Bloemfontein - The Democratic Alliance violated the Electoral Code of conduct by sending out a text message stating that President Jacob Zuma stole public money to build his home, the Electoral Court heard on Friday.
"No-one can publish false allegations of a party, a candidate or a representative of the party or members," submitted Gcina Malindi, lawyer for the African National Congress.
The court was hearing 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 4 April, 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 over 1.5 million 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.
'Licence to loot'
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 is no facts that a reasonable reader could 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.
View, not stated fact
The DA's counsel, Ismail Jamie, argued the SMS had not fallen foul of the code.
Jamie submitted the Public Protector report, 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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