Analysis: Zuma ‘looking to make IEC ConCourt appeal collapse’ with recusal request – but will it work?

Former president Jacob Zuma has lodged an application with the Constitutional Court to have six of its Justices recused when it hears an urgent appeal by the Electoral Commission of South Africa (IEC) next week.

A move that has been seen by many as an attempt to have that appeal sitting “collapse”.

The IEC approached the apex court after the Electoral Court set aside an objection to Zuma running in next month’s election because he was sentenced to 15 months in prison for contempt of court. 

That ruling meant Zuma would remain on the parliamentary list for the uMkhonto weSizwe (MK) party.

ALSO READ: Man of medical mystery: MK party cites ‘no concerns’ about Zuma’s collapse from ‘fatigue’

Now Zuma wants those who were part of his contempt of court judgment to step aside in this latest matter.

Reawakening ‘ghosts’ of July Unrest

In an application, seen by The Citizen, Zuma’s legal team said the matter would “reawaken the ghost of the unprecedented manner in which Mr Zuma was sent to jail in the eyes of the public”, before leaning on the 2021 July Unrest that killed around 354 people. 

It also accused Justices Mbuyiseli Madlanga, Steven Majiedt, Nonkosi Mhlantla, Leona Theron and Zukisa Tshiqi of bias. Chief Justice Raymond Zondo will not sit for the appeal.

Zuma: Justices bias

“Mr Zuma and, to some extent, the MK party are of the firm view or reasonable apprehension that a minimum of six of the Honourable Justices of the Constitutional Court are tainted by bias. And accordingly are not fit to sit in the adjudication of this application.

“This is due to the fact that they were part of the bench which, in his view, unjustly, although legally, competently, sent him to jail for 15 months without the option of a fine or of complying with the relevant court order,” Zuma’s team argued.

ALSO READ: ‘Leader or the heir?’- Mbalula ‘throws shade at Zuma and MK’ after election court victory

They claimed these Justices would be “bound to seek to interpret their own previous decision which now lies at the heart of the issues”

Watch MK party spokesperson Nhlamulo Ndlela speak on other concerns around the appeal:

Appeal may not be heard by Concourt

If the justices were taken off the matter, it would only leave five sitting judges to hear the matter, a violation of the constitution that calls for a minimum of eight.

Zuma’s legal team argued that unless “remedial measures are taken to rescue the situation”, the court cannot hear the IEC’s appeal.

The constitution does allow acting judges to be called in the circumstances of a Justice being “absent for a long period or a vacancy”.

However, it has in a previous judgment ruled that “constitutionally it was not open to have acting judges specially appointed to fill the ‘vacancies’ that would arise when disqualified Justices recused themselves”. 

It was also pointed out that a matter could not be left pending indefinitely.

Previous objection to ConCourt Justices sitting

In a judgement, involving impeached former Western Cape Judge President John Hlophe, the Constitutional Court dismissed an application for leave to appeal because sitting Justices were involved in the original matter. Disqualifying them would mean there “would be no quorum”. 

ALSO READ: ‘IEC is non-political’ – Ramaphosa defends commission over Zuma legal battle

“In the light of the principle regulating the position where a court is incapacitated because of conflicts disabling its members from sitting to determine the merits of the application, the Court has decided that the application must be dismissed,’ that judgement read.

The Justices would have met to discuss whether to grant the IEC’s appeal and were probably aware of any conflict that may arise before granting it.

But even if the appeal has merit and a reasonable chance of success, it cannot be left to an incomplete quorum or put on ice.

“A matter can not be left pending indefinitely and that, therefore, the application should be dismissed, not necessarily because it had no prospects of success on the merits, but because, there being no quorum, the matter could not be heard and could not simply be left indefinitely pending,” the above judgement read.