About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 58
|
|
African National Congress v Democratic Alliance and Another (11535/2014) [2014] ZAGPJHC 58; 2014 (3) SA 608 (GJ) (4 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG DIVISION.JOHANNESBURG)
CASE
NO.: 11535/2014
DATE:
4 APRIL 2014
In
the matter between:
AFRICAN
NATIONAL
CONGRESS
............................................................................
Applicant
And
DEMOCRATIC
ALLIANCE
..............................................................................
First
Respondent
INDEPENDENT
ELECTORAL
COMMISSION
OF SOUTH
AFRICA
...........................................................
Second
Respondent
JUDGEMENT
INTRODUCTION
:
1.
On the 27
th
of March 2014, the African National Congress (hereinafter referred to
as the “ANC” or the Applicant) brought an application
against the Democratic Alliance (herein after referred to as the “DA”
or the First Respondent) and the Independent
Electoral Commission of
South Africa (herein after referred to as the “IEC”).
2.
The ANC, through its Secretary General,
deposed to an affidavit on behalf of the ANC in his capacity as
Secretary General. The ANC
describes itself as a liberation movement,
founded and operating in accordance with its constitution and having
the power to sue
and be sued in its own name. It is a registered
political party in terms of Section 26 of the Electoral Act, Act
no.73 of 1998
(“The Electoral Act”). The First Respondent
is the Democratic Alliance which is a registered political party in
terms
of The Electoral Act.
3.
The chairperson of the IEC is also cited
although no relief is sought against the IEC. The IEC is cited in
this matter solely by
virtue of the interest that the IEC has, or may
have, in the outcome of this matter. The IEC has not participated in
the proceedings.
4.
The ANC seeks an order against the DA;
4.1
declaring that the dissemination of a
text message via bulk mobile phone short message service (“the
SMS”), by or on
behalf of the First Respondent which reads:
“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”, amounts to a
publication
of false information in contravention of Section 89(2)(c) of the
Electoral Act and;
4.2
an order declaring the dissemination of
the SMS, by or on behalf of the First Respondent which reads; “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”
amounts
to a publication of a false allegation in contravention of
item 9(1 )b(ii) of Schedule 2 to the Act, the Electoral Code “The
Code” read with Section 94 of the Electoral Act and;
4.3
an order interdicting and restraining
the DA from further disseminating or distributing the SMS and;
4.4
an order directing the DA to retract
forthwith the SMS by despatching, at its own cost, 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 despatched to
you earlier which falsely stated that President Zuma stole R246m to
build his home. The
said SMS constitutes a violation of the Electoral
Code and the Act. The DA apologies to the African National Congress
“ANC”
for any inconvenience caused and recommits itself
to the letter and spirit of the Electoral Act and The Code” or
containing
such formulation as the Court may deem fit in the
circumstances”;
4.5
costs of two counsel is sought, as is an
order effectively declaring this matter to be an urgent application.
JURISDICTION
5.
The Applicant, the ANC, claims that this
Court has jurisdiction in terms of Section 20(4)(b) of the Electoral
Commission Act read
with the Electoral Court’s determination,
published in the Government Gazette no.19572 under GN 2915 of 4
December 1998,
proclaiming the Rules regulating electoral disputes
and complaints about infringements of the Electoral Code of Conduct
in Section
2 of the Electoral Act and determination of Courts having
jurisdiction.
6.
Section 20(4) of the Electoral
Commission Act provides;
6.1
(4)
the Electoral Court shall;
(a)
make
rules in terms of which electoral disputes and
complaints
about infringements of the Electoral Code of Conduct as defined in
Section 1 of the Electoral Act 1993(Act no 202 of
1993), and appeals
against decisions thereon may be brought before courts of law and;
(b)
determine
which courts of law shall have jurisdiction to hear particular
disputes and complaints about infringement and appeals
against
decisions arising from such hearings.
7.
Rules regulating electoral disputes and
complaints about infringements of the Electoral Code of Conduct
provided for in Schedule
2 of the Electoral Act and the determination
of Courts having jurisdiction were promulgated under Government
Notice 2915 of 1998
in Government Gazette no. 19572.
8.
Those rules provided under the heading
“Determination of Courts and Jurisdiction” the following;
(2.1)
The Magistrate’s Court and the High Court in whose area of
jurisdiction;(a)
any
electoral dispute;
(b)
any complaint about an infringement of
the Code
has arisen, have
subject to sub-rules (2) and (3), jurisdiction to hear such dispute
or complaint.
(2)
The following courts have jurisdiction
to impose the following sanctions as referred to in Section 96 of the
Act;
(a)
the Court, (ie The Electoral Court’)
all the sanctions in subsection 2;
(b)
the High Court, all the sanctions in
subsection (2) except (2)(h) and (i).
9.
Section 96(2)(h) and (i) relate to an
order disqualifying the candidature of that person or of any
candidate of that party [Section
2(h)] and an order cancelling the
registration of that party [Section 96(2)(i)].
10.
Thus this Court has jurisdiction “in
the interest of a free and fair election” to impose any
appropriate penalty or
sanction upon a person or registered party
that has contravened a provision of part 1 of chapter 7 of the
Electoral Act.
11.
