Democratic Alliance v African National Congress and Another (CCT 76/14) [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR 298 (CC) (19 January 2015)

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Democratic Alliance v African National Congress and Another (CCT 76/14) [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR 298 (CC) (19 January 2015)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 76/14
In
the matter between:
DEMOCRATIC
ALLIANCE
....................................................................................
Applicant
and
AFRICAN
NATIONAL
CONGRESS
.........................................................
First
Respondent
INDEPENDENT
ELECTORAL COMMISSION
..................................
Second
Respondent
Neutral
citation:
Democratic Alliance v
African National Congress and Another
[2015]
ZACC 1
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J
and Zondo J
Judgments:
Zondo J with Jafta J and Leeuw AJ concurring (main
judgment): [1] to [115]
Cameron
J, Froneman J and Khampepe J with Moseneke DCJ and Nkabinde J
concurring (joint judgment): [116] to [169]
Van
der Westhuizen J with Madlanga J concurring (separate judgment):
[170] to [208]
Order:
[169]
Heard
on:
11 September 2014
Decided
on:
19 January 2015
Summary:
Alleged breach of section 89(2)(c) of
the Electoral Act —publication of false information to
influence outcome of election
— alleged breach of Electoral
Code of Conduct — defence of fair comment — opinion —
sections 16 and 19
of the Constitution —freedom of expression —
right to vote —  right to free and fair elections —
does
section 89(2)(c) of Electoral Act apply to a statement of
opinion or does it apply only to statements of fact? — analysis

of case law on fair comment —  penal provisions to be
interpreted restrictively — was published statement false?
—
statement that “the Nkandla report shows how Zuma stole your
money to build his R246m home” held to be opinion
and not
statement of fact and not to breach section 89(2)(c) of Electoral Act
— appeal from Electoral Court to Supreme Court
of Appeal
competent — leave to appeal granted — appeal upheld —
decision of Electoral Court set aside.
ORDER
On
appeal from the Electoral Court (hearing an appeal from the South
Gauteng High Court, Johannesburg):
1.
Leave to appeal is granted.
2.
There is no order as to costs.
3.
The order of the Electoral Court is set aside and replaced with the
following:
“
The
appeal is dismissed.”
JUDGMENT
ZONDO
J (Jafta J and Leeuw AJ concurring):
Introduction
[1]
This case concerns a statement
published by the Democratic Alliance (applicant)  on 20 March
2014 by way of a bulk short
message service (SMS) to more than 1.5
million potential voters in Gauteng concerning President Jacob Zuma,
President of the African
National Congress(first respondent) and of
the country.  The applicant sent the SMS with the intention of
persuading the recipients
thereof to vote for itself and not to vote
for the first respondent, its main political rival.  President
Zuma was the first
respondent’s presidential candidate for the
May 7, 2014 elections.  The elections were for members of
Parliament and
Provincial Legislatures.
[2]
The
first respondent took the view that the applicant’s statement
about its President was false and was published with the
intention of
influencing the outcome of the election.  It also contended
that, for that reason, the SMS constituted a breach
of section
89(2)(c) of the Electoral Act
[1]
and/or item 9(1)(b) of the Electoral Code of Conduct issued under the
Electoral Act.  It, therefore, made an application to
the South
Gauteng Division of the High Court (High Court) for an interdict and
other relief against the applicant on the basis
that the applicant
was not entitled to publish the SMS.
[3]
The applicant contended that the SMS
constituted fair comment or an opinion that could be honestly and
genuinely held by any fair
person, that the SMS was not false and
that the publication of the statement did not constitute a breach of
section 89(2)(c) of
the Electoral Act or item 9(1)(b) of the
Electoral Code of Conduct.
[4]
This
case raises the question of the relationship or intersection between,
on the one hand, the applicant’s right to freedom
of
expression
[2]
which includes the
right to impart information or ideas as well as the constitutional
right to campaign for a political party or
cause and, on the other,
the right to free and fair elections
[3]
and every adult citizen’s right to vote.
[4]
In this regard it must be emphasised that this Court has said that
the right to vote entrenched in section 19(3) of our Constitution
is
a right to vote in free and fair elections.
[5]
It has also said that the right to vote “is indispensable to,
and empty without, the right to free and fair elections”.
[6]
[5]
The publication of false information
by a political party or a candidate for election concerning a rival
political party or a rival
candidate in order to gain votes or in
order for certain voters not to vote for a certain party is anathema
to the notion of free
and fair elections and may violate the
citizens’ right to free and fair elections.  A statutory
prohibition of the publication
of a false statement during election
campaigns is a limitation of the right to freedom of expression and
the right to campaign.
However, at the same time such a
prohibition enhances the right to free and fair elections.  All
of these rights entrenched
in our Bill of Rights will need to be
borne in mind in interpreting section 89(2)(c) of the Electoral Act.
However, before
I deal with the question whether the applicant was
entitled to publish the SMS in issue, it is necessary to set out the
background
to the dispute.
Background
[7]
[6]
The applicant is a registered
political party.  It is the official opposition party in
Parliament.  The first respondent
is also a registered political
party.  It is the ruling party in South Africa and has been the
ruling party since the historic
elections of 1994.
[7]
President Zuma became President of
the first respondent in December 2007.  Less than two years
later, in May 2009, he became
President of the country.
[8]
In May 2009 officials of the
Department of Public Works (DPW) and representatives of the South
African Police Service (SAPS) visited
President Zuma’s private
residence in Nkandla, KwaZulu-Natal to determine whether the
residence had sufficient security measures
to ensure the safety of
the President and his family.  They found that the residence did
not have sufficient security measures.
[9]
In about 2009 President Zuma made
arrangements for the design and, ultimately, the building of three
additional houses in the Nkandla
residence.  To this end, he
appointed Mr Makhanya, an architect.
[10]
In August 2009 the DPW secured the
approval of an amount of R27 893 067 for the installation
of security measures in the
President’s private residence.  By
February 2010 the costs were estimated to have escalated to
about R80 836 249.
By July 2010 they were said to
have gone up to R130 604 267.02.
[11]
In about December 2011 the Public
Protector received complaints about the escalating costs that were
being incurred in connection
with the installation of alleged
security measures in President Zuma’s private residence.
The complainants included
the applicant and some members of the
public.  The complainants requested the Public Protector to
investigate the costs.
The Public Protector’s
investigation took two years.
[12]
On 18 February 2014 President Zuma
declared 7 May 2014 as a public holiday and the day on which national
and provincial elections
would be held.  In due course the
applicant, the first respondent and other political parties that were
registered to contest
the elections signed the Electoral Code of
Conduct issued under the Electoral Act and committed themselves
to observing its
provisions.
[13]
On 19 March 2014 the Public
Protector released the report of her investigation.  The report
is normally referred to as the
Nkandla Report (Nkandla Report or
Report).  On 20 March 2014 the applicant sent a message to 1 593
682 cellphones of potential
voters in Gauteng by way of an SMS.
The message 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
reference in the message to “Zuma” is a reference to
President Zuma.  During this time the applicant and the
first
respondent were involved in serious election campaigns throughout the
country.  It is common cause that, in sending
the SMS to the
more than 1.5 million potential voters, the applicant intended to
influence the outcome of the election that was
to be held on 7 May
2014.
In
the High Court
[14]
The first respondent took the view
that, in publishing the SMS, the applicant had acted in breach of
section 89(2)(c) of the Electoral
Act and item 9(1)(b) of the
Electoral Code of Conduct.  Section 89(2)(c) of the Electoral
Act precludes any registered political
party or candidate from
publishing any “false information” with the intention of
influencing the conduct or outcome
of an election.  The first
respondent, therefore, brought an urgent application in the High
Court for an interdict restraining
the applicant from further
disseminating or distributing the SMS and for an order compelling the
applicant to send another SMS
to the same recipients with an apology
in certain specific terms.
[15]
The first respondent contended that
the SMS meant that the Nkandla Report had found that President Zuma
had stolen R246 million
to build his home.  The first respondent
said that the Nkandla Report had not made any such finding and,
therefore, the SMS
was false.  According to the first
respondent, this meant that the applicant had published false
information with the intention
of influencing the outcome of the
election as contemplated in section 89(2)(c) of the Electoral Act.
It contended that, for
that reason, the publication of the SMS was in
breach of this statutory provision and the Electoral Code of
Conduct.  The
applicant, continued the contention, was not
entitled to publish the SMS.
[16]
The applicant opposed the first
respondent’s application.  It pointed out that the SMS did
not mean that the Nkandla
Report had found that President Zuma had
stolen R246 million to build his home.  It disputed that the SMS
was false.
It contended that the SMS meant that the Nkandla
Report showed how President Zuma had stolen “your money”
to build
his R246 million home.  It contended in its answering
affidavit that, “read in light of the Nkandla Report, the SMS
express[ed] an opinion that a fair person might honestly and
genuinely hold in light of the facts in the Report and the Report
must be understood and read in its totality”.
[17]
A critical issue that emerged from
the affidavits was whether the SMS constituted an expression of
comment/opinion or constituted
a statement of fact.  The
applicant maintained that the SMS constituted fair comment or was an
expression of opinion while
the first respondent maintained that it
was a statement of fact.
[18]
The matter came before Hellens AJ.
He referred, among others, to the right to freedom of expression in
section 16 of the Constitution,
its importance, particularly during
election campaigns and the constitutional right to political activity
provided for in section
19 of the Constitution.  He concluded
that the SMS was an expression of opinion.  The Court held that
an expression of
opinion was not prohibited by section 89(2)(c) of
the Electoral Act and item 9(1)(b) of the Electoral Code of Conduct.
In
considering the matter, the High Court appears not to have
considered the distinction between a statement of opinion and a
statement
of fact.  It held that the applicant had been entitled
to publish the SMS.  It dismissed the first respondent’s

application.  It subsequently granted the first respondent leave
to appeal to the Electoral Court.
In
the Electoral Court
[19]
The
first respondent appealed to the Electoral Court
[8]
against the judgment and order of the High Court.  On the
merits, the parties’ contentions before the Electoral Court

remained the same as before the High Court.  In a unanimous
judgment written by Mthiyane DP, the Electoral Court concluded
that
the SMS was not a comment or opinion but a statement of fact.
The Court also held that the statement was false because
the Nkandla
Report did not find that President Zuma had stolen “your money”
to build his R246 million home.  The
Court held that, in
publishing the SMS with the intention of influencing the outcome of
the election, the applicant had acted in
breach of section 89(2)(c)
of the Electoral Act and item 9(1)(b) of the Electoral Code of
Conduct.  It upheld the first respondent’s
appeal.
It declared the publication of the SMS to have been a contravention
of section 89(2)(c) of the Electoral Act and
item 9(1)(b)(ii) of the
Electoral Code of Conduct.  It ordered the applicant to send to
the same cellphone numbers an SMS
in terms prescribed by the Court
to, in effect, retract the earlier SMS.  The Court refused to
order the applicant to apologise
to the first respondent.
In
this Court
Jurisdiction
[20]
This matter clearly raises
constitutional issues.  It implicates, at a general level, the
right to freedom of expression which
includes the right to impart
information or ideas.  Since the publication of the SMS was part
of the applicant’s campaign
for the 2014 elections, the matter
also implicates in particular:
(a)
the right to campaign for a political party or cause as entrenched in
section 19(1) of the Constitution;
(b)
every citizen’s right to free and fair elections as entrenched
in section 19(2) of the Constitution; and
(c)
every adult citizen’s right to vote as entrenched in section
19(3) of the Constitution.
[21]
The matter implicates the last
mentioned two rights because the Electoral Act, which the first
respondent contends the applicant’s
publication of the SMS
breached, seeks to regulate and give content and effect to the right
to free and fair elections in section
19(2) of the Constitution and
to the right to vote entrenched in section 19(3) of the
Constitution.  The question that this
Court must determine, if
we grant leave to appeal, is whether in our law it is permissible for
a political party or candidate for
elections to publish a false
statement concerning a rival or rival party with the intention of
influencing the outcome of an election.
Obviously, we can only
reach that question if the statement was false. This Court clearly
has jurisdiction in respect of this matter.
[22]
This
Court’s jurisdiction is not ousted by the provisions of section
96(1) of the Electoral Act.
[9]
Leave
to appeal
[23]
This Court grants leave to appeal if
it is in the interests of justice that leave to appeal be granted.
A question that arises
in this matter is whether an appeal from a
decision of the Electoral Court to the Supreme Court of Appeal is
competent in the light
of the provisions of section 96(1) of the
Electoral Act.  This question arises because, if an appeal to
the Supreme Court
of Appeal is competent, that would be one of the
factors that this Court would have to take into account when
considering whether
it is in the interests of justice to grant the
applicant leave to appeal to this Court without having first appealed
to the Supreme
Court of Appeal.
[24]
Section 96(1) reads:
“
The
Electoral Court has final jurisdiction in respect of all electoral
disputes and complaints about infringements of the Code and
no
decision or order of the Electoral Court is subject to appeal or
review.”
This
provision was considered by this Court in
African
National Congress
[10]
in relation to the question whether it ousted this Court’s
appellate jurisdiction against a decision of the Electoral Court
in
respect of an electoral dispute or a complaint about an alleged
infringement of the Electoral Code of Conduct.  This Court
held
that the provision did not oust this Court’s jurisdiction
conferred upon it by the Constitution.  It held that

section 96(1) should be interpreted in a manner that is
consistent with the Constitution.  It pointed out that, indeed,

section 2 of the Electoral Act provides that any person interpreting
or applying the Electoral Act must do so in a manner that
“gives
effect to the constitutional guarantees”.
[11]
[25]
This
Court held that, were section 96(1) to be interpreted so as to oust
this Court’s jurisdiction, it would be inconsistent
with
section 167(3)(a) of the Constitution as it was then.  That
provision said at the time that this Court was the highest
Court in
all constitutional matters.  This Court then held that section
96(1) must be read “to mean that no appeal or
review lies
against a decision of the Electoral Court concerning an electoral
dispute or a complaint about an infringement of the
Code, save where
the dispute itself concerns a constitutional matter within the
jurisdiction of this Court”.
[12]
[26]
Section 168(3) of the Constitution
provides:
“
The
Supreme Court of Appeal may decide appeals in any matter arising from
the High Court of South Africa or a court of a status
similar to the
High Court of South Africa, except in respect of labour or
competition matters to such extent as may be determined
by an Act of
Parliament.”
In
terms of section 18 of the Electoral Commission Act
[13]
the Electoral Court has the same status as the High Court.  This
means that it is a court contemplated in the phrase “or
a court
of a status similar to the High Court of South Africa” in
section 168(3) of the Constitution.
[27]
The
applicant’s argument, as I understood it, was that the phrase
“to such extent as may be determined by an Act of
Parliament”
in section 168(3) of the Constitution qualified the phrase “the
High Court of South Africa or a court of
a status similar to the High
Court of South Africa” and that there was no such Act in
respect of the Electoral Court.
I do not agree.  That
phrase qualifies the words “except in respect of labour or
competition matters” and not
“the High Court of South
Africa or a court of a status similar to that of the High Court”.
Therefore, in respect
of appeals from the Electoral Court to the
Supreme Court of Appeal in electoral disputes or complaints about the
infringement of
the Electoral Code of Conduct, section 96(1) must be
interpreted in the same way in which this Court interpreted it in
African
National Congress
[14]
in relation to the jurisdiction of this Court.  The result is
that appeals from the Electoral Court to the Supreme Court of
Appeal
concerning electoral disputes or complaints about alleged
infringements of the Electoral Code of Conduct are competent.
[28]
Notwithstanding the fact that an
appeal from the Electoral Court to the Supreme Court of Appeal is
competent, I am of the opinion
that it is in the interests of justice
that we grant leave to appeal.  This is because:
(a)
the matter raises important constitutional issues;
(b)
there are reasonable prospects of success;
(c)
we have already heard full argument on all the issues in the matter;
and
(d)
if we insisted that the matter should first go to the Supreme Court
of Appeal, we may end up hearing the same matter for the
second time
after it has been to the Supreme Court of Appeal.
The
merits
Constitutional
and statutory framework
[29]
The dispute between the applicant
and the first respondent is whether the applicant was entitled to
publish the SMS that it published
on 20 March 2014 concerning
President Zuma in connection with the Nkandla Report.  The
first respondent contends that
the applicant was not entitled to
publish the SMS.  Its ground for this contention is that the
publication of the SMS constituted
publication of false information
with the intention of influencing the outcome of an election and that
is proscribed by section
89(2)(c) of the Electoral Act and item
9(1)(b) of the Electoral Code of Conduct issued under the
Electoral Act.
[30]
The applicant disputes the first
respondent’s contention.  It contends that, although it
did publish the SMS with the
intention of influencing the outcome of
the election, in doing so it was expressing fair comment or an
opinion which could genuinely
and honestly be held by any fair minded
person about President Zuma in the light of the Nkandla Report.
This is the defence
of fair comment that one finds in the law of
defamation.
[31]
In considering whether the
applicant’s conduct constituted a breach of section 89(2)(c),
it is necessary to bear in mind
the constitutional and statutory
framework that is relevant to the question.  In this regard the
starting point is that the
dispute between the parties is an
electoral dispute.  The publication of the SMS was done as part
of the applicant’s
election campaign ahead of the May 2014
elections.  The first respondent brought its application in the
High Court because
it believed that the applicant had acted in breach
of section 89(2)(c) and item 9(1)(b) of the Electoral Code of
Conduct.
To determine whether this is, indeed, so it is
necessary to have regard to the Constitution, the Electoral Act and
the Electoral
Code of Conduct.
[32]
Section 16(1) of the Constitution
confers upon everyone the right to freedom of expression which
includes freedom to receive or
impart information or ideas.
Section 19(1) confers upon “every citizen” the freedom to
make political choices
which includes the right “to campaign
for a political party or cause”.  The applicant relied
heavily upon these
rights.  However, these are not the only
rights entrenched in the Bill of Rights that are implicated in this
matter.
Although the first respondent did not specifically
refer to or rely upon other rights in the Bill of Rights, undoubtedly
it is
necessary, in considering this matter, to also have regard to
the rights entrenched in section 19(2) and (3)(a) of the
Constitution.
[33]
Section 19(2) reads:
“
Every
citizen has the right to
free
,
fair
and
regular elections for any legislative body established in terms of
the Constitution.”  (Emphasis added.)
Section
19(3)(a) reads:
“
Every
adult citizen has the right—
(a)
to vote in elections for any legislative body established in terms of
the Constitution”.
In
New
National Party
[15]
this Court held that “
[t]he
right to vote contemplated by section 19(3) is a right to vote in
free and fair elections
in terms of an electoral system prescribed by national legislation
which complies with the aforementioned requirements laid down
by the
Constitution”.
[16]
(Emphasis added.)  This Court also said that the Constitution
“recognises that it is necessary to regulate the
exercise of
the right to vote so as to give substantive content to the
right”.
[17]
[34]
The
Electoral Act is national legislation that seeks to regulate and give
content and meaning to the right to free and fair elections
and the
right to vote.  Indeed, in
New
National Party
this Court pointed out that the national legislation that prescribes
the electoral system required by the Constitution is the Electoral

