ANALYSIS
Zuma all the way — 2024 elections, meet Stalingrad
While the Constitutional Court has not yet said whether it will hear an application from the Electoral Commission challenging former president Jacob Zuma’s eligibility to stand in next month’s general election, the stage is set for tensions to rise between Zuma and the IEC — and Zuma may now make this about the judiciary itself, and in particular Chief Justice Raymond Zondo.
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
Not yet
Today we are exactly 6 weeks away from the election, and it promise to be the messiest election ever. Not sure if there is anything to look forward to, except long tears. Never before have I seen so many disputes, so much big talk, unbelievable promises and insults across the political spectrum.
Well in fact that title truly belongs to the 1994 elections, where no result could be determined from the count as a result of so much fraudulent activity at the polls and afterwards, and all parties to avoid country-wide unrest or worse, agreed to “deem” a result in favour of the ANC!
Bollocks!
This is not true at all. wtf.
Interesting times
The Zuma debacle is contentious. The IEC is bound by law to ensure eligible candidates stand for elections. In the face of the Electoral Court decision, it has cornered the IEC by not releasing the reasons so that it properly decides on the next course to take. Taking the Apex route is the best option but surely will be met with fierce resistance from the Zuma camp. Let us hear the stand of the Apex Court on allowing the matter without the reasons. Maybe the Apex may call for the reasons from the Electoral Court, just thinking aloud on same. Thank you.
You are right, the IEC must ask the Constitutional Court….but too, we need see the rationale, or otherwise, of the Electoral Court.
Can the IEC, just do what their mandate is to run elections an stop helping the ANC fighting President Jacob Zuma
Bob F – April 17th 2024 at 06:30
Blame the South African legal system. This situation could have and would have been totally avoided if Zuma was not permitted to give the courts and South Africa the run around when he appeared in court charged with corruption. Of course he claimed to be terminally ill and used this as an excuse to leave South Africa to seek medical attention in China. Why did the courts permit this to happen? An independent medical report authorised by the courts would certainly have proved that Zuma is a sham artist of note. He continues to play the system. Surely he should now be incarcerated to serve the remainder of his 15 month sentence.
Simple, it’s because our judges are to lazy to work! They keep on extending court-cases because they not prepared to work a full day like everybody else.
Enjoy reading your articles
The IEC should stand its ground and deliver on its mandate. I like the decisiveness in the IEC leadership.
Zuma is going to achieve one thing. It will either be the destruction of the legal system as it stands, or the absolute edifice in the future against sustained attack.
Either way Zuma will claim innocence and his victimhood is his shield against any and all accountability. The only chance the ANC has of surviving him is to put him away using the same depleted NPA that ensures the rest of the ANC don’t end up accounting for their many and varied sins. It’s the ultimate irony and should be the basis for Animal Farm II, the Netflix documentary.
Surely you are only helping Zuma’ s case by giving them ideas on finding ammunition with your ideas on additional technicalities? And sounding supportive & encouraging his obstinance?
This selfish self centered crook is dangerous to our country. Please God help us and do the right thing
I agree Nkosi
Sounds like God (which or whose?) is going to replace the constitutional court in earthly matters ! Viva .
The more that rogues like Zuma and Trump have their criminality exposed and legally challenged, the more their popularity rises. Democracy is great in principle, but in practice the result is that the quality of governance depends wholly on and generally reflects the competence of voters to choose intelligently and with an understanding of what is at stake. Americans should be required to pass the citizenship test administered to immigrants. That would effectively ensure Trump’s defeat. There is nothing inherently wrong with a qualified franchise. We do after all require that voters be at least 18 years of age.
Spot on Jeff. That is the flaw with democracy worldwide. Voting should be franchised through some qualification. Just like drivers licenses are not given to everyone at 18, so the same logic should apply to the vote. Even more so to voting, as wrong voting decisions by a majority will inevitably lead the entire country to its own demise.
