ConCourt dismisses Zuma’s ‘non-frivolous’ recusal application

Former president Jacob Zuma has been dealt with a blow after his bid to have Constitutional Court (ConCourt) judges recuse themselves failed.

The case relating to Zuma’s eligibility to serve in the National Assembly got underway in the ConCourt on Friday.

The Electoral Commission of South Africa (IEC) is pursuing an appeal against a judgment from the Electoral Court.

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This ruling determined that Zuma was eligible to stand for public office as a candidate for the uMkhonto weSizwe (MK) Party.

The Electoral Court sided with Zuma, stating that his 15-month sentence for contempt of the ConCourt couldn’t be appealed and, thus, didn’t meet the criteria of a “sentence” under Section 47(1)(e) of the Constitution.

However, Zuma filed a counter application, requesting that five ConCourt justices who presided over the hearing that led to his conviction of contempt to recuse themselves from his eligibility case.

Zuma application ‘well thought out’

Advocate Dali Mpofu, representing Zuma, contented that his client was not seeking to waste the ConCourt’s time by “merely” asking that the justices involved in the contempt case to step down.

According to Mpofu, that would be “ridiculous”.

“This case is also not about allegations of actual bias. The case is about a reasonable apprehension of such bias. This matter is not about re-litigating any of the previous applications. It’s not some backhanded appeal,” he told the court’s bench on Friday.

Mpofu stressed that this case was based on “an acceptance of the majority” judgement in the contempt case.

He pointed out that Judge Dhaya Pillay “saw it fit” to recuse herself voluntarily and did so out of her own conscience regarding Zuma’s eligibility when the matter was before IEC.

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Pillay is a commissioner of the IEC.

“She was obviously correct, but that is irrelevant. The point of the matter is simply that how can anyone suggest it is unreasonable for Mr Zuma to expect that the other judges who sat with Judge Pillay will do like she did. In what world could that be unreasonable?” the advocate said.

Mpofu argued that Zuma’s recusal application was not “frivolous”.

“It is an application that is well thought out obviously because we couldn’t just bring an application of this nature just for the sake of it.”

Watch the case below, courtesy of SABC:

He emphasised that the entire litigation revolved around “one thing only”, namely, the interpretation of the ConCourt’s own judgment.

Zuma’s sentence

Mpofu said Zuma will never accept the ConCourt finding him guilty of contempt and sentencing him to 15 months to jail.

“To whatever extent, the Electoral Court decision affects negatively the decision of this court, particularly on the issue of whether the sentence was for the intended purposes.

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“That view is shared by the MK party and Mr Zuma that the Electoral Court judgement was some kind of vindication of their position that the original sentence and conviction were quote, unquote questionable.

“That is a known fact, not a secret. Mr Zuma came here and asked for the rescission of the judgment … he just failed to convince the court.

“There must be no illusion that at any point he’ll accept that judgment as legitimate till his last day, but he is not here for that, that’s the point I’m making.”

Recusal ineffective

Meanwhile, Advocate Tembeka Ngcukaitobi, representing the IEC, argued that MK party did not exist when the contempt ruling against Zuma was made in June 2021.

Ngcukaitobi asserted that it was the ConCourt’s responsibility to adjudicate the contempt of court case and deliver the sentence as ”legally competent”.

Therefore, this made the grounds for recusal ineffective.

“This court had a duty to sit at every case that is in front of you,” Ngcukaitobi said.

After a brief adjournment, the ConCourt decided to dismiss Zuma’s recusal application.