IEC asks top court to set aside order on MK party and Jacob Zuma

The Electoral Commission of SA (IEC) has approached the Constitutional Court on an urgent basis to appeal against the order of the Electoral Court which paved the way for former president Jacob Zuma to run for election. 

On March 8, the MK party submitted its list of candidates for the upcoming election, and it included Zuma in its list for the National Assembly. The IEC received 22 objections to Zuma’s eligibility to stand for the election based on the fact he had been sentenced to a 12-month prison term without the option of a fine.

Zuma and the MK party appealed against the IEC’s decision and the electoral court ruled in favour of the MK Party and Zuma on Tuesday.

On Thursday, the IEC applied to the Constitutional Court for an order to declare that Zuma was convicted of an offence and sentenced to more than 12 months’ imprisonment and is accordingly not eligible to be a member of and not qualified to stand for election to the National Assembly until five years has elapsed since the completion of his sentence. 

In his founding affidavit, chairperson of the IEC Mosotho Moepya said the Constitutional Court declared Zuma was guilty of the crime of contempt and sentenced him to 15 months’ imprisonment without the option of a fine on June 29 2021. 

“A few weeks into his sentence, Mr Zuma was released on medical parole. About two years later, the SCA (Supreme Court of Appeal) overturned that decision.” 

Moepya said the effect of the SCA’s judgment was that Zuma had to return to prison. 

On August 11 2023, the same day Zuma returned to prison, President Cyril Ramaphosa granted thousands of prisoners a remission of their sentences to ease prison overcrowding, and Zuma was one of them.

In the public interest

“The question presented is whether Mr Zuma was convicted of an offence and sentenced to more than 12 months’ imprisonment for the purposes of section 47(1)(e) of the constitution, rendering him ineligible to stand for election to the National Assembly,” Moepya said. 

This section disqualifies anyone “convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine” from being a member of the National Assembly.

It was in the public interest for the court to assume jurisdiction over this application and decide it before the election, scheduled to be held on May 29, Moepya said. 

“If the matter is not finalised before then, there is a real risk that the erroneous finding of the electoral court will produce a disputed outcome, because a person who is not qualified would have been allowed to contest, in breach of the constitution.” 

Moepya said the court did not deliver reasons for its order. He said according to the election timetable published in the government gazette in February, the electoral court was required to consider and decide an appeal in respect of an objection to a candidate list by April 9.

Moepya said the IEC requested the electoral court to urgently provide reasons for its order and these had not been provided when the commission filed its application for leave to appeal. 

“No indication has been given by the court as to when reasons will be given in these circumstances, the commission simply cannot wait.

"[The commission] brings this application, not out of disrespect for the electoral court, but because there is a pressing matter of national importance that needs to be addressed.” 

Moepya said the issues before the Electoral Court court were crisp questions of law, where no facts were in dispute. 

The commission said it would file a supplementary affidavit when the electoral court’s reasons are furnished. 

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