The judgment really is very narrow, and limited, despite praise from DA politicians and supporters, says Eusebius McKaiser.
Johannesburg - It was fascinating watching reaction on Monday to the DA’s constitutional court victory against the ANC.
The party was elated, seeing it as a victory for free speech, and many detractors of President Jacob Zuma saw it as a vindication of their belief that Zuma is a thief.
But which of the range of reactions are consistent with the majority judgment, and which of these responses are inconsistent with what Justice Edwin Cameron had written in the majority judgment?
The majority of the Braamfontein jurists found that the SMS which the DA had sent to almost 1.6 million potential voters in Gauteng about seven weeks before the national elections in 2014 was not a violation of the Electoral Act.
That SMS, in case you have forgotten, stated that “the Nkandla report shows how Zuma stole your money to build his R246 million home”.
But the Constitutional Court judges were not unanimous in how they saw the issues before them, and this makes nonsense of some responses on social media that pretended it was an easy case to handle constitutionally, and that the ANC lawyers should be embarrassed that they even put up a fight.
It was right for both sides to see this important matter through all the way to the Constitutional Court.
It is worth setting out the issues, before critically examining the majority judgment, a judgment which is not wholly compelling.
The order which the court made was right, but in my view only for reasons that Justice van der Westhuizen managed to mop up after some shortcuts that were taken by the majority.
In fact, although Justice Cameron is arguably the most impressive legal mind on the Constitutional Court bench currently, this particular judgment is possibly his least impressive, from a statutory interpretation viewpoint, quite apart from considerations that go to the heart of some fundamental rights in the Constitution itself, like the right to free and fair elections.
Let’s examine the issues systematically.
What were the nexus legal issues?
The critical question, really, is how the court understood section 89(1) and (2) of the Electoral Act. It had to interpret this part of the statute, and then apply its legal understanding of what those clauses say, to the SMS under consideration in the case.
This part of the Electoral Act prevents statements being made that you know to be false; or making a statement without having reasonable grounds to believe it is true.
It also prevents you from making false statements that are intended to influence the conduct or the outcome of the elections.
Justice Cameron, on behalf of the majority, essentially interpreted this part of the Electoral Act to apply, not to the content of political parties’ messages during election cycles, but rather to the operations and practical aspects of running the elections itself.
For example, if a poster states that a voting station closes at 4pm but it is open until 8pm,that would be a breach of the Electoral Act in terms of section 89.
What Justice Cameron is doing here is to deny that these provisions even apply to the detail of political campaigning, such as political speech between candidates or between political parties.
He argues that freedom of speech must be at its fullest, rather than being restricted beyond the usual restrictions, during election cycles, so that robust public debate can take place, and voters can have the most amount of information necessary to make political choices about who to vote for.
He waxed lyrical along the way about the general value of freedom of expression, including the citation of case law that states that free speech is crucial to “the moral agency of individuals in our society”.
Justice Cameron continues: “Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.”
At any rate, concludes Justice Cameron towards the end of his analysis, the SMS itself is an expression of opinion, rather than the assertion of a fact. And opinions can’t be true or false, for the most part, and so the provisions of the Electoral Act do not really apply here at all.
Cameron did not even have to determine, therefore, whether the the SMS is “fair comment”. It is enough to conclude that it is opinion, and that the Electoral Act is not applicable.
That’s why the majority thought the SMS should not be regarded as violating the Electoral Act.
Let’s be clear: The majority didn’t find that President Zuma is a thief. Nor are they saying that it is fair comment to say he is a thief. They are behaving, as far as they are concerned, like good textual lawyers who interpret the relevant parts of the Electoral Act restrictively, concluding that the DA SMS is not prohibited by the Electoral Act.
The judgment really is very narrow, and limited in meaning, despite Twitter comments from DA politicians, and supporters, that read more into the judgment than there was in the judgment. It really helps to read these judgments first.
Is Justice Cameron’s judgment wholly compelling?? I’m not convinced.
There are several problems with the judgment but I will restrict myself to the two most urgent ones.
Disingenuous statutory interpretation
It is surely disingenuous for Justice Cameron to say that the key provisions in the Electoral Act that guides lawful conduct during election cycles is only meant to cover “election-related information”.
The practical effect of this interpretation, if you think about it, is to imply that section 89 of the Electoral Act was designed principally to regulate the behaviour of the IEC staff because they would be the ones disseminating information about where and how the elections will take place.
Sure, party agents could disseminate false information too and so Justice Cameron’s interpretation of the statute applies to parties too, but it is counter-intuitive to imagine the lawmakers chiefly had in mind IEC officials or only questions about the nuts and bolts of running the election.
The code of conduct that parties sign is based, in part, on these provisions of the Electoral Act. It therefore makes sense, surely, to interpret section 89 of the Electoral Act as also applying to the way in which parties engage each other in political debates and public discourse generally around election times.
This is where, in part, Justice Raymond Zondo was more compelling than Justice Cameron.
Justice Zondo thought that the DA’s appeal should not be upheld, and that the earlier decision of the Electoral Court, effectively, was correct when it found that the SMS violated the Electoral Act.
But I don’t wish to explore Justice Zondo’s dissent’s in detail here.
All that matters is that he, unlike Justice Cameron, wasn’t anxious about seeing the provisions of the Electoral Act as also restricting the freedom of speech of political parties. He connected such an interpretation of the statute to the legitimate aim of ensuring elections are free and fair in order for them to be lawful.
