South Africa's opposition party Democratic Alliance (DA) leader Helen Zille, center, with her parliamentary leader Lindiwe Mazibuko, left, and national spokesperson Mmusi Maimane, right, lead their supporters during their protest march against the Congress of South African Trade Unions (Cosatu) for opposing the youth wage subsidy in Johannesburg, South Africa on Tuesday May 15, 2012. An opposition party march in Johannesburg turned violent Tuesday after union supporters hurled rocks at the leader of South Africa's main opposition party. (AP Photo/Themba Hadebe)

The African National Congress received an unexpected boost when it won an appeal in the Electoral Court, writes Eusebius McKaiser.

Cape Town - With campaigning not allowed on the eve of the elections, the ruling ANC got an unexpected boost when it won an appeal on Tuesday night in the Electoral Court.

The court found against the DA in the SMS case in which the DA had sent a bulk SMS message to over 1.5 million voters stating that the public protector's report had shown that Zuma had stolen over R200-million from taxpayers.

The high court had found in the DA's favour on the basis that the SMS can be regarded as fair comment when one has regard for the public protector's report which explains how the president benefited unduly.

The court relied on the McBride judgement, penned by Justice Cameron, which is a seminal and very liberal case that defines “fair comment” very widely.

In that case, it upheld a newspaper's right to comment on someone's character as that of “murderer” even though in law they were no longer a murderer.

I don't think and never did think that the public protector had said that President Zuma stole money from us. Benefiting unduly - like whites who benefited from apartheid - and stealing - like someone who enters your house and actually takes your television set illegally - are not morally or legally the same.

Both scenarios may give rise to duties. But they are not identical. Still, I supported the DA's win in the high court. (On that point: Eusebius Mckaiser)

But I was wrong. And on Tuesday night in a brilliant judgment - short, pithy and authoritative - the appeal judge explained why.

I supported the DA win in the lower court because I thought the SMS was fair comment in the wide liberal sense of fair comment from the McBride case.

But the SMS is not fair comment because it is not comment at all. It is a factual assertion. With no accompanying report.

And the public protector's report is not familiar to the 1.5 million SMS receivers so they could not reasonably have read the SMS in conjunction with the report. That's an absurd possibility to take seriously.

The SMS is simply and unambiguously crafted as an assertive sentence in the English language: in other words as a factual claim. And so we need not even ask whether the fair comment criteria from the McBride case apply.

Instead, the actual, literal truth of the matter becomes the nexus issue and here the gap between “unduly benefiting” and “shown to have stolen” becomes unsustainable.

The DA is therefore forced to retract a false statement. I cannot for the life of me see why the DA's James Selfe says the court is being “bizarre”, restricting freedom of speech “especially during elections” and messing with “fair comment”.

Did he read the reasons provided? Or is he upset with the outcome? I assume the latter. Otherwise he'd know the heart of the rationale is that fair comment is not at issue nor the limitation of free speech. That's what the lower court got wrong.

The crux of the issue is that the sms comes across to a reasonable recipient as a factual claim. And a factual claim must be true.

The fair comment defence isn't available to the DA. And so running to the constitutional court will not help.


* Eusebius McKaiser is the author of Could I Vote DA? He also hosts Power Talk With Eusebius Mckaiser on Power 98.7.

* The views expressed here are not necessarily those of Independent Newspapers.