Holding public servants accountable in the public domain should not amount to defamation. This was confirmed in Mabuyane v Malema (Eastern Cape Division, East London, case number: 2026-093607) in a high court judgment delivered on 23 June 2026.
Judge Johannes Eksteen’s ruling is an outstanding victory for free speech, political accountability and common sense in South African law. It is one of the better recent high court judgments on defamation involving politicians.
Public figures occupy a unique position in a constitutional democracy. They enjoy the same right to dignity and reputation as everyone else but public office also comes with public scrutiny.
The recent high court judgment has again placed this delicate balance under the spotlight.
The dispute arose after MP Julius Malema stated that Eastern Cape Premier Oscar Mabuyane had "stolen" a master's degree from the University of Fort Hare.
Mabuyane said the statements implied fraud, dishonesty and criminal conduct. Mabuyane sought an order declaring the statements defamatory and unlawful, an interdict restraining Malema from repeating them or similar statements and that whether an apology, retraction and damages be determined later by way of oral evidence.
The court accepted that accusations of fraud and dishonesty were inherently defamatory. However, that was not the end of the inquiry. Judge Eksteen held that it was a question of law whether Malema’s statements were reasonably capable of conveying to the reasonable reader a meaning that defamed Mabuyane.
Mabuyane’s case rested on the technical argument that a degree could not be “stolen”. While correct on a narrow reading, this missed the point. The court rightly held that the real sting of Malema’s statement — understood by any reasonable person — was that Mabuyane had acted dishonestly and fraudulently to obtain the qualification.
Having lost the semantic argument, the case turned on whether Malema could establish a defence that his statements were substantially true and made in the public interest. In support of this defence, Malema relied on a forensic report commissioned by the University of Fort Hare.
The report found that Mabuyane's master's research proposal had effectively been authored and continuously refined by his own supervisor and the supervisor's staff, with Mabuyane titivating and paraphrasing here and there. It further found that a letter motivating his admission was later altered to suggest he held the very master's degree he was applying to upgrade from, in support of a PhD application.
Mabuyane's response to the report was that it was irrelevant because it dealt with registration irregularities and not the "theft" of a degree.
In legal proceedings, a party that fails to dispute a damaging factual allegation is treated as having admitted it. Silence is not a defence. Mabuyane never substantively engaged with the report's findings; the judge accepted them as true. The findings support Malema's defence of truth and public interest.
Mabuyane chose to fight the literal meaning of "stolen" rather than confront the substantiated findings against him. That is not a defence. The court was correct not to treat it as one. The judgment could have been even stronger by more forcefully criticising Mabuyane’s legal strategy. Bringing an urgent defamation case while dodging the core evidence looks like an attempt to intimidate critics rather than clear his name. The court was perhaps too polite about this.
The lawfulness of the sitting premier’s acquisition of a postgraduate qualification, particularly in an election year, is a matter for public scrutiny. Accordingly, the court held that Malema’s statements were in the public interest.
Notably, the court declined to recognise Malema's alternative defence that, as an MP, his public statements on a matter of public concern attracted qualified privilege. The court also declined to recognise any broader rule that politicians enjoyed blanket protection from defamation liability simply by virtue of their office.
While correctly rejecting blanket qualified privilege for politicians, the court should have used the opportunity to underline that political speech on matters of public concern deserves heightened protection.
The judgment sends a clear message: public accountability is not defamation.
- Rupert Candy Attorneys Incorporated