“The Nkandla report shows how Zuma stole your money for his R246 million home.”
Those are the 14 words which have been the subject of a legal battle between the DA and the ANC for the best part of a year.
They appeared in an SMS sent by the DA to voters in Gauteng in March 2014, during the build-up to the general elections in early May, directly after the Public Protector Thuli Madonsela had released her report into the building of President Zuma’s private home.
“Vote DA on 7 May to beat corruption,” the SMS continued. “Together for change.”
The ANC called the SMS a “deliberate lie”, and approached the Johannesburg High Court in April for an urgent application to prevent the DA from sending out the message and compel the DA to issue an apology.
Judge Mike Hellens dismissed the matter, finding that the SMS constituted fair comment.
Not content to stop there, however, the ANC took it on appeal to the Electoral Court, and won the second round. On this occasion the court found that the opposition had relied too heavily on the oft-quoted phrase from the Nkandla report, “license to loot”, without acknowledging that the phrase occurred in a part of the report not dealing directly with Zuma.
The Electoral Court determined that the DA should send another mass SMS reading: “The DA retracts the SMS dispatched to you which falsely stated that President Zuma stole R246m to build his home. The SMS violated the [Electoral] Code and Act.”
This time it was the DA’s turn to fight back – in the highest court in the land.
While the matter might seem like nothing more than the typical squabbling between the two largest political parties, it’s an interesting issue because it required the august judges of the Constitutional Court to read Madonsela’s Nkandla report and determine what exactly it was saying.
The ANC contended that the SMS was false because the Nkandla report did not find President Zuma guilty of theft. The DA responded that the SMS did not say that the Nkandla report found Zuma guilty of theft – it showed how Zuma stole taxpayers’ money to build his home.
Much of the dispute in legal terms came down to whether the SMS constituted a statement of fact – as the ANC argued – or a statement of opinion, as the DA contended.
This was relevant because the Electoral Act and Code prohibit the publication of false information with the intention of influencing the outcome of an election. But in at least one reading the prohibition applies only to statements of fact, and not to opinion – because opinion cannot be ‘true’ or ‘false’ – only well-founded or unwarranted.
The judges of the Constitutional Court have produced three judgments. The main judgment was authored by Judge Raymond Zondo, with Judges Jafta and Leeuw concurring.
Relatively early on, the judgment dismisses the DA’s defence of “fair comment”, on the grounds that the SMS was sent a day after the publication of the Nkandla report, so the vast majority of the SMSes’ recipients would not be familiar with the content of the report and not able to assess its meaning in that context. The SMS also did not spell out any of the specific findings on the Nkandla report to assist readers with a broader context.
The judgment says that the DA should have made it clear that it was giving an opinion – as the DA claimed in its defence – and not making a statement of fact. The “ordinary reasonable person” would not have read the SMS as an opinion, but as a fact.
The judgment then proceeds to consider one critical matter: Was the statement in the SMS false?
The Nkandla report does not say that Zuma stole taxpayers’ money, as the DA conceded in its court papers. The Nkandla report does, however, say that the President should have acted to prevented further misappropriation of funds.
Judge Zondo writes:
“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.”
But that’s where the report ends, Zondo concludes. It “does not attribute theft to the president” – and as such, the statement in the DA’s SMS was false.
Zondo thus upheld the ANC’s victory at the Electoral Court and dismissed the DA’s appeal.
The second judgment, authored by judges Cameron, Froneman and Khampepe, with Moseneke and Nkabinde concurring, takes a different approach.
In Zondo’s judgment he quotes extensively from defamation cases in South Africa, particularly the case in which Robert McBride took on the Citizen newspaper for defamation in 2003 after it published a series of articles questioning his suitability to be Ekurhuleni metro police chief.
But Judges Cameron et al wrote that this SMS case wasn’t about defamation. “The reputation and dignity of a particular person are not at the forefront of the statutory interpretation enquiry before us,” the second judgment stated.
It puts more emphasis on freedom of speech, because “an election without as much freedom to speak as is constitutionally permissible would be stunted and insufficient”.
Political life in South Africa, the judgment says, “has always been loud, rowdy and fractious”. During elections, claims by rival political parties are usually countered speedily and effectively on a variety of public forums. This would be a better way of dealing with a matter such as the DA’s SMS, the judgment suggests, than a court imposing a penalty on the party which might lead to future tentativeness in pre-election communications.
The judgment finds that the DA’s SMS was not a statement of fact – but “an interpretation of the content of the [Nkandla] report”. As such, it was not subject to the same prohibition applying to statements of facts in the lead-up to elections.
Because the judgment concludes that the SMS was an opinion rather than a factual statement, it doesn’t have to pronounce on whether the SMS’s content was false or not. The Electoral Court’s decision was thus set aside.
In the final judgment, authored by Judge Johann van der Westhuizen with Judge Mbuyiseli Madlanga concurring, emphasis was again placed on the potential damage which “unduly restrictive limitation of free expression and campaigning” might achieve before elections.
This judgment also found that this was not a defamation case, because “it is not any individual’s dignity that is primarily in issue here”.
Where the judgment differed from both the other two was in its refusal to determine whether the SMS contained a factual statement or an opinion. Besides this, Judge van der Westhuizen wrote that he was unconvinced that an opinion could never be “false”.
What if the DA SMSed something like: “We think that the government will be closing polling stations tomorrow. Do not waste your time going to vote”? This would be an opinion, but it would also constitute deception.
With that in mind, though: was the SMS – whether it was opinion or fact – false?
Judge van der Westhuizen determined that it was not. The term “stole” did not have to refer to a criminal conviction for theft only, he found, but could also take in actions like misappropriation or embezzlement. Given that the Nkandla Report found that the spending on the president’s home was – to quote the report – “unconscionable, excessive, and caused a misappropriation of funds”, the judge concluded that some parts of the report “could well be construed to justify the view disseminated by the DA”.
The judge continues:
“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”.
Doubtless aware just how much of a political hot potato this issue is, however, the judge adds a disclaimer at the end of his ruling: “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 Electoral Court’s judgment has been set aside. As we’ve become used to after legal decisions involving politicians, both the ANC and the DA has claimed the ruling as a victory.
The ANC has rather selectively focused on the idea that the Constitutional Court “agreed with the ANC that the SMS sent by the DA was an opinion of the DA and not a fact”.
The DA, meanwhile, hailed the judgment as a “major victory for freedom of speech”.
Whether saying that Zuma stole money for Nkandla is a valid factual statement, an invalid factual statement, a valid opinion or an invalid opinion is a question the Constitutional Court failed to reach unanimity on. But the ability of a rival political party to broadcast that fact/opinion to millions of voters has been upheld.
- The Daily Maverick