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Two cheers for the ConCourt after the hearing on the Electoral Court judgment

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

So why then the absence of a third cheer? In the main, it is due to the manner in which the hearing proceeded.

In the first place, the Constitutional Court correctly dismissed the application brought by Jacob Zuma for the recusal of six justices of the court. Given that the case before the court turned on only two legal questions, both of which required an interpretation of section 47 of the Constitution, it was irrelevant that the selfsame court had, in June 2021, ordered Zuma to be imprisoned for contempt of court. 

Manifestly, the judges of the highest court in the land can apply themselves to the interpretation of the Constitution in an impartial manner. That Zuma considered the court’s decision to order his imprisonment to be unfair, if not illegal, could never meet the test for recusal, which the court had set out comprehensively in the President of South Africa v Sarfu, some 25 years earlier. 

Second, the court exhibited great patience and stamina in sitting from 10am to 8pm — an exhibition of overtime that is a fine example of judicial diligence. 

So why then the absence of a third cheer?

In the main, it is due to the manner in which the hearing proceeded. 

The court had increasingly moved toward the model of the US Supreme Court in limiting oral argument, and rightly so. 

The object of oral argument is to supplement comprehensive papers that set out the case of the contesting parties and which are accompanied by approximately 50 pages of written argument. By the time the appeal is heard, the court has enjoyed the benefit of the judgment of the court which is the subject of the appeal and knows the case of each party as set out in the written arguments. 

The issues before the court are generally clear. Take this case. The court was asked to decide on the meaning of section 47(1) (e), which disqualifies a person from being a member of the National Assembly,

“…who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but 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.”

The key questions were thus: does a term of imprisonment imposed by the Constitutional Court, where there is no right of appeal as it is the highest court, provide an exception to the disqualification? Or does the reference to appeal mean only when there is such a right and hence the disqualification does not apply until the appeal process (where there is one) is exhausted? 

Second, if the President remits the sentence to below 12 months, does that expunge the disqualification?

The entire debate on the merits concerned just these two questions. The counsel for the Electoral Commission of SA, the appellant, provided a precise set of oral arguments which addressed these two key questions. It took him no more than 30 minutes, a testimony to precise, analytical advocacy.

Unfortunately, he was then inundated with a host of questions from the Bench that appeared to re-litigate the majority judgment of the Constitutional Court in convicting Zuma of the offence of contempt of court. 

Once the precedent of the court is respected, the issue of whether Zuma could be convicted and sentenced without a further appeal because the Constitutional Court is the apex court from which there is no appeal, had been decided. The conviction and sentence complied with the law. Yet in different ways, justices based their interventions on the basis that this reading of the law was wrong. 

Finally, it was the turn of the counsel for Zuma. Astonishingly, but not surprisingly, he took almost two hours without interruption. When the Deputy Chief Justice sought to remind him that he had exceeded his time limit, he simply ignored her. Understandably, the court was anxious to appear scrupulously fair, particularly to a litigant like Zuma who adopts the Trump-like tactic of blaming the justice system for discriminating against him. 

But there are limits. For example, Judge Juan Merchan has, under significant pressure, ensured that defence lawyers in the Trump trial in New York City know the limits of conducting the trial. 

The failure to abide by the judicial conduct of a case can only weaken the image of the court. After all, counsel argue for the convenience of the court as opposed to the converse. Compounding the problem was the next two hours, when the exchange between counsel and the Bench amounted to further lengthy speeches which extended way beyond the two questions. Little attempt was made by the Bench to ensure focus on the key questions

The hearing was televised. The public had a ringside seat of the proceedings. The conduct of these proceedings helps to shape the public image of a key institution which protects and promotes the Constitution. The conduct of these proceedings should serve as a model of how appellate hearings should not be conducted in the future. This was why the court had instituted US Supreme Court-type time limits. DM

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  • Denise Smit says:

    As was expected . Everything and all procedures allowed to be buldozed again by Dali Mpofu. One wonders why?

    • Steve Davidson says:

      Probably the same BS as experienced in anything to do with the former US president. The courts are quite justifiably surprised that someone who had risen to that exalted position could be such a total and utter moronic, corrupt crook?

  • Sergei Rostov says:

    “Precise, analytical advocacy” and a precise, analytical article. The Professor should be on the Constitutional Court.

