Constitutional Hill

defamation

Who is being brave?

May 2nd, 2012
by Pierre De Vos.
40 comments

What is a journalist to do when he or she is sued for defamation and the company or individual pursuing the defamation case demands that the journalist reveals his or her confidential sources on which the reporter relied when writing the alleged defamatory story? This is exactly what happened to Adriaan Basson when he was still working at the Mail & Guardian.

A company called Bosasa is suing Basson and the Mail & Guardian for publishing a story headed: “Very brave for a young man”. The article relates the facts around a chilling phone call received by Basson from communication strategist Benedicta Dube. Basson was perturbed by the phone call because it transpired that Dube knew where and what Basson had studied, where he was born, and what his ID number was. She also read to him the names of some of Basson’s friends and their professions. During their conversation of almost 18 minutes Dube also threw in lines such as: “You are very brave for a young man” and said she would “kill” Basson if he told anyone about their conversation. She has not sued Basson for reporting this phone call, so one must assume that his version of the phone call is true, which is kind of scary.

Bosasa did sue, because in the article Basson claims that he had exposed in the Mail & Guardian over a period of three weeks “the corrupt relationship between facilities management company Bosasa and the Department of Correctional Services”. Bosasa did not like being called corrupt (or perhaps it is the claim that the corruption originated from a relationship with the Department of Correctional Services that got them upset) and as part of its pre-trial manoeuvres, it demanded some documents from Basson and the Mail & Guardian. They provided the relevant documents but with the names of their sources redacted.

In a preliminary legal skirmish the parties asked the South Gauteng High Court to determine whether Basson and the Mail & Guardian had a legal right to protect their sources in this way – despite having a defamation case brought against it. In a judgment written by Tsoka J, which seems to deal with the potentially dry legal question of the correct interpretation of Rule 35 of the Uniform Rules of Court, the learned judge made an important ruling in defence of the freedom of the media.

Sub rule 2 of Rule 35 states that a party is not expected to produce documents or tape recordings “in respect of which he has a valid objection”. Tsoka pointed out that all the relevant documents were indeed disclosed. The only question was whether Basson and the Mail & Guardian had a valid objection against revealing the names of their sources. The Rule, said the judge, had to be interpreted in the light of section 16 of the Constitution which guarantees freedom of expression, which includes freedom of the media. Bosasa claimed that if it were denied access to the names of the confidential sources its right to a fair trial would be infringed.

As an aside: the latter claim by Bosasa is a peculiar, one might think perhaps a Freudian, slip on the part of Bosasa as it is not facing criminal charges and its right to a fair trial is thus not implicated at all. This is a civil case in which it is claiming damages from Basson and the Mail & Guardian for alleged defamation for damage to its reputation. (Basson and the newspaper claims, rather cheekily, that Bosasa has no reputation that could have been damaged by the article as the company is widely associated with corrupt activities.)

Tsoka J, quoting extensively from the important Constitutional Court case in Khumalo v Holomisa, emphasised the important role played by the print, broadcast and electronic media in the protection of freedom of expression in our society. The media are key agents in ensuring that the right to freedom of expression is enjoyed by all citizens. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media are also important agents in ensuring that government is open, responsive and accountable to the people as the founding values of our Constitution require.

In order for the media to do its job, it is imperative that journalists are able to keep their sources confidential. In the absence of a guarantee of confidentiality, many sources would not co-operate with the media and ordinary citizens would be the poorer for it.

Tsoka then looked at the facts of the present case, noting that the contention between the parties is not whether the Mail and Guardian had acted with malice. It was therefore not relevant to its case who the confidential sources of the allegations of corruption were. The story was either true or it was untrue. The judge also rejected arguments that an Australian case which found that a journalist had to reveal his sources had to be applied here, presenting several arguments to justify this rejection. To my mind the best argument raised by the judge why the Australian judgment would not help Bosasa is neatly captured in the following statement by Tsoka J: “In any event, there is no Bill of Rights in Australia.” How it warmed my heart to read those words.

In any case, Tsoka found that the issue in each case would be whether the names of the sources would be pivotal to the case made by the party suing for defamation. Given the fact that Bosasa has to prove that the statements are defamatory and that Basson and the Mail & Guardian then has the onus to show that its defences against a claim of defamation is valid, the names of the newspaper’s sources at this stage is wholly irrelevant. The sources are allegedly employed by Bosasa and are fearful of reprisal, should their identities be revealed. As Bosasa has a duty to deal with the question of whether the allegations made are true or false, it is neither here nor there who the sources are who gave the information to the newspaper.

Although there is not a blanket journalistic privilege never to reveal one’s sources when one is sued for defamation to the contrary, in this case the sources should be protected as their identities are not central to the case and as they exercised a “laudable civic duty” by acting as whistle-blowers in a case of alleged corruption involving the state. The case may be different where a journalist receives information about the commission or pending commission of a serious crime, a journalist would be foolhardy to claim that it had to protect its sources providing such information. But this is not such a case.

Reading the judgment I could not help but wonder about the possible Oscar Wilde effect in a case like this where an institution like Bosasa sues a newspaper for defamation. Had Bosasa considered the risk it is taking? What happens if, during the trial, it becomes clear that the company was indeed embroiled in a corrupt relationship with the Department of Correctional Services? Has the Directors considered the risk of being arrested for corruption if this were to happen?

And why is Bosasa so adamant about getting accesses to the names of those who had leaked information to the Mail & Guardian? Is there any connection between this eagerness of the company to obtain this information and the implicit threat made to Adriaan Basson that he might get killed for investigating Bosasa? As things stand, this case has already been damaging to Bosasa as it has placed some doubt in the minds of reasonable individuals about its behaviour. It might not be corrupt (and this will only be ascertained during the trial), but has it not shot itself in the foot by its heavy handed legal approach to the case?

Is Bosasa and its directors the ones being brave for taking on the Mail & Guardian? After all, cross examination can often be devastating to those who try to hide things. Only time will tell.

When silence should not be an option

Jan 10th, 2012
by Pierre De Vos.
34 comments

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister - all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about  his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy  and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

What shall we do about the Reverend?

Oct 21st, 2011
by Pierre De Vos.
83 comments

Reports that a Cape Town pastor has called gays and lesbians drug addicts and child molesters and said that Archbishop Emeritus Desmond Tutu will burn in hell for supporting the LGBT community will probably be welcomed by some of the more bigoted readers of this Blog. According to the Mamba Online website the Rev Oscar Peter Bougardt, a Christian Minister of the Gospel of Jesus Christ and senior pastor at Calvary H.O.P.E Ministries in Mitchells Plain (what a wonderfully Orwelian name!), launched this attack against gay and lesbian people in unsolicited e-mails to local websites catering to the gay and lesbian community.

Bougardt said that his “mission is to take out all lesbians and gays because they are a bunch of idiots who confuse our children”. The pastor also said that “their lifestyle is an abomination to God and that gays and lesbians should know that they are going to burn in hell”. Apparently the majority of us are also drug addicts and:

offer our teenagers and children drugs and alcohol and once they are drugged and drunk they are seduced and end up having sexual relation with them…. Lesbians and gays are a curse on any community. I believe that a man that sleeps with another man doesn’t deserve to be part of a healthy community and I will mobilise the masses to stop them.

Asked about his comments he said:

If I say take out homosexuals, I mean they must be removed from our communities…You interpret that I am inciting violence against homosexuals, I see it is making our people aware that their lifestyles should not be approved by any healthy community. Just as homosexuals have the right to express their views, I have the right to express mine.

