I hereby acknowledge your rambling and nonsensical ‘Cease and Desist’ Letter of 04 November 2022. I am inclined to ignore the contents of the letter which betrays a highly incompetent attorney grappling with simple concepts of constitutional law, including freedom of speech, harassment and gender based violence. However, given that you are threatening me with legal action I shall detail herein why your proposed legal action will be still-born – in short, that dog won’t hunt, madam!
First, you baldly state that I have “over the past few months … repeatedly published highly defamatory and insulting messages on Twitter, of and concerning Ms Maughan.” You have not provided a scintilla of evidence to back up your wild and sweeping assertions. You claim that I have called Ms. Maughan an “unethical journalist.” So what? Is it unlawful to express my opinion that Ms. Maughan, who is currently facing criminal charges arising out of her collusion with a lead prosecutor, Billy Downer, for leaking President Zuma’s medical records is an alleged criminal and unethical? Why is it wrong, or unlawful, to characterise alleged criminal wrongdoing as “disgusting conduct”?
Your convoluted legal theory is that Ms. Maughan, who is a seasoned journalist, and is currently facing criminal charges, deserves special protection, and we must all sacrifice our precious free speech rights in order to cater to her hyper-sensitivity. May I remind you of the admonition of the Supreme Court of Appeal in Mogale and Others v Seima 2008 (5) SA 637 (SCA) paras 9, 18.e where the Court stated: ‘…life is robust and oversensitivity does not require legal protection…” I would add that is particularly apt for journalists.
Remember that Pope Francis once said this about journalists:
“Journalists sometimes risk becoming ill from coprophilia and thus fomenting coprophagia: which is a sin that taints all men and women, that is, the tendency to focus on the negative rather than the positive aspects.”[1]
If you are unfamiliar with the words “coprophilia” and “coprophagia”, here are definitions from Merriam Webster:
COPROPHILIA: marked interest in excrement; especially : the use of faeces or filth for sexual excitement — cop·ro·phil·i·ac – noun
COPROPHAGOUS: feeding on dung — co·proph·a·gy – noun
To assist you and your client, this means journalists love shit, and encourage others to consume it! Who am I to disagree with the Holy Pontiff’s views about journalists’ marked interest in excrement, and other unusual use of faeces? You have failed to provide me with specific evidence, and context, in which I may have expressed an opinion of Ms. Maughan. The context of any debate I may have engaged her in would determine whether I had accused her of engaging in “Stratcom-like smear campaigns” as alleged. I reserve the right to thoroughly deal with these allegations once you have provided me with specific evidence, documents, and full context.
I am aware of allegations made in court documents where President Zuma alleges that lead prosecutor Mr. Billy Downer is guilty of misconduct, which rendered [Downer] unfit to prosecute him. The misconduct of which he accused Downer included his accusations that Downer unlawfully leaked information about him to Mr. Sole, and sanctioned the release of General Mdutywa’s letter to Ms. Maughan. The letter from General Mdutywa was clearly marked ‘Medical Confidential’ See, S v Zuma and Another (CCD30/2018) [2021] ZAKZPHC 89; [2022] 1 All SA 533 (KZP); 2022 (1) SACR 575 (KZP) (26 October 2021).
In Paragraph 238 of the judgment, the court discussed the request by President Zuma that the matter of these alleged breaches of Section 41(6), read with Section 41(7), of the National Prosecuting Act 32 of 1998 must be referred to the National Director of Public Prosecutions, and the Legal Practice Council for further investigation and appropriate action. However, the court expressly stated: “If it is believed that the provisions of s 41(6) outlaws such conduct, then a formal charge in that regard can be pursued, where the proper application of s 41(6) can be fully ventilated and its proper interpretation determined.” (Id at para. 240). The court expressly envisaged the possibility of a “formal charge in that regard” being pursued. In addition, President Zuma’s current complaint against both Downer and Maughan is also expressly based on breaches of Section 41(6), read with Section 41(7), of the National Prosecuting Act 32 of 1998. (See paras. 3-9 of President Zuma’s criminal complaint). The Court had expressly recognised President Zuma’s right to pursue a separate “formal charge” in separate proceedings. It is unfathomable how you believe that Ms. Maughan’s criminal conduct, which is subject to a private prosecution, must be shielded from public scrutiny or criticism.
