IN THE ELECTORAL COURT OF SOUTH AFRICA JUDGMENT AFRICAN NATIONAL CONGRESS. Mthiyane DP, Moshidi, Wepener JJ, Mthembu and Pather (Members)

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1 IN THE ELECTORAL COURT OF SOUTH AFRICA JUDGMENT REPORTABLE Case No: 004/14 EC In the matter between: AFRICAN NATIONAL CONGRESS APPELLANT and DEMOCRATIC ALLIANCE ELECTORAL COMMISSION OF SOUTH AFRICA FIRST RESPONDENT SECOND RESPONDENT Coram: Mthiyane DP, Moshidi, Wepener JJ, Mthembu and Pather (Members) Heard: 25 April 2014 Delivered: 6 May 2014 Summary: ANC complained that Democratic Alliance contravened s 89(2)(c) of the Electoral Act 73 of 1998 and Item 9(1)(b)(ii) of Schedule 2 of the Act, the Electoral Code, read with s 94 of the Act by making a false statement in an SMS sent to more than 1.5 million potential voters in Gauteng suggesting that President Zuma stole R246 million of taxpayers money to build his home. SMS message found to be false on appeal Application for a declarator granted Democratic Alliance ordered to retract the SMS message.

2 2 JUDGMENT Mthiyane DP (Moshidi, Wepener JJ, Mthembu and Pather, members, concurring): [1] This is an appeal against an order of the Johannesburg High Court (Hellens AJ) in which an application by the African National Congress for a declarator and an interdict against the Democratic Alliance was dismissed. The African National Congress (the ANC) is the appellant and the Democratic Alliance (the DA) is the first respondent. The Electoral Commission (the Commission) is the second respondent and has been cited merely for its interest in the outcome of the proceedings. The appeal is before this court with leave of the high court. The ANC and the DA have accepted this court s jurisdiction to hear and determine the appeal. [2] The dispute between the parties in this case has its origin in a short message service (SMS) sent by the DA on 20 March 2014, to over 1.5 million potential voters in the Gauteng area. The text of the message reads as follows: 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. [3] The mention of the Nkandla report refers to the recent report by the Public Protector on the upgrades to President Zuma s Nkandla residence, entitled Secure in Comfort. It is common cause that the Public Protector did not find that President Zuma stole the R246 million. She found that President Zuma and certain

3 3 members of his family improperly benefited from public expenditure on his private residence in Nkandla, in that a considerable portion of the R246 million security upgrades was spent on non-security amenities, including a swimming pool, visitor s centre and a cattle kraal. The SMS was sent by the DA as part of its election campaign and was admittedly designed to influence voters to vote for the DA. [4] The ANC contended that by dispatching the SMS, the DA disseminated false information regarding President Zuma and thereby breached both the Electoral Act 1 and the Electoral Code. 2 [5] Consequently on 27 March 2014, the ANC launched an application in the high court, seeking inter alia an order: (a) declaring that the DA SMS amounts to a publication of false information in contravention of s 89(2)(c) of the Act and of Item 9(1)(b)(ii) of Schedule 2 of the Act, the Electoral Code (the Code) read with s 94 of the Act; 3 (b) interdicting and restraining the DA from further disseminating or distributing the SMS; (c) directing the DA to retract forthwith the SMS by dispatching at its own costs, a new text message via the mobile phone bulk short message service to all earlier recipients of the SMS stating that: The Democratic Alliance (DA) unreservedly retracts the SMS message dispatched to you earlier which falsely stated that President Zuma stole R246m to build his home. The said SMS constituted a violation of the Electoral Code and the Act. The DA apologises to the African 1 Act 73 of 1998 (the Act). 2 Schedule 2 of the Act, Electoral Code (the Code). 3 The section provides as follows: Contravention of the Code: No person or registered party bound by the Code may contravene or fail to comply with the provision of that Code.

4 4 National Congress (ANC) for the inconvenience caused and recommits itself to the letter and spirit of the Electoral Act and the Electoral Code or containing such formulation as the court may deem fit in the circumstances. [6] The publication of false statements is prohibited by the provisions of the Act and the Code. Section 89(2) of the Act provides: No person may publish any false information with the intention of (a) disrupting or preventing an election; (b) creating hostility of fear in order to influence the conduct or outcome of an election; or (c) influencing the conduct or outcome of an election. (Emphasis added) [7] Section 9(1)(b) of the Code provides: Prohibited conduct (1) No registered party or candidate may (b) publish false or defamatory allegations in connection with an election in respect of (i) a party, its candidates, representatives or members; or (ii) a candidate or that candidates representatives. [8] Section 94 of the Act provides: No person or registered party bound by the Code may contravene or fail to comply with a provision of that Code. [9] The Act sets out how the above provisions are to be interpreted. Section 2 thereof provides: 2 Interpretation of this Act Every person interpreting or applying this Act must (a) do so in a manner that gives effect to the constitutional declarations, guarantees or responsibilities contained in the Constitution, and (b) take into account any appropriate Code.

