AS IT HAPPENED | Sanef vs EFF: Equality hears claims & counter-claims of toxic messages on day 1

2019-08-05 10:36

The South African National Editors' Forum's (Sanef) Equality Court case against the EFF starts in the Gauteng High Court in Pretoria on Monday.

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Last Updated at 14:19
05 Aug 16:55
Proceedings have wrapped up for today. The case resumes at 10am tomorrow.

05 Aug 16:03

05 Aug 15:56

05 Aug 15:55
Ngcukaitobi is questioning why the journalists have approached the Equality Court based on their occupation which is fundamentally different to race and gender.

05 Aug 15:49
Ngcukaitobi says when Malema went to the Zondo commission of inquiry when Pravin Gordhan was testifying, he went there to criticise him and Cyril Ramaphosa for "whitewashing" the nine wasted years.

05 Aug 15:48

05 Aug 15:46
Advocate Ngcukaitobi: Ms Munusamy knew that what Mr Malema was asking for was honesty.

05 Aug 15:44

05 Aug 15:43
Ngcukaitobi: No sensible basis for saying that Mr Malema must tone down his rhetoric. He is a politician!

05 Aug 15:43

05 Aug 15:41
Advocate Tembeka Mgcukaitobi is addressing the court. He represents the respondents - Mr Malema and the EFF.

05 Aug 15:26

05 Aug 15:21

05 Aug 15:20

05 Aug 15:16
Berger: The claimants have a clear right to interdictory relief because it is the only relief, framed as we have framed it, that will bring this end to this sustained attack against journalists.

05 Aug 15:12

Berger: As I submitted earlier, we live in the real world where when the EFF says, "Fighter let's go" then its supporters act on that. We saw that with the incident at the Vodacom stores which is canvassed in the papers. It's not irrelevant and it shows a specific cause and result, and there's no reason, objectively, to say there is no similar cause and effect in relation to Mr Malema's and the EFF's tweets and statements and the tweets of their supporters.


05 Aug 15:06
Berger (Referencing his cause and effect argument): My lady, otherwise, objectively, this is all just coincidental. It's just coincidental that Mr Malema made a speech where he called supporters to action, it's just coincidental that the supporters then said they were acting in his name, there's no connection between the two ... And with respect my lady, that argument is so far-fetched that it simply cannot sustain itself.

05 Aug 14:46

Berger: We submit my lady, that objectively, if one looks at Mr Malema's utterances, if one looks at the tweets of the EFF following the speech, if one looks through the chronology at all the tweets that followed, objectively there is a cause and effect apparent in the chronology, objectively Mr Malema's speech spurred his supporters on to launch a sustained and targeted attack on the journalists singled out by him and other journalists.


05 Aug 14:37
Berger argues that if someone is "acting appallingly in your name, making vile, abusive, harassing, intimidatory statements against journalist whom you know and they're doing it in your name, and if it's not your intention that that be done, then surely you have a responsibility, and our submission that the EFF and Mr Malema had a responsibility to say 'not in our name', and call on their supporters to tone it down".

05 Aug 14:29

The court has returned from lunch.

One of the first matters Daniel Berger, SC, who is representing Sanef and five individual journalists, begins with is a letter Sanef wrote to the EFF in the latter part of 2018.

Sanef's leadership requested a meeting with the EFF over intimidation concerns.

Bergers says if it's true it wasn't the intention of the EFF and Malema to incite their supporters to attack journalists, why didn't they respond to Sanef's communication or request for a meeting.


05 Aug 12:53

RECAP: This is part of the argument Julius Malema makes in his affidavit in this matter: "I also hasten to point out that Twitter is entirely divorced from reality: I know for a fact that the EFF won nearly every 'poll' conducted on Twitter in the run-up to the elections. It ultimately lost the elections and came third."


05 Aug 12:51
Berger notes that the EFF says Munusamy hasn't provided a date when she was contacted by the former SSA operatives, how many times she communicated with them, nor did the give the shopping centre where she claims three men intimidated her.