Act.
[18]
It is because
the Electoral Act seeks to regulate and give content to the right to
vote and the right to free and fair elections
that the Electoral Act
contains provisions that proscribe certain conduct in connection with
elections and provides for the Electoral
Commission to issue an
Electoral Code of Conduct.
[35]
Section 99(1) of the Electoral Act
reads:
“
The
Electoral Code of Conduct must be subscribed to—
(a)
by every registered party before that party is allowed to contest an
election; and
(b)
by every candidate before that candidate may be placed on a list of
candidates in terms of section 31.”
[36]
Section 99(2) of the Electoral Act
reads:
“
In
order to promote free, fair and orderly elections
,
the Commission may compile and issue any other Code.”
(Emphasis added.)
Section
94 of the Electoral Act provides:
“
No
person or registered party bound by the Code may contravene or fail
to comply with a provision of that Code.”
Prohibited
conduct under Part 1
[37]
Part 1 of Chapter 7 of the Electoral
Act prohibits various types of conduct.   The purpose of
the prohibition is to ensure
conditions that are conducive to the
achievement of free and fair elections to which, as section 19(2) of
the Constitution provides,
all the citizens of this country are
entitled.  It is also to ensure that the right to vote in free
and fair elections that
this Court spoke about in
New
National Party
is not infringed.
[38]
The conduct prohibited under Part 1
falls under seven headings.  These are: undue influence,
impersonation, intentional false
statements, infringement of secrecy,
prohibitions concerning voting and election materials, prohibitions
concerning placards and
billboards during elections and obstruction
of, or, non-compliance with, a direction of the Electoral Commission,
chief electoral
officer and other officers.
[39]
Section 88 prohibits anyone from
resorting to impersonation in order to register as a voter or in
order to vote.  Section 90(1)
prohibits any interference with a
voter’s right to secrecy when casting a vote.  Section 92
reads:
“
From
the date on which an election is called to the date the result of the
election is determined and declared in terms of section
57, no person
may deface or unlawfully remove any billboard, placard or poster
published by a registered party or candidate.”
Section
97 renders any person who contravenes Part 1 of Chapter 7 of the
Electoral Act guilty of an offence.  Section 108 provides
that
on voting day no person may—
“
(a)
hold or take part in any political meeting, march, demonstration or
other political event; or
(b)
engage in any political activity, other than casting a vote in the
area within the boundary of a voting station”.
The
provisions of section 108 clearly limit the right to freedom of
expression, the right to freedom of movement, freedom of association,

the right to campaign and the right to take part in certain political
activities.  The purpose of all these limitations to
those
fundamental rights is to create conditions that are conducive to the
attainment of free and fair elections.
[40]
Schedule 1 to the Electoral Act is
the Electoral Code of Conduct.  It, too, prohibits certain types
of conduct.  In item
1 it makes its purpose clear:
“
The
purpose of this Code is to promote conditions that are
conducive
to free
and
fair
elections
,
including—
(a)
tolerance of democratic political activity; and
(b)
free political campaigning and open public debate.”
(Emphasis added.)
Item
9 of the Electoral Code of Conduct also deals with prohibited
conduct.  For example, it provides:
“
(1)
No registered party or candidate may—
(a)
use language or act in a way that may provoke—
(i)
violence during an election;
.
. .
(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 ward candidate or that candidate’s representatives”.
Item
4 of the Electoral Code provides in part:
“
(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;
(iii)
to publish and distribute election and campaign materials, including
notices and advertisements;
(iv)
to lawfully erect banners, billboards, placards and posters;
.
. .
(b)
publicly condemn any
action that may undermine the free and fair
conduct of elections
.
(2)
Every registered party and every candidate must accept the result of
an election or alternatively challenge the result in a
court.”
(Emphasis added.)
[41]
Against the above background it is
now appropriate to interpret section 89(2)(c) of the Electoral
Act.  In seeking to
interpret this provision, it is important to
bear in mind the interpretive injunction in section 39(2) of the
Constitution.
Section 39(2) reads:
“
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.”
In
Hyundai
[19]
this Court pointed out that “judicial officers must prefer
interpretations of legislation that fall within constitutional
bounds
over those that do not, provided that such an interpretation can be
reasonably ascribed to the section”.  Later
on Langa DP
warned that such an interpretation should not be unduly
strained.
[20]
Langa DP
quoted with approval a passage from
National
Coalition for Gay and Lesbian Equality
[21]
in which it was pointed out that interpreting legislation in a way
which “promotes the spirit, purport and objects of the
Bill of
Rights as required by s 39(2) of the Constitution . . . is limited to
what the text is reasonably capable of meaning”.
[42]
We must ensure that the
interpretation we give to section 89(2)(c) is not only consistent
with the right to freedom of expression
but also with all citizens’
right to free and fair elections and with every adult citizen’s
right to vote in free and
fair elections.  The right to freedom
of expression is certainly not the only constitutional right with
which the meaning
we give to section 89(2)(c) must be consistent.
Equally important is the need for us to also give section 89(2)(c) a
meaning
that is consistent with the right to free and fair
elections.  As this Court said in
New
National Party
, the right to vote
entrenched in our Constitution is a right to vote in free and fair
elections.  This means that any conduct
that threatens to render
an election unfree and unfair is conduct that threatens citizens’
rights to vote and to free and
fair elections.  To state the
obvious, an election that any political party or candidate wins as a
result of false statements
would be an unfair election.  As such
it would be an infringement of the citizens’ right to
free
and fair
elections.  It is,
therefore, important that no one resorts to making false statements
about a political party, its leaders
or candidates in order to win
votes or to divert votes from a political rival.
[43]
Through
O’Regan J in
Khumalo
[22]
this Court quoted with approval the following statement by Cory J in
Hill
v Church of Scientology of Toronto
:
[23]
“
False
and injurious statements cannot enhance self-development.  Nor
can it ever be said that they lead to healthy participation
in the
affairs of the community.  Indeed, they are detrimental to the
advancement of these values and harmful to the interests
of a free
and democratic society.”
[24]
Writing
for a unanimous Court, O’Regan J herself said in
Khumalo
:
“
There
can be no doubt that the constitutional protection of freedom of
expression has at best an attenuated interest in the publication
of
false statements.”
[25]
[44]
The right to free and fair elections
and the right to vote in such elections are very important rights in
our democracy.  Dealing
with the importance of the right to vote
in free and fair elections, this Court said in
New
National Party
:
“
The
importance of the right to vote is self-evident and can never be
overstated.  There is, however, no point in belabouring
its
importance and it is sufficient to say that the right is fundamental
to a democracy, for without it there can be no democracy.
But
the mere existence of the right to vote without proper arrangements
for its effective
exercise
does nothing for a democracy; it is both empty and useless
.”
[26]
(Emphasis added.)
[45]
Later on this Court said in the same
case:
“
The
Constitution takes an important step in the recognition of the
importance of the right to exercise the vote by providing that
all
South African citizens have the right to free, fair and regular
elections.  It is to be noted that all South African citizens

irrespective of their age have a right to these elections.  The
right to vote is, of course, indispensable to, and empty without,
the
right to free and fair elections; the latter gives content and
meaning to the former.  The right to free and fair elections

underlines the importance of the exercise of the right to vote and
the requirement that every election should be fair has implications

for the way in which the right to vote can be given more substantive
content and legitimately exercised.  Two of these implications

are material for this case: each citizen entitled to do so must not
vote more than once in any election; any person not entitled
to vote
must not be permitted to do so.  The extent to which these
deviations occur will have an impact on the fairness of
the
election.  This means that the regulation of the exercise of the
right to vote is necessary so that these deviations can
be eliminated
or restricted in order to ensure the proper implementation of the
right to vote.”
[27]
(Footnote omitted.)
[46]
In
interpreting section 89(2)(c) we should look for an interpretation
that strikes an appropriate balance between the right to freedom
of
expression and to campaign, on the one hand, and, on the other, the
right to free and fair elections and the right to vote in
free and
fair elections.  As this Court said in
Khumalo
:
“[A]lthough freedom of expression is fundamental to our
democratic society, it is not a paramount value.  It must be

construed in the context of the other values enshrined in our
Constitution”.
[28]
In
this regard it must be remembered that the provisions of the
Electoral Act that may be seen to limit the right to freedom
of
expression such as section 89(2)(c)—
(a)
serve a good purpose in our democracy; they seek to create conditions
that are conducive to the attainment of free and fair
elections which
sustain our democracy; and
(b)
operate only for a few months in every five year electoral cycle
relating to national and provincial elections as well as municipal

elections; generally, they limit that right for about four months in
every cycle of 60 months relating to either election.
[47]
The reason for my emphasis of the
right to free and fair elections and the right to vote is that the
first respondent’s complaint
was that, in publishing the SMS,
the applicant resorted to the publication of a false statement about
its presidential candidate
with the intention of influencing the
election outcome.  It contends that such conduct constituted a
breach of section 89(2)(c).
Our Constitution demands nothing
short of free and fair elections.  The publication of false
statements by one or other
party in order to obtain votes that it may
otherwise not have received is inconsistent with the right to free
and fair elections
and is a threat to the right to free and fair
elections and to the proper exercise of the right to vote.
[48]
Section 89(1) and (2) of the
Electoral Act reads:
“
(1)
No person, when required in terms of this Act to make a statement,
may make the statement—
(a)
knowing that it is false; or
(b)
without believing on reasonable grounds that the statement is true.
(2)
No person may publish any false information with the intention of—
(a)
disrupting or preventing an election;
(b)
creating hostility or fear in order to influence the conduct or
outcome of an election; or
(c)
influencing the conduct or outcome of an election.”
[49]
A comparative reading of the
provisions of section 89(1) and those of section 89(2) reveals
that—
(a)
under subsection (1)(a) what is prohibited is two types of conduct;
the one type of conduct is making a statement knowing that
it is
false, the other, which is under subsection (1)(b), is the making of
a statement that the  person making it has no reasonable
grounds
to believe is true; this means that the making of a false statement
when the maker of the statement has reasonable grounds
to believe is
true is not prohibited by subsection (1)(b).
(b)
under subsection (2) what is prohibited is the publication of false
information with the intention of doing any one or more
of the things
specified in paragraphs (a) to (c).  The false information must
be published with the intention of—
(i)
disrupting or preventing an election;
(ii)
creating hostility or fear in order to influence the conduct or
outcome of an election; or
(iii)
influencing the conduct or outcome of an election.
Under
subsection (2) the publication of false information is not prohibited
if it is not done with any of the intentions provided
for in (i) to
(iii).  Under subsection (1) an express allowance is made for a
person to make a statement that is false without
being hit by the
prohibition therein if he or she has reasonable grounds for believing
that the information or statement is true.
Under subsection (2)
no express allowance is made for a person to publish false
information and not be hit by the prohibition
just because he or she
has reasonable grounds to believe that the information is true.
[29]
[50]
The prohibition against the
publication of false statements with the intention of influencing the
outcome of an election serves
a good purpose in our democracy.
The holding of elections that are not fair would be an infringement
of the right to free
and fair elections.  The use in an election
by any political party or candidate of false statements about its
opponents in
order to influence the outcome of an election stands in
conflict with the citizens’ rights to free and fair elections.

