/ 10 April 2024

Electoral Court decision on Zuma: Maya says nation is waiting with ‘bated breath’ for reasons

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Photo: Fani Mahuntsi/Getty Images

South Africa is waiting in suspense to hear the electoral court’s reasons for ruling that former president Jacob Zuma could run for a seat in parliament in next month’s national elections, Deputy Judge President Mandisa Maya quipped on Wednesday.

“I can tell you that the country is waiting with bated breath for those reasons,” Maya told acting electoral court judge, Seena Yacoob, in her interview with the Judicial Service Commission (JSC) for a seat on the court.

Yacoob, a Johannesburg high court judge, has been acting at the electoral court since February. 

She was part of the panel that heard Zuma’s challenge to the Electoral Commission of South Africa’s (IEC) decision that the former president was not eligible to be a parliamentary candidate for the uMkhonto weSizwe (MK) party.

The court on Tuesday overruled the IEC’s decision to uphold an objection to his candidacy, but it did not immediately supply reasons for the decision. 

Yacoob said although the court had handed down its order swiftly because the electoral timetable demanded as much, it was still elaborating the rationale.

“We agreed on the order and thought it was important to provide the order urgently because the reasons are not quite ready,” she said.

Commissioner Maboku Mangena suggested that the reasons were pressing because it would allow the IEC to determine whether to appeal the ruling. 

“An appeal lies against the order and not the reasons but for a litigant to decide what to do with the order, to appeal it or not, it is important for the litigant to know what the reasons are,” he submitted.

Yacoob reiterated: “We did not have time to articulate the reasons and those will be done as soon as possible,” adding that she could not go further in her response, for obvious reasons.

The ruling came as a surprise.

Advocate Tembeka Ngcukaitobi argued for the IEC that it was a clear-cut case, because section 47 of the Constitution disqualifies anyone who was sentenced to a prison for 12 months or more and without the option of a fine from becoming a member of the National Assembly. This plainly applied to the former president.

Zuma was handed a 15-month prison sentence in 2021 for contempt of court for defying an order of the constitutional court to heed summons to testify before the commission of inquiry into state capture.

Advocate Dali Mpofu pleaded for the MK party that it was not for the IEC but for parliament to decide whether the prohibition applied. 

He also argued that because President Cyril Ramaphosa remitted the sentence after the decision by former correctional services commissioner Arthur Fraser to release Zuma on medical parole after serving less than three months was declared unlawful, meant that it was reduced and therefore the prohibition did not apply.

Ngcukaitobi countered that although the president could extend forgiveness, it was not within his ability to rewrite the sentence and therefore it remained at 15 months, regardless of the release date.

Freedom Under Law (FUL), an NGO dedicated to the protection of the rule of law, on Wednesday called for the reasons to be given without delay, saying the integrity of the electoral process depended on it.

“The need for an urgent decision on this matter is understandable, considering that elections are imminent. However, the reasons for the decision are of importance, both for the eligibility of the candidate in question, and as a general precedent,” it said.

“The rule of law requires that courts give fully motivated reasons for their decisions.

“It is therefore critical for the credibility of the decision and the faith citizens have in the broader electoral process that reasons for the decision are provided speedily.

“FUL therefore calls on the electoral court to issue its reasons for judgment urgently.”

Yacoob was one of two candidates for a single vacancy at the court, the other being Johannesburg high court judge Leicester Adams. The JSC decided not to appoint either but to re-advertise the position.

Neither candidate interviewed well.

Yacoob had to contend with criticism for handing down judgments late and supreme court of appeal deputy president Xola Petse suggested her record of being overturned on appeal rendered her candidacy “borderline”.

She countered that this was unfair because the appeal process existed for good reason and she chose to learn from those instances where her judgments had been overturned, adding that she had as often been upheld on appeal.

“The reason that the appeal process exists is specifically for this reason that it is a safety guard, a safety net. I’ve handed down many judgments, most of them have not even gone on appeal.”

Adams fumbled when faced with questions from Ngcukaitobi and fellow commissioner Narend Singh, from the Inkatha Freedom Party, about recent amendments to electoral legislation to allow independent candidates to contest for seats in the legislature.