FF Plus brings charges against DA with the IEC over various contraventions of the Electoral Act

2014-05-02
Dr Pieter Groenewald

The FF Plus today laid a charge with the Independent Electoral Commission (IEC) against the DA pertaining to various contraventions of the Electoral Act and the distribution of false information, Dr. Pieter Groenewald, the parliamentary leader of the FF Plus, says.

The complaints deal with a text-message campaign, a radio advertisement campaign, the distribution of pamphlets and a history of the inobservance of the Electoral Act’s deadline for marketing before an election.

Dr. Groenewald says it is the opinion of the FF Plus that the DA is distributing false information in a comprehensive campaign against the FF Plus and the IEC has been requested to put an immediate stop to it and institute legal proceedings as a result of a breach of the Electoral Act.

With regards to the text message, the message reads amongst others: ‘The FF+ is too small to make a difference and in addition their leader sits in Zuma’s cabinet. Don’t waste your vote on the FF +. Vote DA’.

“It is a fact that the FF Plus’ leader in his capacity as deputy minister does not serve in cabinet. The Constitution clearly states that a deputy minister is not a cabinet member, but offers support to a minister. The allegation is therefore materially false.

“The statement that the FF Plus is ‘too small to make a difference’, is also essentially false. With 16% support, the DA in comparison to the ANC’s support is not ‘a large party’ at all or a threat to the ANC’s 66% and is therefore merely one of the larger small parties,” Dr. Groenewald says.

Regarding the other complaints, Dr. Groenewald says, amongst others: The mass text message campaign boils down to a contravention of the Electronic Communication and Transactions Act by illegally obtaining information containing personal information from data bases. This is according to the FF Plus a contravention of the Protection of Personal Information Act.

The second complaint pertains to the advertisement campaign on Radio Sonder Grense (RSG) and Jacaranda FM and the third pertains to pamphlets with factually incorrect information.

The last complaint is that the DA in the 2009 and 2011 elections did not keep to the IEC’s deadlines for marketing and the FF Plus is therefore requesting the IEC to strictly enforce this Act as it had advantaged the DA considerably in the past.

 


Contact no.: 083 627 4397 / 083 419 5403

 

02 May 2014

The Chief Electoral Officer

Electoral Commission of South Africa

Election House
Riverside Office Park
1303 Heuwel Avenue
Centurion
0157

 

Delivered by HAND and by:

Fax:

E-Mail:

 

Dear Commissioner,

 

Re: Complaints against DA electoral marketing and messaging contravening the Electoral Act (73 of 1998)

 

The above matter refers.

 

We hereby submit for your urgent attention the following 4 (four) complaints:

 

Complaint 1:

During the week of 14 April 2014 the Democratic Alliance (“DA”) sent an ‘sms’ text message to more than a million voters with the following Afrikaans content:

Die VF+ is te klein om ‘n verskil te maak, en hul leier sit boonop in Zuma se kabinet. Moenie jou stem op die VF+ mors nie. Stem DA

Translated into English, it reads as follows:

The FF+ is too small to make a difference and in addition their leader is sitting in Zuma’s cabinet. Do not waste your vote on the FF+. Vote DA

We are willing to forward this ‘sms’ to the cell phone of an IEC officer as proof.

We are of the view that this message constitutes a breach of Section 89(2)(c), of the Electoral Act 73 of 1998 and Sections 3(b)(i) and 3 (c)(i) as well as 9(1)(b) of the Electoral Code read with Section 94 of the Act as it is a false statement made by the DA that is intentionally designed to influence the outcome of the election..

It is trite knowledge that the DA competes with the FF+ for votes in the election and as such this was intentionally designed to adversely influence voters to vote DA based on unfounded and false claims.

The content is false on the following basis:

The FF Plus’ leader does not sit in the President’s Cabinet. The FF Plus leader, dr. Pieter Mulder, is currently the Deputy-Minister of Agriculture, Fisheries and Forestry. The Constitution clearly sets out the status of a Deputy-Minister in Sections 91-93. The Sections provide that a Deputy-Minister is not a member of the Cabinet, but assists the Minister who actually serves in the Cabinet.

It is thus clear that the DA’s statement is false in this respect.

Furthermore, this false statement made by the DA is disrespectful to the Constitution that allows for such appointments.

The FF+ is not too small to make a difference. The term “small” is relative, as the DA itself is small (16% against 66%) in relationto the governing party. While the FF+ is a smaller party than the DA it is constitutionally entitled to seats in parliament in terms of the Constitution’s principle of multiparty democracy (as opposed to a two-party system contemplated by the DA), and the FF+ has indeed played a significant role in the political sphere since 1994. One good example to substantiate this fact was the successful court case to ensure that SA citizens abroad have the right to vote in South African elections.