When I read these statements I could not help but laugh and, I have to confess, for a moment it did cross my mind that the pastor might have been smoking or drinking the strong stuff before he made these utterances. Then I felt sad and a bit sorry for the gentleman who styles himself as a man of the cloth.

Why would he have constructed for himself such a warped, perverted and hating religion? Why the obsession with sex and drugs and child molestation? Does he himself perhaps have an issue with his sexuality or with other urges that remain unspeakable to him? After all, the biggest homophobes are often repressed homosexuals. Or is he targeting the gay and lesbian community because he wishes to exploit the prejudices of other members in the community in the hope that the donations would start flowing into his ministry?

I have no way of knowing what his motivations might be for writing to these websites. Maybe he is a sincere person with strong if somewhat bizare views. Or maybe he has been watching too many YouTube videos of Ugandan pastors and feels jealous of them for having cornered the market on hate.

Of course, it would be easy to shut up the pastor and make a few hundred thousand Rand for a gay cause or organisation. After all, the words would almost certainly constitute hate speech in terms of section 10 of the Equality Act. As those who read this Blog know, that provision states that words that could reasonably be construed as having had the intention to be hurtful towards gays and lesbians would constitute hate speech. Advocating the “taking out” of homosexuals from society, sounds like the talk of an apartheid-era hit-squad member.

If Afriforum wanted to demonstrate that it did not only have an obsession with the ANC but was really concerned about hateful rhetoric in our society, it would take the pastor to the Equality Court and get that court to order him to stop making such statements (and to stop making an utter fool of himself too, one must add). His words sound not too different from the singing of the “Kill the Boer” song by Julius Malema. But while Malema invoked the struggle tradition, the pastor will obviously invoke his right to religious freedom (and the religious tradition centred around hate and homophobia) as well as his right to make a fool of himself. (Although, I am not sure the latter right is explicitly written into the Constitution.)

Yet, I for one would not be running off to the Equality Court. While I find his words hateful and deeply obnoxious, I do not think the best way to deal with the “pastor” is to ban him from writing these letters. Far better to mock the poor man or, alternatively (if that is your kind of thing) to show Christian compassion towards this seemingly deeply damaged soul by praying for him in the hope that he will eventually manage to deal with his suspiciously obsessive attitudes towards gay men and lesbians.

Besides, as I have written before, I am almost certain that section 10 of the Equality Act is overbroad (as it includes a far broader definition of hate speech than the definition contained in section 16 of the Constitution) and is hence unconstitutional. I would therefore not want to invoke a section of the law that I believe is unconstitutional. As I criticised President Jacob Zuma for invoking an unconstitutional provision of the Judges’ Remuneration Act to try and extend the term of office of the Chief Justice, it would be rather hypocritical of me now to invoke this provision which I believe is similarly unconstitutional.

But how should relatively reasonable, logical and respectful people deal with this kind of utterance? Am I not being a bit precious by arguing against the hate speech route? I happen to be an upper middle class white man living in the suburbs and I am usually able to avoid weirdo’s who make statements like those uttered by the pastor or who would want to do physical harm to me – unlike some other gay men and lesbians who face the most vile and sometimes lethal homophobia of members of their own communities and do not have the luxury of avoiding the homophobes.

Well, my belief is that banning these kinds of words will not stop homophobia. Neither will it stop homophobic attacks on gay men and lesbians. People will still think these things and they will still say these things – just not on public platforms. Some people will also act on their fears and hatred by attacking gay men and lesbians to make themlseves feel better about their internalised self-hatred.

The only thing that will stop this kind of exploitative hatred is a change of heart on the part of those people brainwashed by religious groups to believe that other human beings supposedly created in the image of God are inherently bad or even evil. In other words, we need to demonstrate how absurdly contradictory the teachings of the more extreme religious groups are and we need to change the way people think.

The only way people will change is if those of us who are more reasonable, more compassionate, more respectful of human difference, convince enough people that these hateful views are illogical, irrational  and immoral. We will only do so by using rational arguments (and the odd bit of ridicule and mockery). When those of us who are empowered to do so stand up for ourselves and for members of our community and if we demonstrate through our words and our deeds that people like Mr Bougardt is at best a deeply damaged souls and at worst, just a populist charlatan, we will begin to win this fight.

Personally, I am going to write to Rev Bougardt (pastor.bougardt@gmail.com) and tell him the good news that it is ok to be gay and that if he has any problems with his sexuality I will be very happy to talk to him about this. After all, it is only the Christian thing to do to help another person to overcome his or her self-hatred.

A tale of two judges

Sep 5th, 2011
by Pierre De Vos.
150 comments

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. - Charles Dickens, A Tale of Two Cities

The revealing interview of Justice Mogoeng Mogoeng by the Judicial Service Commission (JSC) this weekend and the subsequent decision of that body to rubber stamp the decision of the President, reminded me of the famous quote from The Tale of Two Cities reproduced above. We saw the best of judges and the worst of judges sparring with each other. As Xolela Mangcu wrote about this tale of two judges:

Moseneke stood as a symbol of authority and Mogoeng as a beneficiary of power. The question is which, then, will be the real leader of the Constitutional Court: authority or power? By nominating Mogoeng, President Jacob Zuma may well have taken our judiciary down a path where power trumps authority.

We also saw some ordinary citizens, perhaps expecting so little from themselves and from our system of government or deciding to go along with the decision of the President so that they would not alienate the government from which they need to receive work in future, cheering on mediocrity and power for power’s sake. We saw other citizens, animated by a belief in the core values embodied by the Constitution and the belief that as South Africans we deserve the best, who were shocked by what they saw, perhaps unrealistically yearning for authority to trump brute power in our political and legal discourse.

We saw some JSC members prepared to walk in the light of reason and to deal with the painful facts and we saw other members skulking in the darkness of unreason and emotions, displaying a remarkable lack of appreciation for the robust nature of openness and accountability in a system that is worth calling a democracy. And as is often the case when reason clashes with unreason, facts did not stand in the way of those who had no rational arguments to make.

Thus, some commentators and JSC Commissioners have questioned the bona fides of those who have asked critical questions about the suitability of the “nominee” to become Chief Justice, claiming that such people were animated by a hatred of the President and never support any decisions of the President or, worse, claiming that such people confronted the facts because they were racists. This is, of course, a lie. When justice Sandile Ngcobo was “nominated” as Chief Justice, many of us (who have asked questions about the suitability of justice Mogoeng’s appointment) enthusiastically supported the nomination of Ngcobo. Although we might have believed that Deputy Chief Justice Dikgang Moseneke was a better person for the job, we did not say so, but sang the praises of the nominee because he was clearly a man of integrity, somebody with a towering intellect, somebody whose judgments have demonstrated that he is imbued with the values of the Constitution.

In the same manner we cheered on the appointment of Deputy Chief Justice Moseneke and of Chief Justice Pius Langa – even if we had our political differences with then President Thabo Mbeki who nominated these candidates (all of whom happened to be black).

I suspect that the interview over the weekend would have been interpreted completely differently by different people, depending on their political views, their knowledge of the law and legal processes, and their ability to get past shallow emotions to a place where facts and reason reside. For the first group, justice Mogoeng might well have emerged as something of a hero, somebody wrongly vilified by nasty people with an axe to grind. After all, the nominee did not come across as the ogre depicted by Zapiro, nor as a bumbling fool, and he passionately, aggressively and sometimes bitterly defended himself against the sharp criticism levelled against his judgements and his judicial philosophy and displayed a moral flexibility much admired in politicians.

I happen to find myself in the second group who was deeply troubled by what emerged at the JSC, based not on emotions but on the facts and an analysis of the issues at hand. In this sense the interview was more revealing than expected.

