WRAP | ConCourt finds Zuma not eligible or qualified to stand for election to National Assembly

Another ANC alliance partner, the South African Communist Party (SACP), welcomed "the definitive clarity that the Constitutional Court has given, not only regarding whether former President Jacob Zuma but also other convicted lawbreakers who fall into the same category are eligible to stand as candidates for election".

"Zuma and his supporters must accept the rule of democratic law. According to South Africa's democratically adopted constitution, any person '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', is not eligible to stand as a candidate for election," reads the statement.

"This exclusion applies 'until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired'. The constitution does not end there. It concludes by stating that the exclusion applies until ‘five years after the sentence has been completed'."

– Jan Gerber

ANC alliance partner, trade union federation Cosatu, has welcomed the Constitutional Court’s ruling, with acting spokesperson Matthew Parks describing it as a "another welcome signal that South Africa is turning the corner from the days of state capture and corruption when politicians could behave with impunity".

"It was clear to all sober persons that the former President is ineligible to stand for election to Parliament as five years has not passed since the completion of the sentence for his criminal conviction.

"The Constitutional prohibition on persons convicted of criminal offences and sentenced to prison for more than 12 months without the option of a fine was deliberately put in place to prevent hardened criminals sitting in Parliament and drafting laws that are meant to protect society from criminals.

"We are pleased that this circus has been put to rest and society can now focus on ensuring the May 29th elections take place without any hindrance. Given the repeated threats by senior leaders of Mr. Zuma’s party, the MK Party, to unleash violence if he was not allowed to contest the elections, it is critical that the South African Police Service, with the support of the State Security Agency and the South African National Defence Force be deployed on the ground and immediately arrest and prosecute any persons who seek to instigate violence or undermine the running of the elections."

– Jan Gerber

Reacting to the judgment, the IEC said it noted the Constitutional Court decision, which clarified the commission's role in qualifying candidates nominated to stand for election to the National Assembly.

While Zuma's face will remain on the ballot, his name will be removed from the nomination list, the commission said .In a statement, the IEC said: "The Electoral Commission had approached the Constitutional Court to seek clarity on whether it had powers to enforce section 47(1) of the Constitution."

The section is about persons who are eligible to be members of the National Assembly. Now that the matter has been settled by the highest court and given that the constitutional uncertainties have been clarified, the commission can continue with final preparations for free and fair 2024 national and provincial elections single-mindedly, without apprehension that the elections are susceptible to challenge. To avoid confusion, the Commission reiterates that the judgment will not affect the ballot papers for the 2024 NPE in any way.

"The photograph of Mr Jacob Zuma will remain in the cluster of identifiers of uMkhonto weSizwe (MK) Party. The name of Mr Jacob Zuma will, however, be removed from the list of candidates nominated by MK Party."

- Amanda Khoza.

The Council for the Advancement of the South African Constitution's (Casac) Lawson Naidoo said: "We welcome a clear and reasoned unanimous judgment of the ConCourt that provides clarity on the proper interpretation of section 47 (1)(e) of the Constitution."

Casac was also a friend of the court in the matter.

- Amanda Khoza.

Ahmed Kathrada Foundation's executive director, Neeshan Balton, said the organization asked to be a friend of the court because "Zuma should not have been allowed to contest the elections, to begin with."

Balton said: "From the outset, we thought that the former president should not have never been a candidate. All our objections to him being a candidate were too late at the IEC because one of the first things that a member of Parliament will have to do is to swear to uphold the Constitution, and when you do that, you don't then intend to defy the Constitutional Court, in particular."

"He (Zuma) was found to have been defiant, not wanting to adhere to the rulings of the court, and should, therefore, not have been considered a candidate in the first place"

- Amanda Khoza.

ANC president Cyril Ramaphosa said he "notes" the ConCourt judgement.

"The court has ruled, and as I have often said, that is the highest court in the land and we have given the judiciary the right to arbitrate dispute amongst us in terms of our constitution. So they came out with a ruling, and I noted that ruling," Ramaphosa said.

The president made the comments during an interview with radio 702 on Monday morning.

- Siyamtanda Capa.

Reacting to the Constitutional Court judgement, uMkhonto weSizwe Party's spokesperson, Nhlamulo Ndhlela, said the ruling has no bearing on the party.

"Firstly, we have always said that (former) president Jacob Zuma is not power hungry. Secondly, president Zuma is still the party president and the MK Party is going to get the two-thirds majority. We will take control. President Zuma does not have to be the president, he is still the brains behind any president that will be deployed. So, it does not mean that the president that we deploy will not be guided on how to run the country. You might as well see it as president Zuma still running the country, regardless of whoever becomes the president," he said.

The legal blow comes after Zuma launched the party's manifesto at the Orlando Stadium in Soweto on Saturday. Zuma's face will be on the ballot when South Africans vote on 29 May.

