THE ELECTORAL COURT OF SOUTH AFRICA

BLOEMFONTEIN

Reportable
Case no: 0015/24EC
In the matter between:

UMKHONTO WESIZWE POLITICAL PARTY FIRST APPLICANT

JACOB GEDLEYIHLEKISA ZUMA SECOND APPLICANT

and

ELECTORAL COMMISSION OF SOUTH AFRICA FIRST RESPONDENT

MAROBA MATSAPOLA SECOND RESPONDENT
BETHUEL TERRENCE NKOSI THIRD RESPONDENT

Neutral citation: Umkhonto Wesizwe Political Party and Another v Electoral

Commission of South Africa and Others (0015/24EC) [2024]
ZAEC 05 (26 April 2024)
Coram: ZONDI JA, MODIBA J, YACOOB AJ and PROFESSORS NTLAMA-
MAKHANYA and PHOOKO (Additional members)
Heard: 04 April 2024

Delivered: 26 April 2024 – This judgment was handed down electronically by

circulation to the parties' representatives via email, by publication on the website of

the Supreme Court of Appeal and by release to SAFLII. The date and time for hand-

down is deemed to be 11:00 on 26 April 2024.

Summary: Appeal against the Electoral Commission’s decision upholding the

objection lodged in terms of s 30 of the Electoral Act 73 of 1998 – whether the Electoral
 2

Commission has the power to determine eligibility for National Assembly membership
- whether a sentence imposed on a candidate rendered such candidate ineligible to
be a member of National Assembly in terms of s 47(1)(e) of the Constitution – effect
of remission on the sentence imposed - whether reasonable apprehension of bias
established-effect of act remission on sentence.
 3

________________________________________________________________

ORDER
________________________________________________________________
1. The application for leave to appeal is granted.
2. The appeal succeeds.
3. The decision of the Electoral Commission of 28 March 2024 in terms of which
the Electoral Commission upheld Dr Matsapola’s objection to the second
applicant’s candidacy (Mr Zuma) is set aside and substituted with the following:
“The objection is hereby dismissed”.
4. No order is made as to costs.
________________________________________________________________

JUDGMENT
________________________________________________________________
Zondi JA (Modiba J, Yacoob AJ and Professors Ntlama-Makhanya and Phooko
concurring):

Introduction
[1] This is an application for leave to appeal, and an appeal, against the decision
of the first respondent, Electoral Commission (Commission) upholding the objections
lodged with it by the second respondent, Dr Matsapola, and the third respondent, Mr
Bethuel Terrence Nkosi (Mr Nkosi) in terms of s 30 of the Electoral Act 73 of 1998 (the
Act) against the nomination of the second applicant, Mr Gedleyihlekisa Jacob Zuma
(Mr Zuma) as a candidate of the first applicant, Umkhonto Wesizwe Political Party
(The MK Party). Mr Zuma is a former President of the Republic of South Africa. The
MK Party is a political party registered in terms of s 15 of the Electoral Commission
Act 51 of 1996. The MK Party submitted that to the Electoral Commission its list of
candidates on 8 March 2024. That list included Mr Zuma’s name. The Commission
received objections to the inclusion of Mr Zuma’s name in the list of candidates for the
MK Party. It upheld two of the objections. The issues are whether leave to appeal
should be granted and whether the Commission erred in upholding the objection.
 4

Background facts
[2] The following facts are relevant to the determination of the issues before this
court. On 28 January 2021 in the matter between Secretary of the Judicial Commission
of Inquiry into Allegations of State Capture v Zuma and Another,1 the Constitutional
Court granted an order in favour of the Judicial Commission of Inquiry (State Capture
Commission) in terms of which Mr Zuma was ordered to attend the State Capture
Commission and give evidence before it. The order was served on Mr Zuma on 15
February 2021, Mr Zuma did not attend the State Capture Commission as required by
the summons and the Constitutional Court’s order. Instead, his legal representatives
informed the State Capture Commission that Mr Zuma would not be appearing before
it on the date stipulated in the summons.

[3] As a result of Mr Zuma’s failure to appear before the State Capture Commission
on the stipulated date, the State Capture Commission instituted contempt of court
proceedings against him in the Constitutional Court under Case Number CCT 52/21.
On 29 June 2021 the Constitutional Court made an order, among others, in the
following terms:
‘3. It is declared that Mr Jacob Gedleyihlekisa Zuma is guilty of the crime of contempt of
court for failure to comply with the order made by this Court in Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2.
4. Mr Jacob Gedleyihlekisa Zuma is sentenced to undergo 15 months’ imprisonment.
5. Mr Jacob Gedleyihlekisa Zuma is ordered to submit himself to the South African Police
Service, at Nkandla Police Station or Johannesburg Central Police Station, within five
calendar days from the date of this order, for the Station Commander or other officer
in charge of that police station to ensure that he is immediately delivered to a
correctional centre to commence serving the sentence imposed in paragraph 4…’

[4] On 8 July 2021 Mr Zuma began serving his sentence at the Estcourt
Correctional Centre (the Centre) in KwaZulu-Natal. On 5 September 2021 the National
Commissioner of Correctional Services (the Department) released Mr Zuma from the

1 State Capture v Zuma and Another Case Number CCT 295/ 20.
 5

Centre on medical parole. This decision was successfully challenged on review in the
high court and was set aside. The high court directed that Mr Zuma be returned to the
Centre. The Department appealed to the Supreme Court of Appeal (SCA) against the
high court’s judgment and on 21 November 2022 the SCA dismissed the appeal. Mr
Zuma approached the Constitutional Court for leave to appeal but his application was
dismissed on 13 July 2023. That was the end of the road for Mr Zuma. He had to go
back to the Centre to complete his sentence, which he did on 11 August 2023.

[5] On 11 August 2023, President Cyril Ramaphosa, acting in terms of s 84(2)(j) of

the Constitution, issued Proclamation Notice 133 of 2023 in terms of which he
approved the periods of special remission to specified categories of offenders,
offenders placed under correctional supervision, parolees and day parolees who were
or would have been incarcerated or serving sentences within the system of Community
Corrections, 2023. In terms of para 1 of the Proclamation Probationers, Parolees and
Sentenced Offenders were granted 12 months Special Remission of sentence.
Paragraph 2 of the Proclamation stated that sentenced offenders who were classified
to be of low risk would receive additional 12 months’ special remission of sentence.
Mr Zuma benefited from the Presidential remission, and as a result he was released
from the Centre on the same day on which he presented himself for completion of his
sentence. As at the date of the Proclamation Mr Zuma had served just less than three
months of the original sentence.

[6] In due course, the MK Party was registered as a political party as it intended to
contest the 2024 general elections. Mr Zuma became a member of the MK Party, and
he was nominated as a candidate for the National Assembly election, which
nomination Mr Zuma accepted.

Objections
[7] Section 30 of the Act deals with ‘Objections to lists of candidates. It provides as
follows:
‘(1) Any person, including the chief electoral officer, may object to the nomination of a
candidate on the following grounds:
(a) The candidate is not qualified to stand in the election;
 6

(b) a party has failed to submit the prescribed acceptance of nomination signed by the
candidate as contemplated in section 27 (4) ; or
(c) there is no prescribed undertaking, signed by the candidate, that the candidate is
bound by the Code.
(2) The objection must be made to the Commission in the prescribed manner by not later than
the relevant date stated in the election timetable and must be served on the registered party
that nominated the candidate.
(3) The Commission must decide the objection and must notify the objector and the registered
party that nominated the candidate of the decision in the prescribed manner by not later than
the relevant date stated in the election timetable.
(4) The objector, or the registered party who nominated the candidate, may appeal against
the decision of the Commission to the Electoral Court in the prescribed manner and by not
later than the relevant date stated in the election timetable.
(5) The Electoral Court must consider and decide the appeal and notify the parties to the
appeal and the chief electoral officer of the decision in the prescribed manner and by not later
than the relevant date stated in the election timetable.
(6) If the Commission or the Electoral Court decides that a candidate’s nomination does not
comply with section 27, the Commission or the Electoral Court may allow the registered party
an opportunity to comply with that section, including an opportunity to substitute a candidate
and to re-order the names on the list as a result of that substitution.’