  • Helmut Straeuli says:

    Surely if you ‘overspeak’ the time limit you switch off the mic.

  • Jeff Pillay says:

    The reference to Trumps trial which has no merit & majority of Americans believe that the justice system is bias against trump shows the author don’t really have a “case” in his argument. He uses this to sway people to his thought process. This proves that the author is bias against ZUMA.

    • Con Tester says:

      Tendentious benighted tosh.

    • Grumpy Old Man says:

      Jeff, how you come to the conclusion that the author is biased against Zuma is beyond me.
      All the Prof is doing is drawing a comparison between two different cases and what the US has done to ensure that time limits set by the Courts are respected. Furthermore, that failure to respect these limits is to undermine there authority.
      There is no bias here

      • Rod H MacLeod says:

        GOM you will not get a response from Jeff. Your comment has flown roughly 8 feet over his head and about 45 degrees East.

    • Steve Davidson says:

      Total and utter BS. Trump is even worse than Zuma, and that’s saying something. A rich bliksem who has conned the similarly braindead to believe he’s on their side. You really shouldn’t believe anything you see on Fux News, assuming that’s where you get your twisted ideas.

    • George 007 says:

      Jeff, an American here. The majority of Americans don’t think the justice system is biased against Trump. It’s actually about a 50/50 split. Trump has been saying the justice system is biased against him for decades now. That may be what you’re referring to.

      Most Americans are suspicious of anyone having 91 felony counts against him, which makes sense.

  • anton meyer says:

    As a 70’s Activist, the spectacle of the Concourt hearing, Zuma – MK etc, is in my opinion “gross abuse” of the system…
    What Prof Balthazar did not include in his opinion piece is the fact that, regardless of the shenanigans by Correctional Service, the release on “medical” grounds???
    The original sentence, commuted???
    Is or was not expunged, right!!!???
    The Electoral Court’s reliance on it’s role, which deemed Zuma a fit & proper person, to stand as Parliamentary Candidate is disgraceful!
    The IEC submission is correct, the overreach by the Electoral Court is potentially to the Constitutional Order in South Africa….
    Section 47 of is not or should NOT fall within the purview of the Electoral Court, it seeks to overturn the apex Court decision/s…..

  • Colin Braude says:

    What seems to have escaped those at ConCourt is the implication of a presidential remission of sentence being conflated with a reduction of sentence.

    As a layperson, I understand that when a court passes a sentence, that is the sentence that remains with the accused, unless a higher court changes it on appeal.

    The actual time served can be reduced by parole or remission, but these are administrative acts that do not affect the “sentence” eg for Section 47; the separation of courts and administration remaining intact. Were a president able to “adjust” the *sentence* he or she is crossing the line of separation between judiciary and administration.

    Grateful if Prof Balthazar or another lawyer could address this.

    • Con Tester says:

      In an earlier DM article on 01/05/2024, advocate Paul Hoffman wrote, “Remission does not alter the sentence imposed, it merely ameliorates its effects. The doctrine of the separation of powers does not allow the executive to interfere with the sentencing function of the courts.”

      In other words, it’s the original sentence that was imposed by a court that counts, not any subsequent remission. Remission and parole leave the original sentence intact, and do not amount to a sentence reduction.

      The only time that the executive gets to affect a court’s sentence is in the case of a presidential pardon but there are some stringent hoops in the form of a three-pronged test that the president has to jump through before issuing such a pardon. But this isn’t relevant in Zuma’s case because he didn’t get a presidential pardon. His remission was part of an en masse remission of non-dangerous prisoners, ostensibly to relieve prison overcrowding.

    • Con Tester says:

      In an earlier DM article on 01/05/2024, advocate Paul Hoffman wrote, “Remission does not alter the sentence imposed, it merely ameliorates its effects. The doctrine of the separation of powers does not allow the executive to interfere with the sentencing function of the courts.”

      In other words, it’s the original sentence that was imposed by a court that counts, not any subsequent remission. Remission and parole leave the original sentence intact, and do not amount to a sentence reduction.

      The only time that the executive gets to affect a court’s sentence is in the case of a presidential pardon but there are some stringent hoops in the form of a three-pronged test that the president has to jump through before issuing such a pardon. But this isn’t relevant in Zuma’s case because he didn’t get a presidential pardon. His remission was part of an en masse remission of non-dangerous prisoners, ostensibly to relieve prison overcrowding.

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