- Amanda Khoza

MKP members chant outside of the court following a ruling by the Constitutional Court. The members say they will continue to get guidance from party leader Jacob Zuma.

Picture: Thahasello Mphatsoe/News24

MKP secretary-general, Sihle Ngubane addresses the media outside the constitutionally court after the judgment, He says "We are disappointed by the judgment but Jacob Zuma remains the leader of the MK party and will be on the ballot."

Picture: Thahasello Mphatsoe/News24

MK members sing: "what did Zuma do" outside the Constitutional Court following a ruling that he is ineligible to stand for election to the National Assembly. 

Picture: Thahasello Mphatsoe/News24

MK members sing: "what did Zuma do" outside the Constitutional Court following a ruling that he is ineligible to stand for election to the National Assembly. 

Picture: Thahasello Mphatsoe/News24

The Constitutional Court grants the IEC leave to appeal to it directly. It declares that "Mr Zuma was convicted of an offence and sentenced to more than 12 months imprisonment for purposes of election 47(1)(e) of the Constitution and is accordingly not eligible to be a member of and not qualified to stand for election to the National Assembly, until 5 years have lapsed since the completion of his sentence. The order of the Electoral Court is set aside and replaced with the following: "The appeal is dismissed". The counter-application [by Zuma and the MK] is dismissed. There is no order as to costs in this court".

- Karyn Maughan

Earlier, Justice Theron said: "Mr Zuma was convicted in that this court found him guilty of the crime of contempt of court. This Court concludes that Mr Zuma was convicted of an offence and sentenced to more than 12 months imprisonment for the purposes of section 47(1)(e) of the constitution and is accordingly not eligible to be a member of and not qualified to stand for election to the National Assembly, until 5 years have lapsed since the completion of his sentence." 

- Karyn Maughan

Theron makes no order as to costs. Court adjourned.

- Jan Gerber

Theron says Zuma is not eligible to be an MP.

- Jan Gerber

Theron says the court finds there is no difference between a conviction of a criminal offence of contempt and a civil conviction. The court can't draw a distinction.

- Jan Gerber

On Zuma and the MK's accusations of bias against IEC Commissioner Janet Love, Theron says the Constitutional Court has agreed with the Electoral Court, which she says correctly found that she was making general remarks and was not specifically referring to Zuma.

- Karyn Maughan

Some MK members arrived late and are denied entrance into the Constitutional Court.

Picture: Thahasello Mphatsoe/News24

Theron says the apex court has also overturned the Electoral Court's ruling that Ramaphosa's remission of Zuma's sentence had reduced it to three months. It has found that the remission has no impact on the 15 month term imposed on Zuma, which disqualifies him from serving in Parliament.

- Karyn Maughan

Theron says section 47(e) focuses on the length of the sentence posed, not the sentence served, and remission of sentence is irrelevant.

- Jan Gerber

Theron says the reasoning of the Electoral Court that Zuma's sentence wasn't one contemplated in section 47 cannot be sustained.

- Jan Gerber

She says the aim of the exclusion in section 47 is aimed at protecting the rule of law.

- Jan Gerber

Theron says the apex court has found that it is in the interests of justice for it to hear this case.

- Karyn Maughan

"This court finds that it is in the interests of justice to hear this matter," says Theron, as the eligibility of MPs is a matter of public interests.

- Jan Gerber

Justice Theron says an unanimous judgment penned by herself, the Court finds that no case has been made out for the recusal of the judges, because Zuma and MK Party failed to prove that the judges would be biased.

- Jan Gerber

The Constitutional Court has ruled unanimously that no case had been made out by Zuma and the MK for the recusal of the justices in this case.

- Karyn Maughan

Writing on behalf of the Electoral Court in a ruling that the IEC is now seeking to appeal, however, Judge Dumisani Zondi found that Zuma could not be said to have been "sentenced" according to section 47(1)(e) of the Constitution because he hadn’t been able to appeal.

"In other words, the conviction and sentence do not take effect until the appeal process has taken place alternatively a convicted and sentenced person has elected to not appeal the conviction and/or sentence," Zondi said. "In my view the sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates. The Commission erred therefore to uphold an objection to Mr Zuma’s candidacy on the basis that the sentence that was imposed on him disqualified him from being eligible to be a member of National Assembly".

In heads of argument before the Constitutional Court, the IEC says this reasoning is clearly wrong, as section 47(1)(e) of the Constitution "draws no distinction between sentences imposed by this Court and other courts". "The fact that a sentence is not appealable does not make it a non-sentence," it adds. The IEC further argues that the meaning of text in section 47(1)(e) of the constitution is clear: "anyone convicted of an offence and sentenced to more than 12 months' imprisonment" without the option of a fine is not eligible to serve in the National Assembly—precisely the thing that the Electoral Court has permitted Mr Zuma to do”.