The application is brought by the ANC in
terms of Rule 4 of The Electoral Court Rules, read together with the
Rules of the High
Court where appropriate. There is a prayer that the
matter be heard as a matter of urgency as provided by Rule 4(10) of
the Rules
of the Electoral Court which provides very similar
provisions to the provisions of Rule 6(12) of the Uniform Rules of
the High
Court. Reference is also made by the Applicants to the
provisions of Rule 4(9) which allows for the extension or curtailment
of
the normal periods provided for in the Rules of the Electoral
Court.
THE
POWERS OF THIS COURT
12.
During the argument of this matter I
raised the question whether this Court in hearing this matter was
functioning as: -
12.1
An Electoral Court, with those powers
bestowed upon it in terms of Section 96(2)(a) to (g) of the Electoral
Act 73 of 1998 (“the
Electoral Act&rdquo
;);
12.2
a High Court, with its ordinary inherent
powers and those in terms of the
Superior Courts Act 2013
; or
12.3
both an Electoral Court and a High
Court, with the powers of both those Courts.
13
.
This
issue was addressed by both the Applicant and the First Respondent in
Supplementary Heads of Argument. Having considered those
arguments, I
am of the view that that which I set out below is the correct
analysis of the powers of this Court and of the function
that it
performs. The following appears from a reading of The
Electoral Act,
The
Electoral Commissions Act 51 of 1996 (“The EC Act”),
and the Rules under the EC Act
[1]
:
13.1
The
Electoral Court is the final arbiter of disputes regarding alleged
violations of
Section 89
of the
Electoral Act, and
the Electoral Code
of Conduct (“the Code”) and the Electoral Code.
[2]
13.2
However, in terms of the Rules, the
Electoral Court may only be approached as a court of first instance
when a violation of the
Electoral
Act and/or
the Code might justify a sanction in terms of
sections
96(2)(h)
and (i) of the
Electoral Act
- being:
“
(h)
an order disqualifying the candidature of that person or of any
candidate of that party; or
(i)
an order cancelling the registration
of that party. ”
13.3
In other matters (i.e. which only
justify a lesser sanction than those in
sections 96(2)(h)
and (i)),
the High Court or Magistrates Court in the area of jurisdiction in
which the alleged violation arose has jurisdiction
to hear any
resulting case.
13.4
When a matter of this kind comes before
a High Court as a court of first instance, it has the power to impose
all sanctions in terms
of
section 96(2)
of the
Electoral Act, save
for those in
sections 96(2)(h)
and (i).
0.97
in; margin-right: 0.21in; margin-bottom: 0in; line-height: 150%">
13.5
Furthermore, in such cases an appeal
lies to the Electoral Court (with the leave of the High Court, or
failing that, the leave of
the chairperson of the Electoral Court).
14
.
Based on this scheme, a proper
understanding of the powers of this
Court
is as follows:
14.1
This Court hears matters such as the one
at hand as the High Court, and not as an Electoral Court. In other
words, the jurisdiction
of the High Court is extended (pursuant to
section 96(2)
of the
Electoral Act, read
with section 20(4)(b) of the
EC Act and the Rules) to allow it to hear such cases. The High Court
does not, however, become an
Electoral Court for these purposes.
14.2
An appeal lies from the High Court to
the Electoral Court (subject to the leave of the High Court or the
Electoral Court). In hearing
such an appeal, the Electoral Court
would be constrained to the powers it has been given by statute -
which for current purposes
would be those in terms of
Section 96(2)
of the
Electoral Act. Although
the Electoral Court has the same
status as the High Court, it is different to the High Court and does
not have the inherent and
statutory powers of the High Court. (An
Electoral Court is thus akin to the Labour Court, or the Equality
Court.)
14.3
When hearing cases such as the current
one, the High Court cannot have greater powers than the Electoral
Court. The alternative
would be absurd, in that a High Court would
have wide
powers to deal with a matter,
and on appeal an Electoral Court’s powers would be narrower.
14.4
Thus, even though the matter comes
before this Court as a High Court, the only powers that it has are
those in terms of
Section 96(2)(a)
to (g) of the
Electoral Act. This
Court cannot in such matters exercise its inherent powers as a High
Court.
14.5
The sanctions in Section 96(2)(a) to (g)
of the Act are not a closed list. The introduction to this section
states that this Court
may impose “an
y
appropriate penalty or sanction”
,
before listing possible sanctions.
In
considering what penalty or sanction is “
appropriate"
,
this Court has a duty to ensure that any violation of the
Electoral
Act and
Code is cured with effective relief.
[3]
14.7
Appropriate
and effective relief may include a declaration of rights, or an
interdictory power. While this kind of relief is
not traditionally
conceived of as a “sanction”, it would serve the
purpose of vindicating the rights of the party
which has suffered a
wrong, and entail serious consequences for the party accused of
wrongdoing.
15.
I have already set out the nature of the
relief sought by the ANC. The heart of the complaint is that the DA
is said to have sent
out SMS messages advising the recipients of
those messages that the Nkandla report shows how ‘Zuma’
stole your money
to build his R246m home. The ANC seeks an order
declaring that the publication of that message to the recipients of
that message
amounts to a publication of false information in
contravention of Section 89(2)(c) of the Act.
