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Concourt must sharpen the contours of our political arguments

Threats to curtail press freedom legislatively could be extended. Are the courts up to this challenge?

The speculation about the political trajectory of the next five years of a government led by President Jacob Zuma is under way. If the first term is any guide, then the scope of freedom of expression is an obvious worry. Threats to curtail press freedom by way of legislation, such as the Protection of State Information Bill, could well be further extended. Here lies the importance of the courts as a guardian of our core constitutional values.

Are the courts up to this challenge? This question must again be asked in the aftermath of the ANC’s reaction to text messages of the supporters of the Democratic Alliance, in which they accused the state president of theft.

The ANC’s initial attempt to get a court order forcing the DA to retract the message ended in failure when acting judge Mike Hellens dismissed the application. The ANC appealed that decision and, three days before election day, the Electoral Court upheld the appeal.

The competing reasoning employed by the two courts provides guidance on how courts may respond to the challenge of demarcating the scope of speech that must be constitutionally defended.

Judge Hellens dismissed the ANC’s application by employing two important processes. The ANC complained that an allegation that Zuma “stole your money to build his R246-million home” infringed the Electoral Act because it constituted a false statement. Although the SMS followed the publication of the public protector’s report on Nkandla, the report did not form a part of the ANC’s court papers.

The judge found that it was insufficient to make allegations about the falsehood of an SMS based on a report without attaching the report to the founding affidavit in which the ANC made out its case. At least the ANC should have referred to its key findings. In other words, the papers the ANC filed before the court were insufficient to show that the DA was not entitled to formulate the text message on the basis of the findings of the public protector.

The judge then moved to the public protector’s findings themselves. He emphasised that she had found the president guilty of ethical violations to do with the upgrades to his personal property and had failed in the performance of his fiduciary duties while benefitting personally from some of the work performed on his homestead at Nkandla. From this, the judge found, a fair person – “perhaps in extreme form” – may have held the opinion that the theft of tax monies by the president had taken place. This finding was reinforced by the principle that political parties had a right to enter robustly into public debate, a principle at the core of free and fair elections.

The Electoral Court disagreed. Deputy President Kenneth Mthiyane, writing for a unanimous court, described the message as representing a factual claim rather than an expression of opinion. As a claim of fact, it failed because it was false. Nowhere had the public protector found the president guilty of theft.

Accordingly, there was no evidence to justify the factual claim that the DA had made in its SMS to voters. The DA argued that the report could be read to have made a finding that, by deliberate commission or omission, the president had benefitted personally from the expenditure of public funds. The public protector had used the phrase “licence to loot”.

Judge Mthiyane found that the phrase “licence to loot” had been used in a passage that made no finding against Zuma but, rather, pointed to major regulatory failures. For these reasons, the DA had made a false statement in its SMS, which had been widely circulated, and was in breach of the Electoral Act.

The judgment of the Electoral Court takes a formalistic approach to the findings of the public protector: there is no direct finding of theft by the president, so the DA’S claim is false. By contrast, the high court looked at a host of damning findings by the public protector and, on the basis of the principle of free and robust speech in our political process, considered that the report provided sufficient justification to hold a view that may be extreme but was fair.

The choice of one of these contrasting approaches to the question of fair political speech, particularly during a hotly contested election, is important to the determination of the kind of constitutional democracy to which we hold. A generous approach to robust, even “extreme”, views stands in contrast to one that demands a higher evidential threshold when a political party makes a damaging claim against a political opponent.

This is a case that requires a definitive answer from the Constitutional Court – on the proper contours of political debate in our noisy democracy.

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