WRAP | Electoral Court to hand down ruling tomorrow on Zuma’s eligibility to contest elections

Former president Jacob Zuma is back in court. With a chuckle, he quips: "I am confident it's going well. We are going to win the case, can't you see that it's obvious?"

- Amanda Khoza

Former president Jacob Zuma addressed scores of uMkhonto weSizwe Party supporters after the court hearing. He told his supporters that the IEC was interfering with processes that should be managed by the National Assembly.

He also said: "If the masses want me to be President, what's going to stop them? Remember, I was recalled, I did not finish my second term, so nothing stops me from being the president again. Allow me to go and finish what I started."

- Amanda Khoza

Justice Zondi says: "We could maybe send it electronically... The court adjourns."

The order will be granted tomorrow.

- Amanda Khoza

Judge Modiba says the court is considering on handing down an order tomorrow and deferring the reasons because the IEC's timetable is legally binding. "We are bound by that timetable," she adds.

- Amada Khoza

Adv Mpofu says he is not asking the court to choose between his and Adv Ncukaitobi's interpretations on the matter but, "The court is compelled to err on the side of not disenfranchising the millions of people."

- Amanda Khoza

Comment: While Adv Mpofu continues to respond to the IEC's arguments, Zuma called one of his protectors. He was seen whispering something to him for some time and then looking at his watch. It is not clear what is concerning the former president.

- Amanda Khoza

Adv Mpofu says the fact that Zuma walked off to his Nkandla home on 11 August 2023 means: "He was free."

Judge Modiba says she is troubled by Ncukaitobi who wants the court to hold Zuma to the consequences of a sentence. Mpofu concurs saying, "The court should be circumspect to this mix masala, the court should be absolutely sure before it can slash the rights of millions of people as citizens of this country, the rights of the uMkhonto weSizwe Party and of Mr. Zuma."

- Amanda Khoza

Adv Mpofu says a sitting president has the power to grant remission because he can interfere with the judicial process. "He has those powers to interfere with the judicial decision in that the legal impact will reduce, deduct, or cancel a portion of a remaining sentence."

Judge Modiba says she heard Ncukaitobi to say that the court should work with the date when the sentence was imposed.

- Amanda Khoza.

Adv Mpofu adds that, "The question is not that five years has not lapsed... One of his (Ngcukaitobi's) versions was that the sentence had never been completed... Then Mr Ngcukaitobi, when I see him, I am going to take him to church because even the Bible has an answer for this. The remission of sins, according to Ngcukaitobi, Jesus Christ can remit your sins, but it will not be completed; it will be completed when judgment is made..."

But Justice Zondi came to Ngcukaitobi's defence, saying all he meant was that there is a separation of powers in that a sitting president can grant you remission, but he can't change the sentence that was imposed by the court.

- Amanda Khoza.

Adv Mpofu says: "Our version is that the sentence was over on 11 August 2023, there is no other answer."

- Amanda Khoza.

Adv Mpofu pokes fun at Ngcukaitobi, who earlier spent a considerable amount of time explaining to the court when Zuma completed his sentence.

- Amanda Khoza

Turning to Ngcukaitobi, Mpofu says this is an appeal of the IEC's decision not a review.

"Mr. Ngcukaitobi, it is a pity that he is not here because he made a comment that it was fundamentally misguided to try and pit one section of the Constitution against another... he gave the most incorrect answer. A section in the Bill of Rights cannot be billed the same as another section in the Constitution... I will tell him tomorrow who was fundamentally misguided and that is him... He was then asked another question when the sentence was completed, he went on and on... We have the IEC now going to war for this person's exaggeration but giving us multiple versions of when the sentence was completed."

- Amanda Khoza.

Adv Mpofu asks: "You cannot be a judge in a matter that you have prejudged. That statement was made by Justice Hlophe and has often been quoted... It is simple, you can't. There are two options she should have done what anyone sitting on that side would have done. She should have said she could not comment on the matter because it could come back to her later, and she failed to do that. She failed to not comment and then went further to sit in on the judgment. That is wrong. Such decision should be set aside."

