IN THE ELECTORAL COURT OF SOUTH AFRICA

HELD IN BLOEMFONTEIN

Case No:

In the matter between:

UMKHONTO WESIZWE POLITICAL PARTY First Appellant

JACOB GEDLEYIHLEKISA ZUMA Second Appellant

and

ELECTORAL COMMISSION OF SOUTH AFRICA First Respondent

MAROBA MATSAPOLA Second Respondent

BETHUEL TERRENCE NKOSI Third Respondent

NOTICE OF APPEAL IN TERMS OF SECTION 20(2) OF THE ELECTORAL

COMMISSION ACT, READ WITH SECTION 30(4)
OF THE ELECTORAL ACT

PLEASE TAKE NOTICE THAT the abovementioned first and/or second

appellant(s) hereby appeal against the decision of the Independent Electoral

Commission (“the IEC”) announced on 28 March 2024 (see Annexure “A”

hereto), upholding the objection(s) of the second and third respondents (“the

objection”) submitted on 26/27 March 2024 (see Annexures “B” and “C”), in

terms of section 30(4) of the Electoral Act 73 of 1998, read with section 20(2) of

the Electoral Commission Act 51 of 1996, leave having been sought on 2 April

2024.
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GROUNDS OF APPEAL

The appeal is based upon any one or more or all of the 7 grounds set out below

which have been categorised or divided into preliminary legal points and the merits.

A: PRELIMINARY LEGAL POINTS

1. Under this heading 3 grounds are raised.

A1: Failure to furnish reasons and to give due notification

2. The IEC has failed to provide the reasons for its decision making it difficult

to appeal. However, the reasons may be implied from the correspondence

and/or relevant public announcements of the IEC.

3. Similarly and in terms of the applicable legal prescripts, the MK Party ought

properly to have received prior notification of

3.1. the objection(s) submitted to the IEC; and

3.2. the decision of the IEC

on or before the announcement made on 28 March 2024. No such

notification(s) were received apparently and mainly due to an error on the

part of the IEC and the objectors in inserting the incorrect email address.

The IEC inserted “mkparty.co.zo”. The objectors inserted

“Info@mkparty.co.za”. The correct email address of the MK Party is

info@mkparty.org.za, alternatively Jabulanikhumalo73@gmail.com.

4. In the result, all of the above renders the decision to be procedurally unfair

and/or irregular. Even in the event that these failures may be overlooked or
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condoned in the interests of justice, the decision will remain invalid upon the

further grounds set out below.

5. The third respondent has since indicated that he did not lodge the second

objection which might well be a case of forgery. Despite having distanced

himself from the objection, for now he will remain cited as a party until further

information is available. A copy of the relevant email message is annexed

hereto marked “C2”.

A2: The IEC exceeded the limits of its powers (vires), jurisdiction and/or

authority

6. The IEC lacks the power, jurisdiction and/or authority to implement section

47(1)(e) of the Constitution which deals with regulating membership of the

National Assembly. That power resides with the National Assembly itself.

7. The authority of the IEC is limited to the question of qualification to stand as

a candidate in an election in terms of section 30(1)(a) of the electoral Act,

read with section 190(2) of the Constitution.

8. In terms of section 57(1) of the Constitution it is the National Assembly, not

the IEC which may determine and control its internal arrangements “and”

make rules and orders concerning is business. The doctrine of non-

encroachment (also) known as separation of powers or deference) prohibits

the IEC from interfering in issues of membership eligibility for the National

Assembly. Its role is limited to what is defined at section 30(1)(a) as.

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9. The IEC further erred in conflating the issue of standing as a candidate (in

terms of section 30(1)(a) of the Electoral Act) with eligibility to be a member

of the National Assembly (in terms of section 47 of the Constitution). These

are two distinct and separate legal concepts.

10. Generally and in addition a decision premised on an incorrect and/or

irrelevant empowering provision of the law cannot withstand the test of

legality and/or validity. See Zuma v Democratic Alliance 2018(1) SA 200

(SCA) at paragraph [58], per Navsa JA.

A3: Disqualifying Bias

11. The Commission as a whole, and not just Judge Pillay, was legally excluded

by bias from deciding the matter because on or about 24 January 2024 the

IEC made an inappropriate public statement pronouncing upon the very

issue raised in the relevant objection. Although the statement was

specifically made by Commissioner Janet Love she was speaking for the

whole Commission and her statement was endorsed by silence. All this is

common cause. An illustrative copy of a media report relating to the said

statement, by Lindsay Dentlinger of Eye Witness News (EWN) under the

heading “Zuma not eligible to register as a candidate – IEC”. A copy

thereof is annexed hereto and marked Annexure “D”.

