Go ahead, call Zuma a thief

2014-04-05 00:00

A HIGH court judge has found that it’s okay to publically call President Jacob Zuma a thief.

The ANC’s court action against a DA message to voters backfired in stunning fashion yesterday when Judge Mike Hellens found that Zuma’s actions at Nkandla — as ruled by the public protector — came “very close” to outright theft.

The ANC had sued for an interdict and a retraction against the DA, for sending a bulk SMS to Gauteng voters, stating: “The Nkandla report shows how Zuma stole your money to build his R246m home.”

And while the ANC apparently tried to avoid having the Nklanda findings of improper benefit for Zuma repeated by refusing to submit the public protector’s report to court, Hellens also included a damning summary, concluding that “the value of the president’s private residence was substantially increased at the expense of the taxpayer”.

Hellens found that Thuli Madonsela’s ruling that Zuma created a “licence to loot” was central to how a reasonable person could view the report’s findings, and that the key phrase “comes very close to the wording ‘stole’ used in the complained-of SMS”.

He found that an expression of an opinion of theft based on the facts of the report amounted to fair comment.

The judge generated more fodder for Zuma’s critics by explaining the definition of “loot” to include the meaning “goods taken from enemy”.

Yesterday, media lawyer Willem de Klerk told Weekend Witness: “This is a very interesting case — Judge Hellens has found that it is fair for people to form and express the opinion that the president is a thief, based on the facts of the Nkandla report. But it must be remembered that you still have to be clear that it is an opinion; you cannot state it as a fact that he stole.”

De Klerk said the judgment was “precedent-setting as regards political debate in this country” — and effectively recognised citizens as grown-ups “who understand what politicians are about and don’t take everything they are told literally”.

Hellens found that the SMS had not claimed the Nkandla report to have found the president guilty of criminal theft, but merely that it “shows how” he stole.

“On the one hand the judge makes clear that the public protector made no finding of criminal theft against the president,” said De Klerk. “Yet, he found that the report’s findings of maladministration and unlawful conduct can lead to a fair opinion about those actions representing theft. This ruling essentially releases the tension surrounding how that report can be interpreted.”

Hellens said he relied on a Constitutional Court case brought by Robert McBride, against a newspaper writer’s assertion that he was a “murderer”. In that case, the court found that it was not important whether a labelled person had been found guilty of murder, but merely that the fact of an intentional killing could lead to such an opinion.

Yesterday, ANC spokesperson Jackson Mthembu told Sapa that Hellens had erred in his understanding of the Electoral Act, and the offence of a party making false allegations for their electoral benefit.

“As he sits there we think he must be guided by the laws of this country and that’s why we are worried that he did not direct himself in accordance with the Electoral Act,” said Mthembu.

Mmusi Maimane, the DA’s candidate for premier in Gauteng, trumpeted the decision as “both a victory for freedom of speech and for the truth about Nkandla. The ANC never tabled the Nkandla report in court because they can’t admit to what it says.”

Earlier, the ANC had complained to DA leader Helen Zille that the SMS campaign was “a deliberate and mischievous distortion”.

Hellens slammed the ANC’s legal team for their “strange” and “fatal omission” in leaving the public protector’s report out of their application — the very document which they relied on to prove Zuma had not been found to be a thief.

Lawyers instructed by ANC secretary-general Gwede Mantashe had earlier warned the court that the DA’s SMS — if passed as legal — could “heighten political intolerance”, and “open up an avenue for a free flow of slander, insults and deception” ahead of next month’s election.

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