IEC fears election outcome can be challenged if Zuma is on MK party list

The Electoral Commission of South Africa (IEC) has asked the constitutional court to urgently attend to the matter of whether former president Jacob Zuma should remain on the list of candidates vying for seats in parliament, arguing there is a substantial risk of a disputed electoral outcome if he is allowed to stand. 

In an affidavit submitted to the apex court, counsel for the IEC, advocates Tembeka Ngcukaitobi SC and Jason Mitchell said Zuma’s standing for the elections would erode the foundations of the constitutional order and the rule of law.

“The interests of justice unquestionably demand of this court to decide this matter now, not after the elections,” they argued.

The electoral court ruled in favour of Zuma when the matter was brought before it, after the IEC had rejected his inclusion in the uMkhonto weSizwe (MK) party’s national list.

The electoral commission had rejected Zuma’s name on the basis of his conviction and jailing by the constitutional court for contempt in 2021. The IEC cited the Constitution which states that a person who has been convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine is disqualified from standing for the National Assembly.

The IEC argues in its latest submissions that it is in the interest of justice to grant leave to appeal the electoral court’s decision directly to the constitutional court. It said the electoral court’s judgment was wrong and the three justices who made it were deeply flawed in their interpretation of the Constitution, an error which should urgently be corrected.

Arguing on urgency, the commission said the interests of justice unquestionably demand of the court to decide the matter “now”, not after the elections.

“It is in the interests of justice that voters know if [Zuma] is eligible before they go to the polls. An appeal to the supreme court of appeal would not be feasible before then nor even before the MK party and Mr Zuma’s suggested deadline of mid-June 2024,” the commission’s affidavit says.

A cornerstone of the MK party’s appeal to the electoral court was the contention that Zuma’s 15-month sentence in 2021 was, in the end, less than12 months because in August last year he was a beneficiary of a general remission extended by President Cyril Ramaphosa. 

The president signed it just before Zuma was due to return to prison after his early release on medical parole was declared unlawful. 

The IEC has argued in its papers that an appeal proviso does not make the sentence a non-sentence.

“The warrant of committal issued by the constitutional court could not have made it clearer. It commanded the [correctional services] department ‘to receive’ Mr Zuma ‘into custody’ and ‘deal with him in accordance with the laws relating to prisons’, as he had been ‘found guilty … of the crime of contempt of court’,” it said.

“Indeed, Mr Zuma was dealt with as such. Like any other inmate, he was ‘processed’; orientated with regard to prison life; given prison clothes and sanitary material; and was expected to clean his cell and make his bed. Mr Zuma was therefore ‘a sentenced offender’ and had to be incarcerated in terms of the [Correctional Services] Act.”

The IEC has also poked holes into the finding by the electoral court that Zuma was not sentenced under section 47(1)(e) of the Constitution even though he was a “sentenced offender” under the Correctional Services Act. 

“This is an illogical conclusion,” it said. 

The fact that Zuma was not able to appeal was one of seven grounds that lawyers for the  MK party raised in their successful appeal against the decision by the IEC to uphold two of a raft of complaints it received about the fact that he was allowed to run for parliament.

The IEC said the constitutional court had already dealt with appealability in the Zuma contempt judgment and was clear that “the Constitution categorically allows the denial of the right of appeal by empowering this court to entertain matters by way of direct access”. 

“Mr Zuma should not be allowed to relitigate his appealability argument through the backdoor of the appeal proviso in section 47(1)(e) … The electoral court’s reasoning undermines the authority of this court. It means that had the same sentence been imposed by the magistrate’s court Mr Zuma would be disqualified because there are appeals, but since he was sentenced by this court, he is not disqualified because there is no appeal.

“It means that no sentence imposed by this court counts a sentence under section 47(1)(e), including, for example, an inappropriately low sentence that this court sets aside and substitutes with a higher sentence.

“Mr Zuma has no right to appeal his conviction and sentence and the time to debate the constitutionality of him having no right to appeal his conviction and sentence has long come and gone. But that does not mean his sentence is not a sentence. It

means something more sensible, the proviso in section 47(1)(e) does not apply and so ineligibility kicked in as soon as this court imposed its sentence.”

The IEC has also disputed the MK party’s argument that Zuma’s remission expunged his sentence. It contends that Zuma is still convicted of an offence and sentenced to more than 12 months imprisonment. 

“A sentence becomes a sentence when it is imposed by the judiciary, not when its duration is reduced by the president’s pen stroke,” it argued.

“The president cannot change the fact of a conviction and sentence. It is the fact of a conviction and sentence that matters for section 47(1)(e), and that fact cannot be altered by executive fiat. On these facts, the president could not have imposed a three-month sentence, indirectly through a remission.”