South Africa: Zuma v Zapiro and the rape of the justice system – Dario Milo

8 11 2012

On 29 October 2012, President Zuma formally withdrew his defamation claim against Sunday Times, Mondli Makhanya and the cartoonist Zapiro, and offered to pay 50% of their legal costs. The claim related to Zapiro’s “rape of justice” cartoon. Given that Zuma’s original claim was for R4 million in damages to his reputation and R 1 million in damages to his dignity, as well as legal costs and interest, the withdrawal – which sees Zuma paying money to those he sued and not the other way round – has rightly been hailed as a victory for the defendants.

It is necessary to remind ourselves of the context in which the cartoon was published.

In December 2007, the national prosecuting authority (NPA) reinstituted charges of corruption and other related offences against Zuma regarding his relationship with his former financial adviser, Schabir Shaik.  Zuma was indicted to face these charges in August 2008.

Throughout 2008, leaders of the African National Congress (ANC), the ANC Youth League (ANCYL), the South African Communist Party (SACP), and the Congress of South African Trade Unions (COSATU) made various inflammatory statements discrediting the courts and calling for a political solution to the corruption case Zuma faced.  These statements included the ANCYL’s then president Julius Malema saying “We are prepared to take up arms and kill for Zuma”, which was echoed by COSATU’s General-Secretary Zwelinzima Vavi; the ANC Secretary General Gwede Mantashe’s statement that the Constitutional Court judges were counter-revolutionary forces poised to “pounce” on Zuma; and the SACP’s warning that the continuation of Zuma’s trial would take the country “to the brink”.

In parallel with these statements, Zuma’s legal team embarked upon a strategy in dealing with the criminal charges which involved Zuma litigating on every conceivable aspect of the prosecution’s investigation.  This strategy was described by his counsel in court as “like [the battle of] Stalingrad … burning house to burning house”.  The Stalingrad strategy resulted in Zuma challenging search warrants which had been executed by the NPA; objecting to the courts granting a letter of request to the NPA for assistance by the Mauritian and United Kingdom authorities to obtain documents needed for the prosecution; and challenging the procedural fairness of the decision to reinstate criminal charges against Zuma without consulting him first.  After losing in the Supreme Court of Appeal, Zuma took the search warrant and Mauritius assistance challenges to the Constitutional Court, losing in both instances.

The “rape of justice” cartoon was then published, in September 2008.  It depicted Zuma prepared to rape Lady Justice, who was being held down by Malema, Mantashe, Nzimande and Vavi, with Mantashe saying “Go for it boss!”.

Zuma issued summons against the newspaper and Zapiro in December 2010.  His complaint was based squarely on exactly what the cartoon was unashamedly saying: that he was prepared to abuse the justice system.  His case was that this was unlawfully defamatory and harmed his dignity.

Zuma’s complaint in his court papers was not that the cartoon meant that he was a rapist.  Nor could he have made such a complaint – the cartoon was clearly not meant to be interpreted literally, just as the ANC has rightly argued that when its members sing struggle songs such as “Dubul’ iBhunu”, they are not literally calling on people to kill Afrikaners.  The “rape of justice” was clearly metaphorical.

Zapiro’s defence to the claim was that the cartoon was fair comment on the public conduct of Zuma and the alliance leaders; it  was therefore neither unlawfully defamatory nor did it harm his dignity.

One would usually expect a litigant who wants to clear his name to act proactively to get to court as soon as possible.  But not this litigant.  Instead, in a manner not unlike the Stalingrad strategy, Zuma took every technical point he could in the lead up to the defamation trial.  He had to be compelled by two court orders, including one awarding punitive costs against him, to list documents in his possession that he thought were relevant to the case.  Then he said he would apply for a postponement because a “presidential infrastructure summit” was scheduled to take place at the same time as the trial.  When that was challenged by the defendants, he abandoned that excuse.  The next stratagem was to refuse to admit that the public statements by the tripartite alliance leaders were in fact made.  And when we obtained video footage of these statements, the president’s legal team again objected – saying that they would argue the case was not ready for hearing because evidence had been submitted late.

The climax of the procedural blockade was that on the day that the case was called in court, Zuma unsuccessfully argued that the case had been wrongly enrolled because two different case numbers, with one digit differing, had been used.

In the meanwhile, one week before the trial, Zuma withdrew his claim that the cartoon harmed his dignity, and so avoided having to get into the witness box, which  would have exposed him to cross-examination by Wim Trengove SC on issues such as the “spy tapes”, which had ultimately resulted in the NPA withdrawing the criminal charges, and his Stalingrad strategy.

Then came Zuma’s withdrawal also of the defamation claim, on the eve of the trial.

Against this background, the reasons given by the office of the presidency for Zuma’s capitulation ring hollow.

The presidency says, in an exercise in mental gymnastics, that Zuma wanted to avoid setting a legal precedent that may have limited freedom of expression.  But the president would have lost the case.  This is because Zapiro’s opinion – that Zuma and his allies were prepared to abuse the justice system to ensure the dropping of criminal charges against him – falls squarely within the defence of fair comment.  As the Constitutional Court explained in McBride v Citizen: “Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, so long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true.”  You may disagree with Zapiro’s opinion, but he is entitled to express it.

But in any event, if this explanation is valid, why does the president still have 12 defamation and dignity cases, with claims for over R50 million, against 7 newspapers, a radio station, two cartoonists, a columnist, op-ed writers, and journalists?  And why did he institute action this year against an art gallery?

The other reasons given by the presidency involved dusting off and deploying the Spear strategy: the cartoon isracist and doesn’t respect African culture. The difficulty with this argument is that the cartoon is clearly political commentary which is race-neutral and culture-neutral.  In any event, these were not complaints made by Zuma in the court papers.

Can it be that the real reason for Zuma’s withdrawal is far simpler: that he knew he would lose the case and would have been embarrassed in the courtroom, at a time when the political cost is too high?

Dario Milo is a partner at Webber Wentzel he acted for the Sunday Times and Zapiro in the case. Follow Dario Milo on twitter: @dariomilo


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12 11 2012
Law and Media Round Up – 12 November 2012 « Inforrm's Blog

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