Justice Minister Ronald Lamola. (Brenton Geach/Gallo Images and Phill Magakoe/ Gallo Images)
The ink had barely dried on the constitutional court’s judgment on Jacob Zuma’s eligibility for parliament when Justice Dumisani Zondi, one of the panel of judges whose ruling on the subject the apex court overturned, sat his interview for promotion to deputy president of the supreme court of appeal.
Justice Minister Ronald Lamola on Tuesday at the Judicial Service Commission (JSC) confronted Zondi about his conclusion as a member of the electoral court that section 47(1)(e) of the Constitution did not apply to the former president and therefore he was not disqualified by his criminal record.
“Where I am a bit lost is — how did you get it completely wrong, the interpretation of section 47(1)(e), despite what has proven to be abidable authority that the concourt has pointed us to in their well reasoned judgment, in which they point out the rules of interpretation and how it should have been handled?” he asked.
There were three separate electoral court judgments, with the underlying rationale being that the remission of Zuma’s 15-month sentence for contempt of court had reduced it to less than three months,
The electoral court concluded that it therefore fell short of the disqualifying mark of 12 months in section 47(1)(e).
This section disqualifies anyone “convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine” from being a member of the National Assembly.
It adds the proviso: “No one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.”
Zondi had not agreed with his colleagues’ conclusion that remission extinguishes the remainder of a sentence.
Instead his reasoning was that Zuma fell beyond the application of section 47 because his sentence was imposed by the apex court and therefore there was no possibility of appeal.
The constitutional court said this is wrong, after hearing an urgent appeal filed by the Electoral Commission of South Africa.
It would mean, the apex court said, 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). In other words, if Zuma had been sentenced by a magistrate’s court, he would have been disqualified, but the same would not hold when he was sentenced by the highest court in the land.
“The electoral court’s reasoning undermines the authority of this court, the apex court of the country,” it said.
“Carving out an exception for persons like Mr Zuma on the basis that they did not have the right to appeal their conviction and sentence subverts the purpose sought to be achieved by section 47(1)(e) and threatens to undermine our democracy.”
It specifically threatened the integrity of the National Assembly because the purpose of the prohibition was to deny those convicted of serious crimes from becoming lawmakers.
The constitutional court cited case law that confirmed the fundamental rule that a proviso can only be read in relation to the purpose of the substantive provisions of a section of law. Hence Lamola’s question to Zondi.
But there are rules and sensitivities at the JSC on cornering judges about past rulings, particularly in politically charged cases. In late 2022, Economic Freedom Fighters leader Julius Malema accused Justice Elias Matojane of “going on a frolic of your own” when he ruled that former spy master Arthur Fraser’s decision to grant Zuma medical parole two months into his contempt sentence was unlawful.
Matojane was being interviewed for a seat at the supreme court of appeal, where his ruling was being appealed.
“You want to get me into trouble by asking a political question,” the judge objected.
Months earlier, after a similar question from Malema on another of his judgments, he had reminded him: “I have said what I had to say [in my judgment]. I am constrained.”
On Tuesday, Chief Justice Raymond Zondo asked Lamola to tread cautiously.
“Minister, we have to be careful about judgments. Because on the one hand anybody can be wrong. Any judge can be wrong, and sometimes you say a judge is wrong today but in three year’s time everybody says he is the one who was right,” Zondo said. “We have got to remember the focus of what we are required to do. If your question is directed at showing that he got it so that it would affect suitability for the position, then it is fine. But if you can’t go that far, it becomes problematic what purpose it serves.”
Lamola said he was simply trying to deal with Zondi’s interpretation of the Constitution, because this was the daily stuff of adjudication.
Zondi replied: “When it comes to interpretation of a statute, there is no right or wrong approach. You look at the words of the statute and you apply the well-established method of looking at interpretation of the statute and arrive at a conclusion.
“That conclusion might be right or it might be wrong, and remember you are dealing with words here. You have to ascertain the intention of the legislature from the words used in the statute, so one party might, looking at the very same statute, arrive at a different conclusion. There is no guarantee that two people interpreting a statute will arrive at the same conclusion.”
“It is not a scientific approach. It is not a question of one plus one equals two.”
He added that one might find oneself in the minority on a matter, only for one’s reasoning to become the view of the majority when the same question served before court a few years later.
Zondi also said the matter of Zuma’s eligibility was a “novel” one and that he was pleased that it had gone to the apex court, because it delivered a valuable lesson that at times the law should not be read for ordinary grammatical meaning but “purposively and in the context”.
Zondi is the chairperson of the electoral court and a senior justice of the appellate court. After deliberations, the Judicial Service Commission recommended him for appointment as deputy president of the supreme court of appeal, a position he has held in an acting capacity since earlier this month.
There are concerns about the capacity of the electoral court, which sits on an ad hoc basis, but by its very nature hears matters on an urgent basis. It has been without a full complement of judges for years and has struggled to attract suitable candidates. Zondi stressed that it shared the scarce resources of the appellate court, which has only two registrars and three researchers.