By Paul Hoffman

Professor Balthazar need not stress over or be bewildered by the reliance of elements of the Electoral Court on the remission of the  sentence imposed on Jacob Zuma.

It seems that the mysterious Professor Balthazar has been thoroughly discombobulated by the findings of the Electoral Court in the tussle over the eligibility of Jacob Zuma to stand for parliamentary office. This note is an effort to simplify the situation pending the hearing in the Constitutional Court on 10 May. In that hearing the definitive ruling will be made on the issues in the case.

The case turns on the proper interpretation of the Constitution and in particular the wording of section 47 read with sections 7(2) and 19 of the Bill of Rights, which is Chapter Two of the Constitution.

Section 47 sets out the limitations on the eligibility of candidates for parliamentary office. The relevant restriction relates to those sentenced to imprisonment without the option of a fine for a period in excess of 12 months. This restriction kicks in after all possible appeals against the sentence have been exhausted and the 12 months or more still stand on the criminal record of the person concerned.

It is common cause that Zuma was sentenced to 15 months in prison for contempt of court by the Constitutional Court. The sentence was later remitted by the President and today Zuma has no more time to serve because of the remission of sentence he received. His disqualification ends five years after his sentence has been served, a period which has yet to elapse. The remission, it is submitted, is legally irrelevant to the interpretation of the prohibition on eligibility.

The weasel words in the section that will have to be interpreted by the Constitutional Court say: “but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined…”

The question is, should these weasel words be regarded as pro non scripto or irrelevant in Zuma’s case, thus disqualifying him, or should they be interpreted to mean that because there is no appeal available to him, he should not be regarded as having been sentenced in the sense intended (i.e. an unappealable sentence) and thus eligible as found by the Electoral Court? The Constitutional Court might read the weasel words as only being applicable where it is possible for an appeal to be made. Otherwise it means that a conviction imposed by the Constitutional Court is weaker than that of a lower court which makes no sense, as is apparent in the situation where the State appeals against a suspended jail sentence and only succeeds in the highest court.

It is also possible that the Constitutional Court will pay close attention to the purpose of section 47 which is arguably to ensure that only fit and proper persons reach parliamentary office. Here it is conceivable that counsel for the IEC will raise the most troubling issue in the case: a former president of our democratic constitutional republic treated our apex court with malicious and deliberate contempt. This man swore a presidential oath to uphold our Constitution and laws. He was convicted of a crime by our apex court and sentenced accordingly. If permitted to seek election to Parliament, would he be a fit and proper member? What would the Chief Justice – indeed, what would the ordinary South African citizenry – make of the oath he swears upon taking office as a member of Parliament?

The state in South Africa, and this includes the courts, is obliged to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. Voting rights and the right to stand for office are accorded to all by section 19 of the Bill of Rights. The right to vote was not available to the vast majority of South Africans before 1994 and was one of the hard-won gains of the settlement that was part of the National Accord that gave rise, after certification by the Constitutional Court, to the current constitutional dispensation in South Africa.

The limitations on eligibility spelt out in section 47 are a curtailment of the rights accorded to all in section 19. Limitation of rights is allowed only in terms of a law of general application and then only to the extent that such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the various factors spelt out in section 36 of the Bill of Rights. No law may otherwise limit any right entrenched in the Bill of Rights.

The Zondo Commission took Zuma’s recalcitrant refusal to testify before it directly to the Constitutional Court. That court regarded it as being in the interests of justice to entertain the complaint as a court of first (and last) instance given the nature of the complaint, the importance of the work of the commission and the rank of the person complained against, namely the head of the national executive and the head of state. In those capacities Zuma was constitutionally obligated to uphold, defend and respect the Constitution as our supreme law and to promote the unity of the nation and that which will advance the Republic. These features of the high office held are spelt out in section 83 of the Constitution.

Somewhat contradictorily, Zuma now leads a breakaway party which campaigns for the termination of that Constitution and its replacement with an entirely new order that eschews constitutional democracy under the rule of law. Former president Thabo Mbeki refers to Zuma as a wolf in sheep’s clothing.

The question is whether the Constitutional Court will so interpret the weasel words quoted above as to allow Zuma to stand for election, or whether they will be held to be inapplicable to his situation due to the fact that he did not have the benefit of appeal processes that are usually part of the fair trial regime that section 35 of the Bill of Rights prescribes. Under that section appeals and reviews are regarded as part of the fair trial entitlements guaranteed to all. It may be argued that the rescission application Zuma brought after he was sentenced by the Constitutional Court satisfied the review criterion of section 35.

It needs to be noted that the weasel words could imply that if every available appeal is used an elected candidate could string out legal processes until her or his term of office is at or near to its natural end.  Imagine that Zuma had been convicted in the magistrates’ court. He could appeal to the high court, thence to the Supreme Court of Appeal and thence to the Constitutional Court itself, a process, given his proclivity for Stalingrad strategies, that could consume many years if not all five years of the Parliament in which he may be elected to serve.

Professor Balthazar need not stress over or be bewildered by the reliance of elements of the Electoral Court on the remission of the sentence imposed on Zuma. That remission is irrelevant to the true legal issue. Remission does not alter the sentence imposed, it merely ameliorates its effects. The doctrine of the separation of powers does not allow the executive to interfere with the sentencing function of the courts.

Read more in Daily Maverick: Zuma all the way — 2024 elections, meet Stalingrad

Either the absence of appeal processes, or even an appellate forum, render the weasel words as a way out for Zuma because he may not be regarded as a victim of the prohibition in the absence of appeal possibilities, or the words simply do not apply to sentences meted out by the Constitutional Court because, obviously, no appeal can ever lie against such a sentence.

If the words “the disqualification under this paragraph applies to sentences imposed by the Constitutional Court” had been added at the end of the wording of the last sentence of section 47(1)(e) there would be no room for argument; because the drafters did not do so, there is room for argument on the proper interpretation of a section of the Constitution that temporarily deprives citizens of their guaranteed right to stand for public office and makes it impossible for their supporters to exercise their right to vote for them.

This is the legal minefield the Constitutional Court will traverse when it finally determines the correct interpretation of the restriction on eligibility for membership of Parliament of those convicted and sentenced to more than a year in prison without the option of a fine. Does the restriction apply to those with no right of appeal, or does it not? DM