Johannesburg - Acting Judge Mike Hellens erred in
dismissing the ANC's application to stop the DA sending an SMS about Nkandla,
the ANC said on Friday.
"We note and we will study the judgment from the... high
court [in Johannesburg] today [Friday] and of course we will consult with our
counsel and all our lawyers to evaluate the options available to the ANC,"
spokesperson Jackson Mthembu said in a statement.
"On the face of the judgment, it appears that the
judge erred in applying laws of defamation to a matter governed by electoral
Further, the court seemed to have erred by not accepting
the right to freedom of expression was correctly limited by the Electoral Act,
Earlier, Hellens found the SMSes, sent to over 1.5
million prospective Gauteng voters, was fair comment. He dismissed the ANC's
application with costs.
"The public protector's report... shows an unchecked
or inadequately checked dipping into public funds by those responsible for the
significant upgrades to the president's residence," Hellens said in his
He was referring to Thuli Madonsela's "Secure in
Comfort" report on security upgrades to President Jacob Zuma's Nkandla
"The use of the phrase... 'licence to loot'... comes
very close to the wording 'stole' used in... the SMS... I do not find a case
has been brought by the applicant for the declaratory order sought by it."
DA Gauteng premier candidate Mmusi Maimane was mobbed by
DA supporters, who cheered when they were told about the decision.
Mthembu said the ANC, notwithstanding the court judgment,
reiterated its call for political parties to be responsible during elections
and act in a manner that promoted meaningful political exchanges.
"Our democracy demands tapered emotions during
elections... It is regrettable that some of the political parties may construe
the court judgment as a licence to peddle lies for political gain, an outcome
not envisaged by our electoral laws," he said.
"We call on all our people to debate openly and
freely but pay utmost respect to the truth."
The ANC believed everyone in South Africa, especially
political parties, had a legal and moral duty to ensure the country's political
environment was conducive to free political activity. This applied even more so
"The ANC believes in robust political discourse and
in-depth interrogation of issues. However, the ANC holds a view that such
robust debate needs to be within the context of an environment that is
conducive to free and fair elections," he said.
"Like other established democracies, in order to
maintain such an environment, South Africa prohibits the publication of false
information by any party in order to influence the conduct or outcome of an
Higher standard of
The Electoral Act and the Electoral Code exacted a higher
standard of compliance during elections, with the robustness or fierceness of
political discourse needing to be rooted in the truthfulness of its content.
The amount of spin placed on facts was not permitted to
go beyond what the facts could accommodate, he said.
"Allowing falsehood to be peddled with impunity
during elections will introduce a culture of undue insults, slander and
unfettered decimation of people's good names and reputations," he said.
"It is likely to inflame the atmosphere and may
heighten political intolerance."
Mthembu said while Madonsela's report into Nkandla had
correctly sparked public debate, a deliberate distortion of the Nkandla report
in the DA's SMSes was "contemptuous" of the public protector's office
and the spirit underlying its foundation.
"It is against this background that the ANC invoked
the remedies available to it in the Electoral Act [at] the... high court."
The ANC took the DA to court about SMSes in which it
accused Zuma of stealing public money to build his private homestead at Nkandla
In the SMS, the DA said: "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."
On Wednesday, Gcina Malindi, for the ANC, told the court
the party wanted the DA to retract the SMS, stop sending it and apologise, or
be fined up to R200 000.