By Clement Marumoagae
In terms of section 20(2)(c) of the Electoral Commission Act 51 of 1996 (ECA), appeals to the Electoral Court must be heard urgently. The Electoral Court heard the case of Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others (0015/2024EC) [2024] ZAEC 5 (26 April 2024) (Umkhonto Wesizwe case) on 8 April 2024. It granted its order on 09 April 2024. Without the benefit of the reasons for the order, the IEC indicated that it intended to appeal that order directly to the Constitutional Court. The IEC noted that it ‘believes there is [a] substantial public interest in providing certainty on the proper interpretation of section 47(1)(e) and its interplay with the powers of the Commission to adjudicate objections to candidates’ (IEC Press Statement ‘Electoral Commission approaches the Constitutional Court for Clarity on Section 47(1)(e) of the Constitution’ 12 April 2024). The Constitutional Court has decided to entertain this appeal. It is not clear whether this court will be in a position to deliver its judgment before the elections having regard to the concerns raised about its capacity to deliver judgments timeously (Ally and Benjamin ‘Constitutional Court: where are the judgments?’ GroundUp (9 April 2024). In any event, the Electoral Court issued reasons for its order on 26 April 2024.
This article discusses selected aspects of the Electoral Court’s reasons in the Umkhonto Wesizwe case. In this case, the Electoral Court was called upon to determine, among others, whether the Independent Electoral Commission (IEC) exceeded its powers when it disqualified Mr Zuma from becoming a member of Parliament due to his conviction and 15 months sentence by the Constitutional Court. It also had to clarify whether Mr Zuma was sentenced as contemplated in section 47(1)(e) of the Constitution. It was also required to determine the legal effect of the Presidential remission of sentence on the sentence imposed on Mr Zuma. Three judges out of the panel of five members of the court wrote separate judges where they sought to explain their support of the order that the court granted in favour of the applicants.
The main judgment was written by the chairperson of the court, Zondi JA. In his judgment, Zondi JA disagreed with the applicants that the IEC exceeded its powers when it determined that Mr Zuma was not eligible to be a member of Parliament (para 25). He reasoned that the IEC has the power to assess any candidate’s candidacy and prevent those prohibited from holding office from running for office (para 27). He also disagreed that there was any bias against Mr Zuma in upholding the objection against Mr Zuma’s candidature (para 31). Zondi JA held that Mr Zuma was convicted as contemplated in section 47(1)(e) of the Constitution (para 34). However, he held that the disqualification imposed by this provision that those sentenced to more than 12 months imprisonment following conviction without an option of a fine are not eligible to be members of Parliament does not immediately come into operation (para 49). He reasoned that those sentenced may appeal against their conviction and/or sentence, and while the appeal is pending, they are not regarded as having been sentenced.
Zondi JA disagreed with the IEC that where the Constitutional Court imposes a sentence the result is that the person convicted becomes disqualified immediately from being a member of Parliament because the conviction and sentence are not appealable (para 49). He concluded that the sentence imposed on Mr Zuma by the Constitutional Court cannot be said to be a sentence as contemplated in section 47(1)(e) of the Constitution because he had no option to appeal his conviction and sentence (para 51). On the question of remission of sentence, Zondi JA disagreed with the applicants’ ‘… submission that the effect of the remission was to cancel or extinguish the remainder of the sentence’ because the President’s conduct was not a reprieve or pardon but a general remission (para 38). He held that ‘…the President may not through the act of remission undo what the judiciary has done’ (para 39). He incorrectly held that ‘… [t]he submission that the President has powers to extinguish a sentence imposed by a court undermines the fundamental doctrine of separation of powers which is recognized by the Constitution’ (para 39). However, Zondi JA correctly reasoned that:
‘[t]he effect of remission was that the period that Mr Zuma was going to spend in prison was reduced. It did not erase the fact that Mr Zuma was sentenced to a 15 month prison sentence. The Presidential remission did not extinguish or reduce the sentence of 15 months to 3 months which Mr Zuma actually served. In general, that could only be achieved through the invocation of judicial appeal or review processes’ (para 43).
