South Africa

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

Electoral Court ruling on Zuma has echoes of its judgment on Winnie Madikizela-Mandela
Illustrative image, from left: Former president Jacob Zuma. (Photo: Gallo Images / Darren Stewart) | Mama Winnie Madikizela-Mandela . (Photo: Gallo Images / Sowetan / Veli Nhlapo)

Arguing before the court on Monday, the MK party legal counsel Dali Mpofu SC pointed out similarities between Zuma’s case and that of the late anti-apartheid stalwart 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.

Read more in Daily Maverick: Elections 2024

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.

Read more in Daily Maverick: The unstoppable impunities of being Jacob Zuma — with a lot of help from the ANC

“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

electoral court zuma mk

Jacob Zuma supporters at court in Johannesburg during the MK party challenge against the IEC’s decision to uphold an objection to former president Jacob Zuma’s candidacy in the 29 May 2024 polls. (Photo by Gallo Images/Fani Mahuntsi)

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

 

Gallery

Comments - Please in order to comment.

  • Mark Ogle says:

    The setting of a precedent?
    As questionable as precedents may be, they do inform reading of the applicable law. Unless overturned by a superior court …
    This may inform the IEC’S decision to appeal, the threat this may pose to holding free, fair and relatively peaceful elections notwithstanding …

  • James Baxter says:

    Pardon the interruption. I am just concerned about the usefulness of the electoral process in the lives of ordinary citizens in disadvantage areas like Eastern Cape. Where you are talking about toddlers who are affected by malnutrition, who don’t have the option to play around with electoral process. Seems like the democratic process is a play thing for the affluent to secure their economic prospects. You expect the masses who are obviously gullible and have no option but to play along in this elite game of musical chairs. I know that I sound like a very bad song playing on a very loud speaker but I have no choice but to locate South Africa in a historical perspective. This democratic process we amuse ourselves with is nice, keeps the affluent parts of our society entertained. But I am just a nobody, a Mr nobody who has nothing better to do with his time, but to trade in useless ideological opinions. I just wanted to highlight the importance of doing the right thing for people who are on the receiving end of our assumptions. I would like to express my sincere desire to place our country on a political footing that is befitting of a country of serious historical importance. Karl Marx spoke of a poverty of ideas, I think maybe he was referring to the inability to develop political and economic processes that are capable of transcending the challenges faced by people in general. The poverty of modern South Africa lies in it’s inability to imagine new perspectives, to create a r

  • Kevin Venter says:

    The mere fact that this fat cat has been able to dodge the legal system the way he has is proof that the ANC has no interest in stopping corruption. I cannot believe that people still support this fool with all the mismanagement and theft that he has been directly responsible for, where are his Gupta mates now? How is it that the ANC cadres go to jail (in the isolated cases where they are actually prosecuted), always develop some medical issue, and are then released. Where is Schabir Shaik again? Probably playing Golf with the Guptas in Vanuatu when they should all be in jail sharing a cell together.

    The ANC has been nothing but a cataclysmic disaster of a government.

    • chiefdlamini.sd says:

      The problem is that we are playing the man not the ball.Zuma is a politician and we are still going to calling him names (fool) and that doesn’t not make him a fool.He has not been found guilty of anything.

      • Willem Joubert says:

        Yes he has- that is why he was sent to jail. He broke his oath of office by not serving the country but refused to testify, thus serving himself, his party and the looters. In a different country that is high treason and he needs to be shot.

      • Malcolm McManus says:

        That doesn’t make him innocent by default. Being a politician also doesn’t exempt him from being a fool.

      • Visual Engineering says:

        This must be one of the most pathetic and untrue replies I have read in a long time.

      • Lenka Mojau says:

        I agree with one of the options that IEC and it’s supporters against Zuma are not playing the ball but the man. Zuma has never been found guilty of any crime (except this contempt of Court), but he is labeled as one of the most dangerous Gang boss of unemaginable proportions. However on the present matter this three things are to be noted,1. Winnie Mandela case sets a precident, 2. Remission of a sentence takes him out of the danger zone, meaning part of his guilt has somehow been annulled or expunged. 3, the IEC under pretex is saying following this on the banner of free and fair elections, but it’s haste is giving away it’s intentions, meaning someone at the top of IEC is having sleepless nights over Zuma ascending to the highest podium again. The energy that surrounds Zuma is like that one the Chinese call the CHI, which can only be manipulated by marshial artists, he will never be shaken. His march to parliament is inexorable much to the dismay of the powerful secret cabal of world politics who will lose once more.

