Judge points to key question in Zuma SMS case

Acting Judge Mike Hellens asked counsel for both parties to submit heads of argument to him by 2pm today (Thursday) arguing whether he was sitting at the Electoral Court, the High Court, or both. This would determine what he could order. He indicated judgment would not be granted later than tomorrow (Friday). Ismail Jamie SC, for the DA, argued that his client had not stated that the Public Protector's report had said Zuma had stolen taxpayers' money. He said it 'showed' he had stolen public funds to build his Nkandla home. 'The DA generally believes... that what happened here amounted to criminal conduct. It laid charges,' he said. Jamie read out sections of Thuli Madonsela's report, where she finds Zuma was aware of security upgrades, had complained about the windows, and asked for a cattle kraal to be built. He quoted Madonsela, saying the project was a 'licence for looting... created by government'. 'The Public Protector does not find that Zuma stole money... but a reasonable person can conclude that what happened was misappropriation for personal benefit. 'The benefactor here is the chief guardian of the Constitution.' The report notes Jamie was defending the DA sending more than1.5 million SMSes to prospective Gauteng voters stating: '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.' Full Timeslive report

The ANC wants the DA to retract the SMS, stop sending it and apologise to the ruling party, or be fined up to R200 000. The SMS inflamed feelings about Zuma's character, the court was told. 'The DA is making a statement of fact and not opinion on the character of the President,' Gcina Malindi SC, for the ANC, said, notes a report on the IoL site. The ANC was arguing that Public Protector Thuli Madonsela had not said Zuma stole taxpayers' money. Malindi argued the SMS contravened the Electoral Act and the Electoral Code of Conduct, which prohibit false accusations that can influence the election. Malindi said the ANC's objection was meant to enhance the promotion of fair elections. Malindi said that since the DA had based the wording contained in the SMSes on 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.' Full report on the IoL site

Hellens questioned Malindi as to 'which hat' Hellens was wearing regarding which court he was representing - the Electoral Court or the High Court, notes a report on the News24 site. 'So I'm sitting from your perspective as an Electoral Court?' Hellens asked. Malindi said this was correct. 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 Electoral Court. Full report on the News24 site

Earlier, Hellens asked why the ANC had not furnished him with a copy of the Nkandla report. 'Bearing in mind that the applicant says the allegation that President Zuma stole R246m is false,' 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 had said. The judge, however, said he got the report from the DA. According to Business Day, Hellens added he found it 'strange' that the court was expected to find that the DA misrepresented Public Protector Thuli Madonsela's Nkandla report in an SMS, but the ANC did not say what the report found with regard to Zuma. Full report in The Citizen Full Business Day report (subscription needed)