Lawbreakers should not be lawmakers – IEC counsel

"Serious lawbreakers should not be lawmakers."

These are the words of the Electoral Commission of SA's (IEC) counsel Adv Tembeka Ngcukaitobi in the uMkhonto weSizwe (MK) party's appeal against the commission's decision to bar Jacob Zuma from being one of its candidates to parliament.

In March, the commission said former SA president Zuma was ineligible to stand as a candidate due to his criminal record.

Zuma was sentenced to 15 months by the Constitutional Court in June 2021.

In August 2023, President Cyril Ramaphosa granted Zuma remission of his sentence in terms of section 84(2) of the constitution.

Section 47 of the constitution bars individuals sentenced to prison for longer than 12 months without the option of a fine from becoming MPs.

“The reason we have section 47 (1) (e) is because it is a legislative determination that certain convictions and certain offences would preclude a person from exercising their rights to come to parliament.

“The reason they put it at 12 months is that it is a signal of the seriousness. Not only of the conviction but of the offence. The reason they also make it clear that there should be no option of a fine is that the constitutional drafters are trying to tell us is that serious lawbreakers should not be lawmakers,” Ngcukaitobi argued.

Adv Dali Mpofu argued that his client, Zuma, was not pardoned and that there was a difference between a pardon and remission.

"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. [In] the thesaurus, it even says [a remission is] cancellation, setting aside, revocation. Remission is cancellation of a part of prison sentence. Once a sentence is set aside, it is set aside.”

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.

Ngcukaitobi 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 [Ramaphosa] 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.”

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, saying that power resided with the National Assembly itself.

In the appeal documents Sowetan sister publication Business Day has seen, dated April 2, Zuma’s legal representatives argued 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.

Mpofu 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, said Mpofu, 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.’ That can’t be 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 the 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,” argued Mpofu.

Asked if IEC vice-chairperson Janet Love was, in her statement, “In the event that he is disqualified for standing for a position, it would not be because the IEC says so, it would be because the law says so” was not determining Zuma’s fate, IEC counsel Adv Mitchell de Beer said, “Precisely…”

“The keyword used in the last sentence of the [Love’s] quote is would stand. Would is not will… [Would] is not saying Mr Zuma is ineligible or that Mr Zuma will be eligible…"