Judge climbs into Zuma, orders apology to Hanekom over spy libel

The litigation between ANC stalwarts Derek Hanekom and Jacob Zuma is a proxy for the internal conflict within the party.

"Lawfare is a consequence of the failure of dialogue and politics … it is a battle or skirmish in the overall war for dominance and control by one or other faction. The courts will resolve this dispute, but it would take much more to resolve the conflict," Durban High Court judge Dhaya Pillay said, in ruling on Friday that Zuma had defamed Hanekom by calling him a "known enemy agent" in a tweet earlier this year.

She ruled that the tweet was false and ordered Zuma to remove it within 24 hours and to publish the following apology:

"On 25 July 2019, I published a tweet which alleges that Derek Hanekom is a known enemy agent. I unconditionally withdraw this allegation and apologise for making it as it is false."

She interdicted Zuma from publishing any statement that implies that Hanekom is or was an enemy agent or apartheid spy.

She also ordered that Zuma pay Hanekom's legal costs - and damages, the amount of which would have to be determined at a future trial where they would have to give oral evidence.

After the judgment it was reported that Zuma's lawyers had filed notice that they’re seeking leave to appeal the ruling.

But Zuma's attorneys on record didn't want to respond.

The crisp issue Pillay had to determine was what a "reasonable person" would have assumed Zuma meant when he published his tweet.

Zuma contended that he was reacting to revelations that Hanekom had been part of the "grand plan" to oust him. This, he said, made Hanekom his enemy and an enemy of the ANC, the party Hanekom claimed to be loyal to.

He said he had not called Hanekom an "apartheid spy".

But Pillay said in his affidavit, Zuma had repeatedly insinuated that Hanekom was dishonest and untrustworthy.

She said Hanekom had sent a lawyer's letter to Zuma demanding that the tweet be withdrawn but he chose not to respond to it.

"He too wants a litigated outcome," she said.

In spite of his denials, it was clear that Zuma wanted readers to make the historical connection that an enemy agent referred to apartheid spy.

She said as the chief of intelligence and an elder in the ANC, his utterances were weightier than those of ordinary mortals.

"He mistakenly assumes that loyalty to the ANC is synonymous with loyalty to him. His assumption is both factually and constitutionally untenable.

"It was the NEC (national executive committee) of the ANC who recalled him. Many other members of the party were of the view that he did not possess the characteristics befitting the office."

She said for Zuma to dismiss Hanekom’s anti-apartheid activism, his loyalty to the ANC and his underground work as irrelevant to the application was not only offensive and inflammatory but also disingenuous.

"And he has offered not a shred of evidence to support his claim that Hanekom was an apartheid era spy. False narratives about South African history cannot be left unchecked."

Pillay said on the objective evidence, it was Zuma who had propagated a false narrative about Hanekom.

"He distorts objective historical facts ... he seeks to undermine the NEC decision.

"The litigants finger each other as wedge-drivers. This calls for a value judgment best left to the party to which they both belong."