THE SUPREME COURT
OF APPEAL OF SOUTH
AFRICA
JUDGMENT
Reportable
Case no: 711/2019

In the matter between:

ECONOMIC FREEDOM FIGHTERS

FIRST APPLICANT
MBUYISENI QUINTIN NDLOZI
SECOND APPLICANT
JULIUS SELLO MALEMA

THIRD APPLICANT
and
TREVOR ANDREW MANUEL

RESPONDENT
MEDIA MONITORING AFRICA TRUST
AMICUS CURIAE

Neutral citation: EFF and Others v Manuel (711/2019) [2020] ZASCA
172 (17 December 2020)
Coram:
NAVSA, WALLIS, SALDULKER and MOLEMELA JJA
and POYO-DLWATI AJA
Heard:
2 November 2020
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down
of the judgment is deemed to be 09h45 on 17 December 2020.
Summary: Defamation – defences – lack of animus iniuriandi – whether
established - reasonable publication in relation to media defendants –
requirements of – whether extending to individuals using social media –

whether interdict appropriate – whether order for apology competent –
whether damages claimable in proceedings by way of application

ORDER

On appeal from: Gauteng Division of High Court, Johannesburg
(Matojane J, sitting as court of first instance), judgment reported sub nom
Manuel v Economic Freedom Fighters and Others 2019 (5) SA 210 (GJ);
[2019] 3 All SA 584 (GJ):
1.
The application for leave to appeal in relation to paragraphs 1 to 3
and 5 of the order of the court below is dismissed with costs,
including the costs of two counsel.
2.
In relation to paragraphs 4 and 6 of the order of the court below the
application for leave to appeal is granted.
3.
The appeal in relation to paragraphs 4 and 6 of the order of the court
below is upheld with costs, including the costs of two counsel.
4.
Paragraphs 4 and 6 of the order of the high court are set aside and
replaced with the following order:
‘1 The determination of the quantum of the damages suffered by the applicant
is referred to oral evidence.
2 The high court will determine in conjunction with its determination of the
quantum of damages whether an order for the publication of a retraction and
apology should be made.’

JUDGMENT

Navsa and Wallis JJA (Saldulker and Molemela JJA and Poyo-Dlwati
AJA concurring)

[1] On 27 March 2019, it was announced that a committee chaired by
the respondent, Mr Trevor Manuel, formerly a member of parliament and
South Africa's longest serving Minister of Finance, and at present the chair

of a listed public company, had recommended to the President that
Mr Edward Kieswetter be appointed as the new Commissioner of the South
African Revenue Service (SARS) in terms of the South African Revenue
Service Act 34 of 1997 (the SARS Act). That same day, the first applicant,
the Economic Freedom Fighters (the EFF), the third largest political party
represented in the National Assembly, issued a media statement, saying
that it objected to 'the patently nepotistic and corrupt process of selecting
'Mr Kieswetter', which it characterised as 'secret', and adding:
'It has now emerged that the reason is that, one of the candidates who was interviewed,
and favoured by the panel, is a dodgy character called Edward Kieswetter, who is not
only a relative of Trevor Manuel, but a close business associate and companion.'

[2] The statement was issued by the second applicant, Dr Mbuyiseni
Ndlozi MP, in his capacity as the national spokesperson of the EFF and
published on the party's Twitter account. It was also published on the
Twitter account of the third applicant, Mr Julius Malema MP, the
Commander in Chief of the EFF. We will refer to them and the EFF
collectively as the applicants. To gauge the extent of its publication, the
EFF has over 725 000 Twitter followers and the statement was retweeted
237 times from that account. Mr Malema has over 2 million Twitter
followers, although one assumes that there would be considerable overlap
between his and the EFF's followers. We do not know how often it was re-
tweeted. The statement also attracted extensive coverage in conventional
media and in online channels of media communication.

[3] Mr Manuel regarded the statement as being defamatory of him and,
demanded that it be withdrawn. After this demand was rejected, he
instituted an application in the Gauteng Division of the High Court,
Johannesburg, claiming a declaration that the allegations made about him

in the statement were false and defamatory and that its publication was and
remained unlawful. By way of consequential relief, he sought: (a) an order
that it be removed from all EFF media platforms and in particular the
Twitter accounts of the EFF and Mr Malema; (b) an order for the
publication of a retraction and an apology; (c) an interdict against future
and further publication; (d) damages in an amount of R500 000; and (e)
costs on an attorney and client scale. In relation to the claim for damages
Mr Manuel sought, in the alternative, that it be declared that the
respondents were jointly and severally liable to pay him damages and that
the quantification thereof be referred to oral evidence.

[4] The application came before Matojane J who granted the relief
claimed, subject to varying the terms of the interdict claimed by Mr
Manuel. He refused leave to appeal. On application to this court, an order
was granted referring the application for oral argument in terms of
s 17(2)(d) of the Superior Courts Act 10 of 2013. That is the matter before
us. The parties were directed, if called upon to do so, to address the court
on the merits. The Media Monitoring Africa Trust (the Media Trust)
applied to be admitted as an amicus curiae. They were admitted as such on
the basis that they could deliver written heads of argument and could, with
the leave of the presiding judge, be permitted to present oral argument.
Such leave was given at the hearing. We heard argument from the parties
on both the application for leave to appeal and the merits. The amicus
presented argument in relation to the dangers of the publication of
falsehoods on social media platforms and on extending media protection
to individuals.

The facts

[5] The statement by the EFF bore the heading: ‘THE EFF REJECTS
SARS COMMISSIONER INTERVIEW PROCESS’
The full text read:
‘The Economic Freedom Fighters objects to the patently nepotistic, and corrupt process
of selecting the South African Revenue Services’ Commissioner.
In February 2019, the EFF sent a letter, and Parliamentary questions to the outgoing
President Mr Cyril Ramaphosa and Mr Tito Mboweni, to specifically ask why they are
conducting the SARS selection process in secret. It is confirmed that a panel chaired by
former Minister, Trevor Manuel, conducted secret interviews to select the SARS
Commissioner, and this goes against the spirit of transparency and openness.
It has now emerged that the reason is that, one of the candidates who was interviewed,
and favoured by the panel, is a dodgy character called Edward Kieswetter, who is not
just a relative of Trevor Manuel, but a close business associate and companion.
Kieswetter used to be a Deputy SARS Commissioner, unlawfully appointed to that
position by Trevor Manuel, when Pravin Gordhan was SARS Commissioner.
Kieswetter was in SARS during the time of the illegal intelligence unit established by
Pravin Gordhan, to hound off political opponents and commit corruption.
After SARS, Kieswetter joined Alexander Forbes, and was subsequently removed from
the company due to alleged corruption and unethical conduct. After Alexander Forbes,
Kieswetter became a vice-chancellor of an institution whose academic credentials are
questionable. This is now a candidate whom Trevor Manuel and Tito Mboweni want to
impose into SARS.
The EFF is profusely (sic) opposed to the imposition of a secretly assessed candidate
by conflicted individuals, and we will do everything in our power to stop and reverse
the appointment of Kieswetter as SARS Commissioner. We will immediately write a
legal letter to Mr Ramaphosa and Mr Mboweni, to demand disclosure of all processes
that were followed in the process of selecting a SARS Commissioner.
Furthermore, the EFF will explore legal options to invalidate the unlawful appointment
of SARS Commissioner.
The EFF is particularly concerned about SARS, because our Elections Manifesto states
that, part of our immediate plan when we take over Government will be capacitation of
SARS so that it can maximally collect revenue. The EFF particularly advocates for a
SARS that will decisively fight against illicit financial flows, base erosion and profit

shifting. A secretly chosen SARS Commissioner with clear connection to the white
capitalist establishment will not maximally collect taxes.
The EFF therefore demands that the process to select SARS Commissioner should be
restarted and be opened to public scrutiny. This should be so because, a Commissioner
of the ultimate Revenue Collector in South Africa should be beyond reproach and must
stand public scrutiny. SARS has over the years been involved in a lot of illegal and
unlawful activities, and taxpayers deserve to know who will be responsible for the
institution.
We also caution Mr Ramaphosa and Mr Mboweni to not engage in activities that led to
the downfall of Mr Zuma. If they become arrogant, and ignore the EFF’s logical
demands, they must know that they too will fall very hard on their own sword.’

[6] Mr Manuel took the view that the sting of the statement was that, as
chair of a panel selecting the next SARS Commissioner, he conducted a
corrupt, unlawful and clandestine process, which led to the unlawful
appointment of Mr Edward Kieswetter, who was said to be a relative and
a close associate of his. He complained that the statement accused him,
when he was Minister of Finance, of unlawfully appointing Mr Kieswetter
as Deputy Commissioner of SARS and charged him with acting contrary
to the best interests of SARS with corrupt intent. Finally, he said that the
statement accused him of acting contrary to the best interest of SARS by
virtue of his connection to a 'white capitalist establishment'. All this, he
said, cast aspersions on his character and integrity. He was adamant that
the offensive allegations were devoid of truth. He insisted that they could
not be justified.
[7] Mr Manuel said that Mr Kieswetter was neither a relative nor a
business associate. He denied that secret interviews were conducted and
denied any kind of nepotism or corruption. He pointed out that the selection
panel, which he chaired, could only make a recommendation about who
should be appointed as Commissioner of the South African Revenue

Service and that the power to appoint the SARS Commissioner, in terms
of the applicable legislation, was solely vested in President Ramaphosa.1

[8] Attorneys acting for Mr Manuel wrote to the EFF and Dr Ndlozi
demanding that the applicants remove the statement from their social
media platforms and apologise unconditionally in terms set out in the letter.
They refused to do so. Mr Manuel then approached the high court on
motion seeking certain relief. His stated purpose was:
'[I] seek various orders aimed at vindicating my good name, putting an end to the
ongoing and anticipated unlawful publication of the allegations in the statement, and
compensating me for the harm suffered.’
He was not seeking to convey that he had suffered pecuniary loss for which
he was seeking compensation, because he indicated that, if awarded
damages, he would donate the entire amount to a worthy cause.

[9] Mr Manuel provided details of his lengthy political career, stretching
from the beginning of his involvement in the ANC, to the long period of
time he served as National Minister of Finance. He described the positions
he had held in a number of well-known international organizations and set
out his involvement in business and his association with academic
institutions. He also provided details of a number of international and local
awards he had received in recognition of 'my contribution to the country
and to principles of democratic governance'. It was this commitment to
country and democracy, so he asserted, that led to his participation in the
selection panel.

1 Section 6 of the South African Revenue Service Act 34 of 1997 under the heading ’Appointment’ reads
as follows:
‘(1) The President must appoint a person as the Commissioner for the South African Revenue Service.
(2) The person appointed as the Commissioner holds office for an agreed term not exceeding five years
but which is renewable.’

[10] The selection panel that Mr Manuel chaired, the legitimacy of which
was not attacked by the applicants in the statement set out above, had its
genesis in the removal from office of the former SARS Commissioner, Mr
Tom Moyane, pursuant to the recommendations of the Nugent
Commission of Inquiry into Tax Administration and Governance at SARS.
On 9 November 2018 the Nugent Commission, in its Second Interim
Report, recommended a specific process for the appointment of the next
Commissioner of SARS. It recommended, inter alia, that the candidate or
candidates chosen or nominated by the President should be subjected to
interview by an apolitical panel, comprising persons of high standing who
would inspire confidence across the tax paying-spectrum. It also provided
baseline criteria against which potential candidates should be evaluated.
Although saying that the process 'for the purposes of providing input to the
President, or the Minister, as to the suitability for office of the candidates'
should be 'open and transparent', the Nugent Commission recommended
that the candidates should submit to a private interview by a panel of four
or more members selected by the President and that the function of the
panel was to evaluate candidates against the prescribed criteria.

[11] It was undisputed that President Ramaphosa, whilst recognising that
it was ultimately his prerogative to appoint the Commissioner, accepted the
Nugent Commission’s recommendation. He appointed the present Minister
of Finance, Mr Tito Mboweni, to oversee the recommended process,
including the appointment of the panel, which it was envisaged would
shortlist interviewees and submit a list, recommending suitable and
competent persons for consideration. On 7 February 2009 Mr Mboweni
announced the appointment of the interviewing panel. The panel comprised
seven members, including Mr Manuel as chairperson. The other six
members were well-known individuals, who no-one suggested did not

meet the criteria set by the Nugent Commission. It is for present purposes
unnecessary to set out their personal and professional particulars.

[12] Applications for the position of Commissioner were called for and a
shortlisting process ensued. The panel ultimately selected seven candidates
to be interviewed, but one withdrew. Five candidates were interviewed on
9 February 2019 and the last candidate, who had been travelling overseas,
was interviewed on 21 February 2019. Before Mr Kieswetter was
interviewed, Mr Manuel disclosed that he had, in the past, worked with
him, although they had not interacted, other than, at arms-length and
professionally. This took place when Mr Manuel was Minister of Finance
and Mr Kieswetter, Deputy Commissioner of SARS. During that time the
Ministry met with senior management of SARS once a fortnight to discuss
matters of mutual interest.

[13] The other panel members considered this disclosure, but did not
think there was a conflict of interests, requiring him to recuse himself.
Nonetheless, according to Mr Manuel, out of an abundance of caution he
merely observed Mr Kieswetter being interviewed, but did not participate
in the questioning. Following the interview process three candidates were
recommended to proceed to competency testing. Standard reference and
security checks were performed. Intense competency checks were
conducted, and psychometric assessments were undertaken by an outside
consulting company. After all the information had been gathered the panel
deliberated and Mr Kieswetter was unanimously recommended for
appointment as SARS Commissioner.