05 Aug 12:49
Munusamy says she was warned by former State Security Agency operatives warned her that she was in danger of being attacked.

05 Aug 12:48
The EFF argues Ranjeni Munusamy's evidence must be rebuffed or it should be allowed to cross-examine her on her evidence. Berger says the EFF also wants to cross-examine Munusamy about her claim that the tweets she received from Mr Malema and supporters led to a breakdown.

05 Aug 12:46

05 Aug 12:45

05 Aug 12:42
Berger is going through arguments why the Equality Court is the right arena for the complaints to be heard.

05 Aug 12:24
Berger says the court has the jurisdiction to hear the complaint before it, and that the complainants are entitled to relief as set out in the Equality Act.

05 Aug 12:22
Berger points out that the onus is on journalists to provide substantiation and/or proof for the claims that they make. Thus, they are not just free to say what they want.

05 Aug 12:21

Berger: Our law is capable of limiting journalists in what they write and what they say.


05 Aug 12:19

05 Aug 12:18

The judge points out that "the freedom of expression and the media is not unrestrained". She adds, "the Constitution allows for its limitation in certain instance".

Berger says he agrees with her.


05 Aug 12:13
Berger: A compliant press is the last thing you need in this country.

05 Aug 12:11

05 Aug 11:56
Berger notes that some journalists have toned down their reporting "because of this fear that they may be subject to attacks by the respondents or their supporters if they report critically on the EFF".

05 Aug 11:53
This is the tweet Berger was referring to.

05 Aug 11:46
Berger points out that when it was noted that the EFF had not condemned a user on Twitter who pledged support for the party after he threatened to kill News24 editor-in-chief Adriaan Basson, Julius Malema tweeted "We won't do it" in response. "My lady, that is an endorsement of violence."

05 Aug 11:39

Berger argues that due to Mbuyiseni Ndlozi and Hlengiwe Mkhaliphi (EFF leaders) tweeting about Vodacom's purported links to "white monopoly capitalism" there were very "real world" consequences in that people who were EFF supporters (or said they were supporters) trashed Vodacom soon after.


05 Aug 11:35
Berger: For the respondents to deny this (the link between what they say and what their supporters do) is to deny what we all know.

05 Aug 11:34

Berger points out that directly because of Pauli van Wyk's critical reporting on the EFF (on the VBS looting matter) she faced abuse.


05 Aug 11:33
Berger points out to the court how journalist Pauli van Wyk faced abused on Twitter after Malema called her "Satan" in a tweet. He submits that Malema and the EFF knew this would lead to supporters of the party taking the party's lead and attacking their targets.

05 Aug 11:26

05 Aug 11:25

Berger argues that people have selective hearing and sometimes they mishear, thus they may only have heard the parts of Malema's speech which urged supporters to attend to people "decisively" or to "cut off the head".


05 Aug 11:24
Berger references another part of Malema's speech in which he urges his supporters to deal with female journalists "gently" and more broadly not to kill any of the people he mentioned in his speech. The respondents argue that this shows Malema's speech in general was not a call to violence.

05 Aug 11:21
Berger references Malema's comments on "the Ramaphosa defence force", who he told his supporters to "attend to decisively". Berger argues this too was a call to violence.

05 Aug 11:20
Berger says Malema's comments were "upping the ante", suggesting journalists who reported critically would be treated more severely.

05 Aug 11:18
Berger references comments by Malema on 20 November 2018 made outside the Zondo commission of state capture. He says Malema's words must be given there ordinary meaning. He says this is the meaning the ordinary person listening to Malema's speech will get. Malema's words are a "call to violence".

05 Aug 11:10
Berger points to a tweet that Julius Malema posted four months before the speech he made outside the state capture hearing. Malema, in his tweet, said journalists who act like politicians must be treated like politicians. In the tweet, Malema specifically journalist Ranjeni Munusamy.

05 Aug 11:08

05 Aug 11:06

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