[8] Section 30 must be read together with s 47 and s 19 of the Constitution. Section
47 of the Constitution is headed ‘Membership’. The relevant provisions are contained
in s47(1) and (2) which provide the following:
‘(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member
of the Assembly, except –
(a) anyone who is appointed by, or is in the service of, the state and receives remuneration
for that appointment or service, other than -
(i) the President, Deputy President, Ministers and Deputy Ministers; and
(ii) other office-bearers whose functions are compatible with the functions of a member of the
Assembly, and have been declared compatible with those functions by national legislation;
(b) permanent delegates to the National Council of Provinces or members of a provincial
legislature or a Municipal Council;
(c) unrehabilitated insolvents;
(d) anyone declared to be of unsound mind by a court of the Republic; or
 7

(e) anyone who, after this section took effect, is convicted of an offence and sentenced to
more than 12 months imprisonment without the option of a fine, either in the Republic, or
outside the Republic if the conduct constituting the offence would have been an offence in the
Republic, but no one may be regarded as having been sentenced until an appeal against the
conviction or sentence has been determined, or until the time for an appeal has expired. A
disqualification under this paragraph ends five years after the sentence has been completed.
(2) A person who is not eligible to be a member of the National Assembly in terms of
subsection (1)(a) or (b) may be a candidate for the Assembly, subject to any limits or conditions
established by national legislation.’

[9] The next relevant statutory provision is s 19 of the Constitution headed ‘Political
rights’ which provides as follows:
‘(1) Every citizen is free to make political choices, which includes the right-
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body
established in terms of the Constitution.
(3) Every adult citizen has the right -
(a) to vote in elections for any legislative body established in terms of the Constitution, and to
do so in secret; and
(b) to stand for public office and, if elected, to hold office’.

[10] Having set out the applicable statutory provisions I now proceed to deal with
the facts which form the basis of the impugned decision of the Commission. On about
27 March 2024 the Commission, a body which, among others, is responsible for
management of the elections of national, provincial and municipal legislative bodies,
received objections in terms of s 30 of the Act read with regulation 6 of the Regulations
Concerning the Submission of Lists of Candidates, 2004 to the nomination of Mr.
Zuma from Dr Matsapola and Mr. Nkosi. The gist of their objections was that they
were opposed to Mr Zuma’s nomination. Mr Nkosi has since written a letter to the
Commission denying that he objected to Mr. Zuma's nomination. He stated that he has
no knowledge of the objection. We are therefore concerned only with Dr Matsapola’s
objection.
 8

[11] The relevant part of the objection reads thus:

‘[4] [Mr Zuma] appears on the National List of the Umkhonto Wesizwe Party…
[5] On June 29 2021, in the matter of Secretary of the Judicial Commission of inquiry into the
Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of
State v Zuma and Others [2021] ZACC 18, attached hereto as Annexure B, the Constitutional
Court ordered that:
(a) it is declared that Mr Jacob Gedleyihlekisa Zuma is guilty of the crime of contempt of court
for failure to comply with the order made by this court in secretary of the Judicial Commission
of inquiry into allegations of state capture, corruption and fraud in the public sector including
Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2.
(b) Mr Jacob Gedleyihlekisa Zuma is sentenced to undergo 15 months’ imprisonment.
[6] Mr JG Zuma completed his sentence when he was released from prison on 11 August
2024 following a special remission of sentence in terms of section 84(2)(j) of the Constitution
for certain categories of sentenced offenders, correctional supervision and parolees.
Proclamation 133 in Government Gazette number 49106 of 11 August 2024 is attached here
too as Annexure C.
[7] I submit, therefore that in terms of section 47(1)(e) of the Constitution, Mr JG Zuma is not
eligible to be a member of the National Assembly in that:
(a) he was convicted of an offence and sentenced two more than 12 months’ imprisonment
without the option of a fine, to wit 15 months;
(b) a period of five years after the sentence has been completed has not elapsed.
[9] Accordingly, I further submit that in terms of section 30(1)(a) of the Electoral Act, Mr. J G
Zuma is not eligible to be a candidate and accordingly I object to his candidature’.

[12] On or about 24 January 2024 Commissioner Janet Love (“Commissioner Love”)

is alleged to have made a public statement pronouncing upon the eligibility of Mr Zuma
to register as a candidate. That statement was published by Lindsay Dentlinger of Eye
Witness News. The publication reported that ‘the Electoral Commission (IEC) has
confirmed that former President Jacob Zuma does not meet the requirements to
register as a candidate to stand in this year's elections.’ The article went on to say: ‘the
Electoral Commission on Thursday confirmed this when asked at a press briefing whether
Zuma could be included on a party list for election to parliament. Commissioner Janet Love
said the IEC was bound by the law and the Constitution in terms of who was eligible to run for
political office’. According to the article Commissioner Love is reported to have stated:
‘That excludes anybody who has been given a sentence that was not the subject of any
deferral and in that sense, it is not ourselves, but the laws of the country that would stand as
 9

an impediment for that candidacy’. This forms the basis of MK Party’s claim that
Commissioner Love should not have considered the objections to Mr Zuma’s
candidacy because she had displayed bias against Mr Zuma.

[13] On 28 March 2024 four Commissioners including Commissioner Love

considered the objections and upheld them. Commissioner Pillay recused herself. In
terms of the 2024 election timetable published by the Commission on 24 February
2024 Mr Zuma had until 2 April 2024 to bring a challenge to the Commission’s decision
to this Court. Aggrieved by the Commission’s decision the MK Party and Mr Zuma
approached this Court on an urgent basis for leave to appeal against that decision.

[14] Leave to appeal was sought on the following preliminary grounds:

(a) That the Commission and the objectors failed to give the requisite and timely
notification to the MK Party. The complaint is that the notification was sent to the wrong
e-mail address. This ground was subsequently abandoned by the MK Party and
nothing further needs be said about it.
(b) It was alleged that the Commission exceeded its powers or authority in purporting
to implement or apply s 47(1)(e) of the Constitution which, the MK Party contended,
falls under the powers of the National Assembly to regulate its own affairs in terms of
s 57 of the Constitution.
(c) It was alleged that the Commission, alternatively Commissioner Love was biased.
This allegation was based on the pronouncements she allegedly made in the media
prior to the lodgment and consideration of the objection in which she is alleged to have
stated that ‘Zuma is not eligible to register as a candidate’.

[15] As regards the merits of the appeal, the MK Party argued that the Commission
erred in finding that s 47(1)(e) of the Constitution finds application.
(a) It was alleged that the Commission erred in conflating the issue of standing as a
candidate (in terms of 30(1)(a) of the Act) with eligibility to be a member of the National
Assembly in terms of s 47(1) of the Constitution.
(b) The MK Party disputed that Mr Zuma was convicted of an offence and sentenced
within the meaning of s 47(1)(e) of the Constitution.
(c) The Commission did not take into account the fact that Mr Zuma's sentence was
remitted.
 10

[16] The Commission opposed the application for leave to appeal and asked this
Court to dismiss it. It denied that the MK Party was not notified of the objections and
of its decision. It alleged that it notified MK Party on 29 March 2024 of its decision. As
regards the source of its authority to disqualify Mr Zuma, the Commission contended
that Mr Zuma’s disqualification applies to both nomination as a candidate and to being
a member of parliament. It asserted that neither the Act nor the Constitution
distinguishes between eligibility to stand in an election for the National Assembly and
eligibility to be a member of the National Assembly.

[17] The Commission averred that ineligibility under s 47(1) of the Constitution is a
ground for objection under s 30(1)(a) of the Act. The Commission maintained that the
pre-election process is the only opportunity to determine eligibility for membership of
the National Assembly before a new Parliament is constituted. The Constitution,
contended the Commission, does not provide for a special after-election sitting of the
National Assembly to determine eligibility. It went on to state that the Act requires the
Commission to satisfy itself that each candidate on the party’s list is eligible to be a
member of the National Assembly.

[18] As regards the accusation that it and Commissioner Love prejudged Mr Zuma’s
eligibility and that for that reason they were precluded from considering the objection,
the Commission denied that the statement attributed to Commissioner Love gives rise
to bias or conflict of interest and that there was any reasonable basis for it and
Commissioner Love to recuse themselves. The Commission averred that
Commissioner Love simply stated the correct legal position and her statement was
made in response to a question about Mr Zuma’s eligibility; neither Commissioner
Love nor anyone else from the Commission raised Mr Zuma’s eligibility of their own
accord. It asserted that it was not responsible for the headline of the article, or the
reporting. It denied the accuracy of the headline and the reporting. It denied further
that it or Commissioner Love prejudged Mr Zuma's eligibility. The Commission
explained that Commissioner Pillay recused herself from the Commission’s decision
on the objections because she was an acting Judge at the Constitutional Court when
that Court convicted Mr Zuma of contempt of court.

