On Lady DA-DA and the shower head man

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.

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