I fully understand your logic, but then it wouldn’t be called democracy. Dimwits also have a right to vote, even if they probably have no idea the importance and implications of their vote. The same applies to a drivers license. We see idiots on the road every day, who shouldn’t be there. Democracy certainly is flawed and the flaw is by no means restricted to only South Africa. As mentioned, USA is a fine example. Notably IQ does not prevent you from making an error of judgement at the polling stations. There are many aspects that may lead to a decision. Not all IQ based, nor morally based.
You are describing a form of meritocracy, not democracy.
The problem is who decides who gets to vote?
Probably the voters, which leads us back to square 1.
“The Council on Higher Education of South Africa (CHE) is an independent statutory body that is responsible for the quality assurance of higher education in South Africa.”
Have the CHE/IEC jointly set a voter’s license exam that tests critical thinking skills, the ability to use logic to identify how (and by whom) a manifesto promise will be paid for, understanding of the implications of deficit spending, and the ability to logically identify possible unintended consequences of different manifesto promises.
Any citizen can sit the exam for free.
Citizens who want to vote must pass the exam before each election (cognitive ability can decline). Aspirant members of parliament must also pass the exam to be eligible for parliament. Have the exam invigilated by university invigilators.
The test will be designed and administered by…!?
Democracy must not be confused with elitism.
There is a difference between Plutocracy and democracy.
A government that make laws and regulations for everyone, including the ‘dimwits’, a government that levy taxes on everyone, including the ‘uneducated and’ uncultured’, must be elected through a system of universal suffrage.
Your argument for election through universal suffrage rests on two pillars:
(1) The laws apply to everyone, so everyone should get the vote.
(2) We all pay taxes, so everyone should get the vote.
Point 1 implies that non-citizens residing in South Africa should get the vote because the law applies to them equally. Point 2 also implies non-citizen residents should get the vote, because, at minimum, they are paying VAT.
If you believe that non-citizens should have the same voting rights as citizens, I’ll believe you are sincere about supporting universal suffrage. If not, then you do not actually believe in universal suffrage based on these two pillars and your argument is logically flawed.
Actually, in taxation there is a determinant test that answers the question “in which country you were a resident in the year under review?”
Then based on the days you spent on country B vs the days you spent on country A(your native state) you either taxed as resident or non-resident.
So it will make sense to vote where you spent most of the past 5 years(term of office is 5 yrs here), because that’s where you paid most of your taxes and the laws that actually governed you in that period are not those of your native country, but those of the country you live in.
This will make sense and will require that all the countries implement it.
But as it is some countries have not even started to use electoral democracy.
Unfortunately voting based on competence would lead to problems, chiefly discrimination in a world trying to improve on human rights regardless of race, creed, gender, etc.
It would also be similar to saying pedestrians who failed a driving test can’t have a say on road safety etc
You’ll have to address opportunities if access AND outcomes of education into voting. Many factors may cause people to fail a test. Being a ‘dimwit’ is not a crime but may result from a condition an individual can’t help but need a government or an authority to address on their behalf. An individual May not know/understand who is best to help them out. But we can’t have the elite decide. Only the medically unfit or children can have another decide what’s best for them.
Also one can never truly say they know the outcomes that will follow their vote…given the many false promises made by parties especially in this populist era.
So ‘voting competence’, though it may help, the standard would be rife with conflict. We can only try to educate…and should include understandings of the processes of democracy, governance etc in the curriculum if doesn’t already exist. After that, you can only hope for the best like after any tuition. Except in this case, you can educate but can’t test and a test would be moot anyway
Our current President is as liable and culpable as Zuma – there’s no way Ramaphosa could sit next to Zuma for all that time and not know exactly what was going on. There’s no way he hasn’t been complicit in all that’s gone on subsequently, under his reign. What would really make a difference is if the old men would step off the stage and let some younger, more qualified people run this country. Why on earth do we keep them in power? They are done, deplete and no good anyway.