  • Brian Cotter says:

    A judge gave Winnie a remission. Cyril, the Politician, gave a remission to another politician from the same political party. We all cried foul at the time. It can bite us all in the future of the Country.
    Cyril and Lamola it is with you freeing the old fox Jacob to go hunting again.
    Update the rules and plug the loopholes.

    • Paddy Ross says:

      It should be the legal system courts that have the power to grant a pardon, not a politician. The absurdity of the present system is that there is talk that if Trump is reelected, he will have the power to pardon himself!

  • Stewart Alcock says:

    Interesting that none of your legal experts who you ask to comment did not pick up this point – maybe ask them now?

  • Kathleen Whiteley says:

    I am disappointed in the ruling on Zuma. Obviously, one law for the rich and another for the poor. Is the judicial system in the country totally corrupt? I sincerely hope not.

  • Malcolm McManus says:

    The electoral court ruling basically tells us that because Jacob Zumas legal team say a zebra is a horse, by the electoral court logic, a horse must be a zebra. Thats the only way I can read this ruling.

  • Ben Hawkins says:

    Amazing how corrupt people get cured from a terminally ill condition so quickly.
    He’s done enough damage to South Africa under his leadership, WTF does his followers see in this idiot.

  • Peter Vlietstra says:

    Another nail in the coffin of accountability.

  • Troy Marshall says:

    In all fairness, there are crimes more serious than contempt of court.
    Of course (ahem) Jacob Zuma stands accused of serious crimes that he hasn’t (cough cough) had a chance (cough cough) yet to defend himself against.
    We are all innocent until proven guilty.
    Off you go, young man, take votes away from the EFF and the ANC.

    • Jeff Robinson says:

      Please let me point out that the dictum”innocent until proven guilty” only means that you must be treated as innocent legally. You could well be guilty as sin and get acquitted on some technicality or screw-up on the part of the prosecution/police.

  • Just Me says:

    In functional nation’s legal systems, your rights to office are forfeited if you are guilty of a crime as in the cases of Zuma and Mandela.

    I wonder if Trump’s legal team will take any inspiration from the SA legal system.

    • Mark Allen says:

      I Trump’s case you would need to prove that he was guilty of something and not just a political witch hunt. Until the appeals process has ended in a conviction (highly unlikely…) he continues to be presumed innocent.

  • Guy Fowle says:

    It’s time there was an age limit for politicians world wide.

  • Alan Exton says:

    Zuma the criminal manipulates the Legal Justice System which has been captured. He is Power Hungry to help himself to more Taxpayers money. Government officials are Civil Servants or should be, but in this case as in so many others these politicians only work for themselves against the citizens of the country. Zuma is after all a convicted criminal and our collective system allows him not to appear in court re the Arms deal and allows him to serve as a possible head of the nation once again. Look at Nkandla and how he thieved the nation there. This is a disgrace, and our system of governance allows it.

  • Jane Crankshaw says:

    Winnie Mandela? Oh yes…we remember her – “ with our matches and tyres we will liberate this country”. Stompie paid dearly with those words! Its not a compliment to be compared to Winnie, one wonders if Dali and Zuma realise that.

  • Annie Conway says:

    So he’s joining a not-so-illustrious band of criminals in charge of our poor country

  • Rory Macnamara says:

    The law is an ass together with this bunch of politicak asses
    .

  • D Rod says:

    In animal farm, some animals are more equal than others…

  • Graeme de Villiers says:

    I wonder if the two chaps holding that poster and that sign are actually his children.
    It wouldn’t surprise me.

  • Rodgers Thusi says:

    The Electoral Court seems to portray a position that this is a political rather than a legal issue. If we do not like someone or his politics we must not vote for him. But to prevent him from standing is absolute chicanery – deceitful, duplicitous and dishonest. Most people who make political commentary hold a view that the ANC should not be in power right now. But they had the choice of voting for the ANC or not. They did not vote for the ANC but it still won without their votes. If the ANC wins the vote, the DA cannot form a government however much we may like it – it is that simple.

  • District Six says:

    The ANC literally made this happen. Either it’s terrible strategy, or by design.
    If it’s the former, then the D&G guy should cease prancing around sham conferences in Russia, and pay more attention to strategy.

