Electoral Court ruling on Zuma has echoes of its judgment on Winnie Madikizela-Mandela

The Electoral Court on Tuesday cleared Jacob Zuma, the face of the uMkhonto Wesizwe (MK) party’s campaign, to stand for public office in the 29 May elections.

While the full judgment has not yet been released, arguing before the court on Monday, the party’s legal counsel, Dali Mpofu SC, likened Zuma’s case to that of the late anti-apartheid stalwart Winnie Madikizela-Mandela.

Madikizela-Mandela was an ANC candidate for the National Assembly in the 2009 elections, but she, like Zuma, had been sentenced by a court to more than 12 months’ imprisonment without the option of a fine.

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While the former president served three months of his 15-month contempt of court sentence, Madikizela-Mandela was, on appeal in 2004, given a 3½-year prison sentence, wholly suspended, after being found guilty of fraud.

The Freedom Front Plus (FF+) launched an application in the Electoral Court to have her removed from the ANC’s list of candidates because it believed that the sentence, which exceeded 12 months without the option of a fine, meant she should be disqualified under section 47(1)(e) of the Constitution.

On Tuesday, former IEC commissioner Terry Tselane told Daily Maverick, “This is not the first time that a case like this has gone to the Electoral Court. There was an objection against the candidacy of Winnie Mandela in 2009 and the Electoral Court also dismissed the objection and allowed Mrs Mandela to become a candidate.”

Interpretation of the law

Mpofu highlighted that both cases centred on section 47 (1)(e) of the Constitution, which says citizens who have been convicted of an offence and sentenced to more than 12 months’ imprisonment, without the option of a fine, within five years “after the sentence has been completed” do not qualify to be a member of the National Assembly.

The MK party challenged the interpretation of this law. Mpofu said the Madikizela-Mandela judgment was clear.

“The judgment is short but I commend it because it deals with the [question of] the completion of the sentence,” Mpofu said.

In the Madikizela-Mandela case, the Electoral Court asked whether the Constitution barred someone who received a wholly suspended sentence of more than 12 months from running for the National Assembly.

“It seems to me that one has to strain the language of the section to come to the conclusion that completion of the sentence must be read to include the completion of the suspension,” the Electoral Court said in March 2009.

The court said that if Madikizela-Mandela was disqualified, it would mean “a person who commits a more serious offence for which he or she serves a prison term of 12 months would be eligible to hold public office much earlier than a person who did not actually serve a prison term, but his or her sentence [was] suspended for a period of five years, for example.

“This could never have been the intention of the Legislature, namely to encourage uneven treatment of its citizens in violation of the equal protection provisions of section 9 of the Constitution,” the judgment read.

“We need to remind ourselves that what we are concerned with is a citizen’s right to stand for public office, which right is enshrined in section 19(3)(b) of the Bill of Rights.”

Remission of sentence

Mpofu said that Zuma spent only three months in prison before he received a remission of sentence, which, he claimed, rendered the former president’s initial sentence of 15 months irrelevant.

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“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,” Mpofu said.

In MK’s court papers, it told the Electoral Court, “By the act of remission the remaining 12 months portion of the sentence was extinguished. Therefore, [Zuma’s] effective or ultimate sentence was reduced to approximately 3 months which is less than the 12 months yardstick prescribed in section 47(1)(e) of the Constitution.”

The IEC cited the Madikizela-Mandela case in its court papers to show that the Electoral Court had shown before that it had jurisdiction over deciding section 47 (1)(e) of the Constitution.

Infringement of rights 

Mpofu argued that disqualifying Zuma from standing for public office would not only infringe on his rights, but also those who wanted to vote 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.

Mpofu argued that the IEC failed to follow the proper procedures when disqualifying Zuma; that the National Assembly rather than the IEC had the jurisdiction to implement section 47 (1)(e) of the Constitution; that the IEC was biased against Zuma; and that the former president’s contempt of court conviction was not an “offence” as it didn’t include criminal proceedings.

Many observers have questioned the reasoning behind the Electoral Court’s ruling on Zuma’s eligibility to stand for public office. 

The IEC issued a statement urging the court to release its judgment to reveal how it made its decision. At this point, the commission has not expressed a desire to appeal against the ruling. 

Meanwhile, the final lists of candidates on the IEC website feature Zuma as the first candidate of the MK party, which paves the way for his return to public office.

The IEC had upheld an objection by a member of the public, Dr Maroba Matsapola, and disqualified Zuma from running in the elections, leading to the MK party successfully appealing in the matter.

MK’s popularity

Zuma is key to the recently formed MK’s popularity. The party is expected to draw much of its support in Zuma’s home province of KwaZulu-Natal (KZN), as well as Gauteng. Two recent polls suggest MK is growing and the party has put in strong showings at by-elections.

According to polling released this week by the Social Research Foundation (SRF), the MK party could surpass the EFF to become the third-largest party in South Africa.

The SRF said it canvassed 1,835 demographically and geographically representative registered voters in April and its poll had a margin of error of 2.2%.

Nationally, it gave the ANC 37%, the DA 25%, the MK party 14% and the EFF 11% of the vote.

In KZN, where the SRF canvassed 408 registered voters, the poll — with a margin of error of 4.8% — found the MK party had the most support, with 26%, followed by the DA at 21% and ANC at 19%.

“The Foundation had also identified that Mr Zuma, now the leader of the MKP, had very strong favourability scores in key political constituencies. The success of the MKP to date should therefore not be read as a surprising or unanticipated development. Mr Zuma’s party must, however, still settle and it remains to be seen whether it can hold its current levels of support,” the SRF said.

A national survey of voters conducted on behalf of The Brenthurst Foundation and released in March also predicted the MK party would be the third-largest party in the country, with 13% of the vote, followed by the EFF with 10%. The poll canvassed 1,506 registered voters and had a margin of error of 3%.

However, the polling of both the SRF and The Brenthurst Foundation have faced criticism. DM