In her separate judgment, Modiba J disagreed with Zondi JA on the legal effect of the remission of the sentence imposed on Mr Zuma. First, she was of the view that ‘… the legal effect of a remitted sentence reducing the sentence imposed by a court does not violate the separation of powers doctrine’ (para 59). She correctly reasoned that the power to pardon and reprieve offenders and remit sentences is not a judicial function but an executive function enjoyed by the President notwithstanding that he is not part of the judiciary (para 64). She opined that when the President is exercising ‘… his constitutional power to remit sentences, it is necessary or unavoidable that the effect of a remission reducing a sentence will intrude on the sentencing powers of the judiciary’ (para 65).
Modiba J agreed with the applicants that the President’s remission of Mr Zuma’s sentence effectively reduced it to three months and as such he is not disqualified by section 47(1)(e) from becoming a member of Parliament (para 67). Modiba J declined the respondents’ invitation to ignore the part of section 47(1)(e) of the Constitution that deals with the expiry of the disqualification because the disqualification requirement in that provision was not met (para 71). However, she incorrectly held that the legal effect of the remission is that Mr Zuma effective sentence was not fifteen months but three months (para 74). Further, the legal effect of remission is not only to authorize early release from prison but also to cancel the remaining portion of the sentence (para 77). Modiba J opined further that the remission reduced Mr Zuma’s effective sentence on the date it was granted and ‘… absolved Mr Zuma from the legal consequences of the sentence imposed by the Constitutional Court’ (para 78). She also incorrectly held that the remission altered the legal effect of the sentence imposed by the Constitutional Court on Mr Zuma (para 79). She concluded ‘… that Mr Zuma’s effective sentence, as reduced by the remission, does not bring him within the ambit of s 47(1)(e) of the Constitution’ (para 85).
Yacoob J also wrote separately and disagreed with Zondi JA on the effect of a remission of a ‘… sentence on a sentence imposed by a Court in the context of the doctrine of separation of powers’ (para 86). She also correctly disagreed with Modiba J’s conclusion that the remission of the sentence means that ‘… the sentence that was ultimately imposed on Mr Zuma was a sentence of three months, not fifteen months, so that he does not fall within the disqualifying exception set out in s 47(1)(e) of the Constitution’ (para 87). Yacoob J was of the view that a fifteen-month sentence was factually imposed on Mr Zuma but the legal consequences of such a sentence are reduced. As such, ‘the completion date of his sentence for purposes of calculating the end of the disqualification would be the date on which the remission absolved him from any further legal consequences’ (para 88).
In my view, this case required the Electoral Court to clarify two main aspects. First, the legal significance of the presidential remission on sentences imposed by courts generally. Zondi JA’s general approach is correct because while remission reduces the sentence, the actual sentence imposed is not canceled or erased. This is because, unlike a pardon, remission does not relieve a convicted person from the consequences of the crime that he or she committed. Remission does not extinguish the imposed sentence but merely provides a discount on that sentence leading to the convicted person not serving the imposed sentence in full. Unlike parole which does not change the sentence and amounts to continued punishment the effect of which has been lessened, remission reduces the imposed sentence and ends the actual punishment. However, remission also does not change the character and nature of the imposed sentence.
Modiba J’s view that the effect of remission changed the nature of the sentence is obviously incorrect. Mr Zuma remains sentenced to 15 months without a fine but has been provided a discount which entails that only his punishment ended. He is thus, no longer required to complete the full term of his sentence. I agree with Yacoob J that while remission reduced the amount of time Mr Zuma was obliged to serve, it did not consider and change the sentence imposed.
