Here’s why Electoral Court overturned IEC’s decision to bar Zuma’s candidacy

Former president Jacob Zuma was allowed to stand as a candidate for Parliament due to the uMkhonto weSizwe (MK) Party leader being unable to appeal his prison sentence.

On Friday, the Electoral Court released its much-anticipated full judgment as to why it overturned a decision of the Electoral Commission of South Africa (IEC) to bar Zuma from the MK party’s parliamentary list ahead of this year’s elections.

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The IEC has since turned to the Constitutional Court (ConCourt), seeking clarity on the interpretation of Section 47(1)(e) of the Constitution, which deals with the circumstances barring a convicted individual from holding public office.

The MK party had contested the IEC’s decision, arguing the commission lacked the powers to enforce Section 47.

The party argued before the Electoral Court that Zuma’s three-month imprisonment, followed by a sentence remission, nullified the relevance of his initial 15-month conviction.

Zuma sentence

In a summary of the judgment, the Electoral Court stated that it ruled in favour of the MK party’s appeal application “in the interests of justice” as there were “prospects of success”.

“Leave to appeal was granted on the basis that the matter raises issues which are of public interest, deals with the interplay between section 30 of the Electoral Act and section 47(1)(e), read with section 19(3) of the Constitution, and that there are prospects of success,” the court said on Friday.

Electoral Court chairperson, Dumisani Zondi indicated the judges were unanimous that Zuma qualified to go to the National Assembly because “there was no appeal available to him” and his prison term did not qualify as a “sentence”.

Zondi explained that section 47(1)(e) and section 19(3)(b) of the Constitution both had to be interpreted

“They have to be read simultaneously and harmoniously and in a manner that gives each equal weight.

“Section 19(3)(b) encourages citizens to participate in the electoral process by standing for public office and to hold office if elected.

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“On the other hand, section 47(1) is there to maintain the integrity of the electoral process by ensuring that those that campaign for public office and elected to hold office are not serious violators of the law. They are fit and proper persons to hold public office.

“The drafters of the Constitution recognised the fact that a person convicted and sentenced has a right to appeal against their conviction and sentence, upon leave being granted by the trial court or, if refused, on petition to the superior court.

“If that fact was not important to them, they would not have inserted the proviso which seeks to preserve the status quo pending the appeal processes. In other words, the conviction and sentence do not take effect until the appeal process has taken place alternatively a convicted and sentenced person has elected to not appeal the conviction and/or sentence.

“In my view the sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates,” the judgment read.

Zuma was sentenced to 15 months in prison for contempt after he defied a ConCourt ruling that compelled him to appear before the State Capture Commission.

Read the full judgment below:

Electoral Court judgment by Molefe Seeletsa on Scribd

Zuma remission

The judges, however, could not find common ground in regards to President Cyril Ramaphosa’s remission of Zuma’s sentence.

Zondi explained that Ramaphosa’s pardon had no effect on the fact of a sentence imposed on Zuma.

The judge pointed out that this affected only the period which Zuma had to serve.

“The president cannot change the sentence through the exercise of remission powers under section 84(2)(j) of the Constitution. To do that will constitute an impermissible executive interference in the judicial sphere.”

Judge Lebogang Modiba, with two other additional Electoral Court members concurring, found that Ramaphosa was within his rights as president to grant Zuma a remission because the Constitution allows him to do so.

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“The remission effectively reduced Mr Zuma’s sentence, absolving him from its legal consequences. As a result, Mr Zuma does not fall within the ambit of s 47(1)(e). This means that he is not disqualified from being a member of the National Assembly.”

While acting judge Seen Yacoob agreed with Modiba, she questioned the legal consequences of Zuma’s remission.

“The legal effect of the presidential remission did not reduce the sentence imposed on Mr Zuma as contemplated by the section, since the section required the reduction to be done by someone who considered the conduct of the person and the penalty imposed on the person in order for that person to escape the consequence thereof for purposes of membership of the National Assembly.”

No costs order was delivered in the judgment.