Democratic Alliance v African National Congress (CCT 76/14) [2015] ZACC 1 (19 January 2015)

CC SummaryAlleged breach of section 89(2)(c) of the Electoral Act —publication of false information to influence outcome of election — alleged breach of Electoral Code of Conduct — defence of fair comment — opinion — sections 16 and 19 of the Constitution —freedom of expression — right to vote —  right to free and fair elections — does section 89(2)(c) of Electoral Act apply to a statement of opinion or does it apply only to statements of fact? — analysis of case law on fair comment —  penal provisions to be interpreted restrictively — was published statement false? — statement that “the Nkandla report shows how Zuma stole your money to build his R246m home” held to be opinion and not statement of fact and not to breach section 89(2)(c) of Electoral Act — appeal from Electoral Court to Supreme Court of Appeal competent — leave to appeal granted — appeal upheld — decision of Electoral Court set aside.

Coram: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J and Zondo J

Judgments: Zondo J with Jafta J and Leeuw AJ concurring (main judgment): [1] to [115]

Cameron J, Froneman J and Khampepe J with Moseneke DCJ and Nkabinde J concurring (joint judgment): [116] to [169]

Van der Westhuizen J with Madlanga J concurring (separate judgment): [170] to [208]

Order: [169]

Heard on: 11 September 2014     Decided on: 19 January 2015


On appeal from the Electoral Court (hearing an appeal from the South Gauteng High Court, Johannesburg):

1. Leave to appeal is granted.

2. There is no order as to costs.

3. The order of the Electoral Court is set aside and replaced with the following:

“The appeal is dismissed.”

. . . .