Zuma MK party representation is essential for votes

In February 2021, shortly after the Constitutional Court ordered Jacob Zuma to testify before the State Capture Commission (which, in any case, he was legally obliged to do), Zuma issued a statement stating that he would defy the order and that I was willing to do it. Go to prison. “I’m not afraid of being arrested,” he said. “I am not afraid of being condemned nor am I afraid of being imprisoned.”

Two weeks later, after failing to appear as ordered by the Court, Zuma issued another statement in which he declared that his time on the commission “has already ended” and stated that he is waiting to “face the sentence handed down to him by the Constitutional Court.” . Court.” In April of that year, in response to an order from the Constitutional Court to submit an affidavit on the sanction the court would impose for Zuma’s contempt of court, he sent a letter to the Chief Justice in which he again promised “stand firm.” (his) conscience and beliefs” and promised that “he would enter prison as the first prisoner of the Constitutional Court.”

But after the Constitutional Court sentenced Zuma to 15 months in prison without the option of a fine and it became clear that he would have to go to prison, Zuma’s so-called conscience went on vacation. Instead of defiantly facing his sentence as he claimed his conscience demanded, he ordered his lawyers to approach the Constitutional Court with a view to rescinding the sentence that had been imposed on him.

On the day he had to surrender, his lawyers made a last desperate attempt to keep him out of prison by writing a letter to the Constitutional Court, asking it to postpone his arrest until it had heard and considered an application for rescission. A few days later. Earlier in the day, Zuma had refused to hand himself over, stating that he would “sleep at home” that night. But that same day he changed his mind and turned himself in shortly before the deadline to do so expired.

Read more at Daily Maverick: Jacob Zuma speeds out of Nkandla and is detained at Estcourt Correctional Centre.

On Thursday, Zuma will likely return to the Constitutional Court for the first time since his dramatic (self-serving) change of heart, to hear arguments in the IEC’s appeal against the Electoral Tribunal’s ruling that ruled Zuma qualified to stand for election. . National Assembly despite having been found guilty and sentenced to more than 12 months in prison without the option of a fine.

Much has changed since the prospect of serving time in prison sparked Zuma’s about-face. Judging by the affidavit filed by Zuma’s lawyers on his behalf in the present case, he has learned that openly defying the Court is not a good legal strategy. In particular, the tone of the court documents has softened, showing only hints of the old, defiant Zuma.

Fairness argument

Surprisingly, his lawyers now assure the court that Zuma has no intention of “re-arguing or challenging in any way the previous judgments” of the Court relating to his contempt of court, all of this now being “gone behind us”. To quote the newspapers: “He himself says that he is willing to forget the past and forgive but never forget.” Zuma also now claims that he “accepts the reality and finality of those decisions” and admits that, while he still believes the sentences were unfair, the Constitutional Court had the legal jurisdiction to send him to prison.

Similarly, the arguments presented by his lawyers in support of Zuma’s request to disqualify five Constitutional Court judges who had participated in the original sentence that sent him to prison are lackluster and strangely demure. In essence, the argument is that the justices should recuse themselves:

“On the basis of a reasonably perceived bias and/or conflict of interest on the basis that they are obliged to try to interpret their own previous decision, which now lies at the heart of the issues arising in this appeal, in such a way that automatically differs with the unanimous opinion of the Electoral Tribunal.”

While Zuma’s lawyers correctly admit that Constitutional Court judges do not have to recuse themselves simply because they have already participated in a matter involving him, they seem to suggest that this case is different in that the judges targeted by the recusal have a personal interest in this. case. and, indeed, they would be judges of their own cause if they knew the matter. No attempt is made to explain why the justices would have a personal interest in a case dealing with the correct interpretation of article 47(1)(e) of the Constitution.