[14] The applicants’ response was to set out what they considered to be
the proper context within which the statement complained of was

published. They explained that the EFF had serious concerns regarding the
removal of the previous Commissioner and was concerned about the abuse
of state institutions. They pointed out that the EFF was the third largest
political party in South Africa and it was thus 'materially interested' in the
appointment of the new Commissioner. According to them, the EFF was
intent on ensuring that the individual to be appointed as Commissioner and
the process leading up to the appointment, be beyond reproach. The EFF,
so it was said, wanted to see to it that the process employed would
withstand ‘robust scrutiny’. In this regard it referred to past corruption in
the Public Service.

[15] The applicants emphasized that they were acting, not for personal or
private gain, but in the public interest at the time of a national general
election. The EFF was adamant that President Ramaphosa be held to
account and that there be no blind acceptance of decisions made by him.
They asserted forcefully that they were committed to the Rule of Law and
the Constitution. They were adamant that the court should be concerned
about political free speech and that defences open to media defendants
should be available to them. The following is a material part of their
answering affidavit:
'The respondents disclose to this Court that its statement was motivated by certain
disclosures made to it by a source whose identity and details the respondents are not at
liberty to disclose. Suffice it to say, this source had intimate knowledge of the intended
appointment process, including the appointment of the Panel, and informed the EFF
that this was to occur largely out of the public gaze.'
The information provided by the source featured large in an assertion that
it was reasonable for the EFF to publish the statement and we will consider
it in greater detail later in this judgment.

[16] While accepting that s 6 of the SARS Act was not prescriptive of
how the President should go about appointing the SARS Commissioner,
the applicants were concerned by the exclusion of parliament from that
process. It was the lack of public scrutiny in relation to the selection
process that the applicants contended motivated the statement complained
of. They put it thus:
'So, when the EFF received the confidential tip-off, both in respect of the process
occurring in secret, and the possibility that the interviews would be run under the
applicant and that he was related to one of the applicants, the EFF was galvanized into
action as it should as a major political party.'
They described the statement as being in the 'typical robust rhetorical style'
of the EFF’.

[17] The applicants submitted that the statement by them that Mr Manuel
was related to Mr Kieswetter was substantially true, on the strength of what
was imparted to the EFF by its confidential source. They contended that in
any event they genuinely believed the statement was true. They did not
challenge Mr Manuel's assertion that he and Mr Kieswetter were not
relatives in the common familial sense of being related by blood or
marriage. However, they said that it was ‘common cause’ that Mr Manuel
and Mr Kieswetter were related, due to the past relationship that Mr
Manuel disclosed to the committee and which led to him partially recusing
himself during Mr Kieswetter's interview. It was submitted that the
nepotism they referred to in the statement, should be widely construed to
include this past relationship. Similarly, the corruption alleged in the
statement should also be seen in this light.

[18] In seeking to justify the statement, the applicants contended that the
publication of the statement in question was reasonable in the

circumstances and should be considered akin to statements by whistle-
blowers. Additionally, they adopted the position that the statement
complained of was fair comment. Lastly, the applicants warned that
censoring and prohibiting statements like the one in question would have a
chilling effect on political speech.

The high court's judgment
[19] The high court was called upon to adjudicate the disputes
crystallised from the preceding paragraphs. Initially it dealt with and
rejected certain ‘preliminary objections’. It noted that, there was no attempt
to show that the sting of the article was not as contended by Mr Manuel
and held, after applying the two-stage test laid down by the Constitutional
Court in Le Roux v Dey,2 that the statement was defamatory of Mr Manuel.
Accordingly, the court said that its publication was presumed to be
wrongful and intentional and that the applicants bore the onus of rebutting
either wrongfulness or intention.

[20] The judge dealt with all of the defences raised by the applicants
under the general heading of defences to rebut unlawfulness. Whether that
was a correct classification is an issue to which we will need to return. He
dealt with them under four headings, namely, truth and public interest;
reasonable publication; fair comment; and public interest. As regards the
last of these, he said that it was not a defence in itself, but an element of
other defences.

[21] Each defence was examined and all of them were rejected on the
basis that the applicants had not established the factual basis for any of

2 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) (Le Roux v Dey) para 89.

them. As far as truth and public interest was concerned, the judge held that
the sting of the charge had to be shown to be substantially true. The fact
that interviews of candidates would take place privately was part of the
Nugent Commission's recommendations and known before the interviews
were held, so the process was open and transparent, even though the
interviews were not public. He held that Mr Kieswetter was neither a
relative of, nor a close business associate of and companion to, Mr Manuel.
The latter's recusal from active participation in Mr Kieswetter's interview
did not in substance establish the truth of these allegations.

[22] The high court based its approach to the defence of reasonable
publication on the judgment of this court in Bogoshi3 as approved by the
Constitutional Court in Khumalo.4 Those cases dealt with publication in
the media – both involved newspaper articles – and the rejection of the
decision in Pakendorf v De Flamingh,5 which held the media strictly liable
for defamatory publications. The high court applied the defence to
publication by private individuals, saying simply that there was no
justification for the press enjoying a privilege of freedom of expression
greater than that enjoyed by a private individual. In doing so it did not
consider whether it was extending the possible range of defences open to
private individuals, or imposing upon them the constraints that apply to the
broadcast and press media. Be that as it may, the judge held that the
applicants had failed to show that it was reasonable for them to publish the
statements made about Mr Manuel.

3 National Media Ltd and others v Bogoshi 1998 (4) SA 1196 (SCA)(Bogoshi).
4 Khumalo and others v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC) paras 18 and 19.
5 Pakendorf en Andere v De Flamingh 1982 (3) SA 146 (A).

[23] The high court relied on the approach by the Constitutional Court in
McBride,6 that the defence of fair comment required that the comment not
be made maliciously and be based on facts that were fairly stated and
substantially true. The judge held that anything constituting comment in
the statement was not based on facts fairly stated. Furthermore, he held that
the applicants were actuated by malice because they published the
statement with reckless indifference to whether it was true or false.

[24] That took the high court to the question of remedy. It dealt first with
the issue of damages and awarded a sum of R500 000. Without any great
discussion it held that Mr Manuel was entitled to the interdictory relief he
sought, as well as a declaratory order and a retraction and apology. Its
reasons will be considered later in this judgment.

[25] In the result Matojane J made the following order:
'1
The allegations made about the applicant, Trevor Andrew Manuel, in the
statement titled 'The EFF Rejects SARS Commissioner Interview Process' dated 27
March 2019 are defamatory and false.
It is declared that the respondents' unlawful publication of the statement was,
and continues to be, unlawful.
The respondents are ordered to remove the statement, within 24 hours, from all
their media platforms, including the first and third respondent's Twitter accounts;
The respondents are ordered, within 24 hours, to publish a notice on all their
media platforms, on which the statement has been published, in which they
unconditionally retract and apologise for the allegations made about the applicant in the
statement.
The respondents are interdicted from publishing any statement that says or
implies that the applicant is engaged in corruption and nepotism in the selection of the
Commissioner of the South African Revenue Service.

6 The Citizen 1978 (Pty) Ltd and Others v McBride [2011] ZACC 11; 2011 (4) SA 191 (CC) (McBride)
para 83.

The respondents are ordered jointly and severally to pay damages of R500 000
to the applicant.
The respondents are ordered jointly and severally to pay the applicant's costs on
an attorney and client scale.'

The issues
[26] A number of issues fall to be considered in this case. The first is
whether leave to appeal should be granted. Although that is a threshold
issue it requires consideration to some extent of the merits of Mr Manuel's
case and the merits of the defences advanced by the applicants. For that
reason, we will only deal with leave to appeal at the end of the judgment.
The defence of reasonable publication was considered for the first time in
the context of publication by a private individual and a political party,
rather than the media. The court recognised it as a defence, so it will be
necessary to consider to some extent, if not necessarily definitively,
whether that development of the law is appropriate. All the defences were
dismissed on the basis of the judge's factual findings. There is thus the
question of how we view those conclusions.

[27] If the publication was defamatory of Mr Manuel and the proffered
defences were correctly rejected by the high court, there remain issues
regarding the relief granted by the court. Before us there was a general
attack on the quantum of the award of damages, but there is an anterior
question whether it was permissible for the court to make that award
without hearing oral evidence. This is an issue of principle in regard to a
change of procedure having a substantive effect, because, so far as we are
aware, this and one case that followed it,7 were the first occasions on which

7 Gqubuke-Mbeki and Another v Economic Freedom Fighters and Another [2020] ZAGPHC 2
(Gqubuke-Mbeki). As appears from para 4 of that judgment the relief claimed was essentially the same

courts made awards of damages for defamation, or any similar injuria, in
application proceedings. Whether that is a permissible approach requires
consideration for the guidance of litigants and the profession generally.

[28] Lastly, there is the question of whether the declaratory and
interdictory relief and the order to publish an apology were appropriate or
should be amended. The applicants contended that they should not have
been ordered to remove the statement in its entirety but only those portions
that adversely reflected on Mr Manuel's reputation.

[29] In considering all of these issues we will throughout be conscious
that we must do so against the background of the right to freedom of
expression, guaranteed in s 16 of the Constitution, the political rights in
s19 of the Constitution and the right to dignity in s 10 of the Constitution.
We say this at the outset to avoid oft repetition of what is fundamental to
the proper adjudication of this type of case.

The defamation
[30] Determining whether a statement was defamatory involves a
twofold enquiry.8 First, one establishes the meaning of the words used.
Second, one asks whether that meaning was defamatory in that it was likely
to injure the good esteem in which the plaintiff was held by the reasonable
or average person to whom the statement was published. Where the injured
party selects certain meanings in order to point the sting of the statement,

as in the present case and the applicants were represented by the same attorneys. In awarding damages
the judge followed the approach in this case.
8 Le Roux v Dey, op cit, fn 2, para 89.

they are bound by the selected meanings.9 The meaning of the statement is
determined objectively by the legal construct of the reasonable reader and
is not a matter on which evidence may be led.10

[31] We received some interesting submissions from the Media Trust
concerning the approach to the legal construct of the reasonable reader in
the context of social media platforms, such as Facebook, Twitter and
Instagram, in the light of two cases from England.11 Useful though those
may prove on some future occasion, the publication on Twitter in this case
was a publication of the whole statement that had been circulated as a
media release to the established media. It was not confined to a limited
number of characters or written in a form of shorthand. Even a cursory read
by social media users would have conveyed to them the essence of the
charges made by the EFF against Mr Manuel. In those circumstances, the
fact that the statement was published on Twitter does not require us to
evolve a new approach to the reasonable reader.

[32] Mr Manuel identified nine respects in which he said the statement
was defamatory of him. They were that he was corrupt; nepotistic;
conducted himself unlawfully; conducted 'secret interviews' and
participated in a secretive process to select the new SARS Commissioner;
that the secretive process was a deliberate attempt to disguise his familial
relationship and business association with Mr Kieswetter; that he
conducted an unlawful appointment process; and that he had previously
made unlawful appointments to positions at SARS when he was Minister

9 Ibid, para 88.
10 Ibid para 90; Sutter v Brown 1926 AD 155 at 163. The position is different if a secondary meaning, or
innuendo properly so called, is pleaded, but that was not the case here.
11 Monroe v Hopkins [2017] EWHC 433 (QB) para 35; Stocker v Stocker [2019] UKSC 17; [2020] AC
5903; 2019 (3 All ER 647 (SC) para 41.

of Finance. More generally, he contended that the statement meant that he
had acted contrary to SARS' interests with corrupt intent, and was
connected to a 'white capitalist establishment' that acted contrary to the best
interests of SARS.

[33] An analysis of the statement almost completely justified Mr
Manuel's contention. In the opening paragraph the process of selecting the
new Commissioner was described as patently nepotistic and corrupt. In the
following paragraph the panel chaired by Mr Manuel was said to have
conducted 'secret' interviews. That this was intended to convey that there
was something clandestine and untoward about the interviews becomes
clear when one reads the third paragraph, which said that:
'It has now emerged that the reason is that, one of the candidates who was interviewed,
and favoured by the panel, is a dodgy character called Edward Kieswetter, who is not
just a relative of Trevor Manuel, but a close business associate and companion.'
The point of this being patently nepotistic and corrupt was then hammered
home in the following paragraph, where it was said that Mr Manuel, when
Minister of Finance, unlawfully appointed Mr Kieswetter as a Deputy
SARS Commissioner.

[34] The statement went on to say that Mr Manuel and Mr Mboweni were
trying to impose on SARS someone with a dubious background involving
corruption and unethical conduct. The individuals who assessed him for
this post, of which Mr Manuel and Mr Mboweni were the only ones
specified by name, were described as 'conflicted' and the appointment was
described as 'unlawful'. The only complaint by Mr Manuel that was
possibly not justified was that he was tied to a 'white capitalist
establishment' that acted contrary to the best interests of SARS. That

statement was made about Mr Kieswetter and could at most possibly have
had only an indirect impact upon Mr Manuel. We will disregard it.

[35] There can be no doubt that the effect of these statements would in
the eyes of the reasonable reader diminish the esteem in which any person
about whom they were made was held by others in the community. That is
defamatory, and apart from a short-lived, and patently unfounded,
endeavour to suggest that 'relative' did not mean a familial relative, counsel
accepted that it was defamatory.

