An extract from Judge Hellens judgement: DAs Nkandla SMS: The full judgment Hellens AJ 04 April 2014 Judge Mike Hellens dismisses ANC application against opposition claim that Nkandla report shows how Zuma stole your money IN THE HIGH COURT OF SOUTH AFRICA JOHANNESBURG SOUTH GAUTENG DIVISION CASE NO.: 11535/2014 In the matter between: AFRICAN NATIONAL CONGRESS - Applicant And DEMOCRATIC ALLIANCE - First Respondent INDEPENDENT ELECTORAL COMMISSION OF SOUTH AFRICA - Second Respondent JUDGEMENT The project was undertaken in a manner which indicated a lack of control and a focused self-interest on the part of the President. Most importantly , the Public Protector found it difficult not to reach the conclusion that a licence to loot situation was created by government due to a lack of demand management by the organs of state. 69 The meaning of the word loot as given by the concise Oxford dictionary is goods taken from enemy, spoil; booty, illicit gains made by official. 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 untrammelled and uncontrolled or substantially uncontrolled access to public funds to benefit, without adequate lawful authority, the State President. The Nkandla Report finds that the President was guilty of ethical violations in that being aware of the upgrade work, he never raised any concerns as to the scale and cost of this work at his private residence. He tacitly accepted the implementation of the upgrade measures for which he should have paid and did not. He failed to discharge his duties as President and as a beneficiary of public privileges.The acts and omissions detailed in the Nkandla report allowed such value to be added to the Presidents private residence and constituted unlawful and improper conduct and maladministration leading to the President improperly benefiting from measures that were not required for his security. 70. 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 the Nkandla Report shows how Zuma stole your money to build his R246m home is an opinion that a fair person, perhaps in extreme form might honestly hold. I ask myself whether the comment objectively speaking, could qualify as an honest, genuine expression of opinion relevant to facts upon which it was based and not disclosing malice. I ask myself the question whether , in particular in the political environment, the SMS of the DA is fair, in the sense that I have referred to above, in order to ensure that divergent views are aired in public and subjected to scrutiny and debate. 71. I find the answer to those questions to be in the affirmative. 72. It is certainly not so that the report of the Public Protector proves the commission by President Zuma of the crime of theft. The Public Protectors report, as I have set out fully, shows an unchecked or inadequately checked dipping into public funds by those responsible for the significant upgrades to the Presidents residence which took place according to the Public Protectors report with the Presidents knowledge, tacit approval and to a significant degree active participation. The use of the phrase licence to loot comes very close to the wording stole used in the complained of SMS. 73. In these circumstances I do not find that the SMS, using the words that it does, constitutes a breach of Section 89(2)(c) of the Electoral Act or of item 9(1)(b)(ii) of the Electoral Code.
Posted on: Sun, 06 Apr 2014 20:13:54 +0000
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