    On the other hand, the ANC don’t seem in a hurry to censure Zuma, and have done a hell of a lot to expedite his continuing rampage through the political arena.
    At any rate, it’s never a dull day in South African poli-ticks.

  • Lorraine Laurence says:

    The ANC’s chickens have come home to roost! The party allowed Zuma his Stalingrad tactics, his lawfare and contempt for justice. Had they decisively expelled him for his many misdemeanors and allowed justice to run it’s course, this would not be happening. I hope this debacle brings them to their Hugo Boss clad knees. Sadly the country will suffer the consequences of their catastrophically bad governance, failed energy, economic, judicial, domestic and foreign policies. CR will need more than a couch-full of money to save him from the trash heap of history. Will post May 29 bring the horror of an MK, EFF, ANC mega-cartel? This unholy trinity is rank enough, greedy enough, to chum up as they divvy up what’s left of the cookie jar. And the masses will sing and dance with their Ubaba heh heh hehheh! Perhaps nations do truly deserve the leaders they get. Just as Putin sits at the helm of the downtrodden and gullible, and the Trump-et orange man campaigns to have breakfast at the White House, so we may be confronted by JZ and mini-me Malema in their Presidential cavalcade.

  • Anthony Krijger says:

    Just goes to show what a Banana Republic we live in. Members of parliament are free to loot, defraud and plunder, stand for re-election and do it all over again. And most of their votes come from the poor & mostly unemployed who believe the false promises they are made.

  • Confucious Says says:

    Too sick to be in jail where he belongs, but fit enough to run for elections! What a crock of dog turd!

  • Hidden Name says:

    Except Zuma’s sentence wasn’t suspended, so they should logically have the precedent inapplicable in Zuma’s case. Regardless of the outcome, this judgement should be reviewed. It’s clearly wrong based on the language of the law.

    • Greeff Kotzé says:

      Yes, it’s completely different — and it seems that people are (deliberately?) misreading the 2009 judgment. It’s quite simple in comparison; it concerned the dates of the five year period of disqualification as the result of a criminal sentence. Madikizela-Mandela was sentenced in Jul 2004 and the election was scheduled for Nov 2009, so the question was whether the five year disqualification period had been completed or not.

      Her sentence was three years and six months’ imprisonment, the whole of which was suspended for a period of five years. The appellant held that the disqualification period only began when the period of suspension expired (which they viewed as the “completion” of the sentence), i.e. in Jul 2009, and that she should thus remain disqualified as a candidate until Jul 2014. The court disagreed and stated that such an interpretation would lead to perverse outcomes unintended by the legislators. It found that the five year period she was disqualified for began when the sentence was handed down, as there had been no time served, and that she was thus free to stand as a candidate once more in the Nov 2009 election, since it was after Jul 2009.

      Any question of whether a suspended sentence with no time served was itself subject to the disqualification process was moot and not deliberated on, as more than five years had already passed since her sentencing.

  • Thank you my beautiful friend’s hope we begin an awesome journey. I believe reading your article’s inspire one to have knowledge about what’s going in and around the globe 🌎peace.

  • JOHN WILLIAMS says:

    As usual, SA politics corrupt. Zuma should be in Prison. It makes a laughing stock of SA politics that Zuma is running as a candidate.
    Until SA get rid of all their corrupt Businessmen and Poiltician then the country will not improve in anyting. John

  • estellegeldenhuys47 says:

    No comments

  • Nkosi Wish says:

    The crook has been given a life line to come back and finish off this country

  • Bob Kuhn says:

    It’s remarkable how the anc elite cadres seem to find the elixar for eternal life shortly after having been declared as unfit to attended court or their just sentence in prison?

  • Francis Akpore says:

    The court CORRECTLY applied Section 47 to Zuma’ issue. Interpreting “after completion of sentence” as distinct from the section’ ambiguous statutory language was commendable and appropriate. The legislative history of the section’ actual intent supports the verdict. Its pertinent i state that i wish Zuma was ruled unqualified because of his vituperation of pregnant teens while saying nothing about the men responsible.

  • mamogalelek says:

    I am of the view that the IEC is correct in taking the matter to the Constitutional Court in order to ensure legal certainty going forward. The view that taking the matter to the CC would compromise the IEC in that people would easily accuse the IEC of not being even handed is to my mind untenable.

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