Democratic Alliance v African National Congress and Another

• Jurisdiction: South Africa
• Citation: 2015 (2) SA 232 (CC)

Democratic Alliance v African National Congress and Another
2015 (2) SA 232 (CC)

2015 (2) SA p232

Citation	2015 (2) SA 232 (CC)
Case No	CCT 76/14; [2015] ZACC 1
Court	Constitutional Court
Judge	Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van Der Westhuizen J and Zondo J
Heard	September 11, 2014
Judgment	January 19, 2015
Counsel	I Jamie SC (with D Borgström) for the appellant.; G Malindi SC (with S Ebrahim, Y Salojee and E Webber for the respondent.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Freedom of expression — Limitations — Prohibition against publishing false information or making false allegations C during election — To be interpreted restrictively — Freedom of expression enhancing, not diminishing, right to free and fair elections — Semble: Prohibition aimed at false statements relating to practical operation of election, not at those disseminated to influence voters' views about opposing parties — Electoral Act 73 of 1998, s 89(2)(c) and item 9(1)(b)(ii) of sch 2.

D Election law — Electoral irregularities — Complaints — Publishing false information or making false allegations during election — Meaning of 'false information' and 'false allegations' in Electoral Act 73 of 1998, s 89(2)(c) and item 9(1)(b)(ii) of sch 2 — Including only false factual statements, not commentary — Whether impugned statement constituting factual statement or commentary.

E Election law — Electoral disputes — Courts — Supreme Court of Appeal — Jurisdiction — Appeals from Electoral Court — SCA having same jurisdiction as Constitutional Court — Competent to hear appeal where electoral disputes, or complaints about alleged infringements of electoral code of conduct, F raising constitutional issues — Electoral Act 73 of 1998, s 96(1) read with Constitution, s 168(3).

Headnote : Kopnota

Section 89(2)(c) of the Electoral Act 73 of 1998 (the Act) provides that '(n)o person may publish any false information with the intention of . . . influencing the conduct or outcome of an election'. Similarly, G item 9(1)(b)(ii) of the Electoral Code of Conduct in sch 2 to the Act (the Code), which parties undertake to comply with during elections, prohibits making 'false or defamatory allegations in connection with an election in respect of . . . a candidate or that candidate's representatives'.

The issue in this case — an application for leave to appeal and an appeal against H an Electoral Court decision — was whether these provisions applied to a text message (the SMS) that the Democratic Alliance (the DA) had sent out some seven weeks before the 2014 general election. The SMS had been sent out in bulk to nearly 1,6 million recipients one day after the release of the Public Protector's Report on public spending towards a security upgrade at President Zuma's homestead (the report), and advised its recipients that it I 'shows how Zuma stole your money to build his R246m home'. The African National Congress (the ANC) objected and sought urgent relief in the high court to restrain its dissemination and to compel its retraction on the basis that the Report made no such finding and, therefore, the SMS amounted to publishing 'false information' and the making of 'false allegations' as contemplated in the said provisions. The DA countered that the SMS did not make a factual statement about the report's finding but J expressed its opinion of what the report showed, and that was an opinion

2015 (2) SA p233

that a fair person might honestly and genuinely hold in light of the facts in A the Report read in its totality. The high court agreed with the DA and dismissed the application, finding that the SMS expressed a 'fair comment' as developed in the case law on defamation. The ANC's complaint prevailed in their appeal to the electoral court, that court finding that the SMS fell short of the qualifying requirements for fair comment, and constituted a false statement of fact as contemplated in the provisions. This case concerns B the DA's application for leave to appeal and their appeal to the Constitutional Court.

Leave to appeal

Held: The provisions of s 96(1) of the Electoral Act 73 of 1998 — that the Electoral Court had 'final jurisdiction in respect of all electoral disputes' C and that 'no decision or order [was] subject to appeal or review' — did not oust the appellate jurisdiction of the Constitutional Court against a decision concerning an electoral dispute raising constitutional matters. By virtue of the operation of s 168(3) of the Constitution, s 96(1) had to be interpreted in the same way in appeals from the Electoral Court to the Supreme D Court of Appeal. Therefore, appeals from the Electoral Court to the Supreme Court of Appeal were competent where constitutional matters were raised in electoral disputes or in complaints about alleged infringements of the electoral code of conduct. That notwithstanding, it was in the interests of justice for this court to grant leave to appeal directly to the Constitutional Court. (Paragraphs [24] – [28] at 242C – 243F.)

