Hanekom vs Zuma: Loose lips sink bank accounts and constitutional democracy as judge rules Zuma tweets defamatory

Handing down a scathing judgement on 6 September 2019, KwaZulu-Natal High Court Judge Dhaya Pillay also ordered Zuma to remove the defamatory tweet, apologise to ANC veteran, Derek Hanekom and pay an as-of-yet undetermined amount in damages.

Judge Pillay said she had, from the outset, acknowledged the caution that “in lawfare, politicians may try to use the court to do their bidding.” This did not mean “dialogical constitutionalism jettisons conflict and contestation for political power” rather, on the contrary, “inter-party and intra-party conflict is inevitable in complex societies confronting intractable problems.”

Pillay said the issue in the pleadings before the court boiled down to interpreting Zuma’s defamatory tweet “in the political context in which he published it.” Lawfare, said Pillay, was a consequence of “the failure of dialogue and politics. As a shield, lawfare is used to protect the rule of law. As a weapon, lawfare is used to enforce rule by law.”It is good for litigation to factor in politics to advance constitutionalism; it is bad when litigation becomes the site of political contestation with politicians trying to usurp the judiciary to do their bidding.

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