Gcina Malindi SC, for the ANC, said that sections 89(1) and 89(2) of the act prohibited publishing false information.
The Democratic Alliance had transgressed the act through the distribution of 1,593,683 smses to prospective Gauteng voters stating that President Jacob Zuma had stolen from them by using public funds to build his Nkandla residence.
Addressing acting Judge Mike Hellens, Malindi said that since the DA had based the wording contained in the smses on Public Protector Thuli Madonsela’s Nkandla report, the statement was false.
This was because the report never stated that Zuma stole, how Zuma stole, or even concluded that he had stolen public funds.
“If the report doesn’t say Zuma stole, that is the end of the argument?” Hellens asked.
Malindi replied: “That’s the argument.” This followed Hellens querying Malindi as to “which hat” Hellens was wearing regarding which court he was representing the Electoral Court or the high court.
“So I’m sitting from your perspective as an Electoral Court?” Hellens asked.
Malindi said this was correct and it would become more apparent in the founding documents, heads of argument, and the reply.
The ANC’s argument was not based on a defamation argument, given the application was brought within the context of an election and electioneering, hence the court was adopting the hat of an election court.
Given the election, to be held on May 7, was approaching, Hellens said it was not in dispute that the matter was urgent.
Earlier, Hellens advised Malindi that the ANC should have submitted the public protector’s report as part of its application.
“Bearing in mind that the applicant [ANC] says the allegation that President Zuma stole R246 million is false and that’s not what the public protector said,” he said.
“But the ANC does not give me the public protector’s report to show me what the public protector actually said.” Hellens asked Malindi how his client could make a case without showing what Madonsela said.
The judge, however, said he had obtained the report, titled “Secure in Comfort”, from the Democratic Alliance.
The African National Congress lodged an urgent application in the high court against the DA over a text message about Zuma.
The party wants the court to compel the DA to comply with the act and not publish what it will argue was false information.
This was in response to the sms sent by the opposition party which the ANC claimed was a “deliberate lie” and targeted Zuma.
The text message read: “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.” DA Gauteng premier candidate Mmusi Maimane and ANC spokesman Jackson Mthembu were in court.