Arguably, Ms. Maughan’s association with Mr. Downer and her agreement to receive documents marked ‘Medical Confidential’ was reckless, and highly unethical. She knew from published court judgments and her own experience that Downer had engaged in a pattern of favouring a few white journalists with exclusive access to NPA information in his possession. See, eg., Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 253 (7th Cir. 1975) (prosecutors “are a prime source of damaging statements”), cert denied, 427 U.S. 912 (1976). The prosecutor represents the state, which is attempting to deprive the accused of life, liberty, or property, and the state is limited in doing so by the requirements of due process of law. The prosecutor, in short, is subject to broader duties,[2] and the courts have declared that one of those duties is to ensure that guilt be based on the evidence presented in court, and that the defendant receive a fair trial.[3] When the prosecutor speaks publicly about a pending case, he cannot separate his representational role from his speech, and he thereby involves the state in the extrajudicial comment. The same applies when he secretly gives documents from his files to select white journalists who are know to hate former President Zuma.In this context, the US Supreme Court stated in Stroble v. California, 343 U.S. 181, 201 (1952) (Frankfurter, ., dissenting) the following:
“To have the prosecutor himself feed the press with evidence that no selfrestrained press ought to publish in anticipation of a trial is to make the State itself through the prosecutor, who wields its power, a conscious participant in trial by newspaper, instead of by those methods which centuries of experience have shown to be indispensable to the fair administration of justice.”
Courts have determined that prosecutors are not entitled to absolute immunity against civil rights violations claims based on extrajudicial statements. See, eg., Powers v. Coe, 728 F.2d 97, 105 (2d Cir. 1984) (plaintiff entitled to attempt to show that his constitutional right to fair trial in criminal prosecution was violated by alleged news leaks from prosecutors). See, e.g., Marx v. Gumbinner, 855 F.2d 783, 791 (11th Cir. 1988) (prosecutor could be liable for fourteenth amendment due process violation by issuing a defamatory press release); Powers v. Coe, 728 F.2d 97, 103 (2d Cir. 1984) (holding “that only qualified good faith immunity is available where a prosecutor distributes extraneous statements to the press designed to gain unfair advantage at trial”); Stepanian v. Addis, 699 F.2d 1046, 1048 (11th Cir. 1983) (prosecutor not absolutely immune if statement not part of his discretionary duties). See generally Boyer, Civil Liability for Prejudicial Pre-Trial Statements by Prosecutors, 15 Am. Crim. L. Rev. 231 (1978) (prosecutor’s prejudicial and improper statement affecting defendant’s right to fair trial should not be absolutely immune). Ms. Maughan who claims to be squeaky clean and ethical journalist should have resisted the temptation to aid and abet Mr. Downer’s violation of President Zuma’s constitutional right to privacy and due process. She was obsessed with her pursuit of “coprophilia” and “coprophagia” as the Pope aptly described it.
Karyn Maughan knew that Mr. Downer is an officer of the Court because his duty to his client, the State, must be fused with his duty as a participant in the governmental function of protecting the judicial process from extraneous influences that impair its fairness. That position must not be abused to the detriment of the accused. When the prosecutor secures access to information by virtue of his participation as counsel for the state in a criminal prosecution, he accepts a powerful responsibility to facilitate a governmental process that has as its primary objective fair procedure and a fair decision. Government lawyers stand on a different footing than the press or public because they acquire information not as general members of the public, but by virtue of their status and employment. The prosecutor’s access to sensitive information makes him a good press source for information about a case and creates an obligation to exercise utmost care in disseminating information. That is a far cry from the boastful self-justification displayed by Mr. Downer and Ms. Maughan throughout President Zuma’s prosecution where they both claim that they violated no laws.
What is particularly dastardly and despicable is this: Downer gave Maughan copies of President Zuma’s confidential medical records before these were even filed in court. For all Ms. Maughan knew, the court could still determine that the said documents be filed under seal to protect the privacy interests of President Zuma. We know that courts preciously exercised judicial discretion to have financial records of Mr. Ramaphosa sealed. Maughan and Downer appear to have deliberately circumvented the process and pre-empted Judge Koen’s decision on whether to seal President Zuma’s record or not. That is a classic example of an unethical journalist and that needs no further explanation.
