As South Africa gears up for next month’s general election, anticipation is mounting over who will take the reins of power, with eyes keenly set beyond the ANC. Amidst the excitement, the controversy surrounding former president Jacob Zuma’s eligibility to run for Parliament adds another twist.

While the Electoral Court’s ruling sparked a clash of legal titans, the IEC’s urgent appeal to the Constitutional Court promises to be a battle of constitutional proportions.

“On any of the arguments that were made before it, the Electoral Court is wrong in law,” the IEC has argued in its quest to overturn the decision of the Electoral Court that Zuma was eligible to stand in the election.  

Ferial Haffajee argued in Daily Maverick, “The IEC should accept that the system in the Constitution has worked: the Electoral Court (created as a judicial appeal body to the IEC’s decisions) has made its findings. Let’s leave it there.”

Unfortunately, the IEC is not backing down and is “unable to wait for an unknown period when the Electoral Court will give its reasons [for its decision]”. The court has previously given reasons for its rulings after the election.

In the unreported case of The Chief Electoral Officer v The Electoral Commission and Others, Case No 04/2009, Electoral Court, 30 April 2009, for example, the Electoral Court upheld the objection of the Chief Electoral Officer on 4 April 2009 but only furnished its reasons for this decision on 30 April, after the general elections were held on 22 April 2009.

South Africa’s political landscape is a stage set for drama, intrigue and the quest for justice. Before we go further with this persistence of the IEC, it is worth addressing the appeal jurisdiction of the Electoral Court, noting in particular that section 96(1) of the Electoral Act, No 73 of 1998 provides as follows:

“(1) The Electoral Court has final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review.”

Some legal and political commentators have argued that appeals by the IEC to the Constitutional Court are prohibited by section 96(1) of the Electoral Act. This is a misunderstanding of the prevailing law.

The Constitutional Court in the case of the ANC vs the Chief Electoral Officer of the IEC in 2009 made it very clear that section 96(1) does not exclude its jurisdiction. This means that a decision or order of the Electoral Court is subject to appeal or review in the Constitutional Court. Section 2 of the Electoral Act itself provides that any person interpreting or applying the Act must do so in a manner that “gives effect to the constitutional … guarantees”, where the dispute itself concerns a constitutional matter within the jurisdiction of this court. 

ConCourt must address IEC’s role

Back to the issue. In its appeal to the Constitutional Court, the IEC said it needs that court to provide “certainty” about the proper interpretation of section 47 of the Constitution. In the court of public opinion, the IEC may appear to be clutching at straws. The IEC is canvassing the issue under the pressure of an impending election next month.  

What is left is for the Constitutional Court to do the following:

Once and for all address the disjuncture within our electoral system as it relates to the IEC as the custodian of free and fair elections, and its possible over-reach in this saga.

Although agreeing that limitations on Zuma’s right to stand for elections is a complicated affair, the Constitutional Court should be wary of endorsing infinite disqualifications that would hamstring future electoral processes

The IEC has been at pains to state that the appeal “is not intended to involve itself in the political field of play”, but rather to ensure a “free and fair” electoral process as expected under section 190(1)(a)(b) of the Constitution.

There is one problem though: If the IEC does not pursue this matter prudently, it runs the risk of being seen as indirectly stating that the remission of Zuma’s sentence was done by the ANC to meet self-serving ends and did not reflect prudent public policy judgment.

The Constitutional Court must also determine whether the initial decision of the IEC to disqualify Zuma, who was given a presidential remission of sentence, constituted an unjustifiable infringement of his constitutional right in terms of section 19(3)(b) of the Constitution to stand for election.

The Mail & Guardian quoted an interview with former KZN MEC Valentin Volker, who in the 1960s served as a National Party MP in the National Assembly, expressing the view that Zuma can stand for elections but cannot take up a seat in Parliament.

“So, after the elections, the rules will kick in, and as a result, Zuma is likely to be barred from taking up his seat in Parliament,” Volker was quoted as saying.

My gripe with Volker is that he is comparing apples with oranges. The 1966 election candidacy for Durban of Theo Culwick that he is using as precedent bears no similarity to the Zuma case.  

Culwick was a foreign national who was not in South Africa for more than five years and thus could not be eligible to take up a seat as MP. I am no advocate of Zuma, but the fact is that the law and issues such as precedence must be addressed soberly  

Drawing a parallel between Culwick’s 1966 election candidacy in Durban and the complex legal saga surrounding Zuma is not just comparing apples with oranges — it is comparing a fruit to a vegetable.

The circumstances surrounding Culwick’s case render it incomparable to Zuma’s situation, where notably the issue of presidential remission or pardon is at play. Culwick, a foreign national ineligible for parliamentary office due to residency requirements, presents a starkly different scenario.

While not a Zuma cheerleader, I advocate for a measured approach to legal discourse — one that eschews oversimplified comparisons and addresses each case with the gravity it deserves.

It would make sense if a comparison is made with cases such as Masemola v Special Pensions Appeal Board and Another [2019] ZACC 39, which shed light on the complex legal implications surrounding amnesty and the restoration of an individual’s “unblemished legal and civil status”.

Remission

The IEC has argued, “The remission would change how long Mr Zuma served, it would not change the sentence that was imposed.”

In my previous opinion, I stated that if the Electoral Court rules that a remission of sentence has the effect of reducing or expunging a prisoner’s sentence, “then Zuma should for all intents and purposes qualify for presidential candidacy…” 

If the IEC wants to portray itself as ignorant of the legal-historical meaning and purport of presidential remissions or not understanding the legal and practical distinctions between remissions and pardons, we are heading for troubled waters.

Remissions typically refer to the reduction or mitigation of the punishment without eliminating the conviction itself. It is thus still my firm opinion, which can be rendered wrong by the Constitutional Court appeal outcome, that remissions are granted to individuals who have been convicted to release them from all or part of their sentence.

I would like to quote as food for thought the 1866 case of Ex Parte Garland, 71 US 333 when the Supreme Court of the United States wrote:

“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender: … it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

Question of recusal

It is time to shake off any illusions of simplicity and confront the tangled web of legal and ethical dilemmas in this case. Whether you stand firmly with the IEC or have sympathy for Zuma, burying your head in the sand will not change the stark realities.

A potential conflict of interest looms large as the same court that ruled on Zuma’s contempt of its order resulting in his imprisonment on which basis only the IEC wants him disqualified now faces the task of deciding his electoral fate.

One person recently asked me: Can we truly expect impartiality when the judges who oversaw his imprisonment are now tasked with potentially disqualifying him from the electoral race?

This is a question that strikes at the heart of our judicial system’s integrity. To safeguard the principles of fairness and transparency, the spectre of recusal must be confronted head-on. Whether it means different judges within the Constitutional Court or an entirely new adjudicative body, the imperative remains clear: justice must not only be done but must also be seen to be done.

Recusal is a common practice in legal proceedings to uphold the integrity and impartiality of the judicial process. It is in the best interest of these elections and the public that all processes that ensue from the Zuma-IEC issue mitigate concerns about bias or conflicts of interest and ensure a fair and transparent assessment of the case. 

I rest my case. DM