissible evidence of the matters stated therein.

[93] I should add that in my respectful view the high court’s reasoning on this
part of the case was also conceptually flawed. The high court considered that the
appellant had made out the first two requirements for a final interdict, namely a
clear right (the appellant’s right to his good name) and injury (the besmirching of
the appellant’s good name). The high court treated the supposed dispute of fact as
going to the question whether the appellant had another satisfactory remedy. That
is incorrect. If the respondent raised a genuine dispute of fact, it was a dispute as
to whether the defamatory material was true and its publication in the public
interest, ie whether the publication was unlawful. Injury, in the delictual sense,
means an unlawful invasion of the claimant’s right.48 If there was a genuine dispute
of fact about whether the publication was true and in the public interest, the
appellant failed to establish the element of injury. If an applicant for a final interdict
does not establish the unlawfulness of the respondent’s conduct, an interdict cannot
be granted,49 and the question of alternative remedies is irrelevant.

[94] Before concluding, I wish to make brief reference to this Court’s recent
judgment in EFF v Manuel,50 since counsel for the appellant placed some reliance
on passages in that case (paras 70 ff) in which this Court criticised the EFF for
having relied on an undisclosed source without investigating the accuracy of the
source’s information. I agree with the first judgment that this case does not assist

48 Bredell v Pienaar 1924 CPD 203 at 209; Perlman v Zoutendyk 1934 CPD 151 at 155. This is the essential meaning
of the Roman Law term iniuria: J C van der Walt (ed J Labuschagne) Principles of Delict 4 ed paras 2, 8 and 72.
49 See, eg, Van Deventer v Ivory Sun Trading 77 (Pty) Ltd [2014] ZASCA 169; [2015] 1 All SA 55 (SCA) paras 27-
28; Liberty Group Limited and Others v Mall Space Management CC t/a Mall Space Management [2019] ZASCA
142; 2020 (1) SA 30 (SCA) para 35.
50 Fn 11 above.

the appellant, though my reasons for that conclusion differ from those expressed
in paras 37-39 of the first judgment.

[95] Manuel, in the passages upon which counsel for the appellant relied, was not
dealing with the question whether the defamatory publication was justified. In that
case the EFF did not seriously contend that its allegations about Mr Manuel were
true. Although a defence of truth and public benefit was raised, this Court gave it
short shrift (para 37). What thereafter engaged this Court’s attention was whether
the EFF had nevertheless acted reasonably in publishing the defamatory statement.
This was treated as being relevant either to a defence of reasonable publication (if
such a defence applied to parties other than the press, a question which this Court
left open) or to a conventional defence by a non-press respondent of an absence of
animus iniuriandi. (In Manuel the complainant was persisting with his claim for
damages, so animus iniuriandi was an essential element of the cause of action.)

[96] The nature of evidence bearing on the question whether a respondent acted
reasonably in publishing defamatory material, or whether the respondent honestly
though mistakenly believed that the defamatory material was true and in the public
interest, is qualitatively different from evidence bearing on the question whether
the defamatory material was in fact true and in the public interest. Evidence of the
sources of information known to a respondent at the time of publication might be
inadmissible to prove the truth of the information but might be highly relevant to
the question whether the respondent had a reasonable basis for publishing or an
honest belief that the allegations were true. For the latter purposes, it would also
be relevant to know whether the respondent took reasonable steps to verify his or
her sources, and it is in these respects that this Court in Manuel criticised the EFF.

[97] In the present case, however, we are not concerned with reasonable
publication or a defence of absence of animus iniuriandi. We are dealing with an
objective enquiry: were the defamatory allegations true or not? The enquiries
which the respondent made or should have made do not bear on that question.
Either he has or has not adduced admissible evidence that the defamatory
allegations are true. In the respects I have identified, the respondent did not produce
such admissible evidence.

[98] In the circumstances, while the respondent put up a ‘colourable defence,
based on evidence’ to justify saying that the appellant conducted himself in an
unlawful and undemocratic way, he did not in my opinion do so in relation to the
allegations that the appellant was corrupt, stole money and was of base moral
character. It follows that I would have upheld the appeal in part. Since this is a
minority judgment, there is little point in considering how his partial success would
have affected costs in this Court and in the high court.

____________________
O L ROGERS
ACTING JUDGE OF APPEAL

APPEARANCES

For appellant:

T Ngcukaitobi SC

K Premhid

Instructed by:

Ian Levitt Attorneys, Sandton

Lovius Block Attorneys, Bloemfontein

For respondent:

In person

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
23 June 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Julius Sello Malema v Thembinkosi Rawula (139/2020) [2021] ZASCA 88 (23 June 2021)

On 18 April 2019, the appellant, Mr Julius Malema, applied to the Eastern Cape Division of
the High Court, Port Elizabeth (the high court) for an order declaring that a Facebook post
published on 5 April 2019 by the respondent, Mr Thembinkosi Rawula, was defamatory. He
also sought an order interdicting the respondent from publishing any further defamatory
statements and directing him to pay damages in the sum of R1 million. The respondent is a
former member of the Economic Freedom Fighters (EFF), who served on its highest decision-
making body, the Central Command Team (CCT). The high court dismissed the application.

The Supreme Court of Appeal (SCA) today dismissed the appeal against the high court’s
order. The statements in the Facebook post alleged to be defamatory of the appellant were
that funds received by the EFF were centralised under the ‘control, abuse and dictatorship’ of
the appellant and the Deputy President of the EFF, Mr Floyd Shivambu, who had made it clear
that the EFF was their organisation; that they had used training providers who inflated costs
to the EFF and in the absence of financial reports (which had not been tabled before the CCT
since 2014), the respondent was forced to conclude that they 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, the appellant 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 (Petse AP, Dambuza and Schippers JJA and Ledwaba
AJA) held that the respondent, an unrepresented litigant in person, 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. There was nothing in the evidence to gainsay his claim
that he had obtained access to privileged information because he served on the CCT. When
the appellant received the 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. Further, the fact that he or the EFF had received VBS money – which
he denied in the papers – and that the appellant had personally benefited from it were in the

public domain in September 2018 already. 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 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. It 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 the
appellant and Mr Shivambu. As to the inflation of costs, the respondent 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 position has been that a final
interdict for defamation cannot be granted unless a respondent has no defence. The high court
had thus rightly concluded that the appellant did not make out a case for a final interdict.
Moreover, 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 Rogers AJA, it was found that the appellant had failed to show that
the respondent 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, that the appellant had instructed the supplier to inflate prices or did so
in order to steal the difference. Rogers AJA would thus have upheld the appeal in part.

~~~~ends~~~~