CCT76/14

[2015] ZACC 1

Cameron J, Froneman J, Khampepe J Majority judgment

Van der Westhuizen separate judgment

Zondo J separate judgment

11 September 2014

19 January 2015

http://hdl.handle.net/20.500.12144/3761

Application for leave to appeal against a judgment of the Electoral Court: African National Congress v Democratic Alliance and Another (004/14 EC) [2014] ZAEC 4; 2014 (5) SA 44 (EC) (6 May 2014). The case was first heard in the Johannesburg High Court: African National Congress v Democratic Alliance and Another (11535/2014) [2014] ZAGPJHC 58; 2014 (3) SA 608 (GJ) (4 April 2014).

Alleged breach of section 89(2)(c) of the Electoral Act — publication of false information to influence outcome of election — alleged breach of Electoral Code of Conduct — defence of fair comment — opinion — sections 16 and 19 of the Constitution — 2 freedom of expression — right to vote — right to free and fair elections — does section 89(2)(c) of Electoral Act apply to a statement of opinion or does it apply only to statements of fact? — analysis of case law on fair comment — penal provisions to be interpreted restrictively — was published statement false? — statement that “the Nkandla report shows how Zuma stole your money to build his R246m home” held to be opinion and not statement of fact and not to breach section 89(2)(c) of Electoral Act — appeal from Electoral Court to Supreme Court of Appeal competent — leave to appeal granted — appeal upheld — decision of Electoral Court set aside. Application for leave to appeal concerning freedom of expression and the application of the Electoral Act 73 of 1998. The dispute concerned a text message (SMS) the Democratic Alliance (DA) sent to more than 1.5 million voters in Gauteng during the run-up to the 2014 general elections. It read “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”. This was sent shortly after the Public Protector released a report concerning her investigation into security upgrades at President Zuma’s private residence (Nkandla Report). The joint judgment highlighted the interconnection between the right to freedom of expression and the right to vote, as well as the long-standing rule that penal provisions must be interpreted restrictively. It also observed that comments and opinions may be criticised for being unfair or unreasonable, but rarely for being “false”. Therefore, and because section 89(2)(c) of the Electoral Act and item 9(1)(b) of the Electoral Code promulgated under it refer to “false information” and “false allegations”, respectively, the provisions apply only to factual statements and not comments or opinions. The judgment found the SMS to be an expression of a comment or opinion, since it embodied an interpretation of the Nkandla Report. The SMS was not intended to be, and did not hold itself out as being, authoritative. Therefore the SMS fell entirely outside of the ambit of section 89(2)(c) and item 9(1)(b). It was unnecessary to rule on whether the SMS was false. As a result, the joint judgment agreed with the High Court’s outcome and overturned the Electoral Court’s decision. It replaced the Electoral Court order with a dismissal, with no order as to costs. A separate judgment, concurring in that outcome and order, held that any suggestion of a clear-cut boundary between a factual statement and an opinion may well be something of a fiction. The dissent found that the SMS constituted “false information”, in violation of the statute and Code, and would have upheld the order of the Electoral Court, Joint judgment: Cameron J, Froneman J and Khampepe J (Moseneke DCJ and Nkabinde J concurring). Separate concurrence: Van der Westhuizen J (Madlanga J concurring). Dissent: Zondo J (Jafta J and Leeuw AJ concurring).