Is the Electoral Court now trying to formulate reasons that support a decision it issued last week? That seems like reverse logic. What informed their decision?
Johan the electoral court although reasons are not yet known created this drama on something clearly and rightfully argued by the IEC lawyers.
Constitutionally any person with a criminal record cannot be admitted into the national assembly.
Secondly how can a lawbreaker be entrusted in the duties of being a law maker for the same law he cannot respect?
The IEC is bound to respect the laws of the country, including the constitutional court, so it was logical for the IEC as a lawful organisation to disqualify Zuma from the ballot, the main reason being that it is the pathway to the national assembly where Zuma does not qualify to be in.
The IEC should have put an urgent appeal for the constitutional court to interpret what criminal record and 12months means in the legislation, and only use Zuma as a backdrop of the application not the facts of whether Zuma must be on the ballot or not, that will still be their decision to make with the correct interpretation.
If they want to play it the easy way they can put him on the ballot and let the national assembly decline his admission, the IEC cannot be faulted based on the steps they have taken already.
This will automatically be the electoral court vs the constitutional court, a nice derby to watch.
If the IEC is seeking clarity and/or advisory as opposed to an appeal to the CC, then it must wait for the reasons of the Electoral Court. It will be interesting that the very CC that has not issued any judgment this year will be quick to rule on the Zuma matter.
Well, logically, they will have to be quick to rule on the Zuma matter, as it will need to be settled BEFORE the elections in six weeks time…
The issue of former prisoner zuma needs to be finalized before he can be appointed to parliament, not before the election. Any party can put any picture on their posters. Even if his issue is undetermined in that period after election when parliament is formed, his party can nominate a placeholder and replace that person with former prisoner zuma later on.
I doubt he wants to go to parliament at all. He would apparently forfeit his benefits as an ex-president if he becomes an MP.
Capitec Bank Limited v Commissioner for the South African Revenue Service CCT209/22
Handed down on the 12th of April 2024.
what ever the outcome, unless they decide to crown Zuma as the, omnipotent , leader of all creation he will not be happy.
Whatever the election brings he will dispute and challenge some aspect of it.
His ambition is to destroy and create chaos. Which the weak judiciary and his erstwhile colleagues have allowed him reign to do.
To mis quote a historical character, will no one rid us of this turbulent priest.
“For the moment, that is still a mystery as the court has not yet released its reasons.” The electoral court … has it too been captured?
Pertinent question … in an age of cynicism ! The other question about “not yet” invites the rejoinder … probably after the elections … when the ‘damage’ has been done … and even more complicated ‘remedies’ are sought !
It will be interesting how the Constitutional Court handles the matter. I can appreciate why the IEC has appealed the matter, as the Electoral Court did not provide reasons on an aspect important to the IEC’s handling of elections. It is sad that this is going to be another episode in the neverending saga of Jacob Zuma’s undermining of the legal system and other key institutions in his pursuit of his own selfish, insatiable interests.
I would find it very concerning if the Apex court was to hear the matter without first listening to the reasons from the Electoral court. What exactly would be the basis for their ratio? If they rule, the Electoral Court releases their reasons and the Apex court had not considered some of them? Do we hear the case again? As much as I agree that the IEC has a responsibility to ensure eligible candidates stand for elections, that does not mean action cannot be taken against Zuma once he is elected to the Legislature. The horse would not have bolted. Finally, we have a party political system and ultimately the elctorate is voting for the MK and not Zuma.
I doubt that many would vote for MK if Zuma was not a part of them.
The South African legal system is short-changing the citizenry and far reaching reviews are long overdue. It is a disgrace that this amoral Zuma miscreant, with his flip-flop ‘mortal’ health issues, is holding the nation to ransom as he does. It is shocking that the Electoral Court can issue decisions without pronouncing judgment just prior to an election. Surely these are grounds to suspend and delay the election.
