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[2019] ZAKZDHC 16
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Hanekom v Zuma (D6316/2019) [2019] ZAKZDHC 16 (6 September 2019)
THE HIGH COURT OF SOUTH AFRICA
KWAZULU NATAL DIVISION,
DURBAN
CASE NO. D6316/2019
In
the matter between:
DEREK
HANEKOM APPLICANT
and
JACOB
GEDLEYIHLEKISA
ZUMA RESPONDENT
ORDER
The order granted is as follows:
1. It is declared that the allegations
made about the applicant, Derek Hanekom in the following statement
posted as a tweet, are
defamatory and false:
‘
I’m not surprised by
@Julius_S_Malema revelations regarding @Derek_Hanekom. It is part of
the plan I mentioned at the Zondo
Commission. @Derek_Hanekom is a
known enemy agent.’
2. It is declared that the respondent,
Jacob Gedleyihlekisa Zuma’s publication of his tweet above was
and continues to be
unlawful.
3. The respondent is ordered to remove
the tweet within 24 hours from all media platforms including by
deleting it from his Twitter
account.
4. The respondent is ordered, within
24 hours, to publish on Twitter from his Twitter account
(@PresJGZuma) the following apology:
‘
On 25 July 2019, I published a
tweet which alleges that Derek Hanekom is a known enemy agent. I
unconditionally withdraw this allegation
and apologise for making it
as it is false.’
5. The respondent is interdicted from
publishing any statement that says or implies that the applicant is
or was an enemy agent
or an apartheid spy.
6. The interdict in the preceding
paragraph does not bar the respondent from testifying truthfully, as
he is required to, at the
Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public
Sector Including Organs of
State.
7. The applicant is awarded damages
against the respondent, the quantum of which is yet to be determined.
8. The determination of the quantum of
damages of R500 000 claimed by the applicant against the respondent
is referred for oral
evidence.
9. The respondent is ordered to pay
the applicant’s costs, including the costs of two counsel.
10. The matter is adjourned sine die.
JUDGMENT
D. PILLAY J
Introduction
‘
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.’
Oliver Tambo closing address, Morogoro
Consultative Conference
[1]
[1] Derek
Hanekom applies urgently to interdict Jacob Gedleyihlekisa Zuma for
publishing the following statement on his twitter account on
25 July
2019:
‘
I’m not surprised by
@Julius_S_Malema revelations regarding @Derek_Hanekom. It is part of
the plan I mentioned at the Zondo
Commission. @Derek_Hanekom is a
known enemy agent.’
[2]
Mr
Hanekom contends that Mr Zuma’s tweet implies that he is an
apartheid spy. As a result, Mr Hanekom receives abusive messages
in
which he is referred to as an ‘askari’ and an ‘impimpi’.
Both words are derogatory references to apartheid
era spies. Threats
to harm him and his wife put their personal safety at risk. He
asserts that Mr Zuma’s tweet is defamatory
and false, resulting
in an actionable injury to his reputation and dignity. For this, he
claims an apology and compensation from
Mr Zuma, and an interdict.
[3]
Mr
Zuma admits he published his tweet about Mr Hanekom. He was
responding to the tweets of Julius Malema, the leader of the Economic
Freedom Fighters (EFF) published on 23 July 2019 which read:
‘
Hanekom gave us the list of the
ANC MPs who were going to vote with us in the vote of no confidence
against Jacob Zuma.’
And
‘
Today he calls us fascists, but
Derek Hanekom plotted with the EFF to bring down President Zuma. The
same goes with Solly Mapaila
(Deputy General Secretary of the SACP)
too.’
[4]
Mr
Zuma denies ever claiming that Mr Hanekom was an apartheid spy. Nor
can his tweet be reasonably construed as suggesting that
Mr Hanekom
is an apartheid spy. Notwithstanding, Mr Zuma may or may not claim
that Mr Hanekom is an apartheid spy when he resumes
his testimony at
the Judicial Commission of Enquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector
Including Organs of State
chaired by Deputy Chief Justice Zondo (the Commission). Mr Zuma’s
stance is not to prove that Mr
Hanekom is an apartheid spy – at
least not in these proceedings. As Mr Hanekom seeks an interdict in
order to ‘muzzle’
him from testify at the Commission,
this application should be dismissed.
[5]
Mr
Zuma admits that he uses ‘the medium of Twitter to engage with
the public’ and that he has ‘significant followers’.
His tweet transmitted automatically to over 323 000 Twitter
followers, 1817 of whom commented and 2902 retweeted Mr Zuma’s
tweet.
Legal principles
[6]
Defamation
is the wrongful and intentional publication of defamatory words or
conduct pertaining to a claimant. The four requirements
to prove
defamation are: a. wrongfulness, b. intention, c. publication and d.
the defamatory words or conduct about the claimant.
[2]
Once a
claimant establishes c. and d., then a. and b. are automatically
presumed. That is, the publication is presumed to be both
wrongful
and intentional.
[3]
To avoid
triggering this presumption, and consequently, liability for
defamation, a defendant must raise a defence which rebuts
either the
requirement of wrongfulness or intention.
[4]
Constitutionally,
Mr Hanekom’s rights to dignity (s 10) and freedom and security
(s 12) are limited by Mr Zuma’s right
to freedom of expression
under s 16 of the Constitution
of
the Republic of South Africa, 1996
.
And vice versa.
[7]
The test for defamation meaning
is whether, in the opinion of a reasonable person, the words have the
tendency to undermine, subvert,
or impair a person’s good name,
reputation, or esteem in the community.
[5]
This is a two-stage inquiry.
[8]
First, what is the ‘
natural
’
or ‘
ordinary
’
meaning of the statement? For this,
neither the meaning which the maker of the statement intended to
convey, nor the meaning given
to it by the persons to whom it was
published, matters. So, whether they believed it to be true, or
whether they then thought less
of the plaintiff are irrelevant
considerations.
[6]
The test is objective. How would a
reasonable person of ordinary intelligence have understood the
publication?
[7]
A reasonable readers are not naïve.
They take into account not only what the words say, but also what
they imply.
[8]
Second, based on the statement’s
natural or ordinary meaning, would it tend to lower the claimant in
the estimation of right-thinking
members of society generally?
[9]
[9]
To imply that someone is an
apartheid spy or dishonest is automatically defamatory.
[10]
To call persons who hold high office
spies, imputes to them that they lack ‘the qualities that are
required to be entrusted
with the confidences of high office.’
This ‘would indeed tend to lower them in the estimation of
people straddling
all sectors of our society’. This is
defamatory.
[11]
[10]
Context is relevant for
evaluating the requirements defamation.
[12]
When the context is political, a
higher tolerance for robustness and rhetoric applies than in cases
which do not implicate the public
interest or the political.
[13]
The issues
[11]
Neither the facts nor the legal
principles are in dispute. As it is common cause that Mr Zuma
published his tweet, proof of the
act, publication and intention are
established.
[14]
Wrongfulness is not only presumed but
also conceded, that is, if I find that Mr Zuma’s tweet implies
that Mr Hanekom is an
apartheid spy. If I do, as Mr Hanekom requests
I should, then the application must succeed. If I find the opposite,
then the application
must fail. Reduced to this binary, the issue is
a determination of fact or inferences from facts. Justification would
not arise.
