Nkandla SMS ruling: Judge applied the wrong law

The ANC has accused Judge Hellens of applying the wrong law to settle the Nkandla SMS dispute.

DA demonstrators gather outside the High court in Johannesburg while court proceedings are underway over an Nkandla SMS sent out by the opposition party against the ruling ANC. Picture: Reinart Toerien/EWN.

JOHANNESBURG - While the judgment in the Nkandla SMS case has been described as a massive victory by the Democratic Alliance (DA), the African National Congress (ANC) has accused the judge of applying the wrong law to settle the dispute.

On Friday acting Judge Mike Hellens dismissed the ruling party's urgent application to force the DA to apologise for an SMS which accused President Jacob Zuma of stealing.

Judge Hellens became the first judge to analyse Public Protector Thuli Madonsela's report and to make bold statements about South Africa's democracy and government accountability.

Hellens ruled that given the findings of the Nkandla report, South Africa's constitutionally protected right to freedom of expression and the country's robust political scene, the DA's SMS constitutes "fair comment".

The party's Mmusi Maimane says, "They should have come out and proved out of the Public Protector's report that President Zuma did nothing wrong."

But the ANC's Jackson Mthembu says an appeal must be considered.

"The court seems to have erred by not accepting that the right to freedom of expression is correctly limited by the Electoral Act."

Judge Hellens found that the word "loot", used in the Nkandla report is close to the word "stole", used in the SMS.

To read the court's full judgment, click here.

Meanwhile, Public Protector Thuli Madonsela says her Nkandla findings could be taken to court, where a judge would review her decision, if parties are unhappy.

Madonsela found that President Zuma improperly benefited from the near R250 million security upgrades at his KwaZulu-Natal home and has to pay back a portion of the money spent.

The president has said that he never asked for the upgrades and therefore will not pay for them.

The Public Protector says if the complainants who asked her to investigate the upgrades are not satisfied; the matter could be taken on review in court.

"As the court reviews this matter, it will then review my decision as well and look at how reasonable I was in arriving at the findings that I made, in arriving at the decision that he [Zuma] should pay and whether it is irrational to ask him to pay."