Justice Mogoeng justified some of his rape judgments and the seemingly patriarchal reasoning employed by him in those judgments by claiming that he was merely following the precedent set by the Supreme Court of Appeal (SCA) to which he was bound as a judge, what I would call “the SCA made me do it” defence. He thus justified his views that women abusers who are “provoked” by the victim deserve leniency, that rapists who know the victim should also be given some leeway, and that child rapists can legitimately be described as having been “tender” to the child he raped because the injuries sustained by the child were not as horrific as in other rape cases, by claiming that this approach is in line with the law. The problem is that these views are not in line with the law as it has developed after the end of apartheid.

These justifications were revealing because they suggested a lack of knowledge of the law and a lack of knowledge and/or lack of respect for the legislature who has spoken quite forcefully on this issue. Thus, in defence of his judgment in S v Moipolai (handed down in 2004, ten years after the advent of democracy) in which Mogoeng stated that it was “highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he caused her to fall, and thirdly to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman”, justice Mogoeng relied on a judgment of the SCA in S v N, handed down at the height of apartheid in 1988. In that judgment the Appellate Division (as it was then called), displayed the kind of patriarchal values that was rife amongst apartheid era judges by stating that it was permissible to take into account  as a mitigating factor in sentencing in a rape case that there was an intimate relationship between the rapist and the survivor.

Of course, since 1988 the legal landscape in South Africa was supposed to have changed dramatically. This is what some of us mean when we talk about the “transformative” nature of our legal and constitutional system. We adopted a new Constitution in which the rights of women are now protected. Parliament passed sections 51 and 53 of the Criminal Law Amendment Act 105 in 1997, providing for minimum sentences to be imposed on rapists unless compelling circumstances existed to deviate from this. This was done exactly to prevent judges with patriarchal views from imposing inappropriately lenient sentences on rapist based on criteria that says more about the sexist assumptions of the judge, than on the way in which the survivor might have experienced the rape.

In 2001 the SCA made it clear that knowing the rape survivor would NOT constitute such a compelling circumstance that would allow for a reduction in the minimum sentence. (One could add that ordinarily it should be an aggravating circumstance that the rapist knew the survivor — at least for anyone imbued with the values enshrined in the Constitution – because the effect of being violated in this way by somebody one knew would be devastating for the rape survivor.)

Mogoeng’s justification for his rape judgments is therefore surprising as it suggested that our Chief Justice designate was at the time when these judgments were handed down wholly ignorant of the new legislative environment and the constitutional values embodied by the legislation. It also suggested that the nominee might have been unaware that the SCA had developed our law in this regard to bring it in line with the Constitution and the relevant legislation. Whether ignorance of legal precedent and legislation should be a disqualification for appointment as Chief Justice, I will leave for every reader to decide for him or herself.

Mogoeng’s defence of his “dissent” in the Dey case was perhaps more bizarre and therefore more damaging to his image. Apart from the fact that his defence was less than plausible, it also contained in it a serious admission. Justice Mogoeng claimed that he was given little time to decide on whether he agrees with the other judges of the Constitutional Court that it would never per se constitute defamation to call somebody gay. He did not give reasons for “dissenting” from this view, Mogoeng claimed, because he had not really had time to apply his mind to the issue at hand.

This argument — if indeed true — appears more like an admission of a dereliction of duty on the part of the nominee than as an exculpation for not providing reasons. Surely when a judge sits on the Constitutional Court and indicates that he or she disagrees with the opinion of colleagues and if he or she is then asked to provide reasons for the disagreement but refuses to provide such reasons, one would assume that the judge did apply his mind to the matter but decided for strategic or other reasons not to provide reasons for the disagreement. Can one ever indicate disagreement with others without having applied one’s mind to an issue? To me it sounds a bit like claiming to be half pregnant — not something widely accepted as possible amongst doctors or people with any knowledge of the human body. How could one possibly indicate a disagreement without having thought about why one is disagreeing? To me, at least, this explanation makes no sense and does not ring true.

When one is a judge and is required to decide where one stands on all the important issues before the court, one is required to apply one’s mind to all the issues at hand and if one disagrees with the majority judgement on any issue one is required to provide reasons for this disagreement. A failure to apply one’s mind to the issues at hand would suggest that one has failed to live up to one’s judicial oath of office and, in effect, that one has refused to do one’s job properly.

I imagine that for many non-lawyers justice Mogoeng’s defence might ring true. After all, we have all been in situations where we have been pressed for time and have not given an issue as much thought as one would have liked to. As a member of a tea club one might well have failed to form an opinion on whether the dues of members should be increased or not. But the difference is of course that most of us are not judges and are not required by the Constitution to uphold the law, to apply our minds to the issues raised by a case before us and to provide reasons for our decision.

And what happens now? I have heard talk of civil society groups challenging the constitutionality of the process followed by the JSC on the grounds that the JSC had failed to engage in proper consultation with the President on this issue as required. It is argued that this is so because the JSC had decided that it was impermissible for it to consider whether other candidates may have been more suited for the position. How can there be a meaningful exchange of ideas if the one party exchanging ideas sees its role in such narrow terms, some have asked? This is a plausible, perhaps even strong, legal argument.

However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.

While it would be good to get some clarity about the meaning of the constitutional provision requiring that the President must consult the JSC BEFORE appointing a Chief Justice, a legal challenge will probably ultimately not change anything as it will be based on procedure and not substance and will not necessarily lead to a different outcome — given the fact that the President does have the constitutional power to appoint a Chief Justice. Would it be possible to approach a court to give clarity on this legal point without asking for the decision of the JSC or the President to be set aside? I am not a procedural lawyer, so I am not sure how to answer this question.

In any event, President Zuma will now appoint Mogoeng Mogoeng as the new Chief Justice, despite the fact that the nominee has been tainted — to some degree, at least — by the process of his appointment. (Depending one one’s view, the nominee would have been tainted either by the “vicious attacks” against and “onslaught” on him by dark forces, or tainted by the close scrutiny of his judicial views and temperament.)

My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken. Maybe the gruelling process may have allowed the nominee to reflect more seriously on his commitment to gender equality and the dignity of gay men and lesbians and might have brought a change of heart. Maybe he might have realised that he ought not to rely on his personal religious views — as far as they clash directly with the values enshrined in the Constitution – when he considers cases coming before his court. I, for one, will keep an open mind.

Who will guard the guardians?

Aug 5th, 2011
by Pierre De Vos.
74 comments

When I did my LLB degree many years ago, we still had to study Latin, which, alas, was not my strong point. Why we had to study Latin (and Roman Law, for that matter), I could never understand. As I pointed out at the time, some of the texts with which we uncritically had to engage were extremely problematic as they referred to slaves – who were usually pouring wine for their masters or stealing the master’s property (talk about cruel stereotyping).

I mean, really, how shockingly bizarre that no lecturer ever pointed out that slavery was evil and why no one thought that we should rather discuss the fact that today a person who practiced slavery would be hauled before the International Criminal Court (which admittedly had not existed back then) for crimes against humanity.

Nevertheless, I did learn a few Latin phrases to impress the boys and to demonstrate to my parents that I was a “real” law student who could invoke obscure Latin phrases when needed. One of these phrases, which came to me as I was reading the judgment of the Eastern Cape High Court in the case of Centre for Social Accountability v The Secretary of Parliament and Others, is: ”Quis custodiet ipsos custodes?” This phrase, Wikipedia now reminds me, is traditionally attributed to the Roman poet Juvenal and comes from his Satires and is literally translated as “Who will guard the guards themselves?”

