Former president Jacob Zuma Photo: Tebogo Letsie/Getty Images
Lawyers for the Electoral Commission of South Africa (IEC) have filed further papers to the constitutional court directly addressing the electoral court’s reasoning that Jacob Zuma’s 15-month prison sentence was shortened by a presidential remission order.
The commission also attacks the electoral court’s conclusion that the former president’s 15-month prison sentence did not render him ineligible for parliament because it was not appealable, and hence section 47(1)(e) of the Constitution did not apply.
This section bars anyone who has been sentenced to 12 or more months in prison without the option of a fine from becoming a member of the National Assembly for five years, and formed the basis for the IEC’s decision to disqualify Zuma.
He was sentenced to jail for contempt of court by the constitutional court in 2021 for defying an order that he comply with summons to appear before the commission of inquiry into state capture.
Zuma could not appeal the sentence because it was handed down by the country’s highest court.
He took the only remaining route and applied for rescission instead, asking the apex court to “relook its decision and to merely reassess whether it has acted within the Constitution or, erroneously, beyond the powers vested in the court by the Constitution”.
The application was dismissed in a ruling in September 2021, which begins by speaking, somewhat floridly, to the finality of decisions of the constitutional court.
“Like all things in life, like the best of times and the worst of times, litigation must, at some point, come to an end. The constitutional court, as the highest court in the Republic, is constitutionally enjoined to act as the final arbiter in litigation,” Justice Sisi Khamepepe wrote.
“This role must not be misunderstood, mischaracterised, or taken lightly, for the principles of legal certainty and finality of judgments are the oxygen without which the rule of law languishes, suffocates and perishes.”
The fact that Zuma was not able to appeal was one of seven grounds that lawyers for the uMkhonto weSizwe (MK) party raised in their successful appeal against the decision by the IEC to uphold two of a raft of complaints it received about the fact that he was allowed to run for parliament.
Another cornerstone of its appeal was the contention that Zuma’s sentence was, in the end, less than 12 months because in August last year he was a beneficiary of a general remission extended by President Cyril Ramaphosa.
The president signed it just before Zuma was due to return to prison because his early release on medical parole was declared unlawful.
The electoral court on 9 April overruled the IEC’s decision, but it only gave the reasons for its order 22 days later. In the interim, the IEC filed an urgent application for leave to appeal to the constitutional court, arguing that every argument advanced by the MK party was spurious.
It further argued that it was in the interests of justice that the court grant it direct access because the case raised novel issues ripe for interpretation by the highest court and because the outcome would affect the choice voters make on 29 May.
If the appeal was not finalised before election day, there was a risk that “the erroneous finding of the electoral court will produce a disputed election outcome, because a person who is not qualified would have been allowed to contest, in breach of the Constitution”, the IEC said.
The question of Zuma’s eligibility to stand or otherwise “affects the decision that millions of voters will be asked to make at the ballot box”.
It reserved the right to supplement its founding affidavit, given that it was filed without the benefit of the reasons of the electoral court, and has now done so in an affidavit submitted by attorney Keletso Bolani.
The order of the electoral court came as a surprise, because Zuma’s criminal record appears to place him squarely within the ambit of section 47(1)(e) of the Constitution.
The publication of the full judgment last Friday has done nothing to silence criticism of the court’s decision from within the legal fraternity.
There were three different judgments from the panel of five judges that heard the MK party’s appeal, setting out different reasons for upholding it.
Justice Lebogang Modiba said she agreed with the MK party that the remission of Zuma’s sentence “effectively reduced it to three months and for that reason he is not disqualified by s 47(1)(e) from National Assembly membership”.
The IEC noted that two colleagues concurred with her conclusion that the remission shortened the sentence, making this the rationale that underpinned the court’s order.
It countered that the case law Modiba relied on did not support her reasoning and reiterated that the length of sentence actually served was irrelevant; what mattered was the length of sentence imposed.
Before the electoral court and in its founding affidavit to the constitutional court, the commission argued that the president may remit a sentence or even pardon a convict but does not have the power to rewrite a sentence.
If he were able to do so, it would undermine the separation of powers, and therefore Zuma’s sentence remained at 15 months.
“It is the fact of a conviction and sentence that matters for section 47(1)(e) and the fact cannot be altered by executive fiat,” it pleaded.
Modiba disagreed, writing: “In my view, the legal effect of a remitted sentence reducing the sentence imposed by a court does not violate the separation of powers doctrine.”
She said it was accepted that the president had the unique power of granting prisoners a reprieve or remitting their sentence, which is not a function of the courts, and that when he exercises this it is “unavoidable that the effect of a remission reducing a sentence will intrude on the sentencing powers of the judiciary”.
Justice Dumisani Zondi, who penned the main judgment, firmly disagreed with Modiba and dismissed the argument that remission effectively left Zuma with a record of a three-month sentence, rendering section 47 inapplicable.
“This was not a reprieve or pardon. It was simply a general remission,” he wrote.
“The president may not through the act of remission undo what the judiciary has done. The supremacy clause in section 2 of the Constitution binds the executive and leaves no room for prerogative powers, unless authorised in the Constitution, outside the scope of judicial review.”
Zondi rejected all the MK Party’s grounds for appeal except one — the argument that the fact that Zuma could not appeal his conviction excluded him from the application of section 47(1)(a).
He accepted the party’s argument that the IEC erred in their interpretation of section 47 (1)(e) when it submitted that the fact that Zuma’s sentence was handed down by the highest court, and therefore not appealable, meant he was automatically disqualified from seeking election to parliament.
“First, the actual words in s 47(1)(e) of the Constitution are incapable of this interpretation.
“Secondly, this construction requires the court to read in words into section 47(1)(e) the 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.”
This reading did not create certainty and was incompatible with section 19(3)(b) of the provisions of the Constitution, which encouraged citizens to participate in the electoral process and to ascend to office if elected.
“The drafters of the Constitution recognised the fact that a person convicted and sentenced has a right to appeal against their conviction and sentence, upon leave being granted by the trial court or, if refused, on petition to the superior court.
“If that fact was not important to them, they would not have inserted the proviso which seeks to preserve the status quo pending the appeal processes.”
Therefore, in his view, Zuma’s sentence “cannot be said to be a sentence which the section contemplates”.
In the IEC supplementary affidavit, Bolani countered that this was a contrived misreading of the purpose of the proviso.
“The proviso serves a modest purpose: it is simply there to ensure that disqualification in section 47(1)(e) kicks in only when a sentence becomes final and not subject to any further appeals.”
In Zuma’s case it did not apply for the evident reason that the rulings of the apex court are final, with no prospect of appeal, he added.
“The proviso does not apply to the sentence that this court imposed on Mr Zuma for the simple reason that the court’s sentence was final and not subject to any further appeals.
“The simple consequence is that the proviso does not apply to Mr Zuma. The proviso does not somehow change the court’s sentence into a non-sentence for purposes of section 47(1)(e).”
The MK Party has twice been granted an extension of the deadline to file its answering affidavit to the constitutional court. It now has until Friday this week to do so. The appeal will be heard on 10 May.