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 Jacob Zuma has again issued a threat to sue Zapiro, this time for R7 million based on the infamous cartoon in which Zapiro depicted Mr Zuma as preparing to rape lady liberty. This is not the first time Mr Zuma has threatened to sue Zapiro or other columnists and newspapers but those claims have gone nowhere.
I am on record criticising this cartoon because it debases and cheapens rape and may create the impression that Mr Zuma is a rapist despite him being acquitted of rape. However, if I was Zapiro I would not be too worried about this latest threat either. Not that he seems too perturbed, because a report in the Cape Times reports as follows:
Asked if he thought the R7m was a reasonable amount, Shapiro referred to a 2006 cartoon he had drawn in response to Zuma’s initial lawsuit. It showed an outraged Zuma telling Shapiro, ‘I’m suing for damage to my reputation!!’ and the cartoonist responding: ‘Would that be your reputation as a disgraced chauvinistic demagogue who can’t control his s exual urges and who thinks a shower prevents AIDS?’ Shapiro pointed out that ‘I could say the same thing now’. He had not expected Zuma to sue again as the initial case seemed ‘to be going nowhere’.
There are of course very good legal and political reasons why Mr Zuma has not sued any of the cartoonists or columnists he has threatened to sue and why this is almost certainly not going to happen now either.
First, since the SCA and the Constitutional Court developed the common law of defamation to bring it in line with the spirit and purport of the Bill of Rights, it is not so easy to win a defamation case – especially if one is a public figure like Mr Zuma.
But second, a defamation case could be politically disasterous for Mr. Zuma. Defendents in defamation cases very often use the same tactics used by rape defendents: they attack the character of the person suing for defamation.
Imagine a scenario in which Zapiro is sued by Zuma and before the court the whole rape case saga is dredged up again along with the various utterances Mr Zuma and his supporters have made about (i) women; (ii) gay men and lesbians; (iii) judges; (iv) HIV/AIDS (v) …..add any number of other issues here….. Imagine the awkward questions Mr Zuma might face regarding his relationship with convicted fraudster Shabir Shaik!
Mr Zuma’s reputation (if any) will be put on trial and it won’t be pretty.
If I was Mr Zuma I would not go near any court for a defamation claim (or a criminal case for that matter, but that is a story for another day) as I would be far too worried that the little that is left of my reputation would be torn to shreds. If I was advising Mr Zuma I would whisper only one name in his ear:Oscar Wilde.
Wilde famously sued his lovers’ father who had alleged that Wilde was fiddling with men only to be exposed on the stand. While cross-examined the following exchange occurred which sealed his fate and exposed him to a criminal trial which landed him in jail:
Carson’s cross-examination reached its climax with reference to Walter Grainger:
How old is he?- He was about sixteen when I knew him. He was a servant at a certain house in High Street, Oxford, where Lord Alfred Douglas had rooms. I have stayed there several times. Grainger waited at table. I never dined with him. If it is one’s duty to serve, it is one’s duty to serve; and if it is one’s pleasure to dine, it is one’s pleasure to dine.
Did you ever kiss him?- Oh, dear no. He was a peculiarly plain boy. He was, unfortunately, extremely ugly. I pitied him for it.
Was that the reason why you did not kiss him?- Oh, Mr. Carson, you are pertinently insolent.
Did you say that in support of your statement that you never kissed him?- No. It is a childish question.
Did you ever put that forward as a reason why you never kissed the boy?- Not at all.
Why, sir, did you mention that this boy was extremely ugly?- For this reason. If I were asked why I did not kiss a door-mat, I should say because I do not like to kiss door-mats. I do not know why I mentioned that he was ugly, except that I was stung by the insolent question you put to me and the way you have insulted me throughout this hearing. Am I to be cross-examined because I do not like it?
Why did you mention his ugliness?- It is ridiculous to imagine that any such thing could have occurred under any circumstances.
Then why did you mention his ugliness, I ask you?- Perhaps you insulted me by an insulting question.
What was the reason why you should say the boy was ugly?-
At this point, the record of proceedings (which does not purport to be a verbatim transcript, in the modern form) continues:
Here the witness began several answers almost inarticulately, and none of them he finished. His efforts to collect his ideas were not aided by Mr. Carson’s sharp staccato repetition: ‘Why? Why? Why did you add that?’ At last the witness answered: ‘You sting me and insult me and try to unnerve; and at times one says things flippantly when one ought to speak more seriously. I admit it.’
We already know Mr Zuma is not very fast on his feet and says very stupid things under cross examination (i.e. if one takes a shower after sex one reduces the risk of contracting HIV), so, Oscar Wilde, Mr Zuma, remember him. He died a broken man after serving two years in Reading jail after being convicted of “gross indecency”….BACK TO TOP