[19] At the hearing the issues were narrowed down to the following issues:
 11

(a) whether the Commission exceeded its powers when it determined that, in terms of
s 47(1)(e) of the Constitution, Mr Zuma was disqualified from becoming a member of
National Assembly because of his conviction and the sentence of 15 months that was
imposed on him;
(b) whether the Commission and /or Commissioner Love prejudged Mr Zuma’s
eligibility and, whether they should have excused themselves from considering the
objections to Mr Zuma’s candidacy.
(c) whether Mr Zuma was convicted of an offence as contemplated in s 47(1)(e) of the
Constitution;
(d) whether Mr Zuma was sentenced as contemplated in s 47(1)(e) of the
Constitution;
(e) what the legal effect is of the Presidential remission of sentence on the
sentence the Constitutional court imposed on Mr Zuma.

Whether leave to appeal should be granted

[20] The matter raises issues which are of public interest. It is about the interplay
between s 30 of the Act and s 47(1)(e) as read with s 19(3)(b) of the Constitution. It is
in the interests of justice that leave should be granted. Leave is also granted because
MK Party has prospects of success.

Whether the Commission lacked authority to make a determination under s 47

of the Constitution
[21] Counsel for the MK Party submitted that the Commission exceeded its powers,
authority or jurisdiction in upholding the objection on the basis of s 47(1) of the
Constitution and therefore acted unlawfully. This is so, proceeded the argument,
because the powers of the Commission in respect of determining objections are limited
to the question whether or not a candidate is qualified to stand in the election. That
question is different from whether or not a citizen is eligible to be a member of the
National Assembly. To substantiate his argument counsel pointed to the fact that s 47
is located in Chapter 4 of the Constitution headed “Parliament”.

[22] Parliament, so went the argument, is made up of the National Assembly and
the National Council of Provinces. The significance of this is that the Commission
cannot encroach upon the area reserved for Parliament. Counsel submitted that the
 12

regulation and administration of membership of the National Assembly is a matter

which falls in the heartland of what is preserved for the National Assembly itself. It is
an internal matter over which the Commission has no role. In support of this
submission, he referred to s 57 of the Constitution read with rule 13 of the National
Assembly which provides that the National Assembly may determine and control its
(own) internal arrangements, proceedings, and procedures. Rule 13 provides that:
‘When the convening notice has been read at the commencement of the proceedings of the
House on the first day on which it meets after a general election at which members of the
House were elected, such members must be sworn in or make affirmation before the Chief
Justice or a judge designated by the Chief Justice, in accordance with Section 48 read with
Schedule 2 of the Constitution.’

[23] Counsel for the MK Party rejected the Commission’s contention that there is
no distinction in the Constitution or the Electoral Act between the eligibility for National
Assembly membership and qualification to stand as a candidate. He argued that s
47(2) of the Constitution makes it clear that non-eligibility for membership of the
National Assembly does not automatically translate into disqualification to stand for
elections. The two concepts, so it was argued, are therefore not synonymous and do
not represent two sides of the same coin, as contended by the Commission.

[24] It was further submitted on behalf of the MK Party that the right to stand for
election is directly sourced from s 19(3)(b) of the Constitution which right cannot be
easily defeated. It was argued that the contention that a pre-election objection is the
“only” opportunity to determine eligibility for membership of the National Assembly,
was incorrect for the simple reason that if such was true, anybody convicted and
sentenced after 28 March 2024 but before (and even after) the election date of 29 May
2024 would be off the hook. Counsel emphasized that the power of the National
Assembly to regulate membership arises from the acquisition of such membership i.e.
at the first ever sitting of the National Assembly until the end of the term.

[24] It is correct that one of the most fundamental principles of the rule of law, that
it is central to the conception of our constitutional order, is that the Legislature and
Executive and other organs of state such as the Commission “are constrained by the
principle that they may exercise no power and perform no other function beyond
 13

that conferred upon them by law” (Fedsure Life Assurance Ltd v Greater
Johannesburg Metropolitan Council).2 They have no inherent powers. In the context
of this case this means that the Commission may not exercise powers and perform
functions that are beyond those that are conferred on it by s 190 of the Constitution
or the Electoral Commission Act and the Act.

[25] I disagree with the MK Party’s argument that the Commission exceeded the
limits of its powers when it determined under s 30 of the Act that Mr Zuma is not
eligible to be a member of the National Assembly in terms of s 47(1)(e) of the
Constitution. The source of power to make that determination is to be found in s 27
and s 30 of the Act. In terms of s 27 a registered party intending to contest an election
must nominate candidates and submit a list or lists of those candidates for that
election to the chief electoral officer in the prescribed manner. The Commission is
given powers to ensure that there is a compliance with the provision of s 27 and to
reject a nomination if there has been non-compliance with the relevant provisions of
s 27. Section 30(1)(a) of the Act allows an objection to the nomination of a candidate
if the candidate is not qualified to stand in the election. In this regard, I agree with
counsel for the Commission’s submission that s 47(1)(e) of the Constitution serves
the purpose of determining which candidates are qualified to stand in an election and
that if a candidate is not qualified to hold office they are also not qualified to stand for
office.

[26] The provisions of s 47(1)(e) of the Constitution and s 30 of the Act show that
the Commission is empowered to determine, before the election, qualification for
membership of the National Assembly. This was recognized by this Court in Freedom
Front Plus v African National Congress [2009] ZAEC 4, although there, the court was
concerned with a suspended sentence. In the lead up to the 2009 elections, the list
of candidates for the National Assembly that the ANC had submitted to the
Commission included Ms Madikizela-Mandela’s name. The Freedom Front Plus
objected to Ms Madikizela-Mandela’s inclusion. It argued that she was, in terms of s
47(1)(e) of the Constitution, ineligible to stand for election because of her conviction
and sentencing in 2004. The Commission dismissed the objection and an appeal to

2Fedsure Life Assurance Ltd v Greater Johannesburg Metropolitan Council 1999(1) SA 374 (CC) at
para 58.
 14

this Court was dismissed. The authority of the Commission to determine objections
and make determination under s 47(1)(e) of the Constitution was accepted.

[27] The construction of s 47 contended for by the MK Party frustrates the

apparent purpose of the section and leads to impractical results to the extent that it
allows candidates to stand for an office which they may not hold. Such construction
is not to be preferred (Natal Joint Municipal Pension Fund v Endumeni Municipality).3
The purpose of s 47 of the Constitution read with s 30 of the Act is to ensure that
candidates who are nominated by the parties are candidates that are eligible to be
members of the National Assembly. For that purpose to be served, the Commission
is given powers to screen the list of nominated candidates through the medium of s
30 objection procedure. A party’s list of candidates submitted before the election must
demonstrate, through the undertaking, that its candidates are eligible. The form for a
candidate list is prescribed in Appendix 1 to the Regulation concerning the
Submission of List of Candidates, 2004. The list must include, amongst the other
things, an undertaking from a party representative confirming he or she has confirmed
that each candidate is qualified to stand for election in terms of s 47 and/or s 106 of
the Constitution of South Africa or national or provincial legislation or any applicable
legislation. Each candidate on a party’s list must then sign an acceptance of
nomination in the form prescribed in Appendix 4 to those Regulations. The
acceptance includes a declaration that the candidate is qualified to be elected as a
member of the National Assembly in terms of s 47 of the Constitution.

Whether the Commission and/or Commissioner Love were biased

[28] It was submitted on behalf of MK Party that Commissioner Love clearly
prejudged the issue. It is no answer to state, as the Commission seeks to do, that she
made the impugned utterances in response to a question. It maintained that the fact is
that she expressed a view which was prejudicial to one of the parties or sides to the
dispute. The issue, so the argument went, is that she should not have responded to
the question in the manner that she did – alternatively she ought properly to have
recused herself when the same issue came for determination as a result of the

3 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593 (SCA) at para 18.
 15

objection. Commissioner Love, is reported to have made the following statement in

response to an unspecified question about Mr Zuma:
“That excludes anybody who has been given a sentence that was not the subject of any
deferral, and in that sense, it is not ourselves, but the laws of the country that would stand as
an impediment for that candidacy.”