Appeal E

The minority (main) judgment (per Zondo J, with Jafta J and Leeuw AJ concurring) endorsed the electoral court's findings. Van der Westhuizen J (with Madlanga J concurring) concurred with the majority judgment's order but for different reasons. The majority judgment (per Cameron J, Froneman J and Khampepe J, with Moseneke DCJ and Nkabinde J concurring), F

Held: This dispute was about the boundaries of free speech in the context of elections. The main task was to ascertain what kinds of 'information' and 'allegations' were hit by the prohibition in s 89(2) of the Act and item 9(1)(b) of the Code. The constitutional setting against which this had to be considered was that these provisions placed a limit on the right to freedom G of expression, a right closely connected to the rights to vote and stand for public office. The interpretation also had to be guided by the fact that the provisions imposed severe penalties on those who breached it. The restrictive interpretation of penal provisions was a long-standing principle of our common law: if there were any uncertainty about the ambit of a penalty provision, it had to be resolved in favour of liberty. The Bill of Rights gave these considerations added force, its interpretive injunction requiring that H the provisions in question be interpreted to promote its spirit, purport and objects. Conversely, suppressing speech in the electoral context would inhibit valuable speech contributing to public debate, opinion-forming and holding public office bearers and candidates for public office accountable. Also, within the boundaries the Constitution sets, it was good for democracy, good for social life and good for individuals to permit as much open I and vigorous discussion of public affairs as possible. And elections provided greater opportunity for intensive and immediate public debate to refute possible inaccuracies and misconceptions aired by one's political opponents. So freedom of expression to its fullest extent during elections enhanced, and did not diminish, the right to free and fair elections. The right individuals enjoy to make political choices was made more meaningful J

2015 (2) SA p234

A by challenging, vigorous and fractious debate. (Paragraphs [116], [120], [124], [127] and [130] – [135] at 270B – D, 271F – G, 272D – 273B, 273F and 275A – 276F.)

In issue was statutory interpretation. (It was not a defamation case — the requirements to sustain and defend a defamation claim were grounded in the competing rights to and interests of freedom of expression as against B those of dignity and reputation. To import the latter considerations here would unnecessarily distort a fairly straightforward enquiry into the meaning and purpose of statutory provisions.) Section 89(2)'s prohibition did not apply to opinion or comment but only to statements of fact. In its own terms the section did not prohibit comments. It prohibits only 'false information'. 'Information' means only factual statements, not comments. C And indeed a comment or opinion could be criticised for being unfair or unreasonable but rarely for being 'false'. So the section's use of this word strengthened the inference that it meant to prohibit only factual statements, not opinions. And item 9(1)(b), which prohibited false 'allegations', was equally limited to factual statements.

The SMS referred for its authority to a different source: the Report. It was not D intended to be, and did not hold itself out as being, authoritative. It rather based its conclusion, and was a comment, on the Report. This led to the conclusion that the SMS fell entirely outside the ambit of s 89(2) and item 9(1)(b). (Paragraphs [144] – [145], [150] and [153] at 278G – 279A, 280E and 280H – 281A.)

Semble: A contextual reading of the provision suggested that the kind of false E statements prohibited were those that could intrude directly against the practical arrangements and successful operation of an election, not 'information' aimed at its outcome by influencing voters' views about opposing parties. (Paragraphs [139] and [143] at 277G – 278B and 278F – G.)

Cases Considered

Annotations

Case law F

Southern Africa

African National Congress v Chief Electoral Officer, Independent Electoral Commission 2010 (5) SA 487 (CC) (2009 (10) BCLR 971; [2009] ZACC 13): referred to

African National Congress v Democratic Alliance and Another 2014 (3) SA 608 (GJ): qualified G

African National Congress v Democratic Alliance and Another 2014 (5) SA 44 (EC): overruled

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A): referred to

Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council 1994 (3) SA 170 (A): dictum at...