ANC case against DA 'Zuma stole your money for Nkandla' sms dismissed with costs
An sms the DA sent to over 1.5 million prospective Gauteng voters accusing President Jacob Zuma of stealing public money was fair comment, the High Court in Johannesburg ruled on Friday.
Acting Judge Mike Hellens dismissed the ANC's application to stop its distribution with costs. He heard argument on Wednesday by the African National Congress and the Democratic Alliance.
"The totality of the [public protector's] findings speak of an untrammelled and uncontrolled, or substantially uncontrolled, access to public funds to benefit, without adequate lawful authority, the state president," Hellens said in his judgment.
He was referring to Thuli Madonsela's "Secure in Comfort" report on the security upgrades to President Jacob Zuma's Nkandla, KwaZulu-Natal homestead.
When taking the core findings of the report into account, and considering the context of robust political debate which lay at the centre of freedom of expression and not stifling proper political debate, Hellens asked himself several questions.
"I asked myself the question whether the message contained in the sms... is an opinion that a fair person, perhaps in extreme form, might honestly hold," he said.
"I asked myself whether the comment objectively speaking could qualify as an honest, genuine expression of opinion relevant to facts upon which it was based and not disclosed in malice.
"I asked myself the question whether, in particular in the political environment, the sms of the DA is 'fair'... in order to ensure the divergent views are aired in public and subjected to scrutiny and debate."
He found the answer to those questions to be yes.
"It is certainly not so that the report of the public protector proves the commission by President Zuma of the crime of theft," Hellens said.
"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 this took place, according to the public protector's report, with the president's knowledge, tacit approval and to a significant degree, participation.
"The use of the phrase... 'licence to loot'... comes very close to the wording 'stole' used in... the sms," he said.
"In these circumstances, I do not find the sms using the words that it does, constitutes a breach of section 89(2)(c) of the Electoral Act or item 91(b)(2) of the Electoral Code.
"Accordingly, while I find that this application ought to be dealt with as a matter of urgency by virtue of the importance to the nation and to the nation's voters of the issues raised... I do not find a case has been made out by the applicants 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.
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.