President Jacob Zuma is once again pursuing his lawsuit against cartoonist Jonathan Shapiro (Zapiro) for the “rape of justice” cartoon published two years ago.
There is a difference this time, however: He has decreased his demand from R7-million to R5-million. And a more nuanced issue is that he seems to be emphasising “dignity” in the charges.
This is in concert with the discourse around a media appeals tribunal. Its supporters focus on leaders’ dignity, saying they support media freedom but cannot have the press violate dignity. Lawyers, however, say harm to dignity and damage to reputation are both defamation charges.
Zuma is demanding R4-million for damage to his reputation and R1-million for harm to his dignity from Shapiro, Sunday Times editor-in-chief Mondli Makhanya and Avusa. In addition, he wants interest of 15,5%. This is one of several other claims, totalling about R45-million, that Zuma has made against the media since 2006. While the others are in abeyance, they too can be resurrected at any time.
After Zuma became president in April 2009, it was expected that he would drop all lawsuits against the media. Indeed, he went silent for a few years. In 2008 his spokesperson-cum-lawyer, Liesl Gottert, said Zuma would instruct his lawyers to drop the defamation component and proceed with the dignity aspect of the claims, but this appears not to have happened. Then, in an unexpected move in December 2010, he issued summons for the “rape of justice” cartoon, which was published in September 2008.
‘Go for it boss’
With the new summons, a trial date will be set, unless, of course, Zuma drops the case.
The outcome of the trial could set a precedent for the media. Some lawyers say that if Zuma gets an award it’s unlikely to be more than R50 000 and the summons is probably more about intimidation than financial reward.
The cartoon captured Zuma loosening his trousers in readiness to rape Lady Justice, symbolising the justice system. She is blindfolded and held down by alliance leaders who say: “Go for it boss.” It made reference to the 2006 rape charge of which Zuma was subsequently acquitted.
Last year the South African Human Rights Commission exonerated Shapiro of any wrongdoing: the cartoon did not incite violence or promote racism. By resurrecting this lawsuit, Zuma succeeds in reminding the public of an aspect of his past that he himself would probably rather forget.
Freedom of expression is not an impenetrable shield, so if this matter reaches the Constitutional Court, which it is likely to do given the pursuit of the lawsuit, the court’s legal minds will have to apply themselves on how to balance Zuma’s and Zapiro’s rights.
The freedom-of-expression clause in the Constitution states that everyone has a right to freedom of expression as long as there is no incitement to war, violence, hatred based on race, ethnicity, gender or religion.
The dignity clause states that everyone has inherent dignity and the right to have it respected and protected.
Further, Zuma would have difficulty in showing that Zapiro ruined his reputation. After all, he became president subsequent to the publication of the cartoon.
Shapiro’s defence attorney, Dario Milo of Webber Wentzel, was surprised by the latest summons because of Zuma’s inactivity over the past three to four years, which his clients assumed to mean Zuma was not going to pursue the claims.
There was a flurry of legal activity by the president in 2006 and 2007 against the media, then silence, he said. In the past, when Webber Wentzel wanted to go to trial, Zuma’s lawyers didn’t respond timeously and so the trial did not take place.
Why did Zuma wait so long before pursuing the matter? Presidency spokesperson Zanele Mngadi said the president was unable to comment and that the matter was before the court.
Of course, the matter is not yet before the court. Shapiro reflected: “Either way, it’s going to be embarrassing for the president to go ahead with this”. And, either way, the courts are going to have to decide on a tricky issue, balancing Zuma’s right to dignity and Zapiro’s right to freedom of expression.
The big question is: should leaders accept that democracy has a sense of humour, that the free flow of information enhances life, or should everyone’s dignity be sacrosanct?
Glenda Daniels is advocacy coordinator at the M&G Centre for Investigative Journalism.