[29] The MK Party submitted that the words “that candidacy”, clearly referred to Mr
Zuma’s candidacy, and this meant that Commissioner Love, and by extension the
whole Commission, had prematurely prejudged the issue and could not come to a fair
decision. At best, so it was argued, Commissioner Love ought not to have participated
in the decision. The MK Party also submitted that since the Commission did not
distance itself from Commissioner Love’s comments, there is a reasonable
apprehension that it was not able to make a fair decision and therefore that the
decision was tainted.

[30] It is common cause that the statement was made, and that it was made in
response to an unspecified question about Mr Zuma being a candidate. Both parties
also were ad idem about the test for bias which would disqualify a decision maker, or
which would taint a decision. The test is by now well established. It is an objective
test,4 which “requires both that the apprehension of bias be that of a reasonable person
in the position of the litigant and that it be based on reasonable grounds”.5

[31] The evidence on which the complaint of bias rests is tenuous to say the least.
It is a single “illustrative” newspaper report, with only the words set out above being
directly quoted from Commissioner Love. Both the applicant and the Commission put
forward different possible interpretations of the statements. Neither interpretation is
dispositive of what the statement may have meant. What is clear to this court is that
the statement made by Commissioner Love, in a context in which she was speaking
for the Commission, is ambiguous and without specificity. All it says is that a person
who falls into a category defined by the law would be excluded from standing as a
candidate. This is in fact the case. Without more there is no basis for a conclusion of

4 President of the Republic of South Africa and Others v South African Rugby Football Union and Others
1999 (4) SA 147 (CC) at 48.
5 South African Human Rights Commission OBO South African Jewish Board of Deputies v Masuku

and Another 2022 (4) SA 1 CC at 64.

 16

bias. The submission by the MK Party that the reference to “that candidacy” refers
directly to Mr Zuma and can only refer to Mr Zuma and shows bias against Mr Zuma
has no merit. The words in the context of the statement refer clearly to a person whose
candidacy is affected by a provision of the law. The words refer to any such person
and not specifically to Mr Zuma.

[32] Nor is there any evidence which would lead to a conclusion that, when being
asked to determine whether Mr Zuma falls into the category of people whose
candidacy is impeded by the law, the Commission would be unable to apply its mind
fairly and without bias. The applicant bears the onus to establish the existence of bias,
and it has failed to do so. For these reasons, the bias point must fail.

Whether Mr Zuma was convicted as contemplated in s 47(1)(e)

[33] It was submitted on behalf of Mr Zuma that he was not convicted as
contemplated in s 47(1)(e) of the Constitution and that therefore he is not hit by that
section. The basis for this argument is that the ‘conviction’ occurred in the context of
contempt of court proceedings which are both civil and criminal in nature. For a
conviction to ensue, so it was argued, there must have been a criminal charge and
criminal trial proceedings as contemplated by s 35 of the Bill of Rights, which, it was
submitted, did not happen in Mr Zuma’s case. The relevant subsection of s 35 that
was relied upon is s 35(3) of the Bill of Rights which provides that “every accused
person has a right to a fair trial which includes the right to a public trial before an
ordinary court”.

[34] The contention that Mr Zuma was not convicted of an offence is rejected. He
disobeyed an order of court which is a crime. He was in contempt of court. The order
of the Constitutional Court (para 3) declared Mr Zuma to be guilty of a crime. In Fakie
NO v CCII Systems (Pty) Ltd6 the Supreme Court of Appeal described contempt of
court in these terms:
‘It is a crime unlawfully and intentionally to disobey a court order. This type of contempt of
court is part of a broader offence, which can take many forms, but the essence of which lies
in violating the dignity, repute or authority of the court. The offence has in general terms

6 Fakie NO v CCII Systems (Pty) Ltd 2006(4) SA 326(SCA) at para 6.

 17

received a constitutional ‘stamp of approval’, since the rule of law – a founding value of the
Constitution – ‘requires that the dignity and authority of the courts, as well as their capacity to
carry out their functions, should always be maintained’

[35] This definition of contempt of court was adopted by the Constitutional Court in
Matjhabeng Local Municipality v Eskom Holdings Ltd.7 The Court there had this to say
at para 50:
‘It is important to note that it “is a crime unlawfully and intentionally to disobey a court order”.
The crime of contempt of court is said to be a “blunt instrument”. Because of this, “[w]ilful
disobedience of an order made in civil proceedings is both contemptuous and a criminal
offence”. Simply put, all contempt of court, even civil contempt, may be punishable as a crime.
The clarification is important because it dispels any notion that the distinction between civil
and criminal contempt of court is that the latter is a crime, and the former is not’. (Footnote
omitted.)

[36] As correctly pointed out by counsel for the Commission, Mr Zuma’s sentence
entails a conviction. This was not disputed by Mr Zuma and the MK Party that a
sentence of 15 months’ imprisonment was imposed on Mr Zuma and that while he was
serving that sentence Mr Zuma fell under the provisions of the Correctional Services
Act. The fact of the matter is that Mr Zuma would not have been incarcerated had he
not been convicted. Accordingly, I find that Mr Zuma was convicted of a crime.

What is the legal effect of the Presidential remission of sentence on the sentence
imposed on Mr Zuma
[37] At the hearing a considerable amount of time was spent on the legal effect of
the act of remission on the sentence imposed on Mr Zuma’s sentence. It was
submitted on Mr Zuma’s behalf that Mr Zuma is not affected by the disqualification
contained in s 47(1)(e) of the Constitution because of the remission he received. This
argument was formulated as follows. On 11 August 2023 Mr Zuma’s sentence was
remitted, and the remission had the effect of ‘cancelling or extinguishing the remainder
of his sentence after having served nearly 3 months. As a result of the remission, his
effective and ultimate sentence was therefore reduced to 3 months’ imprisonment. It is
totally irrelevant whether that 3 month sentence was “served” in a prison or on parole.

7 Matjhabeng Local Municipality v Eskom Holdings Ltd 2018(1) SA 1 (CC).

 18

Neither is it relevant if his alleged conviction remained intact’. It was submitted that for
s 47(1)(e) to take effect, both the conviction and prescribed sentence requirements
must be satisfied.

[38] I disagree with the submission that the effect of the remission was to cancel or
extinguish the remainder of the sentence. This was not a reprieve or pardon. It was
simply a general remission. The 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. This is to be found in
the provisions of the Constitution outlining the functions and structures of various
organs of state and their respective independence and interdependence. In terms of
the Constitution the legislature makes the laws and monitors the executive; the
executive makes policy, proposes laws and implements legislation passed by the
legislature; and the judiciary is responsible for resolving disputes by the application of
law.

[39] The President may not through the act of remission undo what the judiciary has
done. The supremacy clause in s 2 of the Constitution binds the executive and leaves
no room for prerogative powers, unless authorised in the Constitution, outside the
scope of judicial review. The power that is vested in the President to remit certain
sentences is cast upon him through a constitutional mandate to ensure that some
public purpose may require fulfilment by a grant of remission in appropriate cases.
This is how the exercise of power by the President when he or she grants remission
of sentences under s 84(2)(j) of the Constitution should be understood.

[40] It may be of assistance to have regard as to how foreign jurisdictions have

interpreted legislation dealing with presidential remission. This is permissible subject
to the guidelines set out by the Constitutional Court in H v Fetal Assessment Centre.8
The Court set out the following guidelines:

8H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) BCLR 127 (CC); 2015 (2) SA 193 (CC) paras
31-32. See also, Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others [2019]
ZAEQC 2; [2019] 4 All SA 237 (EqC); 2019 (6) SA 327 (GJ) at 115-117.
 19

'Foreign law has been used by this Court both in the interpretation of legislation and in the
development of the common law. Without attempting to be comprehensive, its use may be
summarised thus:
(a) Foreign law is a useful aid in approaching constitutional problems in South African
jurisprudence. South African courts may, but are under no obligation to, have regard to it.
(b) In having regard to foreign law, courts must be cognisant both of the historical context out
of which our Constitution was born and our present social, political and economic context.
(c) The similarities and differences between the constitutional dispensation in other
jurisdictions and our Constitution must be evaluated. Jurisprudence from countries not under
a system of constitutional supremacy and jurisdictions with very different constitutions will not
be as valuable as the jurisprudence of countries founded on a system of constitutional
supremacy and with a constitution similar to ours.
(d) Any doctrines, precedents and arguments in the foreign jurisprudence must be viewed
through the prism of the Bill of Rights and our constitutional values.