Wrongfulness and intention
[36] Once the publication of defamatory matter has been proved, it is
presumed that the publication was wrongful and intentional, that is,
published with the intention to injure (the animus iniuriandi).12 A
defendant wishing to avoid liability must raise a defence that excludes
either wrongfulness or intention. The publisher of the defamation bears the
onus of rebutting either wrongfulness or intention. They must adduce the
evidence necessary to achieve that purpose.13 In this case the onus rested
on the applicants to establish either that the publication was not wrongful,
or that it was not published with the requisite intent.

Truth and public interest
[37] Truth and public interest and fair comment are two defences that
have long been recognised as rebutting the presumption of wrongfulness.
A defendant relying on truth and public interest must plead and prove that
the statement is substantially true and was published in the public interest.14

12 Khumalo v Holomisa, op cit, fn 4, para 18.
13 Le Roux v Dey, op cit, fn 2, para 85.
14 Lawsa, Vol 14(2), 3 ed (2017), by Justice FDJ Brand, para 124.

This defence can be disposed of in short order. The applicants made no
attempt to establish that the defamatory statements about Mr Manuel were
true. The furthest they went was to claim that they believed to be true what
they had been told in a WhatsApp message by a whistle-blower, whose
identity they kept secret. There was no attempt to refute Mr Manuel's
statements that he was not related to Mr Kieswetter and that they were
neither business associates or companions. As those factual propositions
were the foundation for the entire statement and its attack on Mr Manuel
the failure to establish that they were substantially true was fatal to the
defence. It was correctly rejected by the high court and not surprisingly it
was not pursued in argument.

Fair comment
[38] Turning to fair comment, it has four elements. The defamatory
statement
(a)
must be a comment and not a statement of fact;
(b)
it must be fair, by which is meant only that it must be an honestly-
held opinion, not that it is balanced or temperate;
(c)
the facts on which it is based must be true and must be clearly stated
or clearly indicated, or matters of public knowledge; and
(d)
the comment must relate to a matter of public interest.15
If the comment is made maliciously, that is, with an improper motive, as
opposed to being no more than the expression of an honestly-held opinion
on a matter of public interest, it is wrongful and the defence is not
available.16 Where malice is alleged the evidence led to establish it may

15 Crawford v Albu 1917 AD 102 at 115-117; Marais v Richard en ń Ander 1981 (1) SA 1157 (A) at
1167E-G; McBride, op cit, fn 6, para 80.
16 Crawford v Albu ibid at 114.

also be directed at rebutting the claims that the opinion was bona fide and
that the matter was one of public interest.

[39] Not all of the defamatory matter in the statement can be regarded as
a comment. At best for the applicants the description of the process in the
opening paragraph as 'patently nepotistic and corrupt' may be regarded as
comment. But that comment, if it be such, was expressly based on what
was stated in the third paragraph, that Mr Kieswetter was Mr Manuel's
relative, business associate and companion. That was all untrue. That
sufficed to dispose of the defence of fair comment. It was correctly rejected
by the high court and, like the defence of truth and public interest, was not
pursued in argument.

Reasonable publication
[40] The third defence going to wrongfulness advanced by the applicants
was that of reasonable publication. Before us the argument on the merits
revolved around this and accordingly it requires more detailed treatment
than the other defences. The applicants advanced it on the following basis.
Since the judgment of this court in Bogoshi,17 the media have been entitled
to establish that the publication of a defamatory statement was not
wrongful by proving that they reasonably believed in its truth and that it
was in the public interest that it be published. The applicants contended
that this defence was available to them, albeit that they are not part of the
media. The high court recognised the defence, but held that the publication
was not reasonable.

Animus iniuriandi

17 Op cit, fn 3.

[41] In order to evaluate the contentions in this regard it is necessary to
undertake a brief excursion into our jurisprudence in relation to the
requirement of animus iniuriandi in the context of defamation and the
developments that followed upon the comprehensive review of the law on
this topic by De Villiers AJ in Maisel v Van Naeren.18 The claim of
defamation arose from aspersions cast on Mr van Naeren's conduct as a
tenant in a block of flats contained in a letter addressed by Mr Maisel to
the Chairman of the Rent Board, Cape Town. A defence that the letter was
published on a privileged occasion failed because the block of flats was not
subject to rent control. However, the claim was dismissed on the basis that
Mr Maisel's bona fide but erroneous belief that the letter was written on a
privileged occasion rebutted the presumption that it had been published
animo iniuriandi. De Villiers AJ said;
'… I can see no reason why an erroneous belief in the existence of a so-called
"privileged occasion" could not in fit circumstances protect a defendant …'

[42] In Jordaan v Van Biljon19 Rumpff JA said that in order to avoid
misunderstanding and unnecessary confusion the expression 'malice' that
had been used in earlier cases should not be used. Once it was accepted
that it was open to a defendant to rebut animus iniuriandi in any manner,
in the light of the facts set out in the plea, confusion in regard to defences
with special names would be avoided.20 The requirement of animus

18 Maisel v Van Naeren 1960 (4) SA 836 (C) at 840E-G.
19 Jordaan v Van Biljon 1962 (1) SA 286 (A) at 296D-F.
20 The entire passage of which this is the substance, was in Afrikaans and reads as follows:
'As die aanbeveling van Appèlregter SCHREINER gevolg word om nie die woorde 'malice' of 'malicious'
te gebruik by die omskrywing van laster nie, sal inderdaad misverstand en onnodige verwarring vermy
word en indien verder besef word dat dit 'n verweerder vrystaan om op enige wyse afwesigheid
van animus iniuriandi te bewys, na uiteensetting in sy  verweerskrif van die relevante feite waarop sy
ontkenning van animus iniuriandi gebaseer is, sal verwarring in verband met woordgebruik by verwere
met spesiale name, ook mettertyd verminder. Solank egter die in ons regspraak erkende begrip
'bevoorregte geleentheid' as sodanig en met name gepleit word sal die benadering daarvan plaasvind op
die wyse wat in ons regspraak vasgelê is.'

iniuriandi was reaffirmed in Craig v Voortrekkerpers Bpk,21 although on
the facts it was held that the defendant had not discharged the onus of
showing that the occasion was privileged in accordance with its plea.

[43] Nydoo v Vengtas, was the last of this trilogy of judgments, all
authored by Rumpff JA. The legal position in regard to a defence based on
the absence of animus iniuriandi was set out in the following terms:22
'Evidence that a defendant honestly thought that his defamatory words were published
with a lawful purpose, although in accordance with an objective standard the purpose
was not lawful, would justify an inference that he did not have the intention to injure.'
(Our translation)

[44] In O'Malley23 this court considered a plea by the country's national
broadcaster that it had published a news report on the basis of information
from reliable sources and without the intention to injure the plaintiff. While
reasserting the need for an intention to injure and consciousness of the
wrongfulness of the publication as essential elements of defamation,
Rumpff CJ raised the possibility, without deciding, that, in the case of the
media, absence of animus iniuriandi might not be a defence and instead
that strict liability might apply to owners, publishers, editors and printers,
but not to distributors.24 That possibility became the law with his judgment
in Pakendorf v De Flamingh.25

21 Craig v Voortrekkerpers Bpk 1963 (1) SA 149 (A) at 156H-157A.
22 Nydoo en Andere v Vengtas 1965 (1) SA 1 (A) at 15 A-B reading as follows in the original Afrikaans
text:
'Getuienis dat 'n verweerder eerlik gedink het dat sy lasterlike woorde met 'n geoorloofde doel
gebesig word, hoewel volgens objektiewe maatstaf die doel nie geoorloof is nie, sou 'n afleiding
regverdig dat hy nie die opset gehad het om te beledig nie.'
23 Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A).
24 Ibid at 403D-407H.
25 Op cit, fn 5.

[45] To sum up, the legal position at this stage appeared to be that when
confronted with a claim for defamation, a defence could be raised that the
defamation had been published without animus iniuriandi. Defendants
were not constrained by specific categories of defence, such as that the
publication took place on a privileged occasion, but could rely upon their
own bona fide error in believing that the defamation had been published
lawfully, although in the above-cited cases such a defence had been upheld
only in Maisel v Van Naeren.26 This defence was not open to the media,
both print and broadcast. Their liability, outside of the limits of a defence
of publication on a privileged occasion, was strict. However, in what might
be viewed as a retreat from the pure principle articulated in the earlier
trilogy of judgments, Pakendorf v De Flamingh reserved for later decision
the question whether a defendant could acknowledge that the publication
was defamatory, but contend that due to mistake there was an absence of
knowledge of unlawfulness. It said that it was unclear whether this issue
and its resolution belonged with the requirement of fault or intention.27
That set the stage for Bogoshi.

[46] Bogoshi overruled Pakendorf v De Flamingh insofar as it imposed
strict liability on the media. It held that there had been an over-emphasis
on the issue of intention and insufficient regard had been paid to the
question of lawfulness. A new defence was recognised that publication of
defamatory matter by the media would not be unlawful if the publication
was reasonable. Hefer JA formulated the defence in the following
language:28

26 It was later upheld in Suttonmere (Pty) Ltd and Another v Hills 1982 (2) SA 74 (N) and Minister van
Veiligheid en Sekuriteit en ń Ander v Kyriacou 2000 (4) SA 337 (O).
27 Ibid, 154H-155A.
28 Bogoshi op cit, fn 3, at 1212G-H.

'the publication in the press of false defamatory allegations of fact will not be regarded
as unlawful if, upon a consideration of all the circumstances of the case, it is found to
have been reasonable to publish the particular facts in the particular way and at the
particular time.'

[47] Bogoshi recognised that the new defence of lawful publication by
the media raised the question, left open in Pakendorf v De Flamingh,
whether absence of knowledge of wrongfulness could be relied upon as a
defence of absence of animus iniuriandi, if the lack of knowledge of
wrongfulness was due to the defendant's negligence. 29 Because the new
defence was explicitly based on the lawfulness of the publication, and
negligence might be determinative of its lawfulness,30 Hefer JA said that if
media defendants could raise the same negligence as a basis for claiming
absence of animus iniuriandi 'it would obviously make nonsense of the
approach … to the lawfulness of defamatory untruths'.31 He explained that
absence of animus iniuriandi was concerned with ignorance or mistake
regarding one or other of the elements of defamation. The Bogoshi defence
is based on the reasonableness of the publication. In short, unreasonable
publication of defamatory matter by the media is unlawful, and the
corollary is that a defence of absence of animus iniuriandi, based on
negligent absence of knowledge of wrongfulness, is not available to the
media. The result is that in principle the media and non-media defendants
stand on a different footing as appears from this concluding passage:32
'… there are compelling reasons for holding that the media should not be treated on the
same footing as ordinary members of the public by permitting them to rely on the

29 Ibid at 1214B-C.
30 Ibid at 1215I where he said: 'Proof of reasonableness will usually (f not inevitably) be proof of lack of
negligence.'
31 Ibid at 1214C-D.
32 Ibid at 1214F-G.

absence of animus injuriandi, and that it would be appropriate to hold media defendants
liable unless they were not negligent in the circumstances of the case.'

[48] Whether defendants other than the media can rely on a defence of
absence of knowledge of unlawfulness due to their own negligence, and
hence an absence of animus iniuriandi, was again left open in Bogoshi, but
there was an indication that they might be entitled to do so, because, after
explaining that media defendants could not rely on that as a defence, Hefer
JA said:
'The resultant position of media defendants may not in this respect be so different from
that of other defendants because Pakendorf left open the question whether any
defendant can rely on a defence of absence of knowledge of unlawfulness due to
negligence. However, we have not been called upon to decide the question in relation
to other members of the public.'
The endorsement of Bogoshi by the Constitutional Court in Khumalo33 did
not take this any further and it has not been addressed in subsequent cases.

Other jurisdictions
[49] In formulating the defence of reasonable publication, Hefer JA had
regard to developments in Australia and the United Kingdom as well as a
statement of the law in the Netherlands. Internationally the law has moved
on since then. For example, he referred to the decision of the Court of
Appeal in the UK in Reynolds.34 The appeal from that judgment was heard
after the judgment in Bogoshi and referred to it in a comprehensive survey
of the approach taken in the United States, Canada, India, Australia, South
Africa and New Zealand to issues of the media's liability for defamation in
regard to public figures, political expression and the requirement of

33 Op cit, fn 4.
34 Reynolds TD v Times Newspapers Ltd [1998] EWCA Civ 1172; [1998] 3 All ER 961 (CA). The
judgment had been delivered less than three months before argument in Bogoshi and had not yet been
reported.

reasonable care in publishing defamatory matter in respect of such public
figures. Given that these judgments were based on widely differing
constitutional provisions, local statutes and developments of the common
law from widely differing bases, it is no surprise that in the leading speech
for the majority Lord Nicholls of Birkenhead concluded that the solutions
were not uniform and each was not without its critics in its home country.35
In regard to the Court of Appeal's decision on which Hefer JA had placed
some reliance it was said that its 'formulation of three questions gives rise
to conceptual and practical difficulties and is better avoided'.

[50] The end result was that the House of Lords in Reynolds declined, by
a narrow majority, to create a new category of occasions when privilege
derives from political information alone. It held that the existing defence
of qualified privilege was sufficiently flexible to accommodate the
problems encountered by the media in reporting on matters of public
concern, whilst giving appropriate protection to reputation. Lord Nicholls
said that in determining whether the occasion on which publication
occurred was privileged, a range of matters ought to be taken into account,
of which ten were mentioned as illustrative only, namely:36
'1. The seriousness of the allegation. The more serious the charge, the more the public
is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter
of public concern.
3. The source of the information. Some informants have no direct knowledge of the
events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.

