By Lehlohonolo Lehana.
The Constitutional Court on Friday evening reserved judgment on the Electoral Commission of SA’s (IEC) urgent appeal application regarding Umkhonto weSizwe Party (MKP) leader Jacob Zuma’s eligibility to stand as a candidate for his party in the upcoming general election
Zuma, 82, is fronting a new opposition party that has become a potential disrupter in the May 29 general election.
The Electoral Commission of South Africa (IEC) approached the apex court challenging Zuma’s eligibility fitness to be a member of parliament post the elections.
Last month, the Electoral Court ruled that Zuma would appear on the ballot for the provincial and national elections scheduled for May 29.
The court’s decision was based on the fact that Zuma could not appeal the judgment of the apex court, which sentenced him to jail.
In 2021, the ConCourt convicted Zuma of contempt of court and sentenced him to 15 months in prison without an option of a fine for allegations of State Capture, Corruption, and Fraud in the Public Sector.
Zuma served an effective three months of his 15-month prison sentence and was released on medical parole on September 5, 2021, by the National Commissioner of Correctional Services.
Zuma served his sentence at the Estcourt Correctional Centre in KwaZulu-Natal.
Advocate Tembeka Ngcukaitobi for IEC, said the Electoral Court’s ruling was wrong, hence the appeal.
He added that the court made a mistake to think that the remission would change Zuma’s sentence.
Ngcukaitobi argued that the court should urgently rule on their appeal before elections, suggesting that the IEC won’t have time to entertain it after the election.
He mentioned that, according to Section 47, Zuma is not supposed to be an MP.
Section 47 states that “anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.”
The hearing saw terse debate between him and Justice Leona Theron, who wrote a much-criticised minority judgment in the contempt matter, as to the proviso in section 47(1)(e) that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired”.
Zuma had no possibility of appeal because he was convicted and sentenced by the highest court in the land, but his counsel is using this to argue that it put him beyond the ambit of section 47(1)(e).
The IEC is arguing that the purpose of this proviso on appeal is to ensure that there was finality regarding the sentence of 12 months or more, and that this was not in question here because Zuma’s sentence was final by virtue of having been handed down by the apex court.
Theron quoted from the electoral court judgment on this point where Justice Dumisani Zondi said “this construction, which the commission seeks, requires the courts to read in words into section 47(1)(e), the effect effect of which will be to exclude the operation of the proviso in section 47(1)(e) if a person concerned was sentenced by the highest court in the land”.
She then asked Ngcukaitobi what he had to say about that.
“It is wrong, he replied. “The effect of what we are contending for is simply this: if a judgment has been given by this court acting under section 167 as a court of first and final instance, the object of this section, which is finality, has been achieved.”
From Zuma’s argument would flow the absurdity that section 47(1)(e) applied to all sentences except those imposed by the apex court, Ngcukaitobi added.
It would mean that a prison sentence of a year or more for contempt of court imposed by a lower court would disqualify someone from becoming a member of parliament, but the same sentence would not if handed down by the apex court.
Theron asked whether, if lawmakers envisioned that there would be a class of persons to whom the proviso on appeal did not apply, they should not have said so.
But Ngcukaitobi replied: “There is no class of person for whom the proviso does not apply. It applies to everyone, including those persons that have been sentenced by the constitutional court. It is the other interpretation that creates the arbitrary distinction.”
Theron countered that the proviso never kicked in because Zuma could not exhaust his appeal options because they were never granted.
“That is the consequence of the fact that you exercise original power and you exercise direct access power … finality is achieved as soon as this court makes a decision,” the advocate responded.
Theron reiterated that the drafters of the Constitution would have known that direct access would not trump any other provision in the constitution and that where there was tension within the text, both provisions must be given full effect.
Ngcukaitobi said they had also known that judgments of the constitutional court were final.
“You can’t just write out the other section.”
Theron continued: “Yes, but the drafters also knew that fundamental rights will not be taken away.”
At this Ngcukaitobi, who was the advocate for the commission in the contempt case, replied somewhat forcefully that she had the debate about whether Zuma’s rights were compromised by the contempt ruling “already twice,” first in the ruling on the commission’s application and then on his for rescission.
Theron was bound by these and could not use the current case to reopen that inquiry, he said.
“The proviso cannot undermine the controlling section,” he underscored, meaning that it could not undo the very purpose of the provision which was to ensure that people who broke the law could not become not become lawmakers.
The added proviso of a 12-month sentence, served to indicate that this would apply in crimes with a degree of seriousness.
Deputy Chief Justice Mandisa Maya asked him to soften his tone, adding: “You come across as being very irritated and impatient with Justice Theron and it is not seemly.”
Ngcukaitobi apologised, and Theron replied that no offence had been taken.
Also present in court was a lawyer representing Jabulani Khumalo, the expelled founder of the MKP. Khumalo has disputed Zuma’s right to litigate on behalf of the MKP and maintains that he remains a member of the party.
Advocate Dali Mpofu, representing the MK party, previously contended before the Electoral Court that Zuma’s three-month imprisonment, followed by a sentence remission, nullified the relevance of his initial 15-month sentence.
Mpofu argued that the IEC invoked section 30(1)(a) of the Electoral Act rather than section 47.
“It’s very clearly that the decision that MK party and Zuma were appealing in the Electoral Court, which they successfully appealed, was a decision taken in terms of section 30(1)(a). It says so in black and white.”
He again asserted that the IEC lacked the powers to enforce section 47.
“The primary question that this court has to answer is whether the IEC had any business in disqualifying Zuma for the membership of the National Assembly. If it doesn’t then that’s the end of the case.
“Where does the IEC get the power to implement section 47 to disqualify someone from the National Assembly? The answer is nowhere.”
The advocate highlighted that the issue of Zuma’s eligibility should be decided by the National Assembly in its first sitting after the election results are announced.
Three organisations were admitted as “friends of the court” in an application IEC was challenging last month’s decision of the Electoral Court giving Zuma the go-ahead to run for public office.
Advocate Max du Plessis SC arguing for Corruption Watch said, section 47(1)(e) of the Constitution provides that a person who is finally convicted and sentenced to more than 12 months’ imprisonment is not eligible to contest elections or hold office as a member of the National Assembly”.
“Carving out an exception for persons like Zuma on the basis that they did not have the right to appeal their conviction and sentence subverts the purpose sought to be achieved by section 47(1)(e) and threatens to undermine our democracy,” it says.
The Ahmed Kathrada Foundation argueD that the proviso that appeal processes need to be finalised before a person can be considered to have been sentenced “ensures that the substantive disqualification only comes into operation once the conviction and sentence are final.”
“This is why the time of operation is at the conclusion of an appeal or when the time for an appeal has passed. In virtually all cases of criminal convictions and sentencing, finality occurs at the time when an appeal has been decided or the time for an appeal has passed,” the Foundation said.
CASAC argues that “the fact that a conviction and sentence is imposed directly by the Constitutional Court for contempt is indicative of the seriousness of the offence yet the Electoral Court’s order has the effect of mechanistically excusing this serious conduct”.