Hanekom ruling ‘may limit’ Zuma’s testimony
Former president Jacob Zuma’s lawyers are adamant that a high court order barring him from accusing former minister Derek Hanekom of being a “known enemy agent” or “apartheid spy” amounts to “an unconstitutional banning” of Zuma’s right to free speech — and are fighting to appeal it on the basis that the ruling may limit his testimony before the Zondo inquiry into state capture.
They say this will have a “chilling effect” on his obligations to testify before the Zondo inquiry into state capture, strongly suggesting that the former president intends using Hanekom’s successful legal action against him as a basis to not return to testify at the commission of inquiry.
His lawyers argue that the order granted on Friday by Durban high court judge Dhaya Pillay — in favour of Hanekom’s urgent legal action against Zuma for referring to him as a “known enemy agent” in a July 25 tweet
— constitutes “an unjustified interference with the rights of [Zuma] to testify in the commission of inquiry”.
In her decision, which found that Zuma’s tweet was false and defamatory, Pillay described the litigation between Zuma and Hanekom as “a proxy for the internal conflict within the ANC”
— essentially focused on the battle between those who, like Hanekom, fought for Zuma to be ousted, and those who continue to support him.
“This litigation is a battle or skirmish in the overall war for dominance and control of the ANC by one or other faction.
“The conflict is intractable political contestation for which a legal resolution is sought,” she stated, before finding that it was clear that Zuma believed opposition to his leadership of the ANC dovetailed with foreign intelligence and apartheid agencies wanting to see him removed from power.
“Mr Zuma mistakenly assumes that loyalty to the ANC is synonymous with loyalty to him. His assumption is both factually and constitutionally untenable,” she said.
The judge made it clear that her ruling in favour of Hanekom’s urgent defamation application against Zuma would not bar him from testifying truthfully before the Zondo inquiry. “Nothing said or done in this application constrains his testimony at the commission any more than his oath to be truthful,” she said.
But Zuma’s lawyers argue that this finding is “irrational, unreasonable and incompetent”.
The application for leave to
appeal Pillay’s ruling was filed just two hours after she ruled against Zuma, indicating that having to testify before the commission again was top of mind.
During his evidence before deputy chief justice Raymond Zondo in July, Zuma blamed all his legal and political difficulties on a three-decade plot hatched against him by two foreign intelligence agencies and apartheid intelligence authorities.
He claimed these shadowy forces were intent on assassinating his character and had attempted to actually kill him on multiple occasions because he knew the identities of “agents” planted in the ANC.
He named former ministers Ngoako Ramatlhodi and Siphiwe Nyanda as alleged apartheid spies. Both men have strongly denied the claims and Nyanda is in the process of suing Zuma over these accusations.
Days after giving that testimony, and in response to EFF leader Julius Malema’s revelations that Hanekom “gave us the list of the ANC MPs who were going to vote with us in the vote of no confidence against Jacob Zuma”, the former president tweeted: “I’m not surprised by @Julius_S_Malema revelations regarding @Derek_Hanekom. It is part of the plan I mentioned at the Zondo Commission. @Derek_Hanekom is a known enemy agent.”
Zuma’s lawyers insist this tweet about Hanekom was written “in the context of the undisputed allegations made by Julius Malema about [Hanekom’s] clandestine role in toppling [Zuma] from the position of state president” and did not state that he was an apartheid spy.
“Viewed in the context of the political debates at the time, the honourable court should have found that the publication of the statement was justified by that political context, reasonable and fair commentary on the facts disclosed about [Hanekom] and truthful,” they argue.
Pillay rejected that argument on the basis that the removal of ANC presidents by the party’s national executive committee was not unusual.
She also said Zuma had failed to produce any evidence to show that Hanekom was, in fact, “an agent of the EFF”.