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MK’s Mpofu and IEC’s Ngcukaitobi wrangle over Zuma’s election disqualification

MK’s Mpofu and IEC’s Ngcukaitobi wrangle over Zuma’s election disqualification
Archive Photos: Dali Mpofu (left) and Tembeka Ngcukaitobi. EPA

Judges at the Electoral Court sitting in Johannesburg on Monday listened to arguments for and against former president Jacob Zuma’s disqualification from standing for public office.

Representing the uMkhonto Wesizwe (MK) party in the Electoral Court on Monday, Dali Mpofu SC argued that the Electoral Commission of SA (IEC) had no authority to implement section 47 of the Constitution against the party’s Jacob Zuma and disqualify him from standing for public office. 

The MK party challenged the interpretation of section 47(1)(e), which sets the conditions under which a convicted citizen may not take public office.

Mpofu argued that Zuma spent only three months in prison after he received a remission of sentence, which rendered his initial sentence of 15 months irrelevant.

“The point of the matter is that the synonyms for remission are forgiveness in the biblical sense, cancellation, extinguishing and set-aside. The legal fact of remission is to reduce a sentence… The President has the power to pardon even the grossest serial killer,” he said.

The IEC had sustained an objection to Zuma’s candidature on the MK party list for the National Assembly because he had a criminal conviction with a sentence exceeding 12 months without the option of a fine.

In 2021, Zuma was convicted of being in contempt of court and sentenced to 15 months’ imprisonment for his refusal to testify before the Zondo Commission of Inquiry into State Capture, which he established.

After being released on medical parole, the 81-year-old former president received a remission of sentence in 2023, for the remainder of the term. Zuma served three months in prison.

Section 47 of the Constitution sets out that: “Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly…”

However, subsection (1)(e) states: “Anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic…” must be disqualified.

Mpofu argued that the decision to disqualify Zuma should lie with Parliament and not the IEC as section 47 of the Constitution dealt with the National Assembly and not the Electoral Committee. 

He argued that the IEC only has jurisdiction to implement section 190 of the Constitution, which says it must “manage elections of national, provincial and municipal legislative bodies in accordance with national legislation”.

Read more in Daily Maverick: Fact Check — Can Zuma stand for election if he has a criminal record? 

Mpofu said disqualifying Zuma from standing for public office would not only infringe on his rights, but also those who voted for the MK party. 

“In South Africa, more than any other country, we should be extremely cautious before we deny the political rights of anybody. I do not have to tell this court about the reasons for that. The reason we are where we are is because people were denied the opportunity to stand for political office and that is why we have a Bill of Rights. 

“We cannot afford as a country to disenfranchise, whether it is President Jacob Zuma or the MK party… They cannot be disenfranchised at a whim. We are dealing with section 19 — the right of people who want to vote for President Zuma and the party. We are also dealing with the rights of Zuma which have been infringed,” he said.

IEC arguments

Tembeka Ngcukaitobi SC represented the IEC, which argued that it was well within its rights to disqualify Zuma from standing for public office.

Ngcukaitobi argued that contempt of court was generally classified as a criminal offence and that while the contempt case against the former president was both criminal and civil, the bottom line was that he was found guilty.

“So, we are dealing with someone who is a convict, convicted of an offence. The conviction complaint has no bearing,” he said.

Ngcukaitobi said the IEC was correct to uphold objections made regarding Zuma appearing on the MK party’s parliamentary list. He said the IEC had the power, drawn from both the Electoral Act and Constitution, to do so.

He said the Constitution allowed any person, including the chief electoral officer, to object to a nominee’s candidature and it was the IEC’s prerogative to make the final decision on objections.

“Once that has happened, the IEC has a copy of the declaration and objection and then the commission must decide on the objection. Section 47 [of the Constitution], subsection 2 says a person who is eligible may be subject to limits as per national regulations,” he said.

He rejected Mpofu’s notion that Parliament could decide who qualified as a member, as the first sitting of the National Assembly is a meeting of those who qualify to be part of it.

Ngcukaitobi said those sentenced to 12 months or more in prison should not participate in public office as the duration indicates the seriousness of the crime. He said while Zuma was released on remission and spent only three months in prison, it did not change the fact that he was sentenced to 15 months.

“The remission did not change the sentence. It did not say that ‘you are no longer sentenced to 15 months, you are sentenced to three months’. The executive can say, ‘We are forgiving you, you are going home.’ The fact that the President has the power to forgive does not mean you can go back and rewrite the sentence.

