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Former president Jacob Zuma and his supporters believed they could silence me with a meritless private prosecution and vicious online harassment, Karyn Maughan writes, but they have unwittingly strengthened the very media freedom they sought to destroy.
A thing, a bitch, a lying bitch, a white bitch, a witch, a racist, a pig, an alcoholic, a criminal, a hypocrite, a propaganda journalist, a racist, a servant of white privilege, a hack and an askari.
These were some of the things I was called after former president Jacob Zuma launched his now invalidated private prosecution against me and state advocate Billy Downer in October last year, unleashing a torrent of increasingly vicious social media abuse against both of us.
Those threats were often laden with references to sexual violence. I was going to be repeatedly raped when I was jailed, I was told by one anonymous Twitter user. Close family members deleted their social media profiles. I was, at one point, too scared to stay at home.
Out of deep concern for my safety, News24 hired additional security to ensure that I was protected from potential attack when Downer and I appeared in court.
The site of 'trial'
The courtroom I had once reported from, quietly taking notes and listening to arguments, became the site of a "trial” that the full Bench of the KwaZulu-Natal High Court in Pietermaritzburg has now made clear, neither myself nor Downer should have ever been subjected to.
On Wednesday, the High Court found that the private prosecution launched against Downer and me by Zuma was an unsustainable "abuse of process" that was designed to stop both of us from doing our jobs: holding the former president accountable for his conduct in the courtroom and in the public domain.
The only inference that could be drawn from Zuma's insistence on prosecuting me for reporting on public court documents, and the social media attacks that I continue to face, the High Court said, was that this was "done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist".
"It is done for an improper motive not with the intent of addressing any wrongdoing on her part," the court added, before finding that the private prosecution launched against me by Zuma constituted a violation of the constitutional right to freedom of the press.
Crucially, the High Court makes it clear that there was no factual or legal foundation for what it describes as the "unfounded and baseless" charges that Zuma sought to pursue against Downer and me.
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That private prosecution was centred on Zuma's claims that, because Downer had allowed publicly available court papers to be shared with me, we should both face 15 years in jail for allegedly violating the National Prosecuting Authority Act.
The full Bench not only found that Zuma had failed to meet the most basic legal requirements needed to launch a private prosecution against Downer and myself, but it also reiterated that the accusations that he had levelled against us were meritless.
It also noted that Zuma's most vociferous attacks against me were based on what he perceived to be my criticism of his so-called "Stalingrad" litigation campaign, which had seen him legally challenging multiple aspects of the case against him – without actually facing the evidence that the state intends to lead – for approximately 229 months (19 years).
Stalingrad
While Zuma insisted his multiple challenges to the arms deal corruption case against him were aimed at protecting him from the alleged violation of his rights, the High Court pointed out that "none of the courts, including the Constitutional Court which have dealt with these applications, have made any findings that [Zuma’s] rights were violated in any way".
"We agree that against this background the application by Downer and Maughan is an attempt, specifically by Downer, to prevent further abuse of the process of court and to ensure that the criminal trial proceeds. The application is directed at ensuring that there is an end to the abuse of an unlawful private prosecution and an end hopefully to the 'Stalingrad' strategy," it added.
Zuma is clearly not going to accept that finding, with his foundation having already announced that he will seek to appeal the High Court's ruling in its entirety, potentially causing even further delays in this already much-delayed case.
While it was Zuma's late advocate Kemp J Kemp SC who confirmed his Stalingrad strategy of litigating against the state in all possible contexts, he has expressed his displeasure at me – as the only reporter who has continued to cover the trial from its inception – for allegedly advancing "the State's misconceived view that I have employed delaying tactics to avoid my criminal trial".
"There is ample evidence to support the conclusion that the applicant [Maughan] promoted the idea that my legal challenges to the constitutionality of my prosecution did not constitute genuine legal challenges but delaying tactics designed to evade justice," he said.
As the High Court has now found, these responses – which were part of Zuma's argument that Downer and I should not be allowed to use the civil courts to challenge what we showed to be an abusive private prosecution – provided powerful evidence of Zuma's "personal animosity" towards me.
And, while Zuma and his supporters continue to claim that Downer had "leaked" his confidential medical information to me, the High Court – in a ruling that accorded with Judge Piet Koen's dismissal of Zuma's earlier "special plea" efforts to force Downer's removal – has powerfully dispelled those allegations.
Judges Gregory Kruger, Jacqui Henriques and Mokgere Masipa confirmed Koen's findings that:
- the disputed doctor's letter that Zuma has described as being a confidential medical record "was a public document and was not intended to be confidential nor was it in fact confidential";
- the letter "did not contain any confidential particulars" about Zuma's medical condition and was "vague";
- it was “filed by Mr Zuma's attorney as an annexure to Mr Zuma's own postponement application"; and
- Zuma's attorney "did not seek any order that the affidavit or the letter be sealed or kept confidential".
As the full Bench has now stated: "It is clear that the documents already formed part of the court papers at the time it was published by Maughan. She requested and obtained them from [NPA advocate Andrew] Breitenbach not Downer and did so in the public interest. In any event, by the time she published them, they were public documents."
READ | FIRST TAKE: Serial loser - Court defends rule of law, media freedom as Downer, Maughan beat Zuma
These findings are unlikely to have any real impact on Zuma or his supporters, who have attacked the High Court for finding that his private prosecution against myself and Downer was an abuse of process. They have also continued to attack me – with Zuma's daughter Duduzile slamming the ruling that vindicated my constitutional right to media freedom as a "travesty of justice".
Duduzile Zuma has been particularly vocal in her attacks on me, previously posting a photoshopped image of me in a prison uniform (reportedly created by David Skosana, the husband of misconduct and incompetence accused Public Protector Busisiwe Mkhwebane) and calling me a "criminal" and "sboshwa" (prisoner).
While Zuma claimed he had no control over the social media abuse that I experienced, the High Court has now found that I had "been harassed and prohibited from proper reporting" and was working "with a cloud hanging over [my] head".
"In addition, some of these comments may incite physical harm," they added.
Damaged
I would love to write that, despite the worst intentions of those who have harassed and threatened me, I remain unscathed. But that would not be true.
I have been damaged by this.
It is hard to write these words down, because – when I say them – they feel like an admission of failure. That, by me conceding that the last nine months have made me a smaller and more battered and anxious version of myself, I will be admitting that those who tried to silence me have won.
Except that they did not.
Not only has the High Court's ruling eviscerated Zuma's claims that the private prosecution he pursued against me and Downer was legitimate, it has also provided powerful protection for reporters targeted in so-called SLAPP (strategic litigation against public participation) cases.
In trying to make an example of me and seeking to cultivate a climate of fear and intimidation around court reporting, Zuma and his supporters have unwittingly bolstered media freedom. Through their attacks and harassment, they sowed the seeds for a ruling that would ensure no other journalist would be forced to endure a meritless private prosecution.
And I know, unequivocally, that this was worth fighting for.
- Karyn Maughan is a senior legal journalist at News24.Want to discuss hotly debated topics with someone from across the world? Sign up for our global dialogue programme and get matched for a conversation
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