Electoral Court’s ruling on Zuma ‘absurd’ – IEC tells ConCourt

The legal team of the Electoral Commission of South Africa (IEC) has strongly criticised the Electoral Court’s ruling to allow former president Jacob Zuma to serve in Parliament.

On Friday, the Constitutional Court (ConCourt) heard the IEC’s leave to appeal application against an Electoral Court judgment delivered on 9 April.

The ruling overturned the commission’s decision to bar Zuma to stand for public office as a candidate for the uMkhonto weSizwe (MK) Party.

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

This section disqualifies any person who is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine from serving in Parliament.

The disqualification only ends five years after the sentence has been completed.

Section 47 also states that no person 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”.

Zuma’s sentence

Advocate Dali Mpofu, representing the MK party, previously contended before the Electoral Court that Zuma’s three-month imprisonment, followed by a sentence remission, nullified the relevance of his initial 15-month sentence.

But counsel for the IEC, Advocate Tembeka Ngcukaitobi, argued on Friday that section 47(1)(e) does not have exclusions for remissions or pardons.

“That means that the court can apply this section as it reads. The exclusion of pardons and remissions from section 47(1)(e) is not an accident of history, but it was a careful policy choice made during the drafting of the Constitution,” he told the ConCourt bench.

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The legal practitioner said the Electoral Court incorrectly made a finding that a remission reduced Zuma’s sentence.

“The argument about remissions reducing judicially imposed sentence simply weakens the judiciary. It enables the administration to treat as pro non scripto, an outcome that can only encourage disrespect for the law.”

He pointed out the ConCourt’s sentencing of Zuma was not suspended by an appeal because “there is none”.

Watch the court case below:

Electoral Court ruling ‘absurd’

Ngcukaitobi said the Electoral Court’s interpretation of section 47(1)(e) undermined the ConCourt’s authority, stressing that the outcome was “absurd”.

“It undermines the purpose of the section which is to protect the public from law breakers now putting themselves up as lawmakers. This protective purpose also safeguards the institutional integrity of parliament.”

The advocate emphasised that the ConCourt ruled Zuma was guilty of the crime of contempt. He indicated that the apex court has found four times that contempt of court was a criminal offence.

“You have no reason today to depart from it.”

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He added that the IEC’s decision to uphold an objection against the former president’s participation in the 2024 national and provincial elections was correct.

“He was not disqualified by the IEC, he was disqualified by the Constitution. The Electoral Court was wrong to enable him to stand despite the fact that the Constitution disqualifies him. That is why the order of the Electoral Court should be set aside and replaced with an order dismissing the appeal.”

Ngcukaitobi asked the ConCourt to treat the IEC’s appeal application with urgency and to make a ruling on Zuma’s eligibility before the elections on 29 May.

“Whether he is entitled to stand cannot be established after he has contested. That would be absurd.”

IEC had ‘no business’ in disqualifying Zuma

Mpofu later argued that the IEC invoked section 30(1)(a) of the Electoral Act rather than section 47.

“It’s very clearly that the decision that MK party and Mr Zuma were appealing in the Electoral Court, which they successfully appealed, was a decision taken in terms of section 30(1)(a). It says so in black and white.”

He again asserted that the IEC lacked the powers to enforce section 47.

“The primary question that this court has to answer is whether the IEC had any business in disqualifying Mr Zuma for the membership of the National Assembly. If it doesn’t then that’s the end of the case.

“Where does the IEC get the power to implement section 47 to disqualify someone from the National Assembly? The answer is nowhere.”

The advocate highlighted that the issue of Zuma’s eligibility should be decided by the National Assembly in its first sitting after the election results are announced.

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