Without free and fair elections, we would have no democracy.
[51]
In my view the meaning of section
89(2)(c) is simply that it prohibits the publication of false
information with the intention of
influencing the conduct or outcome
of an election.  It was not the applicant’s case that,
even if the SMS was false,
the publication of the SMS was not a
breach of section 89(2)(c) because the applicant believed on
reasonable grounds that the SMS
was true.  It was only in its
application for leave to appeal to this Court that the applicant made
an attempt to introduce
that defence.  It had not included that
defence in its answering affidavit in the High Court which is where
it had to state
its defence.  Its defence was simply that the
SMS constituted fair comment or an opinion that any fair person could
have honestly
and genuinely held and that the SMS was not false.
[52]
Even
if it can be said that the applicant reasonably believed that the SMS
was true, an interdict could still be granted against
it if the
information it published was false and was published with the
intention of influencing the conduct or outcome of the
election.
All that would be required is to satisfy the requirements for an
interdict.  This is so because, for such
proceedings –
which must be distinguished from criminal proceedings – it is
not necessary to prove fault.
[30]
As I have said earlier, the publication of false information with the
intention of influencing the conduct or outcome of
an election is a
threat to, or, a violation of, the right to free and fair elections
which every political party contesting elections
is entitled to
protect and defend.  Every such political party has an interest
in the holding of a free and fair election.
That political
party may approach a court for an interdict when anybody does
anything that threatens the possibility of having
free and fair
elections.
The
meaning of the SMS
[53]
The material part of the applicant’s
SMS read:
“
The
Nkandla report shows how Zuma stole your money to build his R246m
home.”
The
applicant contends that this SMS meant that the Nkandla Report shows
how President Zuma stole taxpayers’ money to build
his R246
million home.  That amounts to repeating the wording of the SMS
and it is not helpful.  The applicant contends
that the SMS did
not mean that the Nkandla report found that Mr Zuma had stolen
taxpayers’ money.
[54]
In its answering affidavit in the
High Court the applicant said about the meaning of the SMS:
“
The
approach by the ANC suggests that the SMS is false because the
Nkandla Report does not find the President guilty of the crime
of
theft.
The SMS does not, however,
suggest that the Report
made that
finding
.
”
(Emphasis added.)
The
applicant went on:
“
Instead,
the SMS notes that the Report ‘shows how’ President Zuma
stole”.
In
other words the applicant says that in the SMS it was simply noting
“that the Nkandla Report shows how President Zuma stole
. . .”
In its founding affidavit filed in this court in support of the
application for leave to appeal, the applicant
also said:
“
In
the first place, the SMS did not allege that the Report made the
positive finding that President Zuma ‘stole’ but
that it
shows how President Zuma ‘stole taxpayers’ money for the
purposes of building his own home’.”
The
first respondent contends that the SMS meant that the Nkandla report
had found that President Zuma had stolen taxpayers’
money to
build his R246m home.
[55]
In seeking to determine the meaning
of the SMS, it is important to bear in mind that it must be given the
meaning which an ordinary
reasonable reader would have given it.
[56]
In
the
South
African Associated Newspapers Ltd & Another v Yutar
[31]
the then Appellate Division of the Supreme Court of South Africa (now
the Supreme Court of Appeal) had to give a meaning to a
Sunday Times
poster that read: “How Dr Yutar misled the Court”.
The similarity between that statement and the part of the
SMS that
reads: “how Zuma stole your money” is remarkable.
The
Sunday
Times
of the same day carried an article that was headed: “Examination
of documents in
Van
Schalkwyk
case shows that: Dr. Yutar misled the Court”.  About the
meaning of the words in the poster: “How Dr Yutar misled
the
Court”, the Appellate Division said:
“
The
poster is a separate document.  It is true that the words ‘How
Dr Yutar misled the Court’ were intended as
an invitation to
read the relevant article in the
Sunday Times
of that day, but, to the knowledge of the appellants, a great many
people would not accept that  invitation.  They would
see
the poster and not read the paper.
What
the poster told them, in a general way and without reference to any
particular occasion, was, in effect, that Dr. Yutar misled
the Court
and that, if they read the paper, they would be told how he did
it
.”
[32]
(Emphasis added.)
A
few lines later the Court said that the statement “How Dr Yutar
misled the Court” suggested that “the reader
[would] find
in the paper an exposition of the manner in which Dr Yutar [had]
misled the Court”.  The Appellate Division
later went back
to the issue and said:
“
As
far, at any rate, as those are concerned who did not read the
article, the poster conveyed, as a simple statement of fact . .
.
that Dr. Yutar had misled the court”.
[33]
[57]
The Appellate Division also made
another example of a statement using the word “how”.
It said:
“
If,
for instance, a poster should read: ‘How A murdered B’;
that would amount to a factual statement that A murdered
B coupled
with an indication that the reader will find in the paper a
description of how the deed was done.  I can find no
distinction
between such a poster and the one here in question.”
[34]
In
the present case the applicant’s SMS contained the words “how
Zuma stole your money to build his R246m home”.
It is
important to bear in mind that the material part of the SMS included
the first four words of the SMS.  Those words were:
“The
Nkandla report shows” which are then followed by the words:
“how Zuma stole your money to build his R246m
home”.
Using the approach of the Appellate Division in
Yutar
in
regard to the statement “How Dr Yutar misled the Court”,
I am of the view that an ordinary reasonable reader would
regard the
four words “The Nkandla report shows” as denoting nothing
more than the source where the statement that
Mr Zuma stole “your
money to build his R246m home” would be found.
[58]
The
meaning contended for by the applicant is one that would require an
ordinary reasonable reader to engage in an analysis of the
SMS that I
think an ordinary reasonable reader is unlikely to undertake.
In this regard it is appropriate to remember Holmes
JA’s
warning in
Dorfman
v Afrikaanse Pers Publikasies(Dorfman).
[35]
There Holmes JA said that
“
A
court in deciding whether a newspaper report is defamatory must ask
itself what impression the ordinary reader would be likely
to gain
from it.  In such an inquiry the court
must
eschew any intellectual analysis of the contents of the report and
must also be careful not to attribute to the ordinary reader
a
tendency towards such analysis or an ability to recall more than an
outline or over-all impression of what he or she has just
read
.”
[36]
(Emphasis
added.)
In
my view this passage applies with equal force to a case such as the
present.
[59]
An ordinary reasonable reader who
read the statement in the SMS would not think that the Nkandla Report
could give an exposition
of how Mr Zuma stole the taxpayers’
money without making a finding that he had stolen taxpayers’
money to build his
home.  Accordingly, an ordinary reader would
have understood the SMS as saying that the Nkandla Report was to the
effect that
Mr Zuma stole “your money to build his R246m
home”.  The meaning of the SMS that the applicant contends
for would
only apply if the SMS read: “An analysis of the
Nkandla Report shows how Zuma stole your money to build his R246m
home”.
In other words, this meaning would indicate that
how Mr Zuma stole “your money” was not a conclusion of
the Nkandla
Report but a conclusion resulting from an analysis of the
Nkandla Report.
[60]
In my view an ordinary reasonable
reader would have understood the SMS to say that the Nkandla report
stated or found that President
Zuma stole taxpayers’ money to
build his R246 million home and explained how he had done that.
I think that, if someone
said, for example: “The article in
this newspaper shows how the accused killed his lover”,
ordinarily one would understand
that person to be saying that the
newspaper article states that the accused killed his lover and has
details of how he did it.
[61]
It may well be that there may be
cases where a newspaper article would be able to show how an accused
killed his lover without stating
that he killed her or him but, in my
view, that is not the meaning that an ordinary reasonable reader
would ordinarily attach to
such a statement.  The same applies
if someone made the statement: “This judgment shows how A stole
government funds”.
An ordinary reasonable reader would
understand that statement to mean that the court’s judgment has
found that A stole government
funds and it gives details of the
manner in which he stole the funds.  An ordinary reasonable
reader would not think that
a court’s judgment could say how A
stole government funds without in fact saying that he stole those
funds.  Ordinarily,
a newspaper article or a judgment that shows
how an accused killed his lover or that shows how A stole government
funds will more
often than not contain a statement or finding that
the accused killed his lover or that A stole government funds.
[62]
In these circumstances I conclude
that the SMS meant, and would ordinarily have been understood by an
ordinary reasonable reader
to mean, that the Nkandla report said or
found that President Zuma had stolen taxpayers’ money to build
his R246 million
home and the Report gave details of how he had done
that.  In my view it is, to say the least, implicit in the
statement:
“The Nkandla report shows how Zuma stole your money
to build his R246m home” that the report says or finds that Mr
Zuma stole taxpayers’ money to build his home.
Does
section 89(2)(c) apply to an opinion?
[63]
The next question for determination
is whether the prohibition in section 89(2)(c) covers an
expression of opinion.  In
my view, it does not.  This is
because what section 89(2) prohibits is the publication of
“false information”
and an opinion cannot be said to be
false.  An opinion may be wrong or unjustified but it cannot be
said to be false.
Only a statement of fact can be said to be
false.  Accordingly, the expression of any opinion by one
political party about
another political party or its leader is not
hit by the prohibition in section 89(2).  The applicant would,
therefore, have
been entitled to express any opinion about President
Zuma that it wanted to express provided that such an opinion was
honestly
held by it and had some acceptable factual foundation.
The
applicant’s defence
[64]
It is now necessary to look at fair
comment as a defence because that is the defence upon which the
applicant relies.  That
fair comment is the applicant’s
defence is based on the fact that the applicant said so in its
answering affidavit in the
High Court.  Mr Selfe said:
“
The
declaratory relief sought in paragraphs 2 and 3 of the notice of
motion rests [on] the allegation that the SMS is false.
As
indicated above, it is submitted that the proper test is whether the
SMS amounts to fair comment – in the sense that it
qualifies as
an honest, genuine expression of opinion relevant to the facts upon
which it is based.  In this regard it is
further submitted that
the SMS does indeed constitute such a protected expression of opinion
based upon the Nkandla Report.”
In
submitting in the last sentence of this quotation that the SMS
constituted “a protected expression of opinion”, Mr
Selfe
may have been influenced by this Court’s suggestion in
McBride
[37]
that the defence of fair comment should be called: “protected
comment”.
[38]
[65]
That the applicant’s defence
is fair comment is also supported by the manner in which the
applicant formulated its defence.
It formulated it in the same
manner in which fair comment is formulated as a defence in defamation
cases.  In its answering
affidavit the applicant formulated its
defence thus:
“
It
is submitted that, read in the light of the Nkandla Report,
the
SMS expresses an opinion that a fair person might honestly and
genuinely hold in the light of the facts in the Report
.
In this regard, the Report must be understood and read in its
totality.”  (Emphasis added.)
The
applicant took this wording from case law that deals with “fair
comment” as a defence in defamation cases.
A reference to
a few cases will demonstrate this.  In
Crawford
v Albu
,
[39]
Innes CJ quoted Buckley LJ as having said in
Hunt
v Star Newspaper Co
:
[40]
“
The
question for the jury is whether the comment is in their opinion
beyond that which a
fair
man
,
however extreme might be his views in the matter, might make
honestly
and without malice and which was not without foundation.”
[41]
(Emphasis added.)
In
Crawford
[42]
Innes CJ also made the following statement about the definition of
“fair comment” as given by Collins MR in
McQuire
v Western Morning News Company Limited
:
[43]
“I think we may with advantage adopt it by saying that any
genuine expression of opinion is fair if it is relevant and if
it is
not such as to disclose actual malice.”
[44]
[66]
This Court also said in
McBride
:
“
As
already indicated, it is a requirement in our law that the comment
sought to be protected must qualify 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.”
[45]
In
the affidavit in support of its application for leave to appeal to
this Court the applicant even submitted that “the Electoral

Court erred in failing to understand the SMS as a legitimate
expression of opinion and a
fair comment
protected by the
Constitution”.  (Emphasis added.)  The applicant also
said:
“
The
DA submits instead that the correct interpretation of the Act and the
Code should be guided by the manner in which courts have
dealt with
the concept of lawfulness in defamation cases.”
[67]
The
applicant also referred to
National
Media Ltd & Others v Bogoshi
,
[46]
Pienaar
and Another v Argus Printing and Publishing Co Ltd
,
[47]
Argus
Printing and Publishing Co Ltd v Inkatha Freedom Party
,
[48]
Mthembi-Mahanyele
v Mail and Guardian Ltd and Another
,
[49]
The
Citizen 1978 (Pty) Ltd v
McBride
[50]
and
Hardaker
v Phillips
.
[51]
All these cases are defamation cases.  In written submissions in
this Court, Counsel for the applicant devoted a section
to a
discussion of these cases and submitted that “speech must be
accommodated if it amounts to a fair comment”.
[68]
I refer to all the above in order to
show that the discussion of fair comment and cases on that topic in
this judgment is necessitated
by the fact that the applicant relied
on fair comment as a defence.
[69]
I am not certain that fair comment
is a competent defence to a case based on a breach of section
89(2)(c) of the Electoral Act.
However, in the circumstances of
this case I am prepared to assume that it is.  That being the
case, it is necessary to consider
whether the applicant has proved
fair comment as a defence.
[70]
In
Roos
v Stent and Pretoria Printing Works, Ltd
[52]
Innes CJ quoted the following statements by Lord Justice Fletcher
Moulton in
Hunt
v Star Newspaper Co
:
[53]
“
The
law as to fair comment, so far as is material to the present case
stands as follows: In the first place, comment,
in
order to be justifiable as fair comment must appear as comment
and
must not be so mixed up with facts that the reader cannot distinguish
between what is report and what is comment.  The
justice of this
rule is obvious.
If
the facts are stated separately and the comment appears as an
inference drawn from those facts, any injustice that it might do
will
be to some extent negatived by the reader seeing the grounds upon
which the unfavourable inference is based.  But if
fact and
comment be intermingled, so that it is not reasonably clear what
portion purports to be inference, he will naturally suppose
that the
injurious statements are based on adequate grounds known to the
writer, though not necessarily set out by him.  In
the one case
the insufficiency of the facts to support the inference will lead
fair-minded men to reject the inference.  In
the other case, it
merely points to the existence of extrinsic facts which the writer
considers warrant the language which he uses
.”
[54]
(Emphasis added and footnotes omitted.)
[71]
Innes
CJ said in
Roos
that in
Hunt
v Star Newspaper Co
Lord Justice Fletcher Moulton was dealing with a case where “the
facts which were commented upon did appear in the publication
but
were so mixed up with the comments that it was impossible to say what
were the facts and what was comment”.
[55]
He said that Lord Justice Fletcher Moulton’s words seemed to
him to “apply à fortiori to cases where the
facts
commented upon are not placed before the reader at all”.
[56]
Innes CJ continued:
“
There
must surely be a placing before the readers of the facts commented
upon before the plea of fair
comment
can operate at all
.
I do not wish to be misunderstood upon this point; I do not desire to
say that in all cases the facts must be set out verbatim
and in full;
but
in my opinion there must be some reference in the article which
indicates clearly what facts are being commented upon
.
If
there is no such reference, then the comment rests merely upon the
writer’s own authority
.”
[57]
(Emphasis added.)
[72]
In
Roos
,
Smith J also referred with approval to the passage quoted by Innes CJ
from the judgment of Lord Justice Fletcher Moulton in
Hunt’s
case.  Smith J also said:
“
If
the defence of fair comment cannot be sustained when the fact and
comment are so intermingled as to be indistinguishable the
one from
the other,
à
fortiori
it cannot be fair comment if none of the facts on which the
expression of opinion is based appear”.
[58]
However,
Smith J went on to say that he thought that there could be cases
“
where
the facts are so notorious that they may be incorporated by
reference.”
[59]
He
then continued:
“
but
in the present [case] no reference was made to any sources from which
the writer deduced the facts on which he based the assertion

complained of.  No opportunity was afforded to a reader of the
article to know the grounds on which the imputation was based.

I therefore think that the defence of fair comment should fail.”
[60]
[73]
In
Crawford
Innes
CJ also said that the defence of fair comment is available only if it
is “based upon facts expressly stated or clearly
indicated and
admitted or proved to be true”.
[61]
In
Johnson
v Beckett
[62]
Harms AJA examined the requirement that the facts upon which a
comment is made must be stated in the article or publication.

In this regard he referred to cases such as
Roos
,
Crawford
and others.  He concluded that
“
[l]iterary
criticism may be justified by reference to published works referred
to in general or by implication in the alleged defamatory

statement.”
[63]
(Citation omitted.)
The
Appellate Division did not reverse the requirement that the facts
must be stated in the publication.  It only affirmed
that this
requirement does not apply if the criticism refers to published works
referred to in general or by implication in the
alleged defamatory
statement.
[74]
Smith J also said in
Roos
:
“
If
the defence of fair comment cannot be sustained when the facts and
comment are so intermingled as to be indistinguishable the
one from
the other, à fortiori  it cannot be fair comment if none
of the facts on which the expression of opinion is
based appear.”
[64]
Later,
Smith J said in the same case:
“
It
is clear that they are not fair comment, because none of the facts on
which they are based appear in the article.”
[65]
[75]
In
McBride
[66]
this Court said:
“
The
defence of protected or ‘fair’ comment requires at the
outset that the facts be ‘truly stated.’
This
means that to receive the benefit of the defence it must be clear to
those reading a publication
‘
what
the facts are and what comments are made upon them’.  A
commentator is not protected if he or she ‘chooses
to publish
an expression of opinion which has no relation, by way of criticism
to any fact before the reader
.”
[67]
(Emphasis added and
footnotes omitted.)
In
this last sentence this Court made it clear that a commentator is not
protected if the opinion does not relate to “any
fact [placed]
before the reader”.  The rationale for this is that the
reader must be able to separate fact from opinion
and assess the
correctness or otherwise of the opinion for himself or herself.
If an opinion is expressed without any facts
placed before the
reader, the reader is deprived of the opportunity of assessing the
correctness of the opinion himself or herself.
[76]
In
McBride
this Court also pointed out:
“
The
requirement that the facts must be truly stated does not mean, as
Innes CJ pointed out a century ago, that ‘in all cases
the
facts must be set out verbatim and in full.’
This
is because ‘there may be cases where the facts are so notorious
that they may be incorporated by reference
.”
[68]
(Emphasis added and footnotes omitted.)
This
Court pointed out that in
Crawford
the Court took into account notorious facts about the labour
disturbances on the Witwatersrand during 1913 and 1914 from which
the
publication had arisen even though the comment had not expressly set
them out.  This Court then said: “It was enough
[in the
Crawford
matter] that the facts were ‘in the common knowledge of the
person speaking, and those to whom the words [were] addressed’.”
[69]
(Footnotes omitted.)
[77]
It is important to also refer to
another passage in this Court’s judgment in
McBride
where this Court said:
“
The
Citizen’s claim that Mr McBride lacked contrition was therefore
unfounded and false.
Alternatively,
if the Citizen wished to express the view that Mr McBride was not
contrite, it was obliged to inform its readers
of the facts
underlying its opinion, since they were not notoriously known
.
As the trial [J]udge found, the information was available to
the Citizen at the time it claimed Mr McBride lacked contrition.

It made no reference to it.  Its assertion was therefore a
far-going and unwarranted untruth”.
[70]
(Emphasis added.)
[78]
In its answering affidavit in the
High Court the applicant formulated its defence thus:
“
It
is submitted that,
read in light of the
Nkandla Report
, the SMS expresses an
opinion that a fair person might honestly and genuinely hold in [the]
light of the facts in the Report.
In this regard, the Report
must be understood and read in its totality.”  (Emphasis
added.)
This
is not what the applicant said in the SMS.  This is what it said
in its answering affidavit in the High Court.  Note
must be
taken of the fact that in this passage the applicant’s case is
that through the SMS it was expressing an opinion
that a fair person
might honestly and genuinely hold “in light of the facts in the
Report”.  In other words, the
facts upon which its alleged
opinion was based were those to be found in the Report.  The
applicant’s case, as set out
in its answering affidavit in the
High Court, was not that its opinion was based on facts that were
notorious and would have been
known to the recipients of the SMS
simply by virtue of their notoriety.
[79]
In
so far as the applicant contends that the SMS was a comment or
opinion, the law requires that the facts upon which a comment
is
based must be stated in the publication unless they are sufficiently
notorious that the persons who read or hear the comment
would have
known those facts.  In this case the applicant relies on the
conclusions or findings of the Public Protector in
the Nkandla
Report.  The Nkandla Report was released on 19 March 2014 and
the applicant published its SMS the following day.
It did not
set out any of those findings or facts in its SMS.  There would
still have been enough room in the SMS for it to
have included at
least three or four of the most serious findings of the Public
Protector upon which its alleged comment or opinion
was based.
It did not do so.  In
Telnikoff
[71]
Lord Keith said:
“
In
my opinion the letter must be considered on its own.  The
readers of the letter must have included a substantial number
of
persons who had not read the article or who, if they had read it, did
not have its terms fully in mind.”
[72]
[80]
It is not the applicant’s case
that the recipients of its SMS were persons who fell into a category
of persons who would have
read the Nkandla Report by the time they
received the SMS nor is it its case that the recipients were a
category of persons who
are likely to have had access to the Report
shortly after their receipt of the SMS.  This case must simply
be decided on the
basis that the recipients of the applicant’s
SMS were potential voters in Gauteng who most probably had not read
the Nkandla
Report by the time they received the applicant’s
SMS.  There is also no basis to think that most of them would
have
read the report soon after receiving the SMS.
[81]
The applicant has not advanced
reasons why it could not have waited longer before it published its
SMS.  Waiting longer would
have given people in general an
opportunity to read the findings of the Public Protector in the
newspapers so that, when the recipients
of its SMS received it, they
would have been likely to be aware of those findings.  The
election day was still about seven
weeks away, namely 7 May 2014.
The applicant could have easily allowed at least another three weeks
after the release
of the Nkandla Report to lapse before publishing
its SMS.  By then, it could well be said that, even if people
did not have
access to the Nkandla Report itself, they may have been
familiar with some of its findings that would have been disseminated
or
commented upon in the media.  The applicant elected to
publish its SMS only one day after the release of the Report when
many
people would not have become familiar with its findings.
It must take the consequences of its election.  The defence
of
fair comment upon which the applicant relies is not available as the
facts on which it was based were neither stated in the
SMS nor
notorious.
[82]
I also do not think that to justify
its failure to state in the SMS the facts on which the alleged
opinion was based it is open
to the applicant to argue that there was
limited space for a long message on a cellphone.  I think that
this is not open to
the applicant because it was up to it to choose
another medium of communication to convey its opinion which would
have allowed
it to state the facts upon which the alleged opinion was
based.  The applicant could have taken out an advertisement in a
newspaper.  Obviously, that would have been far more costly than
sending an SMS but the applicant should have thought of the

limitations of space on a cellphone before it chose the SMS as the
medium of communication it was going to use.  The only
exception
to the requirement that the facts on which a comment or opinion is
based must be stated in the publication concerned
is a case where the
facts are notorious.  In this case the findings of the Public
Protector were not as yet notorious at the
time the SMS was
published.  They should, therefore, have been briefly stated in
the SMS.
[83]
With the changes required by the
context, this Court should say to the applicant what it said to The
Citizen in
McBride
about the statement that Mr McBride was not contrite.  This
Court should say that
—
“
[i]f
the [applicant] wished to express the view that [President Zuma
‘stole your money to build his R246 million home’],

it was obliged to inform [the recipients of the SMS] of the facts
underlying its opinion since they were not notoriously known . . .

the information was available to the [applicant at the time it
claimed that the Nkandla Report shows how Zuma stole your money
to
build his R246m home.]”
[84]
It is now necessary to examine the
first respondent’s case.  The question is whether the
first respondent did show that
the applicant acted in breach of the
provisions of section 89(2)(c) and item 9(1)(b) of the Electoral Code
of Conduct.  I
have already held that a statement of opinion or
comment is not hit by the provisions of section 89(2)(c) but that
only a statement
of fact is hit by that provision.  A statement
of fact is hit by that provision if it has been published, is false
and the
publication was made with the intention of influencing the
conduct or outcome of an election.  The next question for
determination
is whether the SMS constituted a statement of fact or a
statement of opinion or comment.
Was
the applicant’s SMS an expression of comment/opinion or a
statement of fact?
[85]
About fair comment as a defence,
Innes CJ said the following in
Roos
which might throw light on the distinction between comment and a
fact:
“
[I]t
is obvious that to entitle any publication to the benefit of this
defence it must be
clear
to those who read it what the facts are and what comments are made
upon them
.
And for two reasons.  Because it is impossible to know whether
the comments are fair unless we know what the facts
are; and because
the public must have an opportunity of judging of the value of the
comments.
If
a writer chooses to publish an expression of opinion which has no
relation, by way of criticism, to any fact before the reader,
then
such an expression of opinion depends upon nothing but the writer’s
own authority, and stands in the same position as
an allegation of
fact
.
It cannot be covered by a plea of fair comment.”
[73]
(Emphasis added.)
In
my view it cannot be said that it was “clear to those who read”
the SMS what the facts were and what comments were
being made upon
them.  This was a case in which, as the last portion of this
passage says, a writer chose to publish a statement
which had no
relation by way of criticism, to
any fact before
the reader.
Therefore, it stands in the same position as an allegation of fact.
[86]
In
the second last sentence in this passage
[74]
Innes CJ says in effect that an expression of opinion where the
writer does not put any facts before the reader stands in the same

position as an allegation of fact.  In
Roos
,
Smith J pointed out “three things” that he said must be
established in order for the defence of fair comment to succeed.

