Deputy President of the Economic Freedom Fighters, Floyd Shivambu, says in papers before the Supreme Court of Appeal that an anonymous informant – who supplied the party with information found by a court to be defamatory against former finance minister Trevor Manuel – is prepared to testify.
In late May the South Gauteng High Court ordered the EFF to apologise to Manuel and pay him R500 000 in damages after Manuel sued the party for alleging in a statement that he was a business associate of, and related, to new SARS Commissioner Edward Kieswetter.
This after the EFF, in March, had described Manuel’s involvement in Kieswetter’s selection process as secretaive, “nepotistic” and “corrupt”. The EFF said it had based its statement, in part, on information from an anonymous source.
But the court ruled the party’s comments to be unlawful and false. The same court dismissed the EFF’s application for leave to appeal in mid-June with costs.
“We were confident that the court would arrive at the decision they took,” Manuel said after the appeal was dismissed.
After its application for leave to appeal was denied, the EFF filed papers for leave to appeal on Thursday in SA’s second highest court.
In its court documents, the EFF says the informant, whose identity is known to the party, is not only a “senior person who is employed in the executive structures of a state-owned company” but is also a “colleague” of SA Revenue Services (SARS) boss Edward Kieswetter. The source is “well-respected” in SA, it said.
The informant supplied the information that the South Gauteng High Court found to be false to the EFF via a WhatsApp message.
Shivambu, in his supporting affidavit, not only details why the party believed the information it had circulated was true, but also outlines further details about who the informant is.
Manuel’s attorney Dario Milo confirmed in a text message on Monday that Manuel intends to oppose the new EFF application.
‘Colleague of Mr Kieswetter’
Shivambu says that, in essence, Manuel has “objected to the existence, reliability and credibility of the informant”.
“In my view, there is no basis for these attacks on the informant, nor on the EFF’s bona fide reliance on the information he disclosed to us. The source is a senior person who has been employed in the executive structure of a State Owned Company.
“By that very position, and the information that the informant had at his disposal, the disclosure was made to the EFF.”
In its May 30 ruling, the South Gauteng High Court found that the EFF did not take reasonable steps to verify the defamatory allegations in the message from their informant prior to publication and did not give Manuel a chance to comment prior to publishing their statement. As such, the court found at the time the EFF could not reply on the defence of reasonable publication.
The court also found that the conduct of the party was “egregious and hurtful”. Prior to the court case, when Manuel wrote a letter to the EFF refuting the claims in its statement and asking for a retraction, the party’s leader Julius Malema replied in a tweet that the former finance minister “can go to hell, we are not scared of him”.
Shivambu, meanwhile, goes on to say in the party’s new application for leave to appeal that it is “not impossible to understand why the informant and the EFF would not want to disclose details about the informant’s identity in these proceedings”.
“The threat to his current and future prospects in providing information to the EFF, and which has been used to criticise Mr Manuel, who is well connected to members of government, could severely impact the informant’s prospects. Moreover, the informant is a colleague of Mr Kieswetter.”
‘Intimate knowledge; well respected’
Shivambu also says that “the high office which the informant held, coupled with the intimate knowledge he reasonably knows about Mr Kieswetter, given their proximity, is a valid basis upon which the EFF could make its statements”.
He adds: “That he turned out to be incorrect in the strictest sense in how he suspected [Manuel] and Mr Kieswetter to be related to each other is not sufficient to discard the information communicated to the EFF…
“[The informant] is well respected in South Africa. He wishes for his identity to not be disclosed to the open court, nor to [Manuel’s] legal representatives, nor to [Manuel] himself for that matter.”
Shivambu says that despite this, the informant is prepared to testify, albeit in camera, if called on to do so.
“Respectively, and for the reasons above, this ought to occur in the absence of [Manuel]. The Judge will then be free to question the informant regarding the contents of the WhatsApp message sent to me,” says Shivambu.
In terms of its SCA application, the EFF wants the court to set aside all previous judgments against it in terms of the defamation case as well as for the order to be set aside. Manuel has a month from the date of service to respond.