Judge erred on SMSes: ANC

By Drum Digital
04 April 2014

Acting Judge Mike Hellens erred in dismissing the ANC's application to stop the DA sending an sms about Nkandla, the ANC said.

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," spokesman 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 laws."

Further, the court seemed to have erred by not accepting the right to freedom of expression was correctly limited by the Electoral Act, he said.

Earlier, Hellens found the smses, sent to over 1.5 million prospective Gauteng voters, was fair comment. He dismissed the African National Congress'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 judgment.

He was referring to Thuli Madonsela's "Secure in Comfort" report on security upgrades to President Jacob Zuma's Nkandla home.

"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."

Democratic Alliance 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 before elections.

"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 election."

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 KwaZulu-Natal.

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.

-by Sapa

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