Court orders EFF to apologise for Gqubule and Harber ‘StratCom’ claim

A court has ordered the Economic Freedom Fighters (EFF) to apologise to veteran journalists Anton Harber and Thandeka Gqubule for saying they were StratCom journalists, referring to the notorious apartheid propaganda unit that peddled disinformation about Winnie Madikizela-Mandela.

In the wake of Madikizela-Mandela’s death in 2018, a documentary on her life was aired by Huff Post South Africa. In it she talked about StratCom, naming Harber and Gqubule as journalists that did the work of StratCom. Though Huff Post later apologised to Harber and Gqubule, the allegation that the two were StratCom journalists was taken up by the EFF, whose leader Julius Malema had long been close to the liberation icon. 

Gqubule and Harber then took the EFF and its national spokesperson Mbuyiseni Ndlozi to court for defamation. On Thursday, the Johannesburg high court found in favour of the two journalists. The EFF and Ndlozi must also pay R40 000 to both Harber and Gqubule in addition to taking down the offending statements from all their platforms.

Judge Lebogang Modiba said: “In over 20 years, no shred of evidence has been advanced [for the allegations], yet they are published as a foregone truth, despite knowledge by the publishers that the allegations have not been verified.” 

Modiba judged that all the defences raised by the EFF to the defamation claim — that it was true, that it was fair comment and that it amounted to reasonable publication — failed. The judge said that when Madikizela-Mandela testified before the Truth and Reconciliation Commission, she admitted that she had no direct evidence for the claim. 

The EFF and Ndlozi “have not presented any evidence before this court of the truthfulness of the allegations. They clearly did not have such evidence when they published the statements. They have not taken the court into their confidence regarding the steps they took prior to publishing the statements to verify their truth.”

The fact that Madikizela-Mandela had made the claim was not sufficient. “The standing of a person does not absolve them from the responsibility to back up the allegations with evidence,” Modiba said.

A defence of fair comment could only succeed if the underlying facts were true, the judge added. Therefore this defence had to fail as well. 

Modiba disagreed with an earlier high court judgment that found that the defence of reasonable publication was available to non-media. In the earlier defamation case, between Old Mutual chairperson Trevor Manuel and the EFF, Judge Elias Matojane extended the defence to non-media parties.

But Modiba said she disagreed with Matojane. The media was bound by ethical rules, she said. “There is no mechanism that regulates the conduct of general members of the public … on social media. Extending this defence to non-media players will lower the threshold for defamation, thereby encouraging reckless publication.”

“The respondents conduct in this case demonstrates how toxic social media can be in the absence of regulation,” she said. 

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