2 weeks ago
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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.
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
