The Constitutional Court will hear an appeal on Thursday against an Electoral Court judgment that an sms sent to voters, stating that President Jacob Zuma stole public money to build his Nkandla home, was based on false information.
The Democratic Alliance would submit that the appeal raised a constitutional matter of considerable public importance as it concerned alleged violations of statutory provisions dealing with the election process.
It was vital these statutory provisions be interpreted consistently with the rights of free speech and free political activity.
The DA’s position was that, especially during election-time, the track record of those in power must be open to robust scrutiny and the views and policies of all parties must be subjected to interrogation.
The African National Congress maintained its contention that the sms was a factual statement, false, and that the DA had no right to publish falsehoods about President Zuma.
Zuma was the ANC’s presidential candidate for the May general elections.
On April 4, Acting Judge Mike Hellens dismissed the ANC’s application to stop the distribution of the sms, saying it was fair comment.
However, the Electoral Court on May 6 declared the sms amounted to a publication of false information, in contravention of the Electoral Commission Act and the Electoral Code of Conduct.
In the sms, sent to over 1.5 million voters in Gauteng, the DA said: “The Nkandla report shows how Zuma stole your money to build his R246m home.”
The sms followed findings by Public Protector Thuli Madonsela that Zuma and his family unduly benefited from some of the R246 million spent in security upgrades to his KwaZulu-Natal residence.
The Electoral Court found to justify the publication of the sms message, the DA had relied on the “licence to loot” phrase in the Public Protector’s report.
“Reliance on this phrase is completely misplaced because it ignores the context in which it was used and the fact that President Zuma is not implicated in the ‘licence to loot’ situation,” the judgment read.
“In fact, rather than attributing the excessive costs of the Nkandla project to President Zuma, the report focuses on systematic failures.”
The judgment directed the DA to retract the sms by sending out another bulk sms to all earlier recipients of the first one.
The court held the sms should state: “The DA retracts the sms dispatched to you which falsely stated that President Zuma stole R246m to build his home. The sms violated the code and the act.”