The relevant question then is what role foreign law can fulfil in considering this case. Where a
case potentially has both moral and legal implications in line with the importance and nature
of those in this case, it would be prudent to determine whether similar legal questions have
arisen in other jurisdictions. In making this determination, it is necessary for this Court to
consider the context in which these problems have arisen and their similarities and differences
to the South African context. Of importance is the reasoning used to justify the conclusion
reached in each of the foreign jurisdictions considered, and whether such reasoning is
possible in light of the Constitution’s normative framework and our social context.'9

[41] In Rajendra Mandal v The State of Bihar & Ors Writ Petition 9 Criminal No 252
of 2023 the Supreme Court of India was concerned with the question whether the
appellant in that case was eligible for remission. The court had this to say about the
operation of act of remission at para 7:
‘Sentencing is a judicial exercise of power. The act thereafter of executing the sentence
awarded, however, is a purely executive function – which includes the grant of remission,
commutation, pardon, reprieves, or suspension of sentence. This executive power is traceable
to Article 72 and 161 of the Constitution of India, by which the President of India, and Governor
of the State, respectively, are empowered to grant pardons and to suspend, remit or commute
sentences in certain cases. Whilst the statutory (under Section 432 CrPC) and constitutional

9 Ibid paras 21-32.

 20

(under Articles 72 and 161 of the Constitution) powers are distinct- the former limited power,
is still an imprint of the latter (much wider power) and must be understood as such and placed
in this context’.

[42] The court quoted with approval the following statement in State of Haryana v
Jagdish [2010] 3 SCR 716 at para 27 in which the framework of executive power and
how it is to be exercised was explained:
‘ Nevertheless, we may point out that the power of the sovereign to grant remission is within
its exclusive domain and it is for this reason that our Constitution makers went on to
incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This
responsibility was cast upon the executive through a constitutional mandate to ensure that
some public purpose may require fulfilment by grant of remission in appropriate cases. This
power was never intended to be used or utilised by the executive as an unbridled power of
reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in
effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe
out the conviction. It is a power which the sovereign exercises against its own judicial mandate.
The act of remission of the State does not undo what has been done judicially. The punishment
awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy
of State pardon. However, the exercise of such power under Article 161 of the Constitution or
under Section 433-A CrPC may have a different flavour in the statutory provisions, as short-
sentencing policy brings about a mere reduction in the period of imprisonment whereas an act
of clemency under Article 161 of the Constitution commutes the sentence itself.’

[43] In the present case the President remitted certain sentences to address the
overcrowding problem in correctional centres. This power was exercised during
COVID-19 pandemic, and it was exercised to prevent and contain the spread of the
Covid-19. The remission was not specific to Mr Zuma. The 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. MK Party’s reliance on the judgment
of the Constitutional Court in Masemola v Special Pensions Appeal Board and Another
[2019] ZACC 39; 2020(2) SA 1 (CC) is misplaced. Masemola has absolutely no
relevance to the issue at hand. The case dealt with the effect of the presidential pardon
 21

on Mr Masemola’s special pension. It did not concern the presidential remission of

sentence.

[44] Mr Masemola was a recipient of a special pension. On 2 April 2001, Mr

Masemola was convicted of several counts of fraud and was sentenced to five years’
imprisonment. Pursuant to an investigation by the Special Investigation Unit in 2007
the Special Pensions Appeal Board terminated his special pension. He then applied
for and was granted pardon by the President in terms of s 82(2)(j) of the Constitution.
The pardon was in respect of his conviction on his five counts of fraud which it
expunged. In addition, he received a South African Police Services Clearance
Certificate certifying that his convictions had been expunged from his record. The
Constitutional Court had this to say at para 37 regarding the effect of a presidential
pardon:
‘In this case, and given the particular wording of the presidential pardon, the applicant
received what is generally referred to as a full pardon. The President also directed that the
applicant’s conviction be expunged from his criminal record. The result being that for all
intents and purposes, the applicant, with effect from 21 July 2011, is legally to be treated as a
person who has not been convicted of the offence. The applicant is with effect from the date
of the pardon no longer affected by any legal disqualifications that are as a result of his
conviction. He is no longer subject to any civil or statutory disabilities that are imposed on a
person convicted of the offence.’
It is clear that Mr Masemola received a full pardon in respect of his conviction which
is not the case in relation to Mr Zuma. He did not apply for pardon.

Whether the sentence imposed on Mr Zuma is a sentence contemplated in s

47(1)(e) of the Constitution.
[45] What I have stated above regarding the legal effect of a remission on the
sentence is on the assumption that the sentence imposed on Mr Zuma is a sentence
that is contemplated in s 47(1)(e) of the Constitution. I deal with it directly in this
section. It was submitted on behalf of Mr Zuma that the Commission erred in upholding
the objection on the basis that he was sentenced to a period of more than 12 months
of imprisonment, without the option of a fine. It was argued that because Mr Zuma
could not appeal, he could not be regarded as having been ‘sentenced’ for the purpose
of s 47(1)(e) because this subsection does not regard a person ‘as having been
 22

sentenced until an appeal against the conviction or sentence has been determined, or
until the time for an appeal has expired.’ It is common cause that Mr Zuma was
convicted and sentenced by an apex court and for that reason his conviction and
sentence were not appealable.

[46] The issue involves the interpretation of 47(1)(e) of the Constitution. The
principles of statutory interpretation are well settled. The Supreme Court in
Endumeni10 held that the statutory interpretation is the objective process of attributing
meaning to words used in legislation. That process entails a simultaneous
consideration of –
(a) The language used in the light of the ordinary rules of grammar and syntax;
(b) The context in which the provision appears; and
(c) The apparent purpose to which it is directed.

[47] What the Constitutional Court stated in Cool Ideas 1186CC v Hubbard and
Another 2014 (4) SA 474 at para 28 in the context of statutory interpretation is
particularly apposite. It said:
‘A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in an absurdity. There are
three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought to be interpreted to preserve their constitutional validity.
This proviso to the general principle is closely related to the purposive approach referred to in
(a)’

[48] In Road Traffic Management Corporation v Waymark (Pty) Ltd11 the

Constitutional Court explained at paras 31 and 32:
‘Where a provision is ambiguous, its possible meanings must be weighed against each other
given these factors. For example, a meaning that frustrates the apparent purpose of the
statute or leads to unbusinesslike results is not to be preferred. Neither is one that unduly

10Note 4.
11Road Traffic Management Corporation v Waymark (Pty) Ltd [2019] ZACC;2019 (5) SA 29 (CC) at
paras 31 and 32.
 23

strains the ordinary, clear meaning of words. That text, context and purpose must always be
considered at the same time when interpreting legislation has been affirmed on various
occasions by this Court.
Allied to these factors, courts must also interpret legislation to promote the spirit, purport and
object of the Bill of Rights. Again, courts should not unduly strain the reasonable meaning of
words when doing so. But this obligation entails understanding statutes to “lay the foundations
for a democratic and open society, improve the quality of life for all and build a united and
democratic South Africa.’

[49] In terms of s 47(1)(e) a person who is convicted of an offence and sentenced

to more than 12 months’ imprisonment without an option of a fine is not eligible to be
a member of National Assembly. The disqualification does not operate immediately.
If there is an appeal against the conviction and/or sentence a nominated candidate
remains eligible to be a member of the National Assembly pending the final
determination of the appeal. In the event that the nominated candidate loses the
appeal or elects to not appeal the conviction and/or sentence the disqualification kicks
in and he or she becomes ineligible to be a member of the National Assembly. Section
47(1)(e) and s 19 (3)(b) of the Constitution should be read together. They both serve
an important function. The purpose of s 47(1)(e) is to ensure that those who are
convicted and sentenced to more than 12 months’ imprisonment without an option of
a fine are disqualified from standing for public office and to hold office if elected. In
those circumstances those who are excluded under s 47(1)(e) do not have a right to
stand for public office under s 19(3)(b) of the Constitution. But the fact that a person
is convicted and sentenced to a period stipulated in s 47(1) does not mean that he or
she is disqualified immediately. He or she may appeal against the conviction and/or
sentence and pending the determination of the appeal he or she is not regarded as
having been sentenced. It was submitted by the Commission that where a sentence
is imposed by the highest court in the land such as the Constitutional Court the
conviction and sentence are not appealable with the result that the person convicted
becomes disqualified immediately.

