In question: MK Party leader Jacob Zuma (Delwyn Verasamy/M&G)
The constitutional court on Monday held that former president Jacob Zuma’s criminal record barred him from standing for parliament in the 29 May elections.
The apex court dismissed the argument by Zuma and his uMkhonto weSizwe (MK) party that the remission of his 15-month sentence in 2021 for contempt of court meant that the prohibition in section 47(1)(e) of the Constitution no longer applied to him.
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.
It underpinned complaints received, and upheld, by the Electoral Commission of South Africa’s (IEC) that he was not eligible for parliament.
It was a cornerstone of Zuma’s case that his 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, shortly after the courts ruled his early release on medical parole unlawful.
It meant that the former head of state served less than three months of sentence imposed on him by the constitutional court three years ago.
The IEC countered that the president did not have the power to rewrite a court sentence.
“This court concludes that Mr Zuma was convicted of an offence and sentenced to more than 12 months imprisonment for the purposes of section 47(1)(e) of the Constitution and is accordingly not eligible to be a member of and not qualified to stand for election to the National Assembly until five years has lapsed till the completion of his sentence,” Justice Leona Theron read from the judgment.
The court similarly dismissed Zuma’s argument that the prohibition did not apply because he was not convicted of a crime as envisioned in section 47 because he was found guilty of contempt of court.
The argument harps on the hybrid nature of contempt but throws overboard the established principle that civil contempt is punishable as a crime.
“This court finds that there is no difference between a conviction following criminal proceedings and a conviction following civil contempt of court proceedings since a person is convicted of a criminal offence in respect of both proceedings,” Theron said.
“Section 47(1)(e) draws no distinction between convictions for civil contempt and other convictions, therefore the ordinary meaning should be given to the word — that it is a criminal offence.”
Zuma was sentenced to prison in 2021 for defying an order of the court that he comply with summons to testify before the commission of inquiry into state capture.
In the contempt judgment, the court made plain that his failure to respect the order, and his relentless attacks on the judiciary, were particularly blame-worthy because as president he had sworn to uphold the Constitution and protect the integrity of the courts.
On Monday, the court stressed that the prohibition served to keep “serious violators of the law out of the National Assembly” for a period of time.
“The purpose of the disqualification is aimed at maintaining the integrity of South Africa’s democratic regime, which is founded on the rule of law, by ensuring that members of the National Assembly possess the requisite respect for the rule of law.”
The court overturned a much-criticised ruling by the electoral court in April which upheld the MK party’s appeal to the IEC’s decision that Zuma was not qualified to stand for parliament.
The rationale for the electoral court’s ruling was that remission did affect the length of sentence. The constitutional court said this interpretation was not only flawed but undermined section 165(1) of the Constitution, which vests judicial authority in the courts.
“It is the role of the judiciary to sentence offenders,” the court said.
“The term of imprisonment imposed by the judiciary can be reduced by the president through a remission of sentence, but it does not alter what has been done judicially … the president could not have imposed a three-month sentence, indirectly through a remission.”
In appealing the ruling, the IEC went directly to the apex court. It argued that it was imperative that finality be reached in the matter because the outcome would affect the choice voters make later this month.
If the appeal was not finalised before election day, the IEC said, 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 court agreed that it was in the public interest to have clarity on how criminal conviction affects eligibility for the National Assembly.
“The general public needs to know if candidates on a party list are eligible to be members of the National Assembly … There needs to be finality on Mr Zuma’s eligibility to stand in the election to be held on 29 May 2024.”
Counsel for Zuma had tried to argue that the courts were not competent to determine who may become an MP, but that the decision lay with parliament itself.
But the constitutional argument said this was wrong. In law, the IEC was empowered to determine, before the election, whether someone qualified for membership of the National Assembly.
Nor did the court accept Zuma’s argument that his sentence was not a sentence as envisioned in section 47 because he could not appeal as it was handed down by the highest court in the land.
“That cannot be so,” the judgment said, adding that if this argument were to hold all those sentenced directly by the constitutional court would be beyond reach of the prohibition.
Section 47 contains the proviso that an appeal against the conviction or sentence has been determined, or that time for such appeal has expired. But it was the substantive part of the prohibition, not the proviso, that set out the basis ineligibility.
The ruling was scathing of that of the electoral court interpretation in this regard, which it said would indeed mean that someone convicted and sentenced by the constitutional court, sitting as the court of first and final instance, would be “permanently immunised” from the application of section 47(1 )(e).
“The electoral court’s reasoning undermines the authority of this court, the apex court of the country,” it said.
The court 10 days ago dismissed Zuma’s application that half the judges of the court recuse themselves because they were party to the contempt ruling in 2021. In Monday’s judgment, it gave the reasons for the decision that recusal was not indicated.
“This case is about the interpretation of section 47(l)(e) of the Constitution: a narrow and defined legal issue that is capable of determination without an interpretation of the contempt judgment.
“There is no reason why this court, a court of ‘careful conscience and intellectual discipline’, cannot impartially answer that legal question.”
Chief Justice Raymond Zondo, who chaired the state capture inquiry, had recused himself from the case from the outset.