Johannesburg - An SMS sent by the DA saying President Jacob Zuma stole public funds to build his Nkandla home inflamed feelings about his character, the South Gauteng High Court heard on Wednesday.
"The DA is making a statement of fact and not opinion on the character of the president," Gcina Malindi SC, for the ANC said.
"The DA could never have believed the assertion to be true."
The African National Congress was arguing that Public Protector Thuli Madonsela never said in her report, titled Secure in Comfort, that Zuma stole taxpayers' money.
The ANC has lodged an urgent application in the high court against the DA over the text message. It wanted the Democratic Alliance to retract the SMS, stop sending it and apologise to the ruling party or be fined up to R200 000.
The text message, which DA Gauteng premier candidate Mmusi Maimane said was sent to 1.6m prospective voters in Gauteng, read: "The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7 May to beat corruption. Together for change."
The party was arguing the SMS contravened the Electoral Act and the Electoral Code of Conduct, which prohibit false accusations that can influence the election.
Malindi said the ANC's objection was meant to enhance the promotion of fair elections.
"[The message] could heighten the volatile atmosphere in the elections. If this is allowed to persist we all [know] what it will lead to."
Malindi pointed out that there had been relatively peaceful elections since 1994.
Addressing acting Judge Mike Hellens, Malindi said that since the DA had based the wording contained in the SMSes on Madonsela's Nkandla report, the statement was false.
This was because the report never stated that Zuma stole, how Zuma stole, or even concluded that he had stolen public funds.
"If the report doesn't say Zuma stole, that is the end of the argument?" Hellens asked.
Malindi replied: "That's the argument."
This followed Hellens querying Malindi as to "which hat" Hellens was wearing regarding which court he was representing - the Electoral Court or the high court.
"So I'm sitting from your perspective as an Electoral Court?" Hellens asked.
Malindi said this was correct and it would become more apparent in the founding documents, heads of argument, and the reply.
The ANC's argument was not based on a defamation argument, given the application was brought within the context of an election and electioneering, hence the court was adopting the hat of an election court.
Given the election, to be held on 7 May, was approaching, Hellens said it was not in dispute that the matter was urgent.
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