In our constitutional democracy with its model of separation of powers, we vote for a political party (not for any individual) and members of Parliament are therefore not directly accountable to the voters. Although members of the executive are accountable to Parliament and must give account of themselves to Parliament, our constitution does not provide for a direct way to hold Parliamentarians accountable. They are only accountable indirectly, first to their parties and second to the public at large via the media.

But for this indirect accountability to work, political parties must fear the wrath of the electorate and must act decisively against members of their own party in Parliament when those members break the rules, engage in criminal activity or otherwise dishonour the institution of Parliament. Parliament must also operate in an open and transparent manner so that the media can keep the electorate informed about what members of Parliament get up to – reporting, of course, on both the positive and the negative aspects of the work of members of Parliament.

So, one should laud the Centre for Social Accountability and its lawyers for approaching, first, Parliament and then the court to gain access to further information regarding the so called Travelgate scandal. The Centre specifically sought to gain access to records of Bathong Travel, which later went into liquidation. The liquidators of Bathong instituted action during 2007 against a number (it is not disclosed how many) of members of parliament to recover monies owing by them to the company.

The reason for the Centre’s interest in these records is that it was alleged that the liquidators of Bathong Travel had recovered some R4.79 million from members of Parliament in relation to Bathong. Parliaments’ own “Briefing Document/Fact Sheet” stated that approximately 70 members of Parliament utilized the services of this agency and that there were evidence of complicity by certain members in possible fraudulent acts.

As the judgment wryly observes, there was “a distinctive lack of enthusiasm on the part of parliament to pursue the claims of the liquidators of Bathong against its members”. The court also pointed out that there was “a strong desire, for reasons not known but giving rise to wide speculation, on the part of parliament to prevent those claims from being pursued. It was particularly anxious to protect those claims from public scrutiny in a court of law”.

The Centre invoked the Promotion of Access to Information Act (PAIA) to try and obtain these records which Parliament was so anxious to hide from the public. The Grahamstown Division of the Eastern Cape High Court, in a judgment written by Alkema J, provided a ringing endorsement of openeness and transparency and reminded us that we - the public – are the one’s who should ultimately hold parliamentarians accountable, stating:

The escape from a secretive and closed system of government and the quest for an open, accountable and transparent system of government find expression in inter alia, the right of access to “any” information held by the State. It is now trite that such right must be interpreted to give effect to the new constitutional order of openness, accountability and transparency.

The Court then quoted from two Constitutional Court judgments, first, that of Shabalala and Others v Attorney-General, Transvaal and Another, where Mahomed DP said:

There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.

The second is Brűmmer v Minister for Social Development and Others where Chief Justice Ngcobo held:

The importance of this right … in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.

The salient legal question was, given this constitutional commitment to openness and transparency, whether Parliament was entitled by PAIA to withhold the records because these records contained “personal information” about members of Parliament. Section 34(1) prevents the unreasonable disclosure of personal information.  

In a judgment which, although not directly applicable also has resonance for the argument made by Julius Malema that he is a private person and that it is none of our business whether he is corrupt or not, the court noted that it is generally recognized that every person has an untouchable inner sphere of personal life where he or she has the sole autonomy to decide how and where to live his/her life, and where his/her decisions do not adversely affect other people. No interference by law is tolerated with conduct within this sphere, either by the state or by other individuals or institutions. At the heart of this right is the freedom of identity of each individual, enclosed in an area of private intimacy.

However, private information can be revealed where this informationd does not relate to the absolute inner core of a person’s identity. Relying on the pragmatic Constitutional Court jurisprudence on this issue, the High Court noted that there was a two stage test to decide when this could be done. The first part is that the person trying to keep information secret must establish a subjective expectation of privacy. This means that the person must first establish that the nature of the information is covered by the freedom of identity principle – in other words that subjectively viewed it is part of the inner sanctum of the private and personal life of the individual. The second part is that, objectively assessed, society must recognize such expectation as reasonable.

The Court then continued:

The personal life of a member of parliament, his or her personal preferences and beliefs, how he or she choose to live his or her personal life, what they do on vacation in the privacy of their holiday home – even if they travel there on state expense – how they spend their money and how much money they have to spend, all of this is no concern to the state. It is their business; not that of the state. Such information is covered by the principle of freedom of identity. But how they execute their duties as members of parliament; under what circumstances they claim payment in respect of travel vouchers; and whether or not they obey the rules of parliament and act in accordance with the code of conduct which society expects from its members of parliament, all of this is the business of the state.

The state has the right to know, and through the state, the members of society who have elected the members of parliament in an open and democratic society. The information sought is in relation to claims in respect of travel vouchers issued to members of parliament in their official capacities as members of a public body. Such information does not concern their private lives…

The Court therefore ordered the handing over of the requested information within 10 days as it was not reasonable to expect that Parliament could keep secret information that possibly showed malfeasance or even criminal activity on the part of our public representatives. 

One assumes that Parliament will appeal this judgment, which is a good thing as this will give the Constitutional Court another opportunity to confirm that the right to privacy cannot be abused by public representatives or politicians  to try and escape accountability.

In the end, if members of Parliament are allowed to plead privacy every time we wish to know how they have been spending our money and what they have been up to, we as members of the voting public will not be able to hold these members of Parliament and the parties they belong to properly accountable at the ballot box. And even members of Parliament – our supposed guardians – need to be guarded against with the power of our vote for which so many people have sacrificed.

On Lady DA-DA and the shower head man

Apr 19th, 2011
by Pierre De Vos.
52 comments

One of the more shocking (but nevertheless, in retrospect, rather entertaining) judgments to be found in the South African law reports is that of Vermaak v Van der Merwe, a 1981 case dealing with defamation. The Natal High Court (as it was then called) had to decide whether publication of a defamatory statement took place in a case where the recipient of the words did not know what they meant.

A certain Mrs Vermaak had phoned a Mr van der Merwe and asked to speak to his wife to which she received the reply:  ”Het jy nie gehoor dat sy bly by daardie donnerse lesbian nie?” (Haven’t you heard that she is staying with that bloody lesbian?) Mrs Vermaak did not know what a lesbian was and later asked her husband what was meant by these words. Her husband then told her. The question was whether her original ignorance about the meaning of the word “lesbian” meant that no defamatory statement had been communicated.

We have come a long way since then. In the recent case of Le Roux v Dey, in a judgment authored by Justice Cameron and Froneman, the Constitutional Court found that it could not be considered defamatory to call someone gay or lesbian, and reasoned as follows:

The Constitution does not condone individual prejudice against people who are different in terms of race, sex, sexual orientation, conscience, belief, culture, language or birth. These are unfair grounds for differentiation and the equality provision of the Bill of Rights protects against discrimination based on them. It therefore cannot be actionable simply to call or to depict someone as gay even though he chooses not to be gay and dislikes being depicted as gay — and even though stigma may still surround being gay. To hold actionable an imputation based on a protected ground of non-discrimination would open a back-door to the enforcement by the law of categories of differentiation that the Constitution has ruled irrelevant.

As I pointed out at the time, Justice Mogoeng Mogoeng indicated (without giving reasons) that he disagreed with this view. As Justice Mogoeng had not given any reasons for his disagreement, it was unclear whether his refusal to sign on to this aspect of the judgment was based on the kind of “individual prejudice” mentioned by Froneman and Cameron.

An interesting aspect of the judgment in the case of The Citizen v McBride is that this time justice Mogoeng not only dissented but also wrote a separate dissenting opinion. Unlike the other judges, he found that the rather acrimonious and distasteful campaign by The Citizen against Mr McBride’s appointment as police chief of Ekurhuleni was “part of a well-orchestrated character assassination campaign” waged by The Citizen against Mr McBride and could therefore not be viewed as fair comment.

