Representing the uMkhonto Wesizwe (MK) party in the Electoral Court on Monday, Dali Mpofu SC argued that the Electoral Commission of SA (IEC) had no authority to implement section 47 of the Constitution against the party’s Jacob Zuma and disqualify him from standing for public office.
The MK party challenged the interpretation of section 47(1)(e), which sets the conditions under which a convicted citizen may not take public office.
Mpofu argued that Zuma spent only three months in prison after he received a remission of sentence, which rendered his initial sentence of 15 months irrelevant.
“The point of the matter is that the synonyms for remission are forgiveness in the biblical sense, cancellation, extinguishing and set-aside. The legal fact of remission is to reduce a sentence… The President has the power to pardon even the grossest serial killer,” he said.
The IEC had sustained an objection to Zuma’s candidature on the MK party list for the National Assembly because he had a criminal conviction with a sentence exceeding 12 months without the option of a fine.
In 2021, Zuma was convicted of being in contempt of court and sentenced to 15 months’ imprisonment for his refusal to testify before the Zondo Commission of Inquiry into State Capture, which he established.
After being released on medical parole, the 81-year-old former president received a remission of sentence in 2023, for the remainder of the term. Zuma served three months in prison.
Section 47 of the Constitution sets out that: “Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly…”
However, subsection (1)(e) states: “Anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic…” must be disqualified.
Mpofu argued that the decision to disqualify Zuma should lie with Parliament and not the IEC as section 47 of the Constitution dealt with the National Assembly and not the Electoral Committee.
He argued that the IEC only has jurisdiction to implement section 190 of the Constitution, which says it must “manage elections of national, provincial and municipal legislative bodies in accordance with national legislation”.
Read more in Daily Maverick: Fact Check — Can Zuma stand for election if he has a criminal record?
Mpofu said disqualifying Zuma from standing for public office would not only infringe on his rights, but also those who voted for the MK party.
“In South Africa, more than any other country, we should be extremely cautious before we deny the political rights of anybody. I do not have to tell this court about the reasons for that. The reason we are where we are is because people were denied the opportunity to stand for political office and that is why we have a Bill of Rights.
“We cannot afford as a country to disenfranchise, whether it is President Jacob Zuma or the MK party… They cannot be disenfranchised at a whim. We are dealing with section 19 — the right of people who want to vote for President Zuma and the party. We are also dealing with the rights of Zuma which have been infringed,” he said.
IEC arguments
Tembeka Ngcukaitobi SC represented the IEC, which argued that it was well within its rights to disqualify Zuma from standing for public office.
Ngcukaitobi argued that contempt of court was generally classified as a criminal offence and that while the contempt case against the former president was both criminal and civil, the bottom line was that he was found guilty.
“So, we are dealing with someone who is a convict, convicted of an offence. The conviction complaint has no bearing,” he said.
Ngcukaitobi said the IEC was correct to uphold objections made regarding Zuma appearing on the MK party’s parliamentary list. He said the IEC had the power, drawn from both the Electoral Act and Constitution, to do so.
He said the Constitution allowed any person, including the chief electoral officer, to object to a nominee’s candidature and it was the IEC’s prerogative to make the final decision on objections.
“Once that has happened, the IEC has a copy of the declaration and objection and then the commission must decide on the objection. Section 47 [of the Constitution], subsection 2 says a person who is eligible may be subject to limits as per national regulations,” he said.
He rejected Mpofu’s notion that Parliament could decide who qualified as a member, as the first sitting of the National Assembly is a meeting of those who qualify to be part of it.
Ngcukaitobi said those sentenced to 12 months or more in prison should not participate in public office as the duration indicates the seriousness of the crime. He said while Zuma was released on remission and spent only three months in prison, it did not change the fact that he was sentenced to 15 months.
“The remission did not change the sentence. It did not say that ‘you are no longer sentenced to 15 months, you are sentenced to three months’. The executive can say, ‘We are forgiving you, you are going home.’ The fact that the President has the power to forgive does not mean you can go back and rewrite the sentence.
“Why do we have section 47(1)(e)? It is because it is a legislative determination that certain convictions would preclude a person from exercising their right to be in Parliament,” he said.
Judgment will be delivered at 2pm on Tuesday, 9 April. DM