However, Mr. Zuma reserves the right to justify his tweet
as being true, fair comment or falling within the limits of the right
to freedom of expression in s 16 of the Constitution.
[12]
What the case is about is the
‘natural’ or ‘ordinary’ meaning of Mr Zuma’s
tweet in the context. Would
a notional reasonable right-thinking
reader with normal intelligence understand Mr Zuma’s tweet to
mean that Mr Hanekom is
an apartheid era spy acting against the ANC?
It is common cause that the posts on social media do not represent
the reasonable
reader’s understanding, but may go to assessing
quantum, if that arises. Importantly, what this dispute is not about
is whether,
as a fact, Mr Hanekom is an apartheid spy. Nor does it
call for a value, moral or political judgment about whether Mr
Hanekom’s
or Mr Zuma’s understandings of politics within
the ANC should prevail. As a dispute presented for resolution through
litigation,
legal principles must apply.
[15]
[13]
The
issue boils down to interpreting Mr Zuma’s tweet in the
political context in which he published it. As an interpretive
exercise, it is possible to resolve the merits on the pleadings. I am
indebted to both Counsel for narrowing down the issues thus.
After
summarising the case for each litigant, I analyse the phrase ‘known
enemy agent’ in isolation, then in the context
of the entire
tweet and finally in the light of the reference in it to the
Commission. I preface my analysis of Mr Zuma’s
tweet with a
brief description of the political context in which this litigation
presents. I quote extensively so that the litigants
‘speak’
for themselves, and their ‘voices’ and the tone in which
they choose to express themselves in their
affidavits, are not
diluted or misrepresented by my paraphrasing.
Mr Hanekom’s case
[14]
Mr
Hanekom became a member of the NEC of the ANC in 1994. He served as
Minister of Agriculture and Land Affairs from 1994 to 1999,
as Deputy
Minister of Science and Technology from April 2004 to October 2012,
as Minister of Science and Technology from 4 October
2012 to 25 May
2014, and as Minister of Tourism from 26 May 2014 to 30 March 2017
and 27 February 2018 to 25 May 2019. Additionally,
he was a member of
Parliament from 1999 to 2004 and from 30 March 2017 to 27 February
2018. Then he resigned as a member of Parliament.
He is currently the
chairperson of the board of the Ahmed Kathrada Foundation, an
organisation formed to continue the legacy of
the anti-apartheid
struggle stalwart. He is also a recipient of an award of merit from
the German President in recognition of his
contribution to
cooperation between Germany and South Africa as Minister of Science
and Technology. All this vests Mr Hanekom as
a politician with a
reputation that has considerable currency.
[15]
Mr
Hanekom submits that the tweet, expressly or by implication,
characterises him as a ‘known enemy agent’; and that
he
is an apartheid spy in the context of Mr Zuma’s evidence at the
Commission. As an enemy agent or apartheid spy it follows
that he
‘conducted himself in a manner which is contrary to the best
interests of the ANC and the country; that he ‘lacks
integrity’; that he is ‘untrustworthy’; and that he
lies and deceives his comrades. These statements presented
as fact
are ‘entirely and demonstrably false’. Mr Hanekom claims
he is not and has never been a spy for the apartheid
government.
Furthermore, not only is the tweet false, ‘it is inconceivable
that Mr Zuma could have genuinely believed it
to be true.’ Mr
Zuma is fully aware of Mr Hanekom’s history as an
anti-apartheid activist and loyal member of the ANC.
[16]
Publication
of Mr Zuma’s tweet is widespread in social and print media.
That is the nature of the Internet. Mr Zuma knew that
the
communication via Twitter would be ‘instantaneous, borderless
and far-reaching.’ A person conducting an Internet
search of Mr
Hanekom’s name ‘anywhere in the world will see the
statement and will understand that [he] was or still
[is] an
apartheid spy, lacks integrity and trustworthiness and conducts
himself in a manner contrary to the law and best interests
of the
country.’ The tweet continues to circulate widely and with
additional comments and innuendo, to cause immense harm
and damage to
Mr Hanekom’s reputation for as long as it remains published
without censure.
[17]
Axiomatically, without his integrity, his colleagues and the
public he serves perceive him as ‘untrustworthy and
suspicious’.
Mr Zuma’s tweet undermines Mr Hanekom’s
legitimacy and authority as a senior and previously well-respected
politician,
as well as his legacy as an anti-apartheid activist.
Unless the court grants the interdict, his reputation and integrity
will remain
severely impugned and his integrity as a member of the
ANC will remain in question.
[18]
The
interdict is urgent. The public should be ‘disabused of the
lies that Mr Zuma is perpetrating’. Because the matter
is high
profile, the abuse takes place in the public eye. Comments on social
media call Mr Hanekom ‘askari’ and ‘impimpi’.
Historically, these words were reserved for those who were suspected
of being disloyal to the liberation struggle. They were often
assassinated or at the very least ostracised. It is exceptionally
dangerous to be referred to in these terms. Nor is it in the
best
interests of the people of South Africa to lose faith in the
integrity of those who serve at the highest echelons of government.
Furthermore, his fundamental right to dignity has been infringed.
Mr Zuma’s case
[19]
Mr
Zuma is a member of the ANC ‘for decades’. He was the
President of the ANC and of South Africa for two terms following
the
general elections in 2009 until he resigned on 14 February 2018.
[20]
Mr
Zuma contends that it is not he, but Mr Hanekom who ‘deliberately
and mischievously adds ‘apartheid spy’ to
his ‘reference
to him as an enemy agent.’ He emphasises:
‘
I never referred to Hanekom as
an apartheid spy. I have not expressed any view about his role and
history in the ANC. It is instructive
that he deems it appropriate to
prevent me from future statements I may or may not wish to make about
him. His anxiety in this
regard is indeed telling.’
[21]
Mr
Zuma admits that he placed his tweet within the context of his
evidence in the Commission. Following Mr Malema’s disclosure
of
Mr Hanekom’s role in supporting enemies of the ANC, he said
that Hanekom was a known enemy agent in the following context:
‘
Hanekom, a member of the ANC
had worked with the EFF, an avid opposition political party that had
ceaselessly campaigned to discredit
the ANC and its President. This
conduct of Hanekom – working with the enemies of the ANC to
weaken it politically and ultimately
cause its removal from power
fits well within the pillars of the intelligence plan that I spoke
about at the Zondo Commission.
More importantly, his conduct fits the
definition of enemy agent.’
[22]
His
evidence at the Commission ‘is what it is’. He has never
testified there that Mr Hanekom was an enemy agent. He
said that
‘there is an intelligence plan that [he is] aware of, which was
specifically created to ensure that the ANC is
ultimately hijacked by
a person who had worked for the intelligence organizations to fight
against the ANC.’ The plan included
ensuring that ‘the
ANC was weakened and controlled by the interests represented by those
intelligence organizations. There
are people who do their work
purporting to advance a good agenda but in truth being part and
parcel of the plan.’ The Commission
was his ‘graveyard’
in which his enemies intended to bury him with ‘lies and
character assassination.’