Whereas Justice Cameron rehearsed general arguments about free speech rights, Justice Zondo pointed out that the right to vote is only meaningful if it is intrinsically linked to the right to free and fair elections.
But, he then says, free and fair elections could not have taken place if false information is disseminated among voters ahead of the elections.
This is a reasonable restriction on parties, because it does not apply for most of their political careers, but only for a few months every five years. And there’s an acceptable purpose here, that of giving substantive meaning to the right to vote, and it’s cousin, the right to free and fair elections.
I can’t see what is wayward here, and Justice Cameron never showed serious appreciation for this part of Justice Zondo’s dissent.
Justice Cameron’s lyrical summary of the general value of free speech, even in political debate, is a red herring.
No one disputes the general beauty of free speech rights, including Justice Zondo.
What Justice Cameron missed, is that unfettered free speech during the election cycle can harm the right to free and fair elections as much as speech that is unduly restrictive.
But Justice Zondo considered this balance, while Justice Cameron simply showed fear of even going there, erring on the political side of simply falling back on case law about free speech in general, rather than anchoring his analysis more carefully in relation to the right to not just vote, but also the right to free and fair elections.
Justice Cameron basically assumes that as much information as possible during elections is helpful to voters, and courts shouldn’t take a view on the veracity of these statements in political debate during campaigning.
This a brute refusal to even see the connection between falsehoods and unfair election outcomes.
Justice Zondo, on this particular point, is unanswerable.
At any rate, Justice Cameron is mainly talking about ideas being freely exchanged, which is not the same as not imparting false information, and this ideas/information distinction was not even acknowledged.
The finale: Is the SMS fact or opinion? And does it all matter?
Despite the fact that I am not convinced that section 89 of the Electoral Act doesn’t apply to the content of political communication and debate during election campaigns; and, also, despite not being convinced that a restriction on free speech in the name of securing free and fair elections isn’t justified, I still agree with the main order handed down by Justice Cameron.
But here there is a beautiful twist.
Justice Johann van der Westhuizen, out of nowhere, saves the day for the majority judgment.
His analysis is too nuanced to butcher by giving you a reductionist summary. But, by way of hinting at it, let me say this: Justice van der Westhuizen was not convinced that if the DA’s SMS is opinion, that the Electoral Act doesn’t really apply to it.
He thought that it is still crucial for an SMS that is opinion to not contain false information, which is barred in terms of s89(1) of the Electoral Act.
Here, Justice van der Westhuizen is on the same page, for the moment, as Justice Zondo, before going on to say why he still agrees with the order of the majority. He was happy to engage Justice Zondo’s dissent more head on than Justice Cameron had.
Justice Zondo said that an ordinary reasonable reader would take the SMS to be making a factual claim, but nothing in the report of the Public Protector stated that “President Zuma is a thief”.
Justice Zondo dismissed the possibility that the SMS could be comment, because there was no context given to the recipients of the SMS about the meaning of the SMS. And recipients of the SMS could not have known what the Nkandla Report contained, since the SMS was sent the day after the report’s release. So there was no basis to know that the SMS was just opinion.
I initially found that convincing. But Justice van der Westhuizen’s argument persuaded me to revise my agreement with Justice Zondo.
The reason? One does not have to be a convicted criminal in order for others to be allowed to think of one as a thief, and to say so, even during election cycles. It would be unfair of the court to say that only the legal meaning of words should be used in public debate. Colloquial uses are acceptable, and they include non-legal usage.
Given that the Public Protector did find that President Zuma neglected his duty to ask pertinent questions about escalating costs and a duty to provide the necessary oversight over escalating costs, Justice van der Westhuzen, unlike Justice Cameron, was prepared to conclude that the DA’s SMS therefore doesn’t contain false information.
It is opinion, sure, but opinion that is anchored in the substantive findings in the Nkandla report, and so not false.
And if it is devoid of falsehood, then the demand for further contextual detail that Justice Zondo wanted before he was prepared to classify the SMS as opinion, is not necessary.
Only an SMS with falsehoods needs further setting up to meet the fair comment burden of Justice Zondo.
I think Justice Cameron, and the justices who agreed with him, played politics. They didn’t want the outcome of the case to reduce acceptable political speech content during elections. But they were too cowardly to take a firm view on the veracity of the SMS.
Justice van der Merwe put politics aside, didn’t worry about the consequences of getting the law right, and convincingly showed that the court cannot be disinterested in the truth status of opinion if it wanted to apply the Electoral Act to the facts.
That must be right, and it undercuts Justice Zondo’s claim that the SMS isn’t fact.
Ultimately, Justice Zondo was too hasty in thinking the only kind of fact that is legally allowed is legal fact. Not so. There are acceptable usages of the word “thief” in everyday debate that doesn’t mean convicted criminal. And that’s why Justice van der Merwe was the most persuasive, on balance.
In the end, the DA is right to celebrate since it is a political victory for the party. But students of law examining the reasoning of Justice Cameron closely should be disappointed in many hasty moves he made in the details of the case.
The stunning separate judgment of Justice van der Westhuizen is where the real gold is buried.
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. He is currently working on his third book, Searching For Sello Duiker.
** The views expressed here are not necessarily those of Independent Media.