[50] The Commission’s construction of s 47(1)(e) is incorrect for two reasons. First,
the actual words in s 47(1)(e) of the Constitution are incapable of this interpretation.
Secondly, this construction requires the court to read in words into s 47(1)(e) the effect
 24

of which will be to exclude the operation of the proviso in s 47(1)(e) if a person

concerned was sentenced by the highest court in the land. The construction of the
section contended for by the Commission does not promote certainty. Both s 47(1)(e)
and s 19(3)(b) are provisions of the Constitution. They have to be read simultaneously
and harmoniously and in a manner that gives each equal weight. Section 19(3)(b)
encourages citizens to participate in the electoral process by standing for public office
and to hold office if elected. On the other hand, s 47(1) is there to maintain the integrity
of the electoral process by ensuring that those that campaign for public office and
elected to hold office are not serious violators of the law. They are fit and proper
persons to hold public office.

[51] The drafters of the Constitution recognized the fact that a person convicted and
sentenced has a right to appeal against their conviction and sentence, upon leave
being granted by the trial court or, if refused, on petition to the superior court. If that
fact was not important to them, they would not have inserted the proviso which seeks
to preserve the status quo pending the appeal processes. In other words, the
conviction and sentence do not take effect until the appeal process has taken place
alternatively a convicted and sentenced person has elected to not appeal the
conviction and/or sentence. In my view the sentence that was imposed on Mr Zuma
cannot be said to be a sentence which the section contemplates. The Commission
erred therefore to uphold an objection to Mr Zuma’s candidacy on the basis that the
sentence that was imposed on him disqualified him from being eligible to be a member
of National Assembly.

[52] As regards costs each party should pay its own costs as is the practice in this
court.

[53] These are my reasons for the order we granted.

_______________________________
DH ZONDI
Chairperson of the Electoral Court
 25

Modiba J (Professors Ntlama-Makhanya and Phooko concurring):

[54] I have had the pleasure of reading and carefully considering the reasons set
out in the judgment prepared by my colleague Zondi JA (the first judgment). I concur
with the order and the reasons for the findings made in respect of the two preliminary
grounds of appeal as well as two of the three grounds in respect of the merits. The
latter are whether Mr Zuma was (a) convicted, and (b) sentenced as contemplated in
s 47(1)(e).

[55] The first judgment dismisses the ground of appeal that relates to the legal effect
of the remission of sentence on the sentence imposed on Mr Zuma. I disagree with
the dismissal of this ground of appeal and the reasons for this outcome as set out in
the first judgment. I would uphold that ground of appeal. Below, I set out the reasons
why I would do so.

[56] After articulating the submission made on behalf of Mr Zuma in paragraph 38

of the first judgment, it disagrees with the submission because it undermines the
fundamental separation of powers doctrine.

[57] The first judgment accepts the submission made on behalf of the Commission,
that the remission of sentence did not reduce the sentence imposed on Mr Zuma
because the President may not, through the act of remission, “undo what the judiciary
has done [when it sentenced Mr Zuma to 15 months in prison]”. It reasons that the
reduction of Mr Zuma’s sentence could only be achieved through a judicial review or
appeal. It further reasons that the supremacy clause in s 2 of the Constitution binds
the executive and leaves no room for prerogative powers outside the scope of judicial
review. The President’s power to remit sentences serves to ensure that some public
purpose is fulfilled by granting of a remission of sentence in appropriate cases. The
remission was granted to address overcrowding to prevent and contain the Covid-19
pandemic. It was not specific to Mr Zuma. Lastly, it finds that MK Party’s reliance on
Masemola is misplaced. because Mr Masemola had received a full pardon, which is
not the case in respect of Mr Zuma.
 26

[58] I set out my reasons under the following sub-headings:

(a) Whether the view that the legal effect of a remitted sentence reduces the
sentence imposed by a court violates the separation of powers doctrine.
(b) What is the legal effect on the remission of sentence on the sentence imposed
on Mr Zuma?
(c) Whether it matters that the remission of sentence served a public purpose not
specific to Mr Zuma.

Whether the legal effect of a remitted sentence reducing the sentence imposed
by a court violates the separation of powers doctrine
[59] In my view, the legal effect of a remitted sentence reducing the sentence
imposed by a court does not violate the separation of powers doctrine. The view the
first judgment adopts, that it does, emanates from submissions made on behalf of the
Commission. No authority for this proposition was provided by either the Commission
or MK Party who disagreed with the proposition.

[60] I find support for my view in Ex Parte Chairperson of the Constitutional

Assembly: In Re Certification of the Constitution of the Republic of South Africa 12

(Certification judgment). I would have ordinarily requested the parties to file

supplementary written submissions, addressing this judgment. However, these
reasons were prepared under extreme pressure because, shortly after this Court
granted its order on 9 April 2024, and before this Court issued reasons, the
Commission appealed against the order to the Constitutional Court. Subsequently, the
Constitutional Court issued directives for the conduct of the Commission’s appeal even
before the reasons were issued. I nonetheless rely on the Certification judgment. The
parties will have an opportunity to address the Constitutional Court whether I correctly
based my reasons on it.

[61] In the Certification judgment, the Constitutional Court determined an objection

to the President’s power to pardon or reprieve offenders and remit fines, penalties or
forfeitures in terms of section 84(2)(j) of what then was the proposed new text of the

12Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa, (Certification judgment) 1996 (4) SA 744 (CC).
 27

Constitution of the Republic of South Africa, 1996. An objection to the inclusion of s

84(2)(j) had been raised on the basis that the exercise of the President’s powers in
terms of this provision encroaches upon the judicial terrain and overrules or negates
judicial decisions in violation of both the separation of powers requirement of
Constitutional Principle (CP) IV and the provisions pertaining to judicial functions in
CP VII.

[62] CP IV provides that “The Constitution shall be the supreme law of the land. It
shall be binding on all organs of State at all levels of government.” CP VI provides that
“There shall be a separation of powers between the Legislature, Executive and
Judiciary, with appropriate checks and balances to ensure accountability,
responsiveness and openness.” CP VII provides that “The Judiciary shall be
appropriately qualified, independent and impartial and shall have the power and
jurisdiction to safeguard and enforce the Constitution and all fundamental rights”.

[63] In the Certification judgment, the Constitutional Court observed that there is no
universal model of separation of powers. In democratic systems of government in
which checks and balances result in the imposition of restraints by one branch of
government upon another, there is no separation that is absolute. 13 It further went on
to say:
‘[109] The principle of separation of powers, on the one hand, recognises the functional
independence of branches of government. On the other hand, the principle of checks and
balances focuses on the desirability of ensuring that the constitutional order, as a totality,
prevents the branches of government from usurping power from one another. In this sense it
anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No
constitutional scheme can reflect a complete separation of powers: the scheme is always one
of partial separation. In Justice Frankfurter's words, '(t)he areas are partly interacting, not
wholly disjointed.’

‘[115] It is alleged that this power offends CPs IV, VI and VII. The basis of the objection is,
first, that the exercise of the power is not constrained by any constitutional or common-law
procedures, or any substantive constitutional criteria or rules, and that no reasons need be
given for its exercise or for any refusal to exercise the power. It was contended that the power

13 Certification judgment at para [108].

 28

therefore detracts from the requirements of CP IV, which proclaims the supremacy of the
Constitution. Second, it was argued that the responsibility entrusted to the President is an
executive and not a judicial power, yet its exercise encroaches upon the judicial terrain and in
fact overrules or negates judicial decisions in violation of both the separation of powers
requirement of CP IV and the provisions pertaining to judicial functions in CP VII.
“[116] The power of the South African Head of State to pardon was originally derived from
royal prerogatives. It does not, however, follow that the power given in ….[s] 84(2)(j) is identical
in all respects to the ancient royal prerogatives. Regardless of the historical origins of the
concept, the President derives this power not from antiquity but from the NT [new text] itself.
It is that Constitution that proclaims its own supremacy. Should the exercise of the power in
any particular instance be such as to undermine any provision of the NT, that conduct would
be reviewable.
“[117] The objection based on CPs VI and VII really amounts to a complaint about a perceived
overlap of powers and functions between the President, as a member of the Executive, on the
one hand and the Judiciary, on the other. It has never been part of the general functions of
the court to pardon and reprieve offenders after justice has run its course. The function itself
is one that is ordinarily entrusted to the head of State in many national constitutions, including
in countries where the constitution is supreme and where the doctrine of separation of powers
is strictly observed.’

