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LPL4802 PORTFOLIO MEMO SEPTEMBER 2021 SUPER SEMESTER UNISA LAW OF DAMAGES
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LPL4802 PORTFOLIO MEMO SEPTEMBER 2021 SUPER SEMESTER UNISA LAW OF DAMAGES DISTINCTION GUARENTEED (NO NEED TO PARAPHRASE)
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LPL4802 PORTFOLIO MEMOSEPTEMBER 2021 SUPER
SEMESTER UNISA LAW
OF DAMAGES
,
, QUESTION 1 (ESSAY)
QUANTUM OF DAMAGES AND SATISFACTION FOR NON-PATRIMONIAL LOSS
(INJURY TO PERSONALITY)
Study the case of Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA)
and answer the question below.
In para [92], the court exclaimed [sic], “An unliquidated claim for damages must be pursued
by institution of an action.” However, contrary to this accepted practice, the attorneys for the
respondent brought the claim of damages for defamation in an application proceeding.
Discuss fully, the reasons the court put forward in support of accepted practice, that general
damages for defamation must be instituted in an action proceeding. Refer to relevant case
law and legislation in your answer. (25)
[25 marks]
In this Case the SCA upheld a High Court ruling that a political party had defamed a
former politician by calling him “corrupt and Innepotistic” and describing a process over
which he was presiding “secretive”. The former politician had approached the High
Court after the political party posted a statement on Twitter, claiming that the statement
was false and damaging to his reputation. Although the High Court had held that the
political party had no defence to the publication of the statement, it commented that
the defence of reasonable publication – previously restricted for use by the media –
was available to non-media defendants as well. 1
1 Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) .
, The Supreme Court of Appeal noted that the political party had acted with malice and
had relied on untruths when making its statement, and therefore had unlawfully and
wrongfully defamed the politician. However, the Supreme Court of Appeal refused to
accept the extension of the defence of reasonable publication, and also found that the
High Court had incorrectly quantified the damages to be awarded and so referred the
matter back to the High Court for determination of an appropriate remedy. 2
On March 27, 2019 a statement from the South African political party, the Economic
Freedom Fighters (EFF) was posted on the EFF official Twitter account. The statement
accused former South African Minister of Finance, Trevor Manuel, of nepotism, corruption
and clandestine conduct in the appointment of the Commissioner of the South African
Revenue Service (SARS). Manuel recused himself from the interview of one of the
candidates, Edward Kieswetter, as Kieswetter had worked at SARS during Manuel’s time
as Minister of Finance. Kieswetter was later recommended by the panel as the preferred
candidate and was then appointed Commissioner of SARS. The tweeted statement
described the process as “patently nepotistic, and corrupt” and having been conducted in
secret, and referred to Kieswetter as “not just a relative of Trevor Manuel, but a close
business associate and companion.” It also characterized Kieswetter as having a “clear
connection to the white capitalist establishment” which meant that he would not “maximally
collect taxes.”3
The EFF Twitter account had over 725 000 followers at the time the statement was
tweeted and the tweet containing the statement was retweeted 237 times. Julius Malema
– the President of the EFF – tweeted the statement from his own Twitter account which
2 Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) .
3
Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) – para 32 of the High Court Judgment
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