16.
Section 89(2)(c) of the Act, as I have
already indicated, provides that no person may publish any false
information with the intention
of influencing the conduct or outcome
of an election.
17.
The ANC also complains that the
dissemination of the SMS to its recipients amounts to a publication
of a false allegation in contravention
of item 9(1 )(b)(ii) of
Schedule 2 to the Act being the Electoral Code, read with Section 94
of the Act.
18
.
Section 94
of the
Electoral Act provides
that no person or registered party bound by the Code may contravene
or fail to comply with the provision of that Code.
19.
Item 9(1 )(b)(ii) of Schedule 2 to the
Act, the Electoral Code, in very similar terms to
Section 89(2)(c)
of
the
Electoral Act provides
that no registered party or candidate may
publish false or defamatory allegations in connection with an
election in respect of
a candidate, or that candidate’s
representatives.
20
.
An order is sought interdicting and
restraining the DA from further disseminating or distributing the
SMS.
21.
The ANC also seeks an order directing
the DA to retract forthwith the SMS by despatching, at its own cost,
a new text message via
the mobile phone bulk short message service to
all previous recipients of the SMS stating that “the Democratic
Alliance (DA)
unreservedly retracts the SMS message despatched to you
earlier which falsely stated that President Zuma stole R246m to build
his
home. The said SMS constitutes a violation of the Electoral Code
and the Act. The DA apologies to the
African
National Congress (ANC) for any inconvenience caused and recommits
itself to the letter and spirit of the
Electoral Act and
the Code”
or containing such formulation as the Court may deem fit in the
circumstances.
THE
HEART OF THE COMPLAINT
22.
Clearly the heart or gravamen of the
complaint is an allegation, said to be wrongful, that “the
Nkandla Report shows how Zuma
stole your money to build his R246m
home”.
23.
I have no doubt that this Court has
jurisdiction to hear this complaint about the infringement of the
Code and the
Electoral Act and
, as I have said, to impose an
appropriate sanction if I find that the relevant provision or
provisions of the
Electoral Act or
Code have been infringed.
THE
FACTS OF THE MATTER
24
.
It is alleged by the Secretary General
of the ANC that the DA disseminated, or caused to be disseminated,
the SMS to which I have
referred fully above to “unknown
multitudes of recipients”. The averment
is
made that a bulk SMS was disseminated to recipients throughout the
Republic and within the area of jurisdiction of this Court.
25
.
The Founding Affidavit goes on to deal
in some detail with contact between persons representing the ANC and
persons representing
the DA with regard to the bulk SMS messages
allegedly sent out. Ultimately a letter of demand was sent to the
leader of the DA,
Ms Helen Zille in which her attention was drawn to
the allegation of the contraventions of the Act and the Code. The
claim was
made that the DA and/or its members or supporters had
committed an act which was a deliberate and mischievous distortion of
the
report of the Public Protector. The claim was made by the ANC
that the assertions are false, vindictive and designed specifically
to conduct a campaign to influence voters with false information. A
deadline was set for a response. A response from the Chief
Executive
Officer of the DA was forthcoming in which the DA indicated that it
would revert as soon as possible.
26.
The averment is further made that on the
24
th
of March 2014, the Parliamentary Leader of the DA, one Ms Lindiwe
Mazibuko had on the evening television news in South Africa
challenged the ANC to approach any Court if it were aggrieved by the
SMS as interpreted by her. In the view of the ANC, the SMS
needed no
interpretation as it stated that the
President
of the ANC and the President of the country, Mr Jacob Zuma, stole
R246m to build his home. She is alleged to have justified
the SMS and
challenged the ANC to go to Court.
27.
It was said that the origination,
existence and contents of the SMS are common cause. It is claimed
that the SMS contains false
information.
28.
The reference to “the Nkandla
Report” is to “Secure in Comfort; a Report of the Public
Protector, March 2014,
Report no. 25 of 2013/2014”. Strangely
and apparently “in order to avoid burdening the Court”
with annexing the
400 pages of the report to the application, the
Applicant indicated that a copy of the report would be made available
to the Court
at the hearing of the matter. The Founding Affidavit
goes on to tell this Court that the Public Protector did not find in
her report
that President Zuma stole R246m to build his home. It is
alleged that nowhere does the “Nkandla Report” make the
assertion
contained in the SMS.
29
.
The
claim is made that in the context of the SMS that President Zuma is
alleged to have committed the crime of theft and that this
is the
basis for a call to the recipients of the SMS to vote for the DA. It
is averred that the despatch of the SMS was made with
the intention
to influence the recipients thereof to vote for the First Respondent
and obviously
therefore not to vote for
the ANC. The claim was made that in terms of
Section 89(2)(c)
of the
Electoral Act, no person
may publish any false information with the
intention of influencing the conduct or outcome of an election.
30
.
Not only was the SMS a means of
garnering votes by the First Respondent, it was also said that the
SMS would have unintended consequences.
These are;
30.1
that it is likely to open up an avenue
for a free flow of campaign through slander, insults and deception
based on false information
and;
30.2
secondly, that such free flow of
slander, insults or deception through falsehoods would be likely to
inflame the atmosphere and
heighten political intolerance which has
the real likelihood of affecting the conduct and/or outcome of the
current elections.