- Amanda Khoza

Adv Mpofu tells the court that this (Mitchell's submission) "is a dog's breakfast".

"Your Lordship asked several times what the threats of violence have to do with it, and they did not have an answer, and this talks to the behaviour of the IEC. It is not the duty of an independent body to come here and chop and change the case. The reason why Mr. Mitchell introduced the whole violence thing, which is unfounded... Mr Mitchell tells the court as a council that when Ms. Love was talking in January was influenced by what Mr. Khanyile was going to say in March.

"The real issue is that these are gratuitous submissions which are made to tarnish Mr. Zuma's image and the MK Party, for nothing, just njeh!"

- Amanda Khoza.

Adv Mpofu is now responding to the IEC's arguments.

- Amanda Khoza.

Wrapping up, Adv Mitchell says: "We ask the court to dismiss the appeal."

- Amanda Khoza.

Mitchell says it is a fact that the IEC does not write news headlines.

"There is no duty to correct what is said in media reports." 

- Amanda Khoza

Adv Mitchell further tells the court: "The context is that there has always been violence from the MK Party. Ms. Love merely states that if there is an exclusion, it is not personal but because the IEC would have followed and applied the law."

Mitchell disputes that there was prejudice in the matter. He adds: "They said they were simply applying the law. She was not prejudging the law; it just happened that there were all these other reports. We do not deny that they said those things, but she is not here to explain why she said that. Her response was not responding to Zuma being excluded but a hypothetical situation."

- Amanda Khoza.

Justice Zondi asked what's the relevance of the alleged threats of violence in relation to what Mitchell is basing his argument on.

Mitchell tells the court that Commissioner Love was asked a question about the IEC's concerns.

He tells the court that Love told the media that if Zuma was excluded, she was not determining whether Zuma was going to qualify or not but that she relied on the law.

- Amanda Khoza

Ngcukaitobi has asked to be excused and has asked his colleague advocate Mitchell to deal with the matter of bias. He starts his argument by saying that Zuma and the MK Party rely on two sources for their accusation of bias, the first being the direct quote from Commissioner Love during a press briefing.

"Our response is that Ms. Love was responding to a media query in relation to the law. This was a statement of law thus hypothetical. This is how a reasonable observer would have read that situation and not that Mr. Zuma was not qualified to stand because they said it, but if that was the law, then Zuma would not have been able to stand."

-Amanda Khoza

Adv Ngcukaitobi says in so far as the Presidential Proclamation on the remission, it was never to undo a sentence imposed. "What it did is that it rendered that sentence reduced. The president (in this case) brought that completion forward because he was released after three months."

- Amanda Khoza.

Adv Ngcukaitobi maintains that the president has the power to forgive, which could lead to a reduction of a jail sentence.

"What this is about is regulating the remaining period of incarceration. Even when you look at the text of the actual remission, it is simply about the remaining parts of the incarceration... It is the sentence that should be taken into consideration not the time served."

- Amanda Khoza.

Adv Ngcukaitobi and Judge Modiba are arguing about whether Zuma completed his sentence or not.

Ngcukaitobi is asked whether the nation should count from the time the court imposed the sentence or the time served until he was granted remission? "Is five years calculated from the lapse of the three months or 15 months..." Judge Modiba asks Ngcukaitobi if the court should not to concern itself on the three months but rather focus on the 15 months that were given to Zuma, which were serious.

Adv Ngcukaitobi says: "You start of with 15 months, that's the sentence imposed. That sentence could have been finished in 15 months or by way of remission or another form, which could be an expungement, but it is still completed. It is not inconsistent to say that you had 15 months but you completed it sooner because of a remission from a president."

He says the fact remains that Zuma was sentenced to 15 months in jail.

- Amanda Khoza.

Ngukaitobi tells the court that Zuma had a 15-month sentence not a 3 month one as argued by advocate Dali Mpofu. He said the remission he got means he completed the sentence but the sentence still stands.

- Qaanitah Hunter

Judge Modiba asks Ngcukaitobi whether, in his view, Zuma completed his sentence.

