Jacob Zuma is not eligible to become an MP: Constitutional Court

20 May 2024 - 10:53
By Khanyisile Ngcobo
The apex court has ruled on the eligibility of MK Party leader Jacob Zuma to become an MP. File photo.
Image: Thulani Mbele The apex court has ruled on the eligibility of MK Party leader Jacob Zuma to become an MP. File photo.

Former president Jacob Zuma’s bid to make a return to parliament was scuppered on Monday when the Constitutional Court ruled he is ineligible to stand for election and upheld the Electoral Commission of South Africa’s (IEC) urgent appeal.

Zuma was in 2021 found guilty of being in contempt of court and handed a 15-month jail term without the option of a fine. While he ultimately served only three months, the apex court, in its latest ruling, found this did not alter the term originally imposed.

Justice Leona Theron, handing down the unanimous judgment on Monday, said: “This court concludes Mr Zuma was convicted of an offence and sentenced to more than 12 months’ imprisonment for the purpose of section 47 (1) (e) of the Constitution and is accordingly not eligible to be a member of and not qualified to stand for election into the National Assembly until five years have lapsed since the completion of his sentence.”

The IEC had approached the court on an urgent basis after the Electoral Court cleared the way for Zuma to stand for election to the National Assembly as an MP. 

When the MK Party (MKP) added Zuma to its parliamentary list, the commission upheld an objection to his inclusion as a potential legislator on the basis of section 47(1)(e) of the Constitution. This disqualifies people from being MPs if they have been “convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine”.

Theron dealt with three points: the IEC’s application, Zuma’s accusation of bias against IEC commissioner Janet Love, and provided reasons for the ruling it handed down on Zuma’s recusal application on May 10 2024.

On the first, the apex court ruled it had “constitutional jurisdiction” to hear the leave to appeal application because the issue of Zuma’s eligibility “turns on the proper interpretation and application of section 47(l)(e) of the Constitution in circumstances where, by law, an appeal is not available or a custodial sentence has been remitted by the president”.

On the issue of whether it is in the interests of justice to grant leave to appeal, Theron said: “The issues raised in this appeal transcend the narrow interests of the litigants and implicate the interest of a significant part of the public.

“There needs to be finality on Zuma’s eligibility to stand in the elections to be held on May 29 2024. As will soon become plain in this judgment, the appeal has reasonable prospects of success. In these circumstances, a direct appeal is in the interests of justice and leave to appeal must be granted.”

Turning to an interpretation of the section itself, the apex court found the reasoning provided by Electoral Court judge Dumisani Zondi in his judgment “cannot be sustained” and has “no support in the text of section 47(l)(e)“.

Zondi had found the sentence handed to Zuma “cannot be said to be a sentence which the section contemplates”.

Zondi reasoned this was because section 47 contained a proviso that “no-one may be regarded as having been sentenced until an appeal against conviction or sentence has been determined, or until the time for an appeal has expired”. However, because Zuma was sentenced by the apex court, there was no possibility of an appeal.

“Carving out an exception for persons like Zuma on the basis that they did not have the right to appeal their conviction and sentence subverts the purpose sought to be achieved by section 47(1)(e) and threatens to undermine our democracy.

“It threatens the integrity of the National Assembly, a body that ought to comprise of individuals who can be trusted to promote and advance the rule of law and constitutional values, and it undermines the confidence the public holds in the National Assembly. Further, it would threaten the legitimacy of this court’s findings as the apex court,” Theron said in Monday’s judgment.

The court also addressed the argument raised by the MKP that Zuma’s conviction was not a “conventional” conviction, as contemplated in section 47(l)(e) ,given that he was not criminally charged or part of criminal proceedings. 

This argument was rejected by the court, which found there was “no difference between a conviction after criminal proceedings and a conviction after civil contempt of court proceedings”.

“Our courts have held that contempt of court, even civil contempt of court, is a criminal offence. Civil contempt is a crime.”

On the application against Love, the court said: “The respondents bear the onus to establish the existence of bias, and they have failed to do so. There is no merit in this point and it must fail.”

No costs order was made by the court.