DA wins Nkandla SMS fight


THE Constitutional Court’s ruling on Monday on an election campaign SMS by the Democratic Alliance (DA) paves the way for robust messaging ahead of future elections.

The court said it was fair comment when the DA said: “The Nkandla report shows how Zuma stole your money to build his R246m home”, as part of its campaign.

Though the judgment gives political parties more leeway during elections, it also highlights the obligation on parties not to present opinions as facts. There were three judgments in relation to the case.

A majority of five out of 10 judges found that the DA’s SMS, which was sent to 1.5-million voters, was a comment or opinion based on the interpretation of Public Protector Thuli Madonsela’s report and therefore not prohibited by law.

In a joint judgment written by Justice Edwin Cameron, Justice Johan Froneman and Justice Sisi Khampepe — with Deputy Chief Justice Dikgang Moseneke and Justice Bess Nkabinde concurring — the court found that comments and opinions may be criticised for being unfair or unreasonable, but rarely for being “false”.

The court accepted that, according to the Nkandla report, site-progress minutes indicated that detailed aspects were discussed with President Jacob Zuma, and that in 2010 he had complained about the slow progress. This showed he was “aware of all of it”, indicating the court’s acceptance of evidence in the public protector’s report.

The majority of judges said the electoral law prohibited “false information” and “false allegations”, respectively, and therefore applied only to factual statements and not to comments and opinions.

In another judgment, Justice Johann van der Westhuizen and Justice Mbuyiseli Madlanga agreed with the outcome and order of the majority judgment, but for substantially different reasons. They disagreed with the finding that an opinion cannot be false information and concluded the electoral law also prohibited false comment or opinion.

In a dissenting judgment, Justice Raymond Zondo, Justice Chris Jafta and acting Judge Monica Leeuw found that the SMS constituted a statement of fact that was false and, accordingly, was a violation of the electoral law.

The DA appealed to the Constitutional Court after the Electoral Court on the eve of the May 7 elections overturned a High Court ruling in a matter brought by the African National Congress (ANC) that found the SMS was fair comment.

Ms Madonsela had found in a report released in March last year that Mr Zuma “unduly benefited” from nonsecurity items such as a swimming pool and an amphitheatre that had been irregularly bundled with R246m security upgrades and paid for by taxpayers.

DA parliamentary leader Mmusi Maimane said the party expected that the municipal elections next year were going to be exciting given the court’s interpretation of the electoral law. “Mr Zuma must account for Nkandla,” he said, adding that it was wrong that “one man” was living in a multimillion-rand home at the expense of the taxpayers while people did not have houses.

ANC spokesman Zizi Kodwa said it was not true that Mr Zuma “stole taxpayers’ money to build his homestead in Nkandla”.

He said the DA statement 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”.

Mr Maimane said the DA would challenge the Independent Communications Authority of SA’s ruling upholding the South African Broadcasting Corporation’s “banning” of a DA election advert showing a policeman firing rubber bullets on the grounds that it incited violence.

Political analyst Somadoda Fikeni said the Constitutional Court judgment was “double-edged” in that it “prevailed on the assumption that robust political engagement will always include the opposition pushing the boundaries”.

However, he said parties needed to be clear about their opinions so that they were not presented as authoritative facts.


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