Lawyers for the South African Electoral Commission (IEC) said on Friday that former president Jacob Zuma's criminal record does not disqualify him from running for the Umkhonto Wesizwe Party seat in this month's national elections. He claimed there was no basis for it. .
Advocate Thembeka Ngcukaitobi told the Constitutional Court that Zuma's conviction three years ago was controversial when he was sentenced to 15 months in prison for contempt of court. He said there was no room for that.
He therefore violated Article 47(1)(e) of the Constitution, which prohibits a person sentenced to imprisonment for more than 12 months without option of a fine from serving as a member of Parliament for five years.
The IEC had sought direct access to the Constitutional Court to appeal a surprise ruling by the Electoral Tribunal last month that upheld the party's appeal against the IEC's decision to disqualify Mr Zuma.
Mr Zuma's lawyers argue that the clause does not apply to him for at least three reasons, one of which is that his conviction was not legally eligible.
Advocate Dali Mpofu went so far as to argue that his client Zuma's imprisonment without trial was the worst travesty of justice in the country's legal history.
Although this argument makes a strong case for the hybrid nature of insults, it overturns the established principle that civil contempt is punishable as a crime.
“There is absolutely no dispute that contempt of court is a crime like any other crime under South African law,” Ngukaitobi said.
The decision of the Supreme Court of Appeal has put that beyond doubt. Fakie NO v CCII Systems (Pty) Ltd Since then, the principle has been applied four times by the Constitutional Court, Ncukaitobi continued, including in the 2021 Zuma contempt case.
“It's already been held four times. There's no reason to leave it today.”
Mr Zuma was found guilty of contempt for failing to comply with a Supreme Court order to give evidence to the Commission of Inquiry into State Capture. Mr Zuma chose not to oppose the application submitted by a committee chaired by then Deputy Chief Justice Raymond Zondo.
Ngukaitobi said the discussion was about contempt proceedings, but it was decided here that contempt could also be prosecuted through the motion process. This is a vindication of Mr Mpofu's claims that his client was imprisoned without due process.
The only remaining question regarding Mpofu's claims was therefore whether Zuma had been convicted.
“There was no doubt about the Constitutional Court's decision,” Ncukaitobi said. This is because the judgment states that he is guilty of contempt.
At the hearing, he and the minority judge, who was heavily criticized on the contempt issue, discussed Article 47(1)(e), which states that “no person shall be deemed to have been sentenced until the sentence has been passed.'' There was a brief discussion with Judge Leona Theron, who wrote the Until the appeal from the conviction or sentence is decided or the time limit for appeal expires. ”
Although Mr Zuma was convicted and sentenced by the country's highest court and therefore had no possibility of appeal, his lawyers used this to ensure that Mr Zuma was within the scope of Article 47(1)(e). It is claimed that it exceeds.
The IEC noted that the purpose of this appeal proviso is to ensure finality for sentences of more than 12 months, and as Mr Zuma's sentence is final as it has been handed down by the court, it is not at issue here. It is argued that it will not. The apex court.
Theron cited an Electoral Tribunal judgment on this point, written by Justice Dumisani Zondi, and said: “This interpretation sought by the Commission requires the court to read Article 47(1)(e) literally.'' and the effect would be to preclude the operation of the proviso to section 47(1)(e) where the person concerned has been adjudicated by the highest court of the country. ”
She then asked Ngcukaitobi what he had to say about it.
“That's wrong,” he replied. “The effect of what we are contending for is simply this: If a judgment is rendered by this court acting as the court of first and last instance under article 167, the purpose of this article of finality will not be achieved. That will happen.”
Mr Ncukaitobi added that Mr Zuma's argument would highlight the absurdity that section 47(1)(e) applies to all sentences except those imposed by the Supreme Court.
This means that if a lower court imposes a sentence of more than a year in prison for contempt of court, he will be disqualified from parliament, but not if the Supreme Court imposes the same sentence.
Mr Theron asked whether MPs should not have said so if they envisaged there being a class to which the appeal proviso would not apply.
However, Mr Ngcukaitobi replied: “There is no one to whom the proviso does not apply. It applies to everyone, including those sentenced by the Constitutional Court. It is alternative interpretations that create arbitrary distinctions.”
Theron countered that the proviso was never triggered because Zuma was never able to exhaust his appeal options because those options were never granted.
“It is a result of the fact that you have exercised your original powers, you have exercised your direct access powers… finality will be achieved as soon as this court makes its decision,” the defender replied.
Theron said the framers knew that direct access did not supersede any other provision of the Constitution and that if there was a tension between the provisions, both provisions must have full force and effect. I have repeatedly stated that it is possible.
Mr Ncukaitobi said he also knew that the Constitutional Court's decision was final.
“Other sections cannot be exported as is.”
Theron continued, “Yes, but the framers also knew that fundamental rights would not be taken away.”
At the time, Mr Ncukaitobi, who was the commission's lawyer in the contempt case, questioned whether Mr Zuma's rights had been violated “twice already” by the contempt judgment, first in a ruling on the commission's application and then secondly. The second time, I answered somewhat forcefully that there had been an argument. He asks for cancellation.
Theron was bound by these and could not use the lawsuit to reopen the investigation, he said.
He stressed that “the proviso cannot undermine the executive branch,” meaning that it cannot defeat the very purpose of the clause, which is to prevent people who break the law from becoming members of parliament. He emphasized that
A proviso of 12 months' imprisonment was added, which served to indicate that this applied to crimes of a certain degree of seriousness.
Deputy Chief Justice Mandisa Maya asked him to soften his tone, adding: “You seem to be very irritated and impatient with Judge Theron, but that's not what you appear to be.”
Ngukukaitobi apologized, but Theron replied that he had done nothing wrong.
Earlier on Friday, the court rejected Mr Zuma's application to remove the judges who ruled in the contempt case three years ago.
Although there were three Electoral Tribunal judgments with various reasons overturning the IEC's decision, the rationale underlying this order was that the President was exempted from Zuma's sentence under Article 47(1). This meant that (e) did not apply.
The IEC disagreed, arguing that the president had no power to rewrite sentences handed down by courts, only to reduce sentences, and that the courts had seriously erred in the direction of the law.
The hearing continues.