The third one that he gave was that—
“
it
must clearly appear
that the words are intended as comment, and not as an independent
assertion of fact on the part of the person using them.
It is
often not at all an easy matter to decide as to what is a comment and
what is an assertion of fact.  As the Court pointed
out in
Van
Gorkom’s
case, comment may appear in the guise of a statement of fact, but it
will not cease to be comment if it is clearly intended as
such”.
[75]
(Emphasis added.)
It
cannot be said that it “clearly appears” that the SMS was
intended as comment.  On the contrary, it seems that
it was
intended to convey to the reader that the Nkandla Report stated as a
fact that President Zuma had stolen taxpayers’
money.
[87]
In
Crawford
the words which the defendant had used to describe certain people
including Crawford for which he was sued for defamation were:
“they
are criminals in the fullest sense of the word”.
[76]
The defendant’s defence was that those words constituted fair
comment.  The trial Court had found that that statement
was in
essence comment upon a prior statement of fact to the effect that all
the strife on the Witwatersrand had been caused by
Crawford and his
fellow deportees.
[77]
[88]
Innes
CJ took the view that the statement that “they are criminals in
the fullest sense of the word” was a statement
of fact.
In explaining himself, he, inter alia, said that, whether or not the
statement constituted comment depended “upon
the meaning to be
given to the words – whether they should be taken in their
ordinary sense or not”.
[78]
[89]
Later on and with regard to the
reasons given by the trial Judge for his view that the statement
constituted comment, Innes CJ said:
“
No
doubt the respondent called the appellant and others criminals,
because of the part they played in the strikes and labour
disturbances
to which he had made a general reference.  To that
extent his remark might be regarded as inference.  But all
inference
is not necessarily comment.  An allegation of fact may
be plainly inferred, and yet may be made in such a shape that it
remains
fact.  And that, I think, was the position here, if the
words used [are to] be taken in their plain and usual sense.

The presumption is that ordinary words convey to those who hear them
their ordinary meaning.  The ordinary meaning of criminal
is one
who has committed a crime, that is an offence against society
punishable by the State.  As generally used it connotes
moral
guilt. . . No doubt the word ‘criminal’ may be used in a
somewhat different sense.  When employed as an
adjective in such
expressions as ‘criminal negligence’, it may signify
nothing more than ‘highly reprehensible.’
But
here it was used as a description of the men, not as an attribute to
their conduct.  And it would naturally have been so
understood.
It was not, as it seems to me, a question of how the attitude
and conduct of the deportees could be best described,
whether as
fanatical or criminal
.
The speaker in the passage complained of was not criticising their
actions, but stigmatising the men.”
[79]
(Emphasis added.)
[90]
Later, Innes CJ said:
“
So
far as the defendant is concerned, he did say that he did not mean
criminals in the ordinary sense of the word; he meant that
the
attitude they took up was criminal. . . But the question is not what
he intended, but what his language in its ordinary signification

meant.”
[80]
[91]
In
Crawford
Solomon JA said:
“
Now,
it is true that on the face of it the statement that ‘the
deported men were criminals in the fullest sense of the term’

appears as a statement of fact, but that does not conclude the
matter, for a comment may take the form of a statement of fact.

This is very well brought out in some of the later English cases, but
nowhere more clearly than in the judgment of Field, J in
the case of
O'Brien
v
Salisbury
where
he says: ‘
It
seems to me . . . that comment may sometimes consist in the statement
of a fact and may be held to be comment, if the fact so
stated
appears to a be a deduction or conclusion come to by the speaker from
other facts stated or referred to by him, or in the
common knowledge
of the person speaking, and those to whom the words are addressed,
and from which conclusion may be reasonably
inferred.  If a
statement in words of a fact stands by itself naked without
reference, either express or understood, to other
antecedent or
surrounding circumstances notorious to the speaker, and to those to
whom the words are addressed, there would be
little, if any, room for
the inference that it was understood otherwise than as a bare
statement of fact, and thus if untrue there
would be no answer to the
action ;but, if, although stated as a fact, it is preceded or
accompanied by such other facts, and it
can be reasonably based upon
them, the words may reasonably be regarded as comment and comment
only, and, if honest and fair, excusable.
”
[81]
(Emphasis added and citation omitted.)
[92]
Where the last sentence of this
passage says “without reference either express or understood,
to other antecedent or surrounding
circumstances”, it refers to
antecedent or surrounding circumstances that are notorious to the
speaker or writer as well
as notorious to “those to whom the
words are addressed”.  In the present case the findings of
the Public Protector
in the Nkandla Report were not yet notorious.
The applicant’s SMS made no reference to facts that were
notorious
to the recipients of the SMS.  That being the case,
Solomon JA’s statement in the above passage that in such a case
“there would be little, if any, room for the inference that
[the statement] was understood otherwise than as a bare statement
of
fact” applies with equal force to the SMS.  The recipients
of the SMS would have understood the SMS as nothing else
but a
statement of fact.  The applicant’s SMS did not appear,
and, was not recognisable, to the ordinary reasonable
person as a
comment.  It appeared and was recognisable as a statement of
fact.
[93]
In
Crawford
Solomon JA regarded as a correct statement of the law Buckley LJ’s
statement of the circumstances under which he held
in
Hunt
v Star Newspaper Co
[82]
that the defence of fair comment applied.  In
Crawford
Solomon JA said in part:
“
These
are clearly set forth by the learned Judge in the court below as
follows: (1) The allegation must appear and be recognisable
to the
ordinary reasonable man as comment and not as a statement of
fact”.
[83]
[94]
In
Crawford
Innes CJ said:
“
It
is possible, however, for criticism to express itself in the form of
an assertion of fact deduced from clearly indicated facts.
In
such cases it will still be regarded as comment for the purposes of
this defence.  The operation of the doctrine will not
be ousted
by the outward guise of criticism.
Then
the superstructure of comment must rest upon a firm foundation, and
it must be clearly distinguishable from that foundation.
It
must relate to a matter of public interest and it must be based upon
facts expressly stated or clearly indicated and admitted
or proved to
be true.  There can be no fair comment upon facts which are not
true.  And those to whom the criticism is
addressed must be able
to see where fact ends and comment begins, so that they may be in a
position to estimate for themselves
the value of the criticism.
If the two are so entangled that inference is not clearly
distinguishable from fact, then those
to whom the statement is
published will regard it as founded upon unrevealed information in
the possession of the publisher; and
it will stand in the same
position as any ordinary allegation of fact
”.
[84]
(Emphasis added and footnotes omitted.)
[95]
In
Moolman
v Cull
[85]
Centlivres AJA, writing for a unanimous Appellate Division, said:
“
Any
matter, therefore, which does not indicate with reasonable clearness
that it purports to be comment, and not statement of fact
cannot be
protected by the plea of fair comment.
”
[86]
(Emphasis added.)
Can
it be said that the applicant’s SMS indicated with “reasonable
clearness” that it purported to be comment
and not a statement
of fact?  The answer is no.  If the answer is no, then it
was not a comment or opinion but a statement
of fact.
[96]
In
Pearce
v Argus Printing & Publishing Co Ltd
[87]
Davis J said:
“
What
differentiates a comment from a statement of fact?  I venture to
think that the test may be thus stated. If the statement
is such that
a reasonable hearer or reader will perceive it to be an opinion or
inference drawn from the facts stated, then it
is a comment.  If,
on the other hand, a reasonable man would think that it is not based
on those facts, but stands alone,
or that it is based on other facts
which are within the knowledge of the speaker or writer, but which he
has not stated, then it
is a statement of fact.”
[88]
On
this test the applicant’s SMS is an allegation of fact.
An ordinary reasonable reader of the SMS would not subject
it to the
same scrutiny to which a lawyer or professor or Judge would subject
it.  As Williamson JA said in his concurring
judgment in
Dorfman
:
“The test is, certainly not how a trained lawyer after an
astute and careful analysis of the words, might understand the

article nor how any supercritical reader might read it.”
[89]
An ordinary reasonable reader would perceive the SMS as saying
that the Nkandla Report said that Mr Zuma stole taxpayers’

money to build his R246 million home and, therefore, as a statement
of fact and not as a comment.  It is how an ordinary reasonable

reader would have perceived or understood the SMS that counts.
[97]
In
Yutar
[90]
the Appellate Division said:
“
As
indicated, inter alia, in
Crawford
v Albu
,
comment may take the form of a statement of fact, where such a
statement is a deduction or conclusion from other facts.
But as
pointed out by Innes CJ in that case every inference is not
necessarily comment.  ‘An allegation of fact may
be
plainly inferred, and yet may be made in such a shape that it remains
fact’.
To
qualify as comment, one of the requirements it has to satisfy is that
it ‘must appear and be recognisable to the ordinary
reasonable
man as comment and not as a statement of fact.
”
[91]
(Emphasis added and footnote omitted.)
[98]
In
Hardaker
v Phillips
[92]
the Supreme Court of Appeal re-affirmed that the test for determining
whether a statement is one of comment or opinion or one of
fact is
that the allegation must appear and be recognisable to the ordinary
reasonable person as comment and not as a statement
of fact.  There,
the Supreme Court of Appeal said:
“
The
test is whether the reasonable reader of Hardaker’s affidavit
would understand his statement as a comment.  One of
the
hallmarks of a comment is that it is connected to and derives from
discernible fact.  This is a textbook instance of a
comment
plainly presented as such.  Hardaker expressly related it to the
facts on which he based it (‘based on this
evidence’).
That he sought to obtain the court’s endorsement for his
conclusion – the purpose of a ‘submission’
–
does not detract from its status as a comment”.
[93]
(Footnotes omitted.)
[99]
In
McBride
this Court said:
“
[I]f
the
Citizen
wished to express the view that Mr McBride was not contrite, it was
obliged to inform its readers of the facts underlying its opinion,

since they were not notoriously known.  As the trial judge
found, the information was available to the Citizen at the time
it
claimed Mr McBride lacked contrition.  It made no reference to
it.”
[94]
In
this passage this Court said that, if the facts upon which an alleged
opinion is based are not made known to the reader in circumstances

where those facts are not notoriously known, this would be an
indication that the statement is not an opinion or comment but a

statement of fact.  In
McBride
this Court also took the
statement that Mr McBride lacked contrition as a statement of fact.
No facts were stated in the
article upon which that statement was
based.  We must apply this principle to the applicant’s
SMS.  If we apply
this principle to the SMS, the conclusion
would be that the applicant’s SMS was not comment or opinion
but was a statement
of fact.
[100]
In
Telnikoff
one of the questions that the Court had
to determine was whether certain statements made in a letter by the
defendant as a response
to an article that had been written
previously by the appellant were statements of fact or statements of
opinion or comments.
In deciding that question, the Court had
to answer the question whether the letter had to be read alone for
this purpose or whether
it had to be read together with the article
previously published by the appellant.  Writing for the
majority, Lord Keith said:
“
In
my opinion the letter must be considered on its own.  The
readers of the letter must have included a substantial number
of
persons who had not read the article or who, if they had read it, did
not have its terms fully in mind.”
[95]
The
readers of the SMS would have included a substantial number of people
who had not yet read the Nkandla Report.
[101]
Later on in
Telnikoff
,
Lord Keith said:
“
The
writer of a letter to a newspaper has a duty to take reasonable care
to make clear that he is writing comment, and not making

misrepresentations about the subject matter upon which he is
commenting.
There
is no difficulty about using suitable words for that purpose, such as
those which Lloyd LJ thought capable of being implied.
Likewise
any newspaper editor should be under no difficulty in observing
whether his correspondent has used language apt
to make clear that
what he writes is pure comment and does not contain
misrepresentations about what he is commenting on
.”
[96]
(Emphasis added.)
These
words apply with equal force to this case.  The applicant should
have made it clear in the SMS that it was giving comment
or an
opinion.  It did not do so.  Later on in the same judgment,
Lord Keith said:
“
Any
critic, whether private or public, whether individual or press, must
simply make
clear
that he is not quoting the plaintiff but is commenting on words which
the plaintiff has uttered.
”
[97]
(Emphasis added.)
[102]
In
Canadian law the test for determining whether a statement is one of
fact or is an expression of opinion or comment seems to be
the same.
In
WIC
Radio
[98]
Binnie J said: “What is comment and what is fact must be
determined from the perspective of a ‘reasonable viewer or

reader’”.
[99]
[103]
There is a duty on the writer of a
comment or opinion to make it clear that he or she is making a
comment.  In
Moolman
the Appellate Division said:
“
Any
matter, therefore, which does not indicate with reasonable clearness
that it purports to be comment and not statement of fact
cannot be
protected by the plea of fair comment.”
[100]
[104]
In
WIC
Radio
[101]
the Supreme Court of Canada also seems to suggest that the absence of
a factual foundation to a statement is an indication that
the
statement is not to be regarded as comment.  In that case it was
said:
“
It
is true that ‘[t]he comment must explicitly or implicitly
indicate, at least in general terms, what are the facts on which
the
comment is being made.  What is important is that the facts be
sufficiently stated or otherwise be known to the listeners
that
listeners are able to make up their own minds on the merits of Mair’s
editorial comment.  If the factual foundation
is unstated or
unknown, or turns out to be false, the fair comment defence is not
available.”
[102]
In
the same case it was also said:
“
It
should go without saying that people evaluate statements of opinion
differently than statements of fact.  In discussing
what
constitutes a statement of fact as opposed to comment, Lord Herschel
noted that the distinction cannot be too clearly borne
in mind
between comment or criticism and allegations of fact, such as that
disgraceful acts have been committed, or discreditable
language
used.  It is one thing to comment upon or criticise, even with
severity, the acknowledged or proved acts of a public
man, and quite
another to assert that he has been guilty of particular acts of
misconduct.”
[103]
[105]
This
Court’s statement in
McBride
that, “if the
Citizen
wished to express the view that Mr McBride was not contrite, it was
obliged to inform its readers of the facts underlying its opinion

since they were not notoriously known”
[104]
suggests that, where the facts upon which an alleged comment or
opinion is based are not notorious, a writer’s failure to

