Constitutional Hill

That Nkandla SMS: why it is (legally) complicated

Courts are often not well placed to act as mediators in highly charged political disputes. The ANC’s attempt to use the court to deal with the DA’s claim that the Public Protector’s Report “showed that Zuma stole your money to build his R246 home” is a case in point.

Election campaigns tend to get extremely heated and the rhetoric overblown. Leaders of political parties do not only make wild promises they know they can never keep (we all know there won’t be 6 million jobs – or even job opportunities – after the election), they also hurl insults and accusations at their opponents that might ring true for some voters but – from a legal perspective – are difficult or impossible to prove.

When ANC politicians claim that the DA is a racist party, that it does not care about the poor or that it will bring back Apartheid if elected, we all know that these claims are part of the ANC’s election rhetoric. Some voters will take it seriously and some will not. The best way the DA could counter such claims is to demonstrate, through their words and action, that the claims are untrue.

Similarly, when the DA claims that President Jacob Zuma has stolen taxpayers’ money, that ANC leaders are all corrupt or that the ANC will undermine the Constitution, we all know that this is part of the DA’s election rhetoric. Some voters will believe the claims and some will not. Surely the best way for the ANC to counter such claims would be to show, through words and deeds, that the claims are untrue.

The ANC chose not to follow this route to challenge the accuracy of the SMS sent by the DA that the Public Protector Report shows that President Zuma has stolen taxpayers’ money. Perhaps because it thought it would not be able to win the argument or because it feared that the damage done to the ANC brand by the Nkandla scandal could not be repaired through reasoned debate and argument alone, it approached the court to try and stop the DA from making these claims.

The ANC relied on section 89(2)(c) of the Electoral Act which prohibits any person from publishing any false information with the intention of influencing the conduct or outcome of an election and on item 9(1)(ii)(b) of the Electoral Code which prohibits any registered party or candidate from publishing false or defamatory allegations in connection with an election in respect of a candidate or that candidate’s representatives.

If a court were to interpret these provisions strictly, it would have a drastic effect on what could and could not be said during an election campaign. It would then become illegal to make accusations about a political party or its candidates unless it could easily be shown that the accusations are true.

A large amount of statements made by ANC politicians about opposition parties and quite a number of statements made by opposition parties about the ANC would immediately be rendered illegal during an election campaign.

It will always be very difficult, if not impossible, to show that many of the accusations made during an election campaign are indeed true. A strict interpretation of the Electoral Act would therefore impose a drastic limit on what could be said during an election campaign and would impoverish political debate and contestation.

As the distinction between facts and opinion based on those facts can be very difficult to maintain, politicians would have to curb their exuberance when making claims about opposition parties and their candidates.

As a result, those taking part in the election campaign would be unable to raise many critical questions about their opponents and voters would be deprived of opinions about political parties and their candidates that may otherwise have played a pivotal role in their decision who to vote for.

A narrow, literal, interpretation would therefore leave the relevant sections of the Electoral Act open to constitutional challenge.

It may be for this reason that the High Court reinterpreted the relevant sections of the Electoral Act in line with section 39(2) of the Constitution. This section requires a court when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights”.

If words in legislation are reasonably capable of an interpretation in line with the provisions of the Bill of Rights, a court must give those words the constitutionally valid meaning.

The court thus rejected the argument, advanced on behalf of the ANC, that section 89(2) created strict liability and prohibited false statements even where those who made them believed them to be correct.

Instead it interpreted the section in the light of the right to freedom of expression and in the light of section 1 of the Constitution, which states, inter alia, that ours is a state based on the values of a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

The judgment thus, somewhat controversially, introduced the principles developed in law of defamation regarding fair comment when interpreting the relevant provisions in the Electoral Act.

In effect, the court found that you would not be in breach of the Electoral Act every time you make what turns out to be a false statement about a candidate or political party. You will only be in breach of the Act if your statement is false and does not amount to “fair comment”.

The court noted that in the law of defamation regard must be had to who is being targeted. Politicians and public figures must not be too thin-skinned about comments made about them. What may be defamatory of a private person may not necessarily be defamatory of a politician or a judge. This is so because right-thinking people will probably not likely greatly be influenced in their esteem of a politician by derogatory statements made about him or her.

