Defamation / Reputation
Afanasyev v. Zlotnikov
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The Supreme Court of Appeal in South Africa upheld a High Court ruling that a political party had defamed a former politician by calling him “corrupt and nepotistic” and describing a process over which he was presiding “secretive”. The former politician had approached the High Court after the political party posted a statement on Twitter, claiming that the statement was false and damaging to his reputation. Although the High Court had held that the political party had no defence to the publication of the statement, it commented that the defence of reasonable publication – previously restricted for use by the media – was available to non-media defendants as well. The Supreme Court of Appeal noted that the political party had acted with malice and had relied on untruths when making its statement, and therefore had unlawfully and wrongfully defamed the politician. However, the Supreme Court of Appeal refused to accept the extension of the defence of reasonable publication, and also found that the High Court had incorrectly quantified the damages to be awarded and so referred the matter back to the High Court for determination of an appropriate remedy.
On March 27, 2019 a statement from the South African political party, the Economic Freedom Fighters (EFF) was posted on the EFF official Twitter account. The statement accused former South African Minister of Finance, Trevor Manuel, of nepotism, corruption and clandestine conduct in the appointment of the Commissioner of the South African Revenue Service (SARS). Manuel recused himself from the interview of one of the candidates, Edward Kieswetter, as Kieswetter had worked at SARS during Manuel’s time as Minister of Finance. Kieswetter was later recommended by the panel as the preferred candidate and was then appointed Commissioner of SARS. The tweeted statement described the process as “patently nepotistic, and corrupt” and having been conducted in secret, and referred to Kieswetter as “not just a relative of Trevor Manuel, but a close business associate and companion.” It also characterized Kieswetter as having a “clear connection to the white capitalist establishment” which meant that he would not “maximally collect taxes.” [para. 32 of the High Court judgment].
The EFF Twitter account had over 725 000 followers at the time the statement was tweeted and the tweet containing the statement was retweeted 237 times. Julius Malema – the President of the EFF – tweeted the statement from his own Twitter account which has over 2 million followers. In addition, the tweet and the statement received media and online coverage [para. 33 of the High Court judgment].
After unsuccessfully requesting the EFF to withdraw the statement, Manuel sought an urgent declaratory order that the tweet was defamatory, false and unlawful and that the order was necessary to vindicate his reputation. He also sought an order directing the EFF to remove the tweet from all their media platforms and interdicting the EFF and its associated platforms from publishing the same or similar allegations about him in the future; and ordering the EFF to publish an “unconditional public retraction and apology” [para. 6 of the High Court judgment]. Manuel also sought general damages for the defamation.
The Media Monitoring Africa Trust, a non-governmental organization, was admitted as amicus curiae.
The South Gauteng High Court held that the tweet was defamatory – as a reasonable person would understand the tweet to mean Manuel was corrupt and nepotistic which would lower his reputation in the estimation of right-thinking members of society – and that the EFF bore the onus of demonstrating that the publication lacked wrongfulness or intention.
The High Court dismissed the EFF’s defences that the statements were true and in the public interest and were fair comment on the grounds that none of the statements were, in fact, true. The Court specifically noted that the EFF’s conduct was “actuated by malice” as it had not sought to determine the accuracy of its statement and had refused to take down the statement even when it had been shown to be false [para. 66 of High Court judgment]. The Court also dismissed the EFF’s third defence that the statement was made in the public interest, noting that this defence can only apply “if other defamation defences are in the public interest, e.g. the defence of truth and fair comment” [para. 66 of the High Court judgment].
The main focus of the Court’s analysis was in response to the EFF’s defence that the publication was reasonable because it was based on disclosed information that they had no reason to doubt and that the disclosure of material of public interest should be encouraged. The Supreme Court of Appeal in National Media Ltd v. Bogoshi 1998 (4) SA 1196 (SCA) had introduced the defence of “reasonable publication”, but had restricted the use of this defence to the media and so it was not available for private individuals (or political parties) sued for defamation. The Court acknowledged that social media platforms have enabled ordinary members of the public to publish information which can reach audiences bigger and broader than traditional media. As a result, the Court noted that “[t]here is no justification as to why the press should enjoy the privilege of freedom of expression greater than that enjoyed by a private individual” and that there is “no justification for limiting the defence of reasonableness as it pertains to both wrongfulness and fault to the media only” [para. 67 of the High Court judgment].