inform the readers of those facts may be taken as an indication that
the statement is a statement of fact and not opinion.
[106]
In regard to the statement: “How
Dr Yutar misled the Court”, which appeared in a poster of the
Sunday Times
,
the Appellate Division said in
Yutar
:
“
In
so far as it informed the public at large that [Dr Yutar] had misled
the court, it is not, I think, identifiable as comment.
It does
not suggest that an inference is being drawn from facts stated in the
paper, but that the reader will find in the paper
an exposition of
the manner in which Dr Yutar misled the court.  Such an
exposition is not the same as an inference from facts.
If, for
instance, a poster should read: ‘How A murdered B; that would
amount to a factual statement that A murdered
B coupled with an
indication that the reader will find in the paper a description of
how the deed was done.  I can find no
distinction between such a
poster and the one here in question.  As far, at any rate, as
those are concerned who did not read
the article, the poster
conveyed, as a simple statement of fact, and not by way of
identifiable comment, that Dr Yutar had misled
the court; and to that
extent; this defence cannot avail the appellants.”
[105]
[107]
It seems to me that, if the
statement in the poster: “How Dr Yutar misled the Court”
was correctly taken as a statement
of fact, then the statement: “how
Zuma stole your money. . .” must also be accepted as a
statement of fact.  Of
course, the statement in issue in the
present case is not just “How Zuma stole your money to build
his R246m home”
but it is “The Nkandla report shows how
Zuma stole your money to build his R246m home”.  The
question that arises
is whether the four words “The Nkandla
report shows. . . ” which appear before the words “how
Zuma stole your
money to build his R246m home” change what is
otherwise a statement of fact into a statement of opinion or comment.
[108]
I do not think that the four words
have the effect of changing a statement of fact into a statement of
opinion or comment.
The only difference that these words
introduce is to indicate the source that shows that “Zuma stole
your money to build
his R246m home”.
[109]
That the statement: “The
Nkandla report shows how Zuma stole your money to build his R246m
home” is one of fact becomes
clearer when put in the passive
voice.  In the passive voice that sentence would read: “How
Zuma stole your money is
shown by the Nkandla report”.
[110]
I conclude that the SMS constituted
a statement of fact and not comment or an opinion.
Was
the statement in the SMS false?
[111]
The applicant accepts that the
Nkandla report did not say or find anywhere that President Zuma stole
taxpayers’ money to build
his home.  In its answering
affidavit in the High Court, the applicant’s deponent said that
“[t]he SMS does not
suggest that the [Nkandla] Report made [the
finding that the President was guilty of theft]”.
[112]
The reference to a “licence to
loot” that is made in the Report is not directed at the
President.  Indeed, it falls
outside the section of the Report
that focuses on the findings concerning the President.  Also,
the statement in the Report
relating to “misappropriation”
of funds was not directed at the President.  It relates to other
people.
Indeed, it does not appear in the section of the Report
that contains specific findings concerning the President.  In my
view
the most serious finding in the Report against the President is
one to the effect that the President failed to ask pertinent
questions
when he saw certain improvements being made to his home
which had nothing to do with security measures for his residence but
he
failed to do so.  The Nkandla report directed this criticism
at the President on the basis that, as President of the country,
it
was his duty to prevent the abuse of taxpayers’ money.
In the Report the Public Protector also says that the
President ought
to have intervened when the media broke out with reports of a huge
escalation of costs for the Nkandla project.
[113]
These findings of the Public
Protector do not say that the President stole taxpayers’
money.  They say that, when the
President learnt of the
escalations of costs, he should have intervened to find out what
exactly the position about the costs was.
The criticism is
that, in failing to intervene, the President failed to meet the
standard of conduct that could reasonably be expected
from a Head of
State or leader who had the obligation to protect the resources of
the South African people.  I understand
this finding to mean
that the President was negligent and failed to show leadership that
could be expected from someone occupying
the position that he
occupies.  The Report does not go beyond this and does not
attribute theft to the President.
[114]
I conclude that the statement in the
SMS was false and, since the other elements of a violation of section
89(2)(c) had been met,
the applicant did violate section 89(2)(c) of
the Electoral Act and item 9(1)(b) of the Electoral Code of Conduct.
I am therefore,
in respectful agreement with the unanimous conclusion
of the Electoral Court.  The applicant and first respondent
agreed that,
whatever the outcome, no order as to costs should be
made.
[115]
In the result I would dismiss the
appeal and make no order as to costs.
CAMERON
J, FRONEMAN J AND KHAMPEPE J (Moseneke DCJ and Nkabinde J
concurring):
[116]
This
dispute is about the boundaries of free speech affecting elections.
The Electoral Act
[106]
(Act)
provides that no person may publish “any false information”
with the intention of influencing the conduct or
outcome of an
election.
[107]
Similarly, the Electoral Code (Code), which parties undertake to
comply with during elections,
[108]
prohibits false allegations about a party and its members.
[109]
The applicant, the Democratic Alliance (DA), accepts these provisions
are constitutionally valid but denies they apply to
an SMS it sent
out.  The SMS was sent in bulk to nearly 1.6 million voters
on 20 March 2014, the day after the Public
Protector released a
report on construction work at President Zuma’s home at Nkandla
(Report).  That was some seven
weeks before the 2014 general
elections.  The DA admits that the SMS was intended to influence
the outcome of the elections.
It 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.”
[117]
The
first respondent, the African National Congress (ANC), objected to
the SMS, asserting that it violated section 89(2) of the
Act and item
9(1)(b) of the Code because it disseminated false information.
The ANC sought, but was denied, urgent relief
in the High
Court.
[110]
On appeal
to the Electoral Court, its complaint prevailed.
[111]
That Court found that the SMS was a statement of fact and the factual
claim it made was clearly false.  It therefore
transgressed the
provisions.  The Court ordered the DA to retract the SMS by
dispatching another SMS to all those who had
received it, saying:
“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.”
[118]
This application challenges that
outcome.  We have read the judgments by our colleagues Zondo J
(main judgment) and Van der
Westhuizen J.  We embrace the main
judgment’s fuller exposition of the facts, as well as its
findings that this Court
has jurisdiction to hear the matter, that
the interests of justice favour our hearing it, and that leave to
appeal must be granted.
But we differ from its conclusion.
In our view, the appeal should not fail.  It must succeed.
An
issue of interpretation
[119]
What
is at stake here is an issue of statutory interpretation.  It is
not a defamation case.
[112]
The law of defamation must be invoked with caution.  The rights
and interests weighed against each other in a defamation
case are not
those at issue here.  The reputation and dignity of a particular
person are not at the forefront of the statutory
interpretation
enquiry before us.  The requirements to sustain a defamation
claim, as well as those that underlie defences
to the claim, are
grounded in the competing rights to and interests of freedom of
expression as against those of dignity and reputation.
[113]
To import the latter considerations here would unnecessarily distort
a fairly straightforward enquiry into the meaning and
purpose of
statutory provisions.
[120]
The primary task is to ascertain
what kinds of “information” and “allegations”
are hit by the prohibition
in section 89(2) of the Act and item
9(1)(b) of the Code.  Are they only factual statements, or do
they include expressions
of opinion?  To get to the answer we
must start with the Constitution.
Constitutional
setting
[121]
We start with three obvious
propositions: the cherished value of being able to speak freely and
uninhibitedly; the importance of
this value to our country’s
elections; and the need to interpret penal provisions restrictively.
[122]
First,
freedom of expression.
[114]
This Court has already spoken lavishly about this right.  The
Constitution recognises that people in our society must
be able to
hear, form and express opinions freely.  For freedom of
expression is the cornerstone of democracy.  It is
valuable both
for its intrinsic importance and because it is instrumentally
useful.  It is useful in protecting democracy,
by informing
citizens, encouraging debate and enabling folly and misgovernance to
be exposed.  It also helps the search for
truth by both
individuals and society generally.  If society represses views
it considers unacceptable, they may never be
exposed as wrong.
Open debate enhances truth-finding and enables us to scrutinise
political argument and deliberate social
values.
[115]
[123]
What
is more, being able to speak freely recognises and protects “the
moral agency of individuals in our society”.
[116]
We are entitled to speak out not just to be good citizens, but
to fulfil our capacity to be individually human.
[124]
Second,
and crucially for this case, being able to speak out freely is
closely connected to the right to vote and to stand for public

office.
[117]
That
right lay at the core of the struggle for democracy in our country.
Shamefully, it was for centuries denied to
the majority of our
people.  In celebrating the democracy we have created, we
rejoice as much in the right to vote as in the
freedom to speak that
makes that right meaningful.  An election without as much
freedom to speak as is constitutionally permissible
would be stunted
and inefficient.  For the right to freedom of expression is one
of a “web of mutually supporting rights”
the Constitution
affords.
[118]
Apart
from its intense connection to the right to vote, it is closely
related to freedom of religion, belief and opinion,
[119]
the right to dignity,
[120]
as well as the right to freedom of association
[121]
and the right to assembly.
[122]
[125]
As this Court has noted, these
rights, operating together, protect the rights of people not only
individually to form and express
opinions, but to establish
associations and groups of like-minded people to foster and propagate
their views.  They confirm
the importance, both for a democracy
and the individuals who comprise it, of being able to form and
express opinions – particularly
controversial or unpopular
views, or those that inconvenience the powerful.
[126]
The
corollary is tolerance.  We have to put up with views we don’t
like.  That does not require approval.
It means the public
airing of disagreements.  And it means refusing to silence
unpopular views.
[123]
As Mogoeng CJ has recently explained:
“
Ours
is a constitutional democracy that is designed to ensure that the
voiceless are heard, and that even those of us who would,
given a
choice, have preferred not to entertain the views of the marginalised
or the powerless minorities, listen.”
[124]
(Footnote omitted.)
[127]
Third,
by prohibiting publication of false information during an election,
section 89(2) and item 9(1)(b) place a limit on freedom
of
expression.  The parties accept that it does so for good and
justifiable reason.  But what must we take it to mean?
Our
interpretation must be guided by the fact that the provision imposes
severe penalties on those who breach it.  Any person
who
contravenes section 89(2) or item 9(1)(b) is guilty of a
criminal offence.
[125]
Anyone convicted is liable to a fine or to imprisonment for up to 10
years.
[126]
[128]
Quite
apart from liability to criminal prosecution and imprisonment, the
Act gives the Electoral Court extensive additional powers
to punish
transgressors.  When that Court finds that a person or
registered party has contravened section 89(2) or item 9(1)(b),

it may impose “any appropriate penalty or sanction”.
[127]
The statute specifies a long list of what punishments may be
appropriate.  They may include a formal warning, a fine
of up to
R200 000, the forfeiture of a deposit, prohibiting the person or
party from using any public media or holding public
events or
canvassing or electoral advertising, reducing the number of votes
obtained by the person or party, or disqualifying the
person’s
or party’s candidature entirely.  The statute provides
expressly that these penalties or sanctions are
“in addition
to” the criminal penalties specified.
[128]
[129]
These are tough provisions.
Very tough.  They show the statute’s proscriptions have
meaning.  And they could
operate with calamitous effect on a
person or party who falls foul of them.  These considerations
point to how we must approach
the interpretation of section 89(2) and
item 9(1)(b).  In case of doubt, we are obliged to interpret
their prohibitions restrictively.
This means that we must
resolve any ambivalence in them, or uncertainty about their meaning,
against the risk of being penalised.
[130]
The
restrictive interpretation of penal provisions is a long-standing
principle of our common law.
[129]
Beneath it lies considerations springing from the rule of law.
The subject must know clearly and certainly when he
or she is subject
to penalty by the state.  If there is any uncertainty about the
ambit of a penalty provision, it must be
resolved in favour of
liberty.
[130]
[131]
This
Court has endorsed this approach.
[131]
And indeed the Bill of Rights gives these considerations added
force.  It posits the rule of law as a founding value
of our
constitutional democracy.
[132]
It entrenches the common law’s protections against arbitrary
deprivation of liberty and imprisonment.
[133]
The common law presumption in favour of interpreting penalty
provisions restrictively therefore applies with added force
under the
Constitution.  And the interpretive injunction in the Bill of
Rights itself requires us to interpret section 89(2)
and item 9(1)(b)
to promote its spirit, purport and objects.
[134]
[132]
Conversely, suppressing speech in
the electoral context will inevitably have severely negative
consequences.  It will inhibit
valuable speech that contributes
to public debate and to opinion-forming and holds public
office-bearers and candidates for public
office accountable.
Because those who speak may not know – indeed, often cannot
know – in advance whether their
speech will be held to be
prohibited, they may choose not to speak at all.
[133]
To
these propositions, which earlier we called obvious, we add a further
observation.  Political life in democratic South Africa
has
seldom been polite, orderly and restrained.  It has always been
loud, rowdy and fractious.  That is no bad thing.
Within
the boundaries the Constitution sets, it is good for democracy, good
for social life and good for individuals to permit
as much open and
vigorous discussion of public affairs as possible.
[135]
[134]
During
an election this open and vigorous debate is given another, more
immediate, dimension.  Assertions, claims, statements
and
comments by one political party may be countered most effectively and
quickly by refuting them in public meetings, on the internet,
on
radio and television and in the newspapers.  An election
provides greater opportunity for intensive and immediate public

debate to refute possible inaccuracies and misconceptions aired by
one’s political opponents.
[136]
[135]
So
freedom of expression to its fullest extent during elections
enhances, and does not diminish, the right to free and fair
elections.
[137]
The
right individuals enjoy to make political choices is made more
meaningful by challenging, vigorous and fractious debate.
Meaning
of section 89(2) and item 9(1)(b)
[136]
Now
to the nub.  What do the prohibitions in section 89(2) and item
9(1)(b) mean?  We must, of course, read the provisions
in
context.
[138]
Chapter
7 of the statute, in which section 89(2) appears, has five parts:
prohibited conduct; enforcement; offences and penalties;
additional
powers and duties of the Electoral Commission; and other general
provisions.
[137]
Part
1 groups the statute’s prohibitions together.  It creates
several criminal offences.  These are also, as explained,

subject to the Electoral Court’s additional sanction and
penalty powers.  In summary, these are prohibitions on “undue

influence”, particularised as prohibiting any person from
compelling or persuading voters to register or to vote or interfering

with the independence or impartiality of the Electoral
Commission;
[139]
impersonating a voter or candidate;
[140]
“[i]ntentional false statements” – the provision at
issue here;
[141]
infringing
a voter’s right to secrecy in casting a ballot;
[142]
unauthorised use of voting or election materials or the voters’
roll;
[143]
defacing or
unlawfully removing billboards, placards or posters;
[144]
obstructing the Electoral Commission, the chief electoral officer and
other officers;
[145]
and
contravening the Code.
[146]
[138]
It
is evident from the setting in which section 89 appears that its
prohibition on false information is designed, as are most of
the
other prohibitions grouped with it, primarily to protect the
mechanics of the conduct of an election: voting, billboards, ballot

papers, election stations, observers, vote counts.  It is
directed to protecting the rights enshrined in section 19 of the
Bill
of Rights,
[147]
namely the
rights to make political choices, to free, fair and regular elections
and to vote and stand for public office.
Here, that the
prohibition relates specifically to false “information”
is an indication, bolstered by the context,
that it is
election-related information that must not be falsely disseminated.
[139]
Seen
in this context, the “false information” prohibited by
section 89(2) would, thus, for the most part, relate to
the kind of
statements that could produce the effects set out in the provision
itself.  These are disrupting or preventing
an election;
[148]
creating hostility or fear in order to influence the conduct or
outcome of an election;
[149]
or influencing the conduct or outcome of an election.
[150]
In other words, a contextual reading of the provision suggests that
the kind of false statements prohibited are those that
could intrude
directly against the practical arrangements and successful operation
of an election.
[140]
An example given during oral
argument was a statement falsely informing voters that a voting
station, or voting stations in a particular
region, had been closed.
Examples can easily be multiplied.  False statements that a
candidate for a particular office
has died, or that voting hours have
been changed, or that a bomb has been placed, or has exploded, at a
particular voting station,
or that ballot papers have not arrived, or
omit a particular candidate or party, would all have the effect of
jeopardising the
practical mechanics of securing a free and fair
election.
[141]
It is to these statements that the
prohibition in section 89(2) is directed.  The context indicates
that section 89(2) is directed
to those statements that are intended
to influence the conduct or outcome of an election by falsely
representing information about
the practical arrangements regarding
the conduct of the election itself.
[142]
The SMS at issue here was very far
from the practical conduct of the election.  It was designed to
influence voters’
views about the President and his party.
It was not designed to thwart those who disagreed with its content
from exercising
their right to vote peaceably and effectively.
[143]
Given the increased opportunity
during election times to refute false statements aimed, not at the
conduct of the elections, but
its outcome by influencing voters’
views about opposing parties, it may be argued that this kind of
“information”
does not fall within section 89(2)’s
prohibition at all.  It is the kind of assertion that can best
and most easily
be countered by immediate refutation in public
debate, at political rallies, on the radio, in newspapers or on
television.
[144]
But
we need not go that far.  For the moment all we need to say is
that section 89(2)’s prohibition does not apply
to opinion
or comment, but only to statements of fact.  On its own terms,
the section does not prohibit comments.  It
prohibits only
“false information”.  “Information”
means only factual statements, not comments.
[151]
[145]
And
indeed a comment or opinion may be criticised for being unfair or
unreasonable, but rarely for being “false”.
So the
section’s use of this word strengthens the inference that it
means to prohibit only factual statements, not opinions.
Item
9(1)(b), which prohibits false “allegations”, is equally
limited to factual statements.  This interpretation
is supported
by other provisions in the Code that aim to foster the free exchange
of comment and opinion.
[152]
[146]
This then is the reason why the SMS
falls altogether outside the ambit of these provisions.  It was
not a statement of fact.
It was an interpretation of the
content of the Report.  What is significant is that the SMS does
not convey a factual assessment
by the DA itself.  It offered
those who received it an interpretation of a separate source.
That source, it said, “shows
how” something occurred.
The source was the Report, to which it directly referred for its
authority.
[147]
This, on its own, is enough to
warrant the conclusion that the SMS, being comment on and
interpretation of a separate source, does
not fall within the
section 89(2) or item 9(1)(b) prohibition.
[148]
As
mentioned earlier, this is not a defamation matter.  But it may
nevertheless be helpful to draw on the distinction between
fact and
comment invoked in defamation law, as the main judgment does.
Even on its own terms defamation law does not contradict
the
conclusion we have reached.  It recognises that something
qualifies as a factual claim when it “depends upon nothing
but
the writer’s own authority”.
[153]
On the contrary, the SMS was a statement that merely pointed to the
existence of extrinsic facts its author considered warranted
the
language he used.
[154]
In short, even if viewed from the perspective of defamation law, it
was comment, rather than a statement of fact.
[155]
[149]
It
is in this respect that this case differs from the defamation claim
at issue in
Yutar
.
[156]
Unlike
Yutar
,
the present case concerns a criminal prohibition, and is not about
defamation or protected or “fair” comment.
But the
defamation cases also draw an important divide between statements of
fact, which claim inherent authority for the assertions
they make,
and comments, which refer elsewhere for authority, as did the SMS
here.  In
Yutar
,
as the main judgment notes,
[157]
a newspaper placard proclaimed “How Dr Yutar misled the
Court”.  The newspaper report itself was prominently
headlined “Dr Yutar misled the Court”.  Above this
headline, but in much smaller and less prominent lettering,
were the
words “Examination of documents in
van
Schalkwyk
case shows that”.
[158]
The Appellate Division found that the poster and the headline did
“not suggest that an inference [was] being drawn
from facts
stated in the paper” and therefore were defamatory because they
were “not . . . identifiable as comment”.
[159]
As the Appellate Division explained of the poster and the headline:
“
To
the ordinary reasonable reader these positive, emphatic statements of
allegedly established fact, would not . . . appear and
be
recognisable as comment.  He would take them to be factual
statements which he is invited to accept as self-evident on
the
information placed before him”.
[160]
[150]
As
the Appellate Division in
Yutar
noted, the distinction between comments and statements of fact “is
not an easy distinction to draw”.
[161]
Here, the crucial difference is that the SMS itself refers for its
authority to a different source: the Report.  It
does not claim
to be authoritative in itself.  This makes it an interpretation
and a comment, rather than an assertion of
fact.
[151]
And it does not matter that the
facts justifying the comment were not listed at length in the SMS.
It is enough that it referred
to the facts it relied upon.  The
SMS says the “report shows how” – and the Report
was readily accessible
to the public.  The controversy
surrounding the improvements at Nkandla was, in addition, a major
news item, in all media,
accessible to all sections of society.
[152]
The
SMS indicated that the Report would show “how” the money
was stolen. In other words the method or modality of how
a
misappropriation of the public’s money occurred.  And
crucially, “
shows
how” must not be understood literally to mean that the Report
actually says, in as many words, that the President is guilty
of
theft.  It may also mean “demonstrate[s] or
prove[s]”.
[162]
In other words, the SMS tendered to its recipients an interpretation
of the Report.  A reasonable reader of the SMS
would have
understood this.
[153]
The SMS therefore was not intended
to be, and did not hold itself out as being, authoritative.  It
rather based its conclusion,
and was a comment, on the Report.
This leads us to the conclusion that the SMS falls entirely outside
the ambit of section 89(2)
and item 9(1)(b).
Presumption
against strict liability
[154]
A
further issue needs to be addressed.  This also follows from the
ground-rule of our law that penal provisions must be strictly

construed.  There is no suggestion, and the ANC did not claim,
that the DA sent out the SMS knowing that what it said constituted

