That was the finding made by Acting Judge Michael Hellens in the South Gauteng High Court in Johannesburg yesterday.
The ANC had dragged the DA into court after being challenged by DA Parliamentary leader Lindiwe Mazibuko over an SMS, which read in part: “The Nkandla report shows how Zuma stole your money to build his R246m home.”
It had sought to restrain the DA from further disseminating it and wanted a declaration the SMS was false information in contravention of the Electoral Act and an apology.
It was not to be.
The ANC’s case may have started going awry when it let the court decide whether it was sitting as a High Court, or an Electoral Court, as each had powers specific to its function.
Critically, Judge Hellens decided the High Court would render its verdict, read with sections of the Electoral Court – instead of the other way around – as this gave it greater statutory powers.
Judge Hellens noted the ANC fell at the first hurdle by failing to provide a comparison to the SMS by not attaching the Nkandla report to its heads of argument.
Judge Hellens was visibly irked by this “fatal omission” and referred to it several times during the submissions and his findings.
When the judge found the SMS was fair comment, the tension in the courtroom was palpable.
Moving on to the Nkandla report itself, Judge Hellens noted he had to make “a trite but trenchant observation”. After dealing with a number of controls a president of South Africa is subject to in terms of public money, he slammed reckless spending by saying: “Whimsical and uncontrolled use of public funds is not tolerated in a democracy such as ours.”
Then Judge Hellens began picking on the word “loot”.
“The use of the word ‘loot’ must be understood to have been meant intentionally by the Public Protector. The totality of the findings speak of an untrammeled and uncontrolled or substantially uncontrolled access to public funds to benefit, without adequate lawful authority, the president,” said Judge Hellens.
He went on to find the SMS qualified as a genuine expression of opinion of a fair person.
Judge Hellens dismissed the ANC’s application with costs.