It seems that tribalism is still the deciding factor in SA politics. Not the upskilling and welfare of the average citizen. Promises, promises. Where will we be “the day after” the election? Better? Worse? Or just sliding down the slope to a dystopian state?
“Constitutional Court has not yet said whether it will hear an application from the Electoral Commission challenging former president Jacob Zuma’s eligibility to stand in next month’s general election”.
My understanding is that the CC has NOT been asked to make a call challenging the MK/Zuma judgement. It’s simply been asked to give clarity on the portions of the constitution regarding who may or may not stand
It is actually an appeal John, not just a request(from IEC to the CC) to clarify a section of the constitution.
I, too, was hoping that their(IEC) application is not in a form of an appeal.
I can just see Dhali Mpofu rubbing his hands together in anticipation of another great pay day from Zuma and MK. (Or who ever is backing them)
I thought Zuma was terminally ill, and needed to be granted Medical Parole. When will his extreme illness take its toll. Sooner than later hopefully.
He was apparently terminally ill to serve time yet healthy enough to cause this unnecessary headache?
Power is indeed the biggest problem. If he really cared for the citizens he would safe us from himself. I am over this old dumb MF
The Judiciary seem to be afraid of this man. I honestly cannot see why so many people would vote for Zuma, he has just about alienated everybody with his behaviour.
At 81 years old, I wonder just how much longer this man can cause chaos and waste the time of officials with his constant court cases
People love zuma, thats what you need to get into your head. people can see when justice is not served FAIRLY to everyone. people can sense that only the majority who hate Zuma is the same people who oppressed the majority, so that in its own would make any right thinking black person to see that Zuma must have been doing something that touched the oppressor so badly hence the hatred. people can nolonger be influenced by the mainstream media anymore. people can read altornative news to understand the political and economical situation that prevails. people want economic freedom. people long for unbiased media.
Mandla- the colour of Zuma’s skin has NOTHING TO DO WITH WHY HE IS HATED. He is hated (strong word yes) because he is a lying, cheating criminal who has stolen massive sums of money that should have been used to uplift the struggling masses of South Africa, and all but destroyed every major State enterprise in our country. If this man gets ANY say in our future then collapse is inevitable and guaranteed in our wounded country and you and those who believe in what you say will get the future you deserve.
“This may turn out to be too much to ask.”
That’s a chilling thought.
There’s a group in people in this country – Zuma included – who simply don’t want law and order. It’s too “Western” and “colonialist” for them. They want jungle and tribal law to rule the land. And that’s exactly where South Africa is heading. In the words of Varys : Zuma would see this country burn if he could be king of the ashes.
Well yes Zuma is a former President, and allergistions of corruption hangs over his head. In the Court of public opinion he has already be found guilty but we must be aware that the very same courts he is frequenting has never found him wrong on any crime be it corruption or fraught, except the 15 month sentence for contempt of court. His sentence was remissioned to 3 months, now the question is whether remission of 12 months means being outside the scope of those restricted to vote or being voted into parliament prior to 5 years elapsing after the sentence. Now as things stands except the IEC appeal he is iligible to stand. I think his aim is only to promote the party not necessarily being in parliament where he might risk his Precidential perks if the la stipulates so. So in conclusion he has a right to do all this this regardless of whether someone likes or not. Let us all respect the law and respect one another whether the darling of the media or not.
A sentence that is wholly suspended for five years is no sentence at all. The criminals must be made to pay for the damage they have done to society and not just be ‘good guys’ for five years. They MUST pay the full fine with possibly the prison sentence commuted to house arrest. Make it difficult for them, they have destroyed lives or nature with their activities.
Zuma and his courtiers have, surely unwittingly, probably done the country a huge service in clarifying important constitutional and judicial grey areas, that will in time strengthen our democratic rule of law.
In the meantime, we must not take showers, as Hitchcock’s secretary so shudderingly stated in the movie, and Zapiro reminded us of …