12. That means that the IEC had prematurely prejudged the issue and could not

have arrived at a different or fair outcome. This was also a case of double

jeopardy.
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13. At best for the IEC Commissioner Love ought properly to have recused

herself. At worst, the entire Commission was disqualified from taking the

decision.

14. Regarding the issue of bias it needs to be emphasised that the IEC is not

being accused of actual bias, since there is no evidence thereof. The MK

Party has been advised that such serious allegations should not be lightly

made without any substantiation. The MK Party accordingly only relies on a

reasonable apprehension of bias and/or conflict of interest, which are

sufficient grounds to invalidate the impugned decision.

B: APPEAL ON THE MERITS

15. Regarding the merits the objection upheld by the Commission is premised

on the grounds that the second appellant is allegedly in violation of the

Constitution of the Republic of South Africa, 1996 (“the Constitution”). Since

the two objections overlap, we deal with both as one where applicable and

for the sake of convenience and avoidance of repetition.

16. In the above respect, the particular provision referred to and/or relied upon

in the objection is section 47(1)(e) of the Constitution which stipulates as

follows:

“(1) Every citizen who is qualified to vote for the National Assembly

is eligible to be a member of the Assembly, except –

(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

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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.” (Emphasis added)

17. The Commission erred in finding that the second appellant has contravened

section 47(1)(e) of the Constitution in that it failed to consider that the

aforementioned section does not apply to the second appellant.

18. Section 47(1)(e) is inapplicable to the second appellant upon the following

4 additional separate grounds:

18.1. The second appellant has not been convicted of an offence;

18.2. The second appellant’s sentence to imprisonment was unappealable

and in any event hit by the relevant proviso;

18.3. The remission of the second appellant’s sentence was not taken into

account in computing the ultimate and effective sentence; and/or

18.4. The objection is deficient and lacks the necessary averments.

19. In order to ascertain whether the second appellant has been convicted of

an offence and sentenced to more than 12 months imprisonment without

the option of a fine, due regard must be given to the judgment handed down

by Khampepe ADCJ on 29 June 2021 in the case of Secretary of the

Judicial Commission of Inquiry into Allegations of State Capture,

 7

Corruption and Fraud in the Public Sector including Organs of State v

Jacob Gedleyihlekisa Zuma and Others 2021 (5) SA 327 (CC).

B1: The second appellant has not been convicted of an offence

20. Section 47(1)(e) of the Constitution applies to anyone who is convicted of

an offence and sentenced to more than 12 months imprisonment without

the option of a fine.

21. The word “and” in wording the abovementioned provision suggests that it is

required that such a person must meet both requirements, namely -

21.1. the conviction of an offence; and

21.2. receiving a sentence of more than 12 months imprisonment without

the option of a fine on the other hand after the exhaustion or

abandonment of all appeals.

22. In the abovementioned case, the Constitutional Court ordered that “it is

declared that Mr Jacob 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 and Others [2021] ZACC 2.”1

1
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 and
Others 2021 (5) SA 327 (CC).
 8

23. It can be deduced from the facts therein that the second appellant was not

criminally charged and did not undergo any criminal trial proceedings. To

this effect, Khampepe ACDJ correctly pointed out that “[it] is not a

conventional criminal trial”2 and that “a respondent in contempt

proceedings is not an ‘accused person’ as envisioned by section 35

of the Constitution”.3

24. The matter can be characterised and described as civil contempt

proceedings which invoke a criminal sanction or threat.4 Contempt

proceedings therefore do not equate to criminal proceedings wherein a

conviction of an offence can be made, they simply invoke a criminal sanction

or threat such at the sentence of imprisonment imposed on the second

appellant. A declarator such as the one issued by the Court cannot amount

to a conviction, a previous conviction or a criminal record as intended in the

section.

25. The second appellant was not an accused, he was not charged of an

offence by a criminal court, he was not involved in any criminal trial

proceedings, and he was not afforded fair criminal rights in terms of section

35(3) of the Constitution.

26. It is respectfully submitted that the words “convicted of an offence” as used

in section 47(1)(e) contemplate a conviction following the fulfilment of the

2
Ibid at para 65
3
Ibid.
4
Ibid at para 66; Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).
 9

rights enshrined in section 35 of the Bill of Rights and in any event ought to

be interpreted in line with section 39(2) of the Constitution.

27. In the circumstances, the second appellant does not meet the requirement

of the conviction of an offence within the meaning of the section, and as

such, section 47(1)(e) of the Constitution does not apply to the second

appellant.

B2: The second appellant’s sentence to imprisonment is unappealable

and/or excluded by the proviso

28. Section 47(1)(e) of the Constitution further contains a proviso that “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.”

29. In the above regard, it is imperative that this Honourable Court considers

whether the second appellant may be regarded as having been “sentenced”

for purposes of section 47(1)(e) if the abovementioned proviso is given

effect. In this respect, the questions arise whether the second appellant

lodged an appeal against the conviction or sentence; and if in the

affirmative, whether the appeal has been determined; and if not, whether

the time for an appeal has expired.

