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By Faizel Patel

Senior Digital Journalist

‘Law breakers should not be lawmakers’: Ngcukaitobi argues that Zuma does not qualify for Parliament

The IEC said Zuma and the MK party knew in February that the former president would not be able to contest in the election.

The counsel for the Electoral Commission of South Africa (IEC) Advocate Thembeka Ngcukaitobi has argued that it does not matter how former president Jacob Zuma was convicted for contempt of court – what matters is that he was found guilty.

The uMkhonto weSizwe (MK) Party is battling the IEC in the electoral court, sitting in Johannesburg on Monday, in a bid to overturn its decision to bar Zuma from being one of the party’s candidates for parliament after the 29 May polls.

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The objection to Zuma’s candidacy was upheld by the IEC on the grounds that the constitution states that no person who was convicted and sentenced to more than 12 months’ imprisonment without the option of a fine can be elected to parliament, unless a five-year period has lapsed after the conclusion of the sentence.

Watch: Ngcukaitobi tells Electoral Court that Zuma was convicted of a crime

Length of Zuma’s sentence

Ngcukaitobi argued that Zuma was found “guilty of a crime of contempt”.

“Was this an offence? The answer is yes. Was there a guilty verdict? The answer is yes. Are we dealing with a convict? The fact here is that we are dealing with someone who has been convicted of a crime.”

ALSO READ: MK party vs IEC: ‘Zuma was not pardoned, he received a remission’ – Mpofu

Ngcukaitobi told the court that if there was an appeal by Zuma, it would have to be taken into account.

“We must not conflate this with the period actually served and the date of his release. The remission did not change the sentence. It simply determined the period of release. The executive cannot say you are sentenced to 15 months, it can say that we forgive you, you are now released.

“The fact that the president says, ‘I don’t want to keep sick people or old people in prison because I have the power to do that and forgive’, does not mean that you can go back and rewrite the sentence.”

Ngcukaitobi said President Cyril Ramaphosa’s proclamation on remission was never to undo a sentence imposed.

“What it did is that it rendered that sentence reduced. The president (in this case) brought that completion forward because he was released after three months.”

‘Law breakers should not be lawmakers’

Ngcukaitobi said Section 47 (1) (e) of the constitution speaks about the sentence imposed by the court.

“The reason we have Section 47 (1) (e) is because it is a legislative determination that certain convictions and certain offences would preclude a person from exercising their rights to come to Parliament.

“The reason they put it at 12 months is because it is a signal of the seriousness not only of the conviction but of the offence, and the reason they also make it clear that there should be no option of a fine because what the constitutional drafters are trying to tell us is that serious law breakers should not be lawmakers,” Ngcukaitobi argued.

‘MK party’s application has no merit’

Ngcukaitobi said Zuma and the MK party knew in February that the former president would not be able to contest in the election.

He maintained that, “Zuma is not qualified to be a candidate right now” and does not qualify to go to the National Assembly.

Ngcukaitobi implored the court to dismiss the MK party’s application because it has no merit.

“If you rule in MK party’s favour, you will have people sitting in the National Assembly who do not qualify.”

Earlier, Zuma’s legal representative, advocate Dali Mpofu, argued that the IEC had no power to determine membership of the National Assembly and described its attitude towards the former president to the apartheid regime denying people their political rights.

ALSO READ: Mpofu: IEC has no power to rule on Zuma’s exclusion