Handing down a scathing judgement on 6 September 2019, KwaZulu-Natal High Court Judge Dhaya Pillay also ordered Zuma to remove the defamatory tweet, apologise to ANC veteran, Derek Hanekom and pay an as-of-yet undetermined amount in damages.
Pillay’s judgement, in conjunction with South Gauteng High Court Judge Elias Matojane’s May 2019 ruling that the EFF fork out R500 000 in damages for a tweet defaming former Minister of Finance, Trevor Manuel, should serve as significant deterrents to the use of Twitter and other public platforms to make false and defamatory claims.
The judgement should also deter Zuma from abusing his appearance at the Zondo Commission of Inquiry into State Capture and any further loose-lipped accusations smearing ANC members as “spies” with little or no evidence to back up the claims.
Weber Wentzel’s Dario Milo told Daily Maverick the judgement “once again sends a powerful message to people who make baseless defamatory statements on any platform – the law will protect the victim of your false speech. Tweeters have the right to express themselves, but if you are making factual statements about others, you have to get your facts right.”
Zuma will be selling off more than his socks to keep up with the legal bills and judgements against him should he opt to ignore the serious warnings by the court.
Judge Pillay said she had, from the outset, acknowledged the caution that “in lawfare, politicians may try to use the court to do their bidding.”
While the litigants in the Hanekom/Zuma matter had made many accusations and counteraccusations and many of these had been irrelevant to the defamation claim, public interest required analysis of “material inconsistencies, misconceptions and distortions”.
“Left unchecked, they could be peddled as truths merely because they are in affidavits that are cloaked with the respectability of judicial proceedings.”
Zuma’s claim in his court papers and his “belief” that the word “enemy” included the EFF, other opposition parties or anyone who sought his removal as president, might have had meaning in his capacity as a politician, but, said Pillay, these were irrelevant to the defamation claim and in law.
Schooling the former president of South Africa on the basics of constitutionalism, Pillay said the country’s democracy had been founded as a result of a negotiated political settlement. As such, the constitution had anticipated “a culture and consciousness of co-operation that would evolve organically.”
“Political representatives are entrusted to provide leadership, to cultivate unity of purpose and action in our collective pursuit of egalitarian ends through dialogical, transformative constitutionalism,” she noted.
“To this end, coalitions and collaboration amongst political parties arise. Without common aims and reciprocity, ‘nothing resembling a society can exist’.”
This did not mean “dialogical constitutionalism jettisons conflict and contestation for political power” rather, on the contrary, “inter-party and intra-party conflict is inevitable in complex societies confronting intractable problems.”
Dialogical constitutionalism anticipated meaningful engagement to be “agonistic, not antagonistic, to sharpen debate for best outcomes, and not to subvert constructive discourse.”
Pillay said a critical legal approach to constitutional interpretation recognised, respected and accounted “for these phenomena in public interest litigation such as this.”
“To link ‘enemy’ to opposition parties would be the antithesis of all that we stand for as a peace-loving, multi-party democracy, historically grounded in our heritage as negotiators of our revolutionary transformation.
“The adoption of the Constitution symbolises not the end but the continuation of peaceful transformation through dialogue. To regard opposition parties as enemies of the ANC undermines dialogue. To refer to anyone with whom one does not agree, politically, intellectually, ideologically, or in any other way, as enemy, sows the seeds for internecine political violence that bedevil many nations.”
Against these constitutional imperatives, Pillay found that no reasonable reader of Zuma’s tweet would link “enemy” to the EFF, opposition parties or opponents within the ANC.
Pillay said the issue in the pleadings before the court boiled down to interpreting Zuma’s defamatory tweet “in the political context in which he published it.”
Both Hanekom and Zuma had agreed that the phrase “enemy agent” had been historically used to describe apartheid spies who had infiltrated the ANC. When Hanekom initially demanded Zuma retract the accusation, the former president had ducked and dived.
Zuma’s attorney, while acknowledging receipt of Hanekom’s demand on 30 July and undertaking that the former president would respond, failed to do so, forcing Hanekom to launch the application.
“Mr Zuma had a choice. He could have clarified his tweet to say, as he now does in his answering affidavit, that he was not suggesting that Mr Hanekom is an apartheid spy.”
In the court’s view, to the reasonable reader, the historical connection to apartheid spies “is the most obvious”.
“This is the connection that Mr Zuma wants readers to make. Otherwise he would have cured the innuendo or ambiguity when he received the demand.”
Lawfare, said Pillay, was a consequence of “the failure of dialogue and politics. As a shield, lawfare is used to protect the rule of law. As a weapon, lawfare is used to enforce rule by law.”
This duality was both positive and negative.
“It is good for litigation to factor in politics to advance constitutionalism; it is bad when litigation becomes the site of political contestation with politicians trying to usurp the judiciary to do their bidding.”
It would, however, be far worse without an effective judiciary “to take up the slack flowing from failed politics and social discord.”
As the chief of intelligence and an elder in the ANC, said Pillay, Zuma’s utterances were “weightier than ordinary mortals”.
“On matters of state security, his opinions count. More so than many social media activists. Consequently, when Mr Zuma refers to a political activist as ‘a known enemy agent’ reasonable readers of his tweet will understand that he is referring to an apartheid era spy.”
Zuma, said Pillay, had forgotten the Constitutional Court’s reminder, in the Nkandla matter, otherwise known as the United Democratic Movement vs Speaker of the National Assembly and Others, that the oath of office is allegiance to the Constitution, not to the political party to which the member belongs.
Jacob Zuma, said Pillay, “mistakenly assumes that loyalty to the ANC is synonymous with loyalty to him. His assumption is both factually and constitutionally untenable.”
Hanekom welcomed the judgement by Pillay.
In a statement, the former ANC minister noted Pillay’s reference, in her introduction, to an address by ANC President Oliver Tambo to the Morogoro Consultative Conference in 1969; “Be vigilant, comrades. The enemy is vigilant. Beware the wedge driver! Men who creep from ear to ear, driving wedges among us; who go around creating splits and divisions. Beware the wedge driver! Watch his poisonous tongue.”
Hanekom said Zuma’s lawyers had conceded that the former president did not regard Hanekom as an apartheid spy and neither did he question the former minister’s struggle credentials.
Hanekom said the ruling came “at the end of a week of wanton violence in our country, fueled by misinformation and disinformation, labelling and scapegoating.
“Throughout the week fake information and old footage have been circulated, provoking anger and hatred. Fellow South Africans and Africans from across the continent have been subjected to looting and pillaging by criminal thugs. Lives have been lost. This is what happens when patently false allegations are made.”
Hanekom urged South Africans to “stand together against the peddling of lies and instilling of fear”.
At the time of writing, 12.42pm 6 September, about three hours after the judgement had been handed down, Zuma’s tweet about Hanekom remains published on his Twitter feed and no apology, as ordered by the court, has been offered.
Zuma has, however, filed leave to appeal.DM
Mooning is considered a form of free speech in the United States.