Judgment reserved in DA sms case

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justice scales and books Clyde Robinson

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Bloemfontein - The Electoral Court reserved judgment on Friday on an appeal against a ruling that a DA sms about President Jacob Zuma's Nkandla homestead was fair comment.

Supreme Court of Appeal deputy president Judge Kenneth Mthiyane said judgment would be delivered in a few days.

On April 4 in the High Court in Johannesburg, Acting Judge Mike Hellens dismissed the African National Congress's application to stop the distribution of the sms, saying it was fair comment.

The sms, sent by the Democratic Alliance to over 1.5 million voters in Gauteng, reads in part: “The Nkandla report shows how Zuma stole your money to build his R246m home.”

The sms followed findings by Public Protector Thuli Madonsela that Zuma and his family unduly benefited from R246 million in security upgrades to his KwaZulu-Natal residence.

The DA's legal counsel Ismail Jamie argued on Friday the sms did not fall foul of the Electoral Code of Conduct.

The ANC contended the issue fell within the Electoral Commission Act, which stipulates no person may publish false information with the intent of influencing the conduct or outcome of an election. It further submitted the Electoral Code of Conduct stipulates that no party or candidate may publish false or defamatory allegations in respect of a party, candidate, or representative of a party or a member.

Jamie submitted that according to Madonsela's report on Nkandla, entitled “Secure in Comfort”, Zuma benefited and benefited improperly.

“He permitted that. Too much is made that 'licence to loot' refers to officials.”

He argued it was not the officials who benefited from the upgrades. Jamie argued the conclusion that Zuma stole public money, as stated in the sms, followed from a fair reading of the report.

“The DA cannot be found guilty of violating the code.”

Jamie said a reasonable person could reach the conclusion that “the report shows”, as stated in the sms. He further submitted the sms should be seen as a “view” and not as a stated fact, which was the ANC's argument.

The ANC argued the DA violated the code with the sms.

“No one can publish false allegations of a party, a candidate or a representative of the party or members,” submitted Gcina Malindi, for the ANC.

He argued that Madonsela's findings did not amount to a finding that Zuma stole.

“The court below also stated that it was not what the protector had found, but it went on to find a justification for the publication on fair comment.”

Malindi argued the word “stole” was not in the report. He said the phrase “licence to loot” in the report referred to administrative lapses in government departments. Zuma was only referred to in the report in terms of lapses in ethical obligations.

“Which is far removed from the issue of licence to loot,” he argued.

He said the sms as it stood made a clear allegation that the president had stolen. There were no facts a reasonable reader could consider to decide whether the statement was fair, Malindi submitted.

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