The reports of the hearing before the US Supreme Court concerning Donald Trump’s argument that he had absolute immunity for all his conduct while president indicate the extent to which at least five members of that court are prepared to rewrite established principles of constitutional law to find in favour of an ex-president who is charged with, in effect, seeking to subvert the result of a democratically held election. South Africans, with justification, could have reacted with the reassurance that our jurisprudential standards are more rigorous and predictable.
That was the view of this columnist until being seriously worried while reading the judgments in Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others.
The Electoral Court provided reasons for its order of two weeks previously that former president Jacob Zuma could not be excluded as a candidate for the National Assembly on the grounds of his conviction for contempt of court and the consequent sentence imposed by the Constitutional Court of 12 months of imprisonment.
The key to this dispute turned on section 47 of the Constitution, which, to the extent relevant, reads thus:
(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except —
(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
On 11 August 2023, President Cyril Ramaphosa approved a special remission for specified categories of offenders, which included sentenced offenders who were of low risk and would receive a 12-month remission of sentence. Zuma benefited therefrom and served just under three months of his 12-month sentence.
While Zuma raised an encyclopaedia of arguments before the Electoral Court in seeking to overturn the decision of the Electoral Commission of SA which had barred him from being on the list as a candidate for the National Assembly, the key question was whether he now fell within the prohibition contained in section 47(1) of the Constitution — “convicted and sentenced to more than 12 months’ imprisonment” — as a consequence of the benefit of remission.
The Electoral Court hardly makes it easy to analyse the reasoning it adopted for the order granted in Zuma’s favour. There are three judgments. In the main one, penned by Judge Dumisani Zondi, all the members of the court concurred.
Then Judge Lebogang Modiba wrote a separate judgment offering a different reason for the granting of the order, followed by Judge Seena Yacoob, whose judgment offers a variation on that of Judge Zondi.
Given that the order had been previously granted and that all three judges were setting out their reasons, it is truly puzzling as to how all could have concurred with the Zondi reasoning and then parted company. It gets worse, in that the two professors on the court concurred with the Madiba judgement and with the Zondi judgment.
Judge Zondi’s reasoning is captured in the following passage:
“The drafters of the Constitution recognized the fact that a person convicted and sentenced has a right to appeal against their conviction and sentence, upon leave being granted by the trial court or, if refused, on petition to the superior court. If that fact was not important to them, they would not have inserted the proviso which seeks to preserve the status quo pending the appeal processes. In other words, the conviction and sentence do not take effect until the appeal process has taken place, alternatively a convicted and sentenced person has elected to not appeal the conviction and/or sentence. In my view, the sentence that was imposed on Mr Zuma cannot be said to be a sentence which the section contemplates. The Commission erred therefore to uphold an objection to Mr Zuma’s candidacy on the basis that the sentence that was imposed on him disqualified him from being eligible to be a member of the National Assembly [D1].”
This is reasoning that confounds reason.
The purpose of section 47 of the Constitution is clearly to ensure that a prospective candidate for election cannot be excluded from standing for election after being convicted and sentenced to more than 12 months of imprisonment until any appeal he or she may launch has been heard and decided.
But when the Constitutional Court has convicted and sentenced a candidate to more than 12 months of imprisonment, there is no right of appeal and hence the caveat of an appeal is inapplicable.
That Judge Zondi cites judgments about interpretation should in and of itself have cautioned that the court examine the purpose of the section: if the candidate appeals against the decision, it is obviously correct that the appeal suspends the effect of the order until the appeal is decided. But there may not be an appeal lodged, in which case where does that leave the reasoning of Judge Zondi?
On his logic, if the Constitutional Court had regarded the impugned contempt as so serious that it imposed a 10-year sentence, this would still not constitute an impediment to standing for election. Judge Zondi may have considered that the Constitutional Court should have remitted the question of contempt by Zuma to the high court, thereby preventing a possible appeal, but that issue was not before the Electoral Court.
Judge Modiba found that the remission of sentence constitutes a reduction of sentence, so that Zuma was, in effect, sentenced to but three months of imprisonment. To his credit, Judge Zondi rejected this argument on the basis that a President may not through an act of remission “undo what the judiciary had done”.