Other courts in mature democracies take this function of protecting the accused from adverse pre-trial publicity very seriously. See, eg., Levine v. United States Dist. Ct., 764 F.2d 590, 597 (9th Cir. 1985) (upholding restraining order prohibiting attorneys from communicating with media because publicity posed “a serious and imminent threat to the administration of justice”), cert denied, 476 U.S. 1158 (1986). Other US state appellate courts have encouraged trial courts to employ the publicity precautions set forth in Sheppard. See, eg., Commonwealth v. Pierce, 451 Pa. 190, 200, 303 A.2d 209, 215 (prohibiting policemen and district attorneys from releasing certain information to news media), cert. denied, 414 U.S. 878 (1973). In Sheppard v.Maxwell, 384 U.S. 333 (1966) the US Supreme Court noted that “[t]he prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the ‘evidence’ disseminated in this fashion was clearly inadmissible.” Id. at 360.
Karyn Maughan also knew the following publicly available information from published court judgments. First there were the ‘Spy Tapes’, which featured in the two well-known cases since then Zuma v Democratic Alliance 2018 (1) SA 200 (SCA).” These methods Downer used to brief, coach and groom journalists to write negative stories about Mr. Zuma were alluded to. See, also, Zuma v DA (771/2016); ANDPP V DA (1170/2016) [2017] ZASCA 146 (13 October 2017) where the SCA remarked that the fact that the “SAPS & NIA were listening to the tapes” is troubling and warrants investigation by the relevant authorities. And yet no one in the NPA, or Mr. Downer, has shown any inclination to conduct the said investigation. Instead, Mr. Downer is more interested in discrediting Mr. Zuma for raising legitimate complaints about a “lead prosecutor”(Downer) who appeared to have an unseemly relationship with a journalists Maughan and Sole. He coached and fed information to them. The SCA further expressed itself on the behaviour of law enforcement agencies as follows:
“[63] … It is unsettling that different law enforcement agencies of government appear to be spying upon each other”.
I simply fail to grasp your twisted logic that a journalist who has ensconced themselves in a public controversy involving the prosecution of a former president must be left alone to collude with prosecutors about leaked information and that I must be threatened with lawsuit for calling out such ‘Stratcom strategies’.
Allegations About Kicking the Dog Tweet
I reject with utter contempt your hot air allegations that “On 4 November 2022 you clearly decided to take your unlawful and abusive campaign to another level, when you published a tweet on your Twitter profile, in reference to Ms Maughan, reading as follows: “We must keep on kicking this dog harder, so that her owner who pays her comes out.” Given that your are working for a law firm associated by surname with the former apartheid monster FW De Klerk, I am not surprised that you have stooped so low to create a fictitious case of defamation out of the exchanges I had with Karyn Maughan regarding her despicable attack on Public Protector Mkhwebane. You have embarked on a harassment campaign of your own against me, and I must warn you that you may be putting your license as an attorney at risk.
May I point out to you that while you evidently have no legal leg to stand on to have sent me your poorly argued, and disjointed, so-called legal letter, you none the less proceeded with the letter as nothing else but a propaganda tool and instrument of harassment. This is confirmed by the fact that the letter was already written as a ‘breaking news story’, and extracts thereof published by News24, and tweeted by Ms. Maughan, BEFORE I have even received a copy of the letter. That is nothing else, but abuse! Are you a lawyer, or a political propagandist?
For starters, you should know that a Court of law has dealt with the exact same words regarding kicking a dog until its owner comes out. In Gordhan v Malema and Another (EQJHB 5/2019) [2019] ZAEQC 5; 2020 (1) SA 587 (GJ); [2020] 1 All SA 417 (GJ) (31 October 2019), the Court (per DJP Sutherland) stated the following:
[13] The imagery of the applicant as a “dog” of White monopoly Capital” is the sole allusion to race in the utterances. The utilisation of the metaphor of a person being a “dog” to portray a person as the instrument of an entity or social force to which the “dog” does not truly belong but whose interests the dog in servile deference to such entity or social force promotes is old hat. The label was not invented by the respondent. The label “white monopoly capital” was coined more recently and is a part of the jargonised sloganeering in contemporary South African political discourse. Its meaning is not necessarily stable. It usually is taken to refer to the South African Big Business corporations which dominate economic activity in which White South Africans are disproportionately represented, relative to their proportion of the total population a phenomenon which is inimical to the interest of the masses of the population. What is plain is that it is a disparaging label and to associate a person with this supposedly evil force is to encourage the hearers to repudiate the person so identified with it.