However, the Court held that in the present case the EFF could not rely on the defence of reasonable publication because they had “failed to show that it was reasonable in the circumstances to publish the particular facts, in a particular way and at the particular time” as it had not taken reasonable steps to verify the truth of the allegations of the relationship between Manuel and Kieswetter and had not allowed Manuel the opportunity to respond to the allegations [para. 68 of the High Court judgment]. Accordingly, the Court held that allegations made by the EFF in its statement were defamatory and false and that the publication of the statement was unlawful, and interdicted any future publication of statements implying that Manuel was corrupt or nepotistic in the appointment of the SARS Commissioner. It ordered the EFF to remove the statement from all media platforms and to publish a notice on all platforms on which the statement had initially been published which unconditionally retracted the statement and apologized for the allegations made about Manuel. In quantifying the damages the Court noted the EFF’s malice in publishing the statement and refusing to remove it, and issued a punitive costs order, and awarded R500 000 (approximately USD35 000 as of June 2019) in general damages to Manuel.
Judges Navsa and Wallis delivered the judgment of the unanimous five-judge bench. The central issue for the court’s determination was whether the EFF’s statement was defamatory and its publication was unlawful and wrongful. However, the Court also assessed the extension of the “reasonable publication” defence and the quantum of damages awarded by the High Court.
The EFF abandoned their defences of truth and in the public interest and fair comment, and focused their arguments on the defence of reasonable publication. It argued that the defence applied because “the EFF’s conduct was reasonable because their actions were akin to those of a whistle-blower”: they had been given confidential information from a source [para. 62]. The EFF submitted that the test to determine the reasonableness of the publication (and so whether it was lawful or not) was “whether there was a bona fide belief by the EFF in the truth of the statement and whether its conduct was reasonable” [para. 62]. The EFF maintained that its conduct of relying on an unnamed source was reasonable [para. 79].
The Court referred to the submissions made by the Media Monitoring Africa Trust on the role of social media and its “reasonable reader”, and held that these were not relevant in the present case as – although the EFF’s statement had been published on Twitter – it was a full statement which had been circulated to traditional media and so “was not confined to a limited number of characters or written in a form of shorthand” [para. 31]. Accordingly, the Court held that just because the statement was shared on Twitter did not mean the Court had to address the question of a social media “reasonable reader”.
The Court confirmed that the test to determine whether a statement was defamatory is two-fold: first to establish the objective meaning of the words; and then to determine if the meaning was likely to injure the reputation of the plaintiff in the minds of a reasonable person. The Court analyzed the statement and found that it “almost completely justified Mr Manuel’s contention” that it was defamatory as the statement described the appointment process as “patently nepotistic and corrupt”, stated that Manuel had conducted secret interviews which implied that there was something “untoward” and had described Manuel and the country’s Minister of Finance as “conflicted” and the appointment process as “unlawful”. Accordingly, the Court held that the effect of the statement would diminish Manuel’s reputation, and was therefore defamatory. The Court confirmed that once a statement has been found to be defamatory, it is presumed to be both wrongful and intentional, and the onus would then lie on the EFF to demonstrate that there was no wrongfulness or no intention to defame.
The first defences the Court analyzed were those that rebutted the presumption of wrongfulness: truth and public interest; and fair comment. The Court noted that the EFF had made no attempt to demonstrate that the statement was true, and so agreed with the High Court’s dismissal of this defence. The Court also stated that a malicious statement cannot be fair comment, and that as all the comments made in the statement were not based on true facts that defence should be dismissed.
The Court then discussed the defence of reasonable publication – which is also used to rebut the presumption of wrongfulness. The Court stated that the High Court had considered the application of this defence as available to private individuals and political parties for the first time, and that it was thus required to consider “to some extent, if not necessarily definitively” whether the way in which the High Court had developed the common law in this way was appropriate [para. 26]. The Court reiterated that its judgment in Bogoshi has led to the media being “entitled to establish that the publication of a defamatory statement was not wrongful” if it could prove that “they reasonably believed in its truth and that it was in the public interest that it be published” [para. 40].