35 Reynolds v Times Newspapers Ltd and Others [1999] UKHL 45; [2001] 2 AC 127; [1999} 4 All ER
609 (HL).
36 Ibid at 205 (Appeal Cases) and 626 (All ER).

5. The status of the information. The allegation may have already been the subject of
an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others
do not possess or have not disclosed. An approach to the plaintiff will not always
be necessary.
8. Whether the article contained the gist of the plaintiff's side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation.
It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors
will vary from case to case. Any disputes of primary fact will be a matter for the jury,
if there is one. The decision on whether, having regard to the admitted or proved facts,
the publication was subject to qualified privilege is a matter for the judge. This is the
established practice and seems sound. A balancing operation is better carried out by a
judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law
will be built up.'
[51] Although this was expressed as outlining the scope of the existing
defence of qualified privilege in English law, it created greater flexibility
in regard to reporting matters of public interest and the possibility of
reasonable error in such reporting. It was 'concerned to provide a proper
degree of protection for responsible journalism'.37 Because the English law
of defamation does not draw the same distinctions as our law in regard to
wrongfulness and animus iniuriandi, it was not expressed in terms easily
transferable to this country.

37 Per Lord Nicholls in Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 para 23.

[52] In Jameel,38 the leading speech on behalf of a narrow majority in the
House of Lords was delivered by Lord Hoffmann. He pointed out that the
Reynolds defence, as it had come to be known, was not the same as the
existing defence of privilege,39 because it was the material that was
privileged, not the occasion on which it was published. The issue of
'malice', which in South African legal parlance is largely equivalent to the
intention to injure,40 did not arise as a separate issue because it was dealt
with in the requirements for reasonable publication. The final curial
development of the Reynolds defence came in Flood, altering the defence
from privilege to one of public interest based on whether there was some
real public interest in having the information in question in the public
domain.41 It was also said that the defence was not reserved for the media,
although it was the media that was most likely to invoke it.42

[53] The most recent development in England has been the passage of s 4
of the Defamation Act 2013 (c24), which enacts a defence of 'Publication
on matter of public interest' in the following terms:
'Publication on matter of public interest
(1) It is a defence to an action for defamation for the defendant to show that—
(a) the statement complained of was, or formed part of, a statement on a matter of public
interest; and
(b) the defendant reasonably believed that publishing the statement complained of was
in the public interest.

38 Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359.
39 In agreement with the Court of Appeal in Loutchansky v Times Newspapers [2002] QB 783 (CA) at
806.
40 Basner v Trigger 1946 AD 83 at 94; Jordaan v Van Biljon op cit, fn 19 at 295E-296F.
41 Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273 para 42, per Lord Phillips of Worth
Matravers P.
42 Ibid para 44.

(2) Subject to subsections (3) and (4), in determining whether the defendant has shown
the matters mentioned in subsection (1), the court must have regard to all the
circumstances of the case.
(3) If the statement complained of was, or formed part of, an accurate and impartial
account of a dispute to which the claimant was a party, the court must in determining
whether it was reasonable for the defendant to believe that publishing the statement was
in the public interest disregard any omission of the defendant to take steps to verify the
truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the defendant to believe that publishing
the statement complained of was in the public interest, the court must make such
allowance for editorial judgement as it considers appropriate.
(5) For the avoidance of doubt, the defence under this section may be relied upon
irrespective of whether the statement complained of is a statement of fact or a statement
of opinion.
(6) The common law defence known as the Reynolds defence is abolished.'
This defence has been the subject of recent analysis by the Supreme Court
in Serafin v Malkiewicz.43

[54] The new defence in Bogoshi went further than the original Reynolds
defence as articulated by Lord Nicholls in the House of Lords, in treating
it as a separate defence, unconfined by the traditional defence of qualified
privilege. However, it did not create a general defence of public interest
publication available to persons other than the media. Nor did it diminish
the ability of persons outside the media from pleading and proving that in
certain circumstances publication of defamatory matter in consequence of
error could support a defence of publication without animus iniuriandi.
[55] We have traced these developments in English law because they
illustrate the need to develop the law within the framework of a country's
own jurisprudence. The fact that there is now a general defence of
publication on matters of public interest in England may be of assistance

43 Serafin v Malkiewicz and Others [2020] UKSC 23 paras 67-78.

in a proper case in developing our common law, but it cannot be assumed
that our law should parallel theirs. For the same reason it is helpful to refer
to the Australian solution to the problem of publication of untrue
defamatory matter on matters of public interest, provided we bear in mind
that its rule is based on a constitutional principle that 'each member of the
Australian community has an interest in disseminating and receiving
information, opinions and arguments concerning government and political
matters that affect the people of Australia' and the media has a concomitant
interest in disseminating it.44 The requirement of reasonableness in
publishing is a statutory one, that the court held did not infringe the
constitutional right.

[56] As a final illustration of the diversity of approaches to this issue and
the fluidity of the law in that regard, we refer to the position in New
Zealand. There the defence of qualified privilege was expanded in Lange
v Atkinson45 to include publications concerning Members of Parliament, or
those seeking election to Parliament, if the allegations concerned their
fitness for office, but not importing the Australian requirement of
reasonable publication. In a subsequent decision the court declined to
follow the House of Lords by adopting the Reynolds defence.46 This
comparatively cautious approach has recently changed with the adoption
by the same court of a new defence of public interest communication that
extends to all matters of significant public concern, but subject to a

44 Lange v Australian Broadcasting Corporation ("Political Free Speech case") [1997] HCA 25; (1997)
145 ALR 96 at 115. See also McCloy and Others v State of New South Wales and Others [2015] HCA
34 para 2.
45 Lange v Atkinson [1998] 3 NZLR 424 (CA).
46 Lange v Atkinson [2000] 3 NZLR 385 (CA).

responsibility requirement. In regard to the need for the latter, the court
said:47
'The emergence of social media and the “citizen journalist” which has radically changed
the nature of public discourse. Bloggers and those who comment on blogs, tweeters,
and users of Facebook and other social media are modern phenomena largely unknown
to the Court in Lange. While the mainstream New Zealand media may still be as
responsible as the Court in Lange considered it was, the proliferation of unregulated
bloggers and other commentators who can be reckless means that the imposition of a
responsibility requirement is highly desirable and a necessary safeguard for reputation
and privacy rights. It would also provide much needed clarity and certainty in an
unregulated world. The other alternative would be to deny the defence altogether to
anyone other than the mainstream media but we do not consider that drawing such a
distinction would be justified either as a matter of logic, policy or principle. Non-media
commentators have an important role to play.

[57] This brief review of developments in other jurisdictions 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. Our own jurisprudence in cases such as Bogoshi and Khumalo
is part of that convergence. The rise of social media will continue to focus
attention on this area of the law. Significant in this judicial convergence is
that all societies are facing similar issues, but each has found it necessary
to address it in its own way in accordance with its own legal principles.
Some have addressed the problem by developing common law principles,
some have resorted to statute and others have found the answers by a blend
of constitutional principle and common law development. Any
development of our common law will likewise have to be undertaken in

47 Durie v Gardiner [2018] NZCA 278; [2018] 3 NZLR 131 para 56(c). The court was influenced by the
adoption in Canada in Grant v Torstar Corp 2009 SCC 61; [2009] 3 SCR 640 of a new defence of
responsible communication on a matter of public interest, separate from that of qualified privilege.

accordance with the legal principles of the actio injuriarum and in the light
of our constitutional values.

Development of the common law
[58] Section 173 of the Constitution mandates the development of the
common law by the high court, this court and the Constitutional Court,
taking account of the interests of justice. In doing so we are enjoined by
s 39(2) to promote the spirit, purport and objects of the Bill of Rights. This
is a structured process. In Mighty Solutions48 the Constitutional Court said:
'Before a court proceeds to develop the common law, it must (a) determine exactly what
the common law position is; (b) then consider the underlying reasons for it; and (c)
enquire whether the rule offends the spirit, purport and object of the Bill of Rights and
thus requires development.  Furthermore, it must (d) consider precisely how the
common law could be amended; and (e) take into account the wider consequences of
the proposed change on that area of law.'
A few years thereafter, in MEC for Health and Social Development,
Gauteng v DZ OBO WZ,49 the Constitutional Court again dealt with how
an enquiry into the development of the common law should proceed:50
‘To start the enquiry one must be clear on (1) what development of the common law
means; (2) what the general approach to such development is; (3) what material must
be available to a court to enable the development; and (4) the limits of curial, rather
than legislative, development of the common law.’

[59] The Constitutional Court explained that the common law developed
incrementally, through rules of precedent, which ensured that like cases are
treated alike. Development occurs not only when a common law rule is

48 Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and Another [2015] ZACC
34; 2016 (1) SA 621 (CC) (Mighty Solutions) para 38.
49 MEC for Health and Social Development, Gauteng v DZ obo WZ [2017] ZACC 37; 2018 (1) SA 335
(CC) (DZ obo MZ).
50 Ibid para 27.

changed altogether, or when a new rule is introduced, but also when a court
needs to determine whether a new set of facts falls within or beyond the
scope of an existing rule. The development of the common law cannot take
place in a factual vacuum.51  Finally, in DZ obo WZ the Constitutional
Court, as it had in Mighty Solutions, set out the proper approach:
‘The general approach to development of the common law under s 39(2) is that a court
must: (1) determine what the existing common law position is; (2) consider its
underlying rationale; (3) enquire whether the rule offends section 39(2) of the
Constitution; (4) if it does so offend, consider how development in accordance with
section 39(2) ought to take place; and (5) consider the wider consequences of the
proposed changes on the relevant area of the law.’52

[60] Where it is suggested that there is a deficiency in the common law
that is not at odds with the Bill of Rights, then that deficiency might be
addressed by the court relying on its inherent power in terms of s 173 of
the Constitution.53 Again, the deficiency must be specifically identified and
a viable solution proposed.

[61] The need to follow this process imposes duties on litigants when
they seek to persuade a court that a development of the common law is
required. They have a responsibility to present to the court their
understanding of the current state of the law and the reasons for it by
reference to the relevant authorities. The current rule must be assessed in
the light of the spirit, purport and objects of the Bill of Rights. The
parameters of the proposed development must be clearly expressed and the

51 Ibid para 28, the previous points being made with reference to K v Minister of Safety and Security
[2005] ZACC 8; 2005 (6) SA 419 (CC) para 16.
52 Ibid para 31; Mighty Solutions op cit, fn 46, para 38.
53 DZ obo WZ op cit, fn 47, para 32. Section 173 of the Constitution states that:
‘The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has
the inherent power to regulate their own process, and to develop the common law, taking into account
the interests of justice.’ See eg Mokone v Tassos Properties CC [2017] ZACC 25; 2017 (5) SA 456 (CC)
para 41.

consequences of amending the law in that way examined. Very often this
will require evidence to enable the court to determine what the likely
consequences will be.

[62] This process was not followed by the parties and they did not provide
the necessary input to enable the court to determine whether a development
of the common law was required and, if so, what it should be. The
answering affidavit of Mr Malema, characterised the defence as
'reasonableness' on the basis that the EFF's conduct was reasonable because
their actions were akin to those of a whistle-blower. It said that they had
been given information by a confidential source in circumstances where
the secrecy of the appointment process and the failure to obtain satisfactory
answers to questions posed to the President and the Minister of Finance
meant that they were not in possession of all the facts. It was submitted that
the correct test for determining whether the statement was unlawful54 was
whether there was a bona fide belief by the EFF in the truth of the statement
and whether its conduct was reasonable. In the heads of argument there was
no analysis of the legal position and the only authorities referred to were
Bogoshi and a case on the importance of political speech.55

[63] The respondent's approach in the heads of argument was to say that
the defence in Bogoshi was a defence afforded to the media. It noted that
the high court had developed the law in the applicants' favour by extending
that defence to non-media defendants, but pointed out that it had not been
followed in Gqubule-Mbeki.56 It was submitted that if we upheld the high
court's finding that a defence of reasonable publication was not established

54 The affidavit said 'defamatory' in para 58 but that was plainly incorrect.
55 Mthembi-Manyele v Mail and Guardian Ltd and Another [2004] ZASCA 67; 2004 (6) SA 329 9SCA)
para 47.
56 Gqubule-Mbeki op cit, fn 7, paras 71-75.

it would be unnecessary for this court to decide whether the extension was
warranted. No submissions were made against the eventuality of this court
not upholding the approach of the high court. Nor did we receive any
submissions addressing the curious concept of a defence being dismissed
on the facts, even though its existence and ambit had not been determined.

[64] The high court did not engage in any detailed analysis of the
background to Bogoshi, or the manner in which it was situated in the
context of wrongfulness and intention in the law of defamation. No doubt
this was because the issue was not explored in argument. It was not referred
to the line of authority flowing from Maisel v Van Naeren that indicated
that a bona fide belief that publication of defamatory material was lawful
was capable of rebutting the animus iniuriandi. It noted that, because of
social media platforms, ordinary members of the public now have
publishing capacities that are capable of reaching an audience beyond those
of the print and broadcast media. It held that there was no difference
between an ordinary person communicating matters of public interest or
concern to the general public on social media and a journalist doing the
same in a newspaper. That led to the conclusion that:
'There is no justification as to why the press should enjoy the privilege of freedom of
expression greater than that enjoyed by a private individual. The liberty of the press is
no greater than the liberty of any individual. There is, therefore, no justification for
limiting the defence of reasonableness as it pertains to both wrongfulness and fault to
the media alone. In my view this limitation cannot be justified under section 36 of the
Constitution.'