[23]
Mr
Zuma advances as ‘true’ that Mr Hanekom was amongst those
who deliberately sought to assassinate Mr Zuma’s
character and
discredit his political role both in the ANC and the country. Mr
Hanekom also used his position in the ANC and its
information to
support its enemies and those of Mr Zuma. A ‘clear example of
his role’ is his support for the EFF to
bolster its political
opposition of the ANC. Mr Zuma accepts ‘that the statement is
defamatory, but it is true and was a
fair comment.’
[24]
As
for Mr Hanekom’s role in the liberation struggle, it does not
mean that he did not act ‘against the interests of
the ANC when
he deliberately worked with its enemies to discredit its support and
encourage its removal from power. When he worked
against the
political interests of the ANC by actively seeking the help of the
enemies of the ANC to topple its democratically
elected President,
Hanekom earned his crown as enemy agent.’
[25]
Mr
Zuma maintains that Mr Hanekom did work ‘with the political
enemies of the ANC when it was convenient for him. It is clear
that
he could use his ANC membership to bolster the strategies of
political enemies of the ANC against it. In other words, he could
work against his own political party, to sure that it was weakened
and finally removed from power. That, on the objective and
uncontested facts, is disloyalty to the ANC. It places him in the
camp of the enemy of the ANC while he continues to declare himself
as
its loyal member.’
[26]
Mr
Hanekom deliberately misconstrued his tweet ‘to suit his grand
plan to muzzle [Mr Zuma] into silence’ in case he
makes any
further revelations in other ANC forums or Commissions. Mr Hanekom
may not use Mr Zuma’s evidence at the Commission
‘to
fight’ him in this court before he has concluded his evidence.
An interdict would ‘muzzle the truth,’
unfairly limit his
right to share his political opinions about the actions of persons in
the ANC ‘who betray its historical
mission’. Furthermore,
the matter is ‘self-evidently not urgent.’
[27]
Mr
Zuma seeks costs on a punitive scale against Mr Hanekom because Mr
Hanekom ‘is actually lying under oath and misleading
this
court’ whereas he, Mr Zuma has ‘demonstrated’ that
his tweet is ‘true’.
Context
[28]
Although
the dispute is framed as a claim for defamation, a larger conflict
casts a longer shadow beyond the legal and into the
political. The
ANC, through its highest decision-making structure, its NEC, resolved
to recall Mr Zuma as President. Mr Hanekom
actively supported that
decision. Notwithstanding their common political home, both litigants
find themselves on opposite sides
of each other, not only in this
application but also within the ANC. In the following extract, Mr
Zuma’s identifies each
faction as those opposed to the wishes
and objectives of the ANC and those who deployed him as Head of
State:
‘
As my tweet demonstrates, my
removal as Head of State was part of the broader plan by those
opposed to the wishes and objectives
of the party that deployed me as
Head of State.’ By his own admission, part of which is attached
to this affidavit,
Hanekom
in conflict with positions of the ANC deemed it fit to plot my
removal with enemies and opponents of the ANC
.
(my underlining)
[29]
This
litigation is a proxy for the internal conflict within the ANC.
Repeatedly, Mr Zuma claims that Mr Hanekom undermines the ANC:
‘
Hanekom by his own admission
held various meetings with
those
who sought to undermine the ANC by removing its elected President as
Head of State
.’
‘
The statement that I made
against Hanekom is justified and is a consequence of Mr Malema’s
claim that he
plotted to
undermine
the ANC and its
leadership.’
(my underlining)
[30]
Repeatedly,
Mr Zuma insinuates that Mr Hanekom is dishonest and untrustworthy:
‘
Mr Hanekom’s allegations
about his role in the ANC and the anti-apartheid struggle are
entirely irrelevant for the court to
determine the dispute in respect
of his
actual role
.’
‘
His
duplicitous
character
has been
confirmed by his own admission that he had no difficulty working with
the enemies or opponents of the ANC to remove its
President when it
had not adopted such a resolution.’
‘
Hanekom acted in an
untrustworthy
manner
when he worked with the enemies of the ANC to topple it and undermine
its leadership. He is rightly
treated
with suspicion
for the role
he played in toppling the ANC leadership and undermine the unity of
the ANC.’
‘
Hanekom is the last person to
talk about lying. His entire life as a
duplicitous
two-faced person is an embarrassing lie
.
He seeks to
reinvent history
and perpetuate a lie
in the
face of evidence that he acted in collaboration with parties acting
to undermine the ANC.’
(my underlining)
[31]
Mr
Zuma dismisses Mr Hanekom’s struggle credentials with:
‘
It is true that I first met
Hanekom in 1988 in
his
staged exile in Zimbabwe
.’
(my underlining)
[32]
Mr.
Zuma takes ‘exception to Hanekom’s constant reference to
him as
‘a liar’
in his founding affidavit. He
counters that it is people like Mr Hanekom who seek ‘to
suppress alternative views and facts
by rubbishing those who may
expose …
liars
or enablers of State capture, when in
fact it is
they who seek to conceal the true nature of State
capture they have perpetrated
since South Africa’s
political settlement in 1994.’ (my underlining)
[33]
This litigation is a conflict
aggravator.
[16]
By launching this application, Mr
Hanekom signals to Mr Zuma that invoking internal organisational
remedies for dialogue is over.
Nevertheless, on 29 July 2019, before
launching this application, Mr Hanekom issued a demand for the relief
he now claims in this
application. Mr Zuma’s attorneys
acknowledged receipt of the demand on 30 July, indicating that they
would revert when they
had instructions. They did not. Once the
deadline of 2 August passed, Mr Hanekom launched this application on
5 August. Still,
Mr Zuma did not respond to clarify his tweet.
[34]
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. Mr Zuma chose not to respond to the
demand. It follows that Mr Zuma wanted his tweet to remain
on his
Twitter account. He too wants a litigated outcome. Neither litigant
seems inclined to engage bilaterally or within the political
structures of the ANC to find a negotiated solution. Pursuing
dialogue through mediation is not even a remote possibility.
Manifestly,
mutual distrust has broken down the relationship
irretrievably. The conflict is intractable. Both litigants are
stoically positioned.
Preferring the battlefield of litigation, both
are prepared for lawfare.
[35]
Lawfare is 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 ‘can be a good and a bad thing.’ 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.
[17]
However, it will be far worse without
an effective judiciary to take up the slack flowing from failed
politics and social discord.
Escalating lawfare reflective of
institutional dysfunctionality, social discord and ailing politics
will, over time, constrain
the capacity of litigation to remedy
disorder efficiently.
[36]
This
litigation is a battle or skirmish in the overall war for dominance
and control of the ANC by one or other faction. The conflict
is
intractable political contestation for which a legal resolution is
sought. Interest in its outcome ramifies beyond the litigants
and
into the public domain. This is the context in which the defamation
claim serves before the court. Mindfulness of this context
facilitates the court’s intervention with due regard for the
three ‘I’s’ – Independence, Impartiality
and
Integrity. One way or the other the courts will solve the dispute;
but it would take much more to resolve the conflict.
