The Electoral Court was “deeply fractured” in its interpretation of the constitution, said the Electoral Commission in new court papers to the Constitutional Court, where the commission is seeking to appeal a decision that cleared the way for former president Jacob Zuma to stand for parliament.
“This court’s intervention is needed to resolve the split,” said the commission’s attorney, Keletso Bolani, in an affidavit to the apex court.
The commission filed a supplementary affidavit on Friday after the Electoral Court gave full reasons for its earlier order to uphold the appeal of Zuma and the uMkhonto we Sizwe Political Party (MK Party) over the commission’s decision that upheld an objection to Zuma’s candidacy.
The objection was made on the basis that he had been convicted for contempt and sentenced to 15 months in prison and section 42(1)(e) of the constitution disqualifies someone from being an MP if they have been sentenced to more than 12 months without the option of a fine.
Earlier on Friday, the court gave three separate sets of reasons for coming to its order, with its five members disagreeing and agreeing with different aspects of each others’ judgments.
The Electoral Commission had, even before reasons came, already applied urgently to the Constitutional Court for leave to appeal, saying there was simply no time to wait for the lower court’s reasons. On Sunday the apex court directed that it would hear the application on May 10.
Bolani said there were at least two bases underpinning the unanimous order of the Electoral Court. First was judge Lebogang Modiba’s reasoning that a general remission of sentence, which Zuma benefited from, had reduced his sentence from 15 months to three months.
Because of this reduction, he was not affected by section 47(1)(e) of the constitution which applied to those sentenced to 12 months or more, without the option of a fine. She was supported in this by the two non-judge members of the court, professors Nomthandazo Ntlama-Makhanya and Retselisitsoe Phooko and therefore “garnered the majority vote,” said Bolani.
Bolani said Modiba reasoned that section 47(1)(e) must be looked at with the final sentence of the section, which stated that a person will no longer be disqualified from being an MP “five years after the sentence is completed”.
“From this justice Modiba concluded that section 47(1)(e) is about the length of the effective sentence, not the sentence imposed by the court,” said Bolani.
But this was wrong, said Bolani.
“Even if, by virtue of remission, Mr Zuma’s sentence was completed on August 11 2023 when he was released, that does not change the fact that he was sentenced to 15 months”.
The second possible basis for the Electoral Court’s decision was to be found in justice Dumisani Zondi’s judgment. Bolani said it appear[ed] that justice Modiba and the two professors also agreed with Zondi’s reason for clearing the way for Zuma.
Zondi had not agreed with Modiba on the remissions issue. But he found Zuma was not “sentenced” within the meaning of the constitution because section 47(1)(e) 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”.
Zondi said because Zuma was sentenced by the apex court, there was no possibility of an appeal. “In my view, the sentence imposed on Mr Zuma cannot be said to be a sentence which the section contemplates” he said.
Bolani said this reasoning failed to consider that the Constitutional Court had already rejected an argument by Zuma on the availability of an appeal. He quoted from the ConCourt's 2021 judgment holding Zuma in contempt, which said: “The constitution categorically allows the denial of the right of appeal by empowering this court to entertain matters by way of direct access.”
Bolani said the proviso served “a modest purpose”. It was there simply to ensure that the disqualification from being an MP only kicked in when the sentence became final. “The proviso does not apply to the sentence that this court imposed on Mr Zuma for the simple reason that this court’s sentence was final and not subject to any further appeals ... The proviso does not somehow change this court’s sentence into a non-sentence,” said Bolani.
He said the split in the Electoral Court’s reasoning “entrenches the uncertainty about the proper interpretation and application of section 47(1)(e)”.
According to the court’s directions, Zuma and the MK Party must file their answering court papers on Friday. Legal argument must filed by the commission by May 6 and by Zuma and the MK Party by May 8.
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