The Constitutional Court upheld an appeal by the Democratic Alliance against an Electoral Court ruling that the opposition party could not publish the text message.
“The order of the Electoral Court is set aside,” read the Constitutional Court judgment handed down in Johannesburg.
The Constitutional Court judges wrote three different judgments, with seven judges agreeing that the Electoral Court order be set aside — but their reasons for the ruling differed.
Another three judges – Raymond Zondo, Chris Jafta and Monica Leeuw – said they would have dismissed the appeal.
In the SMS, sent to over 1.5 million voters in Gauteng, the DA said: “The Nkandla report shows how Zuma stole your money to build his R246m home.”
The SMS followed findings by Public Protector Thuli Madonsela that Zuma and his family unduly benefited from some of the money spent in security upgrades to his KwaZulu-Natal residence.
In the joint judgment, written by Judge Edwin Cameron, Coenraad Froneman and Sisi Khampepe (and concurred by Dikgang Moseneke and Jess Nkabinde), the judges said comments and opinions could rarely be “false”.
“Comments and opinions may be criticised for being unfair or unreasonable, but rarely for being ‘false’.”
Their judgment found that the SMS was an expression of a comment or opinion because it was an interpretation of the Nkandla report.
Two other judges, Johann van der Westhuizen with Mbuyiseli Madlanga concurring, agreed that the Electoral Court order must be set aside, but for different reasons. These judges felt that the SMS did not contain false information and therefore it could be published.
No finding was made as to costs in the matter.
In its application in September, the DA argued that, especially during election-time, the track record of those in power should be open to robust scrutiny and the views and policies of all parties must be subjected to interrogation.
The African National Congress had argued that the SMS was a false factual statement and that the DA had no right to publish falsehoods about its presidential candidate Jacob Zuma.
Democratic Alliance parliamentary leader Mmusi Maimane, who was in court on Monday, welcomed the ruling and reiterated the party’s call for Zuma to be held accountable for spending on upgrades to his Nkandla homestead.
“I think Zuma unduly benefited,” he said.
“One man has a multi-million rand house… To me, money was stolen from the people…”
He said the ANC showed little regard for the language it used to describe its adversaries, for example calling the DA “racists”, but when Zuma was criticised the “ANC wants to come to court”.
A representative of the ANC’s legal team, Mfana Gwala, who specified he was not speaking on behalf of the party, said he accepted the judgment and would study it further.
A few days after the SMS was initially sent, the ANC demanded its retraction and, when the DA did not comply, took the matter to the High Court in Johannesburg.
The High Court found the SMS amounted to “fair comment” and the ANC’s application was dismissed.
The ANC successfully appealed to the Electoral Court, which found the SMS did not satisfy the definitions of “fair comment” and presented itself as a statement of fact.
It was this ruling that the Constitutional Court has now set aside.