5 5 [10] It bears mention that the Act and the Code are post-constitutional provisions. While they prohibit the publication of false information, they do not prohibit robust debate about the beliefs and values held by political parties or candidates. For example item 4 of the Code, allows free expression of views. It provides: 4 Public Commitment (1) Every registered party and every candidate must (a) Publicly state that everyone has the right (i) to freely express their political beliefs and opinions; (ii) to challenge and debate the political beliefs and opinions of others. [11] On 19 March 2014, 29 of the 33 political parties contesting the 2014 National and Provincial elections, including the ANC and the DA, participated in the ceremonial signing of the Code in Midrand, Gauteng and pledged to abide by it during the period between then and the election day on 7 May The DA accepted that it is bound by the Act and the Code and that the SMS was a statement made with the intention of influencing the outcome of the election. It however denied that the SMS violated the Act and the Code. [12] The high court found that the report of the Public Protector did not prove the commission by President Zuma of the crime of theft, but shows an unchecked or inadequately checked dipping into public funds by those responsible for the significant upgrades to the President s residence. The court also noted that according to the Public Protector s report, this took place with the President s knowledge, tacit approval and a significant degree of active participation. The high court found that the use by the Public Protector of the phrase licence to loot comes very close the wording stole used in the SMS complained of. The court 4 The Code is applicable to all political parties from the date of its proclamation (28 February 2014) until the results of the 2014 election are officially announced.

6 6 found the statement in the SMS to be comment flowing from the findings of the Public Protector and as an opinion that a fair person, perhaps in extreme form might honestly hold. [13] The high court noted that in the context of robust political debate freedom of expression should be allowed scope. It held that the SMS qualified as an honest, genuine expression of opinion relevant to the facts upon which it was based and not disclosing malice. [14] The high court found that the Public Protector s report does not show that President Zuma stole money to build his home, as set out in the SMS message. Having regard to the law and the principle of fair comment, the court however came to the conclusion that this is a view that a fair reader of the SMS would entertain if he or she has regard to the Public Protector s report. What the court overlooked however, is that in its terms the SMS, does not project itself to be an expression of opinion. It does not state as a comment that the conclusion the reader would come to or the one that must be drawn when reading the SMS, together with the Public Protector s report, is that President Zuma stole the money to build his home. [15] Secondly, and more importantly, the reader of the SMS had no access to the Public Protector s report and was not afforded an opportunity to compare the SMS message to the contents of the report. There is no suggestion that the facts in the Public Protector s report were so notorious that the reader of the SMS could be taken to be aware of them. The report of the Public Protector runs into over 400 pages and the executive summary into over 74 pages. It would, in my view, be optimistic to suggest that the over 1.5 million people to whom the SMS was sent

7 7 would have been aware of the contents of the Public Protector s report. In my view, at best for the DA, it can be assumed that the reader would be aware of the fact that the Public Protector found that President Zuma and some of his family members unduly benefited from the upgrades. But that is a far cry from suggesting that he stole the money to build his home or that the report shows that he stole money to build his home. [16] The high water mark of the DA s case is to be found in the answering affidavit deposed by is Federal Executive Chairperson, Mr James Selfe. He says that the SMS was fair comment. He then sets out facts contained in the Public Protector s report and whereupon he states: Based on the facts above, it is submitted that the statement made in the SMS was one which a reasonable person could genuinely hold and which is held by many people, both within and outside the DA. [17] The DA attempted to show that the statement complained of is a tacit comment on a matter of public interest. Every person has the right to express an opinion honestly and fairly on a matter of public interest, and it is upon this right that the defence is based. 5 There are, however, three essentials of the defence of fair comment. It must appear to be recognisable to the ordinary reasonable person as a comment and not a statement of fact. Secondly, it must be fair. Here it must noted, and Mr Jamie for the DA, correctly submitted that comment does not cease to be fair merely because it is extravagant or exaggerated or prejudiced. The statement would be regarded as comment under this requirement if it is honest that is a genuine expression of opinion and relevant to the facts commented upon. 5 Crawford v Albu 1917 AD 102 at 114.

