The Constitutional Court of South Africa has undertaken a robust defence of freedom of expression at the time of an election following litigation between the governing party and the official opposition in Democratic Alliance v African National Congress and Another [2015] ZACC 1.

The case arose out of the scandal surrounding the use of public funds to build ‘improvements’ around the homestead of President Jacob Zuma in Nkandla, KwaZulu-Natal. A report by the Public Protector (a constitutionally mandated public administration ombudsman) published in March 2014 was highly critical of the expenditure. The next day, with the general election only a few months away, the Democratic Alliance (DA) sent a text message to over 1.5 million voters in Gauteng province which said:

“The Nkandla report shows how Zuma stole your money to build his R246m [around £15m] home. Vote DA on 7 May to beat corruption. Together for change.”

It was alleged by the African National Congress (ANC) that the DA had published false information with the intention of influencing an election contrary to s.89(2) of the Electoral Act or had published false or defamatory allegations contrary to Item 9(1) of the Electoral Code. The DA argued that the message was fair comment based on a genuinely and honestly held view of the Nkandla Report. The High Court found in favour of the DA, but the Electoral Court ruled for the ANC on the basis that the message was indeed false.

The Constitutional Court found for the DA by a majority of 7-3. The main confrontation concerned whether the allegations constituted fact or comment. Zondo J, writing for the minority, advocated an analysis founded in defamation law. The ‘ordinary reasonable man’ would understand the text as an allegation of fact that President Zuma has stolen taxpayers’ money. This was false as it was not what the Nkandla Report found.

This approach was unpalatable to the majority, though, for varying reasons. The main judgment rejected the importation of defamation law concepts in favour of a straightforward exercise in statutory interpretation. S.89(2) imposes criminal liability and so should be construed narrowly, especially given the limitations it imposes on freedom of expression (s.16 of the constitution), which are vital to the exercise of political rights (section 19). Accordingly, the provisions only prohibit the assertion of false statements of fact designed to subvert the electoral process (for example, that a particular candidate has died etc). They are not designed to criminalise comment and the text message was clearly comment based on an interpretation of the Nkandla Report.

The joint concurring opinion argued that the fact/comment dichotomy is illusory, and rather, a spectrum exists. The closer the resemblance of a statement to fact rather than opinion, the more intense the court’s scrutiny will be. The statutory prohibition is restricted to ‘false information’ of a factual nature. The text message had attributes of both fact and comment, but the appeal should be allowed because the President’s conduct could fit into one of the meanings of the word ‘stole’.

Eschewing an analysis based on defamation law was sensible. Electoral law is designed to guarantee that elections are free and fair, not defend the reputations of candidates. The majority correctly found that whatever the intricacies of the fact/comment dichotomy/spectrum debate, the issues had to be resolved in favour of the defendant. All that was sought in this case was a retraction and an apology, but in other cases the result of an election may well hang in the balance. A court should hesitate to overturn or pre-empt the verdict of the electorate for what amounts to sharp practice, rather than an interference with the electoral process.

It is worth reflecting on this as we near the UK General Election in May. Following the 2010 election, the Divisional Court upheld the voiding of the result in Oldham East and Saddleworth in R(Woolas) v Parliamentary Election Court [2012] QB 1 under the equivalent English legislation, s.106 of the Representation of the People Act 1983. Phil Woolas’ campaign was puerile stuff and his absence from the current parliament was no great loss, but we should be wary of permitting judges to rule on the substantive content of election campaigns.