[65] With respect, this conclusion proceeded from the basis that Bogoshi
had afforded media defendants a defence to claims for defamation that was
not available to non-media defendants and thus disadvantaged non-media
defendants. As we have shown, that was not a correct reading of Bogoshi,

which left untouched the defence of absence of animus iniuriandi for non-
media defendants and did not extend that defence to the media. The
principle of strict liability was rejected. If untrue defamatory material was
published in circumstances where it was reasonable to publish those
particular facts in that particular way at that particular time the media were
afforded a new defence of reasonable publication. This rebutted the prima
facie unlawfulness of the publication. Whether publication was reasonable
would involve an assessment of a number of factors, including the
reliability of the source and the steps taken to verify the information. It
goes without saying that it would have to be shown that they were satisfied
that the information was true. The new defence was accordingly hedged
around with qualifications that were particularly pertinent to publications
by the media, but not necessarily to non-media defendants. By extending
Bogoshi to non-media defendants the high court may inadvertently have
restricted the defences available to such defendants, which was clearly not
its intention.

[66] We were not presented with a satisfactory basis upon which to be
asked to develop the common law. Bogoshi dealt with wrongfulness and
the lawfulness of publications of untrue defamatory material by the media.
It carefully distinguished that from the defence of absence of animus
iniuriandi available to non-media defendants, while recognising that the
latter defence might afford non-media defendants a defence in
circumstances similar to media defendants. It also recognised that it would
make a nonsense of the defence based on lawfulness to make a defence of
absence of animus iniuriandi available at the same time to the same
defendant. Making Bogoshi applicable to non-media defendants would
have the effect of depriving non-media defendants of the defence that
defamatory material was not published animo iniuriandi.

[67] None of these issues were explored in the high court or in the
arguments before us. This is not a case in which to engage in the task of
developing the common law, because we do not have the benefit of a
properly structured approach to the suggested development. Development
of the common law would notionally involve an assessment of whether the
present bifurcated system properly protects the constitutional right to
freedom of expression of both media and non-media defendants in the light
of the public interest in receiving information about matters of public
concern, especially in the political arena. It would involve a consideration
of the EFF's contention in oral argument that one cannot apply the same
level of reasonableness to a political party as to the media. We were not
provided with any submissions as to how and where the lines would be
drawn. A development must 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. The situation of a single member of the public, like Mr Maisel,
as well as prominent players on the political stage, such as the EFF and Mr
Malema, requires consideration. Whether publications on social media
platforms are in some respects at least to be equated with publications by
the formal media, must be weighed. We have had none of the evidence and
none of the submissions that would enable us to make a proper
determination of these questions.

[68] Fortunately, the facts of this case are such that it makes no difference
to the outcome whether we approach the defence of reasonable publication
on the basis that it is a defence that seeks to rebut animus iniuriandi, or that
it is a defence on the lines set out in Bogoshi. On either basis, the

circumstances of the publication of this statement were not such as to
sustain the defence. We turn then to examine the facts.

Was the publication reasonable
[69] We have dealt above with the defamatory content of the statement
issued by the EFF. At its heart lay the factual statements that Mr Manuel
and Mr Kieswetter were relatives, close business associates and
companions. All of this was factually untrue, but it was the foundation for
the description of the process as nepotistic and corrupt. It also underpinned
the suggestion that to prevent these facts from being disclosed, the
interviews were not conducted in public.

[70] The foundation for these allegations was a 'tip-off' in a WhatsApp
message sent to Mr Floyd Shivambu, the deputy leader of the EFF, which
read:
‘Cde DP, the SARS Commissioner interview process is full of intrigue. One of the
shortlisted candidates is one Prof Edward Kieswetter, a relative and close friend of the
Chair of the interviewing panel Trevor Manuel. Kieswetter is former SARS deputy
commissioner under Parvin (sic) Gordhan when Manuel was the Finance Minister. He
left to run Alexander Forbes and then was forced off by the board and he went to be
one CEO of the Da Vinci Institute. Maria Ramos, Trevor, Kieswetter and Martin
Kingston fly often first class to London, not only as friends but also as business
associates …we wonder whether this apparent conflict of interest has been declared to
Tito Mboweni.’

[71] Neither the source of this message, nor the date when it was sent,
were disclosed in the redacted version annexed to an affidavit by
Mr Shivambu. The source was described as a colleague of Mr Kieswetter
and a 'senior person who has been employed in the executive structures of
a State Owned Company'. Keeping his name confidential was justified by

a perceived threat to 'his current and future prospects' were his identity to
be revealed. It was submitted that the non-disclosure of his identity should
'do nothing to affect the reliability and credibility' of the source.

[72] Although the date on which the message was sent was not revealed
its terms indicate that it was sent prior to the interviews of the shortlisted
candidates. The names of several of those to be interviewed, including
Mr Kieswetter, were published on the BusinessLive website on
8 February 2019 and all bar one of the interviews took place on 9 February
2019, so it can safely be accepted that it was sent about that date. On
13 February 2019 Mr Shivambu had written to the Minister of Finance, Mr
Mboweni, asking about the recruitment process; the names of the
applicants; the criteria for short-listing; the names of those short-listed and
whether interviews had been conducted. He said that the EFF was
concerned about the secrecy surrounding the process and added:
'We are also concerned about the attempt to impose an incompetent and unqualified
person'.
In the absence of any suggestion that this referred to one of the other
applicants, the inference is that it was a reference to Mr Kieswetter and
flowed from the WhatsApp message.

[73] Mr Shivambu was advised by the Minister to address his questions
via parliamentary channels and question posed to the Minister by another
member of the EFF asked the basis upon which the members of the panel
had been selected and whether potential conflicts of interest had been taken
into account before the selection. The Minister's response, given on 5
March 2019, referred to the recommendations of the Nugent Commission
as the basis for the appointment of the panel. It explained that the panel
was advisory in nature and was required to make non-prescriptive

recommendations to the President. It was not making the decision on who
to appoint as Commissioner. As regards conflicts of interest, it was stated
that all members were requested to disclose any possible conflicts of
interest when being appointed to the panel and again when interviewing
candidates. Given the terms of the WhatsApp message in Mr Shivambu's
possession it seems clear that the questions about conflicts of interest were
particularly directed at Mr Manuel and the alleged relationship between
him and Mr Kieswetter.

[74] Counsel for the applicants characterised these answers as a denial of
relevant information that ought to have been made public. They submitted
that the applicants were not themselves vouching for the accuracy of the
statements and described the untruths that appeared in the statement as the
product of 'loose language' and were 'peripheral'. In addition they stressed
that the EFF's criticism of the process was legitimate. They submitted that
it was unreasonable to expect the EFF to seek information from its political
opponents in order to ascertain the correctness of the allegations against
Mr Manuel in the WhatsApp message.

[75] The immediate problem confronting the applicants is that the source
was not reliable and the information given to Mr Shivambu and
incorporated in the public statement on 27 March 2019 was false. The EFF
relied on the untested word of its source without taking any steps to verify
the correctness of the statements they made. Contrary to its counsel's
submissions, there were many simple things that could have been done in
this regard. It should have asked its source where he obtained this
information. That would have enabled it to check its reliability. Had the
answer been along the lines of 'it's common knowledge' or 'I've been told'
that would have opened up other lines of enquiry. An active political party

would be able to approach members of the community who knew the two
men to look for information. In a world driven by technology the internet
is usually a fruitful source of information and one could have ascertained
whether they had attended the same school or tertiary institution, belonged
to the same church, served in public bodies or were linked in any other
way. Given Mr Manuel's political profile it should not be difficult for a
political party such as the EFF to ascertain whether there were long-
standing political links between the two men. Business links could be
investigated by reference to the records of CIPC and well-known business
directories.

[76] Counsel stressed that the EFF is a political party with significant
representation in Parliament and a role to play in uncovering corruption
and maladministration in government entities. The Commissioner's role is
an important one. There should be no suspicion attaching to the person
appointed to this role. All this we accept. But it emphasised the necessity
for the EFF to take steps to confirm the correctness of the allegations made
by the source. If true there was a real risk that the appointment of Mr
Kieswetter might be seen in the public's eyes as tainted. That was the very
charge levelled in the EFF statement.

[77] Had steps been taken to check the accuracy of the source's
information and no basis for them discovered, that would have dictated the
need to take far greater care before publishing. Other routes of enquiry
could have been explored. The obvious one would have been to address
Mr Manuel or Mr Kieswetter directly and ask whether the allegations were
true. Counsel pooh-poohed that suggestion, saying that it was impolitic to
ask an opponent – by which it meant Mr Manuel – for such information.
We fail to see why. If he refused to respond that might have justified their

going public with the allegations. If he admitted them in whole or in part
there could have been a demand that Mr Manuel withdraw from the panel.
An admission not followed by a withdrawal, would have provided political
ammunition for them to employ in order to discredit the process in the eyes
of the electorate and make political capital for the upcoming election.

[78] The problem for the EFF in approaching Mr Manuel directly was
that, if the answer was that the allegations were untrue, it would remove a
potential political weapon from their arsenal. No question of urgency arose.
There was ample time between 8 February and 27 March to make
enquiries. The tenor of the questions posed to Mr Mboweni reflected an
intention to exploit the source's 'facts' for political advantage. Making an
enquiry and being told the correct facts risked turning a possible bombshell
into a damp squib.

[79] The issue was squarely raised in Mr Manuel's replying affidavit
where he said that the EFF was evasive as to the nature and content of the
disclosures by its source and as to the steps it took to satisfy itself as to the
reliability of the source and the truth of the allegations. That prompted the
filing of another affidavit by Mr Malema and one by Mr Shivambu. Mr
Malema explained that these were tendered because Mr Manuel had raised
a dispute about the EFF's version of reliance on a source and disputed the
credibility of the information supplied to the EFF by the source. The
affidavits were tendered to demonstrate that the EFF had a reasonable basis
upon which to make the statements and to demonstrate that its conduct was
not unreasonable in the circumstances. He acknowledged that he had not
had direct contact with the informant and the latter's 'suspicions', as he
described them, were conveyed to him by Mr Shivambu.

[80] There is nothing in Mr Shivambu's affidavit about steps taken to
confirm the accuracy of the source's information. He said that the 'high
office which the informant held, coupled with the intimate knowledge he
reasonably knows (sic) about Mr Kieswetter given their proximity, is a
valid basis upon which the EFF could make its statements'. Mr Shivambu's
contention about the source's information being incorrect, was:
'That he turned out to be incorrect in the strictest sense in how he suspected the applicant
and Mr Kieswetter to be related to each other is not sufficient to discard the information
communicated to the EFF [and] is no basis to sanction it.' (Our insertion)

[81] Viewing these facts from the perspective of a contention that the
statement was published without the animus iniuriandi they fell woefully
short of discharging the onus on that issue. It is clear that the EFF published
the statement accusing Mr Manuel of nepotism and corruption on the basis
of statements made by its source that it made no attempt to check. Even if
it were given the same benefit that the conventional media are given in
regard to non-disclosure of their sources, that would not assist its case. The
allegations it made were clearly defamatory and concerned a public figure
given the responsibility of interviewing people and advising the President
on the appointment of the Commissioner of SARS. That is a most serious
allegation. To do so on the basis of a message of this type without any
endeavour to confirm the truth of the allegations is inconsistent with the
absence of an intention to injure. It demonstrates a willingness to wound
irrespective of the truth of the allegations.

[82] The position was made worse in regard to the continuing publication
of the statement after 27 March 2019 when Mr Manuel had said that the
facts were false and demanded a retraction and its removal. He issued a
statement demanding the production of evidence for three claims, namely,

that there were 'blood ties' between him and Mr Kieswetter; that there were
business relationships between them; and that he had previously appointed
Mr Kieswetter as Deputy Commissioner of SARS. (The latter allegation
was made in the statement but did not appear in the WhatsApp message.)
Mr Malema's response on Twitter when a journalist drew this statement to
his attention was: 'He can go to hell, we are not scared of him.' This
attracted 396 retweets and 1460 likes.

[83] The response to the letter of demand addressed by Mr Manuel's
attorneys to the EFF and Dr Ndlozi was equally defiant. It said that they
stood by the statement and refused to publish an apology. Any proceedings
would be vigorously defended. Then, on the basis of a media report
concerning Mr Manuel recusing himself from active participation in Mr
Kieswetter's interview, it proceeded to demand answers to no less than 46
questions, only two of which bore, and then only indirectly, upon the
assertions concerning his relationship with Mr Kieswetter. The EFF knew
that Mr Manuel insisted that the material parts of their statement were false.
Yet it did nothing to verify their accuracy either then or before delivering
their answering affidavit in the litigation. Instead, it claimed that there was
a personal relationship between him and Mr Kieswetter and that its
criticism of the process was justified. It asked that the application be
dismissed with an order for attorney and client costs.

[84] It is impossible to reconcile this attitude, persisted in to the bitter end
in the high court, with an absence of animus iniuriandi. The EFF knew that
the statement they published was defamatory of Mr Manuel. The claim that
they were genuinely mistaken about the accuracy of the information on the
basis of which they assailed Mr Manuel's reputation is inconsistent with an
attitude that they would persist in those allegations – the statement was not

removed from either Twitter account – irrespective of whether or not it was
accurate.