[14] However, it is the applicant’s personal alleged connivance with this allegedly evil social force that is condemned. He, personally, is identified as an appropriate target to “hit” in order to penetrate the defences of the evil social force and expose the movers and shakers within the force. Nothing is said or implied in the utterances which implicates the applicant’s own race or ethnic identity. Read with other passages, it is plain that the utterances sanctify a confrontation between, on the one hand, anything reminiscent of White ascendancy as exemplified in the form of Apartheid or of White Monopoly Capital, with which the applicant is identified, and on the other hand, the people and their struggle for true freedom. As obnoxious as such remarks about the applicant, if untrue, may be, they do not fall within the compass of the prohibited grounds.
[15] The passages that speak to “hitting” the dog and the “attack” on the applicant are plainly metaphorical.
[16] . The allusion to “casualties” and the “loss of life” engendered much controversy. The use of “casualties” on its own might have been understood as metaphorical but for the conjoining of “loss of life”. Plainly the image conjured is of real physical injury. However, read as a whole, this literal meaning is not the meaning a reasonable person would attribute to the utterances. The fair understanding of the passage is that whoever challenges the applicant is at risk of injury owing to the applicant’s “dirty tricks”. It is plain that the allusion to loss of life is a mere example of an extravagant juvenile rant stretching hyperbole to the extreme in the course of a demonstrably demagogic speech. Its function was to proclaim the speaker as brave and steadfast in the face of any foe however mighty and that the space to stand at his right hand is reserved only for the sturdiest of fellows. The dominant impression is that it is puerile self-aggrandisement, not a threat to the applicant or anyone else.
You have, contrary to the high ethical principles expected of any attorney, completely ignored the court judgment and have made the absurd and ridiculous claim that my statements conjured up violence against Ms. Maughan. I have used the word dog in a political and metaphorical sense. You should know the origin of the hit or “kick the dog’ phrase as follows: Hit dog comes from the expression a hit dog will holler, meaning that a very defensive reaction to an accusation can be an admission of guilt. https:// www.dictionary.com/e/politics/hit-dog/. Describing someone “as a hit dog in the context of a hit dog will holler has been evidenced as far back as the 1880s. The Washington Post attributed the proverb to a 19th-century preacher named Samuel Porter Jones. Jones, a lawyer-turned-pastor, frequently used the expression, “throw a stone into a crowd of dogs, and the hit dog will holler.” The moral of the proverb is that people who are offended (hit dog) by an accusation (stone) will speak out in exasperated defence (holler) in a group (crowd of dogs). In doing so, the offended person reveals their own sense of guilt.” Id. Over time the phrase was shortened to just a hit dog, “its sense generalising to the notion that one’s outrage reveals their own guilt in some matter.” Imagine one partner asks the other, “Did you forget to take out the trash last night?” The other may fly off the handle: “Why are you always accusing of me not doing my chores? Why are you always nagging me? I can’t believe you’d think I’d forget.” We might call that person a hit dog.” Id.
A hit dog will holler was catapulted into the public eye during the 2018 Florida gubernatorial election campaign. Democrat Andrew Gillum was attempting to become Florida’s first black Governor, running against a Donald Trump-aligning Republican, Ron DeSantis. When DeSantis was challenged on his associations with racists, he launched into an aggressive and floundering defence of himself. Gillum replied: “As my grandmother used to say: a hit dog will holler.” That is, DeSantis’s immediate defensiveness was a sign of guilt. Id.
