IEC's Janet Love did not prejudge Zuma candidacy, commission tells ConCourt

The Electoral Commission’s (IEC) Janet Love was not prejudging former president Jacob Zuma’s candidacy to stand for election when she answered a journalist’s question about his eligibility, the IEC said in written argument to the Constitutional Court this week. 

The IEC, Zuma and the uMkhonto we Sizwe Political Party (MK Party) filed further submissions on Tuesday, in response to directions from the apex court after it heard oral argument last Friday. In its directions, the ConCourt asked a series of specific questions related to an argument by Zuma and the MK Party that the IEC’s decision to disqualify Zuma was tainted by bias. 

Their argument was based on an EWN report of a press conference from about a month before the MK Party submitted its election list. EWN reported at the press conference a question was asked whether Zuma would be eligible. EWN said Love responded by saying the IEC was bound by the law and the constitution in terms of who was eligible to run for political office.

“That excludes anybody who has been given a sentence that was not the subject of any deferral, and in that sense, it is not ourselves but the laws of the country that would stand as an impediment for that candidacy,” she was quoted as saying. 

The argument that she had prejudged Zuma’s candidacy was unanimously rejected by the Electoral Court, which nonetheless found in Zuma and the MK Party’s favour on other grounds. But in the Constitutional Court, Zuma and the MP Party brought the argument back again, by way of a cross-appeal. 

In its submissions on Tuesday, the IEC said while it was true that Love was responding to a question specifically about Zuma, it did not follow that she was prejudging Zuma’s candidacy.

“The reasonable, objective and informed person would see Ms Love’s statement as a statement about the law,” said the IEC’s counsel, Tembeka Ngcukaitobi SC. 

“She spoke generically about the application of the law to a case such as that of Mr Zuma — and importantly to ‘anybody’ else. Ms Love was, in this way, anticipating and deflecting personal responsibility on the part of the commissioners for any ineligibility in respect of any candidate.”

But counsel for Zuma and the MK Party, Dali Mpofu SC, said Love “clearly prejudged the issue of Mr Zuma’s disqualification”.

“The last words, particularly the reference to ‘that candidacy’ were clearly unambiguously directed at the candidacy of Mr Zuma, which was the crux of the question posed to her. To argue otherwise is nothing but an exercise in obfuscation and self-serving semantics,” he said. 

A reasonable commissioner would not have pronounced on the disqualification of a candidate at a time when there was no objection and when she knew that she might soon be called upon to decide that issue without a tainted mind

—  Dali Mpofu, counsel for Zuma and the MK Party

Mpofu argued that Love ought reasonably to have known that this would come up as an issue for the IEC's determination. “Mr Zuma’s eligibility for membership was a topical issue, which journalists took a keen interest in, to a point where they enquired specifically. 

“A reasonable commissioner would not have pronounced on the disqualification of a candidate at a time when there was no objection and when she knew that she might soon be called upon to decide that issue without a tainted mind. It was almost a guaranteed certainty that such a scenario would play out,” said Mpofu. 

Ngcukaitobi said Love's statement of the law at the press conference was made on January 25, and it was only on March 8 that the MK Party submitted its list for parliament. Objections only came on March 26 and 27, he said. 

“The fact that Ms Love did not anticipate litigation cannot count against her. She was expressing her understanding of the legal position, rather than anticipating a potential legal challenge. Had she anticipated that the matter might end up in court, it is arguable that she would simply have not answered the question. But the fact that she answered in general terms, rather than address the question with specific reference to Mr Zuma, proves that she acted honestly and without malice,” said Ngcukaitobi. 

Ngcukaitobi said the true question the court had to grapple with was whether Zuma was disqualified from standing.

“If the court concludes that Mr Zuma is disqualified by the constitution, it would be a violation of the constitution to have his name on the list of candidates for the National Assembly.”

He said the ConCourt was in as good a position as the IEC to determine this question. If it decides that the law would disqualify him, it should give an order in those terms.

But Mpofu said the effect of Love’s participation in the IEC’s decision rendered it null and void. The apex court could not substitute its own decision for that of the IEC’s, it could only dismiss or uphold the appeal, he said.

“The Constitutional Court appeal of the IEC falls to be dismissed based only on the bias ground,” said Mpofu.