It
was said that the Public interest, presumably in a free and fair
election, demands that the mandate of the Electoral Commission
is not
undermined by conduct that is prohibited in terms of the Act, the
Code and other instruments regulating the conduct of elections.
31.
The Founding Affidavit of the ANC goes on to indicate that the
election enjoys high levels of interest having due regard to
the
number of registered parties contesting it. There are apparently 29
registered parties. The claim is made that political engagement
is
entitled to be suitably robust, that the conduct of the DA, if
undeterred, will result in the deterioration of political exchanges
between the parties and thus contaminate the free and fair nature and
character of the forthcoming elections.
32
.
I must point out that this application
was set down to be heard on the 1
st
of April 2014 and that the elections are scheduled for the 7
th
of May 2014, some 5 weeks away. The Applicants went on to point out
that on the 19
th
of March 2014 all registered parties, including the DA, signed a
written pledge committing themselves to adhere to the Code of
Conduct
under the
Electoral Act. The
obvious point is made that the DA is
bound by the Electoral Code.
33.
Thereafter, the founding papers of the
ANC go on to deal with the formal requirements of an interdict being
a clear right, a right
which is being continuously infringed, and
there being no alternative remedy.
34.
Conspicuous by its absence was the
placing of the so called “Nkandla Report” before the
Court by the Applicant.
35.
It must be remembered that the complaint
is that, when properly read, the Nkandla Report by the Public
Protector does not say that
President Zuma “stole” the
R246m. As I have referred to earlier, the promise was made,
presumably to hand up from the
bar, the 400 page Nkandla Report from
which the Court would then and at that stage presumably be asked to
conclude whether that
report did or did not say that President Zuma
stole R246m. The bare assertion is made in the founding papers that
no such finding
was made in the Public Protector’s report.
36.
It is clearly insufficient and a failure
by the Applicant, properly to plead its case for the Applicant to
claim interdictory and
other related relief based on a complaint
which holds that the Public Protector’s report did not find
that the President
stole R246m, but that it found something different
without, in the Court papers, and by necessary reference to the key
findings
of the report, illustrating what it was that the Public
Protector in fact found.
37.
The relief sought by the Applicant in
this matter could well not have been granted by me for this fatal
omission. As a matter of
completeness of pleading, the actual finding
of the Public Protector needed to be either properly and suitably
fully summarised
so that this Court could understand what, in fact,
the finding was of the Public Protector in the Nkandla Report or
alternatively
that report needed to have been provided to the Court
by the Applicant in its founding papers. In the answering affidavit
of the
DA the full report was included and the affidavit summarised
the key findings of the Public Protector’s report.
THE
OFFICE OF THE PUBLIC PROTECTOR
38.
The Public Protector’s office is
established under Sections 181 to 182 of the Constitution of the
Republic of South Africa,
1996 (“The Constitution”) and
Section 1A of the Public Protector Act 23 of 1999 (“PP Act”).
It is one of
several so-called “chapter 9 institutions”
which are mandated to “strengthen constitutional democracy in
the
Republic”. As such, the office of the Public Protector is a
bulwark of this country’s constitutional democracy.
39.
The multi-party system of democracy is
also a founding principle provided for in Section 1(d) of the
Constitution, to “ensure
accountability, responsiveness and
openness”.
THE
ELECTORAL ACT AND
CODE - A PROPER INTERPRETATION
40.
I propose when interpreting the relevant
provisions of the
Electoral Act and
Code to apply Section 39(2) of
the Constitution which provides:- “When interpreting any
legislation and when developing the
common law or customary law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights”.
41.
In addition, the
Electoral Act itself
provides in
Section 2
thereof that “every person interpreting
or applying this Act must;
(a)
do so in a manner that gives effect to
the constitutional declarations, guarantees and responsibilities
contained in the Constitution;
(b)
take into account any appropriate code.
42.
The Applicant suggested that there was a
significant difference between
Section 89(1)
of the
Electoral Act and
Section 89(2)
of the
Electoral Act. The
difference is that in terms
of
Section 89(1)
, the scenario was catered for where someone who made
a statement which was false but who believed, on reasonable grounds,
that
the statement was true such person would not act unlawfully. On
the other hand, so argued the
Applicant’s
section 89(2) of the
Electoral Act provides
for a ‘strict
liability’ in that it rendered unlawful, the publication of
false information with the intention of influencing
the conduct or
outcome of an election and did not cater for a situation where the
publication of the false information could be
made in circumstances
where the maker thereof believed, on reasonable grounds, that the
statement was true. In the context of the
complained of SMS message
by the DA, the Applicant contended that if the contents of the
message was false or factually incorrect;
in that the finding of the
Public Protector did not use the words complained of, then
section
89(2)(c)
of the
Electoral Act, and
for that matter the Code, would be
breached or infringed by the maker and disseminator of the statement.
43.
I am not persuaded that a proper
interpretation of the meaning of Section 89(2) of the Act or of the
relevant provision of the Code
provide for a ‘strict liability’
or ‘strict interpretation’.
44.