30. The Commission ought to have considered the abovementioned questions

and found that the second appellant did not lodge an appeal against the

sentence imposed on him and that the time for an appeal has indeed lapsed.
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31. The second appellant did not lodge an appeal against the sentence imposed

on him not because grounds for an appeal did not exist, but simply because

he did not have the option to do so, since such an order was granted by the

Constitutional Court which is the highest court in the Republic of South

Africa. Incidentally he also could not appeal against the conviction.

32. It is also worth noting that the purpose of the text is an important

consideration to be made by this Honourable Court. It is clear that the

legislature’s intention was to ensure that the abovementioned provision

does not prematurely exclude persons who have been sentenced to

imprisonment for more than 12 months without the option of a fine who may

later be found to have not been guilty of an offence, deserving of a sentence

at all alternatively those deserving a lesser sentence.

33. Unfortunately, the second appellant was not met with the opportunity to

appeal which is safeguarded in the abovementioned provision. A sentence

which is not susceptible to the safeguard cannot qualify as a “sentence”

within the qualified meaning of that word in section 47(1)(e).

34. In the circumstances, the second appellant cannot be regarded as having

been “sentenced”, in terms of section 47(1)(e).

35. Thus section 47(1)(e) of the Constitution does not apply to the (former)

President Zuma or to the type of unappealable sentence which he received.

B3: The failure to take into account the remission of sentence

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36. As is apparent from the order of contempt against the second appellant, 5

the second appellant was sentenced to undergo 15 months’ imprisonment

in and during June 2021.

37. On 8 July 2021, the second appellant began serving his sentence at the

Estcourt Correctional Centre in KwaZulu-Natal.

38. In and during September 2021, the second appellant was released on

medical parole which was challenged and set aside at the Constitutional

Court.

39. On or about 11 August 2023, President Cyril Ramaphosa granted the

second appellant remission of his sentence in terms of section 84(2) of the

Constitution.

40. It is trite that a remission of sentence has the effect of reducing a prisoner’s

sentence of imprisonment and/or extinguishing the remaining part of the

sentence. As at the date of the Presidential remission of the sentence, Mr

Zuma had served just less than 3 months of the original sentence. By the

act of remission the remaining 12 months portion of the sentence was

extinguished. Therefore, his effective or ultimate sentence was reduced to

approximately 3 months which is less than the 12 months yardstick

prescribed in section 47(1)(e) of the Constitution.

41. It is clear that the purpose of the section is to deal with the ultimate

sentence. On a purposive and contextual purposive interpretation, it should

5
Supra note 1.
 12

not matter whether the sentence would be reduced or removed as a result

of an appeal or a Presidential pardon, reprieve or remission of sentence.

42. In so doing President Ramaphosa was acting in terms of section 84(2)(j) of

the Constitution, which provides him with the powers for “pardoning or

reprieving offenders and remitting any fines or penalties (i.e. sentences)”.

43. In considering this ground, this Honourable Court is bound by the remarks

made by Makgoka JA, speaking for the unanimous Supreme court of Appeal

in National Commissioner and Another and Zuma v Democratic

Alliance and Others 2023(2) SA 530. The Learned Judge of Appeal said

at paragraph [60]

“The effect of setting aside the declarator is that once the order in

this appeal is handed down Mr Zuma’s position as it was prior to his

release on medical parole will be reinstated. In other words, Mr

Zuma, in law, has not finished serving his sentence. He must return

to the Estcourt (sic) Correctional Centre to do so.”

44. The SCA went on to leave open the question whether the period of “unlawful

parole” should be taken into account, for determination by the

Commissioner in terms of the separation of powers doctrine. It further went

on to castigate, with respect correctly, the Department’s premature media

statement to the effect that President Zuma had “completed his sentence”.

The court found that not to be the case as articulated in paragraph [60]

above.
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45. In line with the true legal position, ie. that President Zuma had to report to

the Estcourt Correctional Facility to serve the remainder of his sentence, he

reported there on 11 August 2023 to do so. After he was duly processed to

be taken to the cells, he was officially informed that President Ramaphosa

had granted him and others remission of sentence thereby reducing his

ultimate and effective sentence to the approximately 3 months period

already served.

46. In the circumstances section 47(1)(e) does not apply to President Zuma.

B4: Failure to recognise the deficiencies in the objection

47. According to the IEC letter (Annexure B) the objection alleged that:-

“Mr Zuma is standing for election as a candidate in violation of the

1996 Constitution … which prohibits anyone who has been

sentenced to direct imprisonment for a period of 12 months or more

with no option of a fine. Mr Zuma was sentenced by the

Constitutional Court to 15 months without the option of a fine.”

