Autonomy, Fairness, Pragmatism, and False Electoral Speech: A Case Comment on Democratic Alliance vs African National Congress, [2015] ZACC 1

29 Pages Posted: 19 Sep 2016

Date Written: September 18, 2016

Abstract

Democratic Alliance vs African National Congress was a landmark 2015 judgment of the South African Constitutional Court, which raised a host of novel and interesting issues. In particular, the Court had to address the scope and limits of electioneering speech (by interpreting the prohibition on “false information” contained in Section 89(2)(c) of the South African Electoral Act), the extent and manner in which principles from one area of free speech jurisprudence (defamation) could be imported into another, and how to interpret words and phrases that were (perhaps deliberately) left ambiguous – all in the backdrop of the constitutional principles of freedom of expression and fair elections.

In my essay, I will make two broad arguments. I will support the Majority Opinion’s finding that in order to qualify as a “comment” for the purposes of election speech, a statement need only reference facts that are in the public domain, so that the audience can make up their own minds about the validity of the statement (if they so desire). This, I will argue, is a plausible reading of the fact/comment distinction in defamation law, and is even more strongly applicable in the context of elections, because of the heightened importance of “listener autonomy”, a concept well-known to South African free speech jurisprudence.

Moving to the construction of the Democratic Alliance’s “SMS”, which was at the heart of this case, I will argue that the Dissenting Opinion’s interpretation of the SMS from the point of view of the “ordinary, reasonable reader”, and the precedent that it relied upon, incorrectly privileged a semantic reading over a pragmatic one. By contrast, Van der Westhuizen J.’s concurring opinion, which acknowledged that the word “stole” could carry multiple meanings, and his argument that the choice of meaning should depend upon the complete context in which the statement was made, was the correct approach to take, an approach that could have been further strengthened by a fuller exposition of the distinction between semantic and pragmatic meanings. I will conclude by highlighting the consequences that this approach might have for South African free speech jurisprudence, going forward.

Keywords: south african constitutional court, defamation, fair comment, elections, electoral speech

Suggested Citation

Bhatia, Gautam, Autonomy, Fairness, Pragmatism, and False Electoral Speech: A Case Comment on Democratic Alliance vs African National Congress, [2015] ZACC 1 (September 18, 2016). Available at SSRN: https://ssrn.com/abstract=2840333 or http://dx.doi.org/10.2139/ssrn.2840333

Gautam Bhatia (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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