There is a principle at the heart of SA’s democracy: our courts are the final, impartial arbiters of truth.
It is the belief that regardless of political shouting, when we enter a courtroom, the rhetoric stops, evidence is weighed, and the law is applied with unwavering consistency.
However, the recent ruling in the Mabuyane vs Malema defamation case suggests that this foundation is showing cracks.
We are witnessing a trend where the theatre of politics masquerades as evidence, and a high court, confronted with a stinging accusation of criminal fraud, decided it was “close enough” to label it mere administrative confusion.
The dismissal of this case is more than a disappointing legal defeat; it is a dangerous precedent.
It sends a chilling message: you can publicly brand a political rival a thief, and when dragged to court, escape accountability by waving an unsworn, unverified report in the air.
In our legal tradition, cases must be built on facts, not third-party gossip.
Yet, this judgment treated a private, contested forensic report as if it were etched in stone.
The court penalised Eastern Cape premier Oscar Mabuyane for not dissecting every footnote of an extraneous document, treating silence on procedural trivia as a de facto admission of guilt.
Since when does a defendant submit an unsworn report and claim its contents are objective fact?
Suggesting that failing to litigate every line of such a report is an admission of theft is to swallow hearsay whole.
That is a failure of the judicial process.
When EFF leader Julius Malema branded Mabuyane a “thief of education”, he made an accusation of criminal corruption, not a nuanced critique of academic administration.
Such a charge carries significant consequences and should require proof.
Instead, the court performed legal gymnastics.
It acknowledged that one cannot “shoplift” a degree, yet argued a “reasonable listener” would understand “thief” as shorthand for administrative dishonesty.
By shifting the “sting” of defamation to a semantic technicality, the court handed the defence a free pass.
A registration irregularity is not a felony.
An appellate court will surely recognise that one cannot be called a bank robber simply for filling out a withdrawal slip incorrectly.
By blurring these lines, the court has lowered the threshold for “substantial truth”.
Most staggering is the court’s decision to ignore existing judicial history.
Mabuyane successfully challenged the lawfulness of the 2022 investigation into his admission, and a formal review of the university’s actions is pending.
To declare a statement “substantially true” based on administrative actions currently being challenged elsewhere is a profound blind spot.
You cannot build a binding ruling on proceedings being dismantled in other chambers of justice.
If this ruling stands, the law ceases to be a shield.
When courts allow “thief” or “criminal” to be justified by a “procedural glitch”, they grant politicians a licence to use defamatory language without consequence.
The risk is twofold.
First, the normalisation of hyperbole: every politician now has legal cover to characterise bureaucratic friction as criminal activity.
Second, a chilling effect on public life: why would anyone capable want to engage in public service if their reputation can be incinerated by an unsworn report and a court willing to redefine the English language?
The most painful aspect is the glaring double standard.
The judiciary has acted as a formidable shield when Malema is the target of unsubstantiated and defamatory public statements, rightly demanding proof to protect his reputation.
Yet, in the Mabuyane case, that shield vanished.
If the court demanded empirical evidence to protect Malema, why accept an unverified report to excuse his attacks on Mabuyane?
By applying different rules, the court is eroding equality before the law.
If “theft” is a defamatory slur when directed at Malema, it cannot be redefined as “administrative context” when directed by him.
Justice requires consistency and rigour.
This is no longer just about an academic record at Fort Hare; it is about whether our courts will allow political figures to weaponise unproven administrative glitches to destroy reputations.
Mabuyane must appeal.
The path to the Supreme Court of Appeal is a necessity for the integrity of our democracy.
We deserve a judiciary that refuses to be swayed by the heat of the moment and ensures the law remains a shield for all, rather than a sword for the few.
While South Africans must maintain the utmost respect for the rule of law, that same reverence is demanded from those entrusted with the sacred duty to adjudicate disputes in our society.
This mandate requires unwavering fairness and strict adherence to established legal principles and the law — not personal opinions infused with jaundiced views.
Mvusiwekhaya Sicwetsha writes in his personal capacity