[85] The alternative argument based upon Bogoshi falls at substantially
the same hurdle. Seriously defamatory statements were made based upon
a single rather cryptic WhatsApp message, without any endeavour to check
the correctness of the facts in that message. No reason of urgency or
pressing public importance justified the failure to investigate further to
confirm the truth of the facts they were relying on. The attempt to justify it
on the basis of political free speech amounts to little more than adopting
the old adage 'All's fair in love and war'.

[86] For those reasons, 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 and there is no reasonable prospect of the judge's
conclusion to that effect being overturned. That is also the fate of the other
defences advanced by the applicants. On the merits therefore there is no
basis upon which to grant leave to appeal. We turn then to deal with the
contentions in regard to the relief granted by the high court.

The relief granted by the court below
Declaratory and interdictory relief
[87] The first question to be addressed in relation to the relief afforded
Mr Manuel, consequent upon the court’s conclusion that the statement by
the EFF was defamatory and unlawful, is whether the declaratory and
interdictory relief granted by the court below was appropriate. The
difficulty with interdictory relief is that it may prevent speech that will be
published in the future.  In Midi Television (Pty) Ltd t/a E-TV v Director of

Public Prosecutions (Western Cape)57 this court dealt with the danger
attendant upon orders for the prior restraint of publication. It had regard to
the decision of this court in Hix Networking Technologies v System
Publishers (Pty) Ltd and Another58 where a temporary interdict was sought.
At para 20 of Midi the following appears:
‘Where it is alleged, for example, that a publication is defamatory, but it has yet to be
established that the defamation is unlawful, an award of damages is usually capable of
vindicating the right to reputation if it is later found to have been infringed, and an
anticipatory ban on publication will seldom be necessary for that purpose. Where there
is a risk to rights that are not capable of subsequent vindication a narrow ban might be
all that is required, if any ban is called for at all. It should not be assumed, in other
words, that once an infringement of rights is threatened, a ban should immediately
ensue, least of all a ban that goes beyond the minimum that is required to protect the
threatened right.’ (Citations omitted.)
This was dealing with a restraint on anticipated publication, while the issue
here is repetition of publication that has already taken place.

[88] In the present case, the statement complained of was first published
more than two months prior to the matter being heard by the court below.
Despite protestations by Mr Manuel, the applicants remained defiant and
drew even more attention to the original publication that had been
retweeted, by their emphatic, if somewhat designedly crass, public
response. By the time of the hearing in the court below, the defamatory
statement had still not been removed and Mr Manuel, understandably,
sought interdictory relief in relation to the continued future publication.
The court below was not approached for an interim interdict. Mr Manuel
sought declaratory and interdictory relief in final terms.  The court below

57 Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) [2007] ZASCA
56; 2007 (5) SA 540 (SCA).
58 Hix Networking Technologies v System Publishers (Pty) Ltd and Another 1997 (1) SA 391 (A) at
401D-G).

held that the statement was defamatory and thus unlawful. We have shown
that, on that score, the conclusions of the court below were well founded.
The defences advanced by the EFF, whether based on the lawfulness of the
publication, or an absence of animus iniuriandi, were all properly rejected
on the papers. Where defamation is established and the defences to a claim
for an interdict are shown on the papers to be without substance, the grant
of a final interdict is permissible.59 Conversely, where the opposition to an
interdict is based on a colourable defence based on facts advanced in the
answering affidavit that cannot be rejected on the papers and require oral
evidence, a final interdict may not be given.60 Whether any interim relief
can be granted will depend on the application of the well-established rules
in relation to interim interdicts.

[89] In circumstances where the applicants were obdurate, and where the
integrity of an institution of state was being undermined on the basis of Mr
Manuel’s alleged corrupt and nepotistic conduct, an award of damages, in
due course, could hardly be said to be a viable and compelling alternative
to an interdict prohibiting further publication. Mr Manuel satisfied the
requirements for the final relief he had sought, which was granted by the
court below. The applicants’ reliance on this court’s decision in Tau v
Mashaba and Others61 is misplaced. That case concerned an application
for interim relief, pending an ‘action for defamation and damages’. The
court below, in that case, before allowing for possible defences to be
addressed, granted a declaratory order and an interdict in final terms. This
court, predictably, set those orders aside. That case is far from the facts of
the present application. In the present case, Mr Manuel satisfied the

59 Heilbron v Blignault 1931 WLD 167 at 169; Buthelezi v Poorter 1974 (4) SA 831 (W) at 838A-B.
60 Herbal Zone (Pty) Ltd v Infitech Technologies (Pty) Ltd and Others [2017] ZASCA 8; [2017] 2 All
SA 347 (SCA) para 37.
61 Tau v Mashaba and Others [2020] ZASCA 26; 2020 (5) SA 135 (SCA).

requirements for the declaratory and interdictory relief sought.
Consequently, those orders are not liable to be set aside.

[90] Insofar as it was suggested that those parts of the statement that were
unobjectionable could be clinically excised from the defamatory portions,
our response is as follows: It is not for this court to recast the statement so
that it might be unobjectionable and coherent. We decline the invitation to
do so.

The damages award
Purpose and proper procedure and developing the law
[91] We now turn to deal with the propriety of the award of damages by
the court below. We begin, first, by looking at the purpose of such an
award. An award of damages for defamation is compensation for an injury
to dignity and reputation, under the rubric of the actio iniuriarum.62 Put
differently, an award of damages is to compensate a plaintiff for wounded
feelings and loss of reputation.63 Where, in addition, patrimonial loss is
sustained, the Aquilian action is available.64

[92] Second, as presaged above, it is necessary to consider the proper
process for prosecuting such claims. An unliquidated claim for damages
must be pursued by institution of an action.65 No less so, when an aggrieved
victim of a defamatory statement seeks compensation. That has always

62 Le Roux v Dey (above fn 2) para 199.
63 Ibid para 151.
64 Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A) at 567G-576B.
65 As to the nature of an unliquidated claim for damages see Kleynhans v Van der Westhuizen NO 1970
(2) SA 742 (A) at 750G-751A. It is one where the quantum of the damages is not determined or
determinable.

been the position66 and it is reflected in the Uniform Rules of Court.67
Uniform Rule 17(2) compels a person claiming unliquidated damages to
use a long form summons and file particulars of claim, and Uniform Rule
18(10) obliges ‘a plaintiff suing for damages [to] set them out in such
manner as will enable the defendant reasonably to assess the quantum
thereof’ and plead thereto.68 In respect of damages claims for personal
injury the rule requires even greater specificity. Summary judgment
proceedings, regulated by Uniform Rule 32, are limited to claims based on
a liquid document, a liquidated amount in money, the delivery of specified
movable property, and ejectment. It is not a remedy available in respect of
claims for unliquidated damages.

[93] This is not mere technicality. Claims for unliquidated damages by
their very nature involve a determination by the court of an amount that is
just and reasonable in the light of a number of imponderable and
incommensurable factors. That exercise cannot be undertaken in
proceedings by way of application. As Harms DP said in Cadac:69
' … motion proceedings are not geared to deal with factual disputes – they are
principally for the resolution of legal issues – and illiquid claims by their very nature
involve the resolution of factual issues.'(Emphasis added.)

66 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1161, where
Murray AJP said:
'There are on the other hand certain classes of case (the instances given by DOWLING, J., are
matrimonial causes and illiquid claims for damages) in which motion proceedings are not permissible at
all.'
See also Cadac (Pty) Ltd v Weber-Stephen Products Company and Others [2010] ZASCA 105; 2011 (3)
SA 570 (SCA) (Cadac).
67 Rules regulating the conduct of the proceedings of the several provincial and local divisions of the
High Court of South Africa, originally published under GN R48 in GG 999 of 12-01-1965 (the Uniform
Rules).
68 Rule 18(4), which applies to pleadings generally, provides that:
‘Every pleading shall contain a clear and concise statement of the material facts upon which the pleader
relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity
to enable the opposite to reply thereto.’
69 Cadac op cit para 10; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2)
SA 277 (SCA) para 26.

[94] In Grindrod (Pty) Ltd v Delport and Others70 the court, in dealing
with Uniform Rule 18(10), said that it ‘enjoins any party claiming damages
to provide sufficient information to enable the opposing party to know why
the particular amount being claimed as damages is in fact  being claimed’.71
Failure by a plaintiff to meet the requirement of this rule might well compel
a defendant to resort to the provisions of Uniform Rule 18(12), in terms of
which the pleadings, because of the deficiency, are deemed to be an
irregular step.

[95] A defendant could, in the light of proper pleading, be motivated to
make a tender or settle a claim. It is true that claims for damages based on
defamation, as the many reported cases attest, are frequently opposed, both
on the merits and in relation to the quantum of damages allegedly
sustained. However, some are settled and those that are contested often
take place against the background of a secret tender.

[96] In contested cases, following on the close of pleadings, evidence is
led in an attempt to justify the amount claimed. A 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,

70 Grindrod (Pty) Ltd v Delport and Others 1997 (1) SA 342 (W).
71 Ibid at 346I-347A.

including his or her efforts, if any, to make amends after the publication.72
This list is not exhaustive.

[97] In Gelb v Hawkins73 the victim of a defamatory statement claimed
damages for contumelia and loss of reputation. After oral evidence was
adduced by both plaintiff and defendant, the trial court and this court
considered whether the plaintiff had proved his entitlement on either, or
both grounds.74 This included a consideration of whether the plaintiff, who
was an attorney, had been adversely affected in his practice due to his loss
of reputation. Unlike Caxton, there was no claim for patrimonial damages
in Gelb. As can be seen, there has to be purposeful, specificity of pleading,
followed by sufficient oral evidence, in order to enable the trial court to
determine an appropriate award.

[98] In De Flamingh v Pakendorf75 the plaintiff testified about the effect
upon him of a defamatory statement. The court heard from him about the
hurt he had experienced. He testified about how, within social circles, he
had been questioned concerning what had been said about him and the
impact on his professional life. He testified that the defamatory statement
had caused his colleagues to approach him with a measure of suspicion.
These aspects all featured in the determination of the amount of damages
awarded by the trial court.76

72 SA Associated Newspapers Ltd en ’n Ander v Samuels 1980 (1) SA 24 (A) at 45D-G; Muller v SA
Associated Newspapers Ltd and Others 1972 (2) SA 589 (C) at 595A-B.
73 Gelb v Hawkins 1960 (3) SA 687 (A).
74 Ibid at 692C-F and at 693G-H.
75 De Flamingh v Pakendorf en ’n Ander; De Flamingh v Lake en ’n Ander 1979 (3) SA 676 (T).
76 Ibid at 685H-686F.

[99] Even in undefended cases, in which unliquidated damages are
claimed, the position dictated by the applicable rules of court, has always
been that oral evidence is required before an award can be made. Uniform
Rule 31(2)(a), dealing with default judgments, reads as follows:
‘Whenever in an action the claim or, if there is more than one claim, any of the claims
is not for a debt or liquidated demand and a defendant is in default of delivery of notice
of intention to defend or of a plea, the plaintiff may set the action down as provided in
subrule (4) for default judgment and the court may, after hearing evidence, grant
judgment against the defendant or make such other order as it deems fit.’ (Emphasis
added.)

[100] Thus, in undefended actions in which unliquidated damages are
claimed, our courts, have insisted on hearing viva voce evidence in order
to make a proper assessment and issue an appropriate award. In Venter v
Nel77 the court, in dealing with a claim by a plaintiff for damages she
sustained as a consequence of being infected with HIV during a sexual
encounter, noted that it was dealing with an undefended action, and said
the following:
‘The practice in this Division is to hear some evidence on claims for damages, but
inevitably the enquiry is not as detailed or controversial as it would be were the matter
defended, were the defendant represented by counsel and were the evidence of the
witnesses who testified for the plaintiff tested by way of cross-examination and by the
defendant leading countervailing evidence.’78

[101] In Dorfling v Coetzee,79 faced with a claim for damages flowing
from a motor vehicle collision, in the form of an application for default
judgment, the court said the following in relation thereto: 80

77 Venter v Nel 1997 (4) SA1014 (D) at 1016.
78 Ibid at 1016A-B.
79 Dorfling v Coetzee 1979 (2) SA 632 (NC).
80 Ibid at 635B-D. The original text read:

‘Damages may be recovered on the basis of numerous causes of action, and one can
envisage cases, especially in cases of breach of contract, where the court can determine
damages without any reference to evidence in relation to the cause of action. On the
other hand, where the cause of action is delictual, damages can in most cases only be
determined after evidence has been led also in relation to the cause of action, for
instance in respect of assault, defamation, etc.’
In essence, the court held that in cases where damages are claimed in delict
one would, in the normal course, require evidence in relation to the
damages allegedly sustained. In motor collision cases, of course, questions
arise concerning negligence, contributory negligence and, where
applicable, the apportionment of damages, in relation to all of which oral
evidence is required.

[102] In New Zealand Insurance Co Ltd v Du Toit,81 dealing with an
application for default judgment, the court, in special circumstances,
permitted proof of damages by affidavit. The plaintiff was the insurer under
the Motor Vehicle Insurance Act 29 of 1942, of a motor vehicle owned by
Du Toit. The latter was involved in a motor vehicle collision, which
resulted in one Fourie being severely injured. Fourie consequently
instituted action against the plaintiff, which was settled by payment of
R5000 damages. In consequence of his non-compliance with certain
provisions of the statute Du Toit was liable to pay the plaintiff the amount
to which Fourie was entitled. It sued him alleging that Fourie's damages
were 'not less than R5000' and the action was undefended. The plaintiff
needed to prove that Fourie had been entitled to damages of at least R5000.