Adv Ngcukaitobi maintains that: "Mr Zuma did not complete his sentence because he was released, initially on medical paroles, which was then declared unconstitutional and then later on the merits of a special remission."

Judge Modiba presses him further asking why should it be ignored that Zuma did finish his sentence, but Ngcukaitobi maintains that Zuma's sentence was interrupted by Ramaphosa's remission. "You cannot change the sentence by simply saying that the president imposed a different sentence."

- Amanda Khoza

Adv Ngcukaitobi maintains that, "Zuma is not qualified to be a candidate right now" and does not qualify to go to the National Assembly.

- Amanda Khoza.

Adv Ngcukaitobi accepts that a remission would have an ultimate effect on the total sentence served but not on the sentence that was imposed by a court of law.

Judge Modiba asks Ngcukaitobi if Zuma was pardoned, would he have remained a convicted person? "Yes, of course," says Ngcukaitobi.

"It applies to Mr. Zuma with a remission or parole. I think what we are dealing with here is conflating issues... Mr. Zuma is one of the persons that are precluded from going to serve in Parliament." 

- Amanda Khoza

Adv Ngcukaitobi says sections in the Constitution cannot be read in isolation or in contradiction of one another and adds that the Constitutional court had previously ruled that "it was nonsense" to read some sections of the Constitution in isolation of one another.

Justice Zondi interrupts Ngcukaitobi asking for clarity on whether he is saying the executive does not have the authority to change a sentence. Zondi says he understands that the executive cannot change or interfere in a sentence that was imposed by a court of law. What is clear is that a sitting president has the power to pardon and grant remission; however, they cannot change a sentence.

- Amanda Khoza

Judge Modiba now deals with the distinctions between remission and parole. She says: "If the remission did not apply and he remained on parole due to medical reasons, he would have remained in the care of the correctional services. But in this case, after he was paroled, he was no longer a sentenced person, he was no longer in the care of the correctional service, he was free..."

- Amanda Khoza.

Adv Ngcukaitobi adds that an executive decision by the president cannot be used to change a sentence.

"It was not even the decision of the president to change it from 15 months to three months... We have to confront this matter and not try to tiptoe around the matter and make excuses for this appellant (Mr. Zuma). The president did not change Mr. Zuma's sentence, he had the power to change the term of the sentence. He could have been released, but it had nothing to do with Section 47 of the Constitution.

"All the court has to consider is whether it applied Section 47 correctly or not. The fact that the President decided to forgive Mr. Zuma and many others is irrelevant to the sentence he was given by the court. Mr. Zuma is disqualified.

- Amanda Khoza.

Adv Ngcukaitobi argues: "We must not conflate this with the period actually served and the date of his release. The remission did not change the sentence. It simply determined the period of release. The executive cannot say you are sentenced to 15 months, it can say that we forgive you, you are now released... The fact that the President says, 'I don't want to keep sick people or old people in prison because I have the power to do that and forgive', does not mean that you can go back and rewrite the sentence."

- Amanda Khoza.

Adv Ngcukaitobi submits that in this particular case, "the appeal was fully debated in the Constitutional Court."

However, Judge Modiba says at this point, she is not dealing with the remission; she is dealing with the sentence.

He continues to say Zuma was convicted and he did not appeal. "What that leaves us with is the sentence part. The way we understand the argument to be is that the sentence that Mr. Zuma was imposed with is three months because there was a remission of the sentence. The reason why we believe this is wrong is the premise."

- Amanda Khoza.

Adv Ngcukaitobi tells the court that, if there was an appeal, it would have had to have been taken into account.

"It is clear that where there is no appeal in law, that is not applicable, that provision, all it does is that we will not implement it now because we will wait for your appeal." Justice Zondi asks whether this is the right way to interpret the Statute.

"Surely that is not the correct way of interpreting the Statute," he says.

-Amanda Khoza

Adv Ngcukaitobi adds that Zuma was found "guilty of a crime of contempt. That is a conviction. It is irrelevant that this contempt came through certain processes. What is clear is that Zuma was convicted of a crime.

