On 19 January 2015, the Constitutional Court of South Africa handed down judgment in the case of Democratic Alliance v African National Congress and Another ( ZACC 1), a case concerning text text messages relating to President Jacob Zuma sent to over 1.5 million voters by the Democratic Alliance (DA) in the run up to the 2014 general elections.
The text messages referred to a report on an investigation into security upgrades at President Zuma’s private residence (‘The Nkandla Report’). In 2009 Members of the South African Police Service (SAPS) visited President Zuma’s private residences to ascertain whether it had sufficient security measures in place, and found that it did not. The Department of Public Works duly approved an amount of R27 893 067 for the installation of security measures in the President’s private residence. However, works commenced and by July 2010 costs had escalated to R130 604 267.02. The Public Prosecutor received a number of complaints about the escalating costs and commenced an investigation, culminating in the Nkandla Report.
The text messages, which were sent out the day after the Nkandla Report was published, 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 African National Congress (ANC) took the view that this statement was false and, perhaps understandably, that the text messages had been published with a view to influencing the outcome of the upcoming elections and as a result constituted a breach of the Electoral Act and/or Electoral Code of Conduct issued under the Act. S89(2)(c) of the Act prohibits the publication of a false statement with the intention of influencing the conduct or outcome of an election, and the accompanying Code of Conduct stated, at item 9, that:
(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;
The DA, however, contended that the text messages were fair comment or opinion that could honestly and genuinely be held by any fair person, was not false and did therefore not breach the Act or Code of Conduct. Plainly, the publication of false information in order to influence the outcome of an election is not conducive to free and fair elections. The case thus concerned the intersection between the right to freedom of expression on the one hand and the right to free and fair elections on the other.
Following the publication of the text messages, the ANC brought an unsuccessful application to the High Court in Johannesburg seeking an order compelling the DA to retract the text message and apologise for their publication. However, the decision of the High Court was reversed on appeal to the Electoral Court, which held that the content of the text message had been false and the publication therefore constituted a violation of the Act and Code. The DA appealed against this finding to the Constitutional Court.
The Court considered whether the prohibition in the Act applied to expressions of opinion, and the majority concluded that it did not. The Act, “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.” . Zondo J concurred, pointing out at , only a statement of fact can said to be false; and opinion may be wrong, or unjustified, but it cannot 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 [the Act]. 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.”
At issue therefore was the questions of whether the text messages were in fact an expression of opinion or constituted a statement of fact; the Electoral Court had concluded that the message was a statement of fact and furthermore, it was false because the Nkandla Report did not find that President Zuma had stolen “your money” to build his home. The Constitutional Court disagreed.
In a majority judgment, five justices found that the text messages were recognisable as an expression of opinion and were an interpretation of the findings of the Report, and not a statement of fact:
“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]”. In other words, the SMS tendered to its recipients an interpretation of the Report. A reasonable reader of the SMS would have understood this.
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 [the Act and Code of Conduct].” [152-153]
However, in a minority judgment, Zondo J disagreed finding that, “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’” . He noted that
“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.” 
His conclusion was 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”. 
The remaining two justices went another way entirely, finding that the text messages were neither fact nor comment, but existed somewhere on a continuum between the two. Further, they argued that the distinction is unnecessary in this context because even comment could mislead voters and be used to influence the outcome of an election.
The appeal was allowed and the decision of the Election Court reversed.
The decision has led to comments that the Court has ‘muddied the waters’ and blurred the established boundary between comment and fact which may lead to voters being confused by what is true and what is not. Others have suggested that this is premised on a slightly patronizing view of voters and questioned how far the minority judgment would be “plausible in a vibrant democracy”.
There is clearly a distinction between ‘information’ and ‘ideas’ and this provides the rationale for a ‘fair comment’ defence, but it is important to note that this was not strictly a defamation case, but a claim brought under the Electoral Act. The harsh criminal sanctions imposed by the Act (up to ten years imprisonment for those found in breach) perhaps influenced the majority’s view that the prohibition within the Act should be interpreted very narrowly.
Eloise Le Santo is a barrister at Matrix Chambers who specialises in media law.