EFF leader Julius Malema is increasingly turning to urgent defamation litigation to counter damaging allegations about his personal and political life – a strategy analysts say sits uneasily with his long-standing defence of robust, even offensive, political speech.
Julius Malema launched an urgent defamation lawsuit against Kenny Kunene for claiming on Mac G’s podcast that the EFF leader was beholden to late taxi boss Jotham “Mswazi” Msibi.
Malema also launched legal action against celebrity blogger Musa Khawula for claiming that his wife had filed for divorce.
Analysts have told News24 this is part of a wider trend of powerful politicians using the courts to silence adverse claims about them.
While Julius Malema argued that he was exercising his right to political speech when he sang Kill the Boer and falsely accused Trevor Manuel of corruption, the EFF leader is now resorting to urgent litigation to silence accusations about his alleged links to organised crime.
And, say analysts, Malema’s use of the courts to shut down allegations that may be politically damaging to him isn’t just hypocritical, it’s a cynical abuse of the legal system to muzzle the very same robust political debate he and his party once claimed to champion.
The most high-profile of Malema’s current court battles is his urgent defamation case against Patriotic Alliance (PA) deputy president Kenny Kunene, whom he has sued over comments made on the popular Podcast and Chill with Mac G.
Malema’s recent spate of urgent defamation cases includes his headline-grabbing bid to force his political nemesis, Patriotic Alliance deputy president Kenny Kunene, to retract and apologise for, among other things, saying that he “would drive at midnight, at two o’clock when that man calls and drive to his farm… Mswazi”.
The Mswazi in question is now late taxi boss Jotham “Mswazi” Msibi – who, according to Crime Intelligence head Dumisani Khumalo’s testimony at the Madlanga Commission, was the leader of the so-called “Big 5” cartel that also included attempted murder-accused tenderpreneur Vusimusi “Cat” Matlala and alleged murder mastermind Katiso Molefe.
In his court papers against Kunene, Malema bases much of his complaint on Msibi’s alleged criminal status.
Against Kunene, Malema stated it was “well-known that Mr Msibi is reported to have been a taxi boss who was one of the leaders in the taxi cartel”.
He added that Msibi was “also reportedly linked to the drug trafficking cartel in the underworld and is also alleged to be responsible for assassinations”.
But what Malema did not initially disclose to the court was his own long-running relationship with Msibi.
Malema failed to disclose, however, that he had met with the taxi boss on multiple occasions, attended his traditional and white weddings, and even delivered a eulogy at his funeral.
Instead, Malema framed Kunene’s comments as a calculated attempt to paint him as a puppet of an alleged cartel boss and a man engaged in criminality.
Instead, Malema told the Gauteng High Court in Johannesburg that Kunene’s statement would leave a “reasonable listener” with the “impression that my alleged close association with Mr Mswazi means that I acted immediately on Mr Mswazi’s instructions”. Kunene was effectively telling the public that “through my alleged association with Mr Mswazi, I engaged in unlawful, improper, criminal conduct”, Malema added.
Kunene hit back by filing affidavits from two men who claim to have witnessed Malema’s alleged clandestine engagements with Msibi.
In response, Kunene produced affidavits from Tshepo Molekoa, who described himself as Msibi’s right-hand man, chef and caregiver in his last days, and a man known only as “Witness A”.
In those affidavits, the veracity of which Malema has fiercely attacked, both men claim the EFF leader made clandestine midnight or early morning visits to Msibi, during which he allegedly gave the taxi boss bundles of cash and very expensive Macallan whiskey.
The competing versions are so stark that the case is unlikely to be decided on an urgent basis.
While the case has been set down for hearing this week, it seems unlikely to be decided as an urgent application because there are clearly factual disputes between Malema and Kunene, who argue that these differences can only be resolved through witness testimony.
Parallel to that, Malema has also targeted Khawula in court.
Earlier this month, Malema failed in his urgent bid to force blogger Musa Khawula to retract and apologise for posting on X that the EFF leader’s wife, Matlala, had filed for divorce, that he was unfaithful to her, and that he tried to pay Khawula off to keep him from disclosing it. The judge in that case decided it was not urgent, meaning it will not be decided any time soon.
To free-speech advocates, these cases form part of a growing pattern in which powerful figures weaponise defamation law to manage political fallout rather than to genuinely vindicate reputation.
The Campaign for Free Expression’s Nicole Fritz argues that Malema’s litigation against Kunene “appears less about vindicating a legal right than about shaping a narrative: Malema’s act of approaching a court is being used to signal grievance, assert credibility, and attempt to neutralise damaging allegations – whether or not those allegations are ultimately tested or disproven seems of lesser concern”.
