The DA SMS sent to over a million and a half potential voters saying the Nkandla report showed how President Jacob Zuma “stole” public money to build his home was self-evidently a “false” statement, the Electoral Court has heard.
The court sat at the Supreme Court of Appeal building in Bloemfontein on Friday for an appeal by the ANC against a High Court decision last month holding the SMS lawful.
Arguing for the ANC, Gina Malindi SC said the two parties and the judge in the court below all agreed there was no finding in the public protector’s Nkandla report “that the president stole the money”.
It was also agreed that the SMS had been sent with the intention of influencing voters during next month’s election.
This meant the allegation in the SMS was a false statement.
Such statements, made with the intention of persuading voters, were outlawed by the electoral code and were unlawful under the Electoral Act.
Commenting on the phrase “license to loot” that had been included in the Nkandla report and which the DA quoted in support of its position, Presiding judge Ken Mthiyane said: “You have quoted the paragraph from the report about ‘licence to loot’.
“But is the President mentioned at all (in that context)?… The public protector’s report is more concerned about the failure to control service providers.
“When Malindi said that the DA had raised the issue of ‘fair comment’ in the court below, Judge Mthiyane added that the judge who heard the initial case had ‘got sucked into fair comment jurisprudence’.”
According to Malindi, preventing “false statements” such as those made by the DA, had no significant impact on freedom of expression of political parties.
It “did not undermine robust political debate” and in fact would ensure “meaningful and well-founded debate” and thus promote healthy democracy”.
Judge Mthiyane also raised the question of whether Zuma’s “dignity” had been infringed by the SMS, to which Ismail Jamie SC for the DA said that the ANC had not made this claim and it was nowhere found in that party’s papers. Jamie said the DA had not stated “as fact” that Zuma had stolen the money.
The SMS read that the report “showed how” Zuma had stolen public money.
This was a legitimate expression of opinion, allowed in terms of the code and the law.
He said that upholding the ANC’s challenge would mean making a finding that no reasonable person, reading the report, could come to the conclusion that the DA reached, namely that Zuma “stole the money in a colloquial sense”.
If the law compelled the court to make such a finding then the law went beyond what was permitted by the constitution, given its protection of free speech particularly in political expression.
At the end of the hearing, Judge Mthiyane said the court was aware of the “crucial importance” of the matter.
Although it needed to reflect on argument it had heard, it would attempt to have its judgment ready and issued “within the next few days”.