Case Summary and Outcome

The Democratic Alliance (DA) sent an SMS to 1.5 million voters regarding President Jacob Zuma and the Nkandla Report ahead of the 2014 elections. The African National Congress (ANC) argued that the publication was prohibited under the Electoral Act because its purpose was to influence the outcome of the elections. The Constitutional Court of South Africa held that the publication was a valid opinion and expression and not prohibited by the Electoral Act.

Facts

The DA is a registered political party and is the official opposition party in Parliament. The DA published a statement, by way of a short message service (SMS), to more than 1.5 million potential voters in Gauteng concerning President Jacob Zuma before the elections in May 2014. The SMS stated: “The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7 May to beat corruption. Together for change.” (para. 13) The message was referring to the Public Protector’s report, published the day prior, concerning security upgrades made to President Zuma’s private residence.

The ANC is also a registered political party and has been the ruling party in South Africa since the 1994 elections. The ANC filed an application with the High Court, requesting an order that the DA send a new message withdrawing the previous statement and clarifying it as false. According to the ANC, the publication was false and was made with the intention of influencing the conduct or outcome of the elections, contrary to Section 89(2)(c) of the Electoral Act. The ANC also argued that, in accordance with Item 9 of the Electoral Code of Conduct, the DA was prohibited from publishing false or defamatory allegations in the context of a political election process.

The DA conceded that the SMS was intended to influence the outcome of the elections. However, it submitted that the publication of the SMS constituted fair comment or an opinion that could be honestly and genuinely held by any fair person, that the SMS was not false, and that the publication of the statement was not contrary to the Electoral Act and the Electoral Code of Conduct. The ANC sought urgent relief in the High Court, but was denied. It then prevailed on appeal to the Electoral Court, which the DA then appealed here to the Constitutional Court.

Decision Overview

Justices Cameron, Froneman, and Khampepe delivered a joint judgment, with Moseneke DCJ and Nkabinde J concurring. They concluded that the SMS was not a statement of fact, but “an interpretation of the content of the Report,” and thus did not fall within the prohibitions of Section 89(2)(c) of the Electoral Act and Item 9(1)(b) of the Electoral Code of Conduct (para. 146). The basis of their judgment was centered in the importance of freedom of expression as protected by the Constitution and how it should be interpreted in the electoral framework.

They recognized that, even though Section 89(2)(c) places restrictions on freedom of expression during electoral processes, prohibiting expression altogether would have negative consequences. Moreover, they stated that freedom of expression during elections enhances, not inhibits, the right to free and fair elections. They determined that what Section 89(2)(c) of the Electoral Act and Item 9(1)(b) prohibits is a false statement of fact and not the expression of comments and ideas. Accordingly, the SMS sent by the DA was not the kind of publication that is prohibited by Section 89(2)(c) of the Electoral Act and Item 9(1)(b) of the Electoral Code of Conduct. The justices further stated that the SMS was offered to those who received it as an interpretation and that it had not claimed to be the authoritative source.

Justice Zondo, with Jafta J and Leeuw AJ concurring, found that the publication of the SMS would have been understood by the ordinary reader as a statement of fact and not as a comment.  Zondo established that the publication of false statements with the intention of influencing the outcome of elections infringes the right to free and fair elections. According to Zondo, this prohibition, rooted in Section 89(2)(c), serves a good purpose in democracy and disables false statement and allegations that could inhibit the right to free and fair elections. In conclusion, Zondo determined that an ordinary reader would have believed the SMS as being a statement of fact and not a comment or an opinion.

Finally, Justice Van Der Westhuizen, with Madlanga J concurring, delivered a separate opinion to the main judgment. They contended that the SMS was neither a comment nor a statement of fact. In their view, the SMS fell “somewhere on a continuum” (para. 192). They determined that under the Section 89(2)(c) of the Electoral Act, what should be important is if the expression poses a real danger of misleading voters and inhibits the right to free and fair elections. They concluded that in this case, the publication of the SMS did not pose a threat to the exercise of the right to free and fair elections.