Democratic Alliance v African National Congress and Another

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van Der Westhuizen J and Zondo J
• Judgment Date: 19 January 2015
• Citation: 2015 (2) SA 232 (CC)
• Docket Number: CCT 76/14 [2015] ZACC 1
• Hearing Date: 11 September 2014
• Counsel: I Jamie SC (with D Borgström) for the appellant. G Malindi SC (with S Ebrahim, Y Salojee and E Webber for the respondent.
• Court: Constitutional Court

Zondo J (Jafta J and Leeuw AJ concurring): A

Introduction

[1] This case concerns a statement published by the Democratic Alliance (applicant) on 20 March 2014 by way of a bulk short message service (SMS) to more than 1,5 million potential voters in Gauteng B concerning President Jacob Zuma, President of the African National Congress (first respondent) and of the country. The applicant sent the SMS with the intention of persuading the recipients thereof to vote for itself and not to vote for the first respondent, its main political rival. President Zuma was the first respondent's presidential candidate for the 7 May 2014 elections. The elections were for members of Parliament and provincial legislatures. C

[2] The first respondent took the view that the applicant's statement about its President was false and was published with the intention of influencing the outcome of the election. It also contended that, for that D reason, the SMS constituted a breach of s 89(2)(c) of the Electoral Act [1] or item 9(1)(b) of the Electoral Code of Conduct issued under the Electoral Act. It, therefore, made an application to the South Gauteng Division of the High Court (high court) for an interdict and other relief against the applicant on the basis that the applicant was not entitled to publish the SMS. E

[3] The applicant contended that 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 did not constitute a breach of s 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code of Conduct. F

[4] This case raises the question of the relationship or intersection between, on the one hand, the applicant's right to freedom of expression [2] which includes the right to impart information or ideas, as well as the constitutional right to campaign for a political party or cause, and, on the other, the right to free and fair elections [3] and every adult citizen's G

Zondo J (Jafta J and Leeuw AJ concurring)

A right to vote. [4] In this regard it must be emphasised that this court has said that the right to vote entrenched in s 19(3) of our Constitution is a right to vote in free and fair elections. [5] It has also said that the right to vote 'is indispensable to, and empty without, the right to free and fair elections'. [6]

B [5] The publication of false information by a political party or a candidate for election concerning a rival political party or a rival candidate in order to gain votes or in order for certain voters not to vote for a certain party is anathema to the notion of free and fair elections and may violate the citizens' right to free and fair elections. A statutory C prohibition of the publication of a false statement during election campaigns is a limitation of the right to freedom of expression and the right to campaign. However, at the same time such a prohibition enhances the right to free and fair elections. All of these rights entrenched in our Bill of Rights will need to be borne in mind in interpreting s 89(2)(c) of the Electoral Act. However, before I deal with D the question whether the applicant was entitled to publish the SMS in issue, it is necessary to set out the background to the dispute.

Background [7]

[6] The applicant is a registered political party. It is the official opposition E party in Parliament. The first respondent is also a registered political party. It is the ruling party in South Africa and has been the ruling party since the historic elections of 1994.

[7] President Zuma became president of the first respondent in December 2007. Less than two years later, in May 2009, he became President F of the country.

[8] In May 2009 officials of the Department of Public Works (DPW) and representatives of the South African Police Service (SAPS) visited President Zuma's private residence in Nkandla, KwaZulu-Natal, to determine G whether the residence had sufficient security measures to ensure

Zondo J (Jafta J and Leeuw AJ concurring)

the safety of the President and his family. They found that the residence A did not have sufficient security measures.

[9] In about 2009 President Zuma made arrangements for the design and, ultimately, the building of three additional houses in the Nkandla residence. To this end he appointed Mr Makhanya, an architect. B

[10] In August 2009 the DPW secured the approval of an amount of R27 893 067 for the installation of security measures in the President's private residence. By February 2010 the costs were estimated to have escalated to about R80 836 249. By July 2010 they were said to have gone up to R130 604 267,02.

