Democratic Alliance v African National Congress and Another

The Democratic Alliance (DA) sent an SMS to over 1.5 million potential voters in Gauteng on 20 March 2014, one day after the Public Protector released the Nkandla Report. The SMS stated: "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) sought an interdict in the High Court, alleging that the SMS published false information in breach of section 89(2)(c) of the Electoral Act and item 9(1)(b) of the Electoral Code of Conduct. The High Court dismissed the application. On appeal, the Electoral Court found the SMS was a false statement of fact and ordered the DA to retract it. The DA applied for leave to appeal to the Constitutional Court.

• Whether section 89(2)(c) of the Electoral Act applies to statements of opinion or only to statements of fact
• Whether the SMS constituted a statement of fact or a statement of opinion
• Whether the SMS was false
• Whether an appeal from the Electoral Court to the Supreme Court of Appeal is competent
• Whether section 89(2)(c) and item 9(1)(b) require proof of fault or impose strict liability
• The relationship between freedom of expression, the right to campaign, and the right to free and fair elections

Leave to appeal granted. The order of the Electoral Court set aside and replaced with an order dismissing the appeal. No order as to costs.

Section 89(2)(c) of the Electoral Act, which prohibits publication of false information with the intention of influencing the conduct or outcome of an election, applies only to false statements of fact and not to statements of opinion, comment or interpretation. Penal provisions limiting constitutional rights must be interpreted restrictively, especially where they impose severe sanctions and limit freedom of expression during elections. Where a statement refers to an external source (such as the Nkandla Report) and offers an interpretation of that source, it constitutes comment rather than an assertion of fact and falls outside the prohibition. The right to freedom of expression is fundamental to elections and must be protected to the fullest extent compatible with the right to free and fair elections. Section 96(1) of the Electoral Act, which purports to give the Electoral Court final jurisdiction, must be interpreted consistently with the Constitution and does not oust the appellate jurisdiction of the Constitutional Court or Supreme Court of Appeal.

Zondo J observed that the publication of false statements by political parties during elections is anathema to free and fair elections and may violate citizens' rights. He noted that the SMS would have required recipients to engage in complex analysis to understand it as opinion rather than fact, which ordinary reasonable readers are unlikely to do. He also noted that words like "how" in the context "how Zuma stole" ordinarily convey a factual statement that the act occurred, coupled with details of the method. Cameron J, Froneman J and Khampepe J observed that freedom of expression during elections enhances rather than diminishes the right to free and fair elections, and that challenging, vigorous and fractious debate makes political choice more meaningful. They noted that during elections there is greater opportunity for immediate public debate to refute inaccuracies. They suggested (obiter) that section 89(2)(c) may be directed primarily at false statements about the practical conduct of elections (e.g., false information about polling stations or voting procedures) rather than statements aimed at influencing voters' views about parties or candidates. Van der Westhuizen J observed that the distinction between fact and opinion is not always clear, and that some opinions can be false or misleading. He noted that the level of scrutiny applied to veracity should depend on where a statement falls on the fact/opinion continuum, with more generous interpretation for statements that tend toward opinion or value judgment.

This case clarifies the scope of section 89(2)(c) of the Electoral Act, which prohibits publication of false information intended to influence elections. The majority held that the prohibition applies only to false statements of fact, not to opinions, comments or interpretations. The judgment emphasizes the importance of freedom of expression and robust political debate during elections, while recognizing the need to protect the right to free and fair elections. It illustrates the difficulty of distinguishing between statements of fact and opinion, and the need for a restrictive interpretation of penal provisions limiting free speech. The case also confirms that appeals from the Electoral Court to the Supreme Court of Appeal are competent, and that section 96(1) of the Electoral Act does not oust the jurisdiction of the Constitutional Court or Supreme Court of Appeal in constitutional matters.