As I read the judgment, it is premised on the assumption that we have a constitutional duty not to vilify others and that our freedom of expression must be exercised “responsibly” to protect the human dignity of others — even of those found guilty of gross human rights violations. It’s a bit like the LeadSA campaign about a Bill of Responsibilities in that it assumes that our right to freedom of expression must always be exercised politely and carefully. In this world, robust, bitter and acrimonious exchanges and the hurling of clever political insults and witty but cutting asides are not allowed

Truth-telling during the amnesty process was thus not intended to lay the foundation for the endless vilification of South Africans who grossly violated human rights, either in the furtherance of the crime of apartheid or the struggle for freedom from apartheid, in the name of freedom of expression. Nor was the truth, uncovered during the amnesty hearings or even during the trials of those who committed gross human rights violations, intended to be used to undermine the pursuit of national unity and reconciliation What is impermissible is the use of truth revealed to insult, demonise and run down the dignity of self-confessed human rights violators.

Justice Mogoeng contends that our Constitution places a responsibility on us to engage in less heated and bitter public criticism of others — not because it is our ethical or moral responsibility, but because the law requires us to do so. ANC members who wish to criticise Lady DA-DA (as some clever hack called the dancing Helen Zille) or columnists who wish to ridicule the President for fathering children out of wedlock should therefore not be allowed to express their criticism in bitter, sarcastic or vitriolic terms.

At the heart of his view is a very unique and particular view of our shared history and culture. Justice Mogoeng seems to want to hark back to a (possibly imagined and fictional) time when so called traditional values and moral standards still prevailed. (Whether the traditional values and moral standards referred to include respect for the human dignity of gay men and lesbians is not clear.)

We live in an African country which is rapidly being denuded of the values and moral standards which once characterised and defined the very nature of who a substantial majority of its citizens were and what they stood for. Botho or ubuntu is the embodiment of a set of values and moral principles which informed the peaceful co-existence of the African people in this country who espoused ubuntu based on, among other things, mutual respect.Language was used in moderation and foul language was frowned upon by the overwhelming majority. A forgiving and generous spirit, the readiness to embrace and apply restorative justice, as well as a courteous interaction with others, were instilled even in the young ones in the ordinary course of daily discourse. The unforgiving, the arrogant and the unduly abusive were described by the Batswana, and presumably other African communities, as those who are bereft ofbotho.

Ubuntu gives expression to, among others, a biblical injunction that one should do unto others as he or she would have them do unto him or her. The law, order, generosity, peace and common decency that previously characterised many communities in South Africa were attributed to an unwavering commitment to the philosophy of ubuntu. No wonder the drafters of our interim Constitution deemed it meet to cite ubuntu as one of the ingredients essential to the healing of our country. Sadly, a new culture has taken root and continues to cancerously eat at botho.

It seems to me this view is rather idealistic. Anyone familiar with our current political discourse would know that hardly anyone engaged in politics in South Africa adheres to this biblical view in which one should always do unto others as one would like them do unto oneself. According to this view half the statements made by Julius Malema about Helen Zille and members of the DA, say, (or about white people in general) would be viewed as unprotected and hence unlawful defamatory statements. Much criticism of President Jacob Zuma (for example, criticism contained in cartoons depicting our President with a showerhead on his head) would also seemingly become unlawful if this view is adhered to.

The view is also at odds with the liberal notion of freedom of expression which our courts have found is at the heart of a flourishing democracy. It seems to relegate freedom of expression to secondary status in our constitutional dispensation and elevates the human dignity of others — even the human dignity of gross human rights abusers who dehumanised, tortured and murdered opponents of apartheid — above the rights of the victims of those human rights abusers.

As a matter of moral reasoning, one may well agree with Justice Mogoeng that we should all try and be better people and should all try not to be so beastly to one another merely because we disagree with one another.  (Class, as punishment write out one hundred times: “I will not make disparaging remarks about the looks of a certain DA councillor.”)

But as a matter of constitutional law, the principle is deeply flawed. It may well be used by politicians to escape valid and trenchant criticism. Unless criticism is couched in sanctimonious platitudes and caveats, politicians may well be able to sue for defamation and this will invariably have a serious chilling effect on the free expression of views and ideas by ordinary citizens.

Julius Malema is obviously an idiot when he calls Helen Zille a dancing monkey, but should our law really hold him liable for defamation for doing so? And, come to think of it, should I be held liable for defamation for calling Malema an idiot? I think not.

Do we really want to live in a world where Malema “expresses disquiet at the quality of Helen Zille’s less than graceful dancing” and I express the opinion that Julius Malema “might be faced by unfortunate etiquette challenges”? Once again, I think not.

About remembering and forgetting

Apr 8th, 2011
by Pierre De Vos.
134 comments

Milan Kundera, in his novel The book of laugher and forgetting, famously stated that: “The struggle of man against power is the struggle of memory against forgetting”. If we forgot the past, Kundera seemed to suggest, we might not be able to resist repeating the wrongs of the past. In South Africa, this warning is particularly poignant and apt. How we remember the past might well influence the way in which we deal with the present and how we react to wrongs committed by members of our society in our democracy.

Some South Africans get very irritated when the apartheid past is recalled. Apartheid has ended, they argue, and incessantly harping on about the racial discrimination and oppression of the apartheid era has become unnecessary as this may well bedevil attempts at racial reconciliation in the country. We should forget the torture and the killing of the apartheid state, the day to day inhumanity visited on South Africans merely because of the colour of their skin, the fact that apartheid was branded a crime against humanity by the UN, because “we need to move on”.

Others wish to present a sanitised and simplistic version of the past in which black people all suffered under apartheid in exactly the same way — whether they were homeland functionaries and policemen, middle class teachers and nurses, UDF activists or homeless people barely surviving on the outer margins of society. This is a past in which all black people bravely struggled against apartheid in the same way under the banner of the ANC. The role played by Robert Sobukwe, Steve Biko and their followers do not form part of this past. This version also sometimes wish to skim over the more awkward aspects of the armed struggle

Of course, the Truth and Reconciliation Commission (TRC) was established (at least partly) to try and come to grips with our past so that we will never forget the wrongs of the past (and especially the evil nature of the apartheid system) and — more importantly — so that we will not repeat the mistakes of the past and will not treat people who are not like us as if they are not fully human. The TRC was predicated on the idea that true reconciliation could only occur if we established the facts about what happened during the apartheid era so that we will be unable to pretend that nothing bad happened or that some of us did not benefit from a system merely because of the colour of our skin.

But dealing with the past — confronting it, remembering it, processing it and then moving on to build a non-racial and just society — does not come easy. How to remember without wallowing in our bitter and poisonous hatred towards others is never easy and perhaps only the truly wise manage this feat most of the time.

It is unclear whether The Citizen struck the right balance when it launched a campaign against the appointment of Magoo Bar bomber Robert McBride as Police Chief of the Ekuhureleni Metro in 2003. The Citizen had called McBride a criminal and a murderer who had shown no remorse for planting a bomb in a bar frequented by civilians. Several people were killed in the bomb blast and Mr McBride was eventually convicted for murder and sentenced to death for his role in the bombing. Later his sentence was reprieved before he was eventually granted amnesty in terms of the TRC Act.

Robert McBride is of course a controversial figure, someone who is well known to any newspaper reader and much loathed by certain sections of the community. It was clearly in the public interest for The Citizen to comment on the wrongheadedness of appointing him as a Police Chief. Although some might argue that the newspaper went too far and that the attacks on McBride were in bad taste, few would have thought that McBride would sue The Citizen for defamation for calling him a murderer. After all, a South African court had established beyond reasonable doubt that he had indeed murdered four civilians.

