LPL4802-LAW OF
DAMAGE PORTFOLIO
OCT/NOV
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 exclai...
, 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. 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
1
matter back to the High Court for determination of an appropriate remedy.
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
1 Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) .
, 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
2
meant that he would not ―maximally collect taxes.‖
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 has over 2 million followers. In addition, the tweet and the statement received
3
media and online coverage.
After unsuccessfully requesting the EFF to withdraw the statement, Manuel sought
an urgent declaratory order that the tweet was defamatory, false and unlawful and
that the order was necessary to vindicate his reputation. He also sought an order
directing the EFF to remove the tweet from all their media platforms and interdicting
the EFF and its associated platforms from publishing the same or similar allegations
about him in the future; and ordering the EFF to publish an ―unconditional public
4
retraction and apology‖ Manuel also sought general damages for the defamation.
The Media Monitoring Africa Trust, a non-governmental organization, was admitted
as amicus curiae.
The South Gauteng High Court held that the tweet was defamatory – as a reasonable
person would understand the tweet to mean Manuel was corrupt and nepotistic which would
lower his reputation in the estimation of right-thinking members of society – and that
2
Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) – para 32 of the High Court Judgment
3 4
Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) – para 33 of the High Court Judgment
Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) – para 6 of the High Court Judgment
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