Authored By: Lesego Kgosana
University of South Africa
Electoral Commission of South Africa also known as an Independent Electoral Commission is South Africa’s election body which was established under chapter nine of the Constitution.
Umkhonto Wesizwe Political Party is a South African left-wing populist party named after Jacob Zuma.
Constitutional Court of South Africa
Decided: 20 May 2024
Background
In December 2020, the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State approached the Constitutional Court to order Mr Jacob Zuma to co-operate with the Commission’s investigations and objectives. On 28 January 2021, the court handed down judgement in that matter, ordering Mr Zuma to appear and give evidence before it. Mr Zuma did not comply with the Court’s order. Consequently, the Chairperson of the Commission announced that it would launch contempt of court proceedings.
On 29 June 2021 at 10h00, the Constitutional Court delivered judgement in a subsequent application seeking an order to declare the former President Jacob Zuma to be in contempt of court. Mr Jacob Zuma was sentenced to 15 months of imprisonment.
Mr Jacob Zuma commenced the serving of his sentence on Thursday, 8 July 2021. On the 5th of September 2021, Mr Zuma was released by the National Commissioner of Correctional Services on medical parole. On 5 December 2021, the High Court set aside Mr Zuma’s release on the basis that it was unlawful. On 21 November 2022, the Supreme Court of Appeal dismissed the appeal against the High Court’s decision.1 The Supreme Court of Appeal dismissed the application for leave to appeal on 13 July 2023.
Mr Jacob Zuma went back to prison on 11 August 2023. On the same day, the President, Cyril Ramaphosa, acting in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, issued a Proclamation Notice 133 of 2023 that a special remission of sentences for sentenced offenders convicted of non-violent crimes. The special remission applied to over 9 000 sentenced offenders, including Mr Jacob Zuma. He was released from prison on the same day he went back after having served three months of his initial sentence.
On 8 March, the Umkhonto Wesizwe Political Party (MR Party), which is the first respondent in this matter, submitted its list of candidate to the Electoral Commission of South Africa for the National Assembly in the upcoming election. The MK Party included Mr Jacob Zuma in its list of candidates.
Electoral Act 73 of 1993
Section 30 of the Electoral Act stipulates:
‘Any person, including the chief electoral officer, may object to the nomination of a candidate is he or she is not qualified to stand in election.’2
The provision allows any person to object to the nomination of a candidate on the ground of not being qualified to stand election. The Commission received 22 objections to Mr Jacob Zuma’s eligibility to stand election based on section 47(1)(e) of the Constitution of the Republic of South Africa.
Electoral Court Judgement
The Electoral Court set aside the Commission’s decision. Zondi JA rejected the argument by the respondents that a remission of sentence cancels the remainder of a sentence and gave reasons that it would displease the separation of powers for the President to undo what the judiciary has done through the suspension of sentences. He concluded that the Court’s sentence is not a sentence of the essence apprehended in section 47(1)(e) as Mr Zuma could not appeal against the conviction and sentence. Four members of the Electoral Commission agreed with the latter proposition.
Modiba J reasoned that the effect of the remission of Mr Zuma’s sentence was to reduce the sentence to three months. Therefore, not disqualified from being a member of the National Assembly.
Yacoob AJ disagreed with Zondi JA’s separation of powers concerns and Modiba J’s reasoning, but however, agreed with Zondi JA interpretation of section 47(1)(e) and that the remission did not reduce the effective sentence, but only time spent in prison.
Issues
The issues that arise in this matter from the application for leave to appeal directly and the cross-appeal are discussed as follows:
a) The proper interpretation of section 47(1)(e) of the Constitution of the Republic of South Africa;
b) Whether certain judges of the Court are compelled to recuse themselves from these proceedings;
c) The effect of the remission of a sentence in excess of 12 months imprisonment to a sentence of 12 months imprisonment and less;
d) Whether the Commission’s decision was vitiated by a reasonable apprehension of bias; and
e) Whether Mr Jacob Zuma was convicted in terms of section 47(1)(e) Analysis
Recusal Application
On 3 May 2024, the respondents filed an application for the recusal of Theron J, Majiedt J, Madlanga J, Mhlantla J and Tshiqi J on the basis that they are tainted by bias; and the recusal of Zondo CJ on the basis that he was a complainant in the contempt judgement; and an application for leave to cross-appeal. Zondo CJ recused himself from the proceedings, however, the other judges declined to recuse themselves. As a result, the Court dismissed the recusal application and stated that reasons would follow in the main judgement.
The respondent failed to prove that there can be any reasonable apprehension that the judges in question would fail to act impartially. Therefore, it is for these reasons that the recusal application was dismissed.
Interpretation of section 47(1)(e) of the Constitution of the Republic of South Africa
Section 47(1)(e) stipulates that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except when convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine. The provision further stipulates that the disqualification ends five years after the sentence has been completed.