“false information”.  This means that, in law, the
author acted innocently.  And the requirement of a guilty
mind
“is not an incidental aspect of our law relating to crime and
punishment, it lies at its heart”.
[163]
Strict criminal liability is therefore not easily countenanced.
[164]
There is thus an interpretative presumption that a penal prohibition
includes a requirement of fault.
[165]
It will be read to do so unless there are “clear and convincing
indications to the contrary”.
[166]
[155]
Section
89(2) contains no express fault requirement.  Nor does it
“clearly or by necessary implication” exclude
one.
[167]
It is true that section 89(1) expressly includes a fault requirement,
while section 89(2) does not.
[168]
But this is far from conclusive, especially since the heading to the
entire section is “Intentional false statements”.
[156]
Where
the text is equivocal, the provision’s scope and object, the
extent of the punishment it imposes, and the ease with
which the
provision may be evaded if culpability were, or were not, required
become particularly prominent.
[169]
We have already explained the importance of free speech, especially
in political contexts.  And the penalties that the
breach of
section 89(2) attract are stiff.  Significantly, often one
cannot know in advance whether a statement one makes
will turn out to
be true or false.  If the prohibition were strict, it would be
all but impossible to avoid it.  This
leads to the conclusion
that the lawmaker must usually expressly exclude fault.  In the
absence of express language, penal
provisions must be read to require
fault.
[170]
[157]
So it would be intolerable, and at
odds with constitutional values, to say that someone can be held
liable (and exposed to significant
fines, election bans and criminal
liability) for making a statement they reasonably believed was true.
The injustice of this,
and the chilling effect it would have on
all who do not know the facts with complete certainty – in
other words, all of us
– is a powerful consideration.
Here, where there are few textual indications supporting the
imposition of strict liability,
it is determinative.
[158]
For these reasons, section 89(2)’s
prohibition must be read to contain a requirement of fault.  The
same is true for
item 9(1)(b) of the Code.
[159]
This does not, however, impact
directly on the relief sought in the kind of case that we are dealing
with here.  The ANC sought
mandatory relief aimed at preventing
further prejudice to it from the alleged wrong committed by the DA.
The relief sought
was akin to that sought in a mandatory
interdict, where positive conduct on the part of the alleged
wrongdoer is required to terminate
continuing wrongfulness.  In
those circumstances fault is not a requirement for the grant of an
interdict.  We caution,
however, that when criminal liability
and the imposition of the severe civil penalties under the Act are
sought to be enforced,
the issue of fault will become crucial.
Was
the SMS false?
[160]
In this Court and the courts below,
the DA contended that there was yet a further reason why the appeal
must succeed.  The
information the SMS conveyed about the
Report, it urged, was not “false”.  The ANC, by
contrast, supported the
finding of the Court below, pointing out that
the Report nowhere makes any explicit finding that the President
“stole”
any money.
[161]
For
its part, the DA pointed to the fact that the Report shows this.
The Report finds that the expenditure the state incurred
“was
unconscionable, excessive, and caused a misappropriation of public
funds”.
[171]
To
misappropriate means “dishonestly or unfairly take for one’s
own use”.
[172]
[162]
The
DA urged that words cannot be rigidly defined.  Their colloquial
and metaphorical meanings can change through their usage
by different
persons in different contexts.  The word “stole”
must be interpreted as ordinary readers of the SMS
would understand
it – in the context of robust and opinionated election
campaigning.  It must not be understood overly
technically.
The word “stole” certainly does not require a criminal
conviction of theft and is not limited strictly
to theft’s
legal definition.
[173]
It encompasses – and this the ANC conceded in its argument
before us – a wide range of “other corruption-related

crime[s]”.
[163]
The
DA further pointed out that the Report finds that the construction
work effected at Nkandla represented “a toxic concoction
of a
lack of leadership, a lack of control and focused
self-interest”.
[174]
It expressly concludes that the President was “aware of what
the Nkandla project entailed”.
[175]
The President’s private architect, Mr Minenhle
Makhanya, the Report finds, acted as “the main go-between”

between the President and the project team.  It describes Mr
Makhanya as serving the interests of two masters.  But,
as de
facto project manager, “even a Minister could have had
difficulty countermanding” him.
[176]
[164]
What
was more, the officials involved in the Nkandla project “erroneously
accepted that due to the fact that the project related
to the
security of the President . . . and because it was driven from the
Department of Public Works head office and the Ministry
of Public
Works, the deviation from the norms was justified and not to be
questioned”.
[177]
The focus of the project team was from the start “on creating
an ideal situation rather than a reasonably safe and
affordable
one”.
[178]
And
it was this that created “a licence to loot situation” by
the government.
[179]
[165]
As
the DA emphasised in argument, the Report crucially finds that the
President was aware of all of this.  The site-progress
minutes
indicate that detailed aspects were discussed with the
President.
[180]
On at
least one occasion, in May to June 2010, he complained about the slow
progress of the security features and that this
was impacting the
schedule for the completion of the new residences.
[181]
The Report finds that the President thus “allowed or caused
extensive and excessive upgrades that go beyond necessary
security
measures to be made to his private residence, at state
expense”.
[182]
The DA noted that the Report concludes that “the President
tacitly accepted the implementation of all measures at his
residence
and has unduly benefited” from them.
[183]
[166]
In
addition, though the President told Parliament that his family had
built their own houses and the State had not built any for
the family
or benefited them, the Report finds “this was not true”.
[184]
The Report also sets out the attempts made to elicit a response from
the President and his apparent reluctance to give one.
[185]
[167]
Notwithstanding the findings of the
Electoral Court, and the conclusion the main judgment reaches, we
find it unnecessary to determine
whether or not the SMS was false.
We have found that section 89(2) and item 9(1)(b) do not target
comments, opinions and
interpretations.  We have further found
that the SMS conveyed the DA’s interpretation of the Report,
and that it was
therefore not part of the Act’s and Code’s
proscriptions.  In these circumstances, it is unnecessary for us
to
decide whether the SMS was in addition not false.
[168]
For the reasons we have given, the
appeal must succeed.
Order
[169]
The following order is made:
1.
Leave to appeal is granted.
2.
There is no order as to costs.
3.
The order of the Electoral Court is set aside and replaced with the
following:
“
The
appeal is dismissed.”
VAN
DER WESTHUIZEN J (Madlanga J concurring):
Introduction
[170]
One
of the most crucial components of a democracy is the right to free,
fair and regular elections.
[186]
This right is closely related to the rights to recruit members for a
political party and to campaign for a political party
or cause.
[187]
And it speaks for itself that without the right to freedom of
expression,
[188]
none of
these political rights can be exercised.
[171]
But rights often compete and have to
be limited.  The rights to free campaigning and free speech may
have to be limited in
view of the constitutional demand for fair, but
also free, elections.
[172]
The
Electoral Act
[189]
aims to
strike a balance between those competing rights.  At the heart
of this matter is the wording of section 89(2)(c),
which prohibits
people from publishing “false information” with the
intent of “influencing the conduct or outcome
of an
election”.
[190]
This wording has to be interpreted and applied to the SMS the DA sent
to voters in the run-up to the 2014 elections, that
“[t]he
Nkandla report shows how Zuma stole your money to build his R246m
home”.  The question is thus: did the
DA publish “false
information”?
[173]
The
wording of the Electoral Act must be interpreted within the context
of the right to free and fair elections, the right to campaign
for a
political party or cause and the right to freedom of expression.
Free speech and robust criticism are central in any
democratic
election.
[191]
Whereas
the rights to free elections and campaigning require maximal freedom
and thus a narrow interpretation of the prohibition
in
section 89(2)(c), the demands of fairness in elections and a
reasonably free choice for voters require that voters not
be misled
by blatantly false statements in the campaigning process.  The
main judgment by Zondo J correctly points out:
“
The
publication of false information by a political party or a candidate
for election concerning a rival political party or a rival
candidate
in order to gain votes or in order for certain voters not to vote for
a certain party is anathema to the notion of free
and fair elections
and may violate the citizens’ right to free and fair
elections.”
[192]
[174]
Few would dispute that if a
political party were allowed to communicate to millions of voters on
the eve of election day that the
elections had been postponed or that
the leader of another party had died, and this was not true, the
elections could hardly be
fair.  Providing gross misinformation
to, and thus exercising undue influence over, voters could restrict
their ability to
decide for whom to vote and thus also be an obstacle
to free elections.  But an unduly restrictive limitation of free
expression
and campaigning may have the same effect.  In this
context the realities of communication and the meaning and value of
words
and labels are important.  The law often has to draw lines
between what is legal and what is illegal, but we are
multi dimensional
human beings in a society with a brutal
history.  Our country is known for robust political discourse.
The language
we often use is as colourful as our rainbow nation and
as informal and unruly as our people sometimes are.
[175]
I am indebted to the main judgment
for sketching the background of this case.  For that judgment’s
exposition of the
history and development of defamation law and the
defence of fair comment, I am grateful.  I agree that it is in
the interests
of justice to grant leave to appeal to the DA.
However, I disagree with the main judgment’s findings on the
merits
of the appeal, as well as some of the reasoning behind it.
[176]
I
agree with the outcome and order proposed in the joint judgment by
Cameron J, Froneman J and Khampepe J.  I appreciate
and
agree with their analysis of the right to freedom of expression and
its intersection with the right to participate in free
and fair
elections.  The focus of this case must indeed be the
interpretation of section 89(2)(c) of the Electoral Act and
item
9(1)(b) of the Electoral Code.  This is not a defamation case.
President Zuma has not sued the DA and the ANC has
not raised his
dignity as an issue.  Of course human dignity is a founding
value of our Constitution and everyone has an inherent
right to
it.
[193]
In
that sense, it is always an over-arching consideration when rights
are at stake.  But it is not any individual’s dignity
that
is primarily in issue here.
[177]
The prohibition must be interpreted
narrowly.  The harsh criminal and other sanctions occasioned by
the violation of section
89(2) and the robust political
electioneering context in which the message was published necessitate
this approach, as pointed
out by the joint judgment.  However, I
do not think that the question of criminal intent, which the author
of the SMS might
or might not have had, is relevant to this inquiry.
[178]
Most
significantly, I diverge from my colleagues on the necessity to
determine whether the SMS contains a “factual statement”

or an “opinion” or “comment”, in order to
decide if it constitutes “false information”.
I do
not think, as the main judgment finds, that an opinion can never be
“false information”.
[194]
[179]
Just as this case is not about
defamation, it is also not about the President’s conduct or
liability, legally, ethically,
or otherwise; the veracity of the
Nkandla Report; or the effect or authority of the Public Protector’s
recommendations.
Those issues will have to be considered
properly by this Court if and when necessary.  This judgment
makes no findings on
them.  It deals with the interpretation of
section 89(2) and item 9(1)(b) and their application to the
wording of the
SMS.
Factual
statements and opinions
[180]
The
Electoral Act prohibits the publication of “false
information”.  On its face, it seems to imply some kind of
factual
utterance.
[195]
The
term “information” is used, but a statement of fact is
not explicitly required.  It certainly does not
expressly
exclude comments or opinions.  But if something is not a factual
statement, how can it be false?  The main
judgment holds that it
cannot be.
[196]
The
joint judgment finds that a comment or opinion can “rarely”
be false.
[197]
If
electioneering information is not factual, it must be an opinion,
commentary, a personal belief or a value judgment, and therefore

(generally) beyond the scope of being either false or true.
Thus it would fall outside the ambit of the provision, the judgments

by my colleagues hold.
[181]
If the DA sent an SMS stating that a
candidate, who was alive and well, had died of a heart attack, that
would have been easily
identifiable as false information.  Had
it run under the slogan that a candidate would make or has made a
terrible President,
hardly anybody would disagree about it being an
opinion.  At first glance, agreeing that the SMS contained an
opinion implies
that section 89(2)(c) of the Act does not apply.  A
view that it is a statement of fact, on the other hand, seems to
allow
the possibility that the SMS was unlawful, because the
statement of fact may be false.  An investigation is then called
for
to determine whether the Nkandla Report indeed “shows how”
President Zuma “stole” taxpayers’ money.
[182]
On
closer consideration, one finds that this clear-cut boundary between
a factual statement and an opinion may well be something
of a
fiction.  Whereas extremes on both ends of the fact/opinion
continuum are easily identifiable, in reality there is no
clear line
somewhere in the middle that makes this a binary inquiry.
Saying that a government “ruined our economy”
or “took
us into a war” looks as if it is a factual assessment, but it
is readily apparent that it may rather be an
assessment of policies,
according to criteria, numbers and statistics which people on
different sides of the political spectrum
disagree about.  It is
a matter of opinion, even though it is presented in a factual
manner.  The difficulty in determining
on which side of the
divide a statement falls is illustrated by the case law on fair
comment as set out comprehensively in the
main judgment and also
referred to in the joint judgment.
[198]
For example, in
Roos
,
Smith J said that “the defence of fair comment cannot be
sustained when the facts and comment are so intermingled as to
be
indistinguishable”.
[199]
In
Yutar
it was said that the distinction between comments and factual
statements “is not an easy [one] to draw”.
[200]
Indeed, does labelling a comment as “unfair” not mean
that it is unreasonably far from the truth, or indeed “very,

very false”?
[183]
The
joint judgment maintains that the SMS is comment because it offers an
interpretation of the Nkandla Report, to which it directly
refers for
its authority.  Even under defamation law, it is not a claim the
perceived truth of which “depends upon nothing
but the writer’s
own authority”.
[201]
In other words, the text was not purporting to be authoritative and
was therefore not capable of being “false information”.
[184]
However,
could it not be said that the message was intended to be
authoritative
about the
content
of the source?
[202]
It
may well be that the author had no intention for the audience to have
regard to that source and wishes the audience to believe
the
conclusion regarding it.  The SMS might take advantage of the
prolixity or complexity of the source, or perhaps the multiplicity
of
sources on that issue.  This may be possible to infer from the
nature of the source or its accessibility.  It seems
we have not
been able to escape the problems with the either/or analysis by
simply relying on the fact that an external source
has been
referenced.  The SMS could have made an outrageous claim about
the Nkandla Report, like it “shows how Zuma
is now living in
Costa Rica”.  Would it still be an opinion just because it
says that an external source “shows”
something?  Can
we not then say that it is false, even if it depends on the writer’s
authority as far as the contents
of the Nkandla Report are concerned?
[185]
We
are left in an invidious position where it is not clear on which side
of the line the words fall.  Should this thin and
dubious line
definitively determine whether the statement is immune to section
89(2)(c), or subject to its prohibition and even
its criminal
consequences?  This seems to be in conflict with the purpose of
the provision, namely to address the harm of
misinformation wrongly
influencing people and undermining their right to vote freely in a
fair election.
[203]
Surely we must accept that at some stage, even a comment, value
judgment or opinion can become “false”.  For
this
reason, to focus on whether a statement is one of fact or opinion is
to follow a red herring.  To simply call an utterance
an
opinion, and therefore immune to the provisions of the Act however
unfair or wrong it might be, seems arbitrary.
[186]
Some opinions are harmful exactly
because they deviate very far from the truth.  A political party
could disseminate the following
message: “In our opinion”
or “We think that” the government “will be closing
polling stations tomorrow.
Do not waste your time going to
vote”.  Or perhaps: “Our medical experts think that
the candidate will die in
three weeks”.  These would be
opinions.  Should they be immune to the Electoral Act simply on
that basis?
I do not think so.  These so-called opinions
are deceptions and may induce people to refrain from voting as they
would otherwise
have done.  An exemption for opinions would
undermine the Electoral Act’s ability to address the harm it
seeks to prevent.
[187]
The
logical difficulty with the binary analysis is evident in the main
judgment’s statement that a comment does not trigger
the
application of section 89(2)(c) “provided that such an opinion
was honestly held . . . and had some acceptable factual

foundation”.
[204]
The
judgment concedes that certain comments are capable of being false or
at least tending to be “not true” when the
opinion is not
based on supporting facts.
[188]
This
difficulty is further demonstrated by the joint judgment.  It
states that because an opinion can rarely be criticised
for being
false, the use of the term “false” in section 89(2)(c) is
an indication that the provision was intended to
apply only to
factual statements.
[205]
The joint judgment argues that this intention is also evident from
the use of the term “information” in section
89(2)(c) and
the word “allegation” in item 9(1)(b) of the Code,
which my colleagues argue can also only contemplate
a factual
statement.
[206]
The
judgment concludes that “[t]his, on its own, is enough to
warrant the conclusion that the SMS, being comment on
and
interpretation of a separate source, does not fall within the
section 89(2) or item 9(1)(b) prohibition”.
[207]
[189]
But
the judgment then considers whether the SMS actually was false.
[208]
It concludes that it is unnecessary to decide whether in addition to
being an opinion it was false.
[209]
This is puzzling.  Why investigate, with reference to quotations
from the Nkandla Report, whether a statement is “false”,