"And the text serves the singularly important purpose of ensuring that a lawbreaker sentenced to more than 12 months' imprisonment without the option of a fine does not become a lawmaker. This on its own protects the public from public representatives who are criminally convicted, and to secure the integrity of Parliament itself,” the commission adds.

- Karyn Maughan

Justice Theron says the Electoral Court concluded that the contempt of court sentence is not a sentence contemplated in section 47 of the Constitution. She adds that the court was split on this decision, and that some judges found that the remission meant that Zuma was sentenced for 3 months, and therefore not disqualified.

- Jan Gerber

The Constitutional Court is ruling on Zuma’s eligibility to serve in Parliament – following his 15 month sentence for contempt of the apex court.

The ruling follows an urgent bid by the Electoral Commission of South Africa (IEC) to challenge the Electoral Court’s findings that Zuma does qualify for election to the National Assembly, because his sentence for defying a Constitutional Court order that he appear before the Zondo Inquiry could not be appealed. The Electoral Court found the 15-month term therefore did not qualify as a "sentence" under section 47(1)(e) of the Constitution. Section 47(1)(e) of the Constitution disqualifies anyone who "is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine" from serving in the National Assembly but 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".

The IEC is also seeking to challenge the Electoral Court majority finding that President Cyril Ramaphosa's decision to grant a remission of sentence to thousands of inmates to "address prison overcrowding", and ensure Zuma was immediately released from prison after he was forced to return because his medical parole was found to be unlawful, had reduced his sentence to "three months". This shorter sentence length would mean Zuma could serve as an MP.

- Karyn Maughan

Justice Leona Theron is delivering the ruling. She was vocal in her criticism of the apex court's decision to jail former President Jacob Zuma for contempt on its ruling that he should appear before the State Capture Inquiry. She is giving a brief history of the litigation that preceded the court's ruling today.

- Karyn Maughan

Theron says President Cyril Ramaphosa, on the same day that Zuma returned to prison, released thousands of prisoners on a special remission, including Zuma.

- Jan Gerber

Theron refers to the court sentencing Zuma to 15 months in prison for contempt of court and that he was unlawfully released on medical parole.

- Jan Gerber

Justice Leona Theron reads the judgment.

- Jan Gerber

MK Party members arriving at the Constitutional Court ahead of the judgment on former president Jacob Zuma's eligibility to head back to Parliament. 

Picture: Thahasello Mphatsoe/News24

Heavy police presence outside the Constitutional Court ahead of a judgment on former president Jacob Zuma's fitness to go to Parliament as an MP for the uMkhonto weSizwe Party. 

Picture: Thahasello Mphatsoe/News24

ConCourt to rule on Zuma's eligibility for Parliament on Monday

The Constitutional Court will rule on former president Jacob Zuma's eligibility to serve in Parliament as an MP for the Umkhonto weSizwe Party - following his 15-month sentence for contempt of the apex court – on Monday at 10:00.

The ruling follows an urgent bid by the Electoral Commission of South Africa (IEC) to challenge the Electoral Court's findings that Zuma qualifies for election to the National Assembly because his sentence for defying a Constitutional Court order to appear before the Zondo Commission could not be appealed.

The Electoral Court found the 15-month term, therefore, did not qualify as a "sentence" under section 47(1)(e) of the Constitution. Section 47(1)(e) of the Constitution disqualifies anyone who "is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine" from serving in the National Assembly, but 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".

Mpofu only provided a reference to acting Justice Bilchitz.

Deputy Chief Justice Mandisa Maya says judgment is reserved and adjourns the court.

- Jan Gerber

Ngcukaitobi concludes. Mpofu wants to speak some more.

- Jan Gerber

Ngcukaitobi says it is plainly an obligation of the IEC to screen prospective candidates.

- Jan Gerber

Ngcukaitobi says it is not a punishment against Zuma to not allow him to go to Parliament, but it is to protect the public.

- Jan Gerber

Ngcukaitobi will respond now. He says he'll try to be succinct.

- Jan Gerber

Mpofu concludes.

- Jan Gerber

Mpofu has been arguing for nearly five hours.

- Karyn Maughan

Mpofu is done answering questions. He continues to address the court.

- Jan Gerber

Comment: Theron dissented with the Constitutional Court's majority ruling that Zuma should be immediately jailed for contempt and said he should be tried by a criminal court.

But, during earlier interactions with Mpofu, she made it clear that she agreed with the IEC that, by finding that Zuma did indeed qualify to serve in the National Assembly because of the way in which he was convicted, sentenced and released, the Electoral Court had effectively invalidated the apex court's contempt ruling against the former president.

"The effect of the decision of the Electoral Court is basically to nullify a decision of this court and even though I may not agree with the contempt judgment, I am not sure that a consequence that nullifies a decision of this court is something I can live with. And I’m speaking just for myself now," she said.

- Karyn Maughan