The Economic Freedom Fighters will head to the South Gauteng High court on Friday seeking leave to appeal a recent ruling that found against the party in a defamation suit brought by former Finance Minister Trevor Manuel.
The same court ruled on May 30 that the EFF was guilty of defamation against Manuel, and that a statement it had circulated on its social media platforms relating to the former minister and the appointment of new SA Revenue Service boss Edward Kieswetter was "unlawful".
It also ruled that the EFF should make a public apology, remove the statement from all its platforms and pay R500 000 in damages to Manuel. The EFF indicated hours after the ruling that it would seek leave to appeal the judgment.
The EFF statement, which the court found to be unlawful, alleged that Manuel favoured Kieswetter as the preferred candidate to head up the tax agency because the two knew each other and had previously worked together, among other things.
The party also claimed that the interview process for candidates for the top job was done in a "secretive" manner. Manuel was the chair of a selection panel tasked with conducting interviews. The panel, appointed by Finance Minister Tito Mboweni, did not, however, make the final appointment of the successful candidate and could only make recommendations.
Here's everything you need to know ahead of Friday's court application:
1. Did Manuel and Kieswetter know each other prior to the interview process?
Yes. Manuel indicated in his court papers that the two knew each other prior to the interview process because Kieswetter had served as deputy SARS Commissioner when Manuel was Finance Minister. He also indicated that the two had remained on friendly terms. It was for this reason that Manuel said he had recused himself from Kieswetter's interview even though the rest of the panel had not asked him to do so. He had insisted due to an "abundance of caution".
The EFF in its court papers takes issue with this, arguing that Manuel should have recused himself from the interview process of all the candidates instead. It is their case that the other candidates may have been disadvantaged as they may not necessarily have known that there was an existing relationship between Manuel and Kieswetter. Had they known, they may also have requested Manuel's recusal.
2. Was the interview process done in "secret"?
The interview process was done according to recommendations made by the Nugent Commission following its inquiry into administration and governance at the tax agency, which led to the eventual axing of former SARS boss Tom Moyane. In its ruling against the EFF, the court found that because the EFF was present when retired Judge Robert Nugent presented his report, including his recommendations, the party should have been aware that Nugent had recommended that the interviews be done in private. If the EFF wanted to take issue with this recommendation, it should have raised it then, the judgment said.
3. So who actually appointed Kieswetter?
The SARS boss is appointed by President Cyril Ramaphosa on recommendations from the panel.
The panel made its report public as well, which indicated that Kieswetter had come out as the top candidate followed by former acting SARS boss, Mark Kingon.
4. Why did the court find that the EFF's statement on the matter amounted to defamation?
The court took several matters into account, but more specifically, it found that the EFF had presented no evidence that its claims about Manuel were true.
"The respondents [EFF] admit that they lacked proper facts because they were not provided with meaningful information," the judgment read. The court found that as part of its defense, the EFF had only referred to "peripheral facts" such as the lack of transparency, among other things. "All these are peripheral facts which are unrelated to the sting of the defamatory statement in respect of Mr Manuel."
5. Where did the information that the EFF relied on come from?
The EFF argued that the publication of its statement was reasonable because it acted in "a manner akin to a whistle-blower" as it relied on information that was given to it by a confidential source. They accepted the statement to be true and "had no reason to doubt".
According to the judgment, the EFF based their claim that Manuel was related to Kieswetter on an "allegation in an undated SMS". The judge found they took no reasonable steps to verify whether this was true or not before publishing their statement.
6. Why does the EFF maintain that it was in fact correct to publish the statement?
The EFF relies on several arguments as to why it should be granted leave to appeal on Friday.
Some of these include that it was not given an opportunity to present the court with the various steps it had followed to check whether the claims it had distributed were in fact true. It also said that Manuel had failed to show how his reputation had been harmed by the remarks and that its statement was "political speech" and therefore exempt from being considered as defamation.