African National Congress v Democratic Allience and Another (004/14 EC) [2014] ZAEC 4; 2014 (5) SA 44 (EC) (6 May 2014)

African National Congress v Democratic Allience and Another (004/14 EC) [2014] ZAEC 4; 2014 (5) SA 44 (EC) (6 May 2014)

The court found that the SMS sent by the DA was not recognisable as an expression of opinion but rather a factual assertion that the Public Protector's report showed President Zuma stole R246 million to build his home. The report did not make such a finding, and the facts relied upon by the DA did not support the statement. The defence of fair comment was rejected because the SMS did not present itself as comment, and the facts it purported to rely on were not true. The court held that the SMS constituted the publication of false information in contravention of s 89(2)(c) of the Electoral Act and Item 9(1)(b)(ii) of the Electoral Code. The appeal was allowed, and the DA was ordered to...

Citation
[2014] ZAEC 4
Parties
Appellant: African National Congress; Respondent: Democratic Alliance; Respondent: Electoral Commission of South Africa
Court
Electoral Court
Jurisdiction
South Africa
Judgment Date
6 May 2014
Case Number
004/14 EC
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal allowed; order of the High Court set aside and replaced with a declarator and mandatory retraction order against the DA.
Judges
Mthiyane, Moshidi, Wepener, Mthembu, Pather
Legal Topics
Electoral Act 73 of 1998, Electoral Code, False Information in Elections, Freedom of Expression, Fair Comment, Declaratory and Interdictory Relief
Constitutional Law Civil Procedure Electoral Act 73 of 1998 Electoral Code False Information in Elections Freedom of Expression Fair Comment Declaratory and Interdictory Relief

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

African National Congress

Appellant

Democratic Alliance

Respondent

Electoral Commission of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether the SMS sent by the Democratic Alliance constituted the publication of false information in contravention of s 89(2)(c) of the Electoral Act and Item 9(1)(b)(ii) of Schedule 2 of the Electoral Code.
  2. 2 Whether the SMS was a statement of fact or fair comment/opinion.
  3. 3 Whether the defence of fair comment applies to the SMS in the context of electoral law.

Ratio Decidendi

The court found that the SMS sent by the DA was not recognisable as an expression of opinion but rather a factual assertion that the Public Protector's report showed President Zuma stole R246 million to build his home. The report did not make such a finding, and the facts relied upon by the DA did not support the statement. The defence of fair comment was rejected because the SMS did not present itself as comment, and the facts it purported to rely on were not true. The court held that the SMS constituted the publication of false information in contravention of s 89(2)(c) of the Electoral Act and Item 9(1)(b)(ii) of the Electoral Code. The appeal was allowed, and the DA was ordered to...

Court Disposition

Appeal allowed; order of the High Court set aside and replaced with a declarator and mandatory retraction order against the DA.

Orders

  • It is declared that the DA SMS amounts to a publication of false information in contravention of s 89(2)(c) of the Electoral Act and Item 9(1)(b)(ii) of Schedule 2 of the Electoral Code read with s 94 of the Act.
  • The DA is directed to forthwith retract the SMS by dispatching at its own cost, a text message via the mobile phone bulk short message service to all earlier recipients of the SMS stating that: 'The DA retracts the SMS dispatched to you which falsely stated that President Zuma stole R246m to build his home. The SMS...