Umkhonto Wesizwe Political Party and Another v Electoral Commission of South Africa and Others

The MK Party submitted a list of candidates for the 2024 National Assembly elections, which included Jacob Zuma's name. On 29 June 2021, the Constitutional Court convicted Zuma of contempt of court for failing to comply with its order to appear before the State Capture Commission, and sentenced him to 15 months' imprisonment. Zuma began serving his sentence on 8 July 2021. On 11 August 2023, President Ramaphosa issued a general remission of sentences in terms of s 84(2)(j) of the Constitution. Zuma benefited from this remission and was released from prison on the same day he presented himself to complete his sentence, having served just under three months. Dr Matsapola and Mr Nkosi objected to Zuma's candidacy in terms of s 30 of the Electoral Act, arguing that he was disqualified under s 47(1)(e) of the Constitution as he had been sentenced to more than 12 months' imprisonment without the option of a fine. The Electoral Commission upheld the objections on 28 March 2024. The MK Party and Zuma appealed to the Electoral Court.

• Whether the Electoral Commission has the power to determine eligibility for National Assembly membership under s 47(1)(e) of the Constitution
• Whether Commissioner Love exhibited bias by making public statements about Zuma's eligibility before the objections were considered
• Whether Zuma was convicted of an offence as contemplated in s 47(1)(e) of the Constitution
• Whether Zuma was sentenced to more than 12 months imprisonment within the meaning of s 47(1)(e)
• What is the legal effect of Presidential remission of sentence on the sentence imposed by the Constitutional Court
• Whether the remission reduced Zuma's effective sentence below 12 months, thus removing him from the disqualification in s 47(1)(e)

The appeal succeeded. The Electoral Commission's decision of 28 March 2024 upholding the objection to Zuma's candidacy was set aside and substituted with an order dismissing the objection. No order as to costs.

The binding legal principle established by the majority is that where a sentence of more than 12 months imprisonment is imposed by the Constitutional Court (the apex court) from which no appeal lies, such a sentence cannot be regarded as a "sentence" contemplated in s 47(1)(e) of the Constitution because the proviso to that section requires that no one be regarded as having been sentenced until an appeal has been determined or the time for appeal has expired. Since a sentence from the Constitutional Court is not appealable, the convicted person is deprived of the reconsideration that the proviso contemplates, and therefore cannot be disqualified under s 47(1)(e). The Electoral Commission has the power under s 30 of the Electoral Act read with s 47(1) of the Constitution to determine eligibility for National Assembly membership during the pre-election candidate nomination process.

Zondi JA observed that the purpose of s 47(1)(e) is to ensure that those convicted and sentenced to more than 12 months imprisonment are disqualified from standing for and holding public office, as this maintains the integrity of the electoral process by ensuring candidates are fit and proper persons. The court also noted that the drafters of the Constitution recognized the importance of the right to appeal and inserted the proviso to preserve the status quo pending appeal processes, reflecting the balance between electoral integrity and political participation rights. Modiba J in her minority judgment observed that the separation of powers doctrine does not prevent the President's exercise of powers under s 84(2)(j) from having the legal effect of reducing sentences, as this power derives from the Constitution itself and represents a necessary and constitutionally-permitted intrusion by the executive on the judicial terrain. The court noted that s 47(1)(e) does not provide for all possible sentence permutations, including the effect of wholly suspended sentences or presidential acts of pardon or remission.

This case clarifies the Electoral Commission's powers to determine eligibility for National Assembly membership before elections, and addresses the interplay between s 47(1)(e) of the Constitution (disqualifying those sentenced to more than 12 months imprisonment) and the proviso regarding appeals. The majority judgment establishes an important principle that where a sentence is imposed by the Constitutional Court and is not appealable, the convicted person cannot be regarded as having been sentenced within the meaning of s 47(1)(e) because they are deprived of the opportunity for reconsideration of the sentence that the proviso contemplates. This protects the constitutional right to political participation in s 19(3)(b). The minority judgment by Modiba J addresses the effect of presidential remission of sentence under s 84(2)(j) and the separation of powers doctrine, holding that a general remission can reduce an effective sentence for purposes of s 47(1)(e). The case demonstrates tensions between maintaining the integrity of the electoral process and protecting political participation rights.