48. This constitutes a gross oversimplification of the issues. More significantly

48.1. the objection(s) lacks the necessary averment of a “conviction for an

offence”;

48.2. it makes no reference to the proviso which forms an essential part of

the section; and

48.3. it does not take into account the duration of the ultimate sentence.
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49. The objection is therefore incomplete or “excipiable”. It stood to be

dismissed for being unsustainable in law. The onus which lies on the

objector(s) could not have conceivably been discharged in these

circumstances.

C: CONCLUSION

50. In the circumstances and in the absence of the satisfaction of any one or

more or all of the essential requirements of section 43(1)(e) on which the

objectors relied, the IEC had no valid reasons to violate the political rights

of President Zuma and/or the MK Party, as enshrined in section 19 of the

Constitution, especially section 19(3)(b) which guarantees “every citizen the

right to stand for public office and, if elected, to hold office.”

51. Other important constitutional provisions which are relevant to the

adjudication of this appeal, include

51.1. section 1 which provides for the rule of law which includes separation

of powers;

51.2. section 7(2) which compels the state and its organs to respect the Bill

of Rights;

51.3. section 18 which guarantees the freedom of association;

51.4. section 36 which prescribes when fundamental rights may be limited;

51.5. section 39 which compels the courts to interpret legislation through

the provision of the Bill of Rights;

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51.6. section 47(2) which acknowledges the distinction between

membership of the National Assembly and candidacy for election;

51.7. section 57(1) which circumscribes the jurisdiction of the National

Assembly in determining its own internal arrangements;

51.8. section 190 which defines or limits the powers of the Electoral

Commission.

52. Needless to say, this Honourable Court is also bound by the relevant

decisions of the Supreme court of Appeal and the Constitutional Court in

terms of the stare decisis rule of law. In this regard this Honourable Court

must take into account its own articulation made, with respect correctly,

when the Freedom Front Plus similarly sought to disqualify the candidature

of the late Mrs Winnie Madikizela Mandela from the candidate list of the

African National Congress.6

53. In that matter the following was stated at paragraph [14] by the then

Chairperson of the Electoral Court, Honourable Mthiyane JA (Pillay, Masipa

JJ, S Moodley and S Abro (members), concurring)

“We need to remind ourselves that what we are concerned with is a

citizen's right to stand for public office, which right is enshrined in

section 19(3)(b) of the Bill of Rights. It cannot be limited save as

justified in s 36 of the Constitution. It is therefore against the

6
The Freedom Front Plus v ANC and Winnie Madikizela-Mandela [2009] ZAEC 4 (31 March
2009)
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backdrop of these imperatives that section 47(1)(e) must be

interpreted and applied. It has to be interpreted, I think, in a way that

'must promote the values that underlie an open and democratic

society based on human dignity, equality and freedom (section

39(1)(a)) and gives effect to the right to stand for and if elected, to

hold public office.”

54. The same approach must be adopted in the present appeal.

55. For any one or more or all of the 7 grounds cited or pleaded above, the

Commission grossly erred in upholding the objection on question.

56. In the circumstances, the appeal to the Electoral Court against the

impugned decision of the Commission ought properly to succeed. The

decision stands to be set aside and the Court may issue any other just and

equitable order which is competent and consistent with the Constitution, if

any.

PLEASE TAKE NOTICE FURTHER THAT in the event that this Honourable Court

directs that this appeal be heard orally and/or that further written submissions be

made, the appellant(s) reserve their right to further elaborate on and/or supplement

the grounds set out above.

KINDLY SET THE MATTER DOWN ACCORDINGLY.

THUS SIGNED AT DURBAN ON THIS 2ND DAY OF APRIL 2024

__________________________________
ZUNGU INCORPORATED ATTORNEYS
First and Second Appellants’ Attorneys
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No.66 Adelaide Tambo Drive

Suite 04, First Floor, Broadway
Kensington, Durban North
DURBAN
Tel: 031-535 2244
Office Mobile: 079 039 7476
Email: nqobile@zunguincorporated.co.za
support@zunguincorporated.co.za

TO: REGISTRAR OF THE ABOVE HONOURABLE COURT

BLOEMFONTEIN

AND TO: THE ELECTORAL COMMISSION OF SOUTH AFRICA

C/O Moeti Kanyane Attorneys
First Respondent’s Attorneys
Second Floor, Building B, Westend
Office Park, 250 Hall Street
Centurion, 0046
Tel: (012) 003-6472
Mobile: 082 887 2436
Email: info@kanyane.co.za / moeti@kanyane.co.za

AND TO: MAROBA MATSAPOLA

Second Respondent
E-mail: mmaroba@mweb.co.za

AND TO: BETHUEL TERRENCE NKOSI

Third Respondent
e-mail: terencenkosi@yahoo.com