Former president Jacob Zuma has counter-applied to the Constitutional Court for the recusal of five of its justices in his battle with the Electoral Commission (IEC) over whether he is eligible to stand for parliament.
The justices his legal team want recused are Mbuyiseli Madlanga, Stevan Majiedt, Nonkosi Mhlantla, Leona Theron and Zukisa Tshiqi. The recusal of this number would leave the court inquorate and unable to hear the case.
The electoral court cleared the way for Zuma to stand for parliament when it set aside a decision by the commission that upheld an objection to Zuma’s candidacy. The objection was based on the fact that Zuma had been sentenced by the ConCourt to 15 months in prison but the constitution disqualifies people from being MPs if they have been sentenced for 12 months or more without the option of a fine.
The commission then urgently approached the ConCourt over the electoral court's decision.
But in court papers filed on Friday afternoon, Zuma and the uMkhonto we Sizwe Political Party (MK Party) said they were of the “reasonable apprehension” that at least six of the ConCourt justices “are tainted by bias” as they were part of the bench that sentenced him to 15 months in prison without the option of a fine for contempt of court.
Attorney for Zuma and the MK Party, Nqobile Zungu, said in his affidavit that Zuma has accepted the contempt judgment (and the later judgment refusing to reverse or “rescind it) as final. Neither he nor the MK Party were seeking to reargue or challenge the previous decisions of the ConCourt, he said. “That is water under the bridge.”
But the justices who sat on the bench that sent him to prison were “bound to seek to interpret their own previous decisions which now lies at the heart of the issues arising in this appeal in such as way as to automatically differ with the unanimous view of the Electoral Court,” said Zungu.
Zungu added that, in any event, some of the issues central to the appeal, “were mostly already prejudged by the benches in the two relevant matters dealing with the finding of contempt of court accusation and recission of the related order, respectively.”
He said IEC commissioner, Judge Dhaya Pillay, had recused herself from the commission’s decision over the objection — “exactly and only” because she had been acting at the ConCourt when it found Zuma in contempt. “The above-mentioned Honourable Justices are in exactly the same position as her,” said Zungu.
So many recusals would mean that the apex court would not be able to entertain the case as its quorum is eight justices.
But Zungu said that in any event the IEC should not have gone to the ConCourt on appeal as there were no exceptional circumstances warranting it bypassing the Supreme Court of Appeal.
“There is absolutely nothing exceptional about a single objection pertaining to a single candidate out of some 15,000 other candidates ... The manufactured crisis, emergency, general panic and pandemonium caused by the candidature of Mr Zuma for parliament is mainly of a political rather than of a legal nature,” he said.
Zungu said that the “avalanche” or “frenzy of litigation” against the MK Party only started “as a reaction” to Zuma's announcement in December that he would not vote or campaign for the ANC but for the MK Party.
“Before that the MK Party spent 4 months as a registered party with zero litigation against it.”
The MK Party and Zuma also argue that the appeal is not urgent and dispute the commission’s grounds of appeal, saying the appeal has no reasonable prospects of success.
They have asked the court to deal with the recusal issue before it considers the IEC's application for leave to appeal.
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