In South Africa the phrase “we will beat the dog until the owner comes out” is not of recent vintage. In 2006 former UCT Vice Chancellor Njabulo Ndebele narrated the following:
“It is many months since Jacob Zuma was forced to relinquish the position of deputy President of South Africa. Then he was tried for rape and acquitted… Imagine that you are watching Zizi Kodwa, described in the newspapers as the ’spokesperson of the ANC Youth League’, outside the court where Jacob Zuma was recently on trial. Kodwa was reported to have called for ‘the dogs to be beaten until their owners and handlers emerge’. My name, according to reports, was one of four on a list of these ‘dogs’.[4]
The phrase and metaphor of a dog has been used by political leaders and activists for years as part of political parlance.[5] Nic Boraine quotes a 2010 speech by Julius Malema in which he used the metaphor after his victory at the Eastern Cape provincial conference of the ANC Youth League in August 2010: “We will never surrender to Blade. He has never been a member and has no understanding of … the youth league … Their people have been receiving serious lashings in the youth league conferences. As we said before, we will beat the dog (SACP) until the owner (Nzimande) comes out” Id.
You have arrogated to yourself the right to outlaw and prohibit the use of well-known political metaphors which have been acknowledged by our judiciary simply because you wish to place on a pedestal the criminal accused Maughan who injects herself into numerous political debates will-nilly. You should tell her to go to the SPCA, and not the courts, if she has a complaint about canine abuse!
In this context, you know that the existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by our Constitution. The phrases I used during my rebuttal of Maughan’s false assertions are value-judgments, expressing as they did my opinion about the lies she was perpetrating against the Public Protector and her endorsement of a misogynist abuse of the Public Protector by the Parliamentary Committee.
It is revealing about the inconsistencies and instabilities of Maughan’s state of mind, that in her tweet about the Public Protector she denigrated Advocate Busisiwe Mkhwebane about comparing herself to a victim of domestic violence as a ‘bluff’, and wrote favourably that the Inquiry’s chairperson, “did not buy it”. But yet, Maughan is quick to invoke Gender Based Violence (GBV) when I used in an evidently figurative sense the idiom: “Kick the dog until the master comes out”.
In such circumstances, I should not be expected to prove the truth of my value-judgments and that, moreover, my opinions were not without a factual foundation.
The impugned tweet has its genesis in the attack Ms. Maughan launched against the Public Protector. In Public Protector v Commissioner for the South African Revenue Service and Others (CCT63/20) [2020] ZACC 28; 2021 (5) BCLR 522 (CC); 2022 (1) SA 340 (CC) (15 December 2020) the apex court made the following observations about the unfair treatment of the Public Protector even by the judiciary itself. The Court had come to the realisation that “there appears to be a developing trend of seeking personal costs orders in most if not all matters involving the Public Protector.” It observed that what “made one of those cases stand out was that a personal costs order was granted based on the “usual rule” that costs follow the result, with no consideration whatsoever of special circumstances that justified the order. This is a far cry from the stringent test for the award of personal costs orders.” The Constitutional Court noted that in one case, the High Court – in its conclusions “has carefully selected and used epithets and particular nouns that are suited to awards of personal costs orders, but there is not a scintilla of evidence to support those epithets and particular nouns and, therefore, the conclusions.” Further, the Constitutional Court observed that:
[29] The office of the Public Protector is a constitutional creation. It and other Chapter 9 institutions exist for the purpose of “supporting constitutional democracy”.[24] Its independence and proper, unhindered functioning are at the core of our constitutional democracy.[25] Unwarranted costs orders against the Public Protector in her personal capacity in work-related litigation may have a chilling and deleterious effect on the exercise of her powers.
The Court concluded that:
[43]. Out of the four applications that have landed here, it is only in one that this Court has sanctioned a personal costs order. … courts must be wary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards. Whether inadvertently or otherwise, the High Court judgments in the EFF v Gordhan matter and in the instant matter are instances where the High Court fell into that trap.
What is troubling about the Constitutional Court’s incisive analysis and observation is that in some of the widely publicised and damning judgments against the Public Protector, the High Courts had “carefully selected and used epithets and particular nouns that are suited to awards of personal costs orders.” The scathing language and epithets used against the Public Protector were in turn, given wide media coverage and used as a basis for partisan and political attacks on the Public Protector. According to the Court, this happened even where there “… is not a scintilla of evidence to support those epithets and particular nouns and, therefore, the conclusions.” The unfortunate consequences of this trend of judicial epithets against the Public Protector is that it is the judiciary’s own erroneous but wellpublicised judgments which contributes to the weakening of public confidence in the Office of the Public Protector.
