Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
11 September 2019

Treating obviously false claims against judges and the NDPP as if they are credible is unethical and dangerous

Are people really gullible enough to believe the patently false claim circulated on social media that members of the judiciary and the National Director of Public Prosecutions were bribed by CR17 – President Cyril Ramaphosa’s election campaign? Or do they just pretend to believe this claim so that they can cynically promote it in an effort to discredit the judiciary and the NDPP? And what about journalists who treat such obviously false allegation as credible?

On the same day that the Daily Maverick published a report alleging that Economic Freedom Fighter (EFF) leader Julius Malema was financing his lavish lifestyle with money looted from the clients of VBS bank, an unknown person typed up a Word document alleging that some judges and the National Directorate of Public Prosecutions (NDPP) received large amounts of money from President Cyril Ramaphosa’s campaign fund (CR17).

This scurrilous and clearly false claim was widely promoted on social media (mainly by EFF supporters). Even more troubling, NDPP Shamila Batohi was asked to respond to this allegation in a live on air interview on SABC television. When Batohi correctly stated that responding to the claim would give it credibility, she was pressed to answer, which she then did. The SABC followed this with an online article with the headline “Batohi denies receiving money from CR17 campaign”, thus creating the false impression that there was something substantial that was worthy of a denial.

While journalists have a duty to ask difficult questions of those who hold public office, they should avoid promoting obviously false claims by treating such claims as worthy of a response. If somebody shares an allegation on Twitter that I am cheating on my boyfriend by having an affair with Busisiwe Mkhwebane, the only sane and ethically responsible thing for a journalist to do is to ignore the hilariously and obviously false claim.

The saga illustrates how easy it is top use obviously false allegations to help discredit individuals or institutions. All that is required is publication of the false allegations on an anonymous Twitter account, the willingness of fellow travellers to retweet the false allegations, and the willingness of journalists to give credence to the false claims.

The aim of those spreading and legitimising a specific false allegation is not necessarily to convince the public that the allegation is true. The intention is usually more modest, namely to create doubt in the minds of a sizeable number of people about the credibility and integrity of a specific individual. This is dangerous because a world in which we have been made to believe that no one is honest, and nothing is to be believed, anything goes.

In the case of the named judges and the NDPP the aim is to make people doubt the impartiality and integrity of these specific judges, but also to prepare the ground for future attacks on other judges and members of the criminal justice system. The ground for future attacks must be prepared because when you are on the wrong side of the law and the facts, it is highly likely that you will be on the losing side in many court cases, and the only way to justify or explain this away is to make your supporters believe that the judges are to blame.

Of course, this does not mean that judges should not be criticised if they get the facts or the law wrong. As long as the criticism is reasoned and supported by substantive arguments, such criticism can serve an accountability function. Moreover, if there is evidence that a specific judge has acted in contravention of the judicial code of ethics, it would be incumbent on any person in possession of such evidence to lodge a complaint about the specific judge with the Judicial Service Commission (JSC). As there is no evidence of any wrongdoing by any judge in the present case, no such complaint will be lodged.

I am assuming those blinded by political loyalty will ignore the logic and reasoned arguments above – exactly because the judiciary is sticking to the facts and the law, while those who they support happen to be on the wrong side of the facts and the law. So, let me use a different example to illustrate how dangerous and toxic it can be when individuals promote an obviously false claim about somebody with the view to discredit them.

Imagine a group of political operatives decide to discredit EFF leader Julius Malema. They create several anonymous Twitter accounts. They type up allegations that Julius Malema has sexually molested several teenage boys, take a screen grab of the Word document, and share it on Twitter. They get many other critics of Mr Malema to share the obviously false claim on Twitter.

An SABC journalist then asks Mr Malema in a live TV interview whether he denies the allegations, which he does. The SABC then publishes an article stating that “Malema denies molesting teenage boys”. Suddenly, many gullible people are wondering whether the denial does not mean that there might be something to the allegation. Many others, who know the allegation to be false, nevertheless keep it alive by consistently suggesting that Malema has a case to answer.

