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.
Julius Malema said today that he “will take legal action against the Star newspaper and consider doing the same with other newspapers” because they defamed him. I will donate one months salary to the ANC Youth League if Malema’s defamation suit against The Star is ever heard in court. Unless Malema is really stupid – which I do not think he is – he will never actually follow through on this threat.
The reason is very simple.
If he sues The Star, the central questions in such a case will be whether The Star defamed him, whether the defamatory allegations were untrue, and whether the newspaper was negligent in publishing incorrect and defamatory statements about him. This will be rather traumatic for Juju and will become one of the most sensational trials in South Africa’s history.
Usually it will not be defamatory to claim that someone has paid cash for his home or that he only earns R20 000 per month. Alleging that Patrice Mosthepe, say, or one of the Oppemheimers, paid cash for a house would not be defamatory because paying cash for a house is not a crime and neither does it say anything about the character of that person.
It could be considered defamatory if a court found that the report wrongly implied that Malema was corrupt or that he was a liar by having claimed on TV that his only source of income was his ANC salarywhen it was not. The Star report does imply that he has access to funds over and above his salary, so whether he has other sources of income will become a central matter in the trial.
The defamation trial will then become a very public lifestyle audit of Malema who will be forced to reveal all his sources of income. His bank statements and his lifestyle will go on trial and under cross examination he will have to answer questions about how he can afford a R250 000 watch on an ordinary ANC salary.
The newspaper’s lawyers would request to access to all of Malema’s financial dealings – his salary, his other sources of income, his expenses – which will all be laid bare in court. Malema will be cross examined about his R250 000 watch, his business dealings, his interactions with Polokwane politicians and municipal administrators.
As Oscar Wilde, Jeffrey Archer and Ronald Suresh Roberts found to their detriment, a defamation case can expose one to serious scrutiny and can expose the existence of facts which may well prove the very defamatory allegations which one had approached the court to challenge and disprove and could really destroy one’s reputation
Unless Julius is therefore absolutely clean and really only live on an ANC salary (something very few people would believe) , bringing a defamation case would be a gamble of such irresponsible proportions that Malema, or at least his legal advisor (will he employ black council?), would not want to take that chance. A litigant who sues for defamation better have clean hands. If he does not, he risks losing everything. Even if he does not lose everything, his lifestyle – warts and all – will be exposed in court and very few litigants will emerge with their integrity in tact.
The threat of legal action reminds one of the threat to sue for defamation which was made by Jacob Zuma and Judge President John Hlophe. In both cases these threats were publicity stunts. We all knew the cases would never go to trial but those making the threats hoped that making such threats would create the impression that they had nothing to hide. It’s an old trick, but I wonder how many still fall for that.
In any event, it has now emerged that Malema has been less than truthful when he claimed yesterday that he has given instructions to lawyers when he became ANC President to deregister his directorships of companies. One company of which Malema is a director was only registered a year after he became Youth League President. He could therefore not have done what he claimed to have done.
In any case, this is not the issue, as one can still benefit financially from a company even if one is not a director. The question is not whether he is a director of companies, but whether he benefits financially from these companies and whether these companies have fairly – without corruption – obtained the government tenders.
To come clean Malema will have to show that these companies tendered in an open and transparent process for government work and obtained the tenders because it was best placed to deliver the work at the most competitive price. I for one would be surprised if this was the case. Given Malema’s political influence, it is not unreasonable to suspect that he used his connections to get the tenders – which would constitute a criminal offense. That is why the allegations are so damning and why Juju is fighting so hard to try and address them. The newspaper reports have now tainted Malema because the stench of corruption hangs over him.
If Malema wants to clear his name he will have to bring evidence that the tenders were awarded to the company with the best track record who offered to do the work at a reasonable price. This he has not attempted to do. His silence on this score, will lead many to draw their own conclusions.
Whatever happens, The Star is safe. They will never have to meet Malema inside a courtroom as Malema cannot afford to have his finances and lifestyle exposedBACK TO TOP