Your client is the main culprit in reporting only adverse comments against the Public Protector and suppressing judgments which exposed the injustice perpetrated against Advocate Mkhwebane by both the judiciary and Parliament. Maughan’s despicable sledgehammer assault on Mkhwebane was designed to further the propaganda war against her. She is indeed part of a “Stratcom” strategy where lies and propaganda are utilised as tools for undermining Advocate Mkhwebane in the court of public opinion. Is it too much to ask even from an unethical journalist that Advocate Mkhwebane’s right to a fair hearing in a Section 194 removal process is not undermined by negative and false media campaigns that ignite public outrage, induces judges or decision-makers to invoke “epithets” and arrive at judgments in which there “… is not a scintilla of evidence to support those epithets and particular nouns and, therefore, the conclusions.”? As lawyers you are taught how to litigate, negotiate, and practice law according to precedent. You are not taught how to deal with media onslaught against persons such as the Public Protector. So your rambling accusations against me can be dismissed as hot air speech. Please do not ever contact me with such poorly reasoned nonsense from the law firm associated with the name of an apartheid mass murdered, FW De Klerk!
“The Accusation that My Tweet Was “to incite physical violence against her. Your ongoing campaign against Ms Maughan constitutes an unlawful infringement of her dignity and reputation, places her at risk of physical harm and amounts to a contravention of the Protection from Harassment Act 17 of 2011.”
For the reasons stated above your accusations are nonsensical in the extreme. You have exposed your own shallow understanding of the full extent of free speech rights and use of “hyperbole” in political debates. As a lawyer, you know that the Constitutional Court has repeatedly acknowledged the importance of the fundamental right of freedom of speech. Thus, it has been stated that freedom of expression “lies at the heart of democracy”. South African National Defence Union v Minister of Defence and others 1999(4) SA 469 (CC) at para 7. Also, in the case of Print Media, the Constitutional Court held that freedom of expression “…promotes and protects the moral agency of individuals. Whether expression lies at the right’s core or margins, be it of renown or notoriety, however essential or inconsequential it may be to democracy, the right cognises an elemental truth that it is human to communicate, and to that fact the law’s support is owed.” Print Media South Africa and another v Minister of Home Affairs and other 2012 (6) SA 443 (CC) at para 53.
Further, in the Islamic Unity case, the Constitutional Court also endorsed the freedom to express offensive, shocking or disturbing speech on the basis of case authority from the European Court of Human Rights:
“South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society… In Handyside v The United Kingdom, the European Court of Human Rights pointed out that this approach to the right to freedom of expression is –
‘applicable not only to “information’ or “ideas” that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb….Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”
Islamic Unity Convention v The Independent Broadcasting Authority and others [2002] ZACC 3; 2002 (4) SA 294 (CC) at para. 28.
You must be mindful of that which was said in both Argus Printing and Publishing Co Ltd v IFP [1992] ZASCA 63; 1992 (3) SA 579 (A) and also in Mangope v Asmal and Another 1997 (4) SA 277 (T).
In Argus supra, the court was concerned with whether or not a political body could sue for defamation. The court commented that “political debate should be unfettered. People should not be restrained in their political utterances by the fear of being subjected to claims for defamation”. “Mere debate on political questions, or expressions of disagreement with an opponent’s political views, would clearly not be actionable. Even personal criticisms of a political opponent are not readily regarded as defamatory”. The court affirmed that which was said in an earlier judgment that “courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters are aware of this.” Part of the rationale for the law’s reluctance to regard political utterances as defamatory stems from the “recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him by other politicians or political commentators”. Accordingly, the Supreme Court of Appeal endorsed the general approach that “wide latitude” should be allowed in public debate on political matters”. Maughan and her lawyers seem completely oblivious of these legal principles and the lawyer is hell-bent on abusing her powers to further harass and censor me based on a false legal theory. Pope Francis has already taken “clerical” notice of journalists as public figures and “cocrophiliacs” who must expect severe tongue-lashing when they foolishly abuse their powers as journalists to attack innocent citizens. I reject the notion that criticism of the journalists (the fourth estate), just like that of any branch of government, can readily be characterised as “insulting” or “offensive”.
In the subsequent Mangope supra decision, the court said that, although even politicians can be defamed, they should not be “overhasty to complain about slatings against them unless it is really serious”. A distinction should be drawn between an attack against the “dignity and reputation of a politician” and “an attack upon his political views, policies and conduct”. In respect of an attack on the latter, the court would be slower to come to the assistance of a politician. The same applies to journalists who prey on the misery of other citizens for a living.
