Electoral Court of South Africa: While deciding the an appeal against the decision of the Electoral Commission of South Africa (“Commission”), upholding the objections lodged against the Umkhonto Wesizwe Political Party (“MK Party”)’s nomination of Jacob Gedleyihlekisa Zuma (“Zuma”), the former President of South Africa, the Court upheld his nomination. The Court comprising of DH Zondi, J.A.*, LT Modiba, J., S Yacoob, A.J., and Professors Ntlama-Makhanya and Phooko as Additional Members, granted the leave to appeal and set aside the impugned decision of the Commission. Background: In June 2021, the former President of South Africa, Jacob Gedleyihlekisa Zuma (“Zuma”) was found guilty of contempt of court of the Constitutional Court of South Africa and was sentenced to undergo an imprisonment of 15 months.
In August 2023, the current President, Cyril Ramaphosa issued a Proclamation Notice, approving the remission of 12 months on sentence of specified categories of offenders and parolees who were classified to be low risk, which also included Zuma.
In due course, the Umkhonto Wesizwe Political Party (“MK Party”) was registered as a political party, intending to contest the 2024 general elections. Zuma became a member of the MK Party and was nominated as a National Assembly election candidate.
In January 2024, one of the commissioners of the Electoral Commission of South Africa (“Commission”), Commissioner Janet Love (“Commissioner Love”), had allegedly made an indirect public statement upon Zuma’s eligibility as a candidate for elections, which drew major media attention.
In March 2024, the Commission received objections under Section 30 of the Constitution of South Africa (“Constitution”), against the candidacy of Zuma. In the same month, the Commission including Commissioner Love upheld the objections. Aggrieved by the Commission’s decision, MK Party and Zuma approached the Electoral Court for leave to appeal against the decision.
Issues before the Court and Court’s Decision
The Court was faced with the following issues and answered them accordingly:
1. Whether the Commission lacked the authority to make a determination under Section 47 of the Constitution?
The applicants submitted that the Commission acted ultra-vires to their powers in upholding the objection raised against the candidature of Zuma based on Section 47(1) of the Constitution. Whereas the Commission contended that there was no distinction in the Constitution or the Electoral Act between the eligibility for National Assembly membership and qualification to stand as a candidate.
Court’s Answer: The Court, while referring to Fedsure Life Assurance Ltd v. Greater Johannesburg Metropolitan Council, 1998 SCC OnLine ZACC 17, affirmed the correctness of the fact that the organs of the State, including the Commission were limited by the principle that they may not exercise power and perform other functions beyond those conferred upon them by law. However, the Court disagreed with the applicants’ submission against the Commission about the latter’s conduct being ultra vires. In that regard, the Court said that, Commission’s powers to determine Zuma’s ineligibility for membership of the National Assembly were sourced from Sections 27 and 30 of the Constitution.
The Court further clarified that Section 47 of the Constitution determines that if a candidate is unqualified to hold a government office, they are unqualified to contest for that office. Referring to Freedom Front Plus v. African National Congress1, the Court said that Sections 47 and 30 of the Constitution empower the Commission to determine the qualification for membership of the National Assembly.
2. Whether Commissioner Love prejudged Zuma’s eligibility and determined his candidature with bias?
The applicants submitted that Commissioner Love, and by extension the whole Commission, had prematurely prejudged the issue and could not arrive at a fair decision. Therefore, since the Commission did not distance itself from Commissioner Love’s comments, the applicants contended that there is a reasonable apprehension that the Commission was not able to make a fair decision and their decision was tainted with bias.
Court’s Answer: Court held that Commissioner Love’ s press statement was ambiguous and without specificity, as it only stated about an unspecified person legally categorised for exclusion from contesting elections. Therefore, the applicants’ submission that the Commissioner’s statement was directed towards Zuma only, was meritless.
3. Whether Zuma was convicted and sentenced as contemplated under Section 47 of the Constitution?
The applicants submitted that Zuma was not convicted as contemplated in Section 47 of the Constitution and therefore he was not within the operation of that Section, contending that his conviction was for “contempt of court”, the proceedings for which are both civil and criminal in nature. Since there was no criminal charge or proceedings as contemplated under Section 35 of the Constitution therefore, Zuma was not convicted for the same.
As for Zuma’s sentence, the applicants submitted that the Commission made an error in upholding the objections against Zuma’s candidature, because having sentenced by the Constitutional Court of South Africa, he could not have appealed, owing to which he could not be regarded to ‘having been sentenced’ under the purview of Section 47.
Responding, the Commission submitted that where a sentence was imposed by the highest court, the person becomes disqualified to contest elections immediately.
Court’s Answer: The Court rejected the applicants’ submission of non-conviction of Zuma. The Court said that Zuma had disobeyed a court order and therefore he was held guilty of contempt of court. The Court emphasised that Zuma would not have been incarcerated without conviction. Therefore, the Court found that Jacob Zuma was indeed convicted of crime..
Regarding Zuma’s sentence, the Court said that a person convicted of an offence and sentenced to more than 12 months’ imprisonment does not immediately become ineligible to be a member of the National Assembly, until an appeal against said conviction lies. To this effect, the Court found the Commission’s immediate disqualification of Jacob Zuma to be incorrect. The Court was of the view that the sentence imposed on Zuma was not what Section 47 contemplated. Section 47 contemplates.
Therefore, the Court held that the Commission’s upholding of objections to Zuma’s candidacy based on his sentence rendering him to be disqualified, was erroneous.
4. What is the legal effect of the Presidential remission of sentence on the sentence the Constitutional Court imposed on Zuma?
The applicants submitted that Zuma was unaffected by the disqualification under Section 47 due to the Presidential remission he had received, which had a ‘cancelling or extinguishing effect’ on his remaining sentence, making his effective sentence to be only nearly 3 months.
Court’s Answer: The Court disagreed with the applicants’ submission and stated that the Presidential remission was not a reprieve or a pardon, since a Presidential remission cannot undo a judicial action. The Court pointed out that Section 2 of the Constitution, binds the executive, leaving no scope for any prerogative powers, unless constitutionally authorised. The Court also highlighted the importance of the doctrine of separation of powers.
The Court noted that in the instant case, the President had only remitted certain sentences to address the overcrowding of correctional facilities in the light of the COVID-19 pandemic and the remission order was not specific to Zuma. The remission only reduced Zuma’s sentence but did not erase it.
The Court therefore granted the appeal and set aside the Electoral Commission’s decision to disqualify Zuma from contesting elections, and accordingly the objections received against the candidacy of Zuma were dismissed.
[Umkhonto Wesizwe Political Party v Electoral Commission of South Africa, (0015/2024EC) [2024] ZAEC 05, decided on 26-04-2024]
*Judgment by: DH Zondi, Chairman of the Electoral Court of South Africa
Advocates who appeared in this case :
Advocates for the Applicants: D Mpofu SC and P May
Advocates for the Respondents: T Ngcukaitobi SC and J Mitchell
1. [2009] ZAEC 4
