Corruption Watch’s Intervention in Electoral Commission v MK Party and Others

Johannesburg, May 20, 2024 – Corruption Watch, represented by Norton Rose Fulbright South Africa has successfully contributed to the Constitutional Court’s ruling on the eligibility of former President Jacob Zuma to stand as a candidate for the Umkhonto Wesizwe Political Party in the upcoming national elections.

Earlier this year, Corruption Watch was granted leave to intervene as amicus curiae in the case brought by the Electoral Commission of South Africa. The case reached the Constitutional Court following an adverse decision made by the Electoral Court, which had confirmed Mr. Zuma’s eligibility to stand in the elections. Both Mr. Zuma and the MK Party sought to cross-appeal certain findings made by the Electoral Court.

This legal dispute arose from a 2021 decision by the Constitutional Court that found Mr. Zuma guilty of contempt for refusing to appear before the Zondo Commission of Enquiry, resulting in a 15-month prison sentence. Although Mr. Zuma served only three months of this sentence before it was remitted, questions about his eligibility to stand for election and enter the National Assembly were raised due to this conviction and sentence.

Central to the Court’s deliberation was section 47(1)(e) of the Constitution, which imposes a general prohibition against individuals convicted and sentenced to more than 12 months in prison from entering the National Assembly for a period of five years. Corruption Watch made several submissions regarding the correct interpretation of this provision, specifically concerning an appeal proviso. Corruption Watch argued that since the contempt judgment was not appealable (having been determined by the Constitutional Court), section 47(1)(e) should not exclude Mr. Zuma.

In its unanimous judgment, authored by Justice Theron, the Constitutional Court rejected this argument, incorporating several points raised by Corruption Watch:

When the Court of first and last instance convicts and sentences an individual, the disqualification takes effect immediately as the conviction and sentence are final and not subject to appeal. The appeal process requirement is meant to ensure finality and nothing else.

The purpose of section 47(1)(e) is to uphold the integrity of South Africa’s democratic system, founded on the rule of law, by preventing serious violators of the law from becoming members of the National Assembly.

The Electoral Court’s interpretation would lead to the absurdity of treating Constitutional Court convictions less seriously than those of a magistrate’s court.

Consequently, the Constitutional Court concluded that Mr. Zuma is not eligible to enter the National Assembly and cannot stand for election as a candidate on the MK Party’s list.

Corruption Watch is represented by Norton Rose Fulbright's Impact Litigation directors Jason Whyte and Laura Macfarlane, and candidate attorney Caroline Cotton, under the firm's Social Impact team. The team was assisted by counsel Advocates Max du Plessis SC, Pranisha Pillay, and Catherin Kruyer.

We are proud to have contributed to this significant ruling that reinforces the rule of law and the integrity of South Africa’s democratic processes.