Skadevergoeding kan uit hoofde van verskeie skuldoorsake geëis word en mens kan jou gevalle voorstel
veral by kontrakbreuk waar die hof die skadevergoeding kan bepaal sonder enige verwysing na getuienis
oor die skuldoorsaak. Aan die ander kant waar die skuldoorsaak op delik gebasser word, kan die
skadevergoeding in die meeste gevalle slegs bepaal word nadat getuienis oor die skuldoorsaak ook gelei
is, bv aanraanding, laster, ens.’’
81 New Zealand Insurance Co Ltd v Du Toit 1965 (4) SA 136 (T).

[103] In exceptionally permitting the evidence on affidavit of a doctor in
relation to the nature of Fourie’s injuries, his pain and suffering and the
disability sustained by him, the court in New Zealand said the following:
‘At the hearing of this matter counsel sought leave to prove the amount of damages by
tendering an affidavit of Dr Wolfowitz which sets out the nature of the injuries, the pain
and suffering and the disabilities which Fourie sustained. Although I think it would be
dangerous to allow this type of practice I have nevertheless come to the conclusion on
the affidavit of Dr Wolfowitz that I would be erring if I did not grant the order as prayed.
The affidavit places it beyond question that the amount of damages suffered by Fourie
was, to say the least, R5000 and if I insist on verbal evidence I think I would merely be
causing unnecessary costs for which defendant is liable. On the facts of this case, and
bearing in mind that the defendant was served with the summons and combined
declaration in which his attention is drawn to the fact that R5000 was claimed and that
he has not seen fit to make representations to this court, I will accordingly grant
judgment as prayed.’82

[104] It must be emphasised that in that case the court cautioned against
not requiring verbal evidence in undefended cases and was careful to set
out its reasons for the exception in that case. New Zealand does not
dislodge the rationale for insisting on oral evidence, as set out earlier, so as
to enable a proper determination of damages in undefended cases and
especially in opposed matters. On the contrary, New Zealand reiterated that
oral evidence is the rule.

[105] Motion proceedings are particularly unsuited to the prosecution of
claims for unliquidated damages, whether in relation to defamation or
otherwise. We enquired of counsel representing Mr Manuel whether they
could refer us to any case law, in terms of which damages for defamation
were claimed and determined in motion proceedings. They cited Gqubele-

82 Ibid at 137B-D.

Mbeki.83 But, in that case, the court, relied on the judgment of the court
below in this case, to hold that there is no hard and fast rule against using
motion proceedings in a damages suit. Furthermore, so the court there said,
the rule only applied if disputes of fact arise and that in the case before it
what the claimants said was ‘largely undisputed’ and that if the matter went
to trial the deponents would merely repeat them. Neither judgment dealt
with the established procedure or the necessity for oral evidence. In the
present case the novelty of the procedure was not dealt with in the judgment
and it can hardly serve as authority for the approach in Gqubele-Mbeki.
Neither case can be seen as authority for departing from established
procedure and permitting damages claims based on defamation to be
pursued in motion proceedings without the need for oral evidence.

[106] That brings us to an issue that arose during oral argument before us.
Counsel representing Mr Manuel, faced with the difficulty of having
employed motion proceedings to claim damages, informed us that, in the
court below, they had submitted that since the defamation complained of
implicated Mr Manuel’s right to dignity and since, in terms of s 38 of the

83 Gqubele-Mbeki op cit fn 7. A similar procedure was followed in Hanekom v Zuma [2019] ZAKZDHC
16, but the judge did not determine the damages and referred that issue for oral evidence, although
without specifying the procedure to be followed in that regard. This part of the order was not the subject
of the application for leave to appeal dismissed by both this court and the Constitutional Court. When
the boot was on the other foot and Mr Malema alleged that he had been defamed he adopted precisely
the same strategy, but it received a frosty reception from the judge who 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.'
The case is Malema v Rawula [2019] ZAECPEHC 83 para 33 and it is set down for hearing in this court
in the next term.

Constitution he was entitled to appropriate relief, they 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. We were informed that this was part of a sustained
effort on the part of Mr Manuel’s attorney, to achieve that object for the
benefit of existing and prospective litigants. The court below, perhaps
because of the manner in which it approached the question of damages, did
not deal with that aspect at all.

[107] In relation to suggested developments of the common law and the
need to follow a structured approach, we referred in para 58 to the
judgments of the Constitutional Court in Mighty Solutions84 and
DZ obo WZ,85 where the Constitutional Court set out how an enquiry into
the development of the common law should be undertaken. Given that what
is being suggested is a novel approach to the procedure to be used in
pursuing claims for damages for defamation, it might be thought that we
are not being asked to develop the common law, but to exercise our
inherent power to protect and regulate our own process. But there is a
reason why developing the common law and protecting and regulating the
process of courts are both dealt with in s 173 of the Constitution. It is that
they are frequently opposite sides of the same coin, in that the development
of the one affects the development of the other. It is appropriate therefore,
when a change to the long-established procedure for resolving claims for
unliquidated damages is advanced, that a similar process is followed to a
proposed development of the common law.

84 Mighty Solutions op cit fn 46.
85 DZ obo WZ op cit, fn 47.

[108] We enquired of counsel representing Mr Manuel whether, when the
court below was urged to develop the common law in relation to the award
of unliquidated damages in application proceedings, the steps mandated by
the Constitutional Court were followed. More specifically, whether an
analysis of the existing position had been undertaken on behalf of Mr
Manuel, the rationale addressed, and a suggested development proposed,
taking into account the wider consequences in this area of the law,
including impinging on the applicable rules of court. Equally, if the
suggestion was that there was a deficiency, whether it was identified, and
a solution proposed. Counsel replied that this had not been done.

[109] These aspects were not foreshadowed, even tangentially, in Mr
Manuel’s affidavit in support of his case. In these circumstances it would
have been unfair to have required the court below to have addressed the
question merely by way of generalised submissions from the bar. It would
have been equally unfair on the applicants.86

[110] The amicus, in generalised terms, supported the approach of the high
court in all of its facets, including the award of damages. Its submissions
were premised on its concern about the dangers of misinformation and
disinformation being spread on social media platforms, which caused harm
to individuals or groups or to the public in general. It contended that when
a person, aggrieved by defamatory statements published on social media
platforms, sought legal redress on the basis of the infringement of a
constitutionally entrenched right, such as the right to dignity, a court was
obliged to provide effective and expeditious relief.  It supported the

86 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute
[2014] ZACC 6; 2014 (3) SA 481 (CC).

submissions on behalf of Mr Manuel, that victims of defamation of the kind
complained of by him should be able to approach a court on motion to seek
relief, including the recovery of damages.

[111] 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,87 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.88 In appropriate circumstances persons following this route
might, as pointed out earlier, be required to overcome the barriers to prior
restraints and have to deal with the availability of alternative measures, as
a potential bar, to achieving redress. However, seeking damages, instantly,
on application, is problematic for the reasons provided above. Counsel for
the amicus, like counsel for Mr Manuel, did not provide a proper basis for
departing from the established position of requiring evidence and did not
propose how damages might otherwise, especially in opposed matters, be
determined. In argument he indicated that if we held that a claim for
damages could not be pursued on paper, we should nevertheless reiterate
that an interdict, retraction and apology could be ordered.

[112] We accept that the spread of misinformation and disinformation on
social media platforms is, notoriously, a worldwide concern. This is

87 Buthelezi v Poorter 1975 (4) SA 831 (W).
88 Buthelezi v Poorter 1975 (4) SA 608 (W).

especially so in the European Union and the United States of America,
where legislative intervention and state regulation is being touted. We were
informed that the amicus was opposed to such intervention and regulation.
The spread of falsehoods that threaten or infringe the rights of individuals
and the public at large is a legitimate concern. If there are curial means of
addressing those concerns, distinct from legislative intervention, those
should be presented by litigants in a constitutionally acceptable fashion and
a court can then address them. In the present case that was not done.

[113] It appears that the simplistic view was taken that if one were to
provide victims of social media defamation with a quick and easy way of
seeking and obtaining sizeable damages awards on motion, that would
bring to a quick halt these kinds of transgressions.  We do not agree that
the problem can be resolved that easily. The 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. Careful thought should be given to the possible dangers
of the envisaged simplistic solution. It might well incentivise the abuse of
motion proceedings by undeserving, but well-resourced, plaintiffs and be
used in terrorem. It has the potential for stifling freedom of expression.

[114] We now deal with the alternative relief sought by Mr Manuel in his
notice of motion, namely, the referral of the issue of quantum to oral
evidence. It is true that a court, in motion proceedings, in terms of Uniform
Rule 6(5)(g), has a discretion to direct that oral evidence be heard on
specified issues with a view to resolving a dispute of fact or, in appropriate
circumstances, to order the matter to trial. Generally, however, a court will
dismiss an application when, at the time that the application is launched,
an applicant should have realised that a serious dispute of fact was bound

to develop.89 We would add that bringing application proceedings claiming
relief that is not appropriate to be sought in such proceedings, will
ordinarily be an a fortiori  case.

[115] Mr Manuel’s legal representatives, without regard to the Uniform
Rules and established practice, in relation to the necessity of proceeding by
way of an action to claim unliquidated damages, were clearly not
unmindful of what is set in the preceding paragraph. Indeed, it must have
been that awareness that caused them to seek, in the alternative, a
declaration that the applicants are jointly and severally liable to pay
damages and to refer ‘the quantification of the damages to oral evidence’.

[116] At this point it is necessary to consider the limited nature of what
appeared in the litigants’ respective affidavits and the brief reasoning of
the court below in relation to the award of damages. Mr Manuel, in his
affidavit in support of his case, did not complain of hurt feelings and was
thus not claiming compensation as solatium in relation thereto. The sum
total of his assertions in relation to his claim for damages is as follows:
‘Lastly, I claim damages for the injury to my reputation. I am advised and respectfully
submit that the quantum of my damages is readily capable of determination on the
papers. If this court should, however, not be inclined to determine the quantum of the
damages on paper, I ask that the determination of such quantum be referred to oral
evidence. Should I be awarded damages I will donate the entire amount to a worthy
organization.’

[117] It is true that, preceding what is set out immediately above, Mr
Manuel complained that his reputation had been affected and his dignity

89 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1153 (T) at 1162 and Adbro
Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A) at 350A-B.

undermined. However, this passage indicates that he was primarily
concerned, in his claim for damages, with the harm done to his reputation.
The applicants’ response to this was to state that Mr Manuel’s complaints
about the ‘prejudice’ he suffered was ‘unproven, generic and unspecified’.
They went on to say the following:
‘The applicant is a man of great stature and given his experience at the forefront of
politics for well over 20 years, it is unlikely that he suffered any harm as alleged. His
bringing this application was done for political purposes …’

[118] The high court dealt cursorily with the question of damages. The
following is what it said in relation to damages before it awarded the
amount of R 500 000:
‘Mr Manuel has indicated that should he be awarded damages he will donate the entire
amount to a charitable organisation.
Having regard to the foregoing and the general trend in recent times, I believe that an
award of R500 000 in general damages is merited.’

[119] The reasoning on which the award was based, as can be seen, was
sparse, with little attention paid to how best to determine the extent of
reputational loss. We accept that in considering the reasoning of a trial
court in relation to quantum, one should have regard to what was said in
the judgment as a whole.90 However, in the present case Mr Manuel was
primarily concerned with reputational harm, but provided no details in
relation to the reputational harm he suffered. This, as referred to above,
was seized upon by the applicants in their denial that Mr Manuel suffered
reputational harm. No details of what the court took into account in relation
to the extent of reputational damage, other than Mr Manuel’s limited say-
so is provided in the judgment. The court below did not deal at all with the

90 Dikoko v Mokhatla [2006] ZACC 10; 2006 (6) SA 235 (CC) para 97.

applicants’ challenge to Mr Manuel’s claim of reputational loss. It did not
pause to consider whether it should dismiss the application on the basis that
this dispute ought to have been foreseen, or on the basis that that issue
ought to have been dealt with by way of action. It did not deem it necessary
to consider referring the issue of quantum to oral evidence as sought, in the
alternative by Mr Manuel.

[120] Before us, counsel representing Mr Manuel lost their enthusiasm for
the alternative relief sought in the notice of motion. In line with what the
court said in Gqubele-Mbeki, they submitted that oral evidence would
serve no purpose as the facts before us would not change. Counsel asked,
presumably rhetorically, how a referral to oral evidence could assist in the
determination of damages? That, as we will demonstrate, with reference to
the facts of this case and generally, misconceives the role of oral evidence
in the determination of damages.

[121] It is clear that the dispute about the extent of Mr Manuel’s asserted
reputational loss could be fully explored and resolved by way of oral
evidence. Mr Manuel could, notionally, present evidence that those within
and beyond his circle of associates and friends, were taken in by what was
said by the applicants and consequently thought less of him, and that some
people did, in fact, shun him. A cross-examiner might enquire of Mr
Manuel whether his friends abandoned him, or whether he was dropped
from any of the boards of companies on which he sits. He could be asked
whether the reaction to the defamatory statement by those within his circle
was that he should ignore whatever the applicants said because the
statements complained of was typical of them. The applicants could adduce
countervailing evidence. The list of what might be explored and what
might emerge is long. For present purposes what is set out above will

suffice. It applies not just to this case but generally. If hurt feelings were to
be explored the court would get to hear first-hand from the victim of
defamatory statements about its impact and about the degree of personal
distress it caused.91 That is why courts have insisted on evidence before
determining damages.