I am persuaded that a purposive
interpretation of this section of the
Electoral Act and
of the Code
is necessary to give expression to the values enshrined in the Bill
of Rights and in the Constitution as a whole. Two
of those values are
the freedom of expression enshrined in section
16
of
the Constitution as well as the right in a constitutional democracy
to a multi-party system of democratic government which ensures
accountability, responsiveness and openness. A necessary adjunct to a
multi-party system which ensures accountability, responsiveness
and
openness is a liberal interpretation of freedom of expression in the
context of political debate and political campaigning.
45.
I am not attracted by the argument that
Section 89(2)(c)
of the
Electoral Act falls
to be strictly
interpreted so that if a statement is false for being not completely
accurate it is to be strictly interpreted as
false and therefore
falls to be censured as being in breach of that provision of the Act.
I am similarly not persuaded that item
9(1 )(b)(ii) of the Electoral
Code falls to be strictly interpreted. Its meaning also falls to be
interpreted through the prism
of the Bill of Rights and the
Constitution in a purposive manner.
46.
To my mind the principles,
well-developed in the law of defamation, allowing "fair comment”
- to adopt the phrase for
the time being - should be followed. As I
will show shortly, even the epithet “fair comment” is not
entirely an accurate
one.
47.
In Pienaar and Another vs Argus Printing
and Publishing Company Ltd 1956(4)SA 31OT Act 318 the court held
that;
“
Although
conscious of the fact that I am venturing on what may be new ground I
think that the Courts must not avoid the reality
that in South Africa
political matters are usually discussed in forthright terms. Strong
epithets are used and accusations come
readily to the tongue. I
think, too, that the public and readers of newspapers that debate
political matters, are aware of this.
How soon the audiences of
political speakers would dwindle if the speakers were to sue the
tones, terms and expressions that one
could expect from a lecturer at
a meeting of the ladies’ agricultural union on the subject of
pruning roses! Some support
for this view is to be found in a passage
in Gatley on Libel and Slander, 3
rd
ed. P. 468. It reads:
‘
In
cases of comment on a matter of public interest the limits of comment
are very wide indeed. This is especially so in the case
of public
men. Those who fill public positions must not be too thin- skinned in
reference to comments made upon them. ’ ”
48.
The principles are common to cases of
defamation or an attack on dignity. In determining whether a
publication is defamatory regard
must be had to the person who was
allegedly defamed. What may be defamatory of a private individual may
not necessarily be defamatory
of a politician or a judge. By virtue
of their public office they are expected to endure robust comment
albeit that this does not
mean they cannot be defamed.
[4]
49.
In Argus Printing and Publishing Co Ltd
v Inkatha Freedom Party 1992 (3)
SA 579 (A) at 588F, the court held that;
"the
law’s reluctance to regard political utterances as defamatory
no doubt stems in part from the recognition that right-thinking
people are not likely to be greatly influenced in their esteem of a
politician by derogatory statements made about him.... ”
50.
The approach most appropriate in this
case is that taken in The Citizen 1978 (Pty) Ltd v McBride
(Johnstone, Amici Curiae) 2011
(4) SA 191 (CC), which concerned a
comment in a newspaper that Mr. McBride, who had been granted amnesty
for his participation
in a lethal bombing of civilian targets, was a
“murderer”.
51.
Mr. Mc Bride sought to argue that
calling him a murderer was untrue, as this could only refer to those
found guilty of the crime
of murder in a court. The Court however
stated that -
“
this
is to redefine language. In ordinary language ‘murder’
incontestably means the wrongful, intentional killing of
another.
‘Murderer’ has a corresponding sense. More technically,
‘murder’ is the unlawful premeditated
killing of another
human being, and ‘murderer’ means one who kills another
unlawfully and premeditatedly. Neither in
ordinary nor technical
language does the term mean only a killing found by a court of law to
be murder, nor is the use of the terms
limited to where the court of
law convicts."
52.
In
my view there can be no violation of the relevant provisions of the
Act and the Code in circumstances in which a comment which
is not
entirely accurate amounts to “fair comment” in the sense
that that concept has been developed in cases of defamation.
[5]
53.
In the McBride case, the Court noted
that the description that a comment had to be “fair” was
misleading. The Court
referred to the statements of Innes CJ in
Crawford V Albu 1917 102 at 114, and explained that;
“
[81]…
the
criticism sought to be protected need not ‘commend itself to
the court. Nor need it be ‘impartial or well-balanced’.
In fact, ‘fair’ in the defence means merely that the
opinion must be one that a fair person, however extreme, might
honestly hold, even if the views are ‘extravagant, exaggerated,
or even prejudiced’. The comment need be fair only
in the sense
that objectively speaking it qualifies ‘as an honest, genuine
(though possibly exaggerated or prejudiced) expression
of opinion
relevant to the facts upon which it was based, and not disclosing
malice’.
[82]
So to dub the defence ‘fair comment’ is misleading. If,
to be protected, comment has to be ‘fair’,
the law would
require expressions of opinion on matters of fact to be just,
equitable, reasonable, level-headed and balanced. That
is not so.
An
important rationale for the defence of protected or 'fair’
comment is to ensure that divergent views are aired in public
and
subjected to scrutiny and debate. Through open contest, these views
may be challenged in argument
By contrast, if views we consider
wrong-headed and unacceptable are repressed, they may never be
exposed as unpersuasive.
