African National Congress v Democratic Alliance and Another

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Moshidi J and Wepener J
• Judgment Date: 06 May 2014
• Citation: 2014 (5) SA 44 (EC)
• Docket Number: 004/14 EC
• Hearing Date: 25 April 2014
• Counsel: PG Malindi SC for the appellant. I Jamie SC for the respondents.
• Court: Electoral Court

Mthiyane DP (Moshidi J, Wepener J and members Mthembu and G Pather, concurring):

[1] This is an appeal against an order of the Johannesburg High Court (Hellens AJ) in which an application by the African National Congress for a declarator and an interdict against the Democratic Alliance was H dismissed. The African National Congress (the ANC) is the appellant and the Democratic Alliance (the DA) is the first respondent. The Electoral Commission (the Commission) is the second respondent and has been cited merely for its interest in the outcome of the proceedings. The appeal is before this court with leave of the high court. The ANC and the DA have accepted this court's jurisdiction to hear and determine the I appeal.

[2] The dispute between the parties in this case has its origin in a short message service (SMS) sent by the DA on 20 March 2014, to over 1,5 million potential voters in the Gauteng area. The text of the message reads as follows: J

Mthiyane DP (Moshidi J, Wepener J and Members Mthembu and Pather, concurring)

A '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.'

[3] The mention of the 'Nkandla report' refers to the recent report by the Public Protector on the upgrades to President Zuma's Nkandla residence, B entitled 'Secure in Comfort'. It is common cause that the Public Protector did not find that President Zuma stole the R246 million. She found that President Zuma and certain members of his family improperly benefited from public expenditure on his private residence in Nkandla, in that a considerable portion of the R246 million security C upgrades was spent on non-security amenities, including a swimming pool, visitors' centre and a cattle kraal. The SMS was sent by the DA as part of its election campaign and was admittedly designed to influence voters to vote for the DA.

[4] The ANC contended that by dispatching the SMS, the DA disseminated D false information regarding President Zuma and thereby breached both the Electoral Act [1] and the Electoral Code. [2]

[5] Consequently, on 27 March 2014 the ANC launched an application in the high court seeking, inter alia, an order:

(a)

Declaring that the DA SMS amounts to a publication of false E information in contravention of s 89(2)(c) of the Act and of item 9(1)(b)(ii) of sch 2 to the Act, and the Electoral Code (the Code) read with s 94 of the Act. [3]

(b)

Interdicting and restraining the DA from further disseminating or distributing the SMS.

(c)

F Directing the DA to retract forthwith the SMS by dispatching at its own costs, a new text message via the mobile-phone bulk short- message service to all earlier recipients of the SMS, stating that:

'The Democratic Alliance (DA) unreservedly retracts the SMS message dispatched to you earlier which falsely stated that President G Zuma stole R246m to build his home. The said SMS constituted a violation of the Electoral Code and the Act. The DA apologises to the African National Congress (ANC) for the inconvenience caused and recommits itself to the letter and spirit of the Electoral Act and the Electoral Code or containing such formulation as the court may deem fit in the circumstances.'

H [6] The publication of false statements is prohibited by the provisions of the Act and the Code. Section 89(2) of the Act provides:

'No person may publish any false information with the intention of —

(a)

disrupting or preventing an election;

Mthiyane DP (Moshidi J, Wepener J and Members Mthembu and Pather, concurring)

(b)

creating hostility or fear in order to influence the conduct or A outcome of an election; or

(c)

influencing the conduct or outcome of an election.' [Emphasis added.]

[7] Section 9(1)(b) of the Code provides:

'Prohibited conduct B

(1) No registered party or candidate may

. . .

(b)

publish false or defamatory allegations in connection with an election in respect of

(i)

a party, its candidates, representatives or members; or

(ii)

a candidate or that candidate's representatives; . . . .' C

[8] Section 94 of the Act provides:

'No person or registered party bound by the Code may contravene or fail to comply with a provision of that Code.'

[9] The Act sets out how the above provisions...