The extant case can be better understood by reference to decisions on the right to free expression in which the right to use “political hyperbole” was recognised. In Watts v United States, 394 U.S. at 706, the defendant, at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. (the President).” He was convicted of violating a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The U.S Supreme Court reversed the conviction on the basis that the defendant had not made a “true ‘threat”, but had indulged in mere “political hyperbole” 394 U.S. at 708.
Likewise, in NAACP v Claiborne Hardware Co., 458 U.S. 886 white merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by black citizens of their businesses, and to enjoin future boycott activity. During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” 458 U.S. at 900, n.29. The Court acknowledged that this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence ….”.Id. Yet, no violence had followed directly from Evers’ speeches, and the Court found that Evers’ “emotionally charged rhetoric … did not transcend the bounds of protected speech … An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.” 458 U.S. at 928. Both the Watts and Clairborne illustrate the fact that the right to free expression protects expressive acts that amount to political hyperbole, even if they contain violent imagery. These expressive acts must be tolerated, unless they constitute a real and imminent threat of, or incitement to, violence. That is a far cry from the views expressed in a Tweet about an unethical journalist who is facing criminal prosecution as described herein.
To assess whether a statement is “rhetorical hyperbole,” any right-thinking lawyer must look to the statement as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. As the court stated in Argus supra, “political debate should be unfettered. People should not be restrained in their political utterances by the fear of being subjected to claims for defamation”. “Mere debate on political questions, or expressions of disagreement with an opponent’s political views, would clearly not be actionable. Even personal criticisms of a political opponent are not readily regarded as defamatory”. You are clearly showing yourself to be woefully out of touch with both the legal principles and political reality of public debates on policy or constitutional matters.
The Argus court affirmed that “in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters are aware of this.” Part of the rationale for the law’s reluctance to regard political utterances as defamatory stems from the “recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him by other politicians or political commentators”.
My speech constitutes “rhetorical hyperbole,” which is “‘extravagant exaggeration [that is] employed for rhetorical effect.'” Backes v. Misko, 486 S.W.3d 7, 26 (Tex. App. 2015) (quoting Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 30 (Tex. App. 1999)). As the United States Supreme Court has held, a published statement that is “pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” cannot constitute a defamatory statement. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990). Nor can it be penalized as “insulting” or “offensive” as the De Klerk lawyers appear to be doing.
The U.S. Supreme Court has employed rhetorical hyperbole to hold that heated and emotional rhetoric receives free-speech protection rather than be deemed to be defamatory. For example, the Supreme Court ruled in Letters Carrier v. Austin 418 U.S. 264 (1974) that labor members did not defame nonunion members when they referred to them as “scabs” in a company newsletter. In Letter Carriers, unionised postal workers had been struggling to organise the remaining non-union letter carriers. To that end, the union published a newsletter as part of an organisational campaign. The newsletter listed the names of those employees who had not joined the union under a heading titled: “List of Scabs. ‘ The newsletter also printed a colourful, derogatory definition, attributed to Jack London, of the term “scab.” Three of the employees whose names were listed in the newsletter brought suit against the union in a Virginia state court. A jury awarded each of the employees $10,000 in compensatory and $45,000 in punitive damages. The U.S Supreme Court reversed, finding the statements to be protected by federal labor law. Specifically, the Court noted the only statement of fact made by the union, that the employees were “scabs,” was both literally and factually true and, therefore, could not support a claim for defamation. The other claims of the employees, based on language within the definition such as “traitor, ‘ were held to be non- actionable opinions. The Court stated, “Such words were obviously used here in a loose, figurative sense to demonstrate the union’s strong disagreement with the view of those workers who oppose unionisation. Expression of such an opinion, even in the most pejorative terms, is protected under federal labor law.”‘ The Court, comparing the statements of the union to the accusation of “blackmail” made in Bresler, noted the “definition of a ‘scab’ is merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join. ‘ Id. at 286.