The Court undertook a detailed analysis of the jurisprudence on the requirement of animus iniurandi (intent to defame) in defamation. The early South African jurisprudence held that if “a defendant honestly though that his defamatory words were published with a lawful purpose” the Court could infer that there was no intention to injure [para. 43]. The Court described this jurisprudence as being that defendants “could rely upon their own bona fide error in believing that the defamation had been published lawfully” [para. 45]. However, this defence did not extend to the media, which at the time incurred strict liability.
However, the Bogoshi case was decided under the constitutional dispensation and rejected the strict liability placed on the media by recognizing the new defence of reasonable publication: “publication of defamatory matter by the media would not be unlawful if the publication was reasonable” [para. 46]. The Court emphasized that the Bogoshi court had made it clear that the defence did not extend to “negligent absence of knowledge of wrongfulness” [para. 47]. The Bogoshi principle was endorsed by the Constitutional Court in Khumalo v. Holomisa 2002 (5) SA 401 (CC).
In looking at foreign comparative jurisprudence the Court referred to the English cases of Reynolds v. Times Newspapers Ltd  EWCA Civ. 1172 and Bonnick v. Morris  UKPC 31, Jameel v. Wall Street Journal Europe Sprl  UKHL 44, and Flood v. Times Newspapers Ltd  UKSC 11, as well as the U.K. Defamation Act, 2013; the Australian case of Lange v. Australian Broadcasting Corporation  HCA 25 and the New Zealand case of Lange v. Atkinson  3 NZLR 383 (CA). The Court noted that “malice” in those jurisdictions was analogous to South Africa’s “intention to injure. The Court recognized the benefit of this comparative analysis, but stressed that the development of South African law does not automatically mirror other jurisdictions’ developments. The Court noted that “[t]he new defence in Bogoshi went further than the original Reynolds defence … in treating it as a separate defence, unconfined by the traditional defence of qualified privilege” [para. 54]. But the Court stressed that the Bogoshi court “did not create a general defence of public interest publication available to persons other than the media” [para. 54]. The Court concluded its analysis of the jurisprudence by noting that it “reflects a convergence of judicial thinking about the important role of the media in modern democracies, the proper boundaries of freedom of expression, the public interest and the recognition of the right to dignity in respect of reputation” [para. 57]. It added that although all countries will be faced with new issues arising out of the increased use of social media, each country will address it “in its own way in accordance with its own legal principles” [para. 57].
The Court referred to sections 173 and section 39(2) of the Constitution which mandate courts to develop the common law in a way that promotes “the spirit, purport and objects of the Bill of Rights” [para. 58]. However, it noted that parties that seek to persuade a court that development of the common law is necessary must provide argument (and often evidence) on the “parameters of the proposed development” and the “consequences of amending the law in that way” [para. 61]. The Court stated that the EFF had not provided argument on why the Bogoshi reasonable publication defence should be extended to private individuals and political parties.
In addition, the Court noted that the High Court had not engaged in an analysis of the development of the law leading up to Bogoshi, and characterized the High Court’s reading of Bogoshi – that it had created a defence for media defendants and not for non-media defendants which disadvantaged non-media defendants – as incorrect. But the Court stated that Bogoshi had actually retained the “defence of absence of animus iniuriandi for non-media defendants and did not extend that defence to the media” [para. 65]. It said that what Bogoshi did was remove strict liability for the media by introducing the defence of reasonable publication when “untrue defamatory material was published in circumstances where it was reasonable to publish those particular facts in that particular way at that particular time” [para. 65]. Bogoshi requires that a court examine various factors – including “the reliability of the source and the steps taken to verify the information” – in determining whether the publication was reasonable [para. 65]. The Court observed that the Bogoshi defence was “hedged around with qualifications that were particularly pertinent to publications by the media, but not necessarily to non-media defendants” and that the High Court’s extension of the defence to non-media defendants “may inadvertently have restricted the defences available to such defendants” [para. 65]. The Court described the Bogoshi case as having dealt with “wrongfulness and the lawfulness of publications of untrue defamatory material by the media” and that it “carefully distinguished that from the defence of absence of animus iniuriandi” [para. 66]. The Court added that if it made the Bogoshi defence available to non-media defendants that “would have the effect of depriving non-media defendants of the defence that defamatory material was not published animo iniuriandi” [para. 66].