Interpreted in the light of the law of defamation, a comment based on facts need not commend itself to the court, nor need it be impartial and well-balanced. Fair comment requires only that the view must – objectively speaking – be an honest and genuine expression of opinion about a set of facts and must not disclose malice.

The idea is that divergent views should be aired in public and subjected to debate and scrutiny because it is through such debate that bad ideas will be exposed and shown to be wrong-headed. Untrammeled debate enhances truth-finding. If the relevant sections of the Electoral Act were interpreted too strictly, it would make untrammeled debate very difficult, if not impossible.

Given this expansive interpretation of the relevant provisions of the Electoral Act, the court found that the comments made by the DA in its SMS constituted fair comment.

This was so because the DA SMS did not state as fact that the Public Protector Report found that President Jacob Zuma stole money. Instead the SMS claimed that the Report “show[ed]” that he did so.

In this regard the court noted that the Public Protector’s Report found that government created a license to loot situation during the Nkandla construction. It also noted that the president was aware of the upgrades but never raised any concerns as to the scale and cost of the upgrade, that he thus tacitly accepted the upgrades and that he improperly benefited in the process.

The court thus found that the SMS expressed a conclusion which could be fairly reached by a person reading the report.

Although the judgment wisely attempted to narrow the scope of section 89(2)(c) of the Electoral Act and item 9(1)(ii)(b) of the Electoral Code in order to preserve a space in which robust free and fair campaigning could occur, another court may well find that the wording of the Electoral Act could not reasonably be interpreted in the way the court interpreted it.

However, I would guess that if another court declined to follow the reasoning of the High Court, and instead interpreted the relevant sections to prohibit all claims made about a political party or its candidates that cannot be shown to be true, it would render these sections of the Electoral Act unconstitutional for breaching the right to freedom of expression.

There is therefore a possibility that an appeal of the judgment by the ANC may be successful. If it is successful, then it would leave the relevant sections open to constitutional attack.

It may therefore well be that after a lengthy legal battle, more or less the same outcome reached by the High Court is reached by another court – but based on different grounds, namely that the sections invoked by the ANC are unconstitutional.

  • Lethabo Mashego

    Personally i feel that the ANC only went to court with their claims in order to distract the public on the findings of the Nkandla Report, that exposed the president. I feel that their are delaying a proper response from the president until the elections are over. What i feel should be brought to the attention of the public is how the ANC continues to waste funds on such cases. i would like to know where the funds are coming from to fight such ridiculous cases?? tax payers or…?

  • 14118379

    Well I think all of this is totally unnecessary political parties, particularly the DA and the ANC, are doing everything in their power to try and discredit each other especially now since the elections are approaching. The fact that it was seen as though the DA was just expressing it’s freedom of speech by writing the sms is fair and I also feel that the ANC should have been aware of this instead of humiliating itself by taking the matter to court and only to find that there is nothing wrong with what the DA said in it’s SMS as it was what any ‘reasonable person’ would have concluded after reading the public protector’s report.

  • 12331432!

    in my opinion the courts finding was correct in stating that the DA had exressed freedom of speech by ssending the sms. i also believe that the DA was correct in ststaing that the ANC has undermined the constitution. The DA was bringing to light matters that the ANC want to sweep under the carpet considering the up and coming elections being so close by

  • Shrivar Chendip

    Shrivar Chendip
    14176484
    This article in my opinion demonstrates the power of propaganda and how its timely use can benefit a society and a political party. In my opinion the ANC were extremely rash and did not thoroughly process their decision. As now they are seen as a political party that consist of “thin-skinned” politicians who cant take a threat!. Which creates suspicion on what other secrets have being buried and does this political party have what it takes to run this country(backbone). In that light the DA, finally instituted an attack not merely on accusation that had no substance but rather on a topic of discussion the country wants to know about. With the courts inflicting a decision that promotes untrammelled debate, this creates a heated election period one in my opinion can see the truth revealed and the liars being exposed.

