19/03/2014. Public Protector Advocate Thuli Madonsela at a press briefing were she tabled her report about the upgrade in the private home of President Jacob Zuma. Picture: Masi Losi


Johannesburg - The ANC has made an about-turn on Public Protector Thuli Madonsela and now glowingly describes her as a “well-respected and trusted figure” in papers filed at the Constitutional Court.

In its battle against the DA’s SMS sent to voters before the May 7 elections claiming that President Jacob Zuma stole taxpayers’ money to build his Nkandla homestead, the ruling party says it suffered prejudice because the DA sent the text message to more than 1.5 million potential voters in Gauteng saying Madonsela, a well-respected and trusted figure, had found Zuma guilty of theft or corruption.

Last month, some of the ruling party’s MPs accused Madonsela of political posturing and suggested her powers be reviewed.

In June, ANC chief whip Stone Sizani lodged an official complaint with the Human Rights Commission claiming Madonsela undermined the constitutional rights of the party’s voters when she said they voted for the ANC not because they endorsed maladministration but hoped for change. Madonsela describes Sizani’s complaint as “ludicrous and mischievous”.

In its Constitutional Court papers, the ANC also says the DA’s interpretation strained the meaning of the word “stole” beyond its primary meaning to the ordinary man.

“The ordinary meaning of the word ‘stole’ is that the perpetrator committed an act of theft or ‘taking without the consent of another’, regardless of whether they have been convicted in a court of law,” reads the ANC’s submission to the country’s highest court.

According to the ANC, the term does not, in its ordinary meaning, extend as far as the DA claims.

The DA says the Electoral Act does not mention apology, which the ANC is demanding, and that in a robust election campaign a court-ordained apology by one party to another is not appropriate, as it would risk involving the court in party-political campaigns.

It says this would create the impression that the message of one political party carries the authority and imprimatur (an official licence to print or publish) of a court.

The DA insists that the fact that Madonsela’s Nkandla report does not use the word “stole” or suggest that Zuma is guilty of theft is not dispositive of anything.

“The ordinary reader, who is not trained in law, would draw no distinction between Zuma’s unlawful appropriation of a benefit to which he knew (or ought to have known) he was not entitled and stealing,” the party says.

The opposition party says the ordinary reader would not take the SMS as a legal opinion or statement that Zuma was guilty of a crime.

It says the SMS does not fall within the ambit of “false” speech forbidden by the Electoral Act and code of conduct.

“The SMS does not fall into the category of speech affected by the act and the code. The SMS contains a legitimate criticism of Zuma, reflecting the serious findings against him in the report.”

It says during election periods there is an elevated importance of unhindered free speech.

According to the DA, the SMS represents an opinion genuinely held by many people, and that, even if it is conceived as a statement of fact, there is no suggestion that it was made in bad faith, or that it constitutes a gratuitous and baseless assault on Zuma.

The DA says Zuma has failed to file an affidavit indicating the prejudice he suffered to his dignity as a result of the SMS, and denies the ANC’s claim that the SMS posed a threat to the elections and risked violence.

Soon after the SMS was sent to voters in Gauteng on March 27, the ANC launched a South Gauteng High Court bid to force the DA to retract the SMS, but lost after its application was dismissed by Acting Judge Mike Hellens in April.

The ruling party then appealed to the Electoral Court, which, on the eve of the elections, found that Hellens had erred. The Electoral Court ordered the DA to send an SMS retracting its earlier text message.

The DA then sought leave to appeal in the Constitutional Court.

The case will be heard in the Constitutional Court next month.

[email protected]

Sunday Independent