In a high-profile defamation case that has captivated the public’s attention, Jackie Phamotse, a well-known author and motivational speaker was on Monday found guilty.
The multiple charges against Phamotse were brought by celebrity couple Basetsana Kumalo and her husband, businessman Romeo Kumalo.
The case, which has been closely followed by the public, concluded with a verdict that carries significant legal consequences for Phamotse, leaving many wondering how the court arrived at its conclusion.
Charges and background
Phamotse faced several charges as stipulated in the judgment:
- Crimen Injuria (counts one and two): Phamotse was accused of tweeting on June 5 2018 from her Twitter handle @JackiePhamotse, referring to an alleged video depicting Romeo engaging in sexual activities with another man and similarly implicating Basetsana. The court held that these tweets were unlawful and intentional, injuring, insulting, and impairing the dignity of the Kumalos.
- Criminal Defamation (count three): Phamotse authored and published a book titled I Tweet What I Like: So … Sue Me in February 2019, seemingly related to her case against Basetsana, thus injuring her reputation.
- Contempt of Court (count four): Phamotse published the said book, which the court found to be in breach of and resulting in a failure to comply with a court order by the harassment court.
During the proceedings, Phamotse admitted that the Twitter handle belonged to her and that she had tweeted the contentious messages.
A final protection order was issued on July 26 2018, in terms of the Protection from Harassment Act, prohibiting her from engaging in the harassment of the Kumalos and requiring her to remove the allegations from her social media platforms.
The judgment
Handing down her judgment on Monday, magistrate S Naidoo rested on several key points:
Naidoo noted that Phamotse failed to prove that she was not referring to the Kumalos, even though she did not explicitly mention their names in the tweets.
Her failure to provide clarity when her followers enquired, and her use of laughing emojis, were concerning.
The magistrate stated that Phamotse had received a warning from the harassment court to restrain her from further embarrassing the Kumalos.
However, she later published a book referencing the controversial tweet and case number, demonstrating a lack of remorse.
Phamotse suggested that people Google the tweet, which the court deemed inappropriate and damaging to the Kumalos’ reputation.
She further claimed that her actions were for research purposes, but the court found this assertion unconvincing, especially as she did not go through comments under the tweet.
“The accused version with respect to counts one and two is that she tweeted the tweet in question as part of a writing process that she did not mention the Kumalos by name in the tweets, and that she did not have any intention of harming them,” Naidoo said in her judgment.
“She also admitted that she was not obligated to correct or clarify any of her Twitter followers.
“[She] hesitated to answer simple questions she did not testify any clear nor in a forthright manner under cross-examination.
“She stated that the tweet in question was put out as research for her book The Hockey Club, and that the tweet did appear in that book, however, when pressed to show where in that book the tweet actually appeared, she answered that one would need to read the book and see nuances and references that are made towards the tweet.”
According to Naidoo, Phamotse was very vague in her testimony during cross-examination.
The magistrate indicated that the accused provided uncompelling responses which were not useful to her defence.
The court heard that she also failed to provide all evidence relevant to the case for the sake of her defence, depicting a resistance of some sort.
“She was also challenged under cross-examination as to why she never mentioned her book The Hockey Club when she testified in chief.
“She sought to lay blame at her attorney who she said never asked her about that book, however, [her attorney] did ask Ms Phamotse whether there was anything and I quote, ‘relevant to the case that you believe the court should be aware of’.
“[She] clearly had the opportunity here to state that the tweet was specifically intended as research over The Hockey Club, but did not do so despite this being material information that could be considered relevant to her defense,” said Naidoo.
In her book, Phamotse mentioned a bribe indicating the existence of a corrupt nature.
Naidoo stated in her judgment that when she was asked to clarify the allegations of bribery, the embattled author showed a reluctance to defend herself.
“[Asked what she] understood by the word bribe, which was written in chapter six [of the book] … she said, and I quote: ‘I do not have a set definition’.
“Yet she commences that chapter of her book with the words, I quote: ‘The law is the law until you can bribe someone’.”
Naidoo concluded that Phamotse was guilty of defaming the Kumalos after having failed to defend herself beyond reasonable doubt.
Instead, the magistrate stated that the Kumalos submitted compelling arguments thereby supporting their case.
“If her [Phamotse) version of putting out the tweet is to be believed, then one would expect a writer who was supposedly using this tweet as research to read all the comments and follow up. In this regard, her version is inherently improbable.
“What is also perplexing … is that she alleges that the tweet was made as part of her writing process, yet she said she did not care to read the tweets about Mrs Kumalo, as she did not want to look at things that had nothing to do with what she had initially wanted to ask.
“Having regard to the totality of the evidence, the court is satisfied that the state has proved its case against Ms Phamotse on all four counts beyond reasonable doubt.
“Ms Phamotse’s version as enumerated in the reasons for judgment above is not reasonably possibly true and is rejected as false beyond reasonable doubt.”
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