[64] I am of the view that by not upholding the objection and by allowing s 84(2)(j)
to be included in the Constitution of the Republic of South Africa, 1996, by implication,
the Constitutional Court in the Certification judgment accepted that when the President
exercises his powers in terms of this provision, the legal effect of a remission reducing
a sentence would not violate the separation of powers doctrine. It expressly stated that
historically, it has never been the function of the courts to pardon and reprieve
offenders and remit sentences. The President exclusively enjoys this power
notwithstanding that he is not part of the judiciary.

[65] I therefore find that s 84(2)(j) is consistent with the notion that, although the
President is part of the executive arm of government and functionally independent
from the judiciary, when he exercises 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.
 29

[66] Accordingly, I do not agree with the view expressed in the first judgment that
the remission of sentence did not reduce the sentence the Constitutional Court
imposed on Mr Zuma, because to hold otherwise would mean that the legal effect of
a remission violates the separation of powers doctrine. The reduction of a sentence
by way of a remission issued in terms of s 84(2)(j) is consistent with the supremacy of
the Constitution because the President derives the power to remit sentences from the
Constitution itself. When the remission reduces a sentence, thus encroaching on the
sentencing powers of the judiciary, the intrusion is lawful because the Constitution
permits it.

What is the legal effect of the remission of sentence have on the sentence
imposed on Mr Zuma
[67] For the reasons set out below, I agree with the contention made on behalf of
the MK Party that the remission of Mr Zuma’s sentence by the President, effectively
reduced it to three months and for that reason he is not disqualified by s 47(1)(e) from
National Assembly membership.

[68] It was argued on behalf of the Commission that Mr Zuma is hit by the
disqualification portion of s 47(1)(e) because a sentence of more than 12 months’
imprisonment without the option of the fine had been imposed on him. Counsel for the
Commission urged this court to ignore the remaining part of s47(1)(e) which deals with
the expiry of the disqualification, because the five-year period during which the
disqualification is operative has not expired.

[69] This approach is inconsistent with the approach to the interpretation of texts
followed in Endumeni. This Court must consider the text of s47(1)(e) as a whole. When
the portion of the provision this Court is urged to ignore is considered, the absurd
results of the interpretation contended for by the Commission becomes apparent. That
portion of s 47(1)(e) provides that ‘a disqualification under this paragraph ends five
years after the sentence has been completed’.
 30

[70] Freedom Front Plus v ANC and Another14 relied on by the MK Party, reveals
the imperfections in the formulation of s 47(1)(e). It does not provide for all possible
sentence permutations. One of these is the legal effect of a wholly suspended
imprisonment sentence of more than twelve months. This is what the Electoral Court
in that case was called upon to determine. Similarly, the formulation of s 47(1)(e) does
not consider that once justice has run its course, a convicted and/ or sentenced person
may benefit from a presidential act in terms of s84(2)(j) changing the legal effect of
their conviction and/ or sentence.

[71] The Court in Freedom Front Plus resolved this legislative inadequacy by
determining what constitutes the effective sentence imposed on Ms Madikizela-
Mandela. It did so, as I do here, by not only considering the disqualification portion of
s47(1)(e), but the expiry of the disqualification portion as well. It found that since Ms
Madikizela-Mandela’s imprisonment sentence is wholly suspended, her effective
sentence is not a sentence of more than 12 months’ imprisonment. Therefore, the
disqualification requirement in s 47(1)(e) is not met.

[72] If I were to accept that the sentence of 15 months’ imprisonment imposed on

Mr Zuma was effectively not reduced by the remission, to determine whether the
disqualification has expired or not, it is necessary to determine the date of completion
of the sentence. Counsel for the Commission initially answered this question by
suggesting two dates. The first is on the date the sentence was remitted and Mr Zuma
was released from prison. This occurred on 11 August 2023. The second is when the
15 month period expires, reckoned from the date of sentencing.

[73] The second answer raises two difficulties: (a) whether the sentence is
completed or not is not reckoned from the date the sentence was imposed, but the
date Mr Zuma started serving his sentence; (b) Mr Zuma did not serve the 15 months
sentence that was imposed on him. The latter presents an even more serious difficulty.
After 11 August 2023, the sentence imposed on Mr Zuma was no longer operative. It
legally incorrect to continue to attribute the legal effect of his sentence on his after this

14 The Freedom Front Plus v African National Congress 2011 JDR 0054 (EC).
 31

date. Therefore, it is uncertain from the second answer when Mr Zuma’s

disqualification from holding membership of the National Assembly will expire.

[74] The difficulty that confronts the Commission with the first answer, which it
ultimately placed its case on, is that since Mr Zuma completed serving his sentence
on 11 August 2023, the conclusion that the legal effect of the remission was that his
sentence was reduced is unavoidable. His effective sentence was no longer 15
months but 3 months. This approach to determining the legal effect of the remission
of sentence on a remaining period of imprisonment has been consistently followed by
the courts in the judgments relied on by MK Party, namely, Smith v Minister of Justice
and Correctional Services15 (Smith) and Boshego v Correction Supervision and Parole
Board: Kgosi Mampuru II (Boshego).16 It matters not that those judgments dealt with
the effect of the remission on Mr Smith and Mr Boshego’s date of parole. The Court in
both cases rejected the contention that the remission only applies to their parole. It
held that it also applies to their sentence. In both cases, the court held that the
remission reduced these parties’ effective sentences. In the result, not only did they
qualify for parole earlier, but their imprisonment sentences would also, as a result of
the remission, expire earlier.

[75] To get around the unavoidable conclusion that a remission of sentence reduces
an imprisonment sentence, it was argued on behalf of the Commission that the
remission only reduced the period Mr Zuma served and not the sentence imposed.
The sentence imposed, which implicates the disqualification portion of s 47(1)(e) is not
changed by the remission.

[76] It was further argued on behalf of the Commission that to determine whether
the disqualification has expired, we ought to use a different criteria, namely the
sentence served. This approach is inconsistent with that followed in Smith and
Boshego because the sentence served is that effectively reduced by the remission.

15 Smith v Minister of Justice and Correctional Services and Others [2022] ZAGP JHC 60 (11
February 2022) at paragraph 34.
16 Boshego v Correctional Supervision and Parole Board : Kgosi Mampuri II and others 2023 JDR

2026 (GP) at para 34 to 40.

 32

[77] The legal effect of the remission is not only to authorise an early release from
prison. This is what a parole would do. A parole does not cancel the remaining portion
of the sentence, whereas a remission does.

[78] In my view, on the date it was granted, the remission reduced Mr Zuma’s
effective sentence. As a result, the legal effect of a remission reducing the sentence
absolved Mr Zuma from the legal consequences of the sentence imposed by the
Constitutional Court.

[79] As correctly submitted on behalf of the Commission, the 15 month

imprisonment term the Constitutional Court imposed on Mr Zuma will forever remain
factually correct. However, same cannot be said about the legal effect of that
sentence. The remission altered its legal effect. Put differently, from the date of the
remission, the sentence imposed on Mr Zuma was bereft of its legal consequences. It
could no longer be enforced on Mr Zuma. The legal consequences are not only limited
to the obligation to serve the remainder of the sentence; they include all legal
consequences that flow from the sentence that was imposed on him including
disqualification from public office in terms of s47(1)(e).

[80] The MK Party also placed reliance on The Citizen 1978 (Pty) Ltd v McBride
(McBride).17 It was contended for the Commission that the facts in McBride support its
contention and not that of the MK Party because the Constitutional Court in that case
held that despite the fact that Mr McBride had been released from prison while serving
an imprisonment term for a murder convicted as a result of being granted amnesty,
the fact of this conviction and sentence remains and is not obliterated by the amnesty.
This is indeed what the Constitutional Court said. It equally holds true for Mr Zuma in
the present case. But, the Constitutional Court’s remarks in McBride are taken out of
context by the Commission. The Constitutional Court went further to say that the
amnesty does not absolve Mr McBride from moral condemnation for murder.
Therefore, referring to him as a murderer does not amount to defamation. Correctly
so, the Constitutional Court never held that the amnesty did not have a legal effect on
McBride’s conviction. The amnesty interfered with the conviction and sentence

17 The Citizen 1978 (Pty) Ltd v McBride (McBride) 2011 (4) SA 191 (CC).
 33

imposed on McBride, thus absolving him from the legal consequences thereof. For
this reason, I find that McBride is good authority for the interpretation contended for
by the MK Party.