  • Fanu Steyn

    Ek is van mening dat die Hoogeregshof se uitspraak heeltemal in orde is want die sogenaamde aantuiging wat die DA gemaak het d.m.v. die sms is nie vals nie want as die president nie ‘n luukse woning in Pretoria gehad het nie sou ek verstaan het hoekom hy vir hom ‘n woning wou bou maar om n Multi-Miljoen rand se kompleks te bou in ‘n plattelandse nedersetting is verregaande. Hierdie is weereens ‘n geval waar persone in mags posisies spandabelrig raak met geld wat moontlik nie eers hul eie is nie. Die feit dat die ANC van mening is dat die DA rassisties is belaglik wat die DA is n party met ‘n diverse groep mense aan die stuur en Apartheid en Rassime kan nie meer ‘n kwessie wees nie want ons is al 19 jaar n demokratiese land..Ek voel dat die ANC met hierdie uitlating en hofgeding ‘n sluier oor ons as kiesers se oe wil trek wat korrupsie aanbetref

  • Mitchell Black

    But if not the courts acting as mediators in political disputes then
    who? And where would such disputes lead if left untrammeled?

    After
    the Public Protectors report was released the ANC was thrust into a
    tail spin as the report left the ANC and its leadership in an
    unfavourable light. The lashback from the ruling party could have been
    more childish and more severe if they had heeded to the old addage of
    “an eye for an eye” and they could have retaliated by sending an SMS out
    in Cape Town rehashing any of the old accusations they have previously
    thrown at the DA. This is a response that most people would not struggle
    to put past the ANC.

    But they didn’t?

    In their panic they
    turned to a system over which they have a greater degree of control and
    in which they believed they could successfully gain some form of
    reprisal against the DA. While the case they presented was not well
    thought through as you have said it was the only one they had to run and
    going through the courts was the only avenue through which they could
    run it. I agree with you when you say that the courts are not well
    placed to mediate political conflict but I belive they are the only
    availible means of mediation that stand a chance of having any true
    effect.

    The alternative is to leave the conflict unchecked and
    let it resolve itself in whatever way they see fit (most probably the
    response many expected from the ANC that I outlined above) and I see no
    positive outcome to this form of dispute resolution. In a society such
    as hours where the values of reconcilliatory mediation are so dearly
    held things can get messy fast when people and organisations decide to
    settle their disputes by “airing out the dirty laundry”.

    The most
    natural and commonly seen form of dispute resolution, especially in our
    society, involves actively encouraging the open expression of the rage
    and grief
    stirred up by the conflict. I fear that this may lead to
    what has been termed as “Dirty Politics” becoming the norm for
    campaigns. If left unchecked we may see the rise of entire political
    campaigns based on the premise of besmirching other campaigns and
    politicians to make yours seem the least dirty.

    The idea of
    “Dirty Politics”, while it might seem as though I am trying to paint a
    dystopian future, is a slipperly slope that I believe can be too easily
    stumbled onto. Its better that the courts hash out and clarify the fine
    print of the Electoral Act now rather than have to deal with violations
    of the Act in the future.

    They may not be the best option, but the courts are currently the only viable option for the resolution of political disputes!

  • Jared De Canha

    I am in agreement with Lethabo that the ANC’s recent court battle is nothing more than a distraction aimed at shifting the focus from the findings of the Nkandla Report onto a dramatized court case. In fact, after the turbulent past couple of months the ruling party has encountered, I believe the ANC are concerned about the decline
    in support and want to shift the spotlight off of their indiscretions, and onto a new focus for public interest. The Gupta Plane Scandal, Nkandla Report and introduction of new political parties such as Agang and the EFF have been costly to ANC support and definitely given the ruling party reason to want to shift the focus away from the ANC.

    The nature of the South African political arena is one of rhetoric and
    challenge, and I believe that this interaction between political parties is vital for a healthy multi-party democratic system. The ANC, in my opinion, have become complacent over the course of our 20 years of democracy due to the comfortable majority the party held in previous years. However, without challenges from opposition parties nipping at
    the heels of the ANC, I believe that there would be no means to ensure accountability for the actions of the ruling party.

