Electoral Court sets aside IEC decisions in the DA-De Lille telemarketing spat
20 June 2019
The Electoral Court has set aside the Electoral Commission of SA's decisions in the telemarketing spat between the DA and Good leader Patricia de Lille.
Its ruling on Wednesday clarified the powers of the commission and interpreted what type of information could not be falsely disseminated during an election.
Electoral Court Judge Willem Wepener found that the commission did not have the power or authority to make the findings it did.
He also found that the DA's statement about De Lille was free speech and did not impact on the mechanics or conduct of the election.
"The decision of the commission that the statement made by the DA that Ms De Lille was 'fired' was false, is reviewed and set aside," Wepener ruled.
He also set aside the decision that the DA violated the electoral code of conduct, as well as the remedies imposed by the commission.
Three judges concurred.
Good spokesperson Brett Herron said the party had agreed to abide by the court's decision and was not a party in the dispute.
"The court recognised that Ms De Lille has the right to pursue the DA in other courts and did not decide on the merits of the complaint lodged by Good," he added. "The fact remains that the DA's statement was and is false."
De Lille had complained to the commission about the DA's telemarketing, alleging the script that call-centre personnel used stated that she had been fired and was guilty of wrongdoing.
When canvassers were asked about infighting and De Lille, they were allegedly told to respond: "We fired Patricia de Lille because she was involved in all sorts of wrongdoing in the City of Cape Town. The DA doesn't allow corruption and will take action against anyone, even our own members."
De Lille announced that she was leaving the DA on October 31 last year - the same day she resigned as mayor of Cape Town as per agreement with the party after months of acrimony. She later founded the Good party.
She was recently appointed as minister of public works and infrastructure.
In April, the commission found the DA made a "manifestly false statement" and was therefore in contravention of the electoral code.
It ordered the DA to "cease and desist" from saying that De Lille had been fired as mayor of Cape Town and ordered it to apologise. The DA then appealed the commission's findings.
Wepener found that it did not have the power or authority to adjudicate an issue that was not administrative in nature, nor did it have the power or authority to issue or prescribe a remedy.
"It follows that the commission can only adjudicate a matter and issue a sanction if the power is specifically conferred upon it."
Wepener said the statement about De Lille fell within the realm of free speech.
"It was not the kind of statement that could produce effects such as disrupting or preventing an election; creating hostility or fear to influence the conduct or outcome of an election; or influencing the conduct or outcome of an election.
"In other words, a contextual reading of the provision suggests that the kind of false statements prohibited are those that could intrude directly against the practical arrangements and successful operation of an election."
Herron pointed out that Good secured two seats in the National Assembly and one in the Western Cape provincial legislature.
"This electoral success was achieved against all odds, with only four months to campaign, and despite the DA's best efforts to spread false information about Ms De Lille and Good."
The DA had also sought to review and set aside the commission's decision on April 4 not to investigate its complaint about the ANC's statement that the DA had made a profit of R1bn from water tariffs in the City of Cape Town.
The commission said in its answering affidavit that it would re-open the matter to allow for an external investigation to take place.