Ah, said Judge Modiba, the remission of sentence does not intrude on the doctrine of separation of powers and hence it must be taken into account in this case. Let us leave aside that the authority cited by Judge Modiba from the Constitutional Court judgment in the certification case in support of her conclusion does nothing of the kind, in that its effect is simply that a prerogative power of the President is not a judicial function. The words of section 47 are clear: a conviction and sentence of 12 months or more suffices as a bar.
Only a court may convict and sentence.
Judgments of this kind, based as they are on legal quicksand, are not only disappointing. As the country enters what may be a turbulent fourth decade of constitutional democracy, this kind of judgment can only erode confidence in the judiciary’s ability to maintain its hard-won reputation as a custodian of the Constitution. DM
“This is reasoning that confounds reason.”
Yup, it seems the Electoral Court has fallen into the Postmodernist trap where words can mean whatever the reader/listener wants them to mean.
One can only hope that the ConCourt overturns this sad travesty with the utter contempt that it so clearly deserves. Of course, that’s assuming the good justices there aren’t also partial to puerile word games and contorted logic.
And we know that if Jacob Zuma could have appealed his sentence he would have. It’s like an instinctive twitch he has developed.
This really doesn’t look good. It seems like these justices were prepared to invent stuff to overturn the IEC ruling. And in the end, just chuck out the fundamental principle of separation of powers where suddenly the President has the power to change the sentence of a Judge. Scary stuff.
Scary in deed, and if constitutional court overturns it will be at 11th hour, where an apparent victory for MK will turn into a defeat and potentially/likely cause mayhem. Perhaps the intended purpose.
In my opinion about this whole palaver, there were several errors of judgment made:
— The original sentence handed down by the ConCourt in [2021] ZACC 18 was not in the interests of justice because there was no remedial/coercive aspect. If the sentence had been for 15 months imprisonment, OR until complying with providing evidence at the State Capture Commission, whichever is the lesser, then it could have been said to be fair. This, and the consequential reasoning flowing from this point, is covered by the minority judgment by Theron J in that matter, which I am convinced was the correct one.
— In the remission application that was considered by the ConCourt in [2021] ZACC 28, DIA as Amicus Curiae highlighted an aspect also mentioned in the previous minority judgment, on the dual civil and criminal nature of motion proceedings, and the need for purely criminal proceedings to be instituted by the NPA (or by private prosecution, if the NPA declines). The majority judgment in [2021] ZACC 28 makes mere mention of this but then fails to consider it further. Jafta J then picks up on this reasoning in his minority judgement, noting “If the applicant chooses to lay a criminal charge and thereby set in motion a process leading to a criminal trial, the contemnor would be entitled to all protections afforded by section 35(3). But if the applicant opts for the civil procedures, the contemnor loses those protections and may retain only those that ‘are appropriate to motion proceedings’. This is absurd.”
— Khampepe J, in the majority judgment in [2021] ZACC 28, also considers Jafta J’s dissention, but then curiously limits herself to dealing in detail with a mere two paragraphs of the dissenting judgment out of a total of 114, despite Jafta J concluding those paragraphs with, “But this does not mean that the ICCPR is enforceable in South African Courts. A claim based on the ICCPR will have to be made in the Committee. We mention it here purely as a factor relevant to rescission.” Khampepe J then launches into a 19-paragraph rebuttal regarding the applicability of international law in the rescission application, after practically ignoring the substance of the other 112 paragraphs of the dissenting judgment, save for doggedly dismissing any suggestion that the Court might be justified to reevaluate whether the outcome of its previous judgment was constitutional and in the interests of justice, while characterising the dissenting judgment as “troubling” and “concerning” for good measure. This strikes me as poor; it seems to be the legal equivalent of demolishing a strawman. Again, it’s my reasoned opinion that the dissenting judgment raises some valid constitutional concerns, that it points out in detail several occasions where cases cited by the majority judgment did not make the ruling the majority purports it to have made, and that the “exceptional circumstances” raised should not have been summarily dismissed because “Mr Zuma was comfortably represented by attorneys and a team of six counsel, including two senior counsel”. The interests of justice always being the overarching guideline, as pointed out in the dissension, cannot simply be invalidated by poor quality representation, even if that representation was expensive and expansive; if the Court has knowledge of a relevant and pertinent line of reasoning, it should fully consider it, even if the applicant did not advance it.
