Before the Independent Electoral Commission could make any decisions, former president Jacob Zuma was already declared ineligible by the constitution, according to a legal representative for the commission.
Tembeka Ngcukaitobi, an attorney, was before the Constitutional Court on Friday, contesting the ruling of the Electoral Court that permitted Zuma to run for office.
Because of his prior conviction in 2021—in which he was given a sentence of more than 12 months in prison for neglecting to appear before the Zondo Commission—the IEC had disqualified Zuma.
Section 47 of the Constitution, which states that a candidate cannot be elected to Parliament or a legislature if they have been found guilty of a crime and condemned without the option to pay a fine, served as the foundation for the judgment.
However, because Zuma was elected to a 12-month term without the right to appeal, the Electoral Court decided that section 47 of the constitution does not apply to him.
Ngcukaitobi contested this ruling, claiming that there is no discussion under South African law on the fact that contempt of court is a crime on par with other crimes.
“This lawsuit concerns section 47, which is the governing provision that determines whether an individual is disqualified or not.
Otherwise, it turns into a free-for-all in the absence of the disqualification clause. Both unrehabilitated insolvents and those that the court has deemed to be mentally incompetent will contest under section 19 of the constitution. “They will also be entitled to section 19 rights,” Ngcukaitobi stated.
Zuma is exempt from section 47 of the constitution, according to the Electoral Court’s grounds given following the ruling, because he served out his 12-month term without an appeal.
The court ruled that no one may be considered to have been sentenced until the outcome of an appeal against the conviction or sentence, or until the appeal period had passed.
Electoral Court Chairperson Dumisani Zondi stated in the majority ruling that a person’s conviction and sentencing under section 47(1) do not automatically revoke their right to vote.
Zondi emphasized that the constitution allows for the appeal of punishments for those who have been found guilty.
“A person convicted and sentenced has the right to appeal against their conviction and sentence, provided that the trial court grants them permission to do so or, in the event that they are denied, they may petition the superior court.” This was acknowledged by the drafters of the Constitution.
They would not have included the clause that aims to maintain the status quo while the appeals procedure is underway if they did not think that fact was significant.
Put another way, a person who has been found guilty and sentenced does not automatically lose their case until the appeals process has concluded, or unless they decide not to challenge their conviction and/or sentence.
“In my opinion, the sentence imposed on Mr. Zuma cannot be considered one that is contemplated by the clause.
“It was a mistake for the commission to support a protest against Mr. Zuma’s candidacy on the grounds that his sentence rendered him ineligible to serve as a member of the National Assembly,” stated Zondi.
Ngcukaitobi, however, countered that the Constitutional Court had already determined on four different occasions that contempt of court constituted a crime.
“Mr. Zuma was found guilty of a crime and given a sentence of more than a year without the possibility of a fine. Contempt of court is an offense. According to section 47(1)(e) of the constitution, he clearly qualifies as a disqualified candidate, the speaker declared.
Before the elections, according to Ngcukaitobi, the interpretation of section 47 should be clarified.
After the elections, he claimed, the IEC would not be interested in the situation.
“The ruling defeats section 47’s intent, which is to shield the people from criminals who are now passing themselves off as legislators. Additionally, this protective goal preserves Parliament’s institutional integrity.
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