if it is unnecessary to do so because the Electoral Act and Code do
not apply to opinions?  To my mind this admits that the
words
are indeed falsifiable or verifiable, opinion or not.  Is the
SMS perhaps one of the rare cases the joint judgment suggests
exist
when a comment can be false?  Rare or not, those statements
cannot be impervious to the provisions of the Electoral
Act and
Code.  The terms “information” and “allegation”
are not so straightforward in their scope
and meaning that a
statement which has some small degree of implied value judgment or
interpretation escapes their ambit.
[190]
In
McBride
[210]
this Court held that the statement that Mr McBride lacked contrition
was capable of being false.
[211]
But many would argue that a conclusion as to whether someone is
contrite is a judgment or opinion.  Courts generally
say in
judgments that “in my view” or “in my opinion”,
for example, a convicted person has shown no remorse
and on that
basis impose devastating sentences.  Indeed in
McBride
this
Court analysed “contrite” both as if it were factual and
then, alternatively, as if it were comment or “opinion”.
[212]
It was in the latter context that it found the “assertion [was]
. . . a far-going and unwarranted untruth”.
[213]
If we agree that an “opinion” does not fall outside the
realm of the reasonably justifiable or verifiable and
is capable of
being an “untruth”, then surely it may, in certain cases,
be capable of being “false information”.
If we
glibly assume that an
opinion
can never or rarely be false, we could just as well say that
information
can never be false, because if it is, it is not “information”.
Terms like “disinformation” and “misinformation”

are often used.  Yet, section 89(2)(c) talks about “false
information”.
[191]
We
are not the only court to have faced the need to venture into these
murky waters.  In a number of decisions the European
Court of
Human Rights concluded that the distinction between facts and
opinions cannot be determinative.
[214]
With
local politics as the background, that Court observed that—
“
the
distinction between statements of fact and value judgments is of less
significance in a case such as the present, where the
impugned
statement is made in the course of a lively political debate at local
level and where elected officials and journalists
should enjoy a wide
freedom to criticise the actions of a local authority, even where the
statements made may lack a clear basis
in fact.”
[215]
This
perspective seems pertinent in the sphere of national elections and
relating to statements made by political adversaries.
[192]
As a result, it does not matter all
that much whether the message by the DA is considered to be a factual
statement or an opinion.
It falls somewhere on a continuum.
What matters is whether the statement is purporting to describe a
readily falsifiable
state of affairs which poses a real danger of
misleading voters and undermining their right to a free and fair
election.
This accords with the objects of the Electoral Act,
within the context of the Constitution.
“
False
information”?
[193]
The
term “false” must be interpreted narrowly.  This is
because robust political debate is fundamental to the democratic

process.  The constitutional validity of the limitation in
section 89(2)(c) on the right to freedom of expression and to
campaign is not challenged.  The limitation is presumably
reasonable and justifiable in an open and democratic society and
not
an unduly restrictive means to achieve its purpose.
[216]
It is reasonable and justifiable that an intrusion on vital free
campaigning must be proportional to the aim of prohibiting
the
publication of blatantly misleading or intimidating information, in
order to give effect to the right to participate in free
and fair
elections.
[194]
In
a pre-election environment people are generally aware that political
slogans can be highly exaggerated interpretations of facts
and that
they come from a partisan and subjective viewpoint.  In
modern-day democracies spoilt by a multitude of media opportunities,

political parties formulate punchy, provocative and
less than accurate sound-bites all the time, and are given
a wide
berth to do so.
[217]
Perhaps fairly little of what electioneering politicians say is
wholly incapable of being labelled as “false”
in one way
or another.  This cannot mean, however, that each and every
campaign statement of questionable veracity falls foul
of the
Electoral Act.
[195]
The point on the fact/opinion
continuum where a statement lies will dictate the level of scrutiny
that ought to be applied in determining
its veracity or accuracy.
The more the statement tends to be a judgment, opinion, or comment,
the less strictly we ought
to evaluate its accuracy.  If it is
purely an opinion or rhetorical tool, there is more room for
exaggeration or provocative
paraphrasing.  If it purports to
convey a straightforward fact, such as “the polling stations
will be closed”,
there is little room for reasonable
interpretation or cajoling of the exact wording of the message before
it becomes undeniably
false.  If the statement does refer to an
external source or authority then, to determine the location on the
continuum, the
source referred to, the precise way in which it was
referred to and the nature of the conclusion are relevant.
[196]
Some words are inherently
value-laden or subjective.  Nebulous adjectives like “terrible”
or “dishonest”
and verbs like “to fail” or
“to ruin” tend to alert the audience that something is
mainly an opinion.
A statement about a candidate being dead or
the President living in Costa Rica is not similarly flexible.
This must be more
strictly and literally verified by the Court.
Of course there is an inherent subjectivity when it comes to the
semantics
of language, but a court inevitably has to engage with it.
[197]
In this case the SMS did not say
that the Report “shows
that
Zuma
stole” money.  It says it “shows
how
”.
That it “shows how” could reasonably be understood to
mean that somewhere in the Nkandla Report there
are one or more
explicit statements that President Zuma stole money, with an
explanation of the method he used.  From that
perspective, it
looks like a factual assessment, especially taking into account that
the Public Protector undoubtedly carefully
drafted the language in
the Nkandla Report.  The SMS would then be false.  But one
may understand “shows how”
differently, for example as a
synonym for “illustrates”.  This would imply that
the reader need not bother to
look for a specific description of the
act of
stealing
in the text of the Nkandla Report, but that an overall picture or
impression is referred to.
[198]
Reference
to an external source (the Nkandla Report) in a manner that could
suggest a value judgment, in the context of a political
campaign,
requires a generous approach to scrutinising its veracity – in
this case a more generous understanding of the word
“stole”.
Many words and labels have different meanings, legally and
otherwise.  This Court has dealt with
the meaning of linguistic
labels like “murder” and has held that the ordinary
meaning of a word is relevant, not just
the technical legal
definition.
[218]
It
has also dealt with the significance of labels like “rape”
[219]
and
“marriage”.
[220]
[199]
Used freely, to “steal”
may have several meanings.  We accuse people of stealing an
employer’s time, or another’s
life or happiness, or even
someone’s thunder.  These are figurative uses of the
word.  The more literal context
of
stealing
money
constrains the possible meaning
of the word.  Our analysis has to be confined to the possible
meanings that the word “stole”
is reasonably capable of
having in the present context.  We do not have to accept all
possible meanings of the word.
Language has to mean something
concrete and specific at some point, at least for the law to
function.
[200]
So then, what does “stole”
mean?  It falls somewhere between obviously opinion-based terms
like “terrible”
or “became rich from taxpayers’
money” on the one end of the continuum and a clearly factual
observation like
“died” or “is living in Costa
Rica” on the other.
[201]
To have “stolen” cannot
possibly refer only to a criminal conviction on a charge of theft.
If so, a complainant
would hardly be able to lay a charge, aimed at a
trial and conviction, by telling police that someone “stole”
something.
[202]
Someone
who steals commits the crime of “theft”, which has a
legal definition of course.
[221]
However, dictionaries tell us that to “steal” is indeed
used to mean to “thieve”, but also to “take
for
oneself”.  It is even used to describe actions like
misappropriation or embezzlement.
[222]
The terms theft, fraud and robbery are commonly used interchangeably,
although these are separate criminal offences in our
law.  To
steal has also been defined as to “take without permission or
legal right and without intending to return it”.
[223]
[203]
Could
the fact that the Report “shows how” President Zuma
benefited unjustifiably from tax payers’ money be described
as
showing a way of “stealing” on a wide conception of the
word?  It seems so.  The text was not a legal
statement.
It was an election punchline.  The exposition of some parts of
the Nkandla Report demonstrates that these
could well be construed to
justify the view disseminated by the DA.  The Nkandla Report for
example found that the expenditure
incurred “was
unconscionable, excessive, and caused a misappropriation of
funds”.
[224]
It
expressly concludes that the President was “aware of what the
Nkandla Project entailed”
[225]
and uses the word “benefitted” more than once.
[226]
This judgment simply notes select examples from the Nkandla Report.
The joint judgment gives a comprehensive account
of the extracts of
the Nkandla Report supporting the conclusion that the statement is
not false.
[227]
[204]
According
to the Nkandla Report, there was “misappropriation” of
taxpayer money.
[228]
The President benefitted from it.  The misappropriation appears
to have been tacitly accepted and in certain circumstances
caused by
the President, as set out in the Nkandla Report.
[229]
The Nkandla Report seems to “show” that the President at
least accepted actions which resulted in the misuse
of taxpayer money
which should not have been used on the project.
[230]
It does not indicate that the President intended to return the
appropriated money.  The conduct alleged in the Nkandla
Report
does fall under a broadly conceived but reasonably possible meaning
of the word “stole”, used in the context
of an election
campaign.
[205]
The SMS cannot be said to contain
“false information” within the meaning of section
89(2)(c) of the Electoral Act or
“false allegations” in
terms of item 9(1)(b) of the Electoral Code, as interpreted within
the context of the constitutional
protection of the rights to free
and fair elections, free campaigning and freedom of expression.
The Electoral Court erred
in this regard.
[206]
As stated earlier, the references to
the Nkandla Report in this judgment are not intended to contain any
findings on the veracity
of the Nkandla Report or the liability of
the President for theft or anything else.  The judgment
investigates the link between
the SMS and the Nkandla Report.
[207]
It
is not necessary to deal with questions of strict liability and
fault.
[231]
That
inquiry is not triggered because the SMS is not “false
information”.
[208]
The application for leave to appeal
should be granted and the appeal should be upheld.
For
the Applicant:
I
Jamie SC and D Borgström instructed by
Minde
Shapiro & Smith.
For
the First Respondent:
G
Malindi SC, S Ebrahim, Y Saloojee
and
E Webber instructed by M V
Gwala
and Associates.
[1]
73
of 1998.
[2]
Section
16 of the Constitution reads:
“
(1)
Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to—
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[3]
Section
19(2) of the Constitution reads:
“
Every
citizen has the right to free, fair and regular elections for any
legislative body established in terms of the Constitution.”
[4]
Section
19(3) of the Constitution reads:
“
Every
adult citizen has the right—
(a)
to vote in elections for any legislative body established in terms
of the Constitution, and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.”
[5]
See
New
National Party of South Africa v Government of the Republic of South
Africa and Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) (
New
National Party
)
at para 14.
[6]
Id
at para 12.
[7]
Most
of the background used here is taken from the Public Protector’s
Report titled “Secure in Comfort” dated
March 2014 (also
known as the Nkandla Report).  According to the report, the
Public Protector furnished the President with
a provisional report
to enable the President to comment on it before the final report was
released to the public.  It does
not appear that the President
disputed any aspects of the background used here.
[8]
The
Electoral Court was constituted by Mthiyane DP, Moshidi J, Wepener
J, Adv M Mthembu and Adv Pather.  Mthiyane DP
is Deputy
President of the Supreme Court of Appeal whereas Moshidi J and
Wepener J are Judges of the High Court.
[9]
African
National Congress v Chief Electoral Officer, Independent Electoral
Commission
[2009]
ZACC 13
;
2010 (5) SA 487
(CC);
2009 (10) BCLR 971
(CC) (
African
National Congress
).
Section 96(1) of the Electoral Act reads:
“
The
Electoral Court has final jurisdiction in respect of all electoral
disputes and complaints about infringements of the Code,
and no
decision or order of the Electoral Court is subject to appeal or
review.”
[10]
African
National Congress
above n 9.
[11]
Id
at para 7.
[12]
Id.
[13]
51
of 1996.
[14]
See
[9].
[15]
Above
n 5.
[16]
Id
at para 14.
[17]
Id
at para 13.
[18]
Id
at para 14.
[19]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC)
(
Hyundai
)
at para 23.
[20]
Id
at para 24.
[21]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
[1999] ZACC 17
; ;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at
para 23-4.
[22]
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC)
(
Khumalo
)
at para 35.
[23]
Hill
v Church of Scientology of Toronto
(1995) 126 DLR (4th) 129 SCC.
[24]
Id
at para 106.
[25]
Khumalo
above n 22 at para 35.
[26]
New
National Party
above n 5 at para 11.
[27]
Id
at para 12.
[28]
Khumalo
above n 22 at para 25.
[29]
It
is to be noted that section 87(3) and (4) also contains features
similar to section 89(1) in regard to knowledge.  Section
87(3)
reads:
“
No
person, knowing that another person is not entitled to be registered
as a voter
, may
(a)
persuade that that other person is entitled to be registered as a
voter; or
(b)
represent to anyone else that that other person is entitled to be
registered as a voter.”
(Emphasis
added.)
Section
87(4) reads:
“
No
person, knowing that another person is not entitled to vote
,
may—
(a)
assist, compel or persuade that other person to vote; or
(b)
represent to anyone else that that other person is entitled to
vote.”  (Emphasis added.)
[30]
Long
John International Ltd v Stellenbosch Wine Trust (Pty) Ltd
and
Others
1990 (4) SA 136
(D) at 143I-H;
R
& I Laboratories (Pty) Ltd v Beauty Without Cruelty
International
(
South
African Branch
)
1990 (3) SA 746
(C) at 754A-755H; and
Hawker
v Life Offices Association of South Africa and Another
1987 (3) SA 777
(C) at 780H-781A.
[31]
South
African Associated
Newspapers
Ltd
and
Another
v
Yutar
1969
(2) SA 442
(A) (
Yutar
).
[32]
Id
at 453E-F.
[33]
Id
at 453H-I.
[34]
Id
at 453G-I.
[35]
Dorfman
v Afrikaanse Pers Publikasies (Edms) Bpk
1966 (1) PH J9 (A).
[36]
Id
at 46.
[37]
The
Citizen 1978 (Pty) Ltd and Others v McBride
[2011] ZACC 11
;
2011 (4) SA 191
(CC);
2011 (8) BCLR 816
(CC)
(
McBride
)
.
[38]
Id
at para 84, where this Court said in the first sentence:
“
Perhaps
it would be clearer and helpful in the understanding of the law if
the defence were known rather as “protected comment”.
[39]
Crawford
v Albu
1917 AD 102
(
Crawford
)
at 115.
[40]
[1908]
2 KB 309
at 321.
[41]
Id
at 323.
[42]
Above
n 39 at 115.
[43]
McQuire
v Western Morning News Company Limited
[1903] 2 KB 100
at 112.  See also
Marais
v Richard en ‘n Ander
1981 (1) SA 1157
(A) at 1167-8.
[44]
Id
at 115.
[45]
Above
n 37 at para 103.
[46]
National
Media Ltd & others v Bogoshi
[1998]
ZASCA 94; 1998 (4) SA 1196 (SCA); [1998] 4 All SA 347 (A).
[47]
Pienaar
and Another v Argus Printing and Publishing Co Ltd
1956
(4) SA 310 (W).
[48]
Argus
Printing and Publishing Co Ltd v Inkatha Freedom Party
[1992]
ZASCA 63; 1992 (3) SA 579 (AD); [1992] 2 All SA 185 (A).
[49]
Mthembi-Mahanyele
v Mail and Guardian Ltd and Another
[2004]
ZASCA 67; [2004] 3 All SA 511 (SCA).
[50]
McBride
above n 37.
[51]
[2005]
ZASCA 28; 2005 (4) SA 515 (SCA).
[52]
Roos
v Stent and Pretoria Printing Works, Ltd
1909 TS 988
at 999 (
Roos
).
[53]
Hunt
above n 40 at 309.
[54]
Id.
[55]
Roos
above
n 52 at 999
.
[56]
Id.
[57]
Id
at 999-1000.
[58]
Id
at 1010.
[59]
Id.
[60]
Id
at 1014.
[61]
Id
at 1009.
[62]
Johnson
v Beckett
[1991]
ZASCA 175; 1992 (1) SA 762 (A).
[63]
Id
at 780H-I.
[64]
Roos
above
n 52 at 1010.
[65]
Id
at 1013.
[66]
McBride
above n 37.
[67]
Id
at para 88.
[68]
McBride
above n 37 at para 89.
[69]
Id.
[70]
Id
at para 121.
[71]
Telnikoff
v Matusevitch
[1991] 4 All ER 817
(HL) (
Telnikoff
).
[72]
Id
at 821.
[73]
Roos
above n 52 at 988.
[74]
This
is a reference to the passage quoted in [85].
[75]
Roos
above n 52 at 1009.
[76]
Crawford
above
n 39 at 105.
[77]
Id
at 117.
[78]
Id
at 118.
[79]
Crawford
above
n 39 at 118-9.
[80]
Id.
[81]
Id
at 125-6.
[82]
Hunt
above n 40 at 323.
[83]
Crawford
above n 39 at 125.
[84]
Id
at 114-5.
[85]
Moolman
v Cull
1939 AD 213.
[86]
Id
at para 221.
[87]
Pearce
v Argus Printing & Publishing Co Ltd
1943 CPD 137.
[88]
Id
at 144.
[89]
Dorfman
above n 35 at 46.
[90]
Above
n 30 at 453-4.
[91]
Id.
[92]
Above
n 52.
[93]
Id
at para 27.
[94]
McBride
above n 37 at para 121.
[95]
Telnikoff
above n 71 at 821.
[96]
Id
at 822.
[97]
Id
at 825.
[98]
WIC
Radio Ltd v Simpson
[2008]
2 SCR 420
(
WIC
Radio
).
[99]
Id
at para 27.
[100]
Moolman
above n 85 at 221.
[101]
Above
n 98.
[102]
Id
at para 31.
[103]
Id
at para 70.
[104]
McBride
above n 37 at para 121.
[105]
Yutar
above n 31 at 453-4.
[106]
73
of 1998.
[107]
Section
89 reads:
“
(1)
No person, when required in terms of this Act to make a statement,
may make the statement—
(a)
knowing that it is false; or
(b)
without believing on reasonable grounds that the statement is true.
(2)
No person may publish any false information with the intention of—
(a)
disrupting or preventing an election;
(b)
creating hostility or fear in order to influence the conduct or
outcome of an election; or
(c)
influencing the conduct or outcome of an election.”
[108]
The
Code binds every registered party and every candidate contesting an
election.  See section 99(1) of the Act and item
3 of the Code.
[109]
Item
9(1)(b) reads:
“
(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 candidate’s representatives”.
[110]
African
National Congress v Democratic Alliance and Another
[2014] ZAGPJHC 58;
2014 (3) SA 608
(GJ).
[111]
African
National Congress v Democratic Alliance and Another
[2014] ZAEC 4; 2014 (5) SA 44 (EC).
[112]
Item
9(1)(b)(ii) of the Code includes a prohibition on defamatory
allegations, but the ANC disavowed any reliance on defamation.
[113]
Khumalo
above
n 22 at paras 26-8.
[114]
Section
16 of the Constitution provides:
“
(1)
Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
The right in subsection (1) does not extend to—
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[115]
McBride
above n 37 at para 82.
[116]
South
African National Defence Union v Minister of Defence
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) (
SANDU
)
at para 7, endorsing
Holomisa
v Argus Newspapers Ltd
1996 (2) SA 588
(W);
1996 (6) BCLR 836
(W) at 608G 609A.
[117]
Section
19 of the Constitution provides:
“
(1)
Every citizen is free to make political choices, which includes the
right—
(a)
to form a political party;
(b)
to participate in the activities of, or recruit members for, a
political party; and
(c)
to campaign for a political party or cause.
(2)
Every citizen has the right to free, fair and regular elections for
any legislative body established in terms of the Constitution.
(3)
Every adult citizen has the right—
(a)
to vote in elections for any legislative body established in terms
of the Constitution, and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.”
[118]
SANDU
above
n 116 at para 8, endorsing the judgment of Mokgoro J in
Case
and Another v Minister of Safety and Security and Others; Curtis v
Minister of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 609
(CC) at para
27.
[119]
Section
15 of the Constitution.
[120]
Section
10.
[121]
Section
18.
[122]
Section
17.
[123]
SANDU
above n 116 at paras 7-8.
[124]
Oriani-Ambrosini
v Sisulu, Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 588
(CC);
2013 (1) BCLR 14
(CC) at para
43.
[125]
See
sections 94 and 97 of the Act.
[126]
Section
98(a).
[127]
Section
96(2) reads:
“
If
a court having jurisdiction by virtue of section 20(4)(b) of the
Electoral Commission Act finds that a person or registered
party has
contravened a provision of Part 1 of this Chapter it may in the
interest of a free and fair election impose any appropriate
penalty
or sanction on that person or party, including—
(a)
a formal warning;
(b)
a fine not exceeding R200 000;
(c)
the forfeiture of any deposit paid by that person or party in terms
of section 27(2)(e);
(d)
an order prohibiting that person or party from—
(i)
using any public media;
(ii)
holding any public meeting, demonstration, march or other political
event;
(iii)
entering any voting district for the purpose of canvassing voters or
for any other election purpose;
(iv)
erecting or publishing billboards, placards or posters at or in any
place;
(v)
publishing or distributing any campaign literature;
(vi)
electoral advertising; or
(vii)
receiving any funds from the State or from any foreign sources;
(e)
an order imposing limits on the right of that person or party to
perform any of the activities mentioned in paragraph (d);
(f)
an order excluding that person or any agents of that person or any
candidates or agents of that party from entering a voting
station;
(g)
an order reducing the number of votes cast in favour of that person
or party;
(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.”
[128]
Section
96(3).
[129]
Burchell
Principles
of Criminal Law
3 ed (Juta & Co Ltd, Cape Town 2008) at 101-2; De Ville
Constitutional
and Statutory Interpretation
(Interdoc
Consultants, Cape Town 2000) at 200-2; Du Plessis
Re-Interpretation
of Statutes
(Butterworths, Durban 2002) at 160-1; and Snyman
Criminal
Law
5
ed (LexisNexis, Durban 2008) at 247-8.
[130]
S
v Toms; S v Bruce
[1990]
ZASCA 38
;
1990 (2) SA 802
(A) at paras 33-4;
S
v Moroney
1978 (4) SA 389
(A) at 405C-D;
S
v De Blom
1977 (3) SA 513
(A) at 532; and
S
v Arenstein
1964 (1) SA 361
(A) (
Arenstein
)
at 365-6.
[131]
S
v Coetzee
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC)
(
Coetzee
)
at para 165 and
Scagell
v A-G
[1996] ZACC 18
;
1997 (2) SA 368
(CC);
1996 (11) BCLR 1446
(CC) at
para 33 (both cases rejecting interpretations of ambiguous statutory
provisions that would have imposed liability without
fault).
[132]
Section
1(c) of the Constitution.
[133]
Section
12 provides:
“
(1)
Everyone has the right to freedom and security of the person, which
includes the right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
(2)
Everyone has the right to bodily and psychological integrity, which
includes the right—
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body; and
(c)
not to be subjected to medical or scientific experiments without
their informed consent.”
[134]
Section
39(2) 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.”
[135]
McBride
above n 37 at paras 99-100.
[136]
In
United
States v Alvarez
132
S Ct 2537
(2012) at 2550, the Supreme Court of the United States
said:
“
The
remedy for speech that is false is speech that is true.  This
is the ordinary course in a free society.  The response
to the
unreasoned is the rational; to the uninformed, the enlightened; to
the straight-out lie, the simple truth.”
Summarising
this and other Supreme Court cases, a federal district court in the
United States stated in
Susan B Anthony List v Ohio Elections
Commission
case 1:10-cv-720 (SD Ohio 2014) at 3 that—
“
the
answer to false statements in politics is not to force silence, but
to encourage truthful speech in response, and to let the
voters, not
the Government, decide what the political truth is”.
[137]
This
right is contained in section 19(2) of the Constitution, see above n
118.
[138]
See
Cool
Ideas 1186 CC v Hubbard and Another
[2014]
ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para 28 and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at paras 17-9.
[139]
Section
87 of the Act.
[140]
Section
88.
[141]
Section
89, see above n 107.
[142]
Section
90.
[143]
Section
91.
[144]
Section
92.
[145]
Section
93.
[146]
Section
94.
[147]
See
above n 117.
[148]
Section
89(2)(a) of the Act.
[149]
Section
89(2)(b).
[150]
Section
89(2)(c).
[151]
S
v South African Associated Newspapers Ltd and Others
1970 (1) SA 469
(W) (
South
African Associated Newspapers)
at 473E and
S
v Theron
1968 (4) SA 61
(T) (
Theron
)
at 63B-C.
[152]
See
items 1(b) and 4(1)(a).
[153]
Roos
above
n 52 at 998.  See also Fagan “The Gist of Defamation in
South African Law” in Descheemaeker and Scott (eds)
Iniuria
and the Common Law
(Hart Publishing, Oxford 2013) at 188 91.
[154]
See
Hunt
v The Star Newspaper Company Limited
[1908] 2 KB 309
at 319-20.  As the Court held in
Hultzer
& Das v Van Gorkom
1909 TS 232
(
Hultzer
)
at 241—
“
it
is not always easy to disentangle a statement of the facts from the
comment made upon those facts.  A statement does not

