There was no merit to any argument that former president Jacob Zuma’s criminal record did not disqualify him from standing for a seat in parliament for the uMkhonto weSizwe party in national elections this month, counsel for the Electoral Commission of South Africa (IEC) argued on Friday.
Advocate Tembeka Ngcukaitobi told the constitutional court there was no debate that Zuma was convicted of a crime, when three years ago it sentenced him to 15 months in prison for contempt of court.
Therefore he fell foul of section 47(1)(e) of the Constitution, which barred anyone sentenced to prison for 12 months or more without the option of a fine from serving as a member of parliament for five years.
The IEC has sought direct access to the constitutional court to appeal a surprise ruling by the electoral court last month, where it upheld the party’s appeal to the IEC’s decision that Zuma was disqualified.
Counsel for Zuma is pleading that the provision did not apply to him for at least three reasons, one being that his conviction was not competent in law.
Advocate Dali Mpofu has gone as far as arguing that his client Zuma was jailed without a trial in the worst travesty of justice in the country’s legal history.
The argument harps on the hybrid nature of contempt but throws overboard the established principle that civil contempt is punishable as a crime.
“There is absolutely no debate that in South African law contempt of court is a crime like any other crime,” Ngcukaitobi said.
It was put beyond doubt by the supreme court of appeal ruling in Fakie NO v CCII Systems (Pty) Ltd in 2006. Since then, Ngcukaitobi continued, the principle has been applied four times by the constitutional court, including in its judgment in the Zuma contempt case in 2021.
“You have already held so four times. You have no reason today to depart from it.”
Zuma was found guilty of contempt for defying an order of the apex court to comply with summons to testify before the commission of inquiry into state capture. Zuma chose not to oppose the application, filed by the commission chaired by then deputy chief justice Raymond Zondo.
Where there was debate, Ngcukaitobi said, was about the procedure for a contempt trial, but here it has likewise been settled that contempt can be prosecuted through motion proceedings. That put paid to Mpofu’s claim that his client was jailed without due process.
Therefore the only remaining question, with regard to Mpofu’s arguments, was whether Zuma was convicted of an offence.
“The constitutional court ruling left no doubt,” Ngcukaitobi said, because it stated that he was found guilty of the crime of contempt.
The hearing saw terse debate between him and Justice Leona Theron, who wrote a much-criticised minority judgment in the contempt matter, as to the proviso in section 47(1)(e) that “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”.
Zuma had no possibility of appeal because he was convicted and sentenced by the highest court in the land, but his counsel is using this to argue that it put him beyond the ambit of section 47(1)(e).
The IEC is arguing that the purpose of this proviso on appeal is to ensure that there was finality regarding the sentence of 12 months or more, and that this was not in question here because Zuma’s sentence was final by virtue of having been handed down by the apex court.
Theron quoted from the electoral court judgment on this point where Justice Dumisani Zondi said “this construction, which the commission seeks, requires the courts to read in words into section 47(1)(e), the effect effect of which will be to exclude the operation of the proviso in section 47(1)(e) if a person concerned was sentenced by the highest court in the land”.
She then asked Ngcukaitobi what he had to say about that.
“It is wrong,” he replied. “The effect of what we are contending for is simply this: if a judgment has been given by this court acting under section 167 as a court of first and final instance, the object of this section, which is finality, has been achieved.”
From Zuma’s argument would flow the absurdity that section 47(1)(e) applied to all sentences except those imposed by the apex court, Ngcukaitobi added.
It would mean that a prison sentence of a year or more for contempt of court imposed by a lower court would disqualify someone from becoming a member of parliament, but the same sentence would not if handed down by the apex court.
Theron asked whether, if lawmakers envisioned that there would be a class of persons to whom the proviso on appeal did not apply, they should not have said so.
But Ngcukaitobi replied: “There is no class of person for whom the proviso does not apply. It applies to everyone, including those persons that have been sentenced by the constitutional court. It is the other interpretation that creates the arbitrary distinction.”
Theron countered that the proviso never kicked in because Zuma could not exhaust his appeal options because they were never granted.
“That is the consequence of the fact that you exercise original power and you exercise direct access power … finality is achieved as soon as this court makes a decision,” the advocate responded.
Theron reiterated that the drafters of the Constitution would have known that direct access would not trump any other provision in the constitution and that where there was tension within the text, both provisions must be given full effect.
Ngcukaitobi said they had also known that judgments of the constitutional court were final.
“You can’t just write out the other section.”
Theron continued: “Yes, but the drafters also knew that fundamental rights will not be taken away.”
At this Ngcukaitobi, who was the advocate for the commission in the contempt case, replied somewhat forcefully that she had the debate about whether Zuma’s rights were compromised by the contempt ruling “already twice,” first in the ruling on the commission’s application and then on his for rescission.
Theron was bound by these and could not use the current case to reopen that inquiry, he said.
“The proviso cannot undermine the controlling section,” he underscored, meaning that it could not undo the very purpose of the provision which was to ensure that people who broke the law could not become not become lawmakers.
The added proviso of a 12-month sentence, served to indicate that this would apply in crimes with a degree of seriousness.
Deputy Chief Justice Mandisa Maya asked him to soften his tone, adding: “You come across as being very irritated and impatient with Justice Theron and it is not seemly.”
Ngcukaitobi apologised, and Theron replied that no offence had been taken.
The court earlier on Friday dismissed Zuma’s application for the recusal of those judges who ruled on the contempt case three years ago.
There were three electoral court judgments, with various reasons for overturning the IEC’s decision, but the rationale that underpinned the order was the presidential remission of Zuma’s sentence meant section 47(1)(e) did not apply.
The IEC disagrees, arguing that the president did not have the power to rewrite a sentence handed down by court, only to shorten the time served and that the court had woefully misdirected itself in law.
The hearing continues.
The hearing of the IEC’s appeal to the electoral court’s finding that Zuma was eligible for parliament saw a tense exchange between counsel and the bench