In Greenbelt Cooperative Publishing Association v. Bresler, the United States Supreme Court examined whether two newspaper articles’ use of the term “blackmail” to describe a real estate developer’s negotiating position was actionable as defamation. 398 U.S. at 8, 90 S. Ct. at 1538. The real estate developer argued that speakers at a public meeting and the newspaper articles charged him with the crime of blackmail, and could be held liable since they knew he had not committed the crime. Id. at 13, 90 S. Ct. at 1541. The Court disagreed, determining that no reader of the speech could have reasonably thought Besler was being charged with the criminal offence of blackmail. Id. at 14, 90 S. Ct. at 1542. The court noted that the term was used during a heated debate, and “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.” Id.
When determining whether a statement can reasonably be understood as a factual assertion it must be viewed “in the context of the surrounding circumstances and within the entire communication.” The proper inquiry “is not the literal wording of the statement but what a reasonable reader or listener would have understood the author to have said.” Therefore we must examine the broader social context the statement was made in, as well as the context of my specific Tweeter comment.
Today, the “most important place[] . . . for the exchange views” is cyberspace, especially social media. Packingham v. North Carolina, 582 U.S. ___, ___, 137 S. Ct. 1730, 1735–37 (2017) (deeming social media the “modern public square”). Social media sites like Facebook and Tweeter give users a low-cost and easy way to voice their views. Id. at ___, 137 S. Ct. at 1735. See also, Greenbelt, 398 U.S. at 13–14, 90 S. Ct. at 1541–42 (noting context of a heated public debate showed statement was rhetorical hyperbole rather than factual); Feld v. Conway, 16 F. Supp. 3d 1, 4 (D. Mass. 2014) (determining that a tweet calling the plaintiff crazy was a protected opinion when viewed in the context of an ongoing heated debate on the internet about the disappearance of the plaintiff’s horse).
I find it quite ridiculous and utterly hypocritical that Ms. Maughan seeks shelter behind the rhetoric of victimhood and “the alarming levels of gender-based violence and femicide in South Africa, not to mention the global escalation in killings of female journalists.” She teemed up with a white male prosecutor to attack President Zuma’s constitutional rights in the most obscene and severe manner. Maughan attacked a female Advocate Mkhwebane and heaped praise on a misogynist Chairperson of a Committee whose conduct prompted Advocate Mkhwebane to complain of the said abuse and compare her quandary to that of a domestic violence victim. From the comfort of her position as a privileged white girl, Maughan has cynically abused a black woman and then wrapped herself in the mantle of a female journalists facing “global escalation in killings”. I must ask you: Has Ms. Maughan no sense of shame?
Response to Demand and Conclusion
You have demanded that I, “immediately retract your inciteful and damaging tweet of the 4th of November 2022 and issue an unconditional apology to Ms Maughan.” I refuse totally to do so, as I have made no ‘inciteful and damaging tweet” you erroneously assert. You “further demand an undertaking that you will cease and desist from further unlawfully harassing, insulting and defaming Ms Maughan, on any platform whatsoever.” I reject that insane demand which seeks to impose a banning order and silence me from social media platforms.
I rejected the similar machinations of the evil apartheid regime, and was given a lengthy prison sentence for my political beliefs. This was at the time when Maughan was probably still in diapers.
To set the record straight: I am totally against any form of Gender Based Violence (GBV), and I have said/declared so on numerous occasions – also on public and social media platforms. Any suggestion (directly or indirectly) that I (will) promote GBV in any manner whatsoever is slanderous, and I demand an apology from both you and your client, who by having sent me that ill-conceived letter, indulged in unethical conduct.
For your information, an unethical journalist who is facing criminal charges for receiving information in an unlawful manner is “libel-proof.” The libel-proof plaintiff doctrine is a concept that insulates a speaker or publisher from liability for statements made about someone who has no good reputation to protect. The hallmark of a defamation claim is reputational harm. If a person has no reputation to protect, then he or she may be considered “libel-proof.”
In conclusion, let me warn Willem De Klerk Attorneys that I am preparing a complaint to the Legal Practice Council (LPC) in anticipation of any amateurish ‘legal’ steps you threatened against me. An abuse of the legal system will cost you very dearly. Your complaint belongs in the SPCA, not the courts!
If in future you want to send me one of your wistful unprofessional musings, may I suggest that you at least try to maintain some semblance of professionalism, and not WhatsApp it to me?
