Concourt in a pickle over DA’s SMS

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Published Sep 12, 2014

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Johannesburg - The Constitutional Court heard an appeal on Thursday against a judgment by the Electoral Court that found an SMS sent out by the DA before the elections was based on false information.

On March 20 this year, the DA sent out a text message to 1.59 million voters in Gauteng that 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.”

The ANC instituted an urgent application against the DA in the South Gauteng High Court in Joburg.

The DA’s argument was that the SMS was not a statement of fact, but was fair comment based on the findings of the public protector’s report concerning security upgrades to President Jacob Zuma’s private residence in Nkandla.

The high court found that the message amounted to fair comment, but the ANC successfully appealed to the Electoral Court. The DA then took the matter to the Constitutional Court.

The DA’s senior counsel, Ismail Jamie, maintained that during election time, debate and political speech must be open and robust.

The ANC’s attorney, Gcina Malindi, maintained the SMS was factually false because nowhere in the public protector’s report did it say that Zuma was a thief.

Justice Johann van der Westhuizen questioned Jamie on whether he believed the sending of the SMS interfered with people’s rights to have a fair election.

 

Deputy Chief Justice Dikgang Moseneke dwelled on the question of falsity, wondering if an opinion could ever be considered false.

Malindi admitted that opinion could not be seen as false, but said the SMS was a statement of fact and not an opinion.

Justice Johan Froneman said that from what he could see, the case rested on the question of whether the SMS was fact or opinion, and if it was considered to be fact, then was it false or not.

Justice Edwin Cameron focused on the public protector’s report, saying she had used the words “misappropriation of public funds” and she had found the president was aware of the upgrades and that he had unduly benefited from them.

 

Justice Moseneke concluded by saying judgment in this very important case in our democracy had been reserved.

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The Star

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