MK party wins Electoral Court case to allow Jacob Zuma to contest elections

9 Apr 2024

The Electoral Court has upheld the appeal by the MK party in its bid to keep former president Jacob Zuma on its parliamentary candidate list.

The uMkhonto Wesizwe (MK) party has continued its winning streak in the courts and will ensure that the face of its campaign, former president Jacob Zuma, is not removed from its Parliamentary lists.

The Electoral Court ruled on Tuesday afternoon that it was granting the MK party leave to appeal and that the objection against Zuma’s candidacy to become a Member of Parliament had been set aside.

“The application for leave to appeal is granted. The appeal succeeds. The decision of the Electoral Commission of 28 March 2024 in terms of which the Electoral Commission upheld Dr [Maroba] Matsapola’s objection to the second applicant’s candidacy (Mr Zuma) is set aside and substituted with the following: ‘The objection is hereby dismissed’,” the order reads.

Zuma is an integral part of the MK party’s campaign as he has drawn large crowds and support for the party, which was officially registered in September 2023.

However, his appearance on the party’s candidate list came under scrutiny as Zuma appeared to violate the provision in the Constitution that bars candidates who have received a 12-month or more prison sentence, without the option of a fine, within the last five years. A member of the public objected to Zuma’s nomination and the IEC upheld the objection, leading to the MK party appealing in the matter.

Appeal ‘futile’

In a statement issued on Tuesday evening, the IEC said it noted the Electoral Court’s order on Zuma’s candidacy, as well as another order upholding the DA’s application to allow voters to cast their ballots at honorary consulates abroad rather than just high commissions or embassies.

“Furthermore, we have noted that the orders were issued without reasoned judgment. In order to understand the basis of the conclusions [reached in both matters, it is important that reasons are provided. We will accordingly request the Electoral Court to hand down reasons for the orders made,” said the IEC.

“Naturally the Commission is taking legal advice on both matters and will chart a way forward based on such advice as well as reasoned judgements that it may receive, hopefully, in the not-too-distant future.”

Election expert and former IEC commissioner Terry Tselane told Daily Maverick that the order handed down by the Electoral Court came as no surprise.

“For me, instead of actually dealing with the merits, just in terms of the procedure after saying that the IEC has the legal powers to administer section 47 of the Constitution that deals with the National Assembly, it has nothing to do with the IEC.

“This is not the first time that a case like this has gone to the Electoral Court. Remember there was an objection against the candidacy of Winnie Mandela in 2009 and the Electoral Court also dismissed the objection and allowed Mrs Mandela to become a candidate,” he said.

Tselane said that he did not believe that the IEC would appeal against the ruling.

“I think the IEC will not appeal it. It would be futile for them to do so because they will still lose. It will also start interfering with their processes as they are preparing for elections. The IEC has nothing to gain by going to the Constitutional Court,” he said.

Arguments

Judges listened to arguments for and against Zuma’s disqualification from standing for public office on Monday morning at the Electoral Court, sitting at the Johannesburg Division of the High Court in Gauteng.

The MK party took the IEC to court as it believed there was a “deficiency” in the objections to Zuma being a candidate on the parliamentary list.

Representing the MK party, Dali Mpofu SC argued that the IEC had no authority to implement section 47 of the Constitution against 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.

He also argued that the commission had no jurisdiction to implement section 47 against the former president.

In 2021, Zuma was convicted of being in contempt of court and handed a 15-month sentence for his refusal to testify before the Zondo commission of inquiry into State Capture, which he established.

He was then released on medical parole, but this decision was overturned in court.

When he had to be incarcerated, the 81-year-old former president received a remission of sentence last year, for the remainder of his term.

Read more in Daily Maverick: JZ’s Electoral Court victory makes final weeks before SA’s Elections 2024 alive with possibilities

Tembeka Ngcukaitobi SC represented the IEC, which argued that it was well within its rights to disqualify Zuma from standing for public office.

Ngcukaitobi said those sentenced to 12 months or more in prison should not participate in public office as the duration indicated 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 had been 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.

Read more: The unstoppable impunities of being Jacob Zuma — with a lot of help from the ANC

MK victories

MK party spokesperson Nhlamulo Ndhlela spoke to the SABC soon after the ruling was handed down.

“This is a spiritual process, the MK party, for it being established as a catalyst for change, is really a blessing for our people.”

He said the party continued to emphasise that people “want president Zuma back inside the Union Buildings as the president. The people want him there. People are tired of the status quo under the Cyril Ramaphosa-led government.

“We want lights, we want water, the people want homes. We will continue on our journey to get a two-thirds majority [to change the Constitution so Zuma can serve a third term]. This is important for our members, downtrodden citizens of our country who want to see change,” Ndhlela said.

He insisted that IEC commissioner Janet Love should have resigned after showing her alleged bias regarding Zuma’s participation in the elections.

In court papers filed by the MK party, they claimed the IEC prematurely judged the issue around Zuma’s participation in the elections and could therefore not have arrived at a different or fair outcome.

In January, Love confirmed at a press briefing that Zuma did not meet the requirements to register as a candidate to stand in this year’s elections.

In the same court, the MK party also recently defeated the ANC’s bid to have its party registration declared unlawful.

The ruling, handed down on 26 March, said: “We therefore find there is nothing unlawful about the registration of the MK by the DCEO [Masego Sheburi] on 7 September 2023. In regards to costs, costs are customarily not awarded in this court and we are not persuaded to depart from this custom.”

In 2023, the ANC also submitted an appeal to the IEC regarding the use of the name and logo of their disbanded military wing being used by the new political grouping, but was unsuccessful. DM

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Appeal ‘futile’

Arguments

MK victories