Untrammelled
debate enhances truth-finding and enables us to scrutinise political
argument and deliberate social values.
[83]
Protected comment need thus not
be ‘fair or just at all’ in the sense in which these
terms are commonly understood.
Criticism is protected even if
extreme, unjust, unbalanced, exaggerated and prejudiced, so long as
it express an honestly-held
opinion, without malice, on a matter of
public interest on facts that are true. In the succinct words of
Innes CJ, the defendant
must justify the facts; but he need to not
justify the comment" (emphasis added)
54.
In the Hardaker case at paragraph 32 the
SCA (per Cameron J) held at “whether the jibe is ‘fair’
does not in law
depend solely or even principally on reason or
logic”. I propose to adopt a similar approach. Guided by the
principles that
I have enunciated above the statement in the SMS of
the First Respondent is fair comment in the sense elucidated above.
55.
The right of any political party
robustly to enter into political debate and disagreement with any
other political party is of the
essence of the conducting of a free
and fair election. The comments made by the DA in the bulk SMS
messages were comments made
in interpreting the Nkandla Report. One
has therefore to look at the totality of the Nkandla Report to see
whether it can be said
that “the Nkandla Report shows how Zuma
stole your money to build his R246m home” and whether a
statement is attributed
to the Public Protector which says that
President Zuma stole the money in question.
THE
FINDINGS OF THE PUBLIC PROTECTOR
That
which must immediately be appreciated in understanding this
judgement is that this Court does not sit in judgement on the
conduct of President Zuma. The function of this Court is not to make
a finding that the Public Protector was correct in making
the
findings that she did make in the Nkandla Report. This Court’s
function is to weigh and appreciate the contents of
the Nkandla
Report in order to form the view whether the contents of the
complained of SMS message constitutes a violation of
the relevant
section of the
Electoral Act and
Code given that the method of
interpretation of those provisions, that I have found is the correct
one, is one which allows fair
comment, in the sense that that which
is expressed must be one that a fair person might honestly hold. The
comment needs to be
fair only in the sense that objectively speaking
it qualifies ‘as an honest, genuine (thought possibly
exaggerated or prejudiced)
expression of opinion relevant to the
facts upon which it was based, and not disclosing malice’. It
can be readily seen
that I have accepted the dictum referred to
above which would hold that an important rationale for the defence
of protected or
‘fair’ comment is to ensure that
divergent views are aired in public and subjected to scrutiny and
debate.
THE
FINDINGS IN THE NKANDLA REPORT
56.
The findings in the Nkandla Report are
substantial, coming to some 400 pages. It is impossible for the
purpose of this judgement
to adequately summarise the entire contents
of the Nkandla Report. I intend to give a basic understanding of the
background facts,
a basic description of the process by which the
expansion of the work at Nkandla took place, the involvement of the
President in
the process and the conclusions reached by the Public
Protector. In doing so, I do not attempt an exhaustive analysis of
the report.
Thus my analysis will be as brief and to the point as
possible for the purpose of explaining the view that I have come to
in this
judgement.
57.
Before making an analysis of the
contents of the report, however brief it might be, I have to make a
trite but trenchant observation.
The Republic of South Africa is a
constitutional democracy in which all public officials, including the
President of the country,
are subject to constitutionally entrenched
controls over public power and the spending of public money. When it
comes to the spending
of public money and the control of such
spending, as the Public Protector has observed, the following
statutes, at the very least,
are of pivotal importance;
57.1
section 217 of the Constitution;
57.2
the
Public Finance Management Act 1 of
1999
, the (“PFMA”);
57.3
the Treasury regulations under the PFMA;
57.4
the Supply Chain Management Policy of
the Department of Public Works.
Whimsical
and uncontrolled use of public funds by the Executive is not
tolerated in a democracy such as ours.
58.
In weighing whether the contents of the
SMS sent out by the First Respondent claiming that “the Nkandla
Report shows how Zuma
stole your money to build his R246m home”
offends against the provisions of
Section 89
of the
Electoral Act of
Section
89(2)(c) of the
Electoral Act and
the relevant provision of
the Code referred to, one must observe that the SMS did not allege
that the report itself makes the finding
that
President
Zuma “stole”. It makes the assertion that the Nkandla
Report “shows how” President Zuma “stole”
taxpayers’ money to build his home.
59.
In assessing the findings made by the
Public Protector it is necessary to assess whether the SMS expresses
a conclusion which could
be fairly reached by a person reading the
report or not. I will make that assessment once I have, in brief,
summarised the major
facts and findings of the Nkandla Report.
THE
ESSENCE OF THE NKANDLA REPORT
60.
The necessity for building operations at
Nkandla commenced with an assessment that certain security upgrades
were necessary to be
brought about to the President’s home at
Nkandla. The necessity of some form of upgrade to improve the
security of the President’s
home is not disputed by any party.
61.
The initial security assessment by the
South African Police Services (“SAPS”), conducted in May
2009, assessed required
security upgrades with a value of R27 893
067.
In
the same period President Zuma planned to build three new houses as
part of his extended residence, which is situated on land
owned by a
Trust controlled by local traditional authorities. President Zuma’s
private architect was improperly appointed,
in the absence of any
competitive process, as the principal agent to also oversee the
upgrades to security at the residence.
