Zuma candidacy case hints at electoral court weaknesses

ANALYSIS

It took 22 days for the electoral court to deliver its full reasons in the UMkhonto weSizwe party v Electoral Commission, which was initially decided on 4 April. The case concerns former president Jacob Zuma’s candidacy for parliament in the upcoming national elections. Some commentators have already criticised the 37-page judgment. 

But, it’s important to also ask why a court that is meant to act with urgency took three full weeks to deliver its full reasons. Are there underlying problems with the electoral court that should worry us for the upcoming elections? 

The electoral court is a specialist court established by the Electoral Commission Act of 1996 to adjudicate electoral disputes and provide oversight over the decisions of the Electoral Commission of South Africa (IEC). In terms of section 18 of the Act, the court is of equal status but with more limited jurisdiction to the high court. 

The court hears appeals against decisions of the IEC concerning the application of electoral law, such as the registration of political parties and the eligibility of candidates. It also adjudicates electoral disputes on the counting of votes and breaches of the Electoral Code of Conduct such as vote rigging. 

The court operates on an ad hoc basis and is activated when an electoral dispute is filed. Its operations are housed at the supreme court of appeal in Bloemfontein, but it may operate anywhere the court’s chairperson deems convenient. It may also refer certain disputes to a provincial division of the high court. 

Because the court is of equal status to the high court, its judgments are appealed to the  supreme court of appeal. But in exceptional cases, the judgments may be appealed directly to the constitutional court. Significantly, in certain disputes, such as a dispute over a vote count, the electoral court’s decision is final and no appeal is allowed, even to the highest court in the land. 

Unlike other courts, all of the electoral court’s cases are inherently urgent. That means it must adjudicate them in the shortest time possible — ideally, days after a hearing, and certainly according  to the elections timetable. Comprehensive reasons must preferably accompany such decisions unless circumstances do not allow. 

Since the electoral court is an ad hoc court, all five of its members — three judges and two non-judges — serve part-time. The chairperson is a senior judge of the  supreme court of appeal. The current members are Justice Dumisani Zondi as chairperson, Johannesburg high court Judge Lebogang Modiba, and Fort Hare law professors Nomthandazo Ntlama-Makhanya and Moses Phooko as non-judge members. 

There is one judge vacancy, which is filled on a rotational basis by acting judges. These are retired Justice Jeremiah Shongwe, and Johannesburg high court judges Leicester Adams and Seena Yacoob. 

The electoral court has now gone five years without its full complement of judges. Its longest-serving members, Modiba, Phooko and Ntlama-Makhanya, were appointed only in 2022, and chairperson Zondi, last year. The lack of a permanent corps of members has serious implications for the court’s efficiency and effectiveness. 

Electoral law is a complex, niche field of law that also needs a solid grasp of South Africa’s unique political system. The court plays a crucial role in developing legal principles to guide the law (or jurisprudence) in this field. This is for the benefit of the IEC, political actors and the credibility of our elections.

Building a coherent, predictable body of jurisprudence is slow and incremental, over many years. It needs judges with longevity and a long-term vision. It also needs judges that can work well together as a team. The lack of a strong team dynamic leads to frequent disagreements (or dissents) over the interpretation of the law.

Among the current members of the court, only Zondi and Shongwe have experience of working in five-judge panels of the style frequently used by the electoral court. Furthermore, most members have only worked together in the last few months. 

It is therefore unsurprising that in the MK v IEC case, there are three different judgments, providing three different interpretations of the meaning of section 47(1)(e) of the Constitution on Zuma’s candidacy in the upcoming elections. This has necessitated the IEC’s appeal to the constitutional court for clarification. 

Also because of the electoral court’s ad hoc nature, it is difficult to get judges to volunteer to serve on the court as either acting judges or permanent judges. Often the Judicial Service Commission (JSC) has struggled to attract more than the bare minimum of candidates to appoint. At its April 2024 session the JSC could not appoint any of the two candidates interviewed.

Historically, most of the court’s members have been drawn from the Johannesburg high court. This is mainly because the judicial leadership of that court has been willing to sacrifice its judges for the greater good, despite Johannesburg being one of the busiest courts in South Africa. But this is unsustainable. Electoral court judges need to be drawn from all parts of the country, particularly as acting judges. 

The electoral court is also weak in its operations. It has no permanent administrative or research staff.  Zondi’s supreme court of appeal registrar is essentially moonlighting as the registrar of the electoral court. 

Unlike the IEC, the treasury has not allocated any additional resources to the electoral court to deal with the likely increase in workload of the 2024 election. The court shares its R72.6 million budget allocation with the labour court, the land court and the competition appeal court, which all operate nationwide. This is worrying, considering how highly contested the 2024 election has so far been and will continue to be. Indications are that this election could be one of the court’s busiest. There have already been seven judgments this year, compared with five in all of 2023, and 12 in 2022.

The 2024 election is also fraught with both legal and political complexity. Amendments to the Electoral Act allowing independent candidates to run in national  and provincial elections are yet to be interpreted. No one can confidently say how the votes will be counted and parliamentary seats allocated, which might open room for disputes. We certainly cannot wait 22 days to know who will go to parliament to elect the president.

So what must be done to strengthen the capacity of the electoral court? 

In the short term, the office of the chief justice (OCJ) must immediately second additional registrars and researchers to assist the electoral court. The treasury must permit the OCJ to temporarily divert its budget to achieve this. 

Judges president across the country must immediately permit any willing senior judge, particularly those with appellate judicial experience, to volunteer to act on the electoral court until after the elections. 

In the long term, the minister of justice, in consultation with the chief justice and the OCJ, must capacitate the electoral court in its operations as required by the law. Going forward, it must be routine for the treasury to grant a special allocation to the court to prepare for elections.

While Zondi will lead the electoral court into the May election, he leaves in July, when his likely promotion to be deputy president of the supreme court of appeal kicks in. The Judicial Service Commission must now appoint a leader with a clear vision for how they will build the electoral court, including putting in place a cohort of expert judges who will build a coherent jurisprudence for the future. 

South Africa must rightly celebrate 30 years of free, fair and expertly-run elections. But we cannot take this for granted. We need an independent, efficient and effective electoral court.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the University of Cape Town’s Law Faculty.