But that is exactly what McBride did. The case eventually landed up in the Constitutional Court and on Friday the Court handed down its judgment in the case of The Citizen and Others v McBride, handing the newspaper the legal victory but also agreeing with McBride that in one instance the newspaper had indeed gone too far and had defamed him.

The case deals with memory and forgetting in the sense that McBride had relied on the provisions of the TRC Act to argue that because he was granted amnesty he was no longer a criminal or a murderer.

The TRC Act provides that once a person convicted of an offence with a political objective has been granted amnesty, “any entry or record of the conviction shall be deemed to be expunged from all official documents” and “the conviction shall for all purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place”. Mr McBride argued this meant that he was not a murderer as his conviction for murder had been erased by the amnesty process. It was therefore false to call him a murderer because in law he was no such thing. The High Court and the Supreme Court of Appeal (SCA) agreed and ordered The Citizen to pay Mr McBride a considerable amount in damages for the “untrue” and hence defamatory claims.

The Constitutional Court rejected this line of argument.

Referring to previous judgments of the Court on the purpose of the TRC, Justice Edwin Cameron pointed out that the purpose of the TRC was to “uncover the truth about the injustices that scarred our country‘s oppressive past” to help families of victims to discover what did in truth happen to their loved ones”. The amnesty provisions in the TRC Act provided an incentive to perpetrators to make a full disclosure of their criminal actions. The purpose of the TRC Act was therefore not to bury the past, but to uncover it in order to facilitate real reconciliation as opposed to a reconciliation based on amnesia.

Justice Cameron pointed out that McBride’s argument implied that the TRC amnesty provisions should be interpreted broadly, and should not only be seen as granting perpetrators exemption from the legal consequences of their convictions, but also as muting the voices of those seeking to discuss their deeds. This argument was untenable as victims of apartheid-era human rights abuses, their families, and ordinary citizens should surely have the right to continue to call the unlawful and intentional killing of others by the name of murder. They should surely also have the right to call those who perpetrated the killings murderers.

The interpretation argued for by McBride’s lawyers would not give sufficient weight to the rights of victims and their families “to speak the truth about the perpetrators who killed their relatives”. The Bill of Rights protects their right to freedom of expression, and values the dignity of their bereavement and the integrity of their memory. A sound interpretation of the amnesty provision must afford weight to these rights. How could we deal with the past if we were not allowed to speak about it frankly and openly?

What Mr McBride wanted was for the provision to:

confer on him immunity from untrammelled discussion of the deeds that led to his conviction for murder, and from the moral opprobrium that some continue to attach to those deeds. He wants the provision to safeguard him from the application of terminology that, but for the grant of amnesty to him, would be factually true, namely that he committed the crime of murder. That he did so in the course of an armed struggle against pernicious injustice does not detract from the historical accuracy of the appellation. In claiming that the statute exempts him from it, he overreaches the delicacy of the provision‘s effect and intent.

This was not tenable as it would grant perpetrators of gross human rights violations not only legal, but also moral and social absolution for their deeds. “But moral absolution lay beyond the legal benefits the statute afforded perpetrators. Expunging moral opprobrium and condemnation lay beyond the lawgiver‘s powers, and the statute did not seek to confer it.”

Somebody who had therefore committed murder — either as an agent of the apartheid state or in advancement of the struggle against apartheid — could still be called a murderer, even if they received amnesty for their actions. Neither in ordinary nor technical language does the term “murder” mean only a killing found by a court of law to be murder, nor is the use of the terms limited to where a court of law convicts.

In this case, the Court therefore found that The Citizen’s claims that Mr McBride was a murderer and hence unfit for the position of Police Chief was fair comment and that the defamatory statements in this regard were therefore justified. This was, firstly, because the comment was based on facts that were not erased by the granting of amnesty and because the comment related to an issue of public importance — namely whether McBride should be appointed Police Chief.

Secondly the comments were fair. The judgment makes clear that when a newspaper publishes highly critical comments about a public figure — as it did in the McBride case — this would be viewed as fair comment even when the comments are not impartial or well-balanced. In fact, even when comment is extreme, extravagant, exaggerated, or even prejudiced, this will not amount to defamation — as long as the comments were not made with malice — in other words, with the intention to hound or hurt the individual for its own sake.

The judgment therefore leaves public figures with much to think about. When a newspaper publishes a highly critical or even scurrilous opinion about a politician, that politician will usually not be successful when suing the newspaper merely because the criticism was extreme, unjust, unbalanced, exaggerated and prejudiced. So long as it expresses an honestly-held opinion, without malice, on a matter of public interest on facts that are true, the politician or public figure would have to live with it.

Of course, if one made defamatory comments about a public figure and such comments were based on falsehoods or facts that cannot be proven, the situation would change. In the McBride case, The Citizen also claimed that Mr McBride had shown no contrition for planting the bomb and causing the death of civilians. This was not true as Mr McBride had indeed apologised. In a statement before the TRC McBride had said:

For the injuries, deaths, sadness and loss that I have caused people through my participation in the struggle to liberate our country I am truly sorry. I hope that through this amnesty application I am able to, in some way, contribute towards the very long and painful process of reconciliation and healing…..All the operations detailed above were carried out in accordance with the aims and objectives of the African National Congress. As a member of Umkhonto we Sizwe my objective was the furtherance of the armed struggle against the Apartheid state with the intention of overthrowing this state and replacing it with a democratic one. All my actions were geared towards the undermining and weakening of this state so that it would be forced into a peaceful negotiated settlement with the ANC and other liberation movements.

The Citizen was therefore held liable for defaming McBride in this limited sense and was ordered to pay him R50 000 in compensation.

The case illustrates that our law does not require us to erase the past. The family of Griffith Mxenge (and the families of countless other victims of the apartheid security apparatus) can continue to talk about the murder of their loved one’s and can publish critical comments about those who murdered them, despite the fact that they received amnesty from the TRC. Even where an individual has been granted amnesty we are entitled to remember this fact, to talk about it and comment on it, to demand justice and — if we are perhaps better human beings than most — to talk about forgiveness.

What we are not allowed to do was to make defamatory claims about a person that are false, or to criticise a public figure based on facts that we cannot prove and that likely seems false.

Is the reasonable person a homophobic prude?

Mar 11th, 2011
by Pierre De Vos.
64 comments

Is it reasonable to be a prude who thinks of sex as always being somewhat dirty and depraved, as something that must remain hidden and covered up at all cost? More pertinently, is it reasonable not to have a sense of humour? In the Laugh it Off case, dealing with the Black Labour/White Guilt T-shirt, Justice Albie Sachs famously asked: “Does the law have a sense of humour?” In that case the Constitutional Court seemed to have agreed that the law can have a sense of humour.

But things seem to have changed up on Constitution Hill and this week the majority of judges of the Constitutional Court found that three schoolboys who played a prank on a deputy headmaster could be successfully sued by that deputy headmaster for defamation. In the case of Le Roux and Others v Dey the majority (per Brand AJ) argued that it was per se defamatory for schoolboys to publish a manipulated picture, described in the following – laughably prudish – manner by Brand AJ:

What the picture explicitly shows is a frontal image of two men, both naked, sitting very close together on a couch. Their legs are wide open and the leg of the one is resting across the leg of the other. The hands of both are obviously in the region of their own genitals, but both the hands and the genitals are covered by an image of the school crest. The position of the hands behind the crest is suggestive of sexual stimulation or some other sexual activity. In short, the vision created is one of two promiscuous men who allowed themselves to be photographed in what can only be described as a situation of sexual immorality, which would be embarrassing and disgraceful to the ordinary members of society. The faces of the two men are electronically cut out and replaced by those of the school principal, on the one figure, and that of Dr Dey, on the other. The manipulation of the picture in this way is obvious and crude. No reasonable person could ever think that the bodies on which the faces are pasted were actually those of the principal and Dr Dey.

