Concourt should avoid ‘absurdity’ of 'serious offender' Zuma standing for office — Corruption Watch

Advocate Dali Mpofu. (Photo: Leila Dougan)

By Dianne Hawker

11 May 2024

Judgment was reserved by the Constitutional Court late on Friday night after arguments were heard in the IEC’s bid to appeal the Electoral Court’s ruling that former President Jacob Zuma was eligible to stand for Parliament.

Corruption Watch, the Ahmed Kathrada Foundation and Council for Advance of the South African Constitution have supported the Independent Electoral Commission’s (IEC) assertion that the Constitution disqualifies former President Jacob Zuma from being elected to the National Assembly.

The three parties joined the case, brought to the Constitutional Court by the IEC, as Amicus Curiae (friends of the court) to advance additional arguments.

The IEC brought the case before the Concourt on appeal from the Electoral Court. The main case relates to whether Zuma is eligible to appear as a National Assembly candidate for the MK party after the IEC initially ruled that he was barred from doing so due to a 15-month conviction for contempt of court.

Section 47 of the Constitution dictates that a person who is convicted of an offence and sentenced to more than 12-month imprisonment without an option of a fine is not eligible to be a member of the National Assembly.

It adds that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.”

The electoral court found that, although Zuma had been sentenced for more than a year, the proviso about being able to appeal his sentence placed his sentence outside the realm of disqualification.

Earlier in the day, the court dismissed a counter-application by Zuma, calling for the recusal of six of the court's judges.

Read more in Daily Maverick: Concourt dismisses Zuma bid to have judges who convicted him removed from IEC case

Representing Corruption Watch, advocate Max du Plessis SC, said the Constitution deliberately disqualified “serious offenders” from joining the National Assembly and the electoral court’s interpretation of the section subverted this intention.

“This court explained that the denial of the right of appeal to Mr Zuma was permitted by the Constitution. It empowers this court to entertain matters by way of direct access. It’s the Constitution itself that saw fit to take away the right of appeal. Where direct access is warranted in these types of cases, said the court, the right of appeal simply does not arise,” he said.

He said Zuma’s interpretation of section 47 of the Constitution was incorrect.

“A person sentenced by this court for a very serious crime who poses a grave risk to the Constitution would remain eligible to contest elections, but a person that is sentenced by a lower court for a far less serious crime would be disqualified.”

Former president Jacob Zuma waves at a rally during the ANC and MK party court case about the MK party trademark heard at Durban High Court on 27 March, 2024, in Durban. (Photo: Gallo Images/Darren Stewart)

‘Absurdity’ if Zuma allowed to stand — Du Plessis

Du Plessis said if Zuma was allowed to stand for a National Assembly position, it would create “an absurdity”.

“A unique benefit would be gifted to persons who denigrate this court and whose exceptional conduct demanded this court’s exceptional response. Yet they are somehow, exceptionally immunised from being disqualified for holding office. We say that leads to an absurdity that is also a perversity. It runs the risk of the perversion of the Constitution as demonstrated by the facts of this case. It would perversely mean that this court’s orders for contempt are rendered an empty lightning bolt,” he said.

Advocate Nick Ferriera, representing Casac and the Kathrada Foundation, tackled the question of the effect of the remission of Zuma’s sentence, which was also considered by the Electoral Court. In August 2023, President Cyril Ramaphosa reduced the sentences of more than 9,000 prisoners and Zuma benefited by having his time in jail reduced.

Ferriera argued that the law does not treat remission and pardons in the same way.

“In law, the effect of President Ramaphosa’s remission of former president Zuma’s sentence was merely to constitute an effective reduction of the time that had to be served.

“It is helpfully contrasted with the legal consequence of a pardon, which does something different. A pardon reaches back in time and changes the legal consequence of that conviction and sentence, and effectively expunges it. Once there is a pardon, it is as if there never was any sentence or conviction.

‘Remission not a pardon’ — Ferreira

“We submit that a remission of a sentence is quite different. It does not have the effect of expunging the legal consequences of the conviction and sentence.”

Ferriera added that the “ineligibility to stand for election to the National Assembly is a very serious ineligibility”.

“It is something that should not be imposed lightly. It is something that the drafters of the Constitution decided should be imposed in proportion to the criminal office. They decided that those who have been convicted and sentenced to a period of more than one year, that is where that calibration — the link between the gravity of the crime and the ineligibility — comes in,” he said.

The IEC’s Advocate Tembeka Ngcukaitobi SC took a similar view that the Constitution’s drafters wanted to deliberately exclude people who had committed certain serious crimes from entering the National Assembly.

“The exclusions of pardons and remissions from section 47(1) e is not an accident of history but it was a careful policy choice made during the drafting of the Constitution.”

