JAUNDICED EYE

A massive boost for press freedom. And in a nation burdened with woes, a cheering reminder that the judiciary remains solid. 

That’s the tenor of the response to Jacob Zuma’s humiliation this week in the Pietermaritzburg High Court, where the National Prosecuting Authority’s Billy Downer and News24’s Karyn Maughan succeeded in their application to set aside his private prosecution of them.  

Well, ja-nee. It’s a bit more complicated than that. While the judgment dealt the former president a well-deserved bloody nose and reiterated some fundamental constitutional precepts, it was a reminder that the judicial system is under sustained pressure. Unscrupulous politicians have over the past decade increasingly abused the court process, using the flimsiest of legal pretexts to delay or avoid justice. ___STEADY_PAYWALL___

On the upside, judges Gregory Kruger, Jacqui Henriques and Mokgere Masipa tipped their hats to the importance of media freedom and placed curbs on the ability of the rich to litigate to avoid journalistic scrutiny and, in this matter, to prevent government officials from carrying out their duties. They also reaffirmed the right of civil society organisations to be admitted as amici curiae, friends of the court, no matter how partisan they are, as long as they have useful legal insights to contribute.

Theirs is a solidly constructed judgment that will undoubtedly in the future influence courts towards the side of the angels. And aside from its sturdy legal legs, this judgment is a politically robust creature — delivered by a full Bench of two women and one man, representing three ethnicities — which should easily survive the appeal that has already been announced.

There’s of course been predictable indignation from the Zuma cabal. Mzwanele Manyi, spokesperson for the Zuma Foundation, labelled it a “bizarre” judgment and a “travesty of justice”. He said that the former president was being ‘treated with laws that are not in existence … on those notorious Zuma laws”. 

An aside: Manyi was this week sworn in as an MP for the Economic Freedom Fighters, just a month after joining the party. The fascist left is coagulating.

Importantly, the ruling signals that the judiciary is at last wearying of the former president’s Stalingrad defence — a myriad of basically frivolous court applications designed to delay his appearance in court on criminal charges arising from the 1999 arms deal. Through these stratagems, indulged by judges who presumably are either inexplicably tolerant or understandably fearful, Zuma has managed to delay the “day in court” that he claims fervently to desire, for more than 19 years.

Also, pleasingly for those who like to see unbridled political arrogance punished, it’s a hefty boot into Zuma’s financial gonads. By handing down an unusual punitive costs order, the judges signalled their displeasure with Zuma’s “abuse of process” and “unclean hands”. (That’s a legal term describing a litigant’s bad faith; not a finding that the grubby tubby has been dipping his dirty paws into State coffers.) 

This means that Zuma will not only have to cough up for the lacklustre performance of his own legal team, led by Advocate Dali Mpofu. He will also have to shell out for the rather more stellar teams appearing for the intended victims of his judicial mugging. That equates to about a million dubiously acquired Zuma rands going down the financial plughole. Even more, if he carries out his ill-advised threat to appeal. 

It’s not an inconsequential amount for a sybarite with multiple wives and concubines, at least 23 offspring, and a seemingly endless line of the daughters of his former Struggle comrades who must get “taxi money” in the morning, as well as a R6.5m judgment for defaulting on his mortgage. Should the Hawks have time on their hands, they should perhaps take a squizz at precisely how Zuma — and all the African National Congress politicians and former government officials charged with State looting — are accessing the hundreds of millions they are spending on similar Stalingrad defences. 

On the downside, the case is a reminder of how indulgent the courts have hitherto been towards legal actions patently designed to harass and intimidate. There are many “abuses of the court process”, applications brought with ulterior motives and brazenly unrelated to the grounds cited. Aside from the effect on their innocent targets, this further strains a judiciary that is already overburdened and inadequately resourced.

Zuma’s now foiled private criminal prosecutions of Downer and Maughan, he for the alleged illegal disclosure of Zuma’s medical records and she for publishing them, is part of an established pattern of misusing the courts. Although inexplicably not mentioned in this hearing, during his presidency Zuma mounted more than a dozen defamation claims against journalists. 

The 2008 action against the cartoonist Jonathan Shapiro, better known as Zapiro, was typical. 

Shapiro, in a depiction of Zuma that continues to be republished globally, showed Zuma unbuckling his trousers, about to rape of Lady Justice. She is pinned, struggling, to the ground, by ANC Secretary-General Gwede Mantashe, ANC Youth leader of the time, Julius Malema, Cosatu’s Zwelinzima Vavi, and the SA Communist Party’s Blade Nzimande. “Go for it, boss,” they urge their leader.

The ANC went apoplectic. Initially, Zuma demanded R4-million for damages to his reputation and R1-million for damages to his dignity. Over the next four years, as the case crawled through the system, this progressively shrunk, to end at R100,000 in damages and an unconditional apology. Then, days before the court sitting, Zuma’s lawyers unconditionally withdrew the action and agreed to pay half of Shapiro’s costs, as a “gesture of goodwill”.

All these anti-media actions were funded by the State. None succeeded. All were abandoned at the last moment, just before the hearing.

Again, in this latest matter, what shines through is Zuma’s visceral antipathy towards journalists and his lack of comprehension of what freedom of expression means. What it comes down to is that he genuinely believes no one has the right to criticise, challenge or mock him.

With Maughan, who’s been reporting on the criminal investigations into Zuma for almost 20 years, it’s become what the judges describe as a “personal animosity”. He describes Maughan as being on “an anti-Zuma crusade … the propaganda machinery of the media, a tool used by the NPA to perpetuate falsehoods, and a hostile journalist incapable of balanced reporting.”. 

Maughan details in her affidavit the abuse she’s had from Zuma’s representatives, family, friends and close associates. She has been described by them on social media as “a thing, a bitch, a lying bitch, a white bitch, a racist, a pig, an alcoholic, a criminal, a hypocrite, a servant of white privilege, a hack and an askari.” Askari is a Struggle-era word for traitor, best sorted out with a burning tyre necklace.

The judges indicate some scepticism over Zuma’s response that he has no control over the words of others — including the Jacob Zuma Foundation of which he is patron — but they take this aspect no further. It’s a pity. Here was an opportunity to start setting some judicial parameters as to what can reasonably be expected of leaders who fan the populist flames of hatred, abuse and violence, but then express wide-eyed surprise at the outcomes.

And this court, as has been the case with every single judicial body that has had to tangle with Mpofu’s legal and ethical failings, sadly shirks from the implications of what it observes. Several times, the judges bemoan the inadequacies in Mpofu’s filings and the high-handed nature of his approach to the proceedings. They note for example, a citation in support of his argument that says the exact opposite of what Mpofu claimed of it, as well as “blanket bald denials of material allegations without laying any factual basis therefor [or] any explanation to justify his denials”.

The judges eventually conclude that the entire private prosecution was a gross abuse of process. Yet they never articulate the obvious inferences to be drawn. That Mpofu is disrespectful of the courts and careless of the interests of his client.

No mistake, this is a welcome ruling. But it’s not quite enough to conclude that the judiciary is in fine fettle. 

Just a week ago, the amaBhungane Centre for Investigative Journalism was gagged on publishing an expose that implicated the Moti Group in Zimbabwean corruption, based on information leaked by a whistleblower. Astonishingly, Judge John Holland-Muter granted the interim order at a secret hearing that amaBhungane’s lawyers didn’t even know about. 

While the worst aspects of that ruling have since been temporarily set aside, it’s a timely reminder that the courts are not unambiguous in their understanding of fundamental constitutional freedoms, as well as being ambivalent in their defence.

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