Fritz adds: “This is not unique to this dispute. In the wake of disclosures emerging from the Madlanga Commission and the ad hoc parliamentary committee processes, we are seeing a broader tendency among implicated figures to turn to the courts in ways that blur the line between legal remedy and political theatre.
Courts, of course, are there to vindicate rights – including reputational rights. But they are not instruments for reputational laundering, nor should they be drawn into resolving what are, at their core, political contests conducted through allegation and counter-allegation.
Ironically, Malema himself appears to acknowledge the political dimension of the Kunene case.
Ironically, Malema appears to confirm that point in his response to the affidavits filed by Molekoa and Witness A, in which he accuses Kunene of “playing to the public gallery” and “making unsubstantiated, spurious allegations against me to gain political advantage”.
“It is a matter of public record that as an active member of Parliament, I am serving as a member of the parliamentary ad-hoc committee to investigate allegations made by Lieutenant General [Nhlanhla] Mkhwanazi, Mr Kunene’s impugned statements made during the podcast as well as the content of his answering affidavit and the introduction of the two witness statements is nothing but a weak attempt to discredit me in the eyes of the public and the EFF constituency that I serve”, he states.
Malema seems, in part, to concede that his legal response is driven by the potential political damage that could flow from revelations about his now-admitted contact with Msibi.
Malema seems, in part, to be acknowledging that his defamation action against Kunene is aimed at protecting him from potential criticism over his failure to disclose his now-admitted connection to Msibi, an alleged cartel leader named at the commission, during questioning of witnesses at the ad hoc committee.
He continues to maintain that his dealings with Msibi were legitimate and rooted in transport logistics for the EFF, not criminal collusion.
Malema continues to insist his relationship with Msibi was motivated by the fact that he was a founding member of the South African National Taxi Council (Santaco) – which the EFF leader described as “a powerful role player in the South African economy”. He claims he met with Msibi in the presence of businessman Ze Nxumalo to discuss “transport needs for the EFF rallies and other events”.
“There is nothing wrong with my meeting Mr Msibi and having these discussions,” he said.
For Durban-based lawyer Nkanyiso Ngqulunga, the Malema–Kunene fight underlines why South African defamation law needs to evolve to better reflect democratic realities.
For lawyer Nkanyiso Ngqulunga, the Malema/Kunene litigation proves why South Africa’s legal system needs to develop an equivalent of the United States’ Public Figure Doctrine in defamation law, “which sets a much higher threshold for politicians and public officials seeking to sue over political speech”.
“The doctrine recognises that those who enter public life must tolerate a degree of criticism – however harsh – that ordinary citizens need not,” he says.
Political parties are supposed to serve as essential anchors of a functioning democracy, a space that naturally demands robust and vigorous contestation for political power. Vigorous disagreement, sharp rhetoric, and even offensive speech are features of that contestation – not bugs.
Fritz argues that while public figures are entitled to protection from outright falsehoods, they also bear a greater responsibility for the health of the democratic conversation.
While recognising that public figures are “entitled to protection against false and defamatory statements”, Fritz stresses that “they also carry a heightened responsibility to conduct themselves in a manner that does not degrade the quality of public discourse”.
“It is deeply cynical and ultimately injurious to our democracy that political actors look to claim the protection of the law while simultaneously being the principal actors in the very erosion of norms that make that protection necessary,” she argues.
“There is also this practical concern: urgent applications of this nature place real strain on already burdened courts. Where such applications are brought without a clear legal basis, or with little prospect of success, they risk diverting judicial attention from matters of genuine urgency and public consequence.”
There is also the risk that trying to gag controversial claims can spectacularly backfire – the so‑called “Streisand effect”.
There is another reason why politicians should reconsider turning to the courts over statements they don’t like: the so-called “Streisand effect”.
As Kunene argued in court papers, any order that blocked him from repeating his claims that the red berets’ commander-in-chief visited Msibi’s compound in the early hours of the morning would only amplify that allegation.
“Attempts by powerful figures to use litigation to suppress information that is already in the public domain invariably result in the massive amplification of that exact information. An interdict would simply draw intense national media attention to the very statements [Malema] is desperate to hide,” he said.
And that is exactly what has happened. Instead of silencing accusations about his links to Msibi, Malema’s litigation has arguably only amplified them.
For a politician who once defended his own incendiary words as part of the rough and tumble of politics, his reliance on urgent court bids to manage reputational risk now raises uncomfortable questions – not only about hypocrisy, but about the growing use of the courts as a stage for political battles dressed up as defamation fights.