He referred to reports on the drafting process from 1995, saying they showed the rationale of the drafters.

“They found that a pardon expunges the crime and the sentence, and therefore it was not necessary to include it. But pertinently and more importantly for our case, the drafters also applied their mind to the relationship between the disqualification and remission of sentences.

They specifically referred to remissions of sentences, which they said could occur where a person’s 20-year sentence has been reduced to a 10-year sentence. And they squarely, they answered the question which is before the court today, they said in a remission the judiciary-imposed sentence is not reduced, merely the length of the execution,” he said.

Judge Leona Theron debated the IEC’s interpretation at length, asking whether Zuma’s right to appeal was not protected as a fundamental right.

“My concern is that we must apply the law equally and the same in every matter. All principles, principles of interpretation as well should be the same,” she said.

Ngcukaitobi argued that some rights are deliberately limited by the Constitution.

“The text (of the Constitution) says sentence, it does not say sentence served. Whatever the president does about the remission, he can never sentence,” he said.

mpofu mkhwebane Advocate Dali Mpofu. (Photo: Leila Dougan)

‘Not an ordinary conviction’ — Mpofu

Advocate Dali Mpofu, representing Zuma, raised several points of argument, including that the contempt of court conviction was not an ordinary conviction. He explained that because the contempt ruling originated in civil proceedings as opposed to criminal proceedings, it did not count as a conviction.

Read more in Daily Maverick: Expulsions from MK party point to deep instability and mistrust

“This is not even a conviction, it is a committal order. Unsuspended committal order for contempt for legal categorisation… Which drafters would have contemplated that one day, there will be a criminal conviction, which is a result of urgent proceedings in motion court, by direct access, denying all the 15 rights listed in section 35 (3) (of the Constitution)? Not only were those rights denied, they were used as punishment,” he said. He explained that because the contempt ruling originated in civil proceedings as opposed to criminal proceedings, it did not count as a conviction.

Justice Nonkosi Tshiqi questioned this line of argument, asking how Zuma was sent to jail without a conviction.

“It just bothers me that if we know that a person was convicted and sentenced and actually did serve a period of imprisonment, we actually turn around and say this person has no record of previous conviction. It doesn’t sit well with me. It looks artificial, it sounds artificial. Because then was he sentenced or not? Did he serve time in prison?” she asked.

Mpofu said there was a need to distinguish between civil contempt and criminal conduct.

Justice Steven Majiedt questioned Mpofu’s assertion that Zuma’s eligibility to stand in the National Assembly could be determined by Parliament during the first sitting.

“This will be our seventh national election. In the past six elections, do you know of any instance where the National Assembly determined eligibility after the elections?” Majiedt asked.

“That’s the job of the National Assembly. If you do something there and they want to kick you out even just for the day, they will kick you out for the day. But if they want to kick you out for life, because you fall under 47(1) e, they’ll kick you out for life,” Mpofu said.

Theron was also concerned about this line of argument from Mpofu, and questioned whether someone who was ineligible to stand for office could be allowed to be on a party list.

“If a candidate is not allowed to hold public office, they are also not allowed to stand for office?”

Mpofu doubled down, saying it was possible to be ineligible to stand for office at the time of election and then become eligible at a later stage.

‘We don’t interpret legislation’ — Theron

Theron followed up: “Mr Mpofu, we don’t interpret legislation having regard to particular people’s situations. We look at the legislation and we see what it means.”

She was also concerned with Mpofu’s interpretation of the conviction.

“In terms of our law, there is no distinction. Once the conviction takes place, there is no distinction after that. Before that, in the proceedings, the proceedings are different. But civil contempt is recognised in our law as an offence. And once a person has been found guilty of civil contempt, that is a conviction,” she said. Mpofu disagreed, saying the law does make a distinction between civil contempt and a criminal offence.

Mpofu also argued that the Zuma matter was unique and the drafters of the Constitution would never have imagined a scenario like this, in which the Concourt made an unprecedented ruling of contempt.

“It has never happened and it is unlikely to ever happen again. So it was a particular situation influenced by the fact that Mr Zuma was a Head of State,” he said.

Mpofu also argued that the right to stand for office, and the right to be eligible for the National Assembly, are two separate rights.

“You might be ineligible at the time of the submission of the list, and then become eligible. But vice versa also holds. You might be eligible at the time of the list but something happens in the two or three months which makes you ineligible. To conflate those two things is just legal sabotage,” he said.

The court heard arguments until after 8pm on Friday. It has reserved judgment. DM

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Politics

‘Absurdity’ if Zuma allowed to stand — Du Plessis

‘Remission not a pardon’ — Ferreira

‘Not an ordinary conviction’ — Mpofu

‘We don’t interpret legislation’ — Theron