I find this description of the picture rather extraordinary. It reveals perhaps more about the moral universe inhabited by the author of the Constitutional Court judgment than he might have realised when he wrote the passage quoted above. The majority seems to assume that two men who have a photograph taken of themselves while they engage in sexual acts are necessarily and always promiscuous and that they are therefore engaged in sexually immoral acts.

While the majority judgment seems to suggest that the fact that the picture depicts two men (as opposed to one man and one woman – the deputy headmaster with Pamela Anderson, say) was irrelevant, it is not so clear from the passage quoted above that this logic is adhered to throughout the judgment. The idea that when two men are depicted as engaging in sexual acts one can reasonably assume that they are promiscuous, defies logic. While many South Africans will have this view, the meaning of the pictures cannot be judged according to how excessively prudish and homophobic members of the public will interpret the picture.

As Brand points out, when deciding whether a statement was defamatory one must ascribe to it the ordinary meaning given to the picture in its context by a reasonable person.  The test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the picture in its context and that he or she would have had regard not only to what is expressly conveyed but also to what is implied. 

This leads one to pose the following set of questions: who is this reasonable viewer conjured up by the court and what are the values according to which such a reasonable viewer will judge the meaning of a picture? Will such an ordinary reasonable viewer have a sense of humour? Will he or she take into account the fact that the picture was produced by school children and that the faces on the picture clearly did not belong to the bodies on the picture but were added to them by school children?

Would such a reasonable viewer “instinctively” jump to the conclusion that where two men are depicted as engaging in sexual activity they are promiscuous and are engaged in immoral acts? Will  the reasonable person be imbued with the values enshrined in the Constitution or will he or she (like the majority of South Africans) harbour explicit or latent prejudices about gay men and jump “instinctively” to conclusions based on the stereotypes and prejudices that many South Africans (and perhaps also some judges?) hold about gay men?

The construct of the reasonable person is of course a legal fiction. The reasonable person is a fictitious person created by the judge to provide a lens through which to evaluate the picture or publication. Where a judge constructs the reasonable person as someone who is prudish beyond belief and jumps to the conclusion that where two men are depicted as engaging in sexual activity that reasonable person would believe that they are promiscuous and engaged in immoral activity, what the judge in effect is doing is telescoping his or her own beliefs, sexual anxieties, feelings of moral superiority and other prejudices on to the legal construct of the reasonable person to justify his or her own judgment and to provide that judgment with the veneer of objectivity.  

That is why I would argue that the judgment of Brand AJ may perhaps be read as an essay on the homophobic stereotypes that are still deeply embedded in the minds of a majority of South Africans. That is also why the judgment may be saying more about the impossibility of judges constructing and applying a truly “objective” standard of the “reasonable person”, than it may be saying about the defamatory nature of the image under discussion. 

As far as I can see, the reasonable person constructed by the majority of the Constitutional Court is a person who “instinctively” assumes that men depicted as engaging in sexual acts are promiscuous and that what they are doing is immoral – without ever having to engage with concepts such as promiscuity and immorality. The reasonable person cannot define these concepts, but he or she knows it when he sees it because of a gut feeling of revulsion experienced at seeing such a picture.

It is unclear why the majority of the court did not provide a cogent argument to justify its conclusion that sexual immorality was at stake here. Neither is it clear why the court did not fully explain how it came to the conclusion that the two men depicted in the picture were promiscuous.

As far as it is possible to answer these questions based on the reasoning of the court, one might conclude that the Constitutional Court came to the conclusion that whenever a picture is taken of two people engaged in sexual acts (whether the picture is taken by themselves or by someone else), this turns a private and acceptable (if somewhat strange and perhaps slightly shameful) act into a public and hence depraved and immoral act.

Maybe in Bloemfontein – as elsewehere in South Africa – many people think in this way, but in a constitutional democracy in which the narrow and moralistic, religiously-inspired, values are not supposed to be enforced by the law, one can hardly argue that the legal construct of a reasonable person could jump to such a conclusion. But this is exactly what the Constitutional Court – at least the majority – seemed to have done here.

In the absence of an explanation, it is not far-fetched to wonder whether the majority of the court was not influenced by its own ambivalent (if perhaps repressed) assumptions about gay men. After all, the stereotype that all gay men are always promiscuous and that gay men are always engaged in immoral acts are widely held in our society. Could it be that because the two men were photographed and did not care to hide the fact that they might enjoy the sexual company of each other (hence that the two men were not ashamed of their homosexuality and the sex they were enjoying), made the “perversion” and “immorality” just so much more shocking for the so called “reasonable person” constructed by the majority of the Constitutional Court.

What I take from this judgment is that for the reasonable person constructed by the Constitutional Court, sex and sexuality is by its vary nature shameful and degrading, that as long as sex (especially sex between two men) remain hidden in the privacy of these men’s bedroom one could still tolerate the immorality of it all, but as soon as the sexual engagement is made public it becomes so shameful, depraved and immoral that any reasonable person would conclude that it would be deeply hurtful to anyone if one ever suggested that they could possibly have been engaged in such activity.

After having concluded that the reasonable person would have interpreted the picture in the way described above, the court had to decide whether the image was defamatory. In doing so, the majority of the Constitutional Court argued that what had to be answered was the question whether any reasonable observer would infer some association between the two teachers, on the one hand, and the situation described in the picture, on the other. The majority found that the mythical reasonable observer would do just that:

After all, their faces were directly linked to the bodies. In my view that renders the picture difficult to distinguish from a caricature or a cartoon: in all these cases it is obvious that the person identified is not an actual depiction of that person, but that there is some association between that person and what the picture conveys.

According to the Court the reasonable person would ask: why?  “Why are the principal and his deputy, Dr Dey, associated with persons behaving in a lewd and indecent way”? (Once again, note the assumption that when two men are depicted as engaging in sexual activity this must always be assumed to be lewd and indecent.) Why are their faces not pasted on, say, the bodies of ballet dancers, the court wanted to know.

The answer to these questions that, in my view, instinctively springs to mind is this: the whole purpose and effect of the association created by the picture is to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be learners at the school. This means that the average person would regard the picture as defamatory of Dr Dey.

The majority of the Constitutional Court somehow did not “instinctively” jump to the conclusion that the picture was manufactured and distributed by schoolboys and that they were engaged in a schoolboy prank. Could it be that the judges were so horrified by the depiction of two men engaging in sexual activity (this “lewd”, “indecent” and “immoral” behaviour – siesa!) that the majority could not conceive of the schoolboy prank in any way other than that it was aimed at tarnishing the image of the headmaster and his deputy and that it had achieved this purpose.

Of course, I would argue that a reasonable person imbued with the values of the Constitution, a person who did not instinctively recoil from depictions of gay sex but understood that sexual activity was a rather enjoyable and mostly positive experience - whether the sex occurred between two men or between a man and a woman – a person who showed some understanding and tolerance for the world of pranks and jokes inhabited by schoolchildren, that such a person might well have concluded that the images were not defamatory because they did not in fact lower the esteem of the headmaster and deputy headmaster in the eyes of any reasonable person.  (Athough it must be conceded that the schoolboy prank probably did lowered the esteem of the headsmaster and the deputy headmaster in the eyes of humourless homophobes and bigots.)