    I believe I share the opinion of many of the Born Free voters, voting for the first time, when I say that we need these critical interactions between political parties in order to make up our own minds as to the choices we wish to see moving forward in our democracy. This is why I commend the High Court’s judgement and interpretation of the Electoral Act, as this judgement has ensured that inter-party debate and rhetoric can continue, which forms a vital part in helping the Born Free Generation of voters shape their decision of where to cross on the ballot papers on 7 May.

  • P.H.M Maphaha 13227221

    I stand in agreement with the DA. Our President Jacob Zuma said in his defence that he was unaware of the financial implications of his upgrades, the DA has brought up evidence that President Jacob Zuma was was fully aware of all financial implications!

    In 2012 the DA parliamentary leader Lindiwe Mazibuko asked Zuma a question in regards to Nkandla, Zuma response insinuated that the government would make security upgrades on its own accord and those upgrades would solely be for security purposes and that he did not know how much these upgrades would cost.
    In a recent discussion over the improvements to his Nkandla residence President Jacob Zuma contradicts his claim of having no knowledge about the costs.
    He said, “Actually, I was informed that improvements needed to be made at the family residence to enhance the security of the head of state.”
    I do not think that the President could be informed about various improvements on his own home and not be informed about the costs, that would be utter ignorance.
    Another disturbing matter is that not all improvements were for the purpose of security as the president had told parliament, for instance the swimming pool, visitors’ centre, amphitheatre, cattle kraal, marquee area and many other “improvements” made on his home.
    The bottom line is that President Jacob Zuma misled Parliament on the security upgrades at his Nkandla residence, if we truly exist in a democratic nation such unethical and unlawful action should call for an impeachment.

    On a more personal note I have two questions to conclude. Why should everyone who opposes the ruling government be slandered with names such as “racist” and “big nose”? Should we continue to silence the whistle blowers and watch our nation fall into corruption?

  • Xavierpaida

    What a thoughtful perspective you have arrived with there. i however have two facts l would like to bring to light:

    Unfortunately, it is not within the Legal powers of the RSAC for the President of South Africa to know in detail issues which revolve around security upgrades beyond or within the demarcation of his personal property. Secondly, it is the responsibility of the Department of Public Works to have detailed inventory of works and resources ascribed towards Nkandla. To some extent,this liberates The Presidency from exuberant reporting channels and themes.

    However, you leave us with thought provoking questions which shed light on the variable loop holes which you have depicted within the RSAC. As an RSAC expert, this calls for modifications within the thematic of the RSAC in terms of elements which should be enclosed within Parly reporting standards and evaluation connotations.

    Good piece of research!

  • Mariëtte van Schalkwyk

    I also agree with Lethabo. The DA did not do anything wrong. They did not accuse the president directly but only stated what was mentioned in the report. Therefor stating the facts and not their personal opinions. I personally feel that we as citizens of South Africa should not be kept in the dark due to the fact that the elections are around the corner and if the president is stealing our money for his own use we should know about this. We need to make an informed decision because our votes determine how the country will be managed for the next few years. If we keep on voting for a corrupt president and we are not aware of this fact, we’ll be heading for disaster.
    Absolute power corrupts absolutely and it is important that we vote for those who use this power for the sake of the people and not for their own good.
    I also like the way the court approached this. Not everything in the law should always be interpreted literally and by not interpreting everything literally we make space for a well-developed society and substantive equality where everyone has a place under the sun. Or where the DA can convince us that the ANC is not always the best choice when it comes to moving South Africa forward.

  • Natasha Groenewald

    I agree with the DA.They made our country aware of the corruption caused by the ANC. I think everyone is aware of all the corruption going on in our country but everyone was too afraid to say something about it.The DA finally brought it to our attention.I don’t think what the DA did was racist, they only want to show us how corrupt Zuma is by using Taxpayers’ money for his own benefits in well being where this money could have been used to create jobs and building houses for the poor, full filling the actual needs of our country.

    The thing about the ANC taking the DA to court was just to cover their own corruption by drawing the public’s attention away from their issues, but the DA has the freedom of speech and what they said was not untrue.

    So I think President Jacob Zuma must be held responsible for the money he misused and more strict control methods should be implemented to confront corruption.