Now, most sane people would have assessed the claim, noticed the amateurish formatting of the screen-grabbed document, the lack of any evidence, the lack of any detail, the lack of any argument or analysis, and would have concluded that the allegation levelled against Mr Malema was obviously false.

Those who focused on the facts and the law would have been able to distinguish between this amateurish attempt to smear Mr Malema by falsely claiming he molested teenage boys, and the far more credible reports that Mr Malema finances his lifestyle from money looted from VBS bank. The obvious difference is that in the latter case detailed allegations have been published, backed up by bank statements and other circumstantial evidence that at least raise serious questions about Mr Malema’s alleged involvement in theft, money laundering and corruption.

But of course, some people will believe even the most absurd claims as long as these suit their world view or explain away uncomfortable or compromising facts about those they support. This is especially true for those whose loyalty to a specific political party or to a political leader mirrors the religious beliefs of the most devout Christians – no matter what the evidence may show, the belief will always trump the evidence.

There is a need to distinguish between these gullible individuals and those who know that the claims are false, but pretend to believe them because they sense that they could obtain a political advantage by promoting the lie. Acting in bad faith and with a view to undermine not only the democratic process but also independent institutions whose impartiality and independence stand in the way of their political ambition or their desire not to be convicted of corruption, such individuals are truly poisonous.

This is what is happening with the utterly scurrilous claim that the Cyril Ramaphosa campaign bribed various judges and the NDDP. Conveniently, all the judges mentioned were involved in cases lost by the EFF, the Public Protector or Jacob Zuma. Furthermore, the National Prosecuting Authority had recently decided to prosecute Malema for assaulting a police officer, while the NDPP may well in the near future have to decide whether to prosecute Malema for theft, money laundering and corruption. The allegations are being spread to try and discredit these judgments and decisions.

One can expect further attacks on the judges and on the NDPP by demagogue-politicians who happen to find themselves on the wrong side of the facts and the law. It’s a pre-emptive strike aimed at helping to explain away (or distract attention from) incompetence, dishonesty, venality and corruption. Only gullible or mendacious individuals will treat the allegations as potentially credible.

When the gullible and mendacious continue their campaign against the facts and the law – as it inevitably will – the rest of us may have to point out how absurd the bribery claims are. Apart from the small problem that there is no direct or even circumstantial evidence to back up this claim, there is also the problem that the claim is nonsensical.

For example, it is alleged that NDPP Shamila Batohi was “bribed” on 14 March 2018. Even if you are the most gullible person in South Africa (competition is stiff for this title) you would have to conclude this allegation makes no sense at all as, at the time, Batohi was working as a senior legal adviser at the International Criminal Court in the Hague. It is equivalent to alleging that the Guptas bribed me to assist them with securing a tender from Eskom. As I am not employed by Eskom, and have no influence over its affairs, an allegation that I was paid a bribe to secure an Eskom tender is beyond absurd.

The same goes for the allegations that some judges who later ruled against the EFF, Mkhwebane and Jacob Zuma were bribed by CR17. I know the conspiracy theorists hate facts, but the fact is that it would be a monumentally stupid and pointless exercise pre-emptively to try and bribe judges to rule in a certain way in certain future cases.

This is because cases are usually allocated to judges by the judge president or deputy judge president, depending on their respective schedules. Urgent matters are heard by judges on duty in a completely random fashion. It is impossible to predict which judge will hear what future case. It is therefore a hilarious fantasy to imagine any person could have pre-emptively bribed all the judges who randomly were later allocated to preside in cases in which the EFF happened to have a direct or political interest.

The lesson here is that facts matter. Not all allegations of wrongdoing are equally credible To determine whether allegations are credible it is necessary to engage with the facts. People, acting in bad faith, will continue to use “whataboutery” in an attempt to intimidate journalists and ordinary members of the public to get them to treat even the most absurd and patently false claims as credible. It is imperative that we do not give in to this intimidation.

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