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Johannesburg - Judgment in the urgent application lodged by the ANC against the DA over a text message about President Jacob Zuma was reserved by the High Court in Johannesburg on Wednesday.
Acting Judge Mike Hellens asked counsel for both parties to submit heads of argument to him by 2pm on Thursday arguing whether he was sitting as an electoral court, the high court, or both.
This would determine what he could order. He indicated earlier that judgment would not be granted later than Friday.
Ismail Jamie SC, for the Democratic Alliance, argued that his client had not stated that the public protector's report had said Zuma had stolen taxpayers' money. He said it "showed" he had stolen public funds to build his Nkandla home.
"The DA genuinely believes... that what happened here amounted to criminal conduct. It laid charges," he said.
Jamie read out sections of Public Protector Thuli Madonsela's report titled "Secure in Comfort", where she found Zuma was aware of the security upgrades, had complained about the windows, and asked for a cattle kraal to be built.
He quoted Madonsela saying the project was a "licence for looting... created by government".
"The public protector does not find that Zuma stole money... but a reasonable person can conclude that what happened was misappropriation for personal benefit.
"The benefactor here is the chief guardian of the Constitution."
Jamie was defending the DA sending over 1.5 million SMSes to prospective Gauteng voters stating: "The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7 May to beat corruption. Together for change."
The African National Congress wants the DA to retract the SMS, stop sending it and apologise to the ruling party, or be fined up to R200 000.
Gcina Malindi SC, for the ANC, argued the sms was in contravention of the Electoral Act and Code of Conduct.
He said even if the public believed Zuma had stolen money, it did not mean a political party could say it, especially with a month to go until the May 7 elections.
"We have to adhere to code and pledges signed on the eve of this election."
Malindi accused the DA of making words used in Madonsela's report mean what it wanted them to. He said the ANC's objection to the sms was meant to enhance the promotion of fair elections.
"(The message) could heighten the volatile atmosphere in the elections. If this is allowed to persist we all know what it will lead to," Malindi said.
He said there had been relatively peaceful elections since 1994.
Jamie said the ANC's application was about a balance between the DA's right to freedom of expression and the right to an orderly election.
"Neither of these rights is absolute, which is a deficiency of the (ANC's) argument."
Malindi argued that the DA's SMS made an allegation that inflamed feelings about Zuma's character.
"The DA could never have believed the assertion to be true."