Former president Jacob Zuma. Photo: Fani Mahuntsi/Getty Images
Each of the grounds the uMkhonto weSiswe (MK) Party raised in its successful appeal to the Electoral Commission of SA’s decision that former president Jacob Zuma cannot stand for parliament in next month’s elections was spurious, the commission argues in papers filed to the Constitutional Court.
“On any of the arguments that were made before it, the electoral court is wrong in law,” the IEC said of the court’s decision to overrule its decision that Zuma was not eligible to stand.
It has applied for leave to appeal on an urgent basis, three days after the court held that Zuma was not disqualified by section 47 of the constitution despite having been sentenced to 15 months in prison in 2021.
The order of the electoral court came as a surprise, as his record seemed to place him squarely within the ambit of section 47(1)(e).
It bars anyone who has been sentenced to 12 or more months in prison without the option of a fine being barred from becoming a member of the National Assembly for five years.
The MK Party argued that the IEC exceeded its powers because only parliament could implement section 47(1)(e).
This not only went against the spirit of the law but pointed to a lapse in logic, the commission said in its founding affidavit.
“The text, structure and purpose of section 47(1)(e) all point against that conclusion,” it said, adding that it was plain from the wider context of electoral legislation that a decision on eligibility must be made before the vote.
Leaving it to parliament, implied that it would happen after the elections.
“Several sections of the Electoral Act require the Electoral Commission to consider whether a candidate is eligible under section 47(1)(e) before the election, not after.”
The very purpose of section 47 was to determine whether a candidate was eligible to stand in an election, and it was nonsensical to allow a candidate to stand if that person would not be able to take up a seat in parliament.
“If a candidate is not qualified to hold office, he or she is also not qualified to stand for office.”
Zuma and the party attempted to argue that there was a difference between being qualified to stand for election under section 30(1)(a) of the Electoral Act and being eligible to become a member of the National Assembly under section 47(1)(e) of the constitution.
“They never explained the difference,” the IEC said.
There is also no provision in law for the National Assembly to determine the eligibility of those elected to it after the election. Its first sitting after the vote is for the purpose of swearing in the newly-elected members of the legislature.
“The constitution leaves no room for an after election sitting of the National Assembly to determine whether the elected candidates are disqualified.”
Therefore the argument that it fell to the National Assembly, and not the IEC, to implement section 47(1)(e) was in conflict with the structure of the constitution.
But there was a further flaw of logic with the MK Party’s argument.
It would leave members of the National Assembly to determine whether someone was eligible to be a member of the assembly.
“The reasoning is circular because a member would have to be eligible to decide eligibility,” the IEC said.
The MK Party argued that Zuma was not convicted of an offence. Here it sought to resuscitate Zuma’s argument, when he applied for his sentence for contempt of court to be rescinded, that his rights were violated because he was convicted of contempt of court with the benefit of a criminal trial.
That argument has long been setted in law, the IEC said, as it was accepted and “explained again and again” by the apex court that contempt was an amalgamation of criminal and civil process. But besides that, section 47 said only that the person needed to be convicted for a length of time, not that the conviction needed to happen after a criminal trial.
The MK Party made two inventive arguments about Zuma’s sentence.
Both, the IEC argued, were wrong.
The first is that the sentence was not truly a sentence because he had no right to appeal and section 47(1)(e) only applied to sentences that could be appealed.
“The appealability of a sentence does not affect whether there was a sentence,” the IEC countered.
The second was that Zuma was not sentenced to 15 months because the sentence was remitted by President Cyril Ramaphosa in August last year.
But that argument conflates the sentence the constitutional court imposed with the time that Zuma served in jail. The latter “does not matter”, the IEC said.
“The remission would change how long Mr Zuma served, it would not change the sentence that was imposed.”
The former president was sentenced to prison by the constitutional court in July 2021 for contempt of court, arising out of his failure to heed an order of the court that he comply with a summons to testify before the commission of inquiry into state capture.
He started serving his sentence on 8 July 2021, but was released on medical parole a few weeks later.
He returned to prison on August 11 last year, after the appellate court held that his early release was unlawful. However, reporting to the Estcourt correctional facility was an administrative exercise as his sentence, along with that of thousands of other prisoners, was remitted by the president the night before.
The IEC cautioned that accepting the MK Party’s argument that the sentence was shortened is not only wrong in law, but undermines the separation of powers.
It does so by attempting to give the president the power to rewrite a sentence handed down by a court of law.
“The president cannot change the fact of conviction and sentence,” the IEC argues.
“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. On these facts, the president did not purport that no sentence had been imposed on Mr Zuma. Nor is this the natural effect of a remission.”
“The contrary interpretation – and there is a risk that it could have been accepted by the electoral court – would give the president (and the head of the ruling party) a power to override judicial decision to disapply section 47(1)(e) through a remission of sentence.”
The MK party further argued that Zuma was not convicted of an offence.
This argument was refuted by the language of the law itself, the IEC said.
The apex court in its judgement found Zuma “guilty of the crime of contempt of court” before sentencing him to prison. And the Correctional Services Act defines a “sentenced offender” as a “convicted person”.
The IEC filed for leave to appeal without the benefit of the reasons for the electoral court’s decision, which it has yet to release. Only the order was handed down.
Pleading for direct access to the highest court, the IEC said the case raised important and there were novel questions that need to be interpreted by the constitution court.
“A body as important as the commission should not be required to conduct an election under a cloud that it has been biased or favoured one side,” it said, referring to Zuma’s suggestion that a response from IEC commissioner Janet Love to a question at a media briefing created a reasonable apprehension of bias.
If the appeal was not finalised before election day, 29 May, 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”.
The matter therefore goes well beyond the interests of just the litigants, the commission stressed.
It said the constitutional court should have the final say on the interpretation and consequences of that sentence it imposed on Zuma three years ago, as well as on the interpretation and application of the prohibition in section 47.
The IEC said that it asked the court on Tuesday to make available the reasons, but the court has not done so yet, nor indicated when it will do so. With the election looming, it could not wait before proceeding to ask for leave to appeal.
“The commission is unable to wait for an unknown period when the electoral court will give its reasons,” it said.
The MK Party on Friday signalled that if the constitutional court heard the appeal, it would demand that Chief Justice Raymond Zondo recuse himself because the contempt conviction flowed from an application by a commission he chaired.
The IEC received 22 objections to Zuma’s eligibility to stand for the elections, based on section 47(1)(e) of the constitution. It upheld two, and dismissed the rest, either because these were filed too late, or were not served on the MK Party.