LETTER: Zuma case hangs on appeal

We all know Jacob Zuma, twice elected SA president, has now thrown his lot in with the new MK party, which according to most polls is doing better than the EFF. If the polls are accurate, MK will be the fourth-largest party and a possible kingmaker in parliament when the dust has settled after the May 29 elections.

MK wishes to use Zuma’s image on the three ballot papers. His consummate skills at playing the “victim card” will perhaps enhance the party’s prospects. Without him it may not do so well.

In quasi-criminal proceedings, Zuma was sentenced to 15 months in prison without the option of a fine for his contempt of a Constitutional Court order directing him to present himself to the commission of inquiry into state capture. He declined to do so. The sentence was imposed by the court at the instance of the commission.

After about two months, the sentence was remitted, an event not mentioned or, apparently, catered for in the section. Normally, if all appeals against a sentence of more than 12 months’ imprisonment (without the option of a fine) fail, then ineligibility follows. Succeeding on appeal is not an option for Zuma as there is no appeal mechanism.

The issue now is whether Zuma is eligible to stand for election as a member of the National Assembly. The relevant part of section 47(1) of the constitution, to which too little attention has been paid, includes a phrase that may require careful interpretation when Zuma’s eligibility is finally determined, probably in court.  The phrase reads: “...but no-one may be regarded as having been sentenced until an appeal against the sentence has been determined...”

Here is the sticking point: there is, of course, no appeal against a sentence imposed by the Constitutional Court. The issue is whether this fact makes the phrase quoted above inapplicable in Zuma’s case or affords him an escape from the electability consequences of his unappealable 15 month sentence, with or without remittal.

As that sentence was not appealable it may be regarded as not the type of sentence contemplated by the founders of the constitution. This issue will probably have to be determined before Zuma’s quest to return to parliament is finalised in law.

Paul Hoffman, SC
Accountability Now

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