By Lehlohonolo Lehana.
An Electoral Court majority has found that Umkhonto we Sizwe party (MKP) leader Jacob Zuma qualifies for appointment to the National Assembly because the 15-month prison term he received from the Constitutional Court for contempt could not be appealed, therefore it did not qualify as a “sentence”.
In February 2021, Zuma ignored a subpoena to appear before the state capture commission.
As a result, the commission initiated contempt of court proceedings against Zuma at the Constitutional Court.
Zuma would later be sentenced to 15 months in prison by the Apex Court.
He served his sentence at the Estcourt Correctional Centre in KwaZulu-Natal.
Electoral Court Judge Dumisani Zondi says because Zuma was convicted in the highest court in South Africa, his sentence could not be appealed.
“In terms of section 47(1)(e) a person who is convicted of an offence and sentenced to more than 12 months’ imprisonment without an option of a fine is not eligible to be a member of National Assembly. The disqualification does not operate immediately. If there is an appeal against the conviction and/or sentence a nominated candidate remains eligible to be a member of the National Assembly pending the final determination of the appeal. In the event that the nominated candidate loses the appeal or elects to not appeal the conviction and/or sentence the disqualification kicks in and he or she becomes ineligible to be a member of the National Assembly,” read the court judgment.
The court said the Constitution spelled it out that a convicted person has a right to appeal.
The conviction and sentence do not come into effect until all appeal processes have been finalised.
It said the sentence imposed by the apex court on Zuma could not be taken as a sentence as he could not appeal it.
The court said the IEC erred by removing Zuma from the ballot paper.
“In other words, the conviction and sentence do not take effect until the appeal process has taken place alternatively a convicted and sentenced person has elected to not appeal the conviction and/or sentence. In my view the sentence that was imposed on Zuma cannot be said to be a sentence which the section contemplates. The commission erred therefore to uphold an objection to Zuma’s candidacy on the basis that the sentence that was imposed on him disqualified him from being eligible to be a member of National Assembly.”
The reasons from the Electoral Court come after the Constitutional Court granted Zuma and the MKP an extension to file their answering papers regarding the appeal by the Electoral Commission of South Africa (IEC) on the same matter.
The IEC appealed the decision of the electoral court to the highest court in the land after it said it wanted clarity on the interpretation of section 47 of the Constitution.