This despite the fact that
the architect had no experience in security matters.
63.
The proposed security upgrades spiralled
out of control, and covered items which were plainly not required for
security purposes
including: a double story visitor’s centre
with a large lounge and balcony overlooking a pool area; an
“elaborate”
kraal with separate facilities for cattle,
goats and chickens; a culvert leading from the kraal under a security
fence; parking
facilities and a swimming pool; an amphitheatre and
marquee area; extensive roads; walkways and paving; and the
relocation of neighbours,
all because their dilapidated homes
“bothered the designers”.
In
addition, measures were implemented without considerations of
efficiency or use to the wider community. A private clinic was
built, rather than the sort of mobile clinic which sufficed for
President Mandela. This despite the fact that Nkandla is an area
radically underserved by health services. A helicopter pad was
included and extensive quarters for SAPS officers, without
consideration if their placement elsewhere would have been useful to
the community. A “safe haven”, which was initially
to
cost R500.000, eventually cost R19 million, including a series of
elevators for access.
65.
The President was constantly aware of
the details of the upgrade work. He was updated by his architect on
detailed proposals. Following
complaints from the President about the
slow progress, several Ministers, Deputy Ministers and officials were
specially deployed
to ensure that the work was carried out speedily.
They also reported back to President Zuma.
66.
The Nkandla residence was declared a
national key point in April 2010 in terms of the National Key Points
Act of 1980. This declaration
required that the President pay for
security upgrades. This was never required of President Zuma. A
suggestion by officials of
the Department of Public Works, namely
that President Zuma be required to pay for some nonsecurity
upgrades, never appears
to have been considered.
67.
The findings of the Public Protector include the following:
67.1
The
security upgrades were carried out contrary to a Cabinet Policy of
2003, and without any understanding of the relevant legal
prescripts.
This constituted “maladministration”.
[6]
67.2
The
measures went far beyond those required for security purposes, and
substantially increased the value of the President’s
private
residence, at the expense of the taxpayer.
[7]
67.3
Procurement
legislation was violated on a number of occasions by the appointment
of consultants and contractors in the absence of
competitive process
- in violation of Section 217 of the Constitution; the
Public Finance
Management Act 1 of 1999
; the Treasury Regulations; and the Supply
Chain Management Policy of the Department of Public Works. The
President’s architect
had a resulting conflict of interest. He
now bore duties to the Department of Public Works to ensure
cost-effectiveness, but also
was the President’s private
advisor. In the circumstances his fees escalated as the project
increased and ultimately amounted
to R16 million.
[8]
67.4
The
manner in which the project was undertaken indicated “a lack of
control and focused self-interest”. In the Executive
Summary to
the Report, the Public Protector states that “it is difficult
not to reach the conclusion that a licence to loot
situation was
created by government due to a lack of demand management by the
organs of the state involved ”
[9]
67.5
The
President was guilty of ethical violations. He was aware of the
upgrade work but never raised any concerns as to the scale and
cost
of this work at his private residence. The standards of ethical
conduct required by section 96 of the Constitution and the
Ethics Act
required that he be concerned.
[10]
President Zuma “tacitly accepted” the implementation of
these measures, for which he should have paid.
[11]
He failed to discharge his duties as President and as a beneficiary
of public privileges.
[12]
67.6
The
acts and omissions hat allowed such value to be added to the
President’s private residence constitute “unlawful
and
improper conduct and maladministration”.
[13]
President Zuma “improperly benefitted” from measures not
required for his security.
67.7
The
Public Protector’s considered view was that the President, as
the head of South Africa Incorporated, was wearing two hats,
that of
the ultimate guardian of the resources of the people of South Africa
and that of being a beneficiary of public privileges
of some of the
guardians of public power and state resources, but failed to
discharge his responsibilities in terms of the latter.
[14]
68.
These, in brief summary, are the
findings of the Public Protector. As I have said, that which the
First Respondent has done is made
a comment flowing from the findings
of the Public Protector. Clearly, the Public Protector has found that
the entire project was
not subject to adequate control of the
spending of public funds. The upgrades were carried out contrary to a
Cabinet Policy of
2003 and without any understanding of the relevant
legal principles. This constituted maladministration. The value of
the President’s
private residence was substantially increased
at the expense of the taxpayer. Procurement legislation was violated
on a number
of occasions by the appointment of consultants and
contractors. The project was undertaken in a manner which indicated a
lack of
control and a focused self-interest on the part of the
President. Most importantly, the Public Protector found it difficult
not
to reach the conclusion that a licence to loot situation was
created by government due to a lack of demand management by the
organs
of state.
69.
The meaning of the word “loot”
as given by the concise Oxford dictionary is “goods taken from
enemy, spoil; booty,
illicit gains made by official”. The use
of the word “loot” must be understood to have been meant
intentionally
by the Public Protector. The totality of the findings
speak of an untrammelled and uncontrolled or substantially
uncontrolled access
to public funds to benefit, without adequate
lawful authority, the State President. The Nkandla Report finds that
the President
was guilty of ethical violations in that being aware of
the upgrade work, he never raised any concerns as to the scale and
cost
of this work at his private residence. He "tacitly”
accepted the implementation of the upgrade measures for which he
should have paid and did not. He failed to discharge his duties as
President and as a beneficiary of public privileges. The acts
and
omissions detailed in the Nkandla report allowed such value to be
added to the President’s private residence and constituted
unlawful and improper conduct and maladministration leading to the
President improperly benefiting from measures that were not
required
for his security.
