'Nkandla SMS ruling a test for freedom of speech'

The court has sided with the DA in a legal battle over an SMS it sent during last year’s elections.

FILE: DA demonstrators gather outside the High Court in Johannesburg during court proceedings over an Nkandla SMS sent out by the opposition DA. Picture: Reinart Toerien/EWN.

JOHANNESBURG - The Democratic Alliance (DA) has described today's Constitutional Court ruling as an important test for freedom of speech and free political activity.

The court has sided with the opposition party in a legal battle over a controversial SMS sent during last year's elections, finding that it constituted 'fair comment'.

During last year's elections, the DA sent out a bulk SMS about the multimillion rand security upgrades at the president's private Nkandla homestead in KwaZulu-Natal.

The Constitutional Court was asked to review a decision by the Electoral Court which agreed with the African National Congress (ANC)'s challenge against the text message.

In the SMS, the DA accused Zuma of stealing taxpayers' money, which the ANC disputed and decided to fight in the Electoral Court.

The SMS followed findings by Public Protector Thuli Madonsela that President Jacob Zuma and his family unduly benefitted from some of the money spent on his Nkandla home.

The Constitutional Court found the SMS did not violate the electoral code and act.

The court said that the SMS was the opposition party's opinion and not fact and therefore the DA did not break the law by sending the SMS.

The court also found that it was unnecessary to rule on whether the SMS was false and ordered the judgement of the Electoral Court to be set aside with costs.

The DA has welcomed today's ruling and has reiterated that the president must account for the upgrades at his home.

The party's Mmusi Maimane says, "I think the money of the people of South Africa was wasted in Nkandla building a house for one man."

But the ANC's Zizi Kodwa maintains the SMS was a false statement.

The ruling party says although it accepts today's outcome, it will still study the verdict.

The SMS debacle comes as Zuma faces a threat to his State of the Nation Address ( Sona) being disrupted over the same issue.


In the majority ruling, five judges said they believe that to label the DA's SMS as fact and then declare it unlawful would inhibit valuable speech that contributes to public debate.

They said it could even lead to candidates choosing not to speak at all because they wouldn't know in advance whether that speech would be prohibited.

In a concurring ruling, two other judges said Madonsela's Nkandla report appears to show there was misappropriation of public money and that the president benefitted from that.

They say the SMS is thus protected within the context of an election campaign.

The three other judges based their findings that the SMS should be illegal on defamation law and say that it should not be allowed.