By: Clyde Ramalaine
Your Honour this court is about to entertain a claim that translates to a charge which must seek relief on behalf of the applicant Mr. D. Hanekom as brought against the respondent our client Mr. J.G Zuma.
Central and perhaps in singular sense in support of such an application is a tweet before us in which the respondent Mr. Zuma tweeted on July 25 : “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.”
It would be the applicant’s claim to construct a case of defamation for which he seeks relief. However this court like all in a constitutional democracy has the fiduciary responsibility to ascertain if such grounds materially exist for the applicant to make such a claim and if and what degree such case can be made to stand so as to be granted such relief.
In it’s quest to ascertain the validity and also veracity of such claim this court has to establish the legality and admissibility of such defamation claim against this respondent.
When the court seeks to test the legality of the claim it will have to be guided by justice as it’s firm foundation and aided by evidence as it’s minimum non-negotiables.
Ultimately the entire case to be made if made can only be done as rightly limited to the permissible 148 characters allowed for in maximum of one tweet. Moreso in this instance perhaps the last seven words of the actual tweet then becomes the central aspect of the courts thought-provocation.
We must therefore be guided by this court so as to a didactic analysis of these seven words articulated in commonness of an English language articulation that may in other language forms assume other meanings. Principally as most important the due context of these words cannot escape our engaging to ascertain a case for or against.
We also know that from the December 2018, movie ”On the basis of sex” in which sex here is in reference to gender, any court ought not to be affected by the weather of the day but will be by the climate of the era. Meaning whatever this court may arrive at as its determination will always be understood in the climate of this particular epoch.
Your Honour it would be our submission that this tweet cannot automatically translate to the claim the applicant seeks to make unless we afford it’s true context to be gravely encrouched upon if not violently abused. When the applicant brings this claim it’s perhaps in myopic specific reference to it’s preferred deduced usage and meaning as in relation to an ”apartheid spy”, meaning.
Let it be known that the applicant’s premise for his case is defined, decided and determined by this his prism of an obherrence of any association with apartheid machinations. While that is to be understood and admirable even seen in egalitarian mind as honourable in a generic sense at a personal level it’s also fundamental since the applicant may want all to know and believe the opposite of apartheid is what defines the life value system of his person. It also at another level constitutes the personal economy of the applicant in which he rightfully trades in relationships of currency understood in life spaces.
The critical word here ” is known enemy agent”. Let us then accept the words or statement is categorical. Yet, the fact that it is categorical does not automatically translate to how it is interpreted by diverse audiences which by itself remains bound to ask for the mind of the one who penned it. To this end we will let the one who tweeted tell us what he meant.
What we know hitherto is that the applicant has concluded that this assertion or label is only synonymous and purely in reference to apartheid as the centre for a claim of it’s relevance. Therefore ”enemy agent”, if the accusation is made from the liberation movement cadres is and can only be in reference to apartheid collaborators.
There is irrefutable evidence that the respondent was within his rights to assert in usage of the construct, since it’s a political term which lives in that connotation of a hyperbole. A political term not distinct to many other common Marxist Ideology and evolutionary thought often explained in terms descriptive of ”balance of forces” etc. We must therefore never forget it is a politician that makes this statement.
In a political context opposing groups comfortably regard others in casual reference of caste identities as ”enemies” as in reference to ideology etc. Hence describing them as enemies of a specific cause a people or ideology is not contrarian to it’s difference from or to those in order to exact the claim.
Secondly, in political party diaphragm colluding with other parties to undo the policies, programmes, decisions or leadership of ones own party may equally constitute one operating as an ”enemy agent”.
It will be our submission in this court that if the context of the aforementioned is established than the applicant by his own admission has given effect to the categorisation of enemy agent for his conceded actions in engaging the Economic Freedom Fighters in leadership to work for a specific agenda, in this instance the removal of his party and state president.
Your honour while we may not fully know why the applicant concluded what he did in this regard, we may surmise that the applicant’s reasoning may have been vehemently influenced by his own deductions which may not attest the same context in which the tweet was made.
There is more than evidence that separate from any apartheid label of enemy agency which will not and is not our clients prism of defence as relayed by his tweet, that the applicant, Mr. Hanekom, in the instance of working for the removal of Mr. Zuma, then President of both ANC and SA our client from public office distinguished himself an agent to work for a different agenda to the ANC as an organisation hence that of an enemy association. Thus there can be no reservations as to the applicants agency in this regard.
It is therefore our submission that the applicant:
Firstly, contravened his own party’s constitution and subsequent resolutions he by virtue of membership is betrothed to in this regard.
I refer you to the following resolutions of the ANC on the matter not as limited but to be taken cognizance of as official public knowledge. (exhibits a, b, c, d, e) which would read into the record. Your Honour these detail the official and public knowledge of ANC communicated statements where the motion to have it’s then president removed were tabled.
Secondly, that the applicant nowhere denies that he in pursuing of this agenda was working against what was engaged, entertained and rejected. He in this instance is on record to conceding, in fact boasted about having worked for an outcome that it’s NEC never agreed on. I refer you to exhibits ( f, g, h and I) these are excerpts in media space where the applicant in valorized sense admits to colluding with external to the organisation structures to see his personal ambition attained.