[81] The fact that Mr McBride received amnesty in terms of an act of Parliament is
of no moment. So is the fact that the President specifically expunged Mr McBride’s
criminal record. The different facts in this case do not render the implicated legal
principle inapplicable. Parliament, through legislation, interfered with the order of the
Court convicting McBride. That constitutes lawful interference with the Court’s verdict
and sentence. It changed the legal effect of these outcomes.

[82] Lastly, the first judgment places reliance on two international authorities. I have
not specifically addressed those judgments for two reasons. Firstly, foreign courts
have not dealt with the legal effect of presidential acts of pardoning offenders and
remitting sentences consistently. The judgments in Dissanayake v. Sri Lanka, Comm.
1373/2005, U.N. Doc. A/63/40, Vol. II, at 109 (HRC 2008) [Human Rights Committee
Rights Committee] and Rolandas Paksas v. Lithuania, Communication No.
2155/2012, U.N. Doc. CCPR/C/110/D/2155/2012 (2014) reflects this. Secondly,
foreign judicial authorities were not ventilated in this Court because none of the parties
placed reliance thereon. It is for that reason that I did not have regard to foreign law
when formulating these reasons. The Commission’s appeal pending before the
Constitutional Court affords the parties an opportunity to address that court on foreign
judgments if they are so instructed and/ or directed.

Whether it matters that the remission of sentence served a public purpose not
specific to Mr Zuma
[83] It matters not that the remission of sentence served a public purpose not
specific to Mr Zuma. I disagree with the view expressed in paragraph 38 of the first
judgment the power that is vested in the President to remit certain sentences is cast
upon him through a constitutional mandate to ensure that some public purpose may
require fulfilment by a grant of remission in appropriate cases and that this is how the
exercise of power by the President when he or she grants remission of sentences
under s 84(2)(j) of the Constitution should be understood. S 84(2)(j) does not qualify
 34

the President’s power to remit sentences. What matters is the legal effect of the
remission, which I have elaborately addressed in the preceding sub-heading.

[84] For that reason, I also disagree with the view in the first judgment that the MK
Party’s reliance on Masemola is misplaced because Mr Masemola received a full
pardon with conditions that were specific to him. The fact that the facts in Masemola
and the present case are distinguishable is of no moment. The legal effect of
presidential acts in terms of s84(2)(j) remains applicable.

[85] For these reasons, I find 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.

_____________________________
LT MODIBA
JUDGE OF THE ELECTORAL COURT

YACOOB AJ:

[86] I have had the advantage of reading the judgment prepared by the Chairman
of this court, Zondi JA (“the first judgment”), and that prepared by my sister Modiba J
(“the second judgment”). I agree with the order issued by this court on 9 April 2024. I
agree with the first judgment, save for the conclusion it reaches regarding the effect of
a Presidential remission of sentence on a sentence imposed by a Court in the context
of the doctrine of separation of powers. I agree also with the second judgment, in
particular regarding the interplay between section 84(2)(j) and the doctrine of
separation of powers.

[87] I cannot, however, agree with the conclusion that the remission of sentence
proclaimed by the President of the Republic in terms of s 84(2)(j) of the Constitution
on 11 August 2023 means the sentence that was ultimately imposed on Mr Zuma was
 35

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.

[88] The primary basis on which the second judgment reaches the conclusion that
the remission has the legal effect that the effective sentence imposed on Mr Zuma
was one of three months is that, reading the section as a whole, the remission
absolved Mr Zuma completely from the legal consequences of his sentence. Factually,
it remains the case that Mr Zuma has had a fifteen month sentence imposed on him,
but, because of the remission, the legal consequences of the sentence imposed are
reduced. This is why 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.

[89] It is trite that the text of a section has to be interpreted as a whole. But the
manner in which the section is grammatically constructed also has to be taken into
account. The ending of the disqualification is provided for in a completely separate
grammatical sentence. That has to have some significance. It is clear to me that this
means it applies to the factual and legal end of the serving of the sentence. In this
case, as a result of the Presidential remission, as a matter of fact, everyone who
benefited from the remission has completed their sentence on the day on which they
were released with no obligation to complete any further punishment related
requirements, that is 11 August 2023. That is the clear legal effect of the remission,
for the purposes of the obligation to complete a sentence, and therefore on the
completion of the sentence. I do not believe that this has any necessary bearing on
the effect of the remission on the sentence that was imposed by the court, having
considered the offence and the circumstances of the person. I disagree that this
means that one has to ignore this portion of the section in order to make sense of the
section.

[90] I accept the argument submitted on behalf on the MK Party that the section
concerns itself with the “ultimate sentence”. For convenience I reproduce the relevant
part of the section here:
 36

‘anyone who … [is] sentenced to more than 12 months’ imprisonment without the option of a
fine … but no one may be regarded as having been sentenced until an appeal against the
conviction or sentence has been determined, or until the time for an appeal has expired.’

[91] There was some suggestion that the fact that Mr Zuma was convicted of
contempt of court is relevant. It is not. It was perfectly possible for him to have been
convicted of contempt and sentenced to three months’ imprisonment without the
option of a fine. This would still show a lack of respect for the rule of law that one may
not wish for in a lawmaker. But it would not disqualify that person, because the court
which sentenced him did not consider his offence to be serious enough to sentence
him for a period longer than twelve months. That is the benchmark set by the
Constitution. That the court convicting and sentencing the person considered their
conduct so serious that the court imposed, considering all the relevant factors, a
sentence of direct imprisonment longer than twelve months without the option of a fine.

[92] But, and this part of the argument of the MK Party I found sensible and
persuasive in the Constitutional context, the limitation of a person’s right to political
participation is drastic. There is also the risk that a person may be convicted and
sentenced maliciously to prevent their political participation. To prevent this, and to
protect the hard-won political participation which is part of the Founding Provisions of
the Constitution, there is the proviso.

[93] This is the “ultimate sentence” proviso – that no one may be regarded as having
been sentenced until an appeal has been determined. The section requires a
consideration of the sentence and a possible reduction of what was imposed, so that
the seriousness of the person’s conduct is reconsidered and the consequences of the
conduct are also reconsidered. Where an appeal is not available, it means the person
is deprived of this reconsideration, and where s 47(1)(e) is implicated, deprived of
political participation at first and last instance, without the benefit of this issue having
been considered by anyone at all except the court imposing the sentence. This would
in my view be unduly drastic and unjustifiable.

[94] It is also why I take the view that, had there been a successful application to
the President, and a remission been granted to Mr Zuma (or any other person) after
 37

his specific facts had been considered, that remission would have fulfilled the
requirements of the proviso, and resulted in the “ultimate sentence” imposed having
been reduced.

[95] Therefore, in circumstances where the remission was a general one which only
reduced the amount of time any sentenced person was obliged to serve, but did not
consider and change the sentenced imposed, I cannot agree that it had the legal effect
found by Modiba J.

[96] The “ultimate sentence” the section is concerned with is one imposed
specifically on the person, either by a court, an appeal court, or in special
circumstances, when a pardon or remission is granted to that person when their own
circumstances are considered. It cannot refer to a blanket remission that is granted to
all sentenced offenders, parolees and persons under correctional supervision without
exception or particularity, regardless of their circumstances, where each person has
not been directly considered. This kind of remission is a decision that the sentence
imposed does not have to be served, not that the sentence was not properly imposed
or that a different sentence ought to have been imposed, which is what section 47(1)(e)
is concerned with.

[97] These, then, are my reasons for concurring in the order granted by this court.

_______________
S YACOOB
ACTING JUDGE OF THE ELECTORAL COURT
 38

Appearances
For applicants: D Mpofu SC and P May
Instructed by: Zungu Incorporated Attorneys, Sandton

For first and second respondents: T Ngcukaitobi SC and J Mitchell

Instructed by: Moeti Kanyane Incorporated Attorneys,
Centurion