“Why do we have section 47(1)(e)? It is because it is a legislative determination that certain convictions would preclude a person from exercising their right to be in Parliament,” he said. 

Judgment will be delivered at 2pm on Tuesday, 9 April. DM

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  • Kenneth FAKUDE says:

    I would believe that a sentence issued by a court can only be amended by the same court or a higher court on appeal, parole is approved by a parole board, on paper Zuma was sentenced to 15 months and has not won any appeal to reduce the sentence, and since his reason was terminal illness perhaps the parole must be lifted since his condition has totally reversed and he must finish his sentence in prison.
    I have nothing against MK but the law must be equally applied to all prisoners.

    • Karl Sittlinger says:

      You have nothing against a party that said this:??
      “[If the MK party is not allowed to contest elections and win a two-thirds majority] … We are going to close South Africa for good.”

  • Hidden Name says:

    Except Zuma WASNT pardoned. In fact, the courts eventually ruled he had to complete his sentence, but left it to the department of corrections to determine what that term should be (if I remember right). So Mpophu’s arguments are as usually factually incorrect and completely unsupportable. How has this guy not been disbarred yet?

    • Jucy Malema says:

      Ramaphosa pardoned him

      • It wasn’t a pardon, it was a remission. They’re not the same thing. In any case, whether it was a pardon or a remission, it alters neither the original guilty finding nor the original sentence. Only a court of law can decide on those

      • Michael Ash says:

        In South African law, remission of a sentence typically involves reducing the length of imprisonment due to factors like good behaviour- terminal ilness, without nullifying the conviction. A pardon, however, is an act of clemency that can either reduce the sentence or completely absolve the individual of the crime, potentially removing the conviction from their record. Zuma was not pardoned.

  • Bob Fraser says:

    Bob F April 9th 2024 at
    Firstly, why is Zuma still called ‘president’? He is no longer president and certainly is not worthy of the name. Secondly, why has this case been rushed before the courts? There are many serious matters which the courts very serious consideration yet they are constantly remanded.

  • jeromebruce1961 says:

    With all due respect. To all these elderly politicians.
    Go home and retire look after yourselves and sit on a chair relax.
    Your views is not the views of the generation of today.
    Go to church and give thanks to God the Almighty father that you are sill alive and can enjoy time with your family and grand children.

  • Brian van Boomen says:

    Ironically,the anc under ramaphosa pardoned zuma ,as well as bending over backwards to support him,and like a typical snake without loyalties,he turns on them

  • Tothe Point says:

    Long-winded, boring Dali Mpofu. His strategy is to put the Judges into a trance hoping they’ll side with him and his nonsensical arguments.

    • Malcolm McManus says:

      Spot on. A dithering idiot who lets his hands, stuttering and daft facial expressions do the talking. I wonder what deaf people think of his sign language. They must find it also utterly confusing.

  • mahlangun1959 says:

    Mpofu is really a disgrace to the law profession in this country. Zuma offered him the SC status hence the loyalty to this scumbag. From the day he destroyed Madiba’s marriage I lost respect to this legal illiterate. History will catch up with this homewrecker. Even his home is in tatters just like his ” client”!!

    • Siphelo dakada says:

      Listening to him argue cases it’s nothing but arrogance of ad hominem fallacies. He barely uses the law but rather seek to make a point he thinks an issue should go his client’s way. Let alone it takes a skill to hear what the hell he’s saying.

    • ST ST says:

      Yet they keep hiring him. Loss after loss, incoherent argument after incoherent argument. What does that tell us about their clients. On this ‘very important’ case for them…they think he is their best weapon. Maybe they know something we don’t..,

  • Trenton Carr says:

    Mpofu, embracing the role of villain legal representative, a proper turd blossom.

  • Denise Smit says:

    I watched the show yesterday. The Judges were looking for reasons to get Zuma off the hook and were poking holes in everything Ncgukaitobi said. And as always Mpofu got a whole afternoon extra at the pleasure of the Judges. Zuma will be able to stand. I can bet my life on it

  • Lorinda Winter says:

    Why doesn’t the esteemed Dali Mpofu argue that ‘Mr’ Zuma is terminal so he won’t be able to represent the MK Party for too long. Oops! Forgot! Terminal means being able to live a long life, play golf and maybe become a leader of a country again in ANC speak.

  • Adv.Tembeka Ngcukaitobi summed it up 100% by stating that a Serial law breaker cannot be a law maker. ZUMA is not only a law breaker, but is a most corrupt person in our country.