As the Constitutional Court first made clear in President of the Republic of South Africa v South African Rugby Football Union, the test for recusal is strict and an application for recusal will rarely be successful. The proof is:

“If a reasonable, objective and informed person would reasonably understand, based on the correct facts, that the judge has not or will not provide an impartial opinion in deciding the case, that is, an opinion open to persuasion through evidence and presentations of lawyer. The reasonableness of the arrest must be evaluated in light of the oath taken by judges to administer justice without fear or favor; and their ability to fulfill that oath based on their training and experience. It must be assumed that they can disabuse their minds of any irrelevant beliefs or personal predispositions.”

This means that the burden of establishing the grounds for recusal falls on the applicant; In other words, in this case it falls to Zuma. What is required is to present “convincing evidence” to the court “showing that something the judge or magistrate has done gives rise to a reasonable fear of bias.” Zuma’s personal feelings towards the Court or the judges whose recusal he seeks are therefore irrelevant.

Furthermore, proof that the Constitutional Court magistrates had acted in the case in which Zuma had been found in contempt of court and sentenced to 15 months in prison would not be sufficient, as the magistrates regularly consider matters involving litigants against the which they had previously ruled on and because It is literally part of the job of any Constitutional Court judge to “interpret their own previous decisions.”

The latter occurs indirectly every time a Court applies the principles established in a previous ruling in a new case before it. It also happens directly, as was the case in 2021 in the Democratic Alliance case in the South African Electoral Commission v Minister of Cooperative Governance and others, when the Prosecutor’s Office urgently approached the Constitutional Court to invalidate the IEC’s decision to modify the elections. Schedule to extend the date of submission of party lists and district candidates for local government elections. This required the Court to interpret its previous order invalidating the declaration of the local government election date, opening the door for the IEC to amend the calendar.

Improbable recusal

We have to wait for Thursday’s oral hearing to see if Zuma’s lawyers present any “evidence” demonstrating a reasonable fear of bias, but as things stand, the recusal application is dead in my view.

How difficult it is to achieve the recusal of a judge is illustrated by the 2022 Constitutional Court ruling in the South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku case and another in which the Court rejected an application for recusal of the then president of the Supreme Court. Mogoeng Mogoeng, in which the Court had to decide whether certain anti-Israel and anti-Zionist comments made by Bongani Masuku constituted hate speech. The recusal request was filed after Mogoeng had made controversial comments expressing love for Israel that, according to the defendants, gave rise to a reasonable fear of bias on Mogoeng’s part because they suggested that he held strong personal opinions that were diametrically opposed to the beliefs of the defendants.

Zuma’s request for recusal has been described as a political and not a legal intervention, which may be correct. But I wonder whether the political considerations at play may have less to do with attempts to discredit the Court and more to do with the electoral fortunes of the MK party. We will know this is the case if his lawyers ask on Thursday for the Court to finalize the recusal application before considering the merits of the case at a later date, which, if granted, would likely delay completion of the matter beyond the day of the elections. .

The reason this may be politically important is that Zuma needs potential MK voters to believe that if they vote for the party, they are voting for Zuma to become an MP (and perhaps president). This may be because in the minds of many voters Zuma is MK and MK is Zuma. If the Court rules against Zuma before the election and it becomes clear that he cannot take an Assembly seat, it could make potential MK voters less likely to vote for the party.

In any case, it is not clear that Zuma will take an Assembly seat even if he wins the case, something Zuma’s lawyers hinted at in their responding affidavit where they point out that Zuma could lose his attractive presidential benefits if he takes office. seat. (It is unclear whether such a rule actually exists.) Therefore, it makes perfect political sense for Zuma to fight for his right to be elected to the Assembly even if he does not plan to take his seat. What is required politically is for potential MK voters to believe that he will do so until after the election.

If Zuma does not plan to take a seat in Parliament (which is impossible to know at this time) but continues to indicate to his followers that he will, it would not be the first time that Zuma has not been completely honest with his most loyal supporters, as illustrated by his change of course in 2021. While I do not believe that the law currently allows Zuma to hold an Assembly seat, a small part of me hopes that I am wrong and that Zuma wins his case and is forced to choose between holding a seat as he promised his followers. and not take a seat to protect his personal financial interests. DM