8 8 The test is objective. 6 The third essential requirement of the defence is that the facts commented upon must be true, must be accurately stated and must be matters of public interest. There can be no fair comment upon facts which are not true. [18] The SMS falls short of the test stated above. Firstly, it is not recognisable as an expression of opinion. It contains a factual assertion that the Public Protector s report shows how President Zuma stole your money to build his home. The fact that the phrase show how was used does not alter the meaning and effect of the factual assertion. It is purely a statement of fact. The finding in respect of the first requirement renders it unnecessary to consider the second requirement as to whether the comment was fair. As to the third requirement, the statement is clearly false. The high court found that the Public Protector s report does not say that President Zuma committed theft. The deponent for the DA, Mr Selfe, does not allege that the report says that President Zuma stole the money. The highest he places the DA s case is the assertion that the conclusion is fitting: in circumstances in which the President is found guilty of very serious failings which resulted in him, through deliberate action and omission, improperly benefiting at the expense of the taxpayer. This does not constitute an act of stealing. [19] Like the high court, the DA is driven to rely on the licence to loot phrase used by the Public Protector. The fallacy of the reliance on the licence to loot remark was highlighted by Mr Malindi for the ANC who referred to the text of the Public Protector s remarks in this regard. The licence to loot comment reads as follows: it is difficult not to reach the conclusion that a license to loot situation was created by government due to a lack of demand management by the organs of state involved as provided for 6 Crawford v Albu supra at 115.

9 9 in the Cabinet Memorandum, the National Key Points Act, relevant health care and transport regulations as well as National Treasury Guides and directives on procurement. Treasury prescripts clearly require government not to go to the market with a blank cheque licensing service providers to simply fill the blanks relating to scope of work and amount to be paid. In the words of the Project Manager, Mr Rindel: It was like building a puzzle without a picture and the Project Team wrote the rules as they went along. [20] I agree with Mr Malindi that to justify the publication of the SMS message, the DA relied on the licence to loot phrase in the Public Protectors report. Reliance on this phrase is completely misplaced because it ignores the context in which it was used and the fact that President Zuma is not implicated in the licence to loot situation that was created by lack of controls on the part of the officials and ministers who were directly involved in the management of the project. The licence to loot comment relates to the inadequacies of the current arrangements and the risk of service providers driving up costs as a result. It does not refer to the President or impute the crime of theft or other corrupt conduct to him. [21] In fact, rather than attributing the excessive costs of the Nkandla project to President Zuma, the report focuses on systematic failures and the need for a proper policy regime regulating security measures at the Private residences of the President, Deputy President, Minister, and Deputy of Defence. The report states that the anomalies in the Nkandla Project point to the existence of systematic policy gaps and administrative deficiencies in the regulatory framework used as authority for implementing security measures at the private residences. [22] In the circumstances and on a proper interpretation of the relevant provisions the conclusion is unavoidable that the factual claim made by the DA is clearly false

10 10 and inaccurate and that s 89(2) of the Act and Item 9(1)(b) of the Code were contravened. [23] As an SMS is limited to 160 characters any retraction of the false statement should fall within that number of characters. [24] As to the question of apology, this case is not based on defamation where an apology may be appropriate. The ANC based its case on the question of contravention of the Act and the Code. President Zuma did not depose to an affidavit to support defamatory allegations. In this judgment the principles of defamation are canvassed merely to show that the defence of fair comment is not sustainable. [25] In the result the appeal is allowed and the following order is made: 1. The order of the high court is set aside and replaced by the following: The application is granted for an order in the following terms: (a) It is declared that the DA SMS amounts to a publication of false information in contravention of s 89(2)(c) of the Act and Item 9(1)(b)(ii) of Schedule 2 of the Act, the Code read with s 94 of the Act; (b) The DA is directed to forthwith retract the SMS by dispatching at its own cost, a text message via the mobile phone bulk short message service to all earlier recipients of the SMS stating that: The DA retracts the SMS dispatched to you which falsely stated that President Zuma stole R246m to build his home. The SMS violated the Code and the Act. K K Mthiyane Deputy President

11 11 COUNSEL FOR APPELLENT : G MALINDI SC WITH ATTORNEYS FOR APPELLANT : COUNSEL FOR RESPONDENT: JAMIE SC WITH ATTORNEY FOR RESPONDENT :