By Lehlohonolo Lehana.
The Gauteng High Court in Johannesburg has reserved judgement in the defamation case involving African National Congress (ANC) Secretary General Fikile Mbalula and party’s NEC member Dr Nkosazana-Dlamini Zuma.
Mbalula is suing Dlamini-Zuma for defamation after she claimed, during an August interview on African Renaissance podcast, that Mbalula paid people to vote for him as secretary-general and re-elect President Cyril Ramaphosa as ANC president at the party’s 2022 Nasrec conference.
Dlamini-Zuma also claimed that the culture of using money to influence ANC leadership contests stretched back to Ramaphosa’s 2017 campaign, known as CR17, which propelled him to his first term as ANC president and, later, president of South Africa. Dlamini-Zuma had challenged Ramaphosa for the ANC presidency at that year’s conference.
Her legal team placed an affidavit by an ANC delegate, Mandla Themba Sibiya, before the court. Sibiya claimed he witnessed Mbalula distributing money to delegates at the conference and that he had also benefited.
Dlamini-Zuma’s legal team relies on this account as direct evidence supporting her version of events and as proof that there is a genuine dispute of fact over what happened at Nasrec during the conference.
Arguing Mbalula’s case, Advocate Smanga Setheni argued that Dlamini-Zuma could not rely on making broad, unproven allegations in motion proceedings – a legal process decided entirely on written affidavits rather than witness testimony.
He argued that Sibiya’s claims fell into that category of baseless assertions and should be thrown out.
He also raised the fact that Sibiya’s affidavit was only deposed on 4 September, a month after Dlamini Zuma’s interview, and that it was a police affidavit, not a confirmatory one.
Setheni told the court Dlamini-Zuma’s “false and injurious statements” were both damaging and deliberate.
He maintained that there was no credible evidence before the court showing that Mbalula had handed money to delegates at the conference.
Another issue before the court was Dlamini-Zuma’s contention that Mbalula should not have approached the court before exhausting internal ANC processes.
Setheni rejected that argument, saying Dlamini-Zuma had failed to identify an ANC rule requiring members to pursue internal remedies before instituting defamation proceedings.
He sought to demonstrate what he regarded as the absurdity of requiring Mbalula to first resolve the dispute within the ANC by comparing it to a hypothetical divorce involving ANC members.
In 2019, bank statements lodged by the Public Protector in the Pretoria High Court relating to donations made to Ramaphosa’s CR17 campaign were sealed from public access after a request from the president.
Dlamini-Zuma’s counsel, Advocate Muzi Sikhakhane, subsequently objected to the tone of some of Setheni’s submissions.
Sikhakhane argued that the parties to the litigation should not be subjected to “insults” during the proceedings.
“I would urge my friends to desist from those snide comments about litigants,” Sikhakhane said.
Sikhakhane argued that there had been a single interview in August and that there was no evidence Dlamini-Zuma had repeated the statements or threatened to do so. He also argued that any further dissemination through the podcast was outside her control.
But Setheni pointed to Dlamini-Zuma’s position that she stood by the allegations.
“We stand by them,” he quoted her side as saying.
Setheni argued that this demonstrated that the issue was not simply a once-off interview that had ended.
In December last year, the Johannesburg regional conference was marred by allegations of bribery and vote-buying by those seeking the mandate to lead the organisation for the next three years.