If you have ever pondered deeply about the concept of “unintended consequences” or how, sometimes, pulling a trigger makes the gun explode in your own face, do read the full judgment in the SMS battle between the ANC and the Democratic Alliance. In the meantime, ALEX ELISEEV offers you a summary of a dramatic day in court which unfolded on Friday. Spoiler: Judge Hellens ruled that the DA was not breaking the law when accusing President Zuma of stealing money.
It was supposed to be a quick in-and-out judgment. Both sides had dispatched junior lawyers to note the findings of acting judge Mike Hellens, who was left to settle a dispute between South Africa’s two biggest political parties. Many journalists chose to attend the Cosatu judgment next door, where Zwelinzima Vavi successfully convinced a court to set aside his suspension from Cosatu, rendering him the General Secretary again – for now at least.
Because the ANC/DA case was heard in an urgent court, Hellens would have been justified in reading out his one sentence order and leaving us all to go through his 41-page judgment later, which we all would have welcomed because Thuli Madonsela made us read that “bulky thing” which ran to 430 pages.
But after dismissing an informal request by the media to record his ruling, and making the junior counsel cringe by pointing out a mistake they made by announcing themselves to the court (“I did the same thing when I was a junior”), Hellens began delivering what is almost certainly going to become a landmark judgment. In fact, as he read out his verdict, it became clear that advocate Barry Roux may have to step aside and make way for a new legal celebrity: Mike Hellens SC, acting judge.
Hellens delivered a series of legal punches to the ANC, the applicants in this case. The first was to criticise the party’s legal team for not attaching a copy of the Public Protector’s report to their application. Hellens called this a “failure” and a “fatal omission”. The reason for this is simple: The ANC set out to prove that Madonsela’s report never found that Jacob Zuma “stole” anything, so to accuse him of theft was a DA lie. The ANC wanted the DA to apologise and send a message to the same audience (more than 1.5 million people) confessing its sins. The message, by the way, read: “The Nkandla report shows how Zuma stole your money to build his R246m home. Vote DA on 7 MAY to beat corruption”. Hellens found that to prove the argument, the ANC had no choice but to submit the report and allow the court to scrutinise it.
Instead, Hellens relied on the copy attached by the DA. The opposition party really was in a win-win situation here. If it lost, the publicity it received would offset the legal costs. If it won – which it did – it could blow its trumpet for days or even weeks. Even if there is an appeal, and even if the ruling is set aside, this will give it a lot to shout about until the elections.
Hellens was careful to say that the court’s role is not to review Zuma’s conduct. But he was able to give his “analysis” of the Nkandla report with the following justification: “This court’s function is to weigh and appreciate the contents of the Nkandla report in order to form the view whether the contents of the complained of SMS message constitutes a violation of the relevant section of the Electoral Act and Code… “ He also made it clear that he was not looking at the “strict interpretation” of the Act, but rather at whether the offending SMS constitutes “fair comment”. This was the second punch the ANC was forced to take.
The third came when Hellens began to make what he called “trite and trenchant” observations:
“The republic of South African is a constitutional democracy in which all public officials including the president of the country are subject to constitutionally entrenched controls over public power and the spending of public money… Whimsical and uncontrolled use of public funds by the executive is not tolerated in a democracy such as ours.”
He also expanded on the concept of fair comment: “It needs to be an honest, genuine (though possibly exaggerated or prejudiced) expression of opinion relevant to the facts upon which it was based, and not disclosing malice.”
In other words, the ANC wanted the court to make a judgment based solely on the Electoral Act but the judge wanted to test the SMS against the Nkandla report.
Hellens went on to summarise Madonsela’s report, pushing all the sore points for Zuma and the ANC. He spoke about the endless features (swimming pool, chicken run, amphitheatre, cattle kraal…) and the spending which spiralled out of control. The judge paid particular attention to Zuma’s ethical violations (“remember the phrase: “He tacitly accepted the upgrades…”) and that Zuma “failed to discharge his duties as president and as a beneficiary of public privileges”. Most damning was Hellens’ reference to the phrase “license to loot”.
Using the dictionary meaning of the word “loot” (“goods taken from enemy, spoils, illicit gains made by official”) Hellens stressed that Madonsela must have chosen this word intentionally. And so, he found that: “The use of the phrase ‘license to loot’ comes very close to the wording ‘stole’ used in the complained of SMS.”
Hellens continued: “When one takes the core findings of the Nkandla Report into account and considers whether, particularly in the context of the robust political debate which lies at the centre both of freedom of expression and which lies at the centre of not stifling proper political debate, I ask myself the question whether the message contained in the SMS… is an opinion that a fair person, perhaps in extreme form, might honestly hold.”
His answer was: YES.
Outside court, the DA’s Mmusi Maimane called the judgment a “massive victory” and called on Zuma to account. The ANC said it will read the report and consider its options but already began pointing out that, in its opinion, the judge erred by testing the SMS against the report (using defamation principles) instead of sticking to the Electoral Act. So if you were to place a bet on an appeal, you wouldn’t be wasting your money. But for now, the ANC will have to lick its wounds and consider whether dragging this case to court was the right strategy in the first place. And whether an appeal – even if it’s successful in the long run – will open the Nkandla report to further scrutiny by the country’s courts. DM
Photo: An ANC supporter holds up a poster showing the portrait of South African President Jacob Zuma as fellow supporters cheer among a crowd of 70,000 during the final African National Congress (ANC) election rally gathering in Soweto, South Africa, 15 May 2011. EPA/KIM LUDBROOK.
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