The second aspect that the court was required to clarify is whether, where the Constitutional Court imposes a sentence of more than twelve months without a fine as a court of first and last instance, that can disqualify the sentenced person from contesting to be a member of Parliament. In my view, Zondi JA correctly answered this question. It is inappropriate for the Constitutional Court to agree to hear any case that potentially can result in a custodial sentence being imposed as a court of first instance. I have argued elsewhere that this court through its majority judgment violated the Constitution and Mr Zuma’s rights when it convicted and sentenced him (Marumoagae ‘Did the Constitutional Court uphold or breach the law in the Zuma Matter?’ Without Prejudice 21 (3), 9-12). From the majority judgment, it is not clear what informed the Constitutional Court to impose the sentence which was imposed on Mr Zuma. Particularly, after noting that Mr Zuma was not subjected to a conventional criminal trial and he was facing ‘… the prospect of imprisonment for unlawful conduct that our law defines as an offence’ (Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (2021 (5) SA 327 (CC) para 65 and 66). I fully agree with Theron J in her dissenting judgment when she first eloquently, convincingly, and correctly stated that:
‘[r]egretfully, I do not agree that it is constitutionally acceptable for this Court to grant an order of unsuspended committal which is not linked to coercing compliance with this Court’s order in CCT 295/20. With the greatest respect, I am concerned that the main judgment’s focus on the “unprecedented” facts of this case distracts from a very troubling feature; namely, that this Court, in motion proceedings and sitting as a court of first and last instance, is being asked to mete out an unsuspended term of imprisonment which is singularly punitive in purpose and effect’.
Secondly, and most significantly, Theron J correctly held that:
‘[t]he main judgment, by its own admission, has pushed the bounds of our law of contempt in order to meet these exceptional circumstances. The danger of this approach is foreshadowed in the well-known aphorism quoted at the outset of this judgment. It has led to the creation of bad law. As I demonstrate, the law is not just bad; it is unconstitutional’.
Thirdly and most profoundly, Theron J further convincingly held that:
The exceptionality and gravity of Mr Zuma’s contempt and his refusal of every procedural olive branch offered by this Court does not cure the unconstitutionality of these proceedings. … Furthermore, the procedural rights of an accused who has allegedly committed a heinous and serious crimes are no less important or violable than those of an accused who has committed a less serious crime. In other words, the seriousness of Mr Zuma’s contempt does not diminish the constitutional protections to which he is entitled’.
In his dissenting rescission application judgment when the Zuma matter was brought again to the Constitutional Court, Jafta J also firmly and correctly stated that:
‘This means that Mr Zuma was incarcerated in terms of an invalid procedure. The supremacy of the Constitution tells us that his detention too was invalid’ (Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others 2021 (11) BCLR 1263 (CC) para 238).
Mr Zuma was convicted without a trial and sentenced without being allowed to mitigate against his sentence. This conduct is generally reviewable. Most significantly, the correctness of the Constitutional Court’s conviction and imposed sentence could not be tested on appeal because it is the Apex Court. Section 47(1)(e) of the Constitution contemplates a sentence that can be assessed by a higher court through an appeal. This is one of the important safeguards in the Constitution that requires judges of the Constitutional Court to be very slow to agree to hear any matter as a court of first instance. I agree with Zondi JA’s sentiments that where the Constitutional Court decides to entertain a case as a court of first instance where its judges are required to pass a criminal sanction, the sentence they impose runs a risk of not being regarded as a sentence for the purposes of section 47(1)(e) of the Constitution.
In conclusion, I am of the view that there is no basis for the IEC to appeal the Electoral Court’s decision. Most importantly, the Constitutional Court must be extremely careful and avoid creating a constitutional crisis. There is a section of the South African society whose right to choose their preferred candidate should not be undermined, particularly considering the way their preferred candidate was convicted and sentenced. In any event, I doubt whether this matter will be heard as directed by the Constitutional Court before the elections. There may be several interlocutory applications for certain judges of this court to recuse themselves unless they voluntarily decide to do so (see Marumoagae ‘A call for adequate judicial assessment when confronted with recusal applications’ in Schwikkard & Hoctor (eds) Essays in honor of Steph Van der Merwe (Juta 2023) 180 – 208).
