Freedom of Association and Assembly / Protests, Political Expression
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The South Gauteng High Court in Johannesburg, South Africa ruled that the failure of a political party to condemn its supporters’ harassment of and threats against a journalist violated the South African Electoral Code. The leader of the party had tweeted a screenshot of an erroneously-sent message which included the personal contact number of a South African political journalist, and described the journalist as an intelligence operative. Immediately afterwards, self-professed supporters of the party harassed and made threats against the journalist, including threats of rape and violence. The Court ruled that in order to adhere to its obligations to respect the rights of women and of the media under the Electoral Code the EFF and its leaders needed to take reasonable steps to condemn and stop the harassment experienced by the journalist.
On March 5, 2019, Karima Brown, a South African political journalist, erroneously sent a WhatsApp message to a group created by Mbuyiseni Ndlozi, the national Spokesperson of the Economic Freedom Fights (EFF), a South African political party. Brown intended to send the message to a group comprising her colleagues but instead sent it to the group established by Ndlozi to communicate with journalists. The message referred to an EFF event and Brown wrote “Keep an eye out for this. Who are these elders. Are they all male and how are they chosen. Keep watching brief”.
The same day, Julius Malema, the President of the EFF, published on Twitter a screenshot of the erroneously-sent message which included Brown’s name and personal mobile telephone number which Malema had circled in black. In the tweet, Malema claimed that Brown was “sending moles” to the EFF event. At the time, Malema had approximately 2.38 million followers on Twitter. The following day, Ndlozi released a statement on behalf of the EFF claiming that Brown was an operative for the South African ruling party, the African National Congress (ANC) and was not a legitimate journalist. The EFF also published a statement on its Facebook page, repeating the claims that Brown was an ANC operative and a state agent.
Following Malema’s tweet and Ndlozi’s statement Brown received a “barrage of anonymous threatening phone calls and written threats on Twitter and WhatsApp from self-professed EFF supporters” which included “deplorable insults and threats of rape, violence and death” [para. 8]. Although Malema held a press conference on March 6, 2019 stating that no person should be threatened with rape and violent crime, he maintained the position that Brown was not a legitimate journalist and was working as a state intelligence operative. Malema refused to delete the post and condemn the threats, despite requests from journalists, and only removed the post when Twitter threatened him with termination of his account.
Brown responded to the EFF’s conduct by sending a message to the EFF journalists’ group, describing the party leadership as “thugs who intimidate journalists.” [para. 11] The EFF had previously been involved in various other, well-publicized incidents with journalists and Brown argued that there was a “pattern of ‘hit and run’ behaviour on the part of the [EFF] in relation to journalists, particularly in relation to female journalists who are critical of the EFF.” [para. 3]
On March 9, 2019, Brown laid a complaint with the Independent Electoral Commission (IEC), submitting that the EFF’s conduct infringed the Electoral Act and requesting that the chairperson of the IEC institute criminal and civil charges against the EFF. On April 18, 2019, the IEC informed Brown that it would not be instituting any proceedings against the EFF or Malema. Brown then brought an urgent application in the South Gauteng High Court in Johannesburg
Judge Dippenaar delivered the judgment of the South Gauteng High Court. The central issue for the Court to determine was whether the EFF’s failure to condemn its supporters’ threats to and harassment of Brown, and instruct them to refrain from future harassment was an infringement of the Electoral Code.
Brown denied that she is a member of the ANC or of the intelligence community and argued that her initial message was one “emanating from a ‘bona fide and responsible, if critical, journalist’” [para. 59]. She sought a declaration that the EFF had contravened clauses 2, 3, 6 and 8 of the Electoral Code (the Code) contained in Schedule 2 to the Electoral Act 73 of 1998 and section 94 of that Act, the issuance of a formal warning to the EFF, a fine against the EFF of R100 000 (approximately USD 7,000 in June 2019), and an order that the EFF publish an apology to her on Twitter.
