The DA was within it rights when it said in an SMS that President Jacob Zuma had stolen money, the Constitutional Court ruled on Monday.
It set aside a ruling by the Electoral Court that an SMS calling Zuma a thief fell short of the test for fair comment.
The Constitutional Court set aside the Electoral Court’s ruling in favour of the African National Congress, saying the opposition Democratic Alliance did act within its rights when it sent the SMS.
In the SMS, sent to over 1.5 million voters in Gauteng last March, the DA said: “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 SMS followed findings by Public Protector Thuli Madonsela that Zuma and his family unduly benefited from some of the R246 million spent in security upgrades to his KwaZulu-Natal residence.
The ANC went to the High Court in Johannesburg to secure an order declaring it amounted to the publication of false information.
But the judge agreed with the DA who argued the text message was fair comment based on the protector’s findings.
The DA also said it was entitled to send the message in terms of its right to freedom of expression and right to political activity.
The High Court found that the SMS amounted to fair comment and dismissed the ANC’s application.
But the ruling party successfully appealed to the Electoral Court which found that the SMS fell short of the test for fair comment.
The matter went to the Constitutional Court where the DA argued this was an important test for freedom of speech and free political activity. It said the track record of those in power needed to be open to robust scrutiny, especially during election time.
But the ANC maintained that the SMS was a false statement.
DA SMS PRESENTED OPINION AS FACT: ANC
A Constitutional Court ruling on a DA SMS, claiming President Jacob Zuma “stole” money, was not a victory for the opposition, the ANC said on Monday.
The highest court on Monday upheld an appeal by the Democratic Alliance against an Electoral Court ruling that the DA could not publish the text message.
African National Congress spokesman Zizi Kodwa said the judgment in fact vindicated the ruling party in its view that the DA had falsely presented its opinion on Public Protector Thuli Madonsela’a Nkandla report as fact.
“It is regrettable that in spite of the ruling, which supports our view, the DA continues to play politics, hailing this as a victory when the Constitutional Court has been clear that the DA presented their opinions as fact on such an important matter,” he said.
The DA’s SMS, sent to around 1.5 million voters in Gauteng read: “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”.
Kodwa said: “It is not true that President Zuma stole taxpayers’ money to build his homestead in Nkandla — a point made by the successive reports of competent authorities, including the Public Protector”.
While the party accepted the ruling, it still held the text of the DA’s SMS to be “an outright attack on our democracy”, because it disguised misleading information as fair comment with the intention of influencing voters.
“It is incumbent upon all of us as South Africans, as part of strengthening our maturing democracy and in the contestation of ideas, we ensure that the opinions of others do not get presented as factual information in order to gain baseless advantage as has been done in this instance,” Kodwa said.
Earlier, DA parliamentary leader Mmusi Maimane, who was in court on Monday, welcomed the ruling and reiterated the party’s call for Zuma to be held accountable for spending on upgrades to his Nkandla homestead.
“I think Zuma unduly benefited,” he said.
“One man has a multi-million rand house… To me, money was stolen from the people…”
He said the ANC showed little regard for the language it used to describe its adversaries, for example calling the DA “racists”, but when Zuma was criticised the “ANC wants to come to court”.
BREAKING: ConCourt says DA’s SMS that Zuma stole money to build Nkandla is fair comment. Viva Freedom of Speech! pic.twitter.com/xgzA1oi2VK
— Gavin Davis (@gavdavis) January 19, 2015
The DA took to Twitter to celebrate the Constitutional Court judgment, with DA_News tweeting a photo of the SMS with the line “#ICYMI [“In case you missed it] here is the famous #NkandlaSMS “.
This was retweeted by party leader Helen Zille, as was a tweet by DA MP Gavin Davis: “BREAKING: ConCourt says DA’s SMS that Zuma stole money to build Nkandla is fair comment. Viva Freedom of Speech!”.
A few days after the SMS was initially sent, the ANC demanded its retraction and, when the DA did not comply, took the matter to the High Court in Johannesburg.
The High Court found the SMS amounted to “fair comment” and the ANC’s application was dismissed.
The ANC successfully appealed to the Electoral Court, which found the SMS did not satisfy the definitions of “fair comment” and presented itself as a statement of fact.
It was this ruling that the Constitutional Court has now set aside.
The Constitutional Court judges wrote three different judgments, with seven judges agreeing that the Electoral Court order be set aside — but their reasons for the ruling differed.
Another three judges — Raymond Zondo, Chris Jafta and Monica Leeuw –said they would have dismissed the appeal.
Source : Sapa /fg
