The constitutional court will hear the appeal filed by the Electoral Commission of SA (IEC) against the Electoral Court ruling that Jacob Zuma qualified to be a parliamentary candidate for the uMkhonto weSizwe (MK) party in the May elections.
The court on Tuesday directed that answering affidavits be filed on or before Thursday.
The IEC approached the apex court on an urgent basis ten days ago.
In its founding affidavit, it said every argument that the former president’s fledgling party used to overturn a decision by the IEC that his criminal record disqualified him from becoming a member of parliament was spurious.
“On any of the arguments that were made before it, the electoral court is wrong in law,” the IEC said of the court’s decision, handed down just days earlier.
The order of the electoral court came as a surprise, as his record seemed to place him squarely within the ambit of section 47(1)(e) of the Constitution.
It bars anyone who has been sentenced to 12 or more months in prison without the option of a fine being barred from becoming a member of the National Assembly for five years.
The MK Party argued that the IEC exceeded its powers because only parliament could implement section 47(1)(e).
This not only went against the spirit of the law but pointed to a lapse in logic, the commission countered.
“The text, structure and purpose of section 47(1)(e) all point against that conclusion,” it said, adding that it was plain from the wider context of electoral legislation that a decision on eligibility must be made before the vote.
Leaving it to parliament, implied that it would happen after the elections.
“Several sections of the Electoral Act require the Electoral Commission to consider whether a candidate is eligible under section 47(1)(e) before the election, not after.”
The very purpose of section 47 was to determine whether a candidate was eligible to stand in an election, and it was nonsensical to allow a candidate to stand if that person would not be able to take up a seat in parliament.
If the appeal was not finalised before election day, 29 May, the IEC said there was a risk that “the erroneous finding of the electoral court will produce a disputed election outcome, because a person who is not qualified would have been allowed to contest, in breach of the constitution”.
The question of Zuma’s eligibility to stand or otherwise, “affects the decision that millions of voters will be asked to make at the ballot box”.
Lawyers for the MK Party made much of the fact that Zuma served barely two months in prison, because his sentence was remitted after his early release on medical parole was found unlawful.
But Advocate Tembeka Ngcukaitobi, for the IEC, said this argument conflates the sentence the constitutional court imposed with the time that Zuma served in jail. The latter was irrelevant.
“The remission would change how long Mr Zuma served, it would not change the sentence that was imposed.”
He stressed that the president did not have the power to rewrite a prison sentence, hence remission could never shorten the sentence imposed.
The IEC filed for leave to appeal without the benefit of the reasons for the electoral court’s decision, which it has yet to release. Only the order was handed down.
With the election looming, the IEC said, it could not wait before filing for appeal.
Zuma was sentenced for contempt of court for defying an order of the constitutional court to testify before the commission of inquiry into state capture, headed by Chief Justice Raymond Zondo.
The MK Party has said if the court agreed to hear the matter, it would demand Zondo’s recusal.
Tuesday’s directive was issued by the office of Deputy Chief Justice Mandisa Maya.
The party has until Thursday to respond to the IEC’s appeal on Jacob Zuma’s eligibility to stand for parliament