It is thus clear that the DA’s statement that a small party cannot make a difference is patently false in this respect.

In any event, the DA was once also smaller and there is no reason that the FF+ will not also grow into a larger party with significantly more influence. Therefore, besides for the breach of the above section, the DA’s message is also constitutionally unsound and disrespectful.

Accordingly, we ask for a finding that the DA is in breach of the above stated sections.

Furthermore, we also wish to bring to your attention that the mass ‘sms’ has been sent out to a database of voters that did not opt in or consent to be messaged by the DA. Many of FF+ members also received the mass ‘sms’ and never subscribed or consented to receive such messages from the DA. These sms’ are unsolicited and thus in breach of the following laws:

Electronic Communication and Transactions Act 25 of 2002: Section 51(1)(4) that requires any data collected not be used other than for the purpose so collected. It is quite clear that the DA somehow received and used a database from a source that was not allowed to disseminate it for political purposes.

Protection of Personal Information Act 4 of 2013: The DA has breached Section 69 of this Act that prohibits unsolicited direct marketing.

Accordingly, we request further action in this regard against the DA as well as prohibition of the further use of the database in question.

 

Complaint 2:

The DA is running a radio advertisement on Radio Sonder Grense (“RSG”) and JacarandaFM and possibly other radio stations that we are not aware of with more or less the following content:

Moenie jou stem op ‘n klein party mors nie. Aan die einde gaan die stem vermors word en die ANC help.

Translated into English, it reads as follows:

Do not waste your vote on a small party. In the end the vote will be wasted and will only help the ANC.

We are again of the view that this message constitutes a breach of Section 89(2)(c) of the Electoral Act 73 of 1998 and Sections 3 and 9(1)(b) of the Electoral Code read with Section 94 of the Act as it is a false statement made by the DA that is intentionally designed to influence the outcome of the election.

The advertisement is designed to intentionally move voters not to vote for smaller parties like the FF+, but instead to cast a vote for the DA which considers itself a large party and thus influence the outcome of the election.

The contents of the message is false on the following basis:

Small parties will always be part of the multi-party democracy as contemplated by the Constitution. Small parties carry ideas that can grow with a concomitant growth of the party itself.

Furthermore, the DA avers untruthfully that a vote for a smaller party is a wasted vote and strengthens the ANC. This is patently not true. The electoral system of proportional representation allows for smaller and larger parties to have a voice in legislatures and occupy democratic space on behalf of their constituencies. In addition, even if one argues that a proportional vote can be lost on the fractions, it is a trite fact that this holds true for all parties, whether big or small. This is merely how the system is designed and is legitimately accepted by those parties participating in the elections by signing the Code. For the DA to use this systemic phenomenon of electoral fractions as an argument against other parties is tantamount to disrespecting the Constitution and the IEC.

There is also no proof that voting for a small party is tantamount to an implied vote for the ANC or somehow strengthens the ANC in any manner. If a larger party is concerned about the fragmentation of votes, then that party has access to the systemic remedy of coalitions to form a government where possible. For the DA to imply that this is not preferable is again false as they have made ample use of this method, even with the FF+ in Cape Town (2006).

Accordingly, we ask for a finding that the DA is in breach of the above stated sections.

 

Complaint 3:

The DA has distributed and is of the intention to further distribute the information (in Afrikaans) contained in Annexure “A” hereto as a pamphlet and/or printed advertisement (the “Pamphlet”) or otherwise.

We are again of the view that this message constitutes a breach of Sections 89(2)(c) of the Electoral Act 73 of 1998 and Sections 3 and 9(1)(b) of the Electoral Code read with Section 94 of the Act as it is a false statement made by the DA that is intentionally designed to influence the outcome of the election.

The content is false on the following basis:

The Pamphlet states as a heading: “’n Stem vir die VF+ is ‘n stem vir Zuma”. Translated it means: “A vote for the FF+ is a vote for Zuma”.

This is simply not true as the FF Plus and the ANC, headed by Zuma, are two distinct political parties with two vastly different policies and principles.

The heading must also be considered together with the immediate text following it that reads when translated in English: “The leader of the FF Plus is sitting in Zuma’s Cabinet since 2009. Mulder takes FF+ votes and then sits in the Cabinet and does nothing for his voters”.