"Was this an offence? The answer is yes. Was there a guilty verdict? The answer is, yes. Are we dealing with a convict? The fact here is that we are dealing with someone who has been convicted of a crimse."

- Amanda Khoza.

Ngcukaitobi said contempt of court is a crime and Zuma was found guilty of that kind.

"We are dealing with someone who is a convict. Convicted on an offence."

Nqcukaitobi said it was true that the conviction was not appealable. He says this court cannot revisit that matter now.

- Qaanitah Hunter

On the conviction of contempt of court, Ngcukaitobi explains, through various court judgements, that contempt of court is a crime.

"It is quite clear that it is described as an offence or a crime... Even in the Zuma contempt case, you will find that contempt of court in various paragraphs, is described as a crime or an offence. Contempt is clearly a crime or an offence. On conviction, people are convicted of a crime, nothing more or less. The question of procedure has no bearing. For contempt, you are convicted, it is a crime."

- Amanda Khoza

Adv Ngcukaitobi says if the court rules in favour of the MK Party, what you would have are people sitting in the National Assembly who do not qualify to be members of the National Assembly.

"It is true that some people will lose their rights in the National Assembly. There is no argument here about the exclusive power of the Electoral Commission. At the electoral stage, that screening is done by the IEC. We say the court must dismiss this ground because it has no merit."

He says there is a clear separation of powers between the National Assembly and the IEC.

- Amanda Khoza

Adv Ngcukaitobi explains that when candidates submit their names they declare that they qualify to be on the list.

"You go to the IEC and make this declaration which then binds the IEC to consider your name. Once that is done, there is an opportunity to object and so... an objection can be made if the candidate does not qualify to stand. The objection is responding to the declaration whether the candidate qualities or not. Once that happens, the IEC has copies of the objection and the declaration they compare the two, it is then duty bound to decide what to do on the objection."

- Amanda Khoza.

Adv Ngcukaitobi will now respond to advocate Mpofu's arguments. He begins his arguments by telling the court that he will deal with the question of whether or not the IEC has the power to uphold an objection and if Mr. Zuma is disqualified by virtue of Section 47.

He tells the panel that: "The IEC has the power derived from directly from the Electoral Commission Act and Constitution and to apply Section 47 as part and parcel of that objection."

- Amanda Khoza.

Court is back in session.

- Amanda Khoza.

Court adjourns until 12:50. 

- Amanda Khoza.

In addition, she says: "Judge Pillay's recusal from deciding on the matter further emphasises the need for Commissioner Love to have recused herself. Judge Pillay recused herself because she had an indirect involvement in the contempt of court case, however Commissioner Love personally made statements relating to the matter, and it is for this reason that by virtue of making the statement and not refuting the statements, she should have recused herself.

"It is upon that basis that we humbly ask the court to set aside the objection by the IEC to uphold the objection."

- Amanda Khoza

The legal representative stands by her statement that Commissioner Love should have recused herself from the matter.

She says: "That is why our submission is that the Commission prejudged the eligibility of the candidates and stated that in terms of our (IEC) laws, it would be an impediment to Zuma's candidacy. It cannot be that when you have made a pronouncement you will come up with a different outcome when the objection is made. The decision is dented."

- Amanda Khoza.

Judge Madondo picks up a contradiction in that he reads the situation as Commissioner Love stating the IEC's legal position on the matter and that the law was applied in this matter. The other is that she was responding to a question that was asked during a media briefing.

Justice Zondi adds that the question could have been asked about any other candidate apart from Mr. Zuma.

-Amanda Khoza

The legal representative explains that she is relying on an EWN report, not an official statement from the IEC.

"We say that the answer was specific to Mr. Zuma and not just a generic answer. She said in respect of his candidacy, there would be an impediment." She goes on to say that the MK Party understands when the IEC relies on the law to make its decision.

However, she added: "It is our version that this related directly to Mr Zuma's candidacy. The question was directly linked to Mr. Zuma, and if it was not, the IEC has not furnished the court with any other interpretation, and it does not deny that this statement was made. They say that they were stating their legal position, but this is not the case."

- Amanda Khoza.