  • Denise Smit says:

    It was clear that even Ncgakaitobi did not grasp the level of ignorance or ? from the judges. His intelligence meant that he expected the same level of knowledge and reasoning from them. This caused him not to understand that they do not understand and Mpofu’s bulldozing tactics totally tricked them

  • Just Me says:

    Does Mpofu understand the constitution? Is he prepared to uphold the constitution?

  • Rae Earl says:

    We can only hope that the court clown Dali Mpofu lives up to his reputation as the most highly paid loser of cases. Shows how stupid ANC, EFF, and MK politicians are that they keep paying this turkey huge sums of money to lose their cases. EFF parliamentary member Busiswe Mkhwebane bears witness to this. Problem is that we tax payers had to foot her bill. She lost, we lost, Mpofu lost and won.

    • Denise Smit says:

      Mpofu is not going to loose yesterday’s case. I wonder who the party members were who had interviews with these Judges for their positions

  • Skinyela Skinyela says:

    I see that the comments are focusing on adv Mpofu and his strategems, ignoring or neglecting what Zuma said outside the court… Moments after the conclusion of the proceedings.

    Mpofu’s theatrics are the least of your worries, if at all, the most dangerous person is Zuma himself.

    Let me quote some of his utterances :
    “even if the constitution says you must only serve 2 terms, but if the majority of the people says they want you as president who must say no!? Let it be, isn’t democracy the will of the majority?”
    And the crowd he was addressing agreed with him, they responded yeeeeah!!!

    “I didn’t finish my 2nd term, but I was forced out of office… Which means that I still qualify to come back as president”

    “even if I completed those two terms, that’s when I was still under the ANC, now I am representing another party”
    Meaning that he qualifies to serve another two terms because he is now representing a different party.

    Of course he is talking nonsense and he knows it, but he is sowing that idea to his supporters and feeding them lies.

    According to the constitution of the Republic he voluntarily resigned, he was not forced out of office. Being forced out only happens through vote or no confidence and impeachment.

    ANC NEC decision to recall him is a provision of the constitution of the Republic. He should have challenged it in court since he did not agree with it.

    He is dangerous, he can cause another unrest like 2021 riots.
    If he does not accept the results

    • Michael Thomlinson says:

      Watched an interview by Alec Hogg with RW Johnson (political analyst). Johnson ran a poll in KZN recently and came back with some scary figures: ANC 16% and
      MK 37% !! The only saving grace here is that MK has a very samll footprint in the rest of the country except perhaps in Mpumalanga. However, I would think that even if the court grants Zuma the right to stand for president, there will be challenges from other parties/organisations and especially from the ANC. At least the ANC won’t use Dali the useless.

      • Skinyela Skinyela says:

        Zuma won’t stand for election as an MP even if he qualifies and he won’t take the MP seat even if elected, everyone knows that. He will never voluntarily surrender a full salary for life, security detail for life, medical aid for life, state-paid secretary and office for life, flights tickets, etc.

        This court challenge is just a distraction, he knows he won’t win it.

        His aim is to cause chaos, destruction, instability and unrest. It is part of a narrative building that the elections are already rigged against the MK Party.

        He not only knows that he doesn’t qualify to be an MP, he also knows that he no longer qualify to be president.

        But he will keep on misleading his vulnerable, disillusioned, ignorant and desperate supporters.

        It is also a strategy to distract society from his arms deal trial that is about to get underway, finally, since he has exhausted just about all avenues in trying to avoid it on technicalities… He has reached the end of the runway there, a cul-de-sac if you like.

        He is also mobilising support for that trial, in hope that the mob will cause the judiciary to be lenient on him in fear of the repeat of the July 2021 riots.

    • Skinyela Skinyela says:

      Correction: ANC NEC decision to recall him is NOT a provision for the constitution of the Republic.

  • wmcsystems says:

    It’s beyond belief that a nation with bright minds should be exposed to the tripe Zuma, with a standard 3 education, a wrecking ball personality, a convicted criminal, stolen billions of Rands, single handed destroyed the economy of a once proud nation and the list goes on and on. Why on earth did the reasonable citizens tolerate such horrific behavior? And still do? Are we really so weak and powerless against such evil? I know that somewhere in our once glorious nation we have a few saviors who can rid us of such rubbish. Now is the time for such people to stand up and say enough is enough. Why did we tolerate it so long? A tipping point needs to be reached to restore sanity. Living in a mad society is an understatement. Someone please save us immediately!

