Justice Edwin Cameron.
Opposition party, the Democratic Alliance (DA) was within its rights to say in an SMS that President Jacob Zuma had stolen money from taxpayers to fund his Nkandla home, the Constitutional Court ruled on Monday.
A legal specialist in media and social media issues called the Constitutional Court ruling a “landmark judgment” and one that will liberate fair comment.
The DA won the last round in a court battle over the SMS they sent out a few weeks before the 2014 general elections which 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.”
The court, in views upheld by seven judges, set aside a ruling by the Electoral Court, which had found in the ANC’s favour, ruling that the SMS accusing Zuma of having stolen money fell short of the test for fair comment.
The ANC raised concerns that the SMS, which could influence the decision of voters, was sent out seven weeks before the election.
The DA argued in court that the performance of those in power should be open to robust scrutiny and debate, especially when it comes to election time.
Informed by Nkandla report
The Constitutional Court on Monday granted the DA’s request for an appeal and awarded no costs to either side.
The SMS was sent out a day after public protector Thuli Madonsela released her findings, in which she said that Zuma and his family “unduly benefited” from some of the R246-million spent in security upgrades to his KwaZulu-Natal residence.
The ANC argued before the court that at no time does Madonsela’s report accuse Zuma of stealing money from the taxpayer.
The ANC took a case to the Johannesburg high court, asking for a court order compelling the DA to retract the SMS. High court acting judge Mike Hellens found that the SMS was fair comment. This prompted the ANC to lodge a successful appeal with the Electoral Court.
Interconnectivity of rights
Of the ten judges hearing the matter, seven ruled in favour of the DA.
Judges Raymond Zondo, Chris Jafta and Monica Leeuw found there was merit in the ANC’s argument, saying they would have dismissed the DA’s appeal.
A judgment by Judges Edwin Cameron, Coenraad Froneman and Sisi Khampepe – and concurred by Dikgang Moseneke and Jess Nkabinde – highlighted the interconnectivity between the right to freedom of expression and the right to vote.
They said the Electoral Act and the accompanying Code referred to “false statements” and not the expression of a comment or opinion.
“Comments and opinions may be criticised for being unfair or unreasonable, but rarely for being ‘false’,” they said.
This judgment held that the SMS could be seen as comment and an interpretation of the Nkandla report.
Other judges who supported the finding in favour of the DA, but expressed different reasons for their conclusion, were Johann van der Westhuizen and Mbuyiseli Madlanga.
Webber Wentzel lawyer Dario Milo, an expert in media and social media issues, said the judgment was very important because it had “extended the reach of free speech and the right to express views”.
“The DA did very well to persuade the court it was an opinion and not a fact, the accuracy of which would then have to be proven,” he said.