Former President Jacob Zuma’s failed bid to appeal against the ruling that he defamed former Minister Derek Hanekom by calling him an enemy agent paves the way for him to face a damages hearing and grilling on the stand, notes Business Day legal writer Karyn Maughan.

Zuma’s lawyers are considering their options, after the SCA dismissed with costs his efforts to challenge a ruling by the KZN High Court (Durban).

Unless Zuma seeks to appeal against Judge Dhaya Pillay’s ruling in the Constitutional Court, the former President will have 24 hours to remove the tweets and to apologise for making the ‘false and defamatory statement’, according to Hanekom’s lawyers, Dario Milo and Pooja Dela-Cron.

In addition to the possible political humiliation of being forced to apologise publicly to Hanekom, any potential decision by Zuma not to appeal to the Constitutional Court means that he will face a defamation damages trial.

Hanekom has argued that Zuma should be ordered to pay him R500k in damages, which he said would be donated to charity.

Because so much of the evidence in the Hanekom defamation saga has been fundamentally disputed by both sides in the case, both Zuma and Hanekom could be forced to testify and face cross-examination, notes the Business Day report.

The animosity between the two runs deep, with Hanekom emerging during Zuma’s scandal-scarred presidency as one of the most vocal critics within the ANC, often attracting the ire of other national executive committee members. As far back as 2016, he tabled among party structures a motion of no confidence in Zuma.

In the High Court, Zuma’s lawyers had previously argued Pillay’s judgment, which barred the former President from accusing Hanekom of being a ‘known enemy agent’ or ‘apartheid spy’, was an unconstitutional restriction of Zuma’s right to free speech.

They also contended that the judgment would have a ‘chilling effect’ on his obligations to testify before the Zondo Inquiry into State Capture, where he has previously accused several of his former Ministers of potentially being apartheid spies.

According to the Business Day report, inquiry spokesperson Mbuyiselo Stemela confirmed that the commission’s legal team was persisting with its application to compel Zuma to testify.

Stemela said commission chair, Deputy Chief Justice Raymond Zondo, had not yet met Zuma’s doctor about the alleged serious medical issues that had led to the former President previously failing to appear. Hanekom took urgent legal action against Zuma after the former President referred to him as a ‘known enemy agent’ on Twitter in July 2019.

During his evidence before Zondo, Zuma blamed all his legal and political difficulties on a three-decade plot hatched against him by two foreign intelligence agencies and apartheid agents.

He said these forces were intent on assassinating his character, and had attempted to kill him on several occasions because he knew the identities of ‘agents’ planted in the ANC.

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Zuma’s application for leave to appeal was dismissed on the grounds that there was no reasonable prospect of success in an appeal 'and there is no other compelling reason an appeal should be heard’.

Zuma’s lawyers have insisted his 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.

Neither the High Court nor the SCA accepted that argument, notes BusinessLIVE.

In her decision, which found that Zuma’s tweet about Hanekom 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 continued to support him.

The judge had also made it clear her ruling in favour of Hanekom’s urgent defamation application against Zuma would not bar him from testifying truthfully before the Zondo Inquiry.

Zuma’s former lawyer Daniel Mantsha argued that Pillay’s comments 'demonstrated a lack of impartiality, which should vitiate her judgment'.

The SCA does not appear to have found any merit in that argument.

Full BusinessLIVE report