By Dario Milo and Ben Winks
On the very eve of democratic South Africa’s fifth general election, the Electoral Court delivered a landmark judgment on the rules of electoral engagement, setting a standard for the way political parties express themselves in future elections. The background to this decision, available here, is set out below.
On 20 March 2014, the DA sent a bulk SMS to over a million recipients, stating: ‘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 ANC took the DA to the High Court, complaining that the SMS violated electoral law, which prohibits parties from publishing false information intended to influence an election (section 89(2) of the Electoral Act) and false or defamatory allegations about political opponents (item 9(1)(b) of the Electoral Code of Conduct). The High Court found that, although the SMS was “not entirely accurate“, it did not fall foul of electoral law, liberally interpreted, as it constituted “fair comment“, i.e. “an opinion that a fair person, perhaps in extreme form, might honestly hold“.
We criticised that judgment on this blog and on the air, arguing that it was incorrect to treat the SMS as a comment, since it was presented, and would ordinarily be read, as a statement of fact. In order for a statement to qualify as a comment, the facts on which it is based must be either plainly set out or so notorious that the comment is clearly distinguishable from the facts. The defence of fair comment (which is usually invoked to show that defamatory speech was not wrongful) was therefore not legally available to the DA in this case.
On appeal, the Electoral Court adopted the same approach, and came to the same conclusion. In a unanimous judgment by the full bench, the Court first set out the “three essentials” for the defence of fair comment:
- The statement must be recognisable to the ordinary reasonable person as a comment and not a statement of fact.
- It must be a genuine expression of opinion and relevant to the facts commented upon.
- The facts commented upon must be true, accurately stated and matters of public interest.
The Court found that the DA’s SMS fell at the first hurdle: it was not an expression of opinion but a statement of fact. Firstly, the SMS presented a factual assertion of what the Public Protector’s report shows, rather than a comment that such a conclusion could be or should be drawn from the report. Secondly, the ordinary reader of the SMS would probably not have had an opportunity to compare it to the report, and it could not be suggested that the contents of the 400-page report were “so notorious that the reader of the SMS could be taken to be aware of them“.
Once the Court found that the SMS was not a comment but a statement of fact, the DA’s defence was defeated, but it was still necessary to consider whether that statement of fact was false, in order to determine whether the DA had indeed contravened electoral law.
The Court found that the SMS was “clearly false and inaccurate“, as the report “does not say that President Zuma committed theft” and “rather than attributing the excessive costs of the Nkandla project to President Zuma, the report focuses on systematic failures“.
Accordingly, the Court found that the SMS violated the Electoral Act and Code of Conduct, and ordered the DA “to forthwith retract the SMS by dispatching at its own cost“, to all original recipients, the following: “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.”
The DA did not dispatch this retraction by the time the polls opened, nor by the time they closed, for which the ANC has accused them of contempt of court. However, the DA has indicated its intention to appeal the judgment, describing it as “bizarre” and arguing that “[i]t cannot be that the right to freedom of speech is limited during an election period“. Although all votes have been cast, the DA is correct to suggest that the matter has implications beyond this election, but if it has indeed published a false statement of fact as opposed to an opinion, then no harm to free speech is involved in requiring a retraction: on the contrary, such a remedy enhances freedom of expression and the flow of accurate information to citizens.
The Court was at pains to point out that this was not a case of defamation but one concerning contraventions of electoral law. Nevertheless, its consideration of the defamation defence of fair comment introduced an important distinction into electoral law: that opinions on electoral matters are rightly free, and must only be ‘fair’, whereas factual statements must be correct. This ensures that electoral law’s prohibitions on misinformation (which potentially have criminal consequences) do not chill free speech by encroaching on genuine criticism of political personalities and parties.
In our view, the judgment should be welcomed. It strikes an appropriate constitutional balance between robust democratic debate and free expression, on the one hand, and responsible political competition on the other. In this way, the judgment ensures that, while electoral law prevents political parties from mudslinging and misleading voters, it does not go so far that it precludes them from communicating forceful, yet clear and accurate, campaign messages from which voters may make informed political choices.