— Finally, in considering the eligibility of Zuma’s candidacy in terms of s47(1)(e) of the Constitution, I believe that the Electoral Court came to the correct conclusion, even if by accident, but advances the wrong reasons to support its decision. The judgment written by Modiba J is particularly egregious, especially where it patently mischaracterises the finding in ‘Freedom Front Plus v ANC and Another’ (which in actual fact only ruled on which date should count as the start of the five year expiration period in the case of a wholly suspended sentence). Yacoob AJ does a good job of pointing out the deficiencies in the other two judgments, but never supplies a compelling reasoning of his own for concurring on the ruling despite those major deficiencies, aside from citing a hypothetical scenario that did not transpire.
— With regards to what the reasoning in the Electoral Court judgment should have been, I believe that it should have been to the effect of: “Yes, a finding of contempt of court constitutes a crime. Yes, a sentence of 15 months counts as a sentence of longer than 12 months even if a remission of sentence has been granted. However, the crime of contempt of court does not constitute an offense as contemplated in s47(1)(e) when read together with s12(1), s35(3), s179(1) and s179(2) of the Constitution, if it was not the result of a finding made during a criminal court procedure initiated by the NPA.” I believe such a finding would have elegantly resolved the tension between the right to political participation and the legitimate exclusion of those who have been found guilty in a bona fide criminal proceeding. It would have ameliorated the previous poor judgments made in the history of this case, and given due regard for the valid reasoning advanced in the dissenting judgments, without needing to do the impossible task of overruling those previous judgments.
Would this have been expediency? Perhaps. But I would argue that such expediency would have been both within the letter and the spirit of the Constitution, while setting a very narrow and innocuous precedent (since the crime of contempt of court is unique in being the only criminal sentence that is the result of a motion procedure, and purely punitive sentences for contempt lasting longer than 12 months being even rarer still).
Finally, none of this should be read as an argument against the criminal sentence and incarceration handed to Zuma as a result of his blatant flouting of the rule of law, but merely as a criticism of the deficiencies in the process that led up to it, the continued reliance on a relic of common law to hand out criminal sentences during civil proceedings (a practice that remains in obvious tension with s12 of the Constitution despite previous jurisprudence validating it), and the attempted political exclusion that resulted from the flawed process.
Lucid comment, thank you.
Thats a whole lot of verbiage trying to justify a conclusion which very clearly goes against both the letter and the intent of the law.
A very lucid and interesting argument that should maybe be debated against that by “Professor Balthazar”. It is common for relevant sections of Acts to be read in conjunction with sections of other Acts except in instances where it is explicitly stated that a section is overarching and thus takes precedence.
If the ConCourt rules on this before the elections against JZ then we can expect mayhem on election day, particularly in his KZN stronghold. Ruling after the elections might make life interesting as he would have to leave parly and be replaced. Again, probable cause for mayhem but maybe better after elections have concluded as replacement would be by the next (still standing….) name on the MK lists.
Honestly, that’s what I call a cool story bro. Such a riveting tale, I honestly copy and pasted it to word, saved on my hard drive, backed it up on a jump drive, drove to the bank, put the jump drive in the safe deposit box, and will leave it there until my kids turn about 12 (when they can actually state their age, and ask what it is I’m showing them), when I will pick it up, put it in an old USB drive reader and relay this cool story to them and tell them, “kids, this is what a cool story should look and sound like…not like the stories your generation tells.
For me, the big question is “has the Electoral Court been captured like the disgraceful American Supreme Court, or have they just made a stuff up that they will realise they have once the ConCourt sets them right??”
“This is reasoning that confounds reason.”
Yet, according to the Leftist press all is well at the JSC?
Bizarre indeed…are these Judges fully qualified i wonder thinking perhaps they know more than those at the Constitutional Court
This has not much to do with the law, rather a matter of deciding that it would be better to have a peaceful election and saving the possibility of unrest until later.
The three Judges were clay in MPofu’s hands. They were eating out of his hand. Shamefull the blatant ignorance and pliability of the ??????Judges
I agree Zuma has no appeal at the Constitutional Level, I know they will throw toys, and I like Donald Trump but I also recognize he can be sent to Jail because of the Gag order and has no appeal as well