Democratic Alliance v African National Congress (CCT 76/14) [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR 298 (CC) (19 January 2015) per Cameron J, Froneman J and Khampepe J with Moseneke DCJ and Nkabinde J concurring (joint judgment): [116] to [169]

The majority of the judges in the Constitutional Court allowed the appeal.  It was held that the case was about the boundaries of free speech affecting elections and did not involve defamation but statutory interpretation.  An SMS was sent in bulk to nearly 1.6 million voters on 20 March 2014, the day after the Public Protector released a report on construction work at President Zuma’s home at Nkandla (Report).  That was some seven weeks before the 2014 general elections.  The DA admitted that the SMS was intended to influence the outcome of the elections.

Excerpts without footnotes

[116]  This dispute is about the boundaries of free speech affecting elections.  The Electoral Act (Act) provides that no person may publish “any false information” with the intention of influencing the conduct or outcome of an election.  Similarly, the Electoral Code (Code), which parties undertake to comply with during elections, prohibits false allegations about a party and its members.  The applicant, the Democratic Alliance (DA), accepts these provisions are constitutionally valid but denies they apply to an SMS it sent out.  The SMS was sent in bulk to nearly 1.6 million voters on 20 March 2014, the day after the Public Protector released a report on construction work at President Zuma’s home at Nkandla (Report).  That was some seven weeks before the 2014 general elections.  The DA admits that the SMS was intended to influence the outcome of the elections.  It 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.”

. . . . .

[119]  What is at stake here is an issue of statutory interpretation.  It is not a defamation case.  The law of defamation must be invoked with caution.  The rights and interests weighed against each other in a defamation case are not those at issue here.  The reputation and dignity of a particular person are not at the forefront of the statutory interpretation enquiry before us.  The requirements to sustain a defamation claim, as well as those that underlie defences to the claim, are grounded in the competing rights to and interests of freedom of expression as against those of dignity and reputation.  To import the latter considerations here would unnecessarily distort a fairly straightforward enquiry into the meaning and purpose of statutory provisions.

[120] The primary task is to ascertain what kinds of “information” and “allegations” are hit by the prohibition in section 89(2) of the Act and item 9(1)(b) of the Code.  Are they only factual statements, or do they include expressions of opinion?  To get to the answer we must start with the Constitution.

Constitutional setting

[121] We start with three obvious propositions: the cherished value of being able to speak freely and uninhibitedly; the importance of this value to our country’s elections; and the need to interpret penal provisions restrictively.

[122] First, freedom of expression.  This Court has already spoken lavishly about this right.  The Constitution recognises that people in our society must be able to hear, form and express opinions freely.  For freedom of expression is the cornerstone of democracy.  It is valuable both for its intrinsic importance and because it is instrumentally useful.  It is useful in protecting democracy, by informing citizens, encouraging debate and enabling folly and misgovernance to be exposed.  It also helps the search for truth by both individuals and society generally.  If society represses views it considers unacceptable, they may never be exposed as wrong.  Open debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values.

[123] What is more, being able to speak freely recognises and protects “the moral agency of individuals in our society”.  We are entitled to speak out not just to be good citizens, but to fulfil our capacity to be individually human.

[124] Second, and crucially for this case, being able to speak out freely is closely connected to the right to vote and to stand for public office.  That right lay at the core of the struggle for democracy in our country.  Shamefully, it was for centuries denied to the majority of our people.  In celebrating the democracy we have created, we rejoice as much in the right to vote as in the freedom to speak that makes that right meaningful.  An election without as much freedom to speak as is constitutionally permissible would be stunted and inefficient.  For the right to freedom of expression is one of a “web of mutually supporting rights” the Constitution affords.  Apart from its intense connection to the right to vote, it is closely related to freedom of religion, belief and opinion,[119] the right to dignity, as well as the right to freedom of association and the right to assembly.

[125] As this Court has noted, these rights, operating together, protect the rights of people not only individually to form and express opinions, but to establish associations and groups of like-minded people to foster and propagate their views.  They confirm the importance, both for a democracy and the individuals who comprise it, of being able to form and express opinions – particularly controversial or unpopular views, or those that inconvenience the powerful.

[126] The corollary is tolerance.  We have to put up with views we don’t like.  That does not require approval.  It means the public airing of disagreements.  And it means refusing to silence unpopular views.  As Mogoeng CJ has recently explained:

“Ours is a constitutional democracy that is designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen.”  (Footnote omitted.)

[127] Third, by prohibiting publication of false information during an election, section 89(2) and item 9(1)(b) place a limit on freedom of expression.  The parties accept that it does so for good and justifiable reason.  But what must we take it to mean?  Our interpretation must be guided by the fact that the provision imposes severe penalties on those who breach it.  Any person who contravenes section 89(2) or item 9(1)(b) is guilty of a criminal offence.  Anyone convicted is liable to a fine or to imprisonment for up to 10 years.

[128] Quite apart from liability to criminal prosecution and imprisonment, the Act gives the Electoral Court extensive additional powers to punish transgressors.  When that Court finds that a person or registered party has contravened section 89(2) or item 9(1)(b), it may impose “any appropriate penalty or sanction”.  The statute specifies a long list of what punishments may be appropriate.  They may include a formal warning, a fine of up to R200 000, the forfeiture of a deposit, prohibiting the person or party from using any public media or holding public events or canvassing or electoral advertising, reducing the number of votes obtained by the person or party, or disqualifying the person’s or party’s candidature entirely.  The statute provides expressly that these penalties or sanctions are “in addition to” the criminal penalties specified.

[129] These are tough provisions.  Very tough.  They show the statute’s proscriptions have meaning.  And they could operate with calamitous effect on a person or party who falls foul of them.  These considerations point to how we must approach the interpretation of section 89(2) and item 9(1)(b).  In case of doubt, we are obliged to interpret their prohibitions restrictively.  This means that we must resolve any ambivalence in them, or uncertainty about their meaning, against the risk of being penalised.

[130] The restrictive interpretation of penal provisions is a long-standing principle of our common law.  Beneath it lies considerations springing from the rule of law.  The subject must know clearly and certainly when he or she is subject to penalty by the state.  If there is any uncertainty about the ambit of a penalty provision, it must be resolved in favour of liberty.