Publications
Partners
On Friday, the Constitutional Court (ConCourt) dismissed former president Jacob Zuma’s bid to have five justices of the apex court recused from hearing the Electoral Commission of SA’s (IEC's) urgent appeal application on his eligibility to stand as a candidate for this month’s general elections.
Zuma wanted the recusal of the ConCourt's justices, who had previously sentenced him to jail for contempt of court. His lawyer, Advocate Dali Mpofu SC, argued that their recusal application was not based on actual bias but on a "reasonable apprehension of bias" regarding the justices.
In 2021, the former president was sentenced to 15 months' imprisonment for refusing to obey the ConCourt's order to appear before the state capture commission.
The justices targeted by Zuma and involved in his sentencing were Mbuyiseli Madlanga, Steven Majiedt, Nonkosi Mhlantla, Leona Theron and Zukisa Tshiqi.
READ: IEC lodges urgent appeal to ConCourt after Electoral Court decision allowing Zuma’s candidacy
Deputy Chief Justice Mandisa Maya announced the dismissal of Zuma's recusal application. While the court did not immediately provide reasons for its decision, it is expected that these will be detailed in their written ruling on the matter.
Last month, the IEC filed an urgent application with the ConCourt to challenge the Electoral Court's decision that cleared the path for Zuma to run as a candidate for the uMkhonto weSizwe Party (MKP) in the 29 May polls.
The IEC had upheld an objection from a member of the public to Zuma’s candidacy due to his criminal record for contempt of court, citing section 47 of the Constitution, which disqualifies a party candidate who has been sentenced to more than 12 months in prison without the option of a fine from contesting a seat as a member of Parliament.
However, the Electoral Court found that, because Zuma did not have the ability to appeal the sentence imposed on him by the ConCourt, it did not constitute a "sentence" under section 47(1)(e) of the Constitution, which deals with the eligibility of candidates for Parliament.
READ: Zuma rides again! - Electoral court clears former president to stand as MKP candidate in elections
'Electoral Court judgment was some kind of vindication'
In his arguments before the ConCourt on Friday, Mpofu argued that their application was based on accepting the correctness of the ConCourt's ruling that found Zuma guilty of contempt. He said claims that their intent was to re-litigate the case were mischievous.
"This is not a frivolous application; this is an application that is well thought out," he contended.
Mpofu also claimed that the Electoral Court “doubted the authenticity” of the ConCourt's sentencing of Zuma for contempt of court.
He stated:
Mpofu further argued that Zuma would never accept the ConCourt's ruling until he died. He said the former president believed the sentence was “the worst injustice ever meted out in post-apartheid South Africa”.
He argued:
'There is no basis for recusal'
However, Advocate Tembeka Ngcukaitobi SC, acting on behalf of the IEC, argued that the court should dismiss Zuma’s recusal application because it was "baseless".
READ: Zuma's Umkhonto weSizwe Party 'forged’ signatures to meet IEC threshold
Ngcukaitobi contended that the apex court could not be directed over people's subjective beliefs about possible biases from the justices. He argued that the court was required to apply the law on recusal.
Ngcukaitobi stated:
“Many clients who lose cases before this court believe that the court has done so unjustly, but the court cannot be directed or dictated to by their subjective beliefs.”
He added:
Following the handling of Zuma's recusal application, the ConCourt is now hearing arguments in the IEC's urgent appeal application.
