DA violated the electoral code with Nkandla SMS – ANC

2014-04-25 15:11

The DA violated the electoral code of conduct with an SMS on Zuma stealing public money to build his Nkandla home, the Electoral Court has heard.

“Noone can publish false allegations of a party, a candidate or a representative of the party or members,” lawyer for the ANC, Gcina Malindi, submitted today.

The court was hearing an argument in an ANC appeal against a ruling that a DA SMS about President Jacob Zuma’s Nkandla homestead was fair comment.

Malindi submitted the findings of the Public Protector did not amount to a finding that Zuma stole.

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

On April 4, acting Judge Mike Hellens dismissed the ANC’s application to stop the distribution of the SMS, saying it was fair comment.

In the SMS, sent to more than 1.5m voters in Gauteng, the DA said: “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 R246m in security upgrades to his KwaZulu-Natal residence.

“Stole is not in the report,” submitted Malindi.

He submitted the Public Protector report should not even be considered in the accessing of the SMS.

Referring to the phrase “licence to loot” in the report, Malindi argued it refers to administration lapses in government departments.

Malindi said the president is referred to in the report only in regard to lapses to ethical obligations.

“Which is far removed from the issue of licence to loot,” he argued, adding that the president was not even mentioned in the “loot” paragraph.

“Yes, it’s far from the president.”

Malindi argued the contents of the publication [SMS] must have enough facts to bring to bear a fair consideration by a reader.

He said the SMS, as it stands, makes a clear allegation that the president has stolen. There are no facts that a reasonable reader could use to consider whether the statement was fair, he submitted.

The ANC also submitted to the court that the issue falls within the Electoral Commission Act, which stipulates no person may publish any false information with the intent of influencing the conduct or outcome of an election.

It further submitted that the electoral code of conduct in terms of prohibited conduct stipulates that no party or candidate may publish false or defamatory allegations in respect of a party, candidate, representative of a party or a member.

The DA’s counsel, Ismail Jamie, argued the SMS had not fallen foul of the code.

Jamie submitted the Public Protector report, which said Zuma had 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 have benefited from the reference to loot.

Jamie argued that the conclusion Zuma stole public money, as in the SMS, follows from a fair reading of the report.

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

Jamie said the SMS says the “report shows” and a reasonable person could reach that conclusion.

Jamie further submitted the SMS must be seen as a “view” and not as a stated fact, which was the ANC’s argument.

The hearing continues.

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