Zuma had argued that six judges of the Constitutional Court should recuse themselves from hearing, saying they can’t act as both players and referees. This argument was submitted by Advocate Dali Mpofu, representing Zuma and the MK Party, of which Zuma is a senior member. But after a short deliberation, the court ruled that the six judges should sit in the case. The court has not provided detailed reasons at this stage.

The IEC brought the case before the ConCourt on appeal from the Electoral Court. The main case relates to whether Zuma is eligible to appear as a National Assembly candidate for the party after the IEC initially ruled that he was barred from doing so due to a 15-month conviction for contempt of court.

Section 47 of the Constitution dictates that a person who is convicted of an offence and sentenced to more than 12 months imprisonment without an option of a fine is not eligible to be a member of the National Assembly.

Read more in Daily Maverick: Zuma’s eligibility for SA’s 2024 election — a tangled web of legal and ethical dilemmas

It adds that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed”.

The electoral court found that, although Zuma had been sentenced for more than a year, the proviso about being able to appeal his sentence placed his sentence outside the realm of disqualification.

Zuma brought a counter-application, which is being heard before the main application, in which he calls for six of the Concourt judges to recuse themselves from the case. Zuma says that Chief Justice Raymond Zondo, along with Justices Mbuyiseli Madlanga, Steven Majiedt, Leona Theron, Nonkosi Mhlantla and Zukisa Tshiqi adjudicated in the case that sent him to prison in the first place and should therefore not be involved in the current matter.

Read more in Daily Maverick: Zuma MK party representation critical for votes but push for ConCourt judges’ recusal a dead end

MK party supporters outside Johannesburg High Court. 9 April 2024. (Photo: Gallo Images / Fani Mahuntsi)

‘Unconscious bias’

“If your country is playing against another country. You are not allowed to be a referee. You might be the best referee in the world, but it is a question of conscience,” Mpofu told the court.

He added that the judges who were involved in sentencing Zuma could have an “unconscious bias”.

“The human inclination to want to defend the decision that you took previously. It is a human thing. And the fear is borne exactly of that fact. That the same court, the same individuals who meted out this conviction and sentence are going to be called upon (to decide on this case). How can a litigant be happy about that?”

Mpofu added that Zuma had a reasonable apprehension of bias because he has questioned the basis of his contempt judgment and believes the affected judges will want to defend their decision.

“It is not a secret that he finds that judgment questionable. He will never accept that until his last day. He had to accept because we had to explain how the laws of the country work. It is not to say the judgment was wrong, it is to say the judgment was unacceptable in his view,” said Mpofu.

In response to questions from the court, Mpofu said Zuma was happy to have the case determined by this court but “not by yourselves”. His proposition creates a problem for the court however, as the recusal of six judges would mean it does not have the required quorum to hear the case.

Advocate TJ Magano, representing the Black Lawyers Association who have entered the case as amicus curiae (friends of the court) argued that the court should find a way to hear the case even if six judges are recused. He argued that acting judges could be appointed for the case, however Justice Nonkosi Mhlantla challenged this view by saying the Concourt had previously ruled that a recusal does not court as an absence, and therefore an acting judge could not be appointed for the case.

“One need not confine oneself to language…The constitution is a means to dispensing justice,” he said.

The IEC has opposed Zuma’s recusal application. Advocate Thembeka Ngcukaitobi argued that the judges of the Concourt “have a duty to sit in every case that is before you”.

“When you sit, we presume that you are impartial because you approach your job with intellectual forensic ability,” he said.

Ngcukaitobi added that in Zuma’s court papers, he concedes that the decision to sentence him was “legally competent” even though he questioned the decision.

“The correct position here is that that is your job. You have to sometimes find people guilty of contempt and then sometimes impose a punitive sentence. That is what this court is expected to do. And it cannot be a basis for recusal, even if the litigant who is on the receiving end believes that it is unjust. The mere fact that they believe it is unjust does not mean the decision is unjust in the eyes of the law. It is a subjective assessment,” he said.

The court will hear the main application in the case this afternoon. DM