It would be easy to think that ANC President Jacob Zuma’s defamation suits are propelled by a fragile ego, an insatiable lust for power and a strong distrust of media freedom, but I propose a different narrative.
Perhaps Zuma foresaw the current economic crisis and set a plan in motion to secure his fortune. Instead of taking mounting criticism in his stride, he saw an opportunity to cash in to the value of R63-million. Like a shrewd investor he cast the net wide and targeted a host of publications. He even had the sense to sue South Africa's most successful satirist.
Instead of casting Zuma as a chauvinistic pig shooting sperm from a machine gun, let us imagine him as a thrifty squirrel storing away nuts for the winter. To date his strategy has only yielded R50 000 from an out of court settlement, a rather paltry sum when one considers his mounting legal fees.
To save him the trouble of deciding whether to cut his losses and retract his claims or go for broke and take the rest of the country to court, I am offering him some free legal advice on the matter. I will use the recent Zapiro cartoon, depicting Zuma about to rape Lady Justice, as an example of how our courts might deal with Zuma's claims if they reach trial.
The South African law of defamation aims to balance the foundational rights of dignity and freedom. In the Holomisa case it was held that "the value of human dignity in our constitution values both the personal sense of self worth as well as the public's estimation of the worth or value of an individual".
On the other hand, freedom of expression gives people the opportunity to be exposed to a number of different viewpoints so that they can make informed and legitimate decisions about both their political and private lives. It allows for intellectual and artistic progress by provoking discussion and aiding the search for truth. By stifling beliefs that are different from our own we lose the opportunity to challenge, reconsider and perhaps reaffirm our own views.
When confronted with a defamation case our courts engage in a two-stage analysis. First, it is asked whether a defamatory statement was in fact made against the party making the complaint, with the onus resting on the complainant to prove this. Once this has been done, the onus shifts to the defendant to prove that the defamatory statement was justified. Our law defines defamation as the wrongful and intentional publication of a defamatory statement concerning the complainant. Our courts have held that statements must "tend to lower the plaintiff in the estimation of right thinking members of society", to be considered defamatory.
There has been some debate about the meaning of Zapiro's cartoon. Zapiro has argued that the cartoon expresses the opinion that Zuma has abused our system of legal justice. Others argue that it makes a factual claim that Zuma is actually a rapist. The fact that Zuma was previously charged with rape is meant to give credence to this argument. Both interpretations have a defamatory sting, but they give rise to different defences.
In the first instance, Zapiro's defence would be one of fair comment. He would have to prove that the cartoon is an honest expression of opinion, made without malice and based on a set of facts that are true and available to the public. This opinion can be of an extreme nature and it does not have to be shared by members of the public. Zapiro could draw on the fact that Zuma has attempted to use procedural technicalities to bar the NPA from using certain pieces of evidence against him in court, in addition to his general aversion to a trial, as a basis for his opinion that Zuma is attempting to rape justice.
In the unlikely event that the cartoon was considered to be a statement of fact, Zapiro would have to rely on the defence of truth for the public benefit. This means that Zapiro would have to prove that Zuma had either actually attempted to rape someone or in fact succeeded in doing so.
One might presume that Zuma's acquittal in his rape case would count as proof that he is not a rapist. However, criminal cases require the state to prove beyond a reasonable doubt that the accused is guilty of the crime that he is accused of. Civil cases, including defamation cases, require the lower burden of proof, on a balance of probabilities.
Not only does this mean that Zuma would have to endure a rerun of his rape trial, it means that the court may decide that he did engage in the act of rape. This would be similar to the outcome in the OJ Simpson trial. Even though he was not found guilty of murder in his criminal trial, he was found liable in the civil case against him.
In their seminal work on the law of delict, Van der Walt and Midgley argue that "in a democracy, forthright criticism, wild accusations and innuendos - often unfair and unfounded - are part and parcel of political activity and right thinking persons in society do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material that would otherwise have been defamatory to be no more than mere abuse." This additional defence could hinder Zuma's success in a possible case against Zapiro.
It appears that Zuma's investment strategy has been a poor one. Not only does he have minimal prospects of beating Zapiro in court, he has failed to accumulate the R63-million that he had hoped for. Even if my advice falls on deaf ears, I hope that Zuma follows the golden rule of litigation: When faced with the possibility of suing one of two parties, choose the one with deeper pockets. Which means don't sue me, sue my publisher.