There needs to be finality on former president Jacob Zuma’s eligibility to stand in the election before election day, the Electoral Commission said in written legal argument to the Constitutional Court on Monday.
“There is a substantial risk of a disputed electoral outcome if Mr Zuma is allowed to stand despite his disqualification, which would erode the foundations of our constitutional order and the rule of law,” argued the commission’s counsel, Tembeka Ngcukaitobi.
Voters should know if he is eligible to stand before they go to the polls. It was in the interests of justice for the ConCourt to decide this case “now, not after the elections”.
Ngcukaitobi’s written argument was filed ahead of the hearing scheduled for Friday. The Electoral Commission urgently went to the apex court to appeal against an Electoral Court judgment that cleared the way for Zuma to stand for parliament as one of uMkhonto we Sizwe’s (MK Party's) candidates in the elections.
The commission had upheld an objection to Zuma’s candidacy on the basis of section 47(1)(e) of the constitution, which disqualifies people who have been sentenced to more than 12 months’ imprisonment from being MPs.
Ngcukaitobi said the reasons given by the judges of the Electoral Court for their order “reflected a deeply flawed interpretation of the constitution, which should be urgently corrected by this court”.
Last Friday, Zuma and the MK party filed their answering court papers and a counter application, seeking for the recusal of five justices who had been part of the bench that sentenced Zuma to 15 months in prison for contempt of court.
Ngcukaitobi said there was “no basis” for their recusal and that Zuma and MK Party had fallen “far short of the ‘formidable’ test for recusal” set by previous judgments of the Constitutional Court.
“The only pleaded basis for recusal is that the justices ‘are bound to seek to interpret their own previous decision’. Judges do that all the time. And besides, this appeal does not require any interpretation of the Zuma contempt judgment,” he said.
He said the only question before the court was whether Zuma was disqualified to stand under section 47(1)(e). There was no reason the ConCourt could not impartially answer that question.
The commission’s legal argument concentrated on the reasoning of the Electoral Court. Judge Dumisani Zondi’s judgment — with which all the other judges agreed — found that Zuma was not hit by the disqualification in section 47, because the section contains a proviso: that the disqualification only kicks in once an appeal against a sentence has been decided.
But there are no appeals from the Constitutional Court. Because Zuma could not appeal against the ConCourt’s sentence, his sentence was not a “sentence” under section 47, said Zondi.
Ngcukaitobi said Zondi was “wrong” for several reasons. These included looking at the purpose of the proviso. It was not to exclude those who had been sentenced by the Constitutional Court but rather to deal with that time between a lower court sentencing someone and an appellate court making a final decision: “There is no final sentence until the final court of appeal decides. Where the final court has made the decision, then there is a final sentence.” Here, the ConCourt was the final court.
The majority of the Electoral Court also supported judge Lebogang Modiba’s view that Zuma was not hit by the disqualification because his sentence had been effectively reduced to three months due to a general remission of sentence granted by the president in August.
But Ngcukaitobi said Modiba’s reasoning was wrong because section 47(1)(e) “focuses on the sentence imposed, not the length of the sentence served”.
Looking at the purpose of section 47, he said it was “an important check on the power” because it, for a time, kept lawbreakers out of the National Assembly. It recognised that only serious offences would disqualify someone: the 12-month sentence component was there to indicate the severity of the offence.
“That signal of seriousness applies — and gives effect to the purpose of section 47(1)(e) — no matter how long the offender ultimately serves.”
He said Modiba’s reasoning undermined the constitution where it said that judicial authority is vested in the courts: “It is the role of the judiciary to sentence offenders.”
“In the end, the plain text of section 47(1)(e) answers this case,” said Ngcukaitobi.
Zuma “was convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine. He is disqualified,” he said.
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