Richard Young outside the Cape High Court in June 2003. (Trevor Samson, Gallo
Images)
A defamation case brought against the Friends of Jacob Zuma Trust
could have significant legal implications for online news sites if it goes to
trial.
Arms deal bidder-turned-whistle-blower Richard Young was a key state
witness in the successful 2005 fraud and corruption prosecution of President
Jacob Zuma’s former financial adviser, Schabir Shaik.
He is suing the trust for R1-million over posts on its website between 2006 and
2008 that described him, among other things, as “a crook” and a “darling of the
Broederbond”. An August 1 pretrial date has been set in the Western Cape High
Court.
The legal wrangle could set a precedent on the legal liability of website
publishers for anonymous postings.
The trust’s lawyer, Barnabas Xulu, revealed this week that the manager of the
website was Ranjeni Munusamy, controversial former journalist and
ex-spokesperson for Higher Education Minister Blade Nzimande.
Munusamy had offered her services to the website on a voluntary basis, Xulu
said.
Freedom of expression
Xulu said that, as she was not employed by the trust, it was unclear how she
could “bind the trust to the website”. The trust would also defend the matter
based on the principle of freedom of expression *1.
Munusamy confirmed she had been the webmaster of the site, but that since 2008
“it has been closed”.
“The trust has not been in contact me since 2008 and I don’t know anything about
this [defamation suit],” she said.
Young owns the South African-based company CCII Systems (C2I2), which lost a bid
for the provision of combat suites in the corvettes contract that formed part of
the multibillion-rand arms deal.
He alleged that his bid had been fraudulently misrepresented to justify awarding
the contract to the French-owned African Defence Systems, in which Shaik held a
10% stake through Nkobi Holdings. After suing the government for damages, he was
awarded a R15-million settlement.
Defamed
Following the Shaik trial, Young took court action in 2008, alleging that
the Friends of Jacob Zuma Trust, chaired by Black Management Forum founder Don
Mkhwanazi, had posted material on its website that defamed him and his company.
The postings, made under pseudonyms such as “Forward”, “Jewboy” and “Independent
Observer”, declare that:
- Young is linked to the Broederbond and is part of a group aiming to overthrow the ANC government;
- He is a crook who paid for his farm with taxpayers’ money;
- He fabricated his evidence against Shaik;
- His electronics PhD from Wits University was fraudulently obtained, and he had falsely asserted that Schabir’s brother, Chippy Shaik, had obtained a PhD in mechanical engineering from the University of KwaZulu-Natal by plagiarising research. The university stripped Chippy of his degree in 2008; and
- He admitted to supplying the South African National Defence Force with faulty software for anti-aircraft weaponry *1, which malfunctioned and killed nine soldiers in October 2007 in an incident known as the “Lohatla tragedy”. An official defence report pointed to a mechanical rather than a software failure.
This week, Young said that “the cost of the litigation is
minor compared with the reputation of my company, which does business in the
United States, among other countries. The US is generally suspicious of people
operating in the Third World, so it is imperative that I defend my and my
company’s credibility.”
He rejected all the allegations against him, saying that freedom of expression
did not protect people against “diabolical, gratuitous lying”.
In 2003, the Cape High Court awarded Young damages of R125000 after he sued
Yunis Shaik for defamation. Yunis is the brother of Schabir and Chippy, the
latter having been the chief of armaments procurement for the defence department
during the arms deal.
Sleaze and slander
On e.tv, Yunis Shaik called Young a liar who had embarked on a “campaign of
sleaze and slander” to discredit the Shaik family. He apologised in court, but
Judge Hennie Nel found that the “freedom of
expression does not include the right to falsely attack the integrity of a
fellow citizen for selfish reasons or for reasons which having nothing to do
with ‘public benefit’” *3.
Media lawyer Greg Palmer said that, if the court found in Young’s favour,
it could have wide-ranging implications for news websites.
Palmer said there were no legal precedents on the issue in South Africa.
However, if a publisher of online content was found liable for anonymous
postings on its website, it could undermine the
neutrality of the internet and have a negative impact on freedom of expression
*2.
He said a similar matter, between Independent Online and Technology
Corporation Management, was likely to be heard in the South Gauteng High Court
in November. This could establish the “innocent dissemination defence”, which
“would allow website publishers to distance themselves from comments made
anonymously”.
The M&G Centre for Investigative Journalism (amaBhungane) produced this story.
All views are ours. See
www.amabhungane.co.za for our stories, activities and funding sources.
More Coverage
With acknowledgements to Jonathan Erasmus and Mail and Guardian.
*1
The expressions have to be true or even just have a semblance of truth or a
possibility of being true.
If they are patent, gratuitous and made for a mala fides reason they simply fail
the freedom of expression test.
So this one fails the truth test, the public interest test and freedom of
expression test.
That is in legal terms a slam dunk.
*2
- I admitted nothing (because there is nothing to admit);
- I never supplied any software for the upgraded 35 mm Oerlikon AA cannon;
- the fault that caused the deaths of the soldiers was a quintuple one, firstly a stoppage with a round in the breech, secondly human error in the failure to clear the stoppage and the round exploding in the breech and causing the gun to fall over, thirdly a run-away gun firing caused by the action of the exploding round firing on automatic and fourthly the gun barrel slewing to the side caused by the failure of the mechanical endstop and thereby killing the crews of neighbouring guns.
Software has nothing to do
with it and certainly not mine, 50% of the reason being that my software was
simply not there and secondly my software is fully safe and fully qualified
wherever it may be.
*3
The Internet is there for the greater good and was actually gifted for free by
the US DoD DARPA (Defense Advanced Research Projects Agency) to humankind.
It is not to cause gratuitous and anonymous attacks and fellow humans.
The difference is that all bone fide websites are set up and maintained to give
equal and balanced content and topics whereas the FOJZ was setup with only one
singular purpose - to get its beneficiary and its sponsors benefactor off the
criminal hook and damn anyone that came in their way.
Clearly as whistleblower-in-chief (my own promotion) I was a primary target for
these anonymous lowlives.
But the persons who take the responsibility are the directors of the judicial
person, i.e. the trustees in this case.
*4
This is the crux of this biscuit.
It is now legal precedent and cannot be overturned in the Cape of Good Hope
Division without going to the Supreme Court of Appeal and winning.
And then to the Constitutional Court and winning.
But the one post I liked the least that this whistleblower would find himself in
prison where he would find many whistle to blow.
Now that is a crime against mankind.
Let the sports begin.