Bloemfontein - The Electoral Court reserved judgment on
Friday on an appeal against a ruling that a DA SMS about President Jacob Zuma
Nkandla homestead was fair comment.
Supreme Court of Appeal deputy president Judge Kenneth
Mthiyane said judgment would be delivered in a few days.
On 4 April in the South Gauteng High Court in
Johannesburg, acting Judge Mike Hellens dismissed the ANC's application to stop
the distribution of the SMS, saying it was fair comment.
The SMS, sent by the DA 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 R246m 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
"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
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.