President Cyril Ramaphosa. (Photo by Mlungisi Louw/Volksblad/Gallo Images via Getty Images)
Counsel for President Cyril Ramaphosa told the electoral 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.
Advocate Hamilton Maenetje said the Democratic Alliance’s (DA’s) claim that he had abused his position and public funds to deliver a stump speech was a “cynical” reading of Ramaphosa’s remarks.
Maenetje 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.
The DA 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 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’s election campaign a day earlier, she said.
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.
Maenetje told the 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.
These included safeguarding the country’s constitutional project.
“What is our constitutional project? To keep our multi-party democracy vibrant and alive … and we submit that when he encourages voters to vote to secure a better future for our country he does exactly what the constitution requires him to do.”
Maneatje said it may well be this cast Ramaphosa in a good light and that in listening to him some voters thought he was being a good president, but the Act was concerned only with outright abuse.
“The point we are making is that the legislation is not aimed at prohibiting incidental consequences, that is why it uses the words abuse.”
It sought to prohibit interference with the mechanics and the arrangements of the election and to protect the right to vote enshrined in the Constitution, he said.
The DA was splitting hairs by pointing to Ramaphosa’s use of the word “renewal” to argue the point that he was reiterating the same message he sent at the ANC’s final rally the night before, Maenetje added, because anybody who listened to the president knew that he had a fondness for certain words.
“Renewal” and “unity” were two of those.
Anthony 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.