Missed call? DA, ANC claim victory in SMS ruling


The Constitutional Court ruling in favour of the Democratic Alliance in the Nkandla SMS case could lead to other political parties using the same campaigning methods leading up to the 2016 local government elections.

So says political analyst Professor Somadoda Fikeni, who believes how the ANC and the DA interpret the findings and their views of the ruling to the public will be crucial in how the judgment is received by the average person.   

The SMS was sent to more than 1.5-million voters in Gauteng last year and 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 DA has hailed the Constitutional Court ruling in their favour as a victory for freedom of expression, while the ruling party sees it as a reaffirmation of their views that the message was nothing but opinion.  

Court battle
On Monday the Constitutional Court set aside an Electoral Court’s ruling, which last year held that the SMS was false, and that its publication constituted a violation of the Electoral Act and Code.   

When the SMS was sent out a day after public protector Thuli Madonsela released a report after her investigation into security upgrades at President Zuma’s Nkandla home, the ruling party approached the High Court in Johannesburg for an interdict against the DA and an order compelling it to retract the SMS and to apologise. The application was dismissed and the ANC then appealed to the Electoral Court, which reversed the decision.   

In the final round of the battle court battle, the Constitutional Court ruled that “The order of the Electoral Court is set aside and replaced with the following: The appeal is dismissed.” 

Forming opinions
Fikeni said the ruling meant that parties were free to formulate their own opinions out of reports such as the Nkandla one and use them in public forums. 

“Therefore we should not be too restrictive in terms of what can and what cannot be said in a democratic space. The judges do maintain that it doesn’t necessarily prove that it’s a fact that the president stole the money but it could be a fair comment for a party, after hearing that the president benefited unfairly [from the construction of Nkandla], to use its opinion and therefore extend that public opinion to mean that public money was stolen.   

“Because the public does not read these rulings closely, it will depend on how each party translates what came out of the Constitutional Court and is more convincing in their public discourses. The ANC will insist that the Constitutional Court has reduced the SMS to just DA’s opinion whereas the DA will see it as being vindicated on their opinion the public money has been stolen and that there was nothing unconstitutional about their SMS. But they both need to convince the public of their views.”   

The professor, who believes other political parties could also jump on the SMS bandwagon and start using the same tactics, said the ruling could also lead to more of the same campaigning cropping up leading to the 2016 local government elections. “But this time around I’m sure the DA will take care and state that it is their opinion.”   

Freedom to express opinions about parties
The Freedom of Expression Institute chairperson Anton Harber welcomed the Constitutional Court ruling. “It reinforces our belief that political parties must be free to express their opinions of each other, particularly during election campaigns. If citizens are going to be able to make informed voting decisions then there has to be an open and unrestricted flow of information and opinion. 

“We believe the definition of fair comment has to be as wide as possible to ensure we do not restrict ways in which different political parties can call each other to account, and we welcome the fact that the court has done this.   

“In the context of the on-going debate about the spending on the president’s private home in Nkandla, we are confident that the DA remarks were within the bounds of fair comment.”   

Harber said the institution would defend anyone’s right to have and share such a view without agreeing or disagreeing. “Just as we would defend the right of the president and his party to express strong views on the DA.”

‘False statement’
ANC spokesman Zizi Kodwa said the ruling reaffirmed their view that the DA sent out a false statement  to influence the outcome of an election last year. “The Constitutional Court has agreed with the ANC that the SMS sent by the DA was an opinion of the DA and not a fact. It is not true that President Zuma stole taxpayers’ money to build his homestead in Nkandla – a point made by the successive reports of competent authorities including the public protector. 

“It is regrettable that in spite of the ruling, which supports our view, the DA continues to play politics, hailing this as a victory when the Constitutional Court has been clear that the DA presented their opinions as fact on such an important matter,” he said in a statement.

He said the party accepted the ruling, though “the ANC continues to believe that the statement made by the DA was an outright attack on our democracy as it allowed the party to send out misleading information disguised as fair comment in order to influence the outcome of an election”.   

DA parliamentary leader Mmusi Maimane, who was the party’s Gauteng premier candidate at the time the SMS was sent out, said the ruling was a major victory for freedom of speech and would give them licence to express their views, based on what they felt was solid evidence, for future sms campaigns. 

“So voters can go to the polls with a fair assessment of what is going on in the country.   

“The judgment reaffirms that robust debate lies at the heart of freedom of speech in South Africa, and is of great importance to our constitutional democracy especially in the context of election campaigns.”

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