Hanekom v Zuma

• Jurisdiction: South Africa
• Judge: D Pillay J
• Judgment Date: 06 September 2019
• Docket Number: D6316/2019
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 23 August 2019
• Citation: 2019 JDR 1655 (KZD)

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]

David 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.

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[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

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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]

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[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

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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

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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...