DURBAN – The legal team for former president Jacob Zuma told the Pietermaritzburg High Court on Tuesday that a ruling calling the former president’s “enemy agent” tweet about ANC NEC member Derek Hanekom defamatory “gagged” Zuma.
Zuma’s legal team was applying for leave to appeal the ruling before Judge Daya Pillay, who made the original ruling in September.
“Effectively, what Mr Hanekom seeks and what the court [found in its September ruling] is unjustified and a limitation to Mr Zuma’s freedom of expression,” said Mpilo Sikhakhane, acting for Zuma.
Courts usually gave more leeway in cases where alleged defamatory statements were made in a political context, said Sikhakhane, as insults and “robust debate” were part and parcel of the environment.
This leeway was important, continued Sikhakhane, as it moved away from the past, where citizens were controlled politically. Hanekom was seeking to keep Zuma away from political debate, and the court had done the same with its ruling, said Sikhakhane.
Pillay disagreed, saying her order had been “very specific”.
But Sikhakhane continued, saying that what the court order did was effectively say that in any political debate, Zuma was “gagged” from saying anything relating to Hanekom being an enemy agent or apartheid spy.
Pillay shot back: “You are saying I have gagged Mr Zuma from saying Hanekom is an apartheid spy or enemy agent. But you also say a ‘known enemy agent’ doesn’t equal ‘apartheid spy’”.
“The court erred, what we are suggesting is that the court order as it stands – it is a forward looking order – says Zuma should not say anything to the effect,” Sikhakhane said.
“Where do you get that? If it is defamatory then he can’t make the statement,” Pillay said.
“You have made an interpretation that the statement meant Mr Hanekom was an apartheid spy. Practically, it may well happen that in another context, Mr Zuma might say Mr Hanekom was an apartheid spy and provide evidence,” said Sikhakhane.
Pillay said her judgment was not an “impediment” to Zuma “putting out evidence” that Hanekom was an apartheid spy.
Sikhakhane said Zuma may be justified in other contexts in making the claim, to which Pillay agreed.
Earlier, Sikhakhane and Pillay had deliberated over the “context” of the tweet, with Sikhakhane saying that a “reasonable” reader of the tweet would not interpret the words “known enemy agent” to equate to “apartheid spy”.
Pillay said that this was one of the “fundamental” questions that had to be answered. “What is a ‘known enemy agent’?”
Sikhakhane replied that in her ruling, Pillay said that historically, the term “enemy agent” always referred to an apartheid spy. But, he added, that could not be used as a starting point.
In the apartheid era, there were people who regarded others as Impimpi (traitors/sell-outs) in various contexts, such as during strike action. The same occurred today, he added. This did not imply a link to the apartheid era.
“Impimpi can refer to many contexts in which people sell-out, so to speak, but ‘apartheid spy’ is one of several connections. We aren’t talking in the context of trade unions, we are talking in the context of the ANC and former South African government,” Pillay said.
Sikhakhane said he differed with Pillay because “In the context of what Hanekom did [to ensure] the removal of Zuma from office, that is where the context ‘enemy agent’ is used. The connection Hanekom and the court makes is unjustified”.
“So it’s one of three options,” said Pillay. “Known enemy agent” could either be interpreted as “selling out to the apartheid government, [Hanekom] selling out Mr Zuma to opposition parties or selling out as in the trade union context”.
There were some plausible grounds to this, said Sikhakhane, which is why it could be entertained by the supreme court, should the application to appeal be granted.
“The finding you have made about the connection, we are submitting that another court would interpret what you interpreted differently. In these circumstances, the statement is not defamatory,” he said.