EFF suffers second court defeat in a week

The Economic Freedom Fighters (EFF) party has been formally warned under the Electoral Act about the behaviour of its leaders in their treatment of journalist Karima Brown.

The high court also declared on Thursday that the party and its leader, Julius Malema, had breached the electoral code when they did not stop their supporters from “intimidating or threatening” Brown.

The judgment is the second court defeat for the opposition party in a week. Last week Thursday it was ordered to pay R500 000 in damages to Trevor Manual for defamation. However the reaction of the party has been very different in respect of the two court orders. The EFF said it would appeal the order in Manuel’s case whilst in Brown’s case, the party said it welcomed the judgment and would comply.

READ MORE: EFF ordered to apologise for Manuel ‘nepotism’ comments, must pay R500 000

Brown went to court after Malema doxxed her when he published on Twitter a screenshot of a WhatsApp message — with her cellphone number visible — that she had mistakenly sent on the EFF’s media WhatsApp group.

Brown said her WhatsApp message was meant to be sent to a group of her colleagues and related to an event the EFF was holding with the elderly in the run-up to the May 8 elections. Brown’s message said: “Keep an eye out for this. Who are these elders. Are they all male and how are they chosen. Keep watching brief”.

In an accompanying tweet, Malema claimed Brown was sending moles to the EFF’s event. The next day an EFF statement claimed that Brown was not a journalist but an ANC operative and state agent.

After the tweet was published, Brown received a barrage of threatening anonymous phone calls and WhatsApp and Twitter messages from EFF supporters. Despite requests from other journalists to delete the post, Malema refused. However at a press conference he said that no person should be threatened with rape or violent crime.

Brown also hit back, said Johannesburg high court judge Fiona Dippenaar, accusing Malema and the EFF unlawful acts and laying a complaint with the Electoral Commission of South Africa (IEC) that they had breached the Electoral Act and the code.

The Code requires registered political parties to respect the role of the media and “take all reasonable steps to ensure that journalists are not subject to harassment, intimidation, hazard, threat or physical assault by any of their representatives or supporters.”

Dippenaar said that there was no evidence to refute Malema’s claim that he did not intentionally release Brown’s cell number. But Malema and other EFF leaders did not take proper steps to “stop or stem the tide of abuse and intimidation”.

She said that, although Malema had said at a press conference that no one should be threatened with rape and violent crime, at the very same press conference “he made statements of and concerning Ms Brown which restated and emphasised the very basis on which the harassment of Ms Brown had been based”.

The code required that Malema and the EFF to take all reasonable steps to ensure Brown was not subject to harassment and intimidation, said Dippenaar.

In this case reasonable meant to take “active steps to admonish their supporters and to caution and instruct them, to refrain from their conduct,” she said.

In court, the EFF had argued that Brown’s own strident criticism of the EFF on a number of platforms — “outside the prescripts of journalistic pursuit” — was not entitled to constitutional protections afforded to journalists. They also said her court case was an abuse — intended to disrupt the EFF’s election campaign.

EDITORIAL: Juju’s words can hurt

But Dippenaar said that, while “there may well be merit in their criticism of her conduct”, these arguments lost sight of the fact that it was their conduct, and not Brown’s, that was the focus of the case.

“They [the EFF and Malema] have appropriate remedies at their disposal to address any improper conduct on the part of Ms Brown which they may perceive,” she said.

She also rejected as “speculative and untenable” the EFF’s argument that, if Brown had come forward to them with names and contact details of those harassing her, they would have taken disciplinary action.

However, Dippenaar would not order the EFF to pay the R100 000 as applied for by Brown.

She said while the EFF’s conduct must be severely criticised and condemned, Browns “strident and political tone” and “provocative stance” was a “weighty mitigating factor in determining an appropriate sanction”.

She also refused to order that the EFF and Malama apologise to Brown, saying Malema had already publicly apologised. While Brown considered his apology to be insincere — when a case was argued on paper, without cross-examination, she had to accept Malema’s version. 

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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