[11] In about December 2011 the Public Protector received complaints C about the escalating costs that were being incurred in connection with the installation of alleged security measures in President Zuma's private residence. The complainants included the applicant and some members of the public. The complainants requested the Public Protector to investigate the costs. The Public Protector's investigation took two years. D

[12] On 18 February 2014 President Zuma declared 7 May 2014 as a public holiday and the day on which national and provincial elections would be held. In due course the applicant, the first respondent and other political parties that were registered to contest the elections signed the Electoral Code of Conduct issued under the Electoral Act and committed themselves to observing its provisions. E

[13] On 19 March 2014 the Public Protector released the report of her investigation. The report is normally referred to as the Nkandla Report (Nkandla Report or Report). On 20 March 2014 the applicant sent a message to 1 593 682 cellphones of potential voters in Gauteng by way of an SMS. The message read: F

'The Nkandla report shows how Zuma stole your money to build his R246 m home. Vote DA on 7 May to beat corruption. Together for change.'

The reference in the message to 'Zuma' is a reference to President Zuma. G During this time the applicant and the first respondent were involved in serious election campaigns throughout the country. It is common cause that, in sending the SMS to the more than 1,5 million potential voters, the applicant intended to influence the outcome of the election that was to be held on 7 May 2014.

In the high court H

[14] The first respondent took the view that in publishing the SMS the applicant had acted in breach of s 89(2)(c) of the Electoral Act and item 9(1)(b) of the Electoral Code of Conduct. Section 89(2)(c) of the Electoral Act precludes any registered political party or candidate from I publishing any 'false information' with the intention of influencing the conduct or outcome of an election. The first respondent, therefore, brought an urgent application in the High Court for an interdict restraining the applicant from further disseminating or distributing the SMS and for an order compelling the applicant to send another SMS to the same recipients with an apology in certain specific terms. J

Zondo J (Jafta J and Leeuw AJ concurring)

A [15] The first respondent contended that the SMS meant that the Nkandla Report had found that President Zuma had stolen R246 million to build his home. The first respondent said that the Nkandla Report had not made any such finding and, therefore, the SMS was false. According to the first respondent, this meant that the applicant had published false B information with the intention of influencing the outcome of the election as contemplated in s 89(2)(c) of the Electoral Act. It contended that, for that reason, the publication of the SMS was in breach of this statutory provision and the Electoral Code of Conduct. The applicant, continued the contention, was not entitled to publish the SMS.

C [16] The applicant opposed the first respondent's application. It pointed out that the SMS did not mean that the Nkandla Report had found that President Zuma had stolen R246 million to build his home. It disputed that the SMS was false. It contended that the SMS meant that the Nkandla Report showed how President Zuma had stolen 'your money' to build his R246 million home. It contended in its answering affidavit that, 'read D in light of the Nkandla Report, the SMS express[ed] an opinion that a fair person might honestly and genuinely hold in light of the facts in the Report and the Report must be understood and read in its totality'.

[17] A critical issue that emerged from the affidavits was whether the SMS E constituted an expression of comment/opinion or constituted a statement of fact. The applicant maintained that the SMS constituted fair comment or was an expression of opinion while the first respondent maintained that it was a statement of fact.

[18] The matter came before Hellens AJ. He referred, among others, to F the right to freedom of expression in s 16 of the Constitution, its importance, particularly during election campaigns and the constitutional right to political activity provided for in s 19 of the Constitution. He concluded that the SMS was an expression of opinion. The court held that an expression of opinion was not prohibited by s 89(2)(c) of the Electoral Act and item 9(1)(b) of the Electoral Code of Conduct. In G considering the matter the high court appears not to have considered the distinction between a statement of opinion and a statement of fact. It held that the applicant had been entitled to publish the SMS. It dismissed the first respondent's application. It subsequently granted the first respondent leave to appeal to the Electoral Court.

In the Electoral Court H

[19] The first respondent appealed to the Electoral Court [8] against the judgment and order of the High Court. On the merits, the parties' contentions before the...