An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I see Carl Neihaus, the smarmy and suspiciously pious new spokesperson of the ANC, is very upset about statements made by COPE leaders about the ANC and its Dear Leader. I can’t say I blame him, because some of these statements are clearly defamatory.
According to The Weekender newspaper, Shikota youth leader, Anele Mda, called ANC President, Jacob Zuma, “a rapist” and said that if the ANC was re-elected into government under President Zuma “rape would no longer be a criminal offence”. Willie Madisha then proceeded to call President Zuma “SA’s Stalin”, and claimed that when President Zuma visits the United Nations, people would say “here comes the rapist”.
Mr Zuma could obviously sue Mda for defamation for calling him a rapist because although he did have sex with an openly lesbian woman more than half his age while married to several other wives, although he did say at his rape trial that he took a shower after sex to prevent himself from contracting HIV, although he did say during his trial that a women wearing a Kanga cannnot be left sexually unattended, he was acquitted of rape and no one has the right to call him a rapist. One can call him a sexist, yes. A patriarch, yes. A reactionary bigot, yes. Maybe even a sexist pig. But not a rapist.
Of course, it’s too early to say whether he would have any claim for defamation based on the allegations that he is a Stalinist. We will only find out about that after the election.
But then Neihaus got a bit carried away. Understandable, perhaps, given the fact that the election is only a few months away and that Niehaus is a new broom trying to milk these defamatory statements for all its worth. But really, these spokespeople should at least try and understand the legal concepts before they bandy them about to score cheap political points – it would help to give at least the semblance of credibility to the Spin.
Thus Niehaus fulminates: “This is nothing else but hate speech of the worst kind” (as opposed to hate speech of the acceptable kind, I immediately wondered).
Problem is, if this is hate speech then I am the Pope and Britney Spears all rolled into one person.
Even in terms of the expanded definition of hate speech in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), these statements do not constitute hate speech. Every second year law student (well, at least those who passed) will be able to tell you this. Article 10 of PEPUDA prohibits any person from publishing, propagating, advocating or communicating words based on one or more of the prohibited grounds such as race, sex, gender and sexual orientation, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred.
The words of Mda fall at the first hurdle as they are not based on Mr Zuma’s race, sex, gender, sexual orientation or other status. They are based on him having been an accused and him being a politician, neither of which constitutes suspect categories in our law. So Mr Niehaus, there is no hate speech here. Please stop abusing this term because you are making a fool of yourself.
Speaking of making a fool of oneself, Mr Niehaus then continues:
These remarks come in the context of an atmosphere of disregard for basic legal procedures and respect that the NPA, and specifically the Acting National Director of Public Prosecutions, Adv. Mokotedi Mpshe, have created with their insistence that despite the fact that there are no charges against President Zuma that he is “still the accused”, and in Mr. Mpshe’s words that Judge Chris Nicholson’s judgement was wrong, and he “will not change his mind about that”.
These remarks further intensify the persecution of President Zuma through abuse of the law for political expediency. This is totally unacceptable and very serious for the independence of the judiciary.
Luckily we know from the first part of the statement (which completely misconstrues hate speech) that this second part is not based on any legal reasoning or any informed understanding of our law or our Constitution, but is mere political bluster aimed at detracting attention from the rather difficult fact that Mr Zuma may very well lose the Nicholson appeal and may very well be charged again with corruption and bribery in the near future.
As others have stated so clearly, there is absolutely nothing, I repeat NOTHING, wrong with saying one disagrees with a judgment of any court in South Africa. We do not live in Stalin’s Russia (oh dear, Mr Neihaus, I promise you that is not hate speech either). There is something wrong with threatening judges because they make a decision one does not like – as the ANC has done in the Zuma case – or threatening not to obey a judgment – as Manto Tshabalala-Msimang has done in the past with the TAC judgment.
So comrade Niehaus, my advice (given free of charge) is that you advise your Dear Leader to sue those COPE slanderers for defamation, but that you stop trying to link every criticism of your Dear Leader to his so called persecution and to his treatment by the NPA, who might just be doing its job (for once) in charging a powerful politician with corruption and bribery.
After all, one has to remind every South African who will vote next year that Mr Schabir Shaik is serving a 15 year jail term for soliciting a bribe for Mr Zuma and for corrupting him. Whether Mr Zuma is ever found guilty of these crimes himself should really be irrelevant for the electorate when they make up their minds about whether the Dear Leader is Presidential material or not (although it might be relevant for Mr Zuma and his friends and family because if he is convicted he will have to spend 15 years in jail).
The question is: do we want a President whose best friend solicited a bribe on his behalf, a President who accepted R4 million from that friend and then did several favours for that friend in his official capacity? I know what my answer will be to that question, but perhaps I am just being an old fahsioned racist who believes leaders should have some ethical standards. But hey, who needs a leader with ethical standards or progressive, gender friendly values, if you already have a dancing and singing sexist patriarch.
I suspect all this thunder about the NPA and the persecution of your Dear Leader has very little to do with your real belief that there is a persecution of Mr Zuma (just as it has nothing to do with hate speech), and everything with an attempt to try and get people to forget what kind of leader is now in charge of the once mighty and noble ANC.BACK TO TOP