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Published Date: April 29, 2024

Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others (0015/24EC) [2024] ZAEC 05 (26 April 2024)

On Friday, 26 Aril 2024, the Electoral Court published its heavily anticipated judgment, outlining the reasons for its decision on whether former President Jacob Zuma can contest the polls in the upcoming elections.

The judgment focussed particularly on Mr Zuma’s conviction, sentence, and the legal effect of a presidential remission of his sentence.

The following is a breakdown of the key points discussed in the judgment:

Conviction and Contempt of Court: Mr. Zuma was convicted of contempt of court for disobeying a court order, which is considered a crime. The judgment references previous legal definitions of contempt of court and emphasizes that it constitutes a crime.

Presidential Remission of Sentence: The court also dealt with the effect of the presidential remission of Mr. Zuma’s sentence. It held that the remission does not erase the fact of his original 15-month sentence.

Interpretation of Legal Provisions: The judgment interprets various legal provisions, including Section 47(1)(e) of the Constitution, which disqualifies individuals convicted and sentenced to more than 12 months’ imprisonment without the option of a fine from being members of the National Assembly.

Appeal Process and Disqualification: The judgment discusses the importance of the appeal process in determining the disqualification of individuals under Section 47(1)(e) of the Constitution. It argues that until the appeal process is concluded, the individual is not regarded as having been sentenced.

Constitutional Interpretation: The court emphasizes the importance of interpreting constitutional provisions in a manner that promotes certainty, upholds the integrity of the electoral process, and respects individuals’ rights to appeal their convictions and sentences.
Overall, the judgment concludes that Mr. Zuma’s sentence does not disqualify him from being eligible to be a member of the National Assembly, primarily due to the ongoing appeal process and the interpretation of relevant constitutional provisions.

Dissenting Judgments

The judgment also contains two dissenting judgments by Modiba J and Yacoob AJ.

Modiba J

Modiba J concurs with the majority opinion on most points but disagrees with the conclusion regarding the legal effect of a remitted sentence on Mr Zuma. Modiba J argues that a remitted sentence reducing the sentence imposed by a court does not violate the separation of powers doctrine.

Modiba J also argues that the remission of Mr Zuma’s sentence effectively reduced it to three months, which would not disqualify him from National Assembly membership.

Yacoob AJ

Yacoob AJ agrees with most of the majority opinion but dissents on the conclusion about the legal effect of the remission of sentence on Mr Zuma.

Yacoob AJ argues that the remission did not change the sentence imposed by the court and, therefore, Mr Zuma’s effective sentence remains fifteen months. They provide their reasoning based on a different interpretation of the relevant legal provisions and the context of the case.

Cohen Grootboom
Senior Associate | Attorney

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