Ismail Jamie SC, for the Democratic Alliance, said: “Our case put in the sms… on good grounds, [was] that a reasonable person could conclude on the facts set out in the Nkandla report that the president made himself [open to] dishonesty… and that he stole our money.”
This was even though the report never used the word when describing the problems and corruption surrounding the upgrades to President Jacob Zuma’s private Nkandla homestead in KwaZulu-Natal.
He was defending the DA’s sending over 1.5 million smses to prospective Gauteng voters which stated, “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”.
The African National Congress lodged an urgent application in the high court against the DA over the text message.
Jamie, speaking earlier in court before acting Judge Mike Hellens, said the application brought by the ANC misinterpreted the Electoral Act, specifically sections 89(1) and 89(2), and was inconsistent with the Constitution.
In relation to the DA’s smses, it did not require a court of law to state a person had stolen.
“It does not require a finding by a court of law that he [Zuma] committed an act of theft or misappropriation,” Jamie said.
The ANC’s application was about a balance between the DA’s right to freedom of expression and the right to an orderly election.
“Neither of these rights is absolute, which is a deficiency of the [ANC’s] argument.”
Earlier, Gcina Malindi SC, for the ANC, argued that the DA’s sms made a factual allegation which inflamed feelings about Zuma’s character.
“The DA is making a statement of fact and not opinion on the character of the president,” Malindi said.
“The DA could never have believed the assertion to be true.”
The ANC argued that Public Protector Thuli Madonsela never said in her report that Zuma had stolen or concluded in her report, titled “Secure in Comfort”, that he had stolen public funds.
Malindi said the sms had contravened the Electoral Act and the Electoral Code of Conduct.
He said the ANC’s objection was meant to enhance the promotion of fair elections.
“[The message] could heighten the volatile atmosphere in the elections.”
He pointed out that there had been relatively peaceful elections since 1994.
Malindi said the ANC wanted the DA to retract the sms and stop sending it and apologise to the ruling party or be fined up to R200,000.
Hellens asked whether he could make such an order if he was sitting as an electoral court. It was still being decided whether he was sitting as an electoral court, a high court, or both.
Hellens asked counsel for both parties to submit heads of argument to him by 2pm on Thursday arguing whether he was sitting at the electoral court, the high court or both.