Analysis

Karima Brown’s Case “Pregnant With Political Intention” – EFF Counsel

Karima Brown took the Economic Freedom Fighters (EFF) and its president Julius Malema to court in an urgent application on the eve of last week’s general elections seeking: 

  • a declaratory order that the EFF and Malema had contravened Electoral Code
  • for an order issuing a formal warning to the first and second respondents in terms of section 96(2)(a) of the Electoral Act
  • and directing that the first and second respondents pay a fine of R 100 000, jointly and severally, the one paying the other to be absolved, in terms of section 96(2)(b) of the Electoral Act;
  • for an order directing the first and second respondents to publish an apology to the applicant

    “If this matter is not heard prior to the national elections there is a significant risk of a chilling effect on robust media reporting, which imperils the prospect of a genuinely free and fair and fair election,” she writes in her application. 

Brown took issue with Malema, accusing him of intimidating journalists and women following an incident in which she accidentally sent a message, meant for someone else, to the EFF’s WhatsApp group in which the media were invited to a breakfast function with the elderly. The message, to an unknown individual, instructed them on what they should look out for at the event. “Keep an eye out for this. Who are these elders. Are they all male and how are they chosen. Keep watching brief.” Brown deleted the message but not before Malema took a screenshot of it, which included her mobile number, and posted it on his Twitter account. 

Brown said she had received death and rape threats  as a result of her phone number being displayed on Twitter and blamed Malema. Malema has since apologised. 

Advocate Vuyani Ngalwana SC, representing EFF and Malema in the Gauteng High Court, laid out arguments for dismissing her urgent application. Apart from tearing into her motive for bringing the urgent application and questioning the jurisdiction of the court he pointed to the “utterances of the journalist which demonstrate vividly that her intention in respect of the EFF is not journalistic but political and that the EFF suspicion of the intention of her whatsapp message is eminently reasonable”.

Of the timing and the urgency of the application, six months after the incident, Ngalwana says: “…the applicant took issue with the alleged intimidation towards her and other journalists as long ago as November 2018. It is rather self serving for her to now approach this Court in a manner and the time that she does, and some six months after the cause of complaint. The timing of this complaint is plainly, pregnant, with political intention. The purpose is to bully the political party she despises and disrupt its officials’ election campaign during the busiest two weeks just before what is arguably the most contested national and provincial in this country’s history since the dawn of the universal franchise in 1994”.

Brown’s statement of intimidation to which Malema’s counsel refers was made on 25 November 2018. She said: “This threat of journalists, we have seen SANEF saying that they will be meeting with the EFF. I quite frankly think a meeting with the EFF is pointless. We’re going to see spectacle and drama as usual. They’ve used every opportunity to actually harass journalists…We’ve seen an incredible amount of race-baiting…”

Dismissing the reasons for the urgency of her application, Ngalwana said Brown had failed to comply with Rule 10 (a) and 10 (b) regulating electoral disputes and complaints which required inter alia, that the complainant “must set out clearly and succinctly circumstances that render the matter urgent and why he or she claims that he or she could not be afforded substantial redress at a hearing in due course. 

“There is no evidence before this court to suggest that the first and second respondents will do anything to prevent journalists from being able to cover the upcoming election fairly and freely”.

The advocate questioned the motive behind the application: “….this applicant is not interested in the substantive relief that she seeks; she seeks it for its nuisance value….She in any event does not properly quantify how she arrives at the R100,000. The nonchalance with which the figure is thumb-sucked is a vivid demonstration of her interest more in creating a nuisance for the respondents during the busiest election campaign in a most hotly contested national and provincial since the dawn of the universal franchise in 1994”.

Ngalwana goes on: “This case is not about harassment or intimidation of the applicant or the media by the first and second respondents. It is about a journalist gone rogue, and reacting with incommensurate outrage when the target of her relentless media attacks react in a manner that her own utterances reasonably justify”.

Brown’s Utterances 

  • 6 March 2019 Citizen “Why is a party which threatens woman journalists being allowed to contest elections?” she asked, adding that the IEC should investigate if the EFF is “fit to be a political party and if are they functioning in the constitutional parameters of a party”.

    “We need to ask the IEC how such a party can be on the ballot box. It threatens journalists. It encourages its supporters to make rape threats and sexual assault threats. It wants to dictate what I can do as a journalist. Where I can work. Who I can work with. It harasses women. It physically attacks us. How is such a party allowed to be part of a constitutional democracy?” she asks. “That’s the fundamental question.”