  • http://batman-news.com Monique

    The DA rightfully ued their freedom of speech when sending out the sms.I think it was unnecessary and a waste of money for the ANC to take the matter to court.The ANC obviously want to protect their leader and their party from just another scandal,but the damage has been done.The ANC want to shift the spotlight of the Nkadla scandal but infact by taking the matter to court and losing the case only gave more negative publicity in favour of the DA.

  • Ricardo Bornman

    The Electoral Act begins by stating that false information must be prohibited.

    And that is where we can stop. Jacob Zuma knowingly used taxpayer money with the intention of building himself a lofty home. Whether this outcome influences the elections, is irrelevant, seeing as it is a truthful comment and therefor falls in line with the necessary prerequisites. The DA has used the opportunity for their own agenda – and why is this wrong?

    Every political party uses recent events to condemn rivaling parties. In South Africa, this is, in fact, important considering the blatant lack of political debates or discussion prevalent in countries such as the United States. The article stated earlier that a strict interpretation of the Electoral Act would impoverish political debate and contestation. Dare I ask what debate and contestation you are referring to?

    Speaking to numerous South Africans, I can say with confidence that the majority are politically apathetic. They have no idea what their party stands for (Economics; immigration; health care; etc) voting based on…who can say really? Their favourite colours? Who their parents will vote for? Preconceived opinions? This isn’t entirely the fault of the voters either – we rarely ever get the oppurtunity to listen to the respective delegates in a thought-provoking debate (by which I mean never).

    As a result, ‘performance’ and scandals and criticism are all that remain in provoking a change of heart among voters. Taking away another medium, or punishing a political party for using what little resources it has left at its disposal (given that it’s truthful) only hinders our democracy and is in itself unconstitutional.

  • Gabriella ingram-14145708

    I find it quite ironic how the ANC is quick to reffer to the law whith regard to the actions of the DA but zuma refuses to comment on aspects of the report when hes role as president is questioned, where the roles of the president are stated in the constitution.we seem to get the sense that, unless it benifits the ANC, no comments from the public are acknowledged or valued . The secrecy bill supports this . Nelson Mandela once said “press freedom will neverr be under threat in south africa as long as the ANC is the majority party”. i find it sad how the origional morals and values that the party stood for , as they lead the way to a new south africa, have been forgotten and replaced with greed and corruption.yes the sms formed part of the DA’s election rhetoric but they should be comended for it as they arnt allowing the ANC to become to comfortable in their world where they would like to control all that we hear do and say . it was also stated bellow that the insults hurled such as “big nose” are pathetic. i agree completely . Is the caliber of ANC politicians really that mediochre that the only comeback they can manage is of appearance amd in a mocking / degrading manner ?much llike ona childrens playground?

  • Graham Mathews

    I agree with the DA. The DA has used their freedom of speech which is in the bill of rights to express their opinion of the ANC and raise important concerns of corruption within it. Although there is a limitation clause within section 36 of the constitution it is evident that South Africans taxpayers money was indeed used uneconomically to benefit president Jacob Zuma and ergo the sms they sent can be justified as it is true, which also means that they did not breach 89(2)(c) of the Electoral act.

    Furthermore there is always rhetoric and propaganda within election campaigns which is why the courts do not enforce this law strictly. The sms which was sent by the DA was an example of how opposing political campaigns expose each other which is necessary because although some of the allegations made may be untrue, ones such as President Jacob Zuma using these funds economically allows voters to make informed decisions on which political party to vote for. Therefore it can be said that the DA’s actions were justified as they did not breach the Electoral act and informed the general public which did not know of President Jacob Zuma, who is supposed to promote the image of the ANC, of his actions.

  • Kathryn Clark

    One would expect that a party should rely on their actions and reputations, focusing on how they may enhance themselves truthfully to the public in order to gain favour and in the end to attain votes toward their party. I feel that the parties should stop trying to discredit the other in hopes to make themselves look better as it shows their insecurities and to some extent immaturity. If they happen to disagree with what another party is doing, they should trust in the voters to make an intelligent decision (we can all see the faults of the ANC we don’t need petty messages telling us what we already know…).Also what was ANC hoping to gain from taking the DA to court? It is not as if the messages can be unsent or that the readers will all automatically forget what they have read, had ANC won the case. Pride is an ugly trait.