The EFF argued that Brown is a well-known public figure who is “biased and prejudiced against the EFF” and that they were therefore acting reasonably in treating her message with suspicion and drawing attention to it on Twitter. [para. 60] The party also submitted that Brown’s conduct “falls foul of the press code and amounts to a relentless campaign against the EFF.” [para. 60] The EFF maintained that they had “merely expressed their right to freedom of expression, that there was no harassment or intimidation of [Brown] and that their comments are justified, considering Ms Brown’s conduct.” [para. 60]
Section 27(2)(a) of the Electoral Act requires that any political party intending to contest an election must provide an undertaking binding the party and its representatives and members to the Code, and section 94 states that “[n]o person or registered party bound by the Code may contravene or fail to comply with a provision of the Code.” Section 6 of the Code states that “[e]very registered party and every candidate must (a) respect the right of women to communicate freely with parties and candidates … and (d) take all reasonable steps to ensure that women are free to engage in any political activities.” [para.44] Section 8 of the Code requires that the parties and candidates respect the role of the media and, in terms of subsection (c), “must take all reasonable steps to ensure that journalists are not subjected to harassment, intimidation, hazard, threat or physical assault by any of their representatives or supporters.” [para. 44] The Court emphasized that it is the EFF and not Brown that is bound by the Code. [para. 61]
The Court acknowledged that “Brown’s own strident and politically laced responses to the barrage of abuse served to further fuel the flames of discord,” [para. 62] but stated that although the EFF’s criticism of Brown’s conduct in participating in political debate may have merit that “does not avail the [EFF] to simply attack her conduct in order to deflect attention from their own.” [para. 63]
To answer the question of whether the EFF and Malema had breached the Code, the Court had to examine the EFF and Malema’s conduct “throughout the period which followed Mr Malema’s post on Twitter and in context of his influence over his approximately 2.38 million Twitter followers.” [para. 64]
The Court referred to the EFF’s submission that its supporters made the threats to Brown out of frustration only because of the message she had sent and held that this indicated that the EFF was “well aware that their posting of the message on Twitter and subsequent Facebook statement would foster mistrust in Ms Brown and reasonably must have anticipated that it would elicit a response from EFF supporters.” [para. 68] The Court accepted that there was no evidence that Malema had intentionally included Brown’s mobile phone number in the Tweet but held that although Malema had said no person should be threatened with rape and violent crime “[t]here was no attempt to curtail the self-professed EFF supporters from continuing with their harassment of [Brown] or any instruction to them to desist.” [para. 68] In addition, the Court held that the statements Malema continued to make about Brown “restated and emphasized the very basis on which the harassment of Ms Brown had been based.” [para. 68] The Court also stressed that not all of Malema’s Twitter followers may have been aware of the statement Malema made in the press conference that no one should be threatened with rape or violence and so “his comments would not have the requisite results of calling the EFF supporters to order and to instruct them not to harass journalists and specifically Ms Brown.” [para. 68]
The Court rejected the EFF’s argument that their allegations that Brown was an ANC agent was unconnected to the abuse she received, and noted that the abuse commenced immediately after Malema posted his Tweet. Additionally, the Court rejected the EFF’s denial that the conduct of their supporters could be connected to their own leaders’ actions. The Court held that the EFF and Malema had an obligation under the Code to “instruct both its members and supporters to comply with the Code and to take all reasonable steps to ensure that both members and supporters comply with the Code.” [para. 72] This included the obligation to take all reasonable steps to ensure that journalists are not harassed or threatened and the Court held that these obligations “extend beyond the ambit of members of a political party and includes its supporters.” [para. 74]
In acknowledging that the reasonableness of the steps to be taken would depend on the circumstances, the Court noted that in the present case it would have been reasonable for the EFF and Malema to admonish their supporters once they had become aware of the harassment and to instruct them to refrain from continuing with the threats. Accordingly, the Court held that the EFF’s conduct “falls short of what a reasonable person would consider reasonable in all the circumstances [because] [w]hen requested to intervene and instruct their followers on Twitter to stop their harassment of Ms Brown, the EFF ignored the requests and Mr Malema refused to do so.” [para. 76] The Court remarked that the EFF’s conduct “exhibited scant regard for the fact that Ms Brown, as a woman, was especially vulnerable to threats of rape and violence in a society in which gender-based violence is prevalent.” [para. 77]
The Court commented that the EFF’s submission that Brown should have provided them with the details of the individuals threatening her by obtaining the information from the cellular service provides and police and that they would then have taken disciplinary action against the offenders was “untenable” given the EFF’s “disavowal of any responsibility for the conduct of their supporters.” [para. 78]
The Court held that the EFF was “fully aware of their actions and specifically the consequences of their inaction, the impact thereof on their supports and the conduct and consequences which followed.” [para. 79] It held that even if the EFF “did not deliberately intend them, they at least stood reckless to the results which, although they may not have foreseen them initially, were reasonably foreseeable once they had been brought to their attention on more than one occasion from different sources.” [para. 79]
Accordingly, the Court held that by failing to take reasonable steps to instruct their supporters to comply with the Code, the EFF had violated items 3 and 8 of that Code.
In determining the relief to be granted, the Court rejected the EFF’s argument that Brown’s claim that there was a risk of a “chilling effect on robust media reporting” was mere anxiety and stressed that “[m]edia freedom is one of the cornerstones of a democratic society which enjoys protection under section 16(1) of the Constitution and plays an important role.” [para. 88] The Court held that the EFF’s “previous conduct cannot be countenanced which has had the effect of jeopardising free and fair elections by fostering a chilling effect on robust media reporting.” [para. 99] The Court did note that “[w]hile the conduct of the [EFF] must be severely criticised and the supine attitude they adopted to their obligations condemned, the provocative stance adopted by Ms Brown constitutes a weighty mitigating factor in determining an appropriate sanction.” [para. 100]
The Court issued a formal warning against the EFF to serve as a “guideline” for their obligations and future conduct and as a deterrent. [para. 102] The Court refused to order that the EFF apologize to Brown, finding that it had done so numerous times and that Brown was not justified in maintaining that those apologies had been insincere.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although, the South Gauteng High Court in Johannesburg, South Africa ruled that a political party was obliged to restrict its supporters’ threatening engagement with a journalist the Court stressed the importance of protecting political journalism and the obligations on political parties to ensure that their own supporters respect the role of the media. The judgment acknowledges the often-contentious relationship between political parties and journalists but emphasizes that a disregard for the safety of journalists – particularly female journalists – is an infringement of the Electoral Code.
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