SMS judgment protects democracy - DA

2015-01-19 18:03
DA leader Mmusi Maimane speaks to reporters after judgment was handed down in the appeal against an Electoral Court judgment that a DA SMS sent to voters. (Werner Beukes, Sapa)

DA leader Mmusi Maimane speaks to reporters after judgment was handed down in the appeal against an Electoral Court judgment that a DA SMS sent to voters. (Werner Beukes, Sapa)

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Johannesburg - Democracy and the right to freedom of speech were the true winners in a court battle over an SMS stating President Jacob Zuma "stole" taxpayers' money, the DA said on Monday.

"This is a major victory for freedom of speech, proving again that South Africans have the right to form robust opinions about the issues affecting our nation," DA parliamentary leader Mmusi Maimane said in a statement.

"Democracy has indeed prevailed today, because without freedom of speech what kind of democracy have we got?"

The Constitutional Court on Monday overturned an Electoral Court ruling that the DA could not publish the text message.

The DA's SMS, sent to around 1.5 million voters in Gauteng on 20 March, 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".

According to the judgment the SMS constituted opinion or comment, rather than a statement of fact, and as such was not prohibited under the Electoral Act and Electoral Code.

Maimane said the SMS was thus comment or opinion based on an interpretation of Public Protector Thuli Madonsela’s report on Nkandla.

The ANC earlier asserted that the Constitutional Court's ruling was not a victory for the opposition.

Spokesperson Zizi Kodwa said the judgment in fact vindicated the ruling party in its view that the DA had falsely presented its opinion on 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.

"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 considered the DA's SMS "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.

Fair comment

A few days after the SMS was initially sent, the ANC demanded its retraction. When the DA did not comply, the party took the matter to the North Gauteng 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, but was a statement of fact.

The Constitutional Court set this ruling aside. The court's judges wrote three different judgments. Seven of the judges agreed that the Electoral Court order be set aside, but their reasons for coming to this conclusion differed.

Another three judges - Raymond Zondo, Chris Jafta and Monica Leeuw - said they would have dismissed the appeal.

Maimane said the party believed the judgment would have implications for the same court's review of the Independent Communications Authority of SA's (Icasa) banning of the DA’s Ayisafani television commercial last year.

In April Icasa upheld a complaint by the SA Police Service about the advert, which included a photo of a police officer shooting rubber bullets.

"We will be making substantially the same arguments in defence of freedom of speech that we put before the court in the SMS case, when the Icasa matter is heard," Maimane said.

Read more on:    anc  |  icasa  |  da  |  mmusi maimane  |  johannesburg  |  politics  |  nkandla upgrade  |  elections 2014

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