As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.
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.BACK TO TOP