    • Malcolm McManus says:

      A nation with bright minds would not repeatedly vote in the ANC for over 30 years, despite failure after failure. The reason “reasonable people” follow someone who has betrayed this country, like Zuma, is perhaps because they are not reasonable and may never become reasonable. A tipping point is coming. Whats of most concern is which direction the tip will be in. Maybe not in the direction of restoring sanity though. We can only pray it does.

    • Gerrie Pretorius says:

      “…. single handed destroyed the economy of a once proud nation ….” Not true. He had the full assistance of the anc.

  • Fanie Rajesh Ngabiso says:

    The politically connected continue to fight to feed at the trough.

    …and all the while our people starve, uneducated, in the dark and drinking poisoned water.

    Vote DA.

  • Jucy Malema says:

    Lol, i want to smoke what mpofu smokes. How is this guy a legal representative? Did anyone check his credentials?

    • Kanu Sukha says:

      Yes .. he got his law credentials from the University of Nkandla … the one with a ‘firepool’ … which Dali dips in all the time … for his ‘peanuts’ !

  • Jane Crankshaw says:

    In Africa, the interpretation of “The Law” seems to be different to the rest of the world!

    • Kenneth Arundel says:

      Of course it is different. According to some the law is a western colonial construct brought in to castigate and oppress. ( if and when it doesn’t suit us)

  • Jane Crankshaw says:

    Who is paying for legal costs in this argument of interpretation? If its the taxpayer I strongly object! Perhaps a Class Action by taxpayers could set the record straight quickly?

  • matthewkunene says:

    Great read and informative article 👍

    Grateful for periodic updates

  • The simplest logic in this matter,remission doesn’t mean or is tantamount to quashing of sentence handed down by the competent court of law but it means forgiveness by the Executive as the prerogative, Adversely you must have been sentenced before you can get a remission. Mr Zuma was sentenced for fifteen months without the option of fine which precludes him from standing for office in the RSA. It goes without saying that the IEC has the mandate to disqualify unsuitable candidates within the parameters of the relevant legal framework.

  • Manny Teixeira says:

    Does dali mpofu have any honesty and integrity whatsoever

  • Freda Brodie says:

    Judgment was delivered. Zuma can now return to Parliament for the MK party.

  • Senzo Moyakhe says:

    Part 1:

    “Anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic…” must be disqualified.

    Please educate me, I am Xhosa so my English might not be so good. As I understand it, a remission does not take away the fact that you were convicted and sentenced. You get a remission of the SENTENCE that was passed based on your conviction, essentially reducing the amount of time you spend in a correctional facility. The sentence does not go away, it is not overturned or EXPUNGED. The criminal record and the sentence handed down remain on the legal record.

    “The point of the matter is that the synonyms for remission are forgiveness in the biblical sense, cancellation, extinguishing and set-aside. The legal fact of remission is to reduce a sentence… The President has the power to pardon even the grossest serial killer,” he said.

    This gobbledy-gook-gaggle about biblical forgiveness is absolute rubbish. I might forgive you, it doesn’t change the fact that you wronged me and you were censured accordingly.

    Insofar as our country is concerned the following statement from this document may however give Zuma a chance to skip the hurdle: (see this 2019 speech by Ronald Lamola listed in the government website – sorry can’t publish link, so check on google)

  • Senzo Moyakhe says:

    Part 2:

    This is the part of that record that I feel gives Zuma this opportunity;
    “3. Remission of sentence, this is where the President uses the powers vested on him by the constitution and the correctional services act to grant remissions which effectively means cutting the sentence short. It also means it fast tracks the dates upon which an inmate will be placed on parole, subject to meeting a set criteria.”

    The element of this section is premised on cutting the sentence short but it is vague on dealing with the censure element handed of the judgment by the Court is affected and how it interacts with this remission proposition. What does “effectively…cutting the sentence short” mean with in relation to the JUDGMENT passed by the Court? I would say this needs legal examination and a clearer definition of how these interact. Perhaps section 84(2)(j) of the Constitution read in conjunction with section 47(1)(e) needs re-examination.

    BUT, I’m no attorney nor a legal graduate or expert. I may be looking at things in the wrong direction.

    Let’s discuss…

  • Senzo Moyakhe says:

    A good counter-argument to this remission issue is also raised by the DA shadow Minister of Correctional Services, Janho Engelbrecht in his January 13 2024 release…

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