The words in the phrase ‘known
enemy agent’
[37]
Mr
Zuma’s stance is that ‘enemy’ refers to the EFF and
other opposition parties and anyone who sought his removal
as
President of the country, including other members of the ANC. His
tweet means that Mr Hanekom has ‘connived and colluded
with the
enemies and opposition parties that sought to remove him as president
of the Republic of South Africa.’
[38]
By
‘agents’ he means those who ‘by their very nature
operate clandestinely’. It is precisely through ‘seeming
loyal’ and committed that enables agents to be effective. Such
persons, as agents of enemies, foes or adversaries of the
ANC, are
well known. Mr Zuma fortifies this interpretation when he adds in his
supplementary affidavit, that as an enemy agent,
Mr Hanekom was
disloyal and undisciplined. He brought the ANC into disrepute, in
violation of the constitution of the ANC. For
this misconduct, Mr
Hanekom falls to be disciplined. Thus far, Mr Hanekom has not been
disciplined. That may still happen.
[39]
As
for ‘known’ Mr Zuma says:
‘
In the ANC it is known that a
member that works with its enemies to weaken it, is an enemy agent.
Whether or not it is harsh to
do so it’s a matter of
perspective or choice of words. Nothing really turns on it.’
[40]
Mr
Sikhakhane argues that it ‘would be a leap of logic’ to
equate ‘known enemy agent’ to mean an ‘apartheid
spy’; it is Mr Hanekom himself who makes this link. The tweet
is political speech that must be protected as such.
[41]
Mr
Hanekom’s succinct response to Mr Zuma’s use of ‘enemy’
to refer to opposition parties in a constitutional
democracy is that
it is ‘indefensible’. The ordinary and natural meaning of
the word ‘agent’ means acting
on behalf of and in the
interests of another or taking on the role of another. In the context
it means that Mr Hanekom acted on
behalf of the enemy, in their
interests and against the interests of the ANC. He acts secretly,
dishonestly and in violation of
the constitution of the ANC. As a
representative of the people on the ANC’s NEC and in
Parliament, this insinuation casts
him as duplicitous and subversive.
This alleged duplicity was allegedly known before he supported the
removal of Mr Zuma as President.
It was known to others besides Mr
Zuma. It arises not from the recent or even single issue of
discussing the removal of Mr Zuma
as President. The phrase reaches
into history. Historically, apartheid spies were generally referred
to as enemy agents. This is
false and defamatory. This implicates the
reputation of Mr Hanekom.
[42]
Unsurprisingly considering that both litigants gleaned their
political culture and education within the ANC, there is little
difference
between their interpretations. As political actors they
allow for some robustness in political speech. They agree that
historically,
apartheid spies were referred to as enemy agents. And
it is the hurtful to be called an apartheid spy. This would render
the tweet
defamatory. But, says Mr Zuma, his tweet does not refer to
apartheid spy and is therefore not defamatory.
[43]
Notwithstanding his denial, Mr Zuma describes ‘enemy
agent’ to be ‘a member who works with its enemies to
weaken
it’. This description is known in the ANC. Historically,
it referred to apartheid spies. ‘Harsh’ as Mr Zuma
acknowledges
it to be, he dismisses it as is ‘a matter of
perspective or choice of words.’ In my 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.
[44]
For
justification, Mr Zuma has no evidence other than Mr Hanekom’s
admission. He says:
‘
The evidence that I have of
Hanekom having worked with the political enemies of the ANC to
discredit and weaken its support is his
admitted contact.’
[45]
Mr
Hanekom’s admission is that he met Mr Godrich Gardee, the
Secretary–General of the EFF at the latter’s request.
He
disclosed this meeting openly and publicly. He admits that he
attended several meetings with other like-minded senior members
of
the ANC who also wanted Mr Zuma removed as head of State in the best
interest of the ANC and South Africa. At two ANC NEC meetings
held in
2016 and 2017, many ANC NEC members called on Mr Zuma to resign as
President. Accordingly, he denies that he held various
meetings with
those who sought to undermine the ANC, that he met with other members
of the EFF and that he ‘connived and
colluded with enemies and
opposition parties’. He also denies ‘in the strongest
terms’ that he ever received
any financial reward or support
for his role in removing Mr Zuma as President or for his support for
President Cyril Ramaphosa’s
2017 campaign.
[46]
In
my view, nothing from Mr Hanekom’s admission lays a basis for
Mr Zuma to label him as a ‘known enemy agent’
or
apartheid spy. Dishonesty and duplicity embedded in the phrase makes
it automatically defamatory. That Mr Zuma links his tweet
to Mr
Hanekom’s admission and role in removing him as President is
odd. The decision to remove Mr Zuma as President was that
of the NEC.
The practice of recalling a head of State is not new. Mr Zuma is well
aware of this. Ironically, it is how he came
to replace his
predecessor, President Mbeki.
[47]
Mr
Zuma offers no evidence to support his tweet that Mr Hanekom is an
agent of the EFF. The tone of Mr Malema’s tweet and
the inuendo
that Mr Hanekom is fascist, is at odds with such a proposition. If Mr
Hanekom is an agent of the EFF and acts in its
interests, it would be
foolhardy for Mr Malema to expose and disown a useful mole in the
ANC. I find no evidence to support Mr
Zuma’s claim that Mr
Hanekom is either an enemy of the ANC or an agent for the EFF or
opposition parties.
[48]
As
indicated above, the litigants limited the dispute to the
interpretation that a reasonable reader would give to Mr Zuma’s
tweet. They also agreed that if I find that a reasonable reader of
the tweet would infer a reference to apartheid spy then that
would
settle the dispute. Before making conclusive findings in this regard,
the phrase has to be interpreted in the context of
Mr Zuma’s
tweet.
Phrase in the tweet.
[49]
Undoubtedly
the first sentence – ‘I’m not surprised by
@Julius_S_Malema revelations regarding @Derek_Hanekom’
–
reminds Mr Zuma of his testimony at the Commission. However, it is
the second sentence – ‘It is part of the
plan I mentioned
at the Zondo Commission’ – that invites the question:
What was the plan that it causes him to link
the Commission to Mr
Hanekom?
[50]
At
the Commission, Mr Zuma testified that in his role in the ANC as
intelligence chief he knew about the work of three foreign
intelligence agencies and apartheid spies who had infiltrated the
ANC. He named two senior members of the ANC as apartheid spies.
He
has not named Mr Hanekom – yet. About the plan, he testified at
the Commission as follows:
‘
[T]here were three intelligence
organisations that met … to discuss me and had a plan to begin
in 1990 a process of character
assassination of Zuma. Two of these
organizations came from two different big countries and one of them
came from inside South
Africa under – which was one of the
structures under apartheid which was part of this conspiracy’.
[18]
‘
Now Zuma has information about
these [spies]. We do not know when will he use this information to
stop that process that plan of
theirs and therefore they took a
decision that Zuma must be removed from decision making structures of
the ANC and that is why
the[ir] character assassination began.’
[19]
‘
I am saying this because there
has been a process and particularly against Jacob Zuma a conspiracy.
I am sitting there and I am
told by other organisations that my
organization as well as in the NEC there are people who are working
for them whom they want
to be in control of this country.’