The Court held that, because full arguments on the development of the Bogoshi defence had not been made before the High Court or before it, this case was not the correct case to develop the law in the way sought by the EFF. Any discussion on this development should “assess whether it is desirable to place media and non-media defendants on the same footing and the potential impact of depriving non-media defendants of the defence of the absence of animus iniuriandi” [para. 67]. It added that the question of whether to equate publication on social media with those in the formal media would also have to be assessed in a separate case.
The Court then examined whether the publication of the EFF statement was reasonable. The Court recognized that the foundation upon which the EFF stated that Manuel and Kieswetter were “relatives, close business associates and companions” was “a ‘tip-off’ in a WhatsApp message received by the deputy leader of the EFF [para. 70]. The EFF had then written to the Minister of Finance to ask for information about the recruitment and appointment process for the SARS Commissioner, but these questions had not specifically referred to Manuel. The Court found that “the source was not reliable and the information … was false” and that the EFF had relied on this information without seeking to verify its accuracy, and commented that the EFF could easily have searched for information online or could have approached individuals who knew both Manuel and Kieswetter [para. 75]. The Court held that had the EFF taken those steps, and found no basis for the allegations then that “would have dictated the need to take far greater care before publishing” [para.77].
Accordingly the Court held that the EFF had fallen “woefully short” in discharging the onus that the statement was published without animus iniuriandi because it had taken no steps to verify the accuracy of the statements and the allegations of corruption and nepotism: this lack of effort to determine the truth “is inconsistent with the absence of an intention to injure” [para. 81]. The Court characterized the EFF’s conduct as demonstrating a “willingness to wound irrespective of the truth of the allegations” [para. 81]. It noted that the EFF’s claim of genuine mistake was inconsistent with their refusal to remove the statement [para. 84]. The Court held that “whether the defence of reasonable publication is approached as a denial of publication animus iniuriandi, or as a development of the common law along the lines indicated in Bogoshi, it could not succeed” [para. 86].
The Court then examined the relief granted by the High Court. It accepted that Manuel had met the requirements for the declaratory and interdictory relief, however focused on the amount of damages awarded by the High Court. The Court commented that the purpose of a damages award in a defamation case “is compensation for an injury to dignity and reputation” [para. 91]. The Court stressed that where “unliquidated damages are claimed, our courts, have insisted on hearing viva voce [oral] evidence in order to make a proper assessment and issue an appropriate award” [para. 100]. This was because Manuel had “urged the court to develop the common law in terms of s 8(3) read with s 39(2) of the Constitution, to provide effective and expeditious relief, in the form of permitting them to claim damages on motion, notwithstanding established practice and precedent” [para. 106]. However, the Court because this development would impact on judicial processes, litigants seeking this development would have to make thorough arguments to the Court – as the Court had noted has to be done for any proposed development to the common law.
The Court accepted that “the spread of misinformation and disinformation on social media platforms is, notoriously, a worldwide concern” [para. 112], and noted that in the European Union and US different legislative and regulation measures are being considered. However, the Court noted that if there are interventions that can be used by the courts then “those should be presented by litigants in a constitutionally acceptable fashion and a court can then address them” [para. 112]. The Court disagreed with Manuel’s “simplistic view” that providing access to quick awards of large damages would disincentivize social media defamation, and said that “[t]he search for a solution to the evils of the abuse of social media platforms should be carefully considered, without compromising constitutional rights, fundamental legal principles and due process” [para. 113]. It added that these problems needed careful thought because of the risk of stifling freedom of expression.
The Court also observed that cases of defamation from 2017 have resulted in damages awards far lower than the High Court’s award in this case, and referred to the The Citizen 1978 (Pty) Ltd v. McBride 2011 (4) SA 191 (CC) case which had warned of the threat to freedom of expression from large damages awards. The Court reiterated that the purpose of defamation damages is to “compensate, not to punish” [para. 127].
Accordingly, although finding that the EFF’s statement was defamatory, false and unlawful, the Court sent the matter back to the High Court for determination of the quantum of damages, to be heard with oral evidence. In addition, as the Court held that the question of whether an apology should be ordered linked to the question of damages, it referred that question back to the High Court as well.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Constitutional Court upheld the High Court’s finding that the false statement constituted defamation and, while rejecting the High Court’s extension of the defence of “reasonable publication” to non-media defendants, confirmed that a defence of a “lack of intention to defame” remains available to any private individual or political party defendants.
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