547 02.04.2014 DA supporters sings and chant slogans outside the South Gauteng high court after their representatives went inside the court. ANC laid chargers against DA after they send sms’es about Zuma eating the public money. Picture: Motshwari Mofokeng

The danger of courts policing criticism and dialogue outweighs the desire of individuals not to be offended, says Eusebius McKaiser.

Johannesburg - I don’t think it’s reasonable to interpret the public protector’s report on Nkandla as implying “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 DA’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 Zuma stole from us.

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, where a newspaper’s right to describe McBride as a murderer was at issue. The court rejected the idea that the word “murderer” must have only 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 merely means the opinion must be one which 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 didn’t make an obvious legal mistake. If there’s a problem here, it must be in the case law, which has to be followed as a matter of good judicial practice. So blame Justice Edwin Cameron if you don’t like the scope of what counts as fair comment, as he penned that judgment. Don’t blame Acting Judge Mike Hellens!

Except you might 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. The danger of courts keenly policing robust criticism and dialogue outweighs the desire of individuals not to be offended or hurt, in general.

But the law isn’t unfair. Hate speech and speech that defames are illegal. But in the application of these general restrictions on free speech, I think it is healthy for courts to be cautious about limiting speech. We fought hard for a public arena where we don’t have to self-censor or be censored willy-nilly by judicial or quasi-judicial bodies.

And, as the free speech argument goes, there is value not just in the dissemination of truths, but frankly also in allowing the airing of falsehoods.

Truths about the world are good if they are placed in the public space because they help citizens to 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, around the braai, or in a stadium where you hold a political rally and make fun of political opponents. It’s 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 President 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, and that at times he was informed of some of the goings-on. That reinforces the ethical failure of his not having asked further questions.

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’s 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 the right to free speech, 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.

* Eusebius McKaiser is the author of Could I Vote DA? A Voter’s Dilemma, available at bookstores nationwide.

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

The Star