Former president Jacob Zuma’s legal representative, Dali Mpofu, has criticised the Electoral Commission of SA (IEC), saying it has no power to determine membership of the National Assembly and describing its attitude towards his client as akin to the apartheid regime denying people their political rights.
The uMkhonto weSizwe (MK) party is appealing against the IEC’s decision to bar Zuma from being one of its candidates to parliament after the 2024 national and provincial elections on May 29 in the electoral court sitting in Johannesburg.
Zuma backs the MK party and his name appears first on its candidate list, though the IEC in March said Zuma was ineligible to stand due to his criminal record arising from a 15-month prison sentence imposed by the Constitutional Court in 2021.
Section 47 of the constitution bars individuals sentenced to prison for longer than 12 months without the option of a fine from becoming MPs.
However, Mpofu argued that the IEC lacked the power, jurisdiction and/or authority to implement section 47(1)(e) of the constitution, which deals with regulating membership of the National Assembly. That power resided with the National Assembly itself, he said.
In the appeal documents Business Day has seen, dated April 2, Zuma’s legal representatives argued that the former head of state had not been convicted of an offence and the sentence meted out to him by the Constitutional Court was unappealable.
Political rights
Mpofu on Monday likened the IEC’s attitude to the apartheid regime, which he said had disenfranchised millions of people by banning their organisations and their leaders to make sure they did not participate in the political space.
“In SA, and in any other country, we should be extremely cautious to not deny political rights of anybody. The mere reason we have a constitution ... is because people were denied their rights to vote and stand for political office. The attitude of the IEC is exactly the opposite,” said Mpofu.
The IEC’s attitude, he said, was tantamount to the commission saying: “Let’s see where we can catch him, and when we do catch him, let’s make sure he doesn’t come out alive.”
Mpofu said: “That can’t be the attitude of the IEC.
“We can’t afford, as a country, to disenfranchise [people], whether it’s Zuma, the MK party ... at a whim, as it were ...
“We are also dealing with a right of Mr Zuma, which has been infringed. Every citizen, those we like and those we don’t like, have the right to stand for political office and, if elected, to hold political office.”
He challenged the IEC to “tell this court where it gets the authority to implement section 47. The answer is nowhere. The IEC is a creature of statute. You can’t wake up and do what you want ... The IEC has no power to determine membership of the National Assembly.”
Mpofu said one of the affairs of parliament was to determine who “is a member and who is not a member”. The IEC had nothing to do with it, he said. “The IEC overreached and encroached on the domain of the National Assembly.”
Zuma’s legal team argues that the former president was neither accused of nor charged with an offence by a criminal court, and that he was not afforded “fair criminal rights” in terms of the constitution.
Zuma began serving his sentence on July 8 2021, before being released on medical parole in September 2021. His release was challenged and set aside by the Constitutional Court. In August 2023, President Cyril Ramaphosa granted Zuma “remission of his sentence in terms of section 84(2) of the constitution”.
Mpofu argued that Zuma was not pardoned. “The difference between a pardon and remission is this: a pardon is to forgive a conviction and sentence. A remission is to forgive the sentence. It’s not rocket science. ‘Remission’ is to cancel ...
“Once a sentence is set aside, it is set aside.”
But Tembeka Ngcukaitobi, for the IEC, said Zuma was convicted of contempt of court, which was both an offence and a crime. “Contempt is a crime. Mr Zuma has been found guilty of a crime. We are dealing with someone who is a convict. Convicted of an offence,” he said.
He said it would be unconstitutional for the electoral court to “depart from the judgment of the Constitutional Court”.
“Mr Zuma was guilty of contempt of an order of the Constitutional Court. The fact that there was no appeal is irrelevant,” Ngcukaitobi argued.
That there was remission of sentence was neither here nor there. “The president has no power to change the sentence [imposed on Zuma]. He didn’t say Mr Zuma is no longer sentenced to 15 months but to three months ... People in Mr Zuma’s position should not be in parliament, simple as that.”
The electoral court is expected to deliver its ruling on Tuesday.
Update: April 8 2024:
This article has been updated with arguments by IEC legal representative advocate Tembeka Ngcukaitobi.
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