necessarily cease to be comment because it appears in the form of a
statement of fact.  It may be a deduction from the facts
and
intended as a comment upon those facts, and yet appear in the guise
of a statement of fact.”
[155]
See
Crawford
above
n 39 at 127-9.  As Fagan above n 153 points out at 190,
“assertions qualifying as fair comment are in reality
just
assertions made with the intention that they be non-authoritative”.
He also states at 191, summarising
Crawford
,
Roos
above
n 52 and
Hultzer
id, that our courts have “explicitly recognised, first, that
whether an assertion amounts to a comment or not turns, critically,

on the intention with which it was made and, secondly, that the
relevant intention is the intention that the assertion be
authoritative”.
[156]
Above
n 31.
[157]
At
[56]-[57].
[158]
Yutar
above
n 31 at 449F-G.
[159]
Id
at 453F-G.
[160]
Id
at 454F-G.
[161]
Id
at 454B.
[162]
Concise
Oxford English Dictionary
11 ed (OUP, Oxford 2009).
[163]
Coetzee
above
n 131 at para 162 (judgment of O’Regan J) and the authorities
cited therein.
[164]
Id.
[165]
See
also, with reference to the law in foreign jurisdictions, the
comprehensive discussion in
Coetzee
id
at paras 162-76.
[166]
Arenstein
above
n 130 at 365C-D, quoted in
Coetzee
id
at para 165 (judgment of O’Regan J).  See also
Amalgamated
Beverage Industries Natal (Pty) Ltd v Durban City Council
[1994] ZASCA 2
;
1994 (3) SA 170
(A) at 176H-J;
S
v Oberholzer
1971
(4) SA 602
(A) at 610H; and
R
v H
1944
AD 121
at 125.
[167]
Coetzee
id at para 166, quoting
Harding
v Price
[1948]
1 KB 695
at
700.
[168]
See
[48].
[169]
Arenstein
above
n 130 at 365, citing
R
v H
above
n 166 at 126.
[170]
Coetzee
above n 131 at para 165.
[171]
The
Report above n 7 at 56, para (xi)(d)(1) and 430, para 10.4.1.
[172]
Concise
Oxford English Dictionary
above n 162.
[173]
Here,
the DA invoked
McBride
above
n 37, where this Court adjudicated a defamation claim in which the
defendant had described the plaintiff as a “murderer”.

Of that word and its cognates, this Court held at para 70:
“
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 a court of law convicts.”
[174]
The
Report above n 7 at 422, para 9.4.66.
[175]
Id
at 423, para 9.5.3.
[176]
Id
at 31-3, paras 6 and 8-9.
[177]
Id
at 34-5, para 14.
[178]
Id
at 38, para 25.
[179]
Id
at 39, para 28.
[180]
Id
at 176-9, para 6.45.
[181]
Id
at 149, para 6.19.1 and 339, para 7.30.3.
[182]
Id
at 424-5, para 9.5.12.
[183]
Id
at 437, para 10.9.1.4.
[184]
Id
at 438, para 10.10.1.1.
[185]
Id
at 270, para 6.79.
[186]
Section
19(2) of the Constitution provides: “Every citizen has the
right to free, fair and regular elections for any legislative
body
established in terms of the Constitution.”
[187]
Section
19(1) of the Constitution provides, in relevant part, that every
citizen is free to make political choices which includes
the rights—
“
(b)
to participate in the activities of, or recruit members for, a
political party; and
(c)
to campaign for a political party or cause.”
[188]
Section
16(1) of the Constitution provides:
“
Everyone
has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.”
[189]
This
Court held, in
New
National Party
above
n 5, that the Electoral Act prescribes the electoral system required
by the Constitution.
[190]
Item
9(1)(b) of the Electoral Code, which is Schedule 2 of the Electoral
Act, states that no registered party or candidate may
publish false
or defamatory allegations in connection with an election in respect
of a party, its candidates, representatives
or members or a
candidate or that candidate’s representatives.
[191]
This
sentiment is echoed in item 1 of the Electoral Code:
“
The
purpose of this Code is to promote conditions that are conducive to
free and fair elections including—
(a)
tolerance of democratic political activity; and
(b)
free political campaigning and open public debate.”
[192]
Main
judgment at [5].
[193]
Section
1(a) of the Constitution provides that South Africa is one,
sovereign, democratic state founded on the values of “[h]uman

dignity, the achievement of equality and the advancement of human
rights and freedoms”.  Section 10 provides: “Everyone

has inherent dignity and the right to have their dignity respected
and protected.”
[194]
Main
judgment at [63].  See also the joint judgment at [144] to
[146].
[195]
Indeed
in
South
African Associated Newspapers
above
n 151 at 473D-E and
Theron
above
n 151 the Courts held that “information” can only relate
to factual statements.
[196]
Main
judgment at [63].
[197]
Joint
judgment at [145].
[198]
See
the main judgment at [64] to [110] and the joint judgment at, for
example, [148] to [150].
[199]
Roos
above n 52 at 1010, as discussed in the main judgment at [70].
[200]
Yutar
above n 31 at 454A-B, as discussed in the joint judgment at [149] to
[150].
[201]
The
joint judgment at [148], referring to
Roos
above n 52 and to Fagan above n 153.
[202]
As
English law has recognised, and as pointed out in the main judgment
at [79], sometimes reference to an authority is not sufficient
to
guarantee the inference that the statement is a comment.  See
Telnikoff
above
n 71.
[203]
This
is my understanding of the harm the Electoral Act is trying to
address which I have deduced from item 1 of the Electoral
Code, read
with section 2 of the Electoral Act and section 19(2) of the
Constitution.  This understanding also follows logically
from
the language of section 89(2)(c) itself, which prohibits
“publish[ing] any false information with the intention of

influencing the conduct or outcome of an election”.  The
Oxford English Dictionary defines “influence”
as “to
affect the mind or action of; to move or induce by influence;
sometimes
especially to move by improper or undue influence
”.
(Emphasis added).  (
The
Oxford Dictionary
2 ed
(OUP, Oxford 1991).)  I note that the verbs in the rest of
section 89(2) – namely, “disrupting”
and
“preventing” in subsection (a) and “creating
hostility or fear” in subsection (b) – all involve

purposely negative actions.  Given this, and the overall
purpose of the Electoral Act and Electoral Code, it is sensible
to
impute the more negative connotation of “influencing”,
and to understand this term to mean, in the context of

section 89(2)(c), to influence the conduct or outcome of an
election wrongly, unduly or improperly.
[204]
Main
judgment at [63].
[205]
Joint
judgment at [145].
[206]
Id
at [144] to [145].
[207]
Id
at [147].
[208]
Under
the heading: “Was the SMS false?”  Id at [160] to
[167].
[209]
Id
at [167].
[210]
McBride
above n 37.
[211]
Id
at para 121.
[212]
Id.
[213]
Id
at para 121.  See also paras 116 and 120.
[214]
Kita
v Poland
[2008]
ECHR 663
at para 46;
Lombardo
v Malta
[2007]
ECHR 323
at para 60 and
Dyuldin
and Kislov v Russia
[2007] ECHR 685
at para 49.
[215]
Lombardo
id.
[216]
Section
36 of the Constitution.
[217]
That
said, we should avoid relying too heavily on an interpretation which
analyses exactly how a particular voter would construe
the message.
One must be realistic about political debates in our society and not
hypothesise about whether ordinary readers
of the text message are
able to establish the “truth”, or have enough time to
study or read the Nkandla Report.
This enquiry is too complex
and involves an analysis of voter attitudes, levels of literacy,
campaign strategies, media debates,
communication tools, and so on.
The multiplicity of factors would lead to a level of arbitrariness.
For example,
the main judgment relies on the fact that the Nkandla
Report was released the day before the SMS was sent, which meant
that there
was not enough time for the facts to become notorious.
But the argument could go either way in the context of an election.

If there was ample time after the publication for the content of the
Nkandla Report to become notorious prior to the elections,
then
people would be able to determine for themselves whether the comment
was reasonable or fair prior to casting a vote.
It would also
have given the ANC an opportunity to rebut the allegations and
enrich the political debate centred around the Nkandla
Report.
This argument adds an unnecessary extra layer of complication,
however.  In the end, these particular circumstances
in
themselves cannot change the nature of the text from “false”
to “not false” or otherwise.
[218]
McBride
above
n 37 at para 70.
[219]
Masiya
v Director of Public Prosecutions, Pretoria and Another
[2007]
ZACC 9; 2007 (5) SA 30 (CC); 2007 (8) BCLR 827 (CC).
[220]
Minister
of Home Affairs and Another v Fourie and Another; Lesbian and Gay
Equality Project and Others v Minister of Home Affairs
and Others
[2005]
ZACC 19; 2006 (1) SA 524 (CC); 2006 (3) BCLR 355 (CC).
[221]
According
to Snyman above n 129 at 483, to
secure
a conviction of theft, the state must prove that an accused
—
“
unlawfully
and intentionally appropriates moveable, corporeal property which—
(a)
belongs to, and is in the possession of, another;
(b)
belongs to another but is in the perpetrator’s own possession;
or
(c)
belongs to the perpetrator but is in another’s possession and
such other person has a right to possess it which legally
prevails
against the perpetrator’s own right of possession
provided
that the intention to appropriate the property includes an intention
permanently to deprive the person entitled to the
possession of the
property, of such property.”
[222]
The
Oxford Dictionary, Thesaurus and Wordpower Guide
2
ed (OUP, Oxford 2001).  Snyman id explains at 484 that in
South Africa embezzlement – which consists in appropriating

someone else’s property already in possession or control of
the perpetrator – is not a separate crime but a form
of theft.
[223]
Concise
Oxford English Dictionary
above n 162.
[224]
The
Nkandla Report above n 7 at 56, para (d)(1) and 430, para 10.4.1.
[225]
Id
at 423, para 9.5.3.
[226]
Id
at 431, para 10.5.3, where it states:
“
President
Zuma improperly benefited from the measures implemented in the name
of security which include non-security comforts
such as the
Visitors’ Centre, such as the swimming pool, amphitheatre,
cattle kraal with culvert and chicken run.”
It
also states at 437, para 10.9.1.4:
“
It
is my considered view that as the President tacitly accepted the
implementation of all measures at his residence and has unduly

benefited from the enormous capital investment from the non-security
installations at his private residence, a reasonable part
of the
expenditure towards the installations that were not identified as
security measures in the list compiled by security experts
in
pursuit of the security evaluation, should be borne by him and his
family.”
[227]
See
the joint judgment at [161] to [166].
[228]
The
Nkandla Report above n 7 at 56, para (d)(1) and 430, para 10.4.1.
[229]
Id
at 149, para 6.19; 178, para 6.45.10; 339, para 7.30.3; 423, para
9.5.3; 424-5, para 9.5.12 and 437, para 10.9.1.4.
[230]
Id.
[231]
As
the joint judgment does
at
[154] to [158].