[20]
And
‘
We kept it as an intelligence
issue but it is as important to say this because the character
assassination that I faced over the
years more than 20 years this is
one of the clear sources that I know. There was a plan to deal with
Zuma and Zuma has been dealt
with all the time.
In other words foreign intelligence
organisations and the local one of course under apartheid for a
variety of reasons thought it
was important to deal with this
man.’
[21]
‘
So the issue of Zuma must
resign, Zuma must leave the leadership started way back, as part of
this plan.’
[22]
[51]
Clearly
and consciously, Mr Zuma links his evidence at the Commission to Mr
Hanekom in his tweet. The plan which allegedly started
more than 20
years ago persists today in the ANC and its NEC through Mr Hanekom.
So, it is not as recent as the discussions in
2017 or 2018 to have Mr
Zuma recalled. Reasonable readers would interpret the link in the
tweet to the Commission to mean that
Mr Hanekom is part of that plan
in which apartheid spies and agents conspired with two big countries
to ‘deal with Zuma’.
In other words, Mr Hanekom’s
plans to have him removed from leadership in the ANC, dovetails with
the apartheid agents’
plans. This interpretation gains traction
in further evidence from his answering affidavit.
Tweet in context of Mr Zuma’s
Affidavits
[52]
Mr
Zuma testifies that the primary function of members of the ANC who
played a dual role, was to serve the apartheid intelligence
machinery. While Mr Zuma does not dispute Mr Hanekom’s
membership, he disputes his loyalty to the ANC and its objectives.
Like his evidence at the Commission, the following extracts from his
affidavit locates the inferences flowing from his tweet to
times
before the attempts to recall Mr Zuma. They go way back into history,
into the anti-apartheid struggle, to a time when the
ANC was at war
with the SADF.
‘
Agents by their very nature
operate
clandestinely
.
It is precisely through seeming loyal and the appearance of
commitment that enables agents to be effective. Accordingly,
Hanekom’s
allegations about his role or membership in the ANC
and the anti-apartheid struggle are entirely irrelevant for the court
to determine
the dispute in respect of
his
actual role.’
And
‘
I note that Hanekom’s
affidavit is replete with his protestation and denial that he was
ever an Apartheid spy during the anti-Apartheid
struggle. His
protestations though understandable are misplaced and premature as
I
have not yet mentioned him as an Apartheid spy.’
(my underlining)
[53]
Mr
Zuma denies that Mr Hanekom has been a loyal and disciplined member
of the ANC for the most part of his adult life:
‘
His entire life as a
duplicitous two faced
person
is an embarrassing lie.’
‘
His entire life and conduct are
the
anti-thesis of an
activist
and the new cadre
that the ANC seeks to develop.’
‘
Only Hanekom can attest to his
true role
within
the SADF or the ANC. He knows which of the two
he
was deceiving
. This is not
for this court to determine at this stage.’
(my underlining)
[54]
The
insinuations, inuendo and ambiguity in the phrase, in Mr Zuma’s
tweet and reinforced in his evidence at the Commission
become
explicit in the following paragraph 112 of his answering affidavit:
‘
The statement that I posted
about Hanekom say what it says. Hanekom worked with enemies of the
ANC to advance their political goals
against the ANC and to topple it
from government. The statement that I published was therefore
truthful, fair comment of Hanekom’s
conduct and protected under
section 16 of the Constitution. By assisting the political enemies
with information to weaken the ANC
and topple its leadership, Hanekom
acted as an
apartheid enemy
agent
.’ (my
underlining)
Mr Zuma expresses his claim that Mr
Hanekom is an apartheid spy unambiguously in the above extract. He
uses innuendo to project
the same message in the phrase ‘known
enemy agent’ in his tweet. I find that his tweet is defamatory
and false.
Inconsistencies, misconceptions and
distortions
[55]
At
the outset I acknowledged the caution that in lawfare, politicians
may try to use court to do their bidding. These litigants
make many
accusations and counteraccusations against each other. Many are
either irrelevant to the principal claim for defamation
or incapable
of resolution in application proceedings. So, they do not feature in
this judgment. However, the public interest nature
of this
application requires some analysis of a few 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.
For some of these
inaccuracies, reference to Constitutional Law and history will do.
For others, the rules of evidence to determine
probabilities will
apply.
[56]
Mr
Zuma says that by ‘enemy’ he means the EFF and other
opposition parties and anyone who sought his removal as President
of
the country, including other members of the ANC. He says that this is
his belief. He repeats this belief several times. So emphatic
is he
that he goes further to deny that his tweet is ‘false and that
[he] could not have genuinely believed [it] to be true’
in the
context provided. He also denies that his tweet is either ‘malicious
or untruthful’. He seems unaware that these
beliefs and denials
undermine his defence that his tweet does not imply that Mr Hanekom
is an apartheid spy. His beliefs may count
in his capacity as a
politician. However, it is not his beliefs that count in this
defamation claim. The test is: Would reasonable
right-thinking people
also understand ‘enemy’ as Mr Zuma does, and would they
limit it, as Mr Zuma suggests, to exclude
any reference to Mr Hanekom
being an apartheid spy? The answers to these questions originate in
our Constitution.
[57]
South Africa’s
‘negotiated revolution’ heralded our Constitution in
which we pledge to ‘[h]eal the divisions
of the past …
and [b]uild a united and democratic South Africa…’.
[23]
Section 1(d) of our Constitution lays
the foundation for ‘a multi-party system of democratic
government, to ensure accountability,
responsiveness and openness.’
As such, opposition parties are constitutive of our political
landscape, enriching our democracy,
diversity of discourse and
culture, but simultaneously uniting us to take our ‘rightful
place as a sovereign state in the
family of nations’.
[24]
[58]
Ironically, it is in
UDM
[25]
in which the dispute about the
motion
of no confidence in President Zuma was decided, that Mogoeng CJ
scribing for a unanimous Constitutional Court (CC), extolled
the
values underpinning the Preamble to our Constitution:
‘
The
Preamble to our Constitution is a characteristically terse but
profound recordal of where we come from, what aspirations we
espouse
and how we seek to realise them. Our public representatives are thus
required never to forget the role of this vision as
both the vehicle
and directional points desperately needed for the successful
navigation of the way towards the fulfilment of their
constitutional
obligations. Context, purpose, our values as well as the vision or
spirit of transitioning from division, exclusion
and neglect to a
transformed, united and inclusive nation, led by accountable and
responsive public office-bearers, must always
guide us to the correct
meaning of the provisions under consideration. Our entire
constitutional enterprise would be best served
by an approach to the
provisions of our Constitution that recognises that they are
inseparably interconnected. These provisions
must thus be construed
purposively and consistently with the entire Constitution.’
[59]
Founded on a negotiated
political settlement, the Constitution anticipates that a culture and
consciousness of co-operation and
dialogue 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.
[26]
To this end, coalitions and
collaboration amongst political parties arise. Without common aims
and reciprocity, ‘nothing resembling
a society can exist.’
[27]
That is not to say that dialogical
constitutionalism jettisons conflict and contestation for political
power. On the contrary, interparty
and intraparty conflict is
inevitable in complex societies confronting intractable problems.