    “And they are never arrested. Fined or face any consequences for their actions. How do they promote democracy. How do they live up to the bill of rights. That’s my question. Today it’s me. Tomorrow it’s person x. This is how fascism starts,” she added. https://citizen.co.za/news/south-africa/special-feature/2096515/i-was-threatened-with-rape-and-violence-following-malema-tweet-karima-brown/

  • 7 March 2019 Radio 702

    EFF has toxic masculinity and misogyny in how it deals with women – Karima Brown

  • 8 March 2019 Tweet attaching text message appearing to be from Brown: “Kate can you give me the process of how I lay a charge against Julius Malema and end EFF. I want to take the matter to the electoral Court. I have a case number from the police who is investigating The matter as well. Kind regards Karima”. Kate would be Kate Bapela of the Independent Electoral Commission (IEC)
  • 26 April 2019 Star. “What I want is for a court to record that I, Karima Brown, stood up against the fascism and bullying from the Economic Freedom Fighters.”
  • 26 April 2019. Citizen. “She says she’s not doing it to win, but rather to make a bold statement against a party which has a history of bullying journalists”. 

Relationship Between Citizens & Journalists

On the relationship between citizens and journalists with respect to media freedom, Ngalwana says: “Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected….

“In Khumalo and Others v Holomisa 2002 (5) SA 401 (CC), the Constitutional Court held that:

“[22]   … The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. As Deane J stated in the High Court of Australia,

‘. . . the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media’. The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression….”

“While the first and second respondents appreciate that the media plays a bona fide and a vital part in our democracy, they also recognise that journalists can be motivated by their personal prejudices and biases which define the work that they do.

“As the renowned investigative journalist, John Pilger, once observed in a 1996 lecture titled “The Hidden Power of the Media”:

‘There are many journalists who are troubled by their own place in the so-called media society, but are also worried for their own jobs’.

“Perhaps the latter observation is what drives the applicant to excesses that go way beyond what can reasonably be termed journalistic duty”.

On Ethical Journalism

“The preamble to the South African Press Council: Code of Ethics and Conduct for Print and Online Media (“the Press Code”) provides as follows:

“The media exist to serve society. Their freedom provides for independent scrutiny of the forces that shape society, and is essential to realising the promise of democracy. It enables citizens to make informed judgments on the issues of the day, a role whose centrality is recognised in the South African Constitution…

As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means always striving for truth, avoiding unnecessary harm, reflecting a multiplicity of voices in our coverage of events, showing a special concern for children and other vulnerable groups, exhibiting sensitivity to the cultural customs of their readers and the subjects of their reportage, and acting independently.”

The applicant cannot reasonably be accused of any of these journalistic principles – at least in relation to the first and second respondents. We shall demonstrate this, and with a view to showing that the suspicion with which the first and second respondents considered and interpreted the applicant’s WhatsApp message to the EFF’s WhatsApp Group was eminently reasonable.

“The first and second respondents are therefore entitled at the very least to fair treatment. Journalists are not free to expound their own personal, political views as news and journalistic opinion. Fair reporting requires that they temper their own prejudices and beliefs. That is the point of a non-partisan media.

Failure to Meet the Test of Objectivity, Fairness & Professionalism

Ngalwana argues that Brown has failed the test of objectivity, fairness and professionalism. “Her personal disdain, indeed undisguised dislike for the respondents, is beyond question as demonstrated by her own publicly documented utterances. So strong is the applicant’s hatred for the EFF that she is on record as instigating that it be barred from contesting this election.

“The public utterances that the applicant has made about the EFF are not the utterances of a dye-in-the-wool journalist. They are utterances of a trenchant political opponent on a personal mission to rid our constitutional democracy of the third largest political party and a most effective opposition.

“It is patently clear from these public utterances by Ms Karema Brown that she hates the EFF with a passion and believes, among other things:

  • that the EFF is not fit to be a political party;
  • that the EFF must be investigated to establish whether it functions as a political party;
  • that the EFF must be barred from contesting this election; and
  • that the EFF must not be allowed to be part of this constitutional democracy.

“Brown does not end there. She further tells South Africa that she has not brought this application in order to win it; she tells South Africa that she brings this application in order to make a bold statement against the EFF that she describes as fascist, not deserving to contest this election and not deserving to be part of this constitutional democracy.

This is the context in which the respondents viewed Ms Brown’s WhatsApp message. Their suspicion of her motive in these circumstances is, with respect, entirely reasonable”.

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