The MK party's 2024 general election campaign promised to give traditional leaders more power and a stronger voice. Illustrative image | Jacob Zuma. (Photos: Ihsaan Haffejee / AFP | iStock | Gallo Images / Misha Jordaan) 
The uMkhonto Wesizwe (MK) party says in its appeal documents to the Electoral Court that there is a “deficiency” in the objections to former president Jacob Zuma being a candidate on the parliamentary list.
The Independent Electoral Commission of South Africa (IEC) said in a briefing last week that it would be upholding submitted objections to Zuma’s participation in the elections.
The objections say his appearance on the MK party list is in violation of the 1996 Constitution which prohibits anyone who has been sentenced to direct imprisonment for 12 months or more with no option of a fine from standing in elections.
However, the MK party believes this view is flawed:
“Therefore, his effective or ultimate sentence was reduced to approximately three months which is less than the 12 months’ yardstick prescribed in section 47(1)(e) of the Constitution.
“It is clear that the purpose of the section is to deal with the ultimate sentence. On a purposive and contextual purposive interpretation, it should not matter whether the sentence would be reduced or removed as a result of an appeal or a Presidential pardon, reprieve or remission of sentence,” the documents read.
The basis of the argument is that while Zuma was sentenced to 15 months for contempt of court for failing to appear before the State Capture Commission in 2021, he only served three months of the sentence before being granted medical parole.
His medical parole was later challenged and set aside by the Constitutional Court, but President Cyril Ramaphosa granted Zuma remission of his sentence in terms of section 84(2) of the Constitution.
Contempt of court does not equate to criminal proceedings
Another point raised in the court documents is that contempt proceedings do not equate to criminal proceedings wherein a conviction of an offence can be made – they simply invoke a criminal sanction or threats such as the sentence of imprisonment imposed on Zuma.
“A declarator such as the one issued by the Court cannot amount to a conviction, a previous conviction or a criminal record as intended in the section.
“The second appellant [Zuma] was not an accused, he was not charged [with] an offence by a criminal court, he was not involved in any criminal trial proceedings, and he was not afforded fair criminal rights in terms of section 35(3) of the Constitution,” they read.
Upholding the objection was ‘procedurally unfair’
The MK party says it did not receive any correspondence before the announcement about Zuma’s disqualification.
“No such notification(s) were received apparently and mainly due to an error on the part of the IEC and the objectors in inserting the incorrect email address.
“The IEC inserted ‘mkparty.co.zo’. The objectors inserted ‘Info@mkparty.co.za’. The correct email address of the MK Party is info@mkparty.org.za, alternatively Jabulanikhumalo73@gmail.com.
“In the result, all of the above renders the decision to be procedurally unfair and/or irregular. Even in the event that these failures may be overlooked or condoned in the interests of justice, the decision will remain invalid upon the further grounds set out below,” the party’s submission reads.
The party also challenges the legitimacy of the second objection against Zuma’s participation, adding that the third respondent, Betheul Terrance Nkosi, indicated that he did not lodge the second objection.
IEC ‘lacks jurisdiction’ in the matter
The MK party also believes the IEC lacks the power, jurisdiction and/or authority to implement section 47(1)(e) of the Constitution which deals with regulating membership of the National Assembly.
“The authority of the IEC is limited to the question of qualification to stand as a candidate in an election in terms of section 30(1)(a) of the electoral Act, read with section 190(2) of the Constitution,” its documents read.
Read more in Daily Maverick: 2024 elections
Further, the party says the IEC is conflating the issue of standing as a candidate with eligibility to be a member of the National Assembly.
“In terms of section 57(1) of the Constitution it is the National Assembly, not the IEC, which may determine and control its internal arrangements ‘and’ make rules and orders concerning its business. The doctrine of non- encroachment (also) known as separation of powers or deference) prohibits the IEC from interfering in issues of membership eligibility for the National Assembly. Its role is limited to what is defined at section 30(1)(a) as,” the documents read.
Disqualification ‘bias’
The party believes the IEC prematurely judged the issue around Zuma’s participation and could therefore not have arrived at a different or fair outcome.
In January, IEC commissioner Janet Love confirmed at a press briefing that Zuma does not meet the requirements to register as a candidate to stand in this year’s elections.
“The Commission as a whole, and not just Judge Pillay, was legally excluded by bias from deciding the matter because on or about 24 January 2024 the IEC made an inappropriate public statement pronouncing upon the very issue raised in the relevant objection.
“Although the statement was specifically made by Commissioner Janet Love she was speaking for the whole Commission and her statement was endorsed by silence. All this is common cause,” the court papers read. DM