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‘Unfair’ — MK party appeals decision blocking Zuma from polls, cites ‘deficiency’ in objections

‘Unfair’ — MK party appeals decision blocking Zuma from polls, cites ‘deficiency’ in objections
IEC’s job is to deliver free and fair election, not battle Jacob Zuma in court. Illustrative image | Jacob Zuma. (Photos: Ihsaan Haffejee / AFP | iStock | Gallo Images / Misha Jordaan)

The MK party has appealed the decision of the Independent Electoral Commission to uphold the objections to its interim leader Jacob Zuma appearing on parliamentary lists.

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 ‘[email protected]’. The correct email address of the MK Party is [email protected], alternatively [email protected].

“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

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Comments - Please in order to comment.

  • Graeme de Villiers says:

    Of COURSE they appealed!

  • Denzil Arendse says:

    Im not a fan of Zuma but how many the ANC members was is jail and why are the corrupt members still part of the ANC

    • Fanie Rajesh Ngabiso says:

      Please stop doing the either/or thing people. Every instance of the correct application of law is a good thing and should be celebrated by all of us.

      What we need first is the correct trend, which if encouraged and supported by all will lead to the improvements we all want so much.

    • Rodney Weidemann says:

      In answer to your question: how many ANC members have been in jail, the answer is: pitifully few. And I doubt any of them have been sentenced to a term of 15 months or more… sadly.

    • Rodney Weidemann says:

      In answer to your question: how many ANC members have been in jail, the answer is: pitifully few. And I doubt any of them have been sentenced to a term of 15 months or more… sadly.

  • Rory Macnamara says:

    Reduced sentence on medical grounds and now he wants to be a parliamentarian. Shabby Shaik, Trump and Zuma must have come from the same mould. sadly I cannot identify it!

  • Con Tester says:

    It says “sentenced” in the Constitution. Not “served” or “reduced to” or anything of a similar bent. Only “sentenced” without any ambiguity.

    The ability to read for meaning really is important. And specific words have specific meanings that must be respected, otherwise the basis for communication and the exchange of ideas goes out the window, and we end up in Wonderland at the mercy of useless dolts:

    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

    ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

    ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”
    ― Lewis Carroll, Through the Looking Glass

  • ST ST says:

    Since there’s apparently a clear law on this, which has been applied to other people, the IEC should have made a firm decision earlier on based on that law. This tooing and froing asking for objections etc clouded the waters and created room for unfounded grievances

    The SA legal system that seems to work as hoc. One minute we can take a case to ICC, another we can’t bring the Guptas in, another we can’t give MK an unequivocal NO!

  • Les Thorpe says:

    And after this appeal is rejected, what’s the next trick? An IEC member recusal application? Or perhaps a riot?

    • Gavin Hillyard says:

      MK will cause mayhem come May 29. I pray that the security forces are prepared – unlike the July 2021 riots. Could they possibly have caches of heavy weapons?

  • Rae Earl says:

    These people act like retards. Read the 15 month sentence as it is, not as you would like it to mean. This man is the greatest criminal this country has ever produced. He placed unqualified scoundrels in critical positions and they wrecked the country and now he wants to make a come-back, probably to get his Gupta buddies to return and finish their looting.

  • Skinyela Skinyela says:

    The strategy is to:
    Confuse
    Conflate
    Kick for touch

    BS

    I must give it to them though, they play it so well!

    Judges must begin to come down hard on lawyers who bring hopeless cases to the courts.

    How do you divorce eligibility to stand as candidate MP and eligibility to become an MP?

    Sentenced vs served…

  • Jean Racine says:

    After reading the “legal reasoning” behind their appeal, I would not be surprised they are represented by one Dali Mpofu SC.

    • Con Tester says:

      Nor would I be the least bit surprised if it’s the arch-Stalingradist Dilly-Dali Mpofu leading the charge, but one must of necessity keep a sharp eye trained on the IEC here. If it folds on Zuma’s ill-conceived appeal—and it is not at all clear that it won’t fold, given its history of opportune shiftiness—that in itself would constitute a monstrous illegality.

      Zuma was sentenced to 15 months in prison without the possibility of a fine. By the ConCourt, nogal. The Constitution is both clear and the supreme determining authority. By rights, this piece of theatre should be instantly dismissed before passing even the first hurdle.

      In any case, it’s not all gloom and murk since there’s a clock on things that expires on 29 May, so time isn’t on Zuma’s side.

  • Skinyela Skinyela says:

    Section 47(1)(e) only deals with the amount of the sentence, whether it is more or less than 12 months and whether it has an option to pay a fine or not.

    It does not concern itself with the question whether the proceedings, from which the sentence emanated,
    were criminal or civil proceedings.

    But we all know for whose consumption they are cooking this non-matter.

  • Hilary Morris says:

    If the IEC folds on this one, and allows Zuma in as a candidate, we can kiss the notion of free and fair elections goodbye. To the extent, of course, that we believe that to be the case at the moment. Quite terrifying how few good and honest brokers are to be found in ANY government establishment.

    • bigbad jon says:

      Why? Gayton Mckenzie was sentenced to 17 years for REAL crime yet he leads the PA, no problems with the IEC..

      • Graham Smith says:

        The ability to read for meaning really has a bearing on your understanding. Go read that section again. After 5 years of completing your sentence, you can try again. This 30% pass rate showing true colours. Shem!!!

        • Karen G says:

          Play nice – your comment is really uncalled for. Nowhere in this article does it elaborate regarding the 5 year sentence completion.

          • Gavin Hillyard says:

            Graham was telling it like it is Karen. Anyone following this story would know about the 5 year block. Not 5 year sentence completion. The crux is the sentence, not the time served. Anyone with a 12 month (or more) jail sentence cannot stand for 5 years. Pretty straightforward I feel.

        • bigbad jon says:

          The info on the 5 year limit to exclusion from being a candidate for elections wasn’t in the article or in previous news I had read on the subject. Having several degrees from SA and Europe I laugh at your 30% pass rate dig for the BS it is.

  • William Kelly says:

    Time for the IEC to use a legal strategy… Stalingrad comes to mind. Post May it won’t matter. And the dramatic irony would be sweet.

  • Jon Quirk says:

    The failure, back in 2008, to hold Mr Zuma to account, has come back again and again to haunt the ANC; when will they, or their ilk, ever learn that people with no conscience , indeed have no conscience,

    We need deep jails, with no keys or recourse, to throw the lot into them; are you listening Messrs, Malema, Koko, Zuma and Ace?

  • Mark Ditto says:

    The constitution, section 88(2), limits a person to two terms as president.
    How can Zuma think he will be allowed to do a third term?

  • Nkosiyaphi Mhlongo says:

    Actually, the MK party reduces itself and individualise the party, the members of the society must be aware that this is what they’ll be subjected to, Zuma wants to personalise everything to be about him, its Zuma’s way or High way. They mean they dont have capable leaders, this is a mere joke to me. I submit

  • rajenpadayachi19 says:

    Let’s hope for top position to be selected on merit.

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