Former South African President Jacob Zuma has been cleared to run as a candidate and appear on the ballot for his party, uMkhonto We Sizwe (MKP), in the upcoming general elections. 

The Electoral Court in Johannesburg has upheld his appeal and set aside the Independent Electoral Commission of South Africa’s (IEC) decision to disqualify his candidacy due to his previous contempt of court conviction. 

The ruling paves the way for Zuma to go to Parliament. It marks a dramatic political comeback six years after he was forced out of office by the new ANC leadership led by President Cyril Ramaphosa in 2018. In 2021, the former president was thrown in jail for 15 months by the Constitutional Court for defying a court order for him to appear before the Zondo Commission. 

On Tuesday, April 9, a full bench of the Electoral Court ruled in Zuma’s favour after hearing over five hours of legal arguments that raised critical questions about interpreting the country’s Constitution and electoral laws. They delivered their verdict a day after Zuma’s and the IEC’s lawyers—led by Advocates Dali Mpofu and Tembeka Ngcukaitobi—presented their oral arguments. 

“The decision of the Electoral Commission of 28 March 2024 in terms of which the electoral upheld Dr. Matsapola’s objection to the second applicant’s candidacy is set aside and submitted with the following, the objection is hereby dismissed,” said the court. 

“The decision of the Electoral Commission of 28 March 2024 in terms of which the electoral upheld Dr. Matsapola’s objection to the second applicant’s candidacy is set aside and submitted with the following, the objection is hereby dismissed,” it added. 

Any disqualified candidate who wanted to appeal the IEC’s decision had until April 9, 2024, before ballot printing began. 

Due to the deadline, the Electoral Court said it would deliver an order within 24 hours to avoid interference with IEC processes. The court stated that the reasons would be furnished at a later stage.

Zuma, who has been actively campaigning for MK since December 16, 2023, faced a setback when the Independent Electoral Commission (IEC) removed him from the list of candidates due to his 2021 conviction and subsequent 15-month imprisonment sentence for contempt of court.

Responding to an objection by an individual known as Dr. Maroba Matsapola, the IEC cited Section 47 of the Constitution, which disqualifies individuals sentenced to more than 12 months in prison from becoming members of the National Assembly.

However, Zuma’s legal team, led by Mpofu, challenged the IEC’s decision, arguing that the Commission overstepped its authority by using Section 47 to prevent Zuma from running for office. He said that was a violation of Zuma’s political rights to contest for political office, and those of the millions of MKP supporters to vote for a candidate of their choice. 

Mpofu contended that the Constitution intended to protect political rights and ensure democratic participation, emphasizing that every citizen, regardless of their past, should have the opportunity to stand for election.

“In a country like South Africa, we should be extremely cautious before we can deny the political rights of anybody. The mere reason that we have a Constitution, and the mere reason that we are where we are is because people were denied political rights, they were denied the right to vote and to stand for political office. Our courts have said many times that whenever there is an opportunity not to infringe those rights, the court must literally grab it,” said Mpofu.

“The attitude of the Electoral Commission in this matter is exactly the opposite. The attitude has been ‘Let’s see where we can catch him, and when we catch him let’s make sure he doesn’t come out alive. We cannot afford as a country to disenfranchise, whether it’s Zuma or the MK. Every citizen, those we like and those we don’t like, have a right to vote and to stand for political office,” he added.

Mpofu said preventing Zuma from participating as an election candidate was similar to the days of apartheid, where political parties and leaders were banned from standing for elections.

He added that the Electoral Act obligated the IEC to ensure that democracy is practiced and that those who enjoy the right to vote should be allowed to stand for election.

“Whether you are rich or poor, exalted by everyone or the media, or disgraced by the media, we all belong to the same South African democratic nation, and we must favour enfranchisement rather than disenfranchisement. Until now, the question of who must implement Section 47 has not been asked and has certainly not been answered. There was an assumption that the Commission is the organ that must administer the section.

“If you look where Section 47 is located, it is in Chapter 4 of the Constitution, and it is headed ‘Parliament.’ The heading in Section 47 says ‘membership.’ It deals with the membership of the National Assembly… We must ask the question, ‘Where does the IEC get the power to determine the membership or non-membership of the National Assembly?’ And it’s nowhere,” Mpofu said.

The crux of the legal debate centered on whether Zuma’s sentence had been completed, given that he served only three months in prison before being released on a special presidential remission regime that benefited 9,000 inmates. It also touched on the powers of the IEC to bar candidates from standing for parliamentary seats. 

Mpofu argued that any convicted person, as outlined in the constitution and the law, should have first been charged with a crime, been asked to plead, and faced trial. He also contended that the IEC had no powers to bar parliamentary candidates, saying those powers rested with Parliament. 

Suggesting political interference, Mpofu said the IEC’s role was to manage and oversee the elections and declare the results.  

“The courts have ruled that ‘the Commission’s duty is to manage the elections, not to determine the electorate. It must decide the how of voting, not the who,’” Mpofu said.

When the five-member panel of judges and professors asked whether Zuma had completed his sentence, Advocate Ngcukaitobi said the question could be answered differently for different reasons.

However, the panel scrutinized the nuances of Zuma’s release, with Judge Lebo Modiba clarifying the distinction between parole and remission in a bid to examine the legal implications of Zuma’s status as a convicted offender.

“Let’s draw a distinction between a person who is paroled and a person whose sentence is remitted. If a person is released on parole, that person is effectively not free. Mr. Zuma was paroled on medical grounds. If the remission did not happen and he remained out of prison on the basis of medical parole, he would remain a person who is under the authority of the Corrections Department because he is still sentenced.

“But what happened after he was remitted was completely different. The Corrections Department no longer had any authority over him because he was no longer under punishment; he was no longer a sentenced person. That sentence had simply fallen away,” said Judge Modiba.

Ngcukaitobi said the judge was wrong in her interpretation of the meaning of a completed sentence.

“You’ve got to keep your eyes on the ball… There was never any sentence imposed by the president. There was only one sentence. It was imposed by the Constitutional Court… Certain people that the judges have decided are serious offenders should not hold political office,” said Ngcukaitobi.

Developments in court delighted the MKP’s supporters, who braved the inclement weather in Gauteng to attend the court case on Monday, April 8. They sang Zuma’s rallying song, “Wenzeni uZuma” [what is it Zuma did?], which they usually chant to portray the former president as a victim of the system. 

Mpofu’s performance emboldened Zuma, who, sensing court victory, raised his hand again for the country’s presidency after the May 29 polls. 

Outside court on Monday, Zuma told his supporters that he had unfinished business in the Union Buildings. Nothing could stop him from taking over again as president because he had not completed his two terms, he added. 

 “It’s called democracy and the will of the people. The law says if a person serves terms, they can’t proceed as president. But people say we want them to serve another term, who can dispute that? When it comes to the man from Nkandla, he hasn’t completed his two terms. If people say, ‘man, go back’ nobody can stop me from doing so. They forget I was removed [from power] before completing my second term. There is something I need to complete there. On top of that, I was president when I was in the ANC. I have never heard that if you are president while a member of another political party, you can’t be president if you leave that party and form your own party. There is nothing like that in the Constitution. These people don’t know us. They read about us in the newspapers,” Zuma said to loud cheers. 

He added that “we are fixing our own country. We have been mandated by our people”.