This provision contains two components to its interpretation. Firstly, it enforces a substantive disqualification that disqualifies anyone convicted of an offence and sentenced to more than 12 months of imprisonment without the option of a fine from being eligible to be a member of the National Assembly. Secondly, it contains a provisio that stipulates the time at which a person is regarded as having been sentenced until:
- an appeal against the conviction or sentence has been determined; or
- the time for an appeal has expired.
Remission of a sentence
Section 84(2)(j) of the Constitution entrusts the President with the power to pardon, reprieve and remission.
The respondents submitted that the remission by the President reduced Mr Zuma’s sentenced to three months and that by the act of remission, the remaining 12 months of the sentence was erased. Therefore, his sentence was reduced to three months, which is less than 12 months stated in section 47(1)(e) of the Constitution.
According to the Commission’s interpretation, the remission did not erase Mr Zuma’s conviction or sentence. He was still convicted and sentenced to more than 12 months imprisonment. The period of imprisonment enforced by the judiciary can be reduced by the President through a remission of a sentence, but it does not change what has been judicially decided.
The drafters of the Constitution intended that the original sentence determines the disqualification under section 47(1)(e) of the Constitution, not the actual term served. Remission is therefore, irrelevant to section 47(1)(e).
Reasonable apprehension of bias
The respondents argues that there was a reasonable apprehension of bias on the part of the Commission as a whole, was legally excluded from deciding the question of Mr Jacob Zuma’s eligibility to stand in elections. They quote a statement made by one of the Commissioners, Ms Janet Love, at a press briefing, regarding Mr Zuma’s eligibility to stand as a candidate in the elections: “That excludes anybody who has been given a sentence that was not the subject of any deferral, and in that sense, it is not ourselves, but the laws of the country that would stand as an implement for the candidacy”. They argue that although the statement was made solely by Commissioner Love, she was speaking on behalf of the Commission as a whole and that her statement was endorsed by its silence. They further argue that Commissioner Love’s failure to recuse herself from the proceedings of the determination of the objection lodged against Mr Zuma’s candidacy renders the decision by the Commission a nullity.
The Commission denies being biased and partial in determining Mr Zuma’s eligibility to stand in the elections. It says that the statement made by Commissioner Love was a restatement of the law in which she emphasised that if Mr Zuma was ineligible, it would be as a result of the law and not of the Commissioners’ personal views. It further states that Commissioner Love was not expressing a view on Mr Zuma’s eligibility, but simply emphasising on the effect of section 47(1)(e).
The test for bias is objective and a reasonable suspicion of bias “is tested against the perception of an informed, reasonable and objective person.
The Electoral Court found that the context in which the Commissioner was speaking for the Commission was “ambiguous” and “without specificity”, with reasons that the statement was simply suggesting that “a person who falls into a category defined by the law would be excluded from standing as s candidate”; and that without more, there is no basis for a conclusion of bias.
Conviction
The respondents argue that the conviction against Mr Jacob Zuma is not a “conviction” as contemplated by section 47(1)(e).
They reason as follows:
a) Mr Zuma was not charged of a criminal offence by a criminal court;
b) Mr Zuma was not involved in any criminal trial proceedings;
c) Mr Zuma was not granted fair criminal rights in terms of section 35(3) of the Constitution.
Order
The following order is made:
- The applicant is granted leave to appeal directly to the Constitutional Court.
- Mr Jacob Zuma was convicted of an offence and sentenced to more than 12 months imprisonment for the purpose of section 47(1)(e) of the Constitution and therefore not eligible to be a member of the National Assembly and not qualified to stand election, until five years have elapsed from the completion of his sentence.
Conclusion
The Constitution of the Republic of South Africa was drafted and adopted to provide a legal foundation for the government and ensuring the rule of law, amongst other aspects. Section 47(1)(e) states that anyone 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 and thus disqualified to stand for elections.
Acting in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, President Cyril Ramaphosa issued a special remission of sentences for sentenced offenders convicted of non-violent crimes, which included Mr Jacob Zuma. The remission of sentence does not however, affect the sentenced imposed on a person, rather affects the period served.
Consequently, the court has established through an application of legislation and case law that the conviction of Mr Jacob Zuma has affected his eligibility to be a member of the National Assembly and automatically disqualifies him to stand for elections until the five years has elapsed.
Practical implications
In light of this case, section 47(1)(e) of the Constitution affirms that a citizen is eligible to be a member of the National Assembly and qualifies to stand elections of the Assembly unless he/she was convicted of an offence and sentenced to 12 months imprisonment.
Section 30 of the Electoral Act stipulates that any person may object to the nomination of a candidate to the Commission.
BIBLIOGRAPHY
Case
Electoral Commission of South Africa v Umkhonto Wesizwe Political Party (CCT 97/24) [2024] ZACC 6; 2024 (7) BCLR 869 (CC); 2025 (5) SA 1 (CC) (20 May 2024)
1 National Commissioner of Correctional Services v Democratic Alliance (with South African Institute of Race Relations intervening as Amicus Curiae) [2022] ZASCA 159; 2023 (2) SA 530 (SCA) (National Commissioner of Correctional Services).
2 Electoral Act 73 of 1993.