70.
When one takes the core findings of the
Nkandla Report into account and considers whether, particularly in
the context of the robust
political debate which lies at the centre
both of freedom of expression and which lies at the centre of not
stifling proper political
debate, I ask myself the question whether
the message contained in the SMS “the Nkandla Report shows how
Zuma stole your
money to build his R246m home” is an opinion
that a fair person, perhaps in extreme form might honestly hold. I
ask myself
whether the comment objectively speaking, could qualify as
an honest, genuine expression of opinion relevant to facts upon which
it was based and not disclosing malice. I ask myself the question
whether, in particular in the political environment, the SMS
of the
DA is ‘fair’, in the sense that I have referred to above,
in order to ensure that divergent views are aired
in public and
subjected to scrutiny and debate.
71.
I find the answer to those questions to
be in the affirmative.
72.
It is certainly not so that the report
of the Public Protector proves the commission by President Zuma of
the crime of theft. The
Public Protector’s report, as I have
set out fully, shows an unchecked or inadequately checked dipping
into public funds
by those responsible for the significant upgrades
to the President’s residence which took place according to the
Public Protector’s
report with the President’s knowledge,
tacit approval and to a significant degree active participation. The
use of the phrase
“licence to loot” comes very close to
the wording “stole” used in the complained of SMS.
73.
In these circumstances I do not find
that the SMS, using the words that it does, constitutes a breach of
Section 89(2)(c)
of the
Electoral Act or
of item 9(1 )(b)(ii) of the
Electoral Code.
74.
Accordingly whilst I find that this
application ought to be dealt with as a matter as urgency by virtue
of the importance to the
nation and to the nation’s voters of
the issues raised in this application I do not find that a case has
been made out by
the Applicant for the declaratory order sought by it
declearing that the dissemination of the text message in question
amounts
to the publication of false information in terms of
section
89(2)(c)
of the
Electoral Act or
that it amount to the publication of
a false allegation as envisaged of the relevant item of the Code.
75.
Having so concluded, none of the other
relief falls to be considered as the Applicants have faltered at the
first hurdle.
76.
In the result I make the following
order:-
The
application is dismissed with costs, including the costs of two
counsel.
Hellens
AJ
[1]
Rules
Regulating Electoral Disputes and Complaints about Infringements of
the Electoral Code of Conduct in
Schedule
2 of the Electoral Act, 1998 (Act 73 of 1998) and Determination of
Courts Having Jurisdiction
, published under General Notice 2915
in Government Gazette 19572 of 4 December 1998)
[2]
A violation of the Code is also a violation of the Act -
section 94
of the
Electoral Act.
[3
]
Gory
v Kolver No And Others (Starke and Others Intervening)
2007 (4) SA
97
(CC) at para 40, the Constitutional Court noted that it had
-"consistently emphasised that, where a litigant establishes]
that an infringement of an entrenched right has occurred, he or she
should as far as possible be given effective relief so that
the
right in question is properly vindicated."
in
Fose v Minister
of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
at para 69, the Court stated the following:
“
In
our context an appropriate remedy must mean an effective remedy, for
without effective remedies for breach, the values underlying
and the
right entrenched in the Constitution cannot properly be upheld or
enhanced.
Particularly
in a country where so few have the means to enforce 4 4 4 their
rights through the courts, it is essential that on
those occasions
when the legal process does establish that an infringement of an
entrenched right has occurred, it be effectively
vindicated. The
courts have a particular responsibility in this regard and are
obliged to 'forge new tools' and shape innovative
remedies, if needs
be, to achieve this goal.”
See
also MEC, Dept of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA)
at para 23ff.
[4]
Le Roux and Others V Dey
2010 (4) SA 210
(SCA) at para 11; Mthembi-
Mahanyeli v Mail and Guardian Ltd and Another
2004 (6) SA 329
at
para 63; Cele v Avusa Media Limited [2013) 2 All SA 412 (G)
[5]
In Hardaker v Phillips
2005 (4) SA 515
(SCA) at para 26 the Court
highlighted that the requirements for this found of defense were
that "(i) The statement must
constitute comment or opinion;
(ii) it must be 'fair'; (iii) the factual allegations being
commented upon must be true; and (iv)
the comment must relate to a
matter of public interest."
[6]
Paragraphs 9.1.1.13-9.1.1.14 of the Report.
[7]
Paragraph 9.2 17-9.2.19 of the Report, page 403
[8]
Executive Summary of the Report.
[9]
Executive Summary at page 39.
[10]
Para 9.5.4-9.5.7 and 9.5.10-9.5.12 of the Report.
[11]
Para 10.9.1.4 - 10.9.1.5 of the Report.
[12]
Para 10.10.1.4 of the Report.
[13]
Para 10.5.2-10.5.3 of the Report.
[14]
Report
para 10.10.1.4