Dialogical constitutionalism anticipates
meaningful engagement to be
agonistic, not antagonistic, to sharpen debate for best outcomes, and
not to subvert constructive discourse.
[28]
A critical legal approach to
constitutional interpretation recognises, respects and accounts for
these phenomena in public interest
litigation such as this.
[60]
In short, this is what it means
to be participatory, dialogical, developmental and constitutional in
a multi-party democracy. This
is the constitutional culture that
democracy-seekers collectively and consciously strive for to make our
fledgling nation work.
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.
[29]
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, I find that no reasonable reader of Mr Zuma’s
tweet would link ‘enemy’ to the
EFF, opposition parties
or opponents within the ANC.
[61]
As a member of the ANC ‘for
decades’, having ‘different leadership responsibilities’,
including as President,
Mr Zuma must know, support and actively
advance dialogue and other bridge building practices to achieve the
revolutionary aims
of our Constitution. As a conciliator entrusted to
lead a nation fractured by ‘strife, conflict, untold suffering
and injustice,’
[30]
Mr Zuma would not reasonably be
understood to mean that members of opposition parties are enemies of
the ANC. Reasonable, right-
thinking people would not anticipate that
Mr Zuma would bear such an adversarial disposition towards opposition
parties, let alone
encourage such antagonism. Mr Zuma’s
insistence that ‘enemy’ refers to opposition parties and
his detractors
is seriously at odds with our constitutional values.
If his beliefs prevail, our democracy would unravel.
[62]
As
the chief of intelligence and an elder in the ANC, Mr Zuma’s
utterances are 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.
[63]
Mr
Zuma began his defense by repeatedly denying that ‘known enemy
agent’ implied ‘apartheid spy’. His paragraph
112
unravels his defense altogether. However, this is not the only
contradiction in his case.
[64]
Mr
Zuma’s evidence in this application is internally inconsistent
in multiple ways. He admits that to be called a ‘known
enemy
agent’ or an ‘apartheid spy’ is defamatory.
However, he then denies that his tweet ‘cast aspersions
on the
character and integrity of Hanekom’. He continues to say that
Mr Hanekom displayed ‘a shocking lack of political
integrity
and judgment’ by ‘using his political position, knowledge
and experience in the ANC to join the political
foes of the ANC with
the sole purpose of toppling the ANC leadership and weakening its
political power.’ He emphasises that
by defying ‘the ANC
to join forces intent on dismantling the ANC and toppling its
democratically elected leadership,’
Mr Hanekom showed that he
‘has no integrity whatsoever. Even in politics, integrity means
that you do not place your political
party at the jeopardy of losing
credibility and support by joining the opposition to topple the
leadership of the party and weakening
it.’
[65]
Furthermore, the ‘ANC NEC had specifically instructed
all its members in Parliament to not vote with the EFF or any
opposition
political party in support of a motion to remove the
President. Hanekom defied this resolution of the ANC NEC. This
defiance does
not define discipline and loyalty.
[66]
Mr
Hanekom counters that it was his loyalty to the ANC that urged him to
seek Mr Zuma’s removal as President. It is in fact
Mr Zuma who
damaged the reputation of the ANC as a result of the allegations of
fraud and corruption levelled against him. Removing
Mr Zuma as
President was therefore consistent with the country’s
Constitution and in the interest of the ANC and the people
of South
Africa.
[67]
In
my view, Mr Zuma seems to have forgotten the CC’s reminder in
UDM
below that the oath of office is allegiance to the
Constitution, not to the political party to which the member belongs:
‘
Central to the freedom ‘to
follow the dictates of personal conscience’ is the oath of
office. Members are required to
swear or affirm faithfulness to the
Republic and obedience to the Constitution and laws. Nowhere does the
supreme law provide for
them to swear allegiance to their political
parties, important players though they are in our constitutional
scheme. Meaning, in
the event of conflict between upholding
constitutional values and party loyalty, their irrevocable
undertaking to in effect serve
the people and do only what is in
their best interests must prevail. This is so not only because they
were elected through their
parties to represent the people, but also
to enable the people to govern through them, in terms of the
Constitution. The requirement
that their names be submitted to the
Electoral Commission before the elections is crucial. The people vote
for a particular party
knowing in advance which candidates are on
that party’s list and whether they can trust them.’
[31]
[68]
The CC also encouraged the
Speaker to put the people first in the following extract:
[32]
‘
Considerations of transparency
and openness sometimes demand a display of courage and the
resoluteness to boldly advance the best
interests of those they
represent no matter the consequences, including the risk of dismissal
for non-compliance with the party’s
instructions.’
(footnotes omitted)
[69]
Mr
Zuma mistakenly assumes that loyalty to the ANC is synonymous with
loyalty to him. His assumption is both factually and constitutionally
untenable. Falsely or erroneously, Mr Zuma believes that his recall
as President was against the wishes of the ANC. However, it
was the
ANC NEC itself that insisted on Mr Zuma resigning as President of
South Africa. Furthermore, it is not only the wishes
of the ANC that
matter. Mr Zuma offers no evidence that the people of South Africa
were opposed to his recall. The people have
an interest in what goes
on in the ANC not least because it is the majority governing party.
[70]
Support
for the removal of Mr Zuma as President of South Africa is not
synonymous with undermining the ANC. It is not only Mr Hanekom
who
supported his removal. Many other members of the ANC who were of the
view that Mr Zuma ‘did not possess the characteristics
befitting the office’ of President of the country acted in the
best interests of the ANC and the country when they mobilised
and
resolved to recall him as President. Notwithstanding the efforts
within the NEC since 2016 to recall him, Mr Zuma chose to
resign only
in February 2018. If the NEC decision was contaminated by the
influence of apartheid spies, as Mr Zuma suggests, then
the
appropriate response for Mr Zuma was to challenge the NEC decision.
Instead he resigned. By his resignation he acquiesced in
the NEC
decision. Whether he did so as a disciplined member of the ANC or
because he acknowledged that the balance of forces within
the ANC had
shifted, is irrelevant for current purposes. Equally, his bald,
unsupported assertions of apartheid spies in the NEC
are insufficient
to cast doubt on the authenticity of the NEC decision in these
proceedings.
[71]
By
impugning Mr Hanekom’s discipline and loyalty to the ANC, Mr
Zuma opens himself to the same criticism. Mr Zuma is unmindful
that
his own resistance to being recalled and his criticism of the NEC
resolution and characterisation of members of the ANC who
supported
it as apartheid spies, opens him to the same accusation that he
levels against Mr Hanekom of undermining the ANC.
[72]
About his underground
activities, Mr Hanekom testifies that in 1979 he contacted the ANC in
Botswana. One of his contacts was Roland
Hunter, the personal
assistant of Colonel Cornelius van Niekerk of the South African
Defence Force, who headed ‘Operation
Mila’ a covert
programme of support for Renamo rebels, with the sole aim of
destabilising the Frelimo government of Mozambique.
