Illustrative image, from left: Janet Love. (Photo: Gallo Images / Frennie Shivambu) | IEC barrier tape. (Photo: Gallo Images / Darren Stewart) | Former president Jacob Zuma. (Photo: Gallo Images / Rapport / Elizabeth Sejake) | Chief Justice Raymond Zondo. (Photo: Gallo Images / OJ Koloti) 
On Friday, the Electoral Commission of South Africa (IEC) confirmed that it was lodging an “urgent and direct appeal to the Constitutional Court” over the Electoral Court’s decision allowing former president Jacob Zuma to be a candidate for uMkhonto Wesizwe (MK) in the upcoming elections.
As was widely reported, the Electoral Court’s decision came as a surprise and led to salient questions about how its judges came to the decision. For the moment, that is still a mystery as the court has not yet released its reasons.
MK, meanwhile, appears to be preparing to attack the IEC.
It has already called for IEC Commissioner Janet Love to resign, claiming that her comments during a press conference in January, in which she said Zuma would not be eligible to stand, showed she was biased.
While it is not entirely clear what will be argued at the Constitutional Court — if it hears the case — MK is likely to raise several preliminary issues that could create complications for the court.
It might well argue that the Constitutional Court does not have jurisdiction to hear the case.
The party’s media WhatsApp group has republished, with approval, a tweet citing a portion of the Electoral Act which says that decisions of the Electoral Court are not reviewable and cannot be appealed.
However, the IEC may argue that other legislation suggests the Constitutional Court does have jurisdiction.
Even before the change that saw the Constitutional Court moving from hearing only constitutional matters to being the apex court in all matters, a ruling in 2004 saw the court’s judges ruling they did have jurisdiction in an electoral case if it was in the interests of justice for them to hear the case.
And, as Professor Omphemetse Sibanda has suggested, the IEC could well argue this is about the text of the Constitution itself and thus the Constitutional Court is duty-bound to hear it.
That may be one of many skirmishes to come.
The Zondo factor
Zuma and MK are likely to argue that the entire situation is the consequence of a ruling by the Constitutional Court in 2021 that Zuma must serve 15 months in prison.
The application that led to him being jailed was launched by the Commission of Inquiry into State Capture, which was chaired by now Chief Justice Raymond Zondo.
Zuma will surely argue that Zondo cannot sit in this case.
Of course, Zondo’s recusal would not end the matter.
Zuma could argue that the other Constitutional Court judges who imposed the prison sentence should also be removed from the case as no judge should rule on the same matter twice.
At present it is not clear which Constitutional Court judges will hear this application, should the court decide to do so.
But the latest judgment of the court, handed down last week, featured three of the judges who ruled in the Zuma case in 2021.
This means that four judges (including Zondo) may not be available.
Because of these factors, the court may take some time before deciding whether to hear the matter — in any case, it would be foolish to decide to hear it without getting the reasons for the ruling from the Electoral Court that is being appealed against.
Conspiracy claims
Of course, the judges might well decide that the interests of justice override those considerations and just go ahead and hear the case.
Then, Zuma would surely argue, as he has in the past, that there is a conspiracy against him, with the Constitutional Court and the IEC acting in concert.
MK has argued that the IEC is supporting or protecting the ANC.
However, this completely ignores the fact that just three weeks ago the IEC argued along with MK against the ANC in its bid to try to claim that MK was not properly registered.
Also, while MK and Zuma have consistently made these claims of conspiracy against the IEC, he did not do so when he was the leader of the ANC.
So, the IEC could argue that Zuma only attacks it when he believes he may not win an election, and was perfectly happy to accept its rulings when he was the leader of the party that won elections.
This is a continuation of a strategy Zuma has followed for many years — to keep applying as much pressure as possible on legal institutions until one of them breaks, in this case, either the IEC or the Constitutional Court.
Some have argued that the IEC was wrong to appeal against the Electoral Court ruling. BusinessLIVE’s Peter Bruce wrote he was “glad Zuma won” the Electoral Court case as, “You can’t run a democracy by lawyering your opponents away.”
A need for clarity
However, the role of the IEC is to ensure that South Africa’s elections are free and fair, and administered under the Electoral Act. As the Electoral Institute for Sustainable Democracy in Africa’s Ebrahim Fakir has noted, the IEC has been careful to point out it needs clarity about its role in allowing or disqualifying candidates from running.
It believes it was applying the law when it ruled Zuma was ineligible to run and that the Electoral Court then found it had not applied the law correctly — and it wants clarity on this.
While some have suggested the IEC should only have appealed after the election, this is simply not possible as judges do not hear cases that are deemed to be moot (never mind the problems that would be created if it turned out that someone had been in the National Assembly, voting on contentious legislation when they did not qualify to be there).
Also, as Fakir pointed out, the election timetable specifically provides a period for political parties to inspect the candidate lists of other parties and a mechanism for them to lodge objections. What is the point of having objections if the IEC cannot act on them?
Therefore the claim that it would be up to Parliament and not the IEC to bar elected candidates who are disqualified from taking their seats cannot be correct.
It is clear that once again Zuma is about to put our legal institutions under pressure — and that those who lead these institutions will have to think carefully about how to respond.
The goal of those in these positions should surely be to hold elections which are free and fair, and of which everyone accepts the outcomes.
This may turn out to be too much to ask. DM