I don’t think it’s reasonable to interpret the public protector’s report on Nkandla as implying that “Zuma stole your money”. But, despite holding this view, I want to explain why, nevertheless, I think the High Court was right to uphold the Democratic Alliance’s legal entitlement to send an SMS to voters containing exactly that message.
The heart of the court’s reasoning is that it is “fair comment” to interpret the public protector’s report as effectively showing that President Jacob Zuma had stolen from us. And in coming to this conclusion, the court relied on some case law that had previously established the concept of “fair comment” by giving wide meaning to it, so as to promote debate and the dissemination of different views in society.
The most authoritative citation is from the Robert McBride case. In that case, a newspaper’s right to describe McBride as a murderer was at issue. The court rejected the idea that “murderer” must only have a legal meaning or that unless someone has a standing conviction for murder, they cannot be called a murderer.
Relying on a 1917 case, the constitutional court defined the parameters of fair comment as follows: “The criticism sought to be protected need not ‘commend itself’ to the court. Nor need it be ‘impartial or well-balanced’. In fact, ‘fair’ in the defence means merely that the opinion must be one that a fair person, however extreme, might honestly hold, even if the views are ‘extravagant, exaggerated, or even prejudiced’. The comment need be fair only in the sense that objectively speaking it qualifies ‘as an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was based, and not disclosing malice’.”
Given this case law, it is quite straightforward the judge did not make an obvious legal mistake. If there’s a problem here, it must be in the case law that has to be followed as a matter of good judicial practice. So blame Judge Edwin Cameron, if you don’t like the scope of what counts as fair comment, since he penned that judgment. Don’t blame acting Judge Mike Hellens!
Except you may want to think about the McBride judgment carefully before criticising the precedent it set. I think it was an excellent judgment. The reality is that courts should not become censorship boards and police the marketplace of ideas.
And, as the free speech argument goes, there is value not just in the dissemination of truths, but frankly also allowing the airing of falsehoods.
Truths about the world are good if they are placed in the public space because they help citizens make evidence-based decisions about their lives, about the government of the day, and about the political choices they face.
But even falsehoods, if you think about it, should be allowed into the marketplace of ideas. Someone, unless the general quality of discourse is really bad, will defeat a falsehood publicly, either in debate in a town hall, on radio, letters pages of newspapers, on social media platforms, around the braai or in a stadium where you hold a political rally and make fun of political opponents who lie about you. It is a chance to set the record straight, a chance to demonstrate what is really true.
That, for me, is the philosophical foundation of Justice Cameron’s McBride case. Which brings me back to the DA’s SMS. I think the SMS is misleading. The report on Nkandla makes it clear, in my subjective reading of it, that Zuma acted unethically, at least in the sense that he is culpably ignorant about the details of what happened at his own house.
Worse, the report makes clear it was not total ignorance anyway, and that at times he was informed of some of the goings on. That reinforces the ethical failure by him to ask further questions about the detail.
But here’s the bottom-line: Unlike a thief who intentionally and illegally steals your property, the president (unpalatably but merely) benefited unfairly. I don’t think it is grammatically, legally or ethically correct to say Zuma stole from us on the basis of the Nkandla report.
But I still support the court’s decision to uphold the DA’s right to send out that SMS. I do so because of the importance of limiting legal interference with free speech rights, including ridiculous speech.
The ANC should have fought this battle, not in the legal courts, but in the court of public opinion. Its failure to do so says a lot about its lack of confidence to protect Zuma successfully in public from the DA’s interpretation of him as a thief.