This is simply not true, as explained above, dr. Mulder does not serve in the Cabinet. A Deputy-Minister is not part of the Cabinet. The further contention that dr. Mulder has done nothing for his voters, is devoid of any truth based on the following:

Since Dr Mulder’s presence as Deputy-Minister in the Department there has been a re-alignment of government policyto a position where commercial farmers, who produce 95% of our food, are acknowledged as important role-players. Dr Pieter Mulder played a major role in making food security a priority in government.

Dr. Mulder plays a significant role with regard to social harmony by creating understanding and awareness about minority rights to ensure the protection of minorities in our country. In that respect he regularly liaises with the Khoisan people and Coloured community.

Dr. Mulder’s influence regarding the Languages Act resulted in a balanced approach that recognised Afrikaans as an indigenous language as well.

Dr. Mulder clashed in parliament with the President in February 2012 on the issue of land ownership and reform at a great risk of being removed as Deputy-Minister. He ventilated the views of his voters without fear and reservation.

Dr. Mulder and the FF+ consistently voted against ANC laws in parliament, in some cases the lone vote against race-based laws. This is on record.

The further text states as translated in English: “And if the ANC – as rumours has it – after the election enters into a coalition with the EFF, then your vote for the FF+ is as good as a vote for Malema!”

This conclusion is not logical given the facts stated above that dr. Mulder is actually not part of the Cabinet, has certainly worked hard for his voters and consistently opposed the ANC on their policies. Therefore, there follows no logical conclusion that being a Deputy-Minister will result in a vote for the EFF. In fact, the Sunday Afrikaans newspaper, Rapport, reported on Sunday 20 April 2014 that the DA is seriously contemplating a coalition with the ANC and EFF in Gauteng. Therefore, the DA has expressly stated a desire themselves that they are accusing the FF+ off. Therefore, this argument is patently false.

The same goes for the further contention at the bottom of the Pamphlet.

On the reverse of the Pamphlet the headline when translated in English reads: “Don’t waste your vote”.

This is followed by a comparative analysis of election results between the DA and FF+ since 1994. The argument then follows that the FF+ is too small to make a difference. It is also averred that the FF+ MP’s cannot possibly attend all 35 parliamentary committees. This is also patently untrue:

We have shown above that the FF+ has played an important role on the South African political scene and has achieved successes not only on behalf of its electorate, but also the broader South African population.

Further, according to the rules of parliament a Member of Parliament (MP) may attend any portfolio committee and participate in the discussion. The FF+ has devised a system to analyse the agendas of all parliamentary committees and then deciding to attend the most relevant ones that deals with matters that would have an effect on its constituency. In this way the FF+ was for example able to influence the laws relating to the e-tolls in the Parliamentary Portfolio Committee on Transport in which the FF+ has no official membership. The DA had no success while they have two members on this committee.

While the DA makes these allegations, it has occurred that even the DA does not attend all of their committee meetings despite having at least two members per committee. A large party can thus very easily be in dereliction of their own duties.

Accordingly, we ask for a finding that the DA is in breach of the above stated sections.

 

Complaint 4:

This complaint is preventative in nature. During the 2009 and 2011 elections the DA sent out mass messages via flyers, sms’ and e-mail to voters on election day and by which time any canvassing was prohibited in terms of section 108(a) of the Electoral Act. We are of the view that the DA will in all probability once again during this election act in breach of this rule en masse. We view this in a serious light as this provides the DA with a huge unfair advantage against the FF+ that complies with the IEC’s rules. The FF+ cannot by law respond to any such messages and is of the view that the damage inflicted on us is so severe that we have in the past actually lost a seat or more due to the inability tolegally respond thereto due to thesaid prohibition and particularly in the heat of that particular election.

In this respect we submit that Section 93 of the Electoral Act is being infringed.

Accordingly, we view this matter in a very serious light and humbly request preventative action from the IEC in this regard.

 

Relief:

The FF Plus urgently seeks the following relief:

Immediate withdrawal of the stated advertisements (sms, radio and pamphlets) by the DA and prohibition of any future use;

Prohibition of unsolicited direct marketing in any form and the further prohibition of the use of the database utilised to illegally spam by way of mass ‘sms’;

Prohibition of any future advertisements with a similar bearing or which would be in breach of the Electoral Act and Code; and

Prohibition of any marketing of any nature during the IEC’s prohibited times.

An apology from the DA towards the the FF Plus.

Due to the severity of the transgressions we urge the Chief Electoral Officer, if necessary, to use its powers in terms of Section 95(1) of the Electoral Act to institute civil proceedings in the Electoral Court to enforce by way of an interdict the provisions of the Electoral Act and the Code.

We thank you in advance for your urgent consideration hereof. Yours sincerely,

 

Dr. P Groenewald

FF Plus Federal Chairman