  • C.P Sibanda

    The article leads me to how the Political parties are trying to use propaganda to gain Public’s favour.The ANC trys to achieve this by opening wounds of the past.The ”SMS” gave the parties the opportunity to oppress each other to the extent of taking the matter to court.

  • Khethiwe Mabhena

    In my opinion, the ANC has far surpassed the point where
    going to court can be used as a strategy to help distract citizens from what
    has been happening within their structures because there is nothing they can do
    to alleviate what citizens have seen or heard over the past year. It was a
    strategy to make the DA look like the bad guys for having “infringed” on the law
    (in the ANC’s perspective). They obviously would have not taken the matter to
    court if they did not believe that they had a chance to win their claim. It is
    evident that they know that they are not in a comfortable position with regards
    to the upcoming elections, now why sit back and let another political party
    bask in the sun while taking every opportunity to get ahead as they (ANC)
    recede? The ANC will try to pull as many political parties down with them
    because apart from the ANC and the DA, EFF and perhaps COPE, the rest of the
    political parties on the ballot papers are there to show face.

  • Khethiwe Mabhena

    In my opinion, the ANC has far surpassed the point where
    going to court can be used as a strategy to help distract citizens from what
    has been happening within their structures because there is nothing they can do
    to alleviate what citizens have seen or heard over the past year. It was a
    strategy to make the DA look like the bad guys for having “infringed” on the law
    (in the ANC’s perspective). They obviously would have not taken the matter to
    court if they did not believe that they had a chance to win their claim. It is
    evident that they know that they are not in a comfortable position with regards
    to the upcoming elections, now why sit back and let another political party
    bask in the sun while taking every opportunity to get ahead as they (ANC)
    recede? The ANC will try to pull as many political parties down with them
    because apart from the ANC and the DA, EFF and perhaps COPE, the rest of the
    political parties on the ballot papers are there to show face.

  • Onalenna Matshego

    I agree with the DA. The report showed the president had knowledge to some extent of the upgrades even though he denies it. The President claimed to have had loaned money to pay for the non-security related upgrades but failed to give evidence of this to the public protector. One can only assume after reading the report that he did have knowledge of it therefore the SMS is not misleading.
    People have their own opinions about the SMS (some don’t bother with it whereas others thought it was in bad taste) so it doesn’t exactly influence who they will vote for.
    The DA is merely playing the game, the ANC makes comments about the DA and Helen Zille as well, it is just how elections go.

  • S. Klopper 14212987

    I believe that the most important argument to take from this article is the importance of freedom of speech during election campaigns. Without all of the ‘drama’ or ‘stories’ (if I may refer to them as that) communicated during this very critical time, in which citizens are deciding which political party has the country’s best interests at heart, one would not have access to information which could ultimately swing one’s vote. As Mr. De Vos has pointed out, the people planning
    to vote in May would be deprived of political debate if the Electoral Act was strictly interpreted. Opinions and the raising of critical questions about opposing parties are of the utmost importance in achieving the most enlightened decision when voting for a particular party. This information gives rise to curiosity, and one can then do further research into a political party.
    In this day and age, the sharing of information – whether true or false – is our most powerful tool.

  • Thlologelo Mathebe 14184053

    The DA decision to use the the president’s mishaps as a campaign strategy is quiet a clever decision. The content of the SMS is not only deemed legal by the court but it is also an effective one, it will get to a lot of people and have a specific influence thereof, even though it does not necessarily state the exact or more accurate findings of the Nkandla report by the Public Protector and all this has been done and will continue by simply exercising the DA’s right to freedom of expression and of speech. The whole Nkandla issue could not have come at a more advantageous time for other parties. Not only does it serve as guidance in helping people to see what is to vote for this coming elections but could also (if they chose to look at it that way) help the smaller parties grow in a relatively short period of time.

