A majority judgment of the SCA held that Rawula “had established a sustainable foundation by a way of evidence that a defence or truth and public interest or fair comment was available to be perused”.
“There was nothing in the evidence to gainsay his claim that he had obtained access to privileged information because he served on the CCT,” the SCA said.
The SCA also held that Malema’s decision to not challenge in court media reports alleging that he personally benefited from VBS funds was “telling”.
The court upheld Rawula’s remarks that Malema and Shivambu ran the EFF like it was their own organisation and that they centralised the millions of rand received from party membership, parliament and provincial legislatures, as well as councillors.
This was evidenced, according to Rawula, by the fact that the party’s financial records had not been tabled before the CCT since 2014.
“When the respondent and others questioned this, they were chastised, treated with disdain and threatened with removal from parliament. As a result, in the respondent’s words, they had to ‘think with [their] stomachs’, rather than holding the executive of the EFF accountable,” the court said in summarising Rawula’s argument.
Malema sought a final court order interdicting Rawula from publishing more Facebook posts making such allegations and also wanted him to pay R1m in damages.
The SCA dismissed the appeal, upholding the high court judgment that Malema had failed to make a case for a final interdict.
“Moreover, since the appellant [Malema] accepted that there was no risk of future republication by the respondent [Rawula], an interdict could not be granted, as there was nothing left to restrain and no risk of future injury. The appeal was accordingly dismissed.”