/ 3 April 2024

IEC ‘erred’ in barring Zuma from contesting elections, says MK party in appeal

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Jacob Zuma enters the court hearing the case of the uMkhonto weSizwe logo. Photo: Darren Stewart/Gallo Images

The uMkhonto weSizwe party says that the Electoral Commission of South Africa (IEC) “prejudged” former president Jacob Zuma’s case when it removed him from the list of candidates eligible to stand in the 29 May elections.

In papers filed to the Electoral Court on Tuesday to appeal the decision to bar Zuma from standing, the MK party’s legal team said there were at least seven grounds on which the IEC had “erred” in barring the former head of state from contesting elections.

The IEC announced last week that Zuma had been removed from the list of candidates as he had been jailed for longer than 12 months without the option of a fine when he was sent to prison for contempt in 2021.

Zuma was jailed after he refused to return to the Zondo Commission to be cross examined on his evidence in chief on his role facilitating the looting of South Africa’s coffers by the Gupta brothers and their network.

In their notice of grounds of appeal, the party said that the IEC had  “no valid reasons” to “violate” the former head of state’s political rights by removing him from the list.

They said the IEC had erred by failing to inform it of the objection and of its decision to remove the former president. The IEC had also not furnished reasons and had not given notification of its decision to bar Zuma.

This made the decision both procedurally unfair and irregular, they said.

They said the IEC had exceeded its powers, jurisdiction and authority by “regulating” Zuma’s membership of the National Assembly, when “that power resides with the National Assembly itself”. 

“The doctrine of non-encroachment (also known as separation of powers or deference)   prohibits the IEC from interfering in issues of membership eligibility for the National Assembly,” they said.

“The IEC further erred in conflating the issue of standing as a candidate (in terms of section 30(1)(a) of the Electoral Act) with eligibility to be a member of the National Assembly (in terms of section 47 of the Constitution). These are two distinct and separate legal concepts,” they said.

The IEC was also guilty of bias in disqualifying Zuma and had made an “inappropriate public statement pronouncing upon the very issue raised in the relevant objection”.  

At the time IEC commissioner Janet Love had said Zuma was not eligible to stand as a candidate.

“That means that the IEC had prematurely prejudged the issue and could not have arrived at a different or fair outcome. This was also a case of double jeopardy,” the MK party said.

The party said that it was not accusing the IEC of “actual bias” but “relies on a reasonable apprehension of bias and or conflict of interest, which are sufficient grounds to invalidate the impugned decision.”

They said that Zuma had not been criminally charged, did not undergo a trial and was not convicted of a criminal offence, and was instead subjected to civil contempt proceedings, which meant that the removal from the list on the basis of a criminal conviction was improper. 

The IEC had also failed to take into consideration Zuma’s remission of sentence, in terms of which he served only three months after being released on medical parole in September 2021. Zuma also received a presidential remission of sentence in August 2023.

“Therefore, his effective or ultimate sentence was reduced to approximately three months which is less than the 12 months yardstick prescribed in section 47(1)(e) of the Constitution,” they said.

The MK party said that the court should use the same approach as it did in 2009 when the Freedom Front Plus failed in its  attempt to have the late Winnie Madikizela-Mandela barred from standing as an MP.

The court was also bound by the decision of the Supreme Court of Appeal and the Constitutional Court in the Madikizela-Mandela matter, they said.

The court is expected to give a ruling on the appeal ahead of the deadline for the publication of the final list by the IEC on 10 April.