The Electoral Commission (IEC) has approached the Constitutional Court on an urgent basis to appeal against Tuesday’s Electoral Court order which paved the way for former President Jacob Zuma to run for election.
Source: Legal Brief
Electoral: IEC approaches ConCourt to set aside Zuma order
The Electoral Commission (IEC) has approached the Constitutional Court on an urgent basis to appeal against Tuesday’s Electoral Court order which paved the way for former President Jacob Zuma to run for election. Legalbrief reports that it has warned that if the matter is not finalised before the poll, there is a real risk that the erroneous finding of the Electoral Court will produce a disputed outcome ‘because a person who is not qualified would have been allowed to contest, in breach of the Constitution’. The IEC received 22 objections to Zuma’s eligibility to stand for the election based on the fact he had been sentenced to a 12-month prison term without the option of a fine. Zuma and the MK Party (MKP) appealed against the IEC’s decision. The IEC applied to the Constitutional Court for an order to declare that Zuma was convicted of an offence and sentenced to more than 12 months’ imprisonment and is accordingly not eligible to be a member of and not qualified to stand for election to the National Assembly until five years has elapsed since the completion of his sentence. The papers were served on the MKP and Zuma.
In his founding affidavit, IEC chairperson Mosotho Moepya said the Constitutional Court declared Zuma was guilty of the crime of contempt and sentenced him to 15 months’ imprisonment without the option of a fine on June 29 2021. ‘A few weeks into his sentence, Mr Zuma was released on medical parole. About two years later, the SCA overturned that decision.’ Moepya said the effect of the SCA’s judgment was that Zuma had to return to prison. TimesLIVE reports that on 11 August 2023, the same day Zuma returned to prison, President Cyril Ramaphosa granted thousands of prisoners a remission of their sentences to ease prison overcrowding, and Zuma was one of them. ‘The question presented is whether Mr Zuma was convicted of an offence and sentenced to more than 12 months’ imprisonment for the purposes of section 47(1)(e) of the Constitution, rendering him ineligible to stand for election to the National Assembly,’ Moepya said. This section disqualifies anyone ‘convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine’ from being a member of the National Assembly. It was in the public interest for the court to assume jurisdiction over this application and decide it before the election, Moepya said.
He noted that if the matter is not finalised before then, there is a real risk that the erroneous finding of the Electoral Court will produce a disputed outcome,‘because a person who is not qualified would have been allowed to contest, in breach of the Constitution’. TimesLIVE reports that Moepya said the court did not deliver reasons for its order. He said according to the election timetable published in the Government Gazette in February, the Electoral Court was required to consider and decide an appeal in respect of an objection to a candidate list by 9 April. He said the IEC requested the Electoral Court to urgently provide reasons for its order and these had not been provided when the commission filed its application for leave to appeal. ‘(The commission) brings this application, not out of disrespect for the Electoral Court, but because there is a pressing matter of national importance that needs to be addressed,’ it stated. The commission said it would file a supplementary affidavit when the Electoral Court’s reasons are furnished.
As previously reported in Legalbrief Today, the Electoral Court issued the order without reasons, which Freedom Under Law (FUL) argues is critical for the credibility of the electoral process. ‘The need for an urgent decision on this matter is understandable, considering that elections are imminent. However, the reasons for the decision are of importance, both for the eligibility of the candidate in question, and as a general precedent. The rule of law requires that courts give fully motivated reasons for their decisions,’ FUL said. The SACP also wants the court to release the full judgment of the order it handed down, which it says has ‘plunged the entire country into speculation’. It says the judgment will allow public scrutiny of the court’s rationale and allow the public and the IEC to determine whether there are any grounds for an appeal.
The IEC is expected to deliver this seventh national election in the most competitive landscape yet. In a Daily Maverick analysis, Ferial Hafajee notes that fears that violence and violent rhetoric can harm the stability of the poll are widespread, and anxiety about the institution is high even though it has a sterling regional and global reputation for sturdiness. ‘Its work is to focus with steely determination on the election and its nuts and bolts. Its work is not to get into distracting legal battles with the former President or even with the DA, which brought the suit against it for limiting where South Africans abroad can vote. The IEC should accept that the system in the Constitution has worked: the Electoral Court (created as a judicial appeal body to the IEC’s decisions) has made its findings. Let’s leave it there. If not, the IEC risks distracting its staff, who operate with a smaller budget than needed, in lengthy and time-consuming court battles that can be left to others to bring if they feel strongly enough.’ Hafajee points out that the IEC also risks making the institution the subject of Zuma’s strategy of using lawfare to fight his battles and prosecute his ambitions. ‘The MK Party is already gunning for the two women commissioners of the IEC, Janet Love and Judge Dhaya Pillay, in public statements and at rallies. Judge Pillay was on the Constitutional Court when Zuma was sentenced to 15 months’ imprisonment for contempt of court; Love reportedly questioned Zuma’s candidacy at a press briefing.’
News24 reports that Zuma yesterday broke his silence on the IEC’s initial decision to bar him from contesting for a seat in Parliament, saying ‘I have never committed a crime’. ‘The IEC did not say anything about the person who stole money and hid it under a mattress in his house. It targeted someone who had never even stolen a needle – Jacob Zuma. They said, “He will not be there”. Where does the IEC feature in politics?’ He conceded that the newly formed party is grappling with unscrupulous individuals. ‘We are not playing. Nobody is going to do whatever they want and not what the party and members want. We will do that even on the eve of the elections. If you are out of order, we will remove you. Those who have imposed themselves on the list conducted themselves in a corrupt manner and paid bribes (and) think we are not aware of their conduct.’ He made the remarks after the postponement of his private prosecution of Ramaphosa at the Gauteng High Court (see separate REPORT below). A second News24 report notes that Zuma’s revelations could be the reason behind a leadership shake-up in the organisation this week. He removed suspected July 2021 riots instigator Bonginkosi Khanyile from its youth leadership in a shake-up that saw three other senior leaders immediately removed. This is the second leadership change without an elective conference in as many months. The party maintains it will hold a conference after the elections.
Martin Plaut 