Zuma was disqualified by constitution, not IEC- Ngcukaitobi

Advocate Tembeka Ngcukaitobi was at the Constitutional Court on Friday, challenging the Electoral Court's decision to allow Zuma to contest elections.

The IEC had disqualified Zuma due to his previous conviction in 2021, in which he was sentenced to more than 12 months imprisonment for failing to appear before the Zondo Commission.

The decision was based on section 47 of the Constitution, which stipulates that a candidate cannot be elected to Parliament or legislature if they have been convicted of a crime and sentenced without an option for a fine.

However, the  Electoral Court ruled that section 47 of the constitution doesn't apply to Zuma, as his 12-month term came without the option of an appeal.

Ngcukaitobi challenged this decision, arguing that there is no debate in South African law that contempt of court is a crime like any other crime.

"In order to know whether one is disqualified or not, section 47 is the controlling provision, that is what this case is about.

“Otherwise, without the disqualification provision, it becomes a free-for-all. Unrehabilitated insolvents will also contest using section 19 of the constitution, and so will those that have been declared to be of unsound mind by the court. They too will have section 19 rights," argued Ngcukaitobi.

In the reasons provided by the Electoral Court after the judgment, the court said section 47 of the constitution doesn't apply to Zuma as his 12-month term was without an appeal.

The court said 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.

In the unanimous judgment, Electoral Court Chairperson Dumisani  Zondi said the fact that a person is convicted and sentenced to a period stipulated in section 47(1) does not mean that he or she is disqualified immediately.

Zondi emphasised that the constitution makes provision for convicted individuals to be allowed to appeal their sentences.

"The drafters of the Constitution recognised 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 provision 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 that 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," said  Zondi.

But Ngcukaitobi argued that the Constitutional Court had previously found that contempt of court is a criminal offence on four separate occasions.

"Contempt of court is an offence, and Mr Zuma was convicted of an offence and sentenced to more than 12 months without the option of a fine. He falls squarely within the category of disqualified candidates in terms of section 47(1)(e) of the constitution", he said.

Ngcukaitobi said the clarity on the interpretation of section 47 should be determined before elections.

He said the IEC would have no interest in the matter after the elections.

"The judgment undermines the purpose of section 47, which is to protect the public from lawbreakers now putting themselves up as lawmakers. This protective purpose also safeguards the institutional integrity of Parliament.”

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