[122] There is the added problem that, at least superficially, the amount
awarded appears extraordinarily high and not, as stated by the court below,
in line with the recent general trend. In its judgment on the application for
leave to appeal, the court below dealt with the submission on behalf of the
applicants that, comparatively, the award of damages to Mr Manuel was
unjustifiably high. The court below, impermissibly, attempted to
supplement its prior reasoning, by referring to cases where courts warned
that each case had to be decided on its own facts and that mathematical
calculations were impermissible. It also referred to a dictum of this court
in which it was said that an award of damages is ‘little more than an
enlightened guess’.92

[123] As recognised by the court below in the judgment refusing leave to
appeal, there is, no empirical measure to determine compensation for
damages for harm of this nature.93 The court, in determining an appropriate
award, must have regard to all the facts of a particular case. In Van der
Berg v Coopers and Lybrand Trust (Pty) Ltd  this court said that a court,
must, as best it can, make a realistic assessment of what it considers just
and fair in all the circumstances.94 It is true that the court went on to say

91 See ibid para 88. That is what the plaintiff did in De Flamingh v Pakendorf op cit, fn 5.
92 Van der Berg v Coopers and Lybrand Trust (Pty) Ltd 2001 (2) SA 242 (SCA) para 48.
93 Tsedu and Others v Lekota and Another [2009] ZASCA 11; 2009 (4) SA 372 (SCA) at para 25.
94 Van der Berg v Coopers and Lybrand Trust op cit, fn 90.

that the result represents ‘little more than an enlightened guess’. However,
for it to arrive at the ‘enlightened guess’, with the emphasis on
‘enlightened’, the relevant facts and circumstances must be placed before
it. The established practice and the Uniform Rules dictate that this is
achieved by way of oral evidence, pursuant to the institution of an action
for damages. That course enables the resolution of disputes and provides
the evidentiary material on which the courts can consider the factors set
out in para 96 above. ‘Enlightened guess’, was perhaps an unfortunate
description of the culmination of the process of determining damages.

[124] In regard to quantum, this court has repeatedly stated that each case
turns on its own facts and that comparisons with prior awards serve a
limited purpose.95 Awards in other cases might provide a measure of
guidance but only in a generalised form.96A cursory scrutiny of awards
from 2017 onwards will reveal that recent awards in serious defamation
cases, with defamatory statements having been widely published, were in
amounts that were a fraction of what was awarded in this case.97

[125] Counsel for Mr Manuel’s reliance on Bytes Technology Group v
Michael98 as support for the award of the court below demonstrates the
dangers of reliance on prior awards, warned against by our courts. It was
misplaced because there is a chasm of differences between that case and
the present. It related to defamatory statements by a disgruntled former
employee. A number of different defamatory statements over an extended
period of time were made within the context of the commercial world. The

95 Van der Berg op cit, fn 99, para 48.
96 Tsedu op cit, fn 98, para 18
97 Media 24 Ltd t/a Daily Sun and Another v Du Plessis [2017] ZASCA 33; Manyi v Dhlamini [2018]
ZAGPPHC 563; Mthimunye v RCP Media and Another [2007] ZAGPPHC 372; 2012 (1) SA 199 (TPD).
98 Bytes Technology Group v Michael [2014] ZAGPPHC 926.

plaintiffs were an Information Technology entity and its two senior
officials. They managed information technology for major retailers and
banks. The defendant, the disgruntled employee, repeatedly made
defamatory statements to the aforesaid clients and others, claiming to be a
whistle-blower in relation to fraud. He resorted to extortion and set
criminal proceedings in motion. Clients of the business reacted to this by
directing questions to the plaintiffs. To address the harm caused by the
defamatory statements money and effort had to be expended by the first
plaintiff. The defendant continued his vendetta by continuing to make
defamatory statements. Critically, all the necessary evidence upon which
the award was based was adduced over an extended period and the
evidence led by the plaintiff was subjected to extensive cross-examination.
Even then, the award which was considerable, given the multiplicity of
statements and actions and the attendant commercial consequences, was
less than in the present case. There is no sustainable comparison with the
present case.

[126] Reliance was also placed on Branko v Moffat and Another.99 In that
case two interviews were granted to two newspapers which had wide
circulation. In those interviews, the defendant, made defamatory
statements concerning the plaintiff, who was an internationally renowned
boxing promoter. The interviews were given by the head of a boxing
control body after the relationship between the plaintiff and the body had
soured.  The plaintiff, based on the oral evidence that was led and fully
explored, quite clearly suffered professional reputational harm and the
statements potentially destroyed his career. Significantly, in its judgment
the court referred to the extensive evidence that had been adduced that

99 Branko v Moffat and Another [2014] ZAGPJHC 304.

covered every aspect of every issue raised in that case. Half of what was
awarded in the present case was awarded in respect of each of those
interviews. Again, the dangers of comparing cases have to be guarded
against. But most importantly, the plaintiff there claimed damages by
instituting an action and extensive relevant evidence was adduced and
tested.

[127] It must be borne in mind that awards are to compensate, not to
punish. In McBride the Constitutional Court remarked that substantial
damages awards may unnecessarily stifle freedom of expression.100 That
too is something to be borne in mind in the determination of damages. In
this regard context is important. These aspects were not addressed by the
court below. For all the reasons set out above oral evidence was required
before making an award of damages. The applicants were forewarned that
this relief was going to be sought. They did not raise procedural objections
and the issue appears to be a narrow one, namely the extent of reputational
damages sustained by Mr Manuel. In these circumstances, exceptionally,
the matter would lend itself to such a referral. It should not, however, be
seen as endorsing as a general practice in defamation cases an application
for some immediate relief together with an application for the issue of the
quantum of damages to be referred to oral evidence. For the reasons we
have given the ordinary procedure in claims for unliquidated damages
should be by way of action.

The apology
[128] That leads us to the question whether the apology ordered by the
court below was appropriate. While there might be reservations concerning

100 McBride op cit fn 6, para 131.

the sincerity of a court-ordered apology, the Constitutional Court in Le
Roux v Dey considered remedies provided for in Roman-Dutch law that
had fallen into disuse. These allowed for the retraction of a defamatory
statement and an apology. The court also had regard to customary law and
tradition and concluded that respect for the dignity of others lies at the heart
of the Constitution, and that reconciliation between opposing parties at
different levels consists of recantation of past wrongs and apology for
them. It considered that the plaintiff in that case was entitled to an
apology.101 It must also be borne in mind that the apology in that case was
ordered in conjunction with an award of damages, not separately from it.

[129] In McBride the Constitutional Court referred to its earlier decision
in Le Roux v Dey102 and reiterated the importance of an apology in securing
redress and ‘in salving feelings’.103 It went on to have regard to the
plaintiff’s contention on appeal, that an apology in that case was
inappropriate and took into account that a media defendant was involved
and that there were law reform initiatives afoot in other countries.
Consequently, it was thought that ordering an apology in those
circumstances was not warranted.104

[130] Neither of these two judgments suggested that an order for
publication of a retraction and apology on its own and not in conjunction
with an award of damages would be an adequate remedy. The high court's
order for publication of a retraction and apology in this case was made in
conjunction with its order for damages. We have held that the latter should

101 Le Roux v Dey op cit, fn 2 paras 199, 202 and 203.
102 Le Roux v Dey op cit fn 2, para 197.
103 McBride op cit fn 6, para 134.
104 Ibid.

not have been made without hearing evidence. The applicants had
suggested in their challenge to the quantum of damages, that an apology
would be sufficient redress, but that suggestion can only be considered in
conjunction with the consideration of whether an award of damages should
be made and the quantum of that award. An apology has always weighed
heavily in determining the quantum of damages in defamation cases as
occurred in Le Roux v Dey.105 In our view, whether an order for an apology
should be made is inextricably bound up with the question of damages. As
the latter award falls to be set aside and referred to oral evidence, so too
must the order to publish a retraction and apology be set aside and referred
to the high court for determination after the hearing of oral evidence on
damages.

Costs in the court below
[131] The court below clearly took a dim view of the obdurate stance of
the applicants after the protestations by Mr Manuel. It gave consideration
to what it concluded was reprehensible behaviour of the applicants in
continuing to publish in the light of the disclosure of all the facts.  It
considered that the punitive costs order sought by Mr Manuel was justified.
We can find no fault with that conclusion and we bear in mind that courts
of appeal are generally slow to interfere with the exercise of a discretion
by a court of first instance in relation to costs unless the order was
capricious or based on wrong principle.106 That is not the case here.

Conclusions
[132] As stated earlier, there are no reasonable prospects of success in an
appeal in relation to the conclusions reached by the court below, that the

105 Le Roux v Dey op cit fn 2, para 196.
106 Fripp v Gibbon & Co 1913 AD 354.

statement was defamatory and unlawful. The same applies to the
consequential relief, other than the order to publish a retraction and
apology and the award of damages. The application for leave to appeal in
respect of those two aspects should therefore succeed and the application
for leave to appeal in respect of all other issues should be dismissed. This
means that part of the application for leave to appeal succeeds and the
appeal in relation thereto should, consequentially, be upheld. The
determination of the quantum of damages and whether a retraction and
apology must be published must take place after oral evidence has been
led.

Order
[133] The following order is made:
1.
The application for leave to appeal in relation to paragraphs 1 to 3
and 5 of the order of the court below is dismissed with costs,
including the costs of two counsel.
2.
In relation to paragraphs 4 and 6 of the order of the court below the
application for leave to appeal is granted.
3.
The appeal in relation to paragraphs 4 and 6 of the order of the court
below is upheld with costs, including the costs of two counsel.
4.
Paragraphs 4 and 6 of the order of the high court are set aside and
replaced with the following order:
‘1 The determination of the quantum of the damages suffered by the applicant
is referred to oral evidence.
2 The high court will determine in conjunction with its determination of the
quantum of damages whether an order for the publication of a retraction and
apology should be made.’

____________________
M S NAVSA
JUDGE OF APPEAL

_________________
M J D WALLIS
JUDGE OF APPEAL

APPEARANCES:

For Applicants:
Tembeka Ngcukaitobi SC (with him Kameel Premhid)
Instructed by:
Ian Levitt Attorneys, Sandton;
Lovius Block Inc, Bloemfontein

For Respondent:
Carol Steinberg SC (with her Michael Mbikiwa)

Instructed by:
Webber Wentzel, Johannesburg;
Symington & De Kok, Bloemfontein.

For Amicus Curiae:
Steven Budlender SC
Instructed by:

Power Singh Inc, Johannesburg;

Honey Attorneys, Bloemfontein.
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 17 December 2020
STATUS Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

EFF and others v Manuel (711/2020) [2020] ZASCA 172 (17 December 2020)

The SCA today gave judgment in an application by the EFF, its national
spokesperson, Dr Mbuyiseni Ndlozi, and its leader, Mr Julius Malema,  for leave
to appeal against a judgment of the Gauteng Division of the High Court,
Johannesburg in which a statement issued by the EFF and published on the
Twitter accounts of the party and Mr Malema, was held to be defamatory of Mr
Trevor Manuel, the former Minister of Finance.
The case arose from Mr Manuel's role as the chair of a committee appointed to
advise President Ramaphosa on the appointment of a new Commissioner for
the South African Revenue Service. After the committee's recommendation of
Mr Edward Kieswetter for the post was published, the EFF issued a statement
condemning the recommendation. It said that it was corrupt and nepotistic and
had been conducted in secret as a result of an alleged relationship between Mr
Manuel and Mr Kieswetter. The basis for these allegations was a WhatsApp
message addressed to the Deputy Leader of the EFF, Mr Floyd Shivambu. A
demand by Mr Manuel for a retraction was rebuffed in strong terms, leading to
him bringing an application against the EFF, Dr Ndlozi, who was responsible
for the statement and Mr Malema, who had posted it on his Twitter account.
The High Court held that the statement was defamatory and rejected the

defences advanced by the applicants. It ordered that the statement be removed
from both the EFF's and Mr Malema's Twitter accounts and that a retraction
and apology be published. It also awarded Mr Manuel damages of R500 000.
The SCA held that the statement was clearly defamatory and that it was neither
true and in the public interest, nor fair comment. The reason was simply that
the allegation of a relationship between Mr Manuel and Mr Kieswetter was
denied by Mr Manule and the EFF made no attempt to prove that such a
relationship existed. Instead it advanced a defence of reasonable publication
or absence of intention to injure Mr Manuel. In doing so it relied upon the
WhatsApp message. The defence failed because the EFF had made no
attempt to establish whether the information given to it by its informant was true.
It was not reasonable in the circumstances for it to have relied on it in order to
make defamatory statements and this unreasonable conduct showed that it
was intended to defame Mr Manuel.
In the result the application for leave to appeal on the merits was dismissed.
The SCA then considered the relief granted. It held that the High Court was
justified in making a declaratory order and issuing an interdict. However, it said
that claiming damages in application proceedings without hearing oral evidence
was impermissible. Such claims may only be pursued through a trial action.
The basis of Mr Manuel's claim to have suffered damages to his reputation was
disputed and could only be resolved by hearing evidence. Additionally, the
amount of the award far exceeded the awards in comparable cases.
The SCA accordingly granted leave to appeal in regard to the award of
damages and upheld the appeal against that award. In the special
circumstances of the case it referred that issue for determination after hearing
oral evidence. It also held that an order for the publication of a retraction and
apology could only be considered in the light of any damages award. Leave to
appeal was also granted in relation to that order and it was referred back to the
High Court for consideration after the hearing of evidence and the
determination of any damages award.