Democratic Alliance v African National Congress and Another

During the 2014 national and provincial election campaign, the Democratic Alliance (DA) sent a bulk SMS to over 1.5 million potential voters in Gauteng stating: “The Nkandla report shows how Zuma stole your money to build his R246m home.” The message followed the release of the Public Protector’s Nkandla Report concerning state-funded security upgrades at President Jacob Zuma’s private residence. The African National Congress (ANC) contended that the SMS was false, amounted to publishing false information to influence the election, and breached section 89(2)(c) of the Electoral Act and the Electoral Code of Conduct. The DA argued that the SMS was an expression of opinion or fair comment based on the Nkandla Report and thus protected by freedom of expression. The High Court dismissed the ANC’s application, but the Electoral Court overturned that decision, finding the SMS to be a false statement of fact. The DA appealed to the Constitutional Court.

Leave to appeal was granted; no order as to costs; the order of the Electoral Court was set aside and replaced with an order dismissing the ANC’s appeal, effectively restoring the High Court’s dismissal of the complaint.

The case clarifies the scope of section 89(2)(c) of the Electoral Act and affirms strong protection for political expression during election campaigns. It establishes that robust, even harsh, political commentary framed as opinion is permissible, reinforcing the constitutional balance between freedom of expression and the integrity of free and fair elections. It is a leading authority on distinguishing fact from opinion in South African electoral law.