The Electoral Court will on Tuesday deliver judgment on whether former president Jacob Zuma should be included on the list of candidates to Parliament, following an application by his party to object to his removal.
The uMkhonto weSizwe (MK) party lodged an application to oppose the removal of Zuma from the list because of conviction and sentence by the Constitutional Court for defying its order.
Judge Dumisani Zondi said they will deliver the judgment on Tuesday to stick to the timetable of the Electoral Commission of South Africa (IEC) to make a decision on objections made against candidates contesting for seats in Parliament.
The IEC squared up the with MK party where they argued over the removal of Zuma from the list of candidates because of his conviction and sentence.
Advocate Thembeka Ngcukaitobi SC for the IEC argued that the drafters of the Constitution were clear when they crafted a section that bars people who have been sentenced to more than 12 months in prison.
Ngcukaitobi said law-breakers could not be allowed to be lawmakers.
“Mr Zuma is one of the people precluded by the Constitution and that will never change,” said Ngcukaitobi.
That was what the Constitution outlined on the people who have been convicted.
But MK party counsel, advocate Dali Mpofu SC argued at the Electoral Court on Monday that the IEC has no authority to disqualify Zuma to be on the list of candidates for Parliament.
He said that authority lies with the National Assembly.
Ngcukaitobi said Zuma was disqualified by section 47 of the Constitution to contest for a seat in Parliament.
The IEC was correct to uphold the objection against the inclusion of Zuma on the list of candidates.
Ngcukaitobi said the Electoral Act regulates the submission of lists of candidates. This is in line with the timetable of the IEC, which also calls for objections on candidates.
The law was specific that people who have been sentenced to more than 12 months in prison would not qualify as candidates for elections.
Section 47 of the Constitution was seeking to address this group of candidates who have a conviction.
Ngcukaitobi said contempt of court was a criminal offence.
“It is irrelevant that conviction came through a civil process. What is relevant is that contempt is a crime, and Zuma has been found guilty of a crime.
“It is true that it is not appealable, That is what the Constitutional Court found. It knew that it was not appealable. Zuma argued there at the Constitutional Court that it was unfair to convict him for contempt when he had no right for appeal, but the Constitutional Court decided against him,” said Ngcukaitobi.
On the sentence, he said Zuma was sentenced to 15 months by the apex court, but only served three months.
However, this did not take away the fact that the sentence was imposed by the Constitutional Court over his refusal to testify in the Zondo Commission of Inquiry into State Capture.
The fact that President Cyril Ramaphosa granted a remission to Zuma and thousands of other prisoners does not remove the 15 month sentence imposed by the court.
“Section 47 is about a sentence imposed by a court. The president has no power to impose a sentence.
“We must not conflate this with remission. The remission did not change the sentence. The executive can say we are forgiving you, you can go home.”
The fact that judges of the Constitutional Court imposed a sentence of 15 months showed the offence was serious.
“What the constitutional drafters are telling us is that law-breakers cannot be lawmakers. We say the president has no power to change the sentence. He has the power to effect the period of release.”
Ngcukaitobi said they were not sitting at the Electoral Court to look at the sentence imposed by the court. That process was completed and it did not matter that Zuma served less than 15 months in prison.
But the MK party argued that the IEC had no authority to remove Zuma from the list of candidates to Parliament.
Mpofu argued that they were dealing with a serious matter that sought to disenfranchise millions of voters who wanted to vote for a candidate of their choice.
He said the IEC acted outside of its mandate by removing Zuma from the list and encroached on the powers of the National Assembly.
Mpofu said Zuma was convicted and sentenced by the Constitutional Court without being allowed to appeal.
“We all know there was no trial, no plea. Zuma was the only person who sat in court without pleading guilty or not,” he said.
However, Zuma’s sentence was reduced after he was granted remission of sentence by Ramaphosa when he made an announcement on thousands of prisoners who were granted remission of sentence.
Mpofu said what has brought them to court was interpretation of section 47 of the Constitution, which deals with the membership of the National Assembly.
“It is about the interpretation of section 47. It is about whether the administration of section 47 lies with the IEC,” said Mpofu.
“That is where we are. Section 47 deals with the membership of the National Assembly. The section reminds us of section 19 that every citizen who qualifies to vote, including Zuma, is eligible to be a member of the National Assembly.
“The IEC must tell this court where it gets the authority to implement section 47. The answer is nowhere. The only power of the IEC is found in section 190 of the Constitution. It says the commission must manage elections, ensure the elections are free and fair and declare the results.”
He argued that the the National Assembly was entrusted with the powers to manage its own affairs, However, the judiciary cannot get involved in it, let alone the IEC.
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