  • 14165504

    I believe that, even though the way they are phrasing it is not right, the DA is right in saying that President Zuma stole the taxpayers’ money. He was well aware of the plans of his house. He even approved them himself. There is no way he can deny knowing anything. Section 89(2) (c) of the Electoral Act prohibits any person from publishing any false information with the intention of influencing the conduct or outcome of an election. The ANC relied heavily on this section; however the claim the DA made was not false. The Public Protector had proved that the President had misused the money. This scandal had played out well, in the favor of the DA.

  • http://Mapaniandpartners.com Tafadzwa Mapani

    As elections approach, matters regarding opposing parties become constitutionally heated owing to the achievement of a desired outcome by one party over another. It is quite evident that the legal and constitutional feuds that are centered between the two biggest party’s rhetoric to sway voters discretion to vote in their favor. In the midst of it all I come to the question what will prevail between the objectivity of the law, legislation and facts and the subjectivity of the community’s opinion and the accusations made that are yet to be proven.

  • L.D11282551

    This article brings to light the intense rivalry between
    political parties in South Africa and the way in which our law is required to remain neutral in disputes between them. In this case I feel that the ANC has once again tried to turn the allegation around and fire it back at the original whistle blower as such, thus avoiding responsibility. In my opinion the ANC should focus their energy and influence on a more positive note, by creating true and honest perceptions through committing respectable acts in favour of the Republic. It is admirable however that the court interprets the legislation “to ensure accountability, responsiveness and openness”. In conclusion, the government of a country is solely present to serve the people, how can this be monitored by the people without the whistle blowers that alert the public to fault perpetrated by that government.

  • 14111749 Monique Schutte

    The DA’s claim in their SMS that the Public Protector’s report “showed that Zuma stole your money” was a reasonable deduction. This referred to the 246 million rand upgrades made to presidents Zuma’s private home. The ANC decided to take the DA to court and relied on the Electoral Code and Act, prohibiting any registered party from publishing false or defamatory allegations. However, it is very difficult to prove that the DA’s claim is untrue. Therefore the court ruled in favour of the DA. The court ruled that the DA’s statement in the SMS was indeed fair comment. I thus agree with the court’s ruling in favour of the DA, because The Electoral Act and Electoral Code cannot take high order of precedence over the Constitutional Right to freedom of expression. Therefore I believe that the DA will use the court’s ruling to their advantage in their election campaign. I think that the ANC, in their efforts to protect president Zuma and covering up the Nkandla scandal, by taking the DA to court has seriously backfired on them

  • Francois Human (14077851)

    In my opinion I think that the ANC did not have the right to take the DA to court. The investigation that has been done by Thuli Madonsela shows us that there is some of the money that was used for the Nkandla development, so the DA did not lie, they sent the SMS on pure facts. There was enough evidence for the DA to show that the money went to the Nkandla development, you can not argue against facts. Personally I feel that, it is not fair towards the rest of the people in South-Africa. There is a lot of people who live in South-Africa who do not even have houses, but our president can build a house worth R246 million. One of the most terrifying actions, are that Zuma upgraded his security, and that is unnecessary because according to him we live in a very safe environment. Some of the money that Zuma used to upgrade the security came from Tax, and Tax are not supposed to be used in this way. The Nkandla development and e-toll system has the same inconsistency’s, because in neither of them permission was asked. The timing of the Nkandla development is very bad for the ANC because obviously they have lost some votes.

  • u14078181

    I feel that the ANC taking the DA to court over the SMS is extremely contradictory. If we look at past elections, the ANC makes claims about the DA calling them names such as racist for example. The ANC basing their claim on section 89(2)(c) of the Electoral act is quite weak because as I said they make unfair comments regarding the DA. Therefore I agree with the courts rejection of the ANC’s claims. We have been granted freedom of speech in South Africa and the claims made by the DA in the SMS are obviously true.

  • Neo Modibedi

    It’s no secret that the Nkandla debacle has been a disaster for the ANC, especially at this time leading up to what is sure be the most contested elections in our democracy.
    Seeing the DA launch into criticism of the ANC should not be surprising at all, and it’s even less surprising that the Nkandla scandal is used as ammunition for opposition parties. The DA is well within its rights to be sending that SMS; they were not exactly sharing breaking news that the public were not aware of anyway – they were simply doing what any leading opposition party would do: by highlighting the stark shortcomings of the party in power and finding a way to use it to their advantage.
    The real positive that comes out of this is that it elicits critical debate that will hopefully result in a more effective, efficient and accountable government.

