Defamation case not going anywhere

2010-12-21 13:14

Arriving back from a snowed in Berlin, I made the mistake of buying the Sunday newspapers. Sadly I find the same depressing news stories and absurd debates dominating the newspapers as when I left.

Our President claims that he wants to sue Zapiro, South Africa’s leading cartoonist, because the cartoonist dared to comment on the President’s ”manipulation” of the justice system to escape his day in court. Remember the days when Jacob Zuma muttered darkly that once it was all over he would give his side of the story – something that never happened. To this day we have not had any explanation from President Zuma or anyone else in the ANC about why President Zuma got involved with a crook, took money from that crook and then did favours for that crook.

While the case was still pending against him, he often said that he would give his side of the story at some point. He never has. I suppose we can draw our own conclusions from that silence. All we know is that a guy got sentenced to 15 years in prison for bribing the President of South Africa. What we do not know is what the President’s explanation is for this.

In essence the President wants to sue Zapiro for commenting on something that is rather obviously true. Obviously a “political solution” was found for Zuma’s legal problems to allow him to become Preisdent without having to defend himself in court. One may argue that the political solution was best for the country – hey so far it has worked for that womanising, mafia loving, Prime Minister of Italy – but few people would argue that the system was not manipulated to stop the charges against President Zuma.

I continue to maintain that these defamation suits are never going to get to court. They are intended to intimidate – not to lead to any kind of legal resolution.

Surely our President cannot afford to go to court where he will have to explain how he got hold of secret tapes made by the intelligence services, tapes who – even in terms of existing legislation – are deemed secret and were illegally leaked to him or his lawyer who might very well have committed a criminal offence by taking possession of the tapes and then submitting them to the National Prosecuting Authority.

The fact that these tapes indicated that one of the people involved in the case against him was discussing the timing of charging him with hundreds of counts of fraud and corruption might have saved his bacon, but where did he obtain these tapes? Surely it was illegal to be in possession of the tapes, so either Zuma or his lawyer (or both) committed a criminal offence?

(And is it not rather rich that the Zuma administration has piloted the Protection of Infortmation Bill through Parliament in an effort to tighten up secrecy and to punish those who leak information and use such information when it was exactly such secret leaks that saved Zuma’s bacon? For these guys secrecy is a matter of life and death – unless it will allow oneself to escape prosecution for having been bribed by a crook.)

If the President actually went ahead with his claim that Zapiro defamed him, I would imagine Zapiro’s lawyers would want to argue that what was depicted in the cartoon was fair comment and was – in any case – not untrue. They would ask Zuma and his lawyers to provide all the facts about how these tapes were illegally obtained and would be cross-examined by serious lawyers about it. As we have seen from the Jackie Selebi and Glen Agliotti trials, cross-examination can be rather detrimental to those who have a habit of lying.

And can one imagine our President having to squirm under cross-examination while being asked about all that money given to him by Schabir Shaik and about the favours he did for Shaik after receiving the money and after having fallen into – what Judge Hillary Squires called a ”mutually beneficial symbiosis” – with Shaik?

The President would also have to answer questions about his appointed Menzi Simelane as the head of the National Prosecuting Authority – despite the fact that Simelane had exposed himself as a person who was willing and capable of misleading an Inquiry set up by Zuma’s predecessor.

No, this defamation case is never going to get to court. I can’t imagine Zuma subjecting himself to cross-examination again. The last time that happened he made sexists statements about not leaving a women aroused without having sex with her and also made himself the laughing stock of the chattering classes with his comment about taking a shower after having sex with an HIV positive woman in order to prevent HIV transmission. Under cross-examination one cannot giggle and change the topic: one actually has to answer questions being put to you.

(Of course the Judicial Service Commission (JSC) somehow does not believe that cross-examination would have exposed the lies of one or more of the parties in the Hlophe matter. But maybe that is being too kind to the JSC: they probably know full well that the party or parties who lied to them about the Hlophe matter would be destroyed under cross-examination, so there was no way that the JSC was ever going to allow that.)

Besides when a President sues a cartoonist he exposes himself to further ridicule and acts in a way that diminishes his own dignity. If the President goes ahead with his case he would be doing to himself exactly what he claims Zapiro did to him – demeaning himself by demonstrating that he is thin-skinned and intolerant of criticism and not a great democrat. If one wants to act in a presidential manner, one should not sue cartoonists: that just seems petty and narrow minded and makes one appear like a bully and an autocrat who believes that one is not a servant of the people but somehow, because of one’s position, beyond criticism and ridicule.

But like you or me or anyone else, in a democracy, a President is open to criticism and ridicule – especially when he does something worth criticising or ridiculing. What next? Julius Malema suing comedians for making jokes about his woodwork marks?

This column originally appeared on Pierre de Vos' blog ConstitutionallySpeaking.co.za and has been republished on News24 with his permission. Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town.

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