Nkandla SMS judgment a victory for freedom of speech

19 January 2015

The Democratic Alliance welcomes the decision of the Constitutional Court to dismiss the ANC's appeal to the Electoral Court against a DA election campaign SMS stating "the Nkandla report shows how Zuma stole your money for his R246 million home."

This is a major victory for freedom of speech, proving again that South Africans have the right to form robust opinions about the issues affecting our nation.

While the ANC may not like the DA exposing their record in government, the Constitutional Court has today affirmed that robust political debate must prevail in South African elections.

The Court found that the DA's SMS fell outside the ambit of the Electoral Act and the Code. Specifically, section 89(2) of the Act cannot be used to limit the free expression of comment and opinion during an election campaign.

The DA's SMS can therefore be freely expressed as a comment or opinion based on an interpretation of the Public Protector's report. 

The joint judgment reads: "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."

It further states: "Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible."

This judgment also has profound implications for the Constitutional Court's impending review of ICASA's decision to ban the DA's Ayisafani television commercial. 

We will be making substantially the same arguments in defence of freedom of speech that we put before the court in the SMS case, when the ICASA matter is heard.

Democracy has indeed prevailed today, because without freedom of speech what kind of democracy have we got?

Through this judgment, the ANC must accept that no matter how much they try and frustrate the process of justice around Nkandla, South Africans have the right to robust opinions about the President's conduct in this matter.

The judgment reaffirms that robust debate lies at the heart of freedom of speech in South Africa, and is of great importance to our constitutional democracy especially in the context of election campaigns. 

Today is indeed a victory for freedom of speech and the Constitutional rights afforded to all South Africans.

Statement issued by Mmusi Maimane MP, DA Parliamentary Leader, January 19 2015

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