This was
apartheid’s model project for similar destabilising programmes
in Lesotho, Angola and Zimbabwe. Mr Hanekom facilitated
contact with
the ANC in Botswana and helped Mr Hunter convey information about
Renamo to the ANC. By his involvement in this way,
he deceived
neither the SADF, of which he was a member only briefly to complete
his compulsory conscription to the South African
Army in 1971, nor
the ANC for whom he gathered information from Mr Hunter.
[33]
[73]
Mr
Hanekom later learned that President Oliver Tambo of the ANC, had
conveyed the information he had gathered to President Samora
Machel
of Mozambique which enabled Frelimo to respond rapidly to Renamo. His
facilitation strengthened the hand of the President
of Mozambique in
the negotiations resulting in the Nkomati Accord. The search for the
source of the information led to his arrest
in 1983 for high treason.
He faced the prospect of the death penalty.
[74]
It is an undisputed objective
fact that for conveying information from Mr Hunter, Mr Hanekom was
convicted of high treason and imprisoned
for 24 months until his
release in September 1986. It is a historical fact, tested through
evidence in his trial, that Mr Hanekom’s
activities as an
underground operative facilitated contact between Mr Hunter and the
ANC in Botswana to convey information about
apartheid South Africa’s
destabilization of neighbouring states. Of the Nkomati Accord,
Callinicos writes that it ‘proved
to be a positive turning
point for the ANC. It pushed the movement back to its most
fundamental ‘rear base’, to the
people of South Africa,
back home, thus escalating the struggle and hastening the demise of
the apartheid regime.’
[34]
[75]
In
these circumstances, for Mr Zuma to dismiss Mr Hanekom’s anti-
apartheid activism, his loyalty to the ANC and his underground
work
as irrelevant to this application is not only offensive and
inflammatory but also disingenuous. Mr Hanekom’s anti-apartheid
activities are building blocks constitutive of his reputation and his
identity. Hence this claim for defamation. Despite being
the head of
intelligence and ‘fully aware’ of intelligence
operations, Mr Zuma offers not a shred of evidence
to support his
claim that Mr Hanekom was an apartheid era spy. False narratives
about Southern African history cannot be left unchecked.
[76]
Mr
Zuma acknowledges meeting Mr Hanekom in Zimbabwe, thanking him for
his contribution to the liberation struggle and appointing
him to
Cabinet when he was President. However, he maintains that none of
this suggests that he did not believe then that Mr Hanekom
worked
with political enemies of the ANC to achieve the political agenda of
those enemies against the ANC. This is another instance
of
inconsistency with his defence that ‘known enemy agent’
did not include a reference ‘apartheid spy’.
[77]
However,
for Mr Zuma to testify in this application that Mr Hanekom ‘staged’
his exile without putting up any facts
to support it, is
impermissible. Saying so in this application requires him to
substantiate it. That he has reserved his right
to testify about
apartheid spies at the Commission does not relieve him of his
obligations to substantiate claims he makes in this
application. If
he cannot substantiate his claims, he should not make them. Having
made them, he should withdraw them if he cannot
put up the evidence.
[78]
Mr
Hanekom challenged Mr Zuma for appointing him to a Cabinet post as
Minister while believing him to be an apartheid spy. Inappropriately,
Mr Zuma points to President Mandela’s appointment of Mr F.W de
Klerk as Deputy President in 1994. That appointment was to
forge a
government of national unity as the outcome of a negotiated
revolution. It does not explain why he, Mr Zuma, would knowingly
appoint a person whom he believed to be an apartheid spy to senior
positions within the ANC and the government. To add that such
a
person would never assume the position of President of the ANC is no
explanation for enabling an apartheid spy to hold high political
office in democratic South Africa.
[79]
Mr
Hanekom challenges Mr Zuma about allowing him to serve on the ANC’s
National Disciplinary Committee knowing him to be a
known enemy of
the ANC. About this appointment Mr Zuma’s believes the
following:
‘
Hanekom has been at the
forefront of expelling other members of the ANC who committed the
offences of a less serious nature, I suppose,
at that point, he did
this to pursue his very desire to have me removed at some stage.
While pretending to act in the interests
of the ANC and its
leadership, I believe that he sought to prepare the ground for my
removal. His was a stratagem to strip me of
any future support that
would jeopardize his grand plan to remove me.’
If Mr Hanekom did what Mr Zuma
believes he did, then it is equally an indictment of Mr Zuma’s
leadership as it is of Mr Hanekom’s
alleged duplicity. However,
Mr Zuma’s beliefs are not evidence. They cannot acquire the
stamp of legitimacy merely because
he articulates them under oath in
court proceedings.
[80]
Mr
Zuma insinuates:
‘
It has become common place for
people in Hanekom’s place to supress alternative views and
facts by rubbishing those who may
expose them as being liars or
enablers of State capture, when in fact it is they who seek to
conceal the true nature of State capture
they have perpetrated since
South Africa’s political settlement in 1994.’
I find on objective evidence in this
application that it is Mr Zuma who propagates a false narrative about
Mr Hanekom and his underground
activities for the ANC. Mr Zuma has no
better evidence than Mr Hanekom’s admission about his role in
having Mr Zuma recalled.
Yet, Mr Zuma exaggerates this role to
conniving and colluding with opposition parties. He distorts
objective historical facts about
Mr Hanekom’s underground work
that led to the Nkomati Accord and his conviction for high treason.
There is an NEC decision
that binds Mr Zuma, but he seeks to
undermine it in the way he conducts his defence in this application.
[81]
The
litigants finger each other as wedge-drivers. This calls for a value
judgment best left to the political party to which they
belong. As
the ANC adopted the concept of wedge-drivers, it would know best how
to apply it.
Remedy
[82]
Turning to the three
requirements for a final interdict – urgency, harm and
alternative remedy
[35]
–
Mr Zuma disputes that the
matter is urgent. He testifies that:
‘
An interdict would muzzle the
truth, unfairly limit my right to share my political opinions about
the actions of persons in the
ANC who betray its historical mission.
An interdict is not a just and equitable remedy in these
circumstances. In any event, an
interdict as sought will undermine
the constitutional right to expression and free speech under section
16 of the Constitution.’
He is yet to complete his testimony in
the Commission. To issue this interdict will place unfair limitation
on his ability to give
evidence that will demonstrate the false views
of people like Mr Hanekom on his role in government as President.
[83]
The
submission that the interdict would bar him from testifying about Mr
Hanekom is unsustainable. This application is to interdict
Mr Zuma
from making false statements about Mr Hanekom. Mr Zuma has deposed to
affidavits in these proceedings which oblige him
to be truthful.
Similarly, by testifying under oath at the Commission Mr Zuma is
already barred from making false statements there.
Nothing said or
done in this application constrains his testimony at the Commission
any more than his oath to be truthful.
[84]
As
for the harm, Counsel concedes that to refer to any person as an
apartheid spy would be harmful. However, Mr Zuma contends that
whatever harm Mr Hanekom claims to have suffered, is self-inflicted.
He cannot see how his tweet, ‘which is true, can cause
any harm
to Mr Hanekom or impugn his dignity.’ Mr Hanekom is the ‘author
of his own misfortune for conniving with the
political enemies of the
ANC to undermine and topple the ANC and its leadership.’