Thirdly, that the applicant by his own admission is in public record to have admitted that he was active in pursuing an agenda because he believes many in the ANC wanted that. While he takes comfort on the doctrine of ”many” who shared his agenda, he is not exonerated of the fact that the view of many in recorded ANC statements confirms the opposite. Equally that the claim of many is nowhere quantified in research evidence therefore a convenient and spurious assertion.
While this may or may not be the case the applicant would need to hurdle the official position and premise adopted by the NEC after deliberations in which his motion did serve and was duky defeated.
It is more than fact that the applicant brought such motion to the NEC (see dates) as was his constitutionally provided entitled right as member of an organisation he joined out of freewill. Yet, the record would show that the very motion while it served was defeated and the ANC’s known principle of democratic centralism and praxis of consensus following robust engaging of the subject matter. Such dictates that when one’s motion is defeated one is obligated to comply with the majoritarian consensus decision. It is common that one may not at an emotional level feel the a specific or any majoratarian decision comforts one, yet at a principle level one must show due respect for the practice and breathing space of an organisation that must prove functional that lends itself to afford robust deliberations that usually result in consensus positions. This motion to have our client removed served and was entertained extensively in the ANC, yet the consensus position is unambiguous and irrevocable until February 2018 when the ANC NEC decided to give effect to a call that emanated from an internal space. I wish to also alert you to the fact it’s not the first time the applicant contravened in defiance of ANC resolutions, he did so on the land expropriation too. I’m this instance he went to a Afriforum gathering and made a mockery of the resolution, please see exhibit k which we also seek to read into the record.
Your Honour in this esteemed court it is not my clients aim to argue the efficacy or elasticity of ANC constitutional principles as a fundamental but it’s inevitable that common sense dictates the centrality and commonality of an organisation and party to which both my client and the applicant belong for distinct periods of their lives in inescapable sense confronts us.
Thirdly, the applicant may have taken what was said by our client in reference to for example Messrs Ramathlodi and Nyanda respectively as naturally enjoined to him in reference of description of agency when it was not our clients context in reference to him. He may also in arbitrary sense have done so for reasons only he may explain to the court.
Pragmatism unfortunately would lead that the obligation for that deduction cannot be my client’s responsibility neither can the fact that the media reports led in subsequence of the applicants attempt of making a case the aforementioned also will bring cases of similar form. Should such cases ultimately serve in any court the same principle that see us here today will be engaged if and when the occasion arise. Meaning each case must be given it’s due space to stand or fall in the shadow of its own evidence.
Any conflation of these individuals to determine a polluted climate to influence this court can therefore not be considered judicious or in the interest of justice which remains the objective of this court as it seeks to be fair and legal in its pensive reflections to arrive at it’s findings.
Our response is the applicant has enjoined himself in sobriety of mind to work for that which at the time was a contrarian position to his organisation’s consensus and concluded stance on the subject matter when he decided to engage external to his own organisation and party ”enemies” of ideology and vision of that decision. He found himself in opposition batallion if I may use a military combat choice of word to underscore the seriousness of his wilful choices to engage the EFF among others to attain his personal desire for what he failed to achieve in a die forum as provided by the conventional space of the ANC.
This case must therefore be determined on the basis of if the EFF is a political enemy to the ANC and not an inserted implied apartheid enemy frame the applicant in lack of exegetical context straight-jackets my clients statement/tweet. Since the applicant rushed to court he warrants explaining his hermeutics for his assumption of my clients statement as directly and limited to apartheid enemy agency.
This case must engage if the agenda of the EFF in this instance was to unseat the ANC and SA president at the time.
This court must ask did the applicant concede to work for an agenda outside the dictate of his party and if that action constitutes a justification to contend him a known enemy agent.
For the record nowhere in the tweet does my client use, refer or make mention of any apartheid role. If and when such inference is drawn or made it comes external in ownership to my clients epistemology as belonging to the minds of those who do so for their own convictions or persuasions.
The usage of the word ”known” as a prefix in description of ”enemy agent” equally cannot be draped in desperate kaftans of apartheid lexicon association but must stand in the contextual common public knowledge of the applicant’s own media utterances which he has nowhere objected as him being misquoted. Our prism of ”known” is therefore with this common knowledge reality and nothing less or more.
Thus, the burden of proof to attach my clients tweet to an apartheid unique relevance to appreciate ”known enemy agent” cannot be shifted to my client but must be borne by those who deem it their inalienable right to make such association.
To this end your Honour this court cannot find against my client if the context of his tweet, the choice of uncomplicated basic words as used and the reality of the applicant’s concessions are made to stand in cognizance of an adopted party position.
This case cannot stand where legality is the question, inadmissibility an undeniable fact. This case cannot stand where justice is the guiding light and fairness the torch to the path of true honest findings.
We therefore humbly implore you to dismiss this case with a decided cost order in which the applicant is made liable.
We rest your honour.