  • Cilliers de Villiers

    Die DA se SMS veldtog sal beslis meer mense bewus maak van mnr. Zuma se korrupsie met Nkandla en hulle weglei van die ANC op verkiesingsdag. Ek glo net dat die SMS veldtog mense nie nader aan die DA gebring het nie, maar eerder net weg van die ANC en nader aan ander partye. Die DA was wel in hulle reg om vryheid van spraak uit te oefen. Inplaas daarvan om hof toe te gaan moes die DA ook net soos mnr. Zuma se: “Ons het nie geweet nie, ons gaan nie ‘betaal’ nie.”

    Danksy mnr. Zuma se uitsteltegniek, sal dit nog ‘n lang tyd wees voordat die stelling(Die feit dat hy belastingbetalers se geld gesteel het), gemaak deur die DA bewys kan word. Die Nkandla skandaal sal geignoreer word tot na die verkiesing op 7 Mei, en indien die ANC die verkiesing wen sal ons as belastingbetalers vir nog ‘n termyn bele in die Nkandla landgoed. Mnr. Zuma moet maar as hy sy toegelate termyne as President saam met die King broers ‘n piramiedeskema begin, albei partye weet hoe om lee beloftes te maak en ander uit te buit vir hul eie geldgierige belang.

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  • TarienvanDyk(u14007020)

    In my eerlike opinie voel ek dit was reg van die DA om die SMS uit te stuur. Ons as burgers van Suid-Afrika het die reg om te weet wat aangaan in ons land en om te weet waarheen ons geld gaan wat ons moet betaal. Ons huidige president, Mnr. Zuma het net weereens gewys dat ons nie hom of die ANC kan vertrou met ons geld nie. Daar is mense wat steeds haweloos is en nog meer wat nie kos het nie, nou wil hy vir hom ‘n huis bou met miljoene rande wat ons vir hom gegee het. Die DA was slim om die SMS te stuur want dit het defnitief mense weg van die ANC gedryf. Nou moet hulle net hulle aksies reg kies om mense na hulle kant toe te trek. Die feit dat die ANC die hele ding hof toe gevat het wys ook vir ons dat hulle nie omgee om ‘n slegte naam te kry nie. Hulle het onnodig die saak hof toe gevat en hulself laat sleg lyk toe hulle nie gewen het nie. Waar gaan dit ooit ophou?

  • 1Zoo1

    Prof

    I agree with your analysis of the Act. Elections in a free democracy are supposed to be a cacophony of competing ideas.

    There is nothing in the common law which would prevent an aggrieved party from approaching a court for an interdict restraining another from publishing false information.

    This remedy exists anyway, why it should be a “special” for elections is unclear on this reading.

    Perhaps the question is whether there is an electoral penalty attached to the publication of the information? I have not read the entire Act so you must please inform us (if you have). If there is a penalty, then perhaps it may pass muster – so if one party blatantly publishes falsehoods to influence the election, the result is a loss of x% of the vote it received and the movement of that vote to the aggrieved party.

    To me that would be the fair way of dealing with the situation.

    A legislative ban is unpalatable and should be for anyone who appreciates freedom. But a penalty will enable the offender to be penalized where it counts and does not suppress the freedom of expression.

  • 13291689_K_Boshoff

    I have no reason to believe one word the ANC has to say about the DA, what their opinions are, or anything that President Zuma has to say with regards to the money he spends.

    The DA are exercising their right to proper freedom of speech, freedom does not mean you can do as you please, for example build yourself a house worth 246 million rand. Freedom does not mean you get to speak out in public and claim this is all “the white peoples lies” – as so beautifully put by the CURRENT minister of Education in South Africa.

    The ANC try everything they can to pass the buck or to deny themselves responsibility for anything they do. I am glad the court firmly put them in their place and reminded us of our freedom of speech and that if we do not like something in this country, we as a nation can openly object to it, without the fear of being silenced by a particular political party, or government departmen