Turning to the remedy, Mr Zuma refuses
to apologise to Mr Hanekom for
what Mr Zuma regards as the truth and fair comment about Mr Hanekom
because he ‘sold the ANC’.
On the issue of damages, Mr
Zuma submits that Mr Hanekom should not be rewarded with damages for
conduct that amounted to selling
out on the ANC by collaborating with
its political enemies.
[85]
I
find that a reasonable reader would infer that Mr Zuma’s tweet
implies that Mr Hanekom is an apartheid spy. Mr Zuma must
apologise,
remove the tweet and pay damages.
[86]
Counsel for Mr Hanekom, Ms
Steinberg contends that his public profile is sufficient to determine
quantum.
[36]
However, both Counsel acknowledge that
it is inappropriate to determine malice as an element that affects
quantification. There
may be other aspects of quantum that deserve
fuller ventilation. The nature and volume of media publications would
be relevant
for assessing quantum. Consequently, quantum is referred
for oral evidence.
[87]
Both
litigants claim costs against each other on an attorney client scale.
Ms Steinberg expatiated on the difficulties in effecting
service on
Mr Zuma and his disregard for the time limits set for delivering his
answering affidavits. I agree with Mr Sikhakhane
that taking
instructions from Mr Zuma in Nxamalala Village, in Nkandla, KwaZulu
Natal, in a fact sensitive matter such as this,
takes time.
Importantly, the time taken enabled the matter to be disposed of
finally on the merits. Commendably, Mr Sikhakhane
acceded to the
merits being determined finally, without raising procedural and
technical objections. He made appropriate concessions
that helped to
narrow down material issues. The issues ventilated in the public
domain via social and other media are of a public
interest. They call
for judicial intervention when the litigants are unable to resolve
their dispute amongst themselves. In the
circumstances. a punitive
costs order is unjustified.
Order
1. It is declared that the allegations
made about the applicant, Derek Hanekom in the following statement
posted as a tweet, are
defamatory and false:
‘
I’m not surprised by
@Julius_S_Malema revelations regarding @Derek_Hanekom. It is part of
the plan I mentioned at the Zondo
Commission. @Derek_Hanekom is a
known enemy agent.’
2. It is declared that the respondent,
Jacob Gedleyihlekisa Zuma’s publication of his tweet above was
and continues to be
unlawful.
3. The respondent is ordered to remove
the tweet within 24 hours from all media platforms including by
deleting it from his Twitter
account.
4. The respondent is ordered, within
24 hours, to publish on Twitter from his Twitter account
(@PresJGZuma) the following apology:
‘
On 25 July 2019, I published a
tweet which alleges that Derek Hanekom is a known enemy agent. I
unconditionally withdraw this allegation
and apologise for making it
as it is false.’
5. The respondent is interdicted from
publishing any statement that says or implies that the applicant is
or was an enemy agent
or an apartheid spy.
6. The interdict in the preceding
paragraph does not bar the respondent from testifying truthfully, as
he is required to, at the
Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public
Sector Including Organs of
State.
7. The applicant is awarded damages
against the respondent, the quantum of which is yet to be determined.
8. The determination of the quantum of
damages of R500 000 claimed by the applicant against the respondent
is referred for oral
evidence.
9. The respondent is ordered to pay
the applicant’s costs, including the costs of two counsel.
10. The matter is adjourned sine die.
____________________
D. Pillay J
Judge of the High Court of
KwaZulu-Natal
APPEARANCES
Counsel for the applicant : Advocate C
Steinberg, Advocate C Tabata
Instructed by : Weber Wentzel
Attorneys
Ref: P Dela / D Milo/ L Pillay/ S Owen
Email:
pooja.dela@webberwentzel.com
;
dario.milo@webberwentzel.com
Tel: (011) 530 5422
c/o Shepstone & Wylie
Email:
shaista.singh@wylie.co.za
Tel: (031) 575
7000
Counsel for the respondent : Advocate
M Sikhakhane SC,
Advocate T Masuku SC, M Sikhakhane
Instructed by : Lugisani Mantsha
Incorporated
Ref: LMO313/19/JGZ
Email:
info@lugisanimantshaattorneys.co.za
c/o Robinson
Manzi Atorneys
Tel: (011) 781 0099
Date of Hearing: 23 August 2019
Date of Judgment: 6 September 2019
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L Callinicos ‘Oliver Tambo –
Beyond the Engeli Mountains‟ (2004) at 336. This biography has
a stamp of authority
with the forward by President Thabo Mbeki.
https://www.anc1912.org.za/myanc-close-ranks-be-
vigilant-comrades-enemy-vigilant-beware-wedge-driver-men-who-creep-ear-ear;
https://www.dailymaverick.co.za/article/2017-12-14-analysis-morogoro-conference-memorandums-
wedge-drivers-and-the-saving-of-the-ancs-soul/;
https://www.dailymaverick.co.za/opinionista/2018-09-20-
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[2]
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[3]
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[4]
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[5]
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[6]
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2011 (3)
SA 274
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[7]
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2011 (3)
SA 274
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[8]
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[9]
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[10]
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[11]
Tsedu v Lekota
2009 ZASCA 11
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[12]
Waldis v Van Ulmenstein
(2017 (4) SA
503
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[13]
Democratic Alliance v African
National Congress and Another (CCT 76/14)
[2015] ZACC 1
;
2015 (2) SA
232
(CC);
2015 (3) BCLR 298
(CC) (19 January 2015); Islamic Unity
Convention v Independent Broadcasting Authority and Others
(CCT36/01)
[2002] ZACC 3
;
2002 (4) SA 294
;
2002 (5) BCLR 433
(11
April 2002)
[14]
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of Delict’ (1993) at 319.
[15]
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Judicial Court Massachusetts United States of America Bram Fischer
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[17]
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[18]
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[19]
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[20]
Transcript p18.
[21]
Transcript p20.
[22]
Transcript p22.
[23]
Preamble to the Constitution of the
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[24]
Preamble to the Constitution of the
Republic of South Africa, 1996.
[25]
United Democratic Movement v Speaker
of the National Assembly and Others
[2017] ZACC 21
para 31.
[26]
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[27]
L Fuller ‘Forms and limits’
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[28]
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‘
The ‘democratic
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the past, incomplete then and incomplete
now.’
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2019-02-11 (accessed date?).
[30]
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[31]
United Democratic Movement v Speaker
of the National Assembly and Others
[2017] ZACC 21
para 79.
[32]
United Democratic Movement v Speaker
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para 80.
[33]
’
Released spy tells of stolen
SA secrets’
https://mg.co.za/article/1987-11-27-ed-spy-tells-of-stolen-sa-
secrets; ‘Treason
trial in South Africa’ CIIR Newsletter
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[34]
L Callinicos ‘Oliver Tambo –
Beyond the Engeli Mountains’ (2004) at 519. This biography has
a stamp of authority
with the forward by President Thabo Mbeki.
[35]
Hotz v UCT (730/2016)
2016 ZASCA 159
(20 October 2016) at para 29; Setlogelo v Setlogelo
1914 AD 221
at
227.
[36]
Manuel v EFF and Others
[2019] 3 All
SA 584
(GJ).