By Lehlohonolo Lehana.
The Democratic Alliance (DA) has sought to establish the jurisdiction of the Electoral Court in the party’s challenge of President Cyril Ramaphosa’s address as the head of state on May 26.
The party approached the electoral court two days later to accuse Ramaphosa of breaching the Electoral Act and the Electoral Code of Conduct by highlighting the achievements of the sixth administration.
“He sought to use his position as head of state and head of the government to encourage the public to vote for the African National Congress (ANC),” Helen Zille, the chairperson of the DA’s federal executive, said in the party’s founding affidavit. “The address was nothing more than a thinly veiled stump speech.”
The speech, in several respects, mirrored that which Ramaphosa had given at the closing rally of the ANC election campaign a day earlier, she said.
It adds that Ramaphosa abused his status as Head of State and public funds to influence the outcome of the May 29 elections.
The former opposition party’s lawyer, Advocate Anthony Stein says, “In the case of an electoral period where there’s an election under way, firstly the court has jurisdiction. The only question is whether the court has direct jurisdiction or whether a litigant has direct access and we say, for two fundamental reasons, it is.”
“The first fundamental reason is that this is an electoral period and that in view of the circumstances in which this case is brought, it would not be possible to question like this adjudicated first by the high court and then by this court.”
The DA located the alleged breach in the fact that his address was aired by public broadcaster SABC, several other broadcasters and the government’s YouTube channel, as well as being streamed on the presidency’s X account.
It argued that this flouted section 94 of the Act, with item 9(2)(e) of the electoral code, which prohibits the abuse of positions of power to influence the outcome of elections and section 87(1)(g), which prohibits the abuse of public funds for campaign purposes.
The counsel for President Cyril Ramaphosa Advocate Hamilton told the electoral court that the DA had not interpreted the Act correctly.
He said it was undeniable that Ramaphosa was speaking in his official capacity on that Sunday evening, continuing his tradition of “family meetings” started during the Covid-19 pandemic to address the nation on matters of national importance, but he did so in line with his constitutional duties.
He told the court on Thursday that a national address he gave three days before the May election was designed to reassure voters amid the security concerns, not as a campaign pitch for the ANC.
Maenetje said the DA claim that he had abused his position and public funds to deliver a stump speech was a “cynical” reading of Ramaphosa’s remarks.
He quoted the president as referring to South Africa as a diverse country before saying that, at this point in its history, its people could afford to turn back on “our path to renewal”, before concluding with the words were “let us work together to build a better country”.
“They want you to read … that this conclusion says, ‘Let’s go out and vote for the ANC.’
“That is just a wrong reading of what the president says,” Maenetje said, adding that the DA was taking Ramaphosa’s words out of context to support its claim that his speech on 26 May amounted to an abuse of public funds for last-ditch campaigning for his party.
A proper reading showed that the president was calling on voters to come out in numbers, despite fears that there would be strife on election day, for the sake of protecting South Africa’s multi-party democracy.
The speech was one of reassurance and encouragement, Maenetje said, not one in which a politician makes promises to the electorate in order to secure votes.
Stein SC for the DA countered that Ramaphosa had crossed the line between constitutional obligations and campaigning, and said although there was obviously a “twilight area”, the context in which his speech came had to be considered to determine whether it constituted an abuse.
“It was on the very eve of the election.”
Stein said Maenetje had pleaded for a narrow definition of the term “political campaign” but the court should opt for a common sense reading.
“In essence, it must involve the promotion of one’s political policies and ideas,he said.
Asked by the bench whether anything less than saying expressly “vote for us”, would fall within the definition, Stein replied that it could in a particular context and that this was the case here.
“There is a strong advocacy and in fact it goes even further, it says ‘let us stay on this path’.That is an advocacy for sticking to the policies that are outlined and that is more than sufficient,” he said. “The clear implication is vote for us, it does not have to say expressly ‘vote for us’.”
The DA initially asked the court to punish the alleged breach by discarding 1% of the total votes cast for the ANC, whose vote share slipped to 40% in the May election, prompting Ramaphosa to form a broad government coalition.
But it said it no longer sought this remedy, only a declaratory order that the president was in breach and the maximum fine of R200 000, to be paid by Ramaphosa in his personal capacity. The court reserved judgment.