But the majority of the Court found that the fact that this was a schoolboy prank was of little use to the defendants. The real question, argued Brand AJ, is whether the reasonable observer – perhaps, while laughing – will understand the joke as belittling the plaintiff; as making the plaintiff look foolish and unworthy of respect; or as exposing the plaintiff to ridicule and contempt.

Once one has assumed that sex between men – unless hidden away in the privacy of a bedroom – is always promiscuous and immoral, the answer to this question seems pretty obvious. No wonder the majority of the court found in favour of the deputy headmaster who (revealingly) seemed to have been rather disproportionately upset by the suggestion that he might have engaged in same-sex sexual acts.

Never stop laughing

Jan 3rd, 2011
by Pierre De Vos.
304 comments

When President Jacob Zuma announced late last year that he intended suing the cartoonist Zapiro for mocking him in the infamous “Lady Justice” cartoon,  there was an outcry from many quarters. The South African National Editors Forum (Sanef) expressed its shock at this move and pointed out that it was probably intended to intimidate Zapiro and that it might have a “chilling effect” on the democratic rights of citizens to take part in robust debate.

Zapiro has not been cowed. He still regularly mocks the President by drawing him with a shower head stuck on his head. While Zuma might not like being depicted in this way, he is a politician who — under our Constitution – cannot rightfully claim that he has a right not to be mocked or ridiculed merely because he happens to be the most powerful politician in the country.

The South African legal position seems quite clear on this. Where a publication contains satirical comment on matters of public interest, courts will be slow to conclude that the publication contains defamatory allegations that will result in the plaintiff’s reputation being lowered in the minds of reasonable members of society.

For example, in a judgment of the Supreme Court of Appeal in Times Media Ltd v Niselow the court rejected the claim of a catering business who sued the Sunday Times for defamation in relation to an article and a cartoon that had appeared in the newspaper and that reported on the food poisoning suffered by 600 children at the opening of the All Africa Games.

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The cartoon depicted part of a stadium with images of children lying on the ground with arms out-stretched, and with a caption reading “All Africa Games, the closing ceremony.” Conradie JA held that “the cartoon is humorous and satirical and… no one is likely to think worse of [the caterer] for the joke made at their expense.”

So, to be defamatory, a satirical cartoon or other publication must go further than making a joke at the expense of the plaintiff. It must, in the minds of reasonable readers of the specific publication concerned, convey facts or opinions that are meant to be taken seriously by the audience.

Sadly President Zuma is not the only politician who wrongly seem to believe that he is too important to be mocked or ridiculed. One JP Smith (pictured), a Democratic Alliance Councillor in Cape Town, seems to agree with President Zuma that politicians are far too important ever to be mocked or ridiculed — even when they say or do things that invite such ridicule. This attitude seems to show a complete lack of appreciation for the role of satire in the rough and tumble of democratic discourse and contains a rather authoritarian and anti-democratic view of the role of politicians in our society.

Hence on the last day of 2010 I received a curious email from Mr Smith who seems to be rather aggrieved that I wrote some unflattering things about him on this Blog. Mr Smith seems to believe that — like President Zuma – he can intimidate others to prevent them from exercising their constitutionally guaranteed democratic right to make fun of him. (Mr Smith styles himself as a rather important man and even has his own website to promote himself.)

As a reminder that antagonism to free speech can be found not only among some members of the ANC but also amongst (albeit lowly) members of the DA and for the entertainment of readers of this Blog I am happy to post his email below. Let’s face it, if we cannot laugh at our politicians, then we might have to fear them and once we fear them they cease being our servants and become our masters. That is not the kind of country I would like to live in, so, here goes: Enjoy!

>>> Jean-Pierre Smith 12/31/10 12:01 PM >>>

Dear Mr. De Vos

I write to you about both your original references to me in your blog as well as the more recent entry, which unfortunately contains some errors.

Firstly, with reference to our original blog entry and the references to me as “my scary Aryan-looking DA Councillor, JP Smith” and our subsequent telephonic conversation, when I called to ask you about your motivation for making such a racial reference to me. I invited you at the time to reconsider the comments on your blog and revise them. I see they remain as before.

I asked my PA recently to follow up with you regarding the possibility of sitting down to a meeting so that I can correct the misimpressions you formed based on some media coverage, as it became clear from the telephonic conversation that you had based much (or the entirety) of your perception about me on a few media issues and that you had in fact misread even one of those (the motivation for the establishment of the policing unit focusing on human trafficking and prostitution). She informs me that you will be away for a while.

However, in the meantime I have read your subsequent entry about the Khayelitsha riots and noted with some dismay the additional sarcastic remarks (underlined):

“It is not often, though, that a politician is honest or stupid enough to admit this. One such politician is one JP Smith, who is the Mayoral Committee Member for Community Safety in Cape Town. (Two weeks ago I made a rather unflattering reference to Mr. Smith’s physical appearance, which led him to phone me. He sounded close to tears, deeply hurt by my flippant comment. I shall therefore refrain from commenting on his appearance and will rather focus on the utter callousness and idiocy of his most recent statement.)”

Your blog substantially misrepresents the conversation between us and I am disappointed that you have chosen to make further facetious remarks and have chosen to use what was a sincere attempt by me to engage you and my perception of your undue racial stereotyping and antagonism towards me, for the purposes of further mocking me. I say “mocking” as I cannot consider the tone of your comments a sincere criticism, but rather a simple effort to be hurtful.

I note therefore that far from having reconsidered whether your racial references were appropriate or even discriminatory, you have chosen to be flippant and sarcastic about them. It is an indictment of you that you would choose to make a remark such as “he sounded close to tears”. My tone was nothing more than earnest and I thought I was talking to an intelligent and sincere person with integrity.

I realise that you thrive on antagonising people and that the surest way to solicit a diatribe of abuse seems to respond to you or acknowledge you in any way, as I have been warned not to do. This appears to be the mistake that Helen Zille made which seems to have earned her your eternal enmity and victimisation.

Notwithstanding this, I also believe you are an intelligent person who stands up for what he believes is right and I must make one more effort to set the record straight between us. I am hoping that this can be achieved through a meeting, but a telephonic conversation might also achieve this.

I am requesting that please remove the offending sections from your blog:

1. the racial/racist reference to me, which is simply inappropriate, especially for someone who professes to be an expert in constitutional law and should be far more sensitive to such issues
2. the misrepresentation of the telephonic conversation between us in which I most definitely was not “almost in tears”.
3. a correction in the inaccuracy in your blog relating to my comments to Quinton Mtyala.

Relative to the latter, I want to point out that even Quinton?s distorted and somewhat mischievous article made the point that I said that the protests were drawing policing resources away from other crime-riddled poor communities adjacent to Khayelitsha and that the latter were being deprived of something they were paying for. It was the latter remark that Mtyala chose to distort in the manner that he did and you misrepresented (possibly as a result of his distortion) as a suggestion that Khayelitsha was pulling resources away from affluent and tourist-rich suburbs.

Your blog lapses into the very simplistic juxtapositioning of the have’s versus the have not’s, the rich versus the poor. This is a serious over-simplification and a significant misunderstanding of the complexities of the situation and my very genuine frustration with the injustice that was being done to communities around Khayelitsha which were seeing their policing presence peeled off every day so that they could deal with the riots in Khayelitsha, such as Blue Downs, Macassar, Mitchells Plain, Delft and even further away.

Raise a glass to 2011 and a continuation of robust political debate. And remember: never stop laughing – especially at self-important politicians who make fools of themselves.

This defamation case is not going anywhere

Dec 20th, 2010
by Pierre De Vos.
37 comments

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.

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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?

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