Trevor Manuel has been parrying jabs from Terry Crawford-Browne for more than six years, and dishing out a few of his own, but now he wants the Cape High Court to play referee.
“If you want to box, box above the belt, and all we say is, we want Queensbury rules,” Manuel’s advocate, Brian Pincus, told Judge André le Grange, asking for an urgent interdict to stop Crawford-Browne from calling his client a criminal.
Le Grange took a week and a half to decide but eventually agreed, citing Crawford-Browne’s failure to provide evidence. That was a tactical decision by his legal team which won’t be repeated when Manuel applies to make the interdict permanent.
The fight has been escalating since 2001, when Crawford-Browne began to focus his activism on the loan agreements that underpin the financing of the arms deal, saying Manuel had signed off on the loans irrationally and in contravention of the Public Finance Management Act.
Crawford-Browne lost a court bid to have the loans set aside, on the basis that Manuel had simply been implementing a prior decision of Cabinet.
And when in 2004 the state won a costs order against him for R937 000, and Manuel told journalists he was happy to get “the gorilla off my back”, it was clear the fight had become very personal.
It seems what really turned the atmosphere poisonous was a chance encounter between the two men at the World Summit on Sustainable Development in 2002. Crawford-Browne had just obtained copies of the loan agreements and felt they showed how Manuel had “ceded control of South Africa’s economic policies to European banks and governments and the IMF [International Monetary Fund]”.
On Crawford-Browne’s account, Manuel opened the conversation with an olive branch: “We should be talking instead of fighting in the media.”
Crawford-Browne’s response, however, scuppered any chances of rapprochement. “You know you should never have signed those loan agreements. I have copies of the agreements and they prove that you prostituted yourself in signing them. Let’s resolve the problem,” is how he recalls the exchange in his book Eye on the Money.
Manuel was furious, and got more so as the two men battled over payment of that costs order, with a 2005 sequestration bid against the campaigner failing because he had no assets to speak of, but not before he filed an affidavit replete with allegations of criminality against Manuel that were later struck from the court record.
Crawford-Browne’s attack on the loans draws heavily on the lessons he learned in the 1980s in campaigning for the financial sanctions that crippled the apartheid banking system.
Manuel’s signature on those loans represents, he believes, the most effective point of leverage against the deal. The fact that Manuel was a reluctant participant in the arms procurement process, and that he has built his career around clean government and fiscal responsibility only sharpens the contradiction for Crawford-Browne.
But for Manuel and his staff, those considerations make the attacks grossly unfair. Not only has he created a tough regime for managers of public money, he has dramatically reduced South Africa’s debt, none of which is to the IMF.
“It is a direct attack on the heart of his legacy,” says one of Manuel’s advisers. Others speak of a “deep dislike” arising from what Manuel sees as “baseless” criticism.
Crucially, they suggest, Manuel feels his efforts to improve governance within the ANC and the state can only succeed if he himself is seen to be irreproachable, and he fears that allegations of corruption undercut that programme.
At issue in Manuel’s application was not Crawford-Browne’s long-standing criticism, but more recent comments on his website and an article in the Argus suggesting Manuel should be charged with corruption, money laundering and other crimes along with Jacob Zuma.
“Although [Crawford-Browne’s] criticism has been dogged and at times clothed in insulting language, I am of the opinion that he has, at least to some extent, acted within his legal rights in voicing criticism against government … I am not seeking to stop [him] from being critical, even harshly critical, of my performance,” Manuel said in his founding affidavit.
Ordinarily Manuel might have been told his remedy was not to seek an interdict, but to sue for defamation.
Pincus argued that as Crawford-Browne had no assets to speak of, and could not pay damages, that option was not open.
If that were the case, replied Peter Hathorn, for Crawford-Browne, it would mean different laws for the rich and the poor. The poor would be subject to gags, the rich could publish and wait to be damned afterward. In any event, he argued, citing some recent precedent, Manuel could sue for an apology instead of cash.
This debate touches on an area of our law that is just beginning to develop, but that may be critical to creating a free speech dispensation that is truly in accord with the Constitution and the Bill of Rights.
Manuel’s team argues that it is not possible to sue for an apology, but several constitutional court judges think it should be. As Yvonne Mokgoro wrote in a 2006 judgement: “It should be a goal of our law to emphasise, in cases of compensation for defamation, the re-establishment of harmony in the relationship between the parties, rather than to enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties apart and even cause the defendant financial ruin.
“The primary purpose of a compensatory measure, after all, is to restore the dignity of a plaintiff who has suffered the damage and not to punish a defendant.”
At present however, there seems to be no possibility of such a discussion, but one might well ask just how much damage has been done.
Crawford-Browne has done crucial work in bringing the sleaze at the centre of the arms deal to wider attention, but his attacks on Manuel, far from causing “incalculable harm”, have barely affected public opinion of the man widely seen as the most credible minister in the Cabinet. It is Manuel, in the end, who has inflated Crawford-Browne into the “gorilla on [his] back”.
The court last week heard no real argument on the merits of the case, but if and when this application eventually goes to trial, Crawford-Browne will only too happily play the 800-pounder.
The pity of it is, each man could far more usefully spend his pugilistic energy on a more deserving opponent, if he could just see through the red mist.