In a recent hearing at the Constitutional Court, Advocate Dali Mpofu SC argued that the National Assembly, not the Electoral Commission, had the right to debate the eligibility of its members.
Mpofu was representing MK Party leader Jacob Zuma, who had been disqualified by the Electoral Commission from being on the ballots for the upcoming elections on May 29.
The Electoral Court had previously ruled that Zuma was eligible to be in parliament, prompting the Electoral Commission to appeal the decision.
The Electoral Commission based its decision on Section 47 of the Electoral Act, which prohibits individuals with a sentence of 12 months or longer from being members of parliament.
Zuma had received a 15-month prison sentence for contempt of court after refusing to testify in the Commission of Inquiry into State Capture. The Electoral Commission argued that this sentence made him ineligible to be an election candidate.
Advocate Mpofu contended that it was not within the purview of the Electoral Commission to make such a determination. Instead, he argued that it was the responsibility of the National Assembly to debate and decide on the eligibility of its members.
YOU MAY ALSO LIKE: Zuma Wins Appeal Against IEC Disqualification, Now Back On Ballot
He cited provisions in the constitution that grant the National Assembly the power to determine and control its own orders and business, with due regard to its representatives.
Mpofu emphasized the importance of the separation of powers, stating that the intrusion of an institution like the Electoral Commission into the exclusive domain of the National Assembly was a violation of this principle.
He further explained that the first sitting of the National Assembly should involve swearing in its members, electing the speaker and deputy speaker, and then electing a president.
Justice Stevan Majiedt raised a question regarding Mpofu’s argument, asking if he had ever witnessed the National Assembly determining the eligibility of an election candidate.
In response, Mpofu referred to the case of the late former Tshwane mayor, Murunwa Makwarela, who was removed from his position after being declared insolvent. Mpofu pointed out that the Tshwane council did not seek the intervention of the Electoral Commission in that case but instead determined Makwarela’s eligibility themselves.
Advocate Mpofu emphasized that the National Assembly has the authority to decide on the eligibility of its members, even if it is for a temporary period. He argued that if the National Assembly wishes to remove a member from their position, even for a day, they have the power to do so.
The Electoral Commission, on the other hand, argued that Zuma was not eligible to stand for parliament, asserting that the remission of his sentence did not change this fact.
Advocate Tembeka Ngcukaitobi, representing the Electoral Commission, stated that the remission only reduced the length of the sentence but did not alter the provisions of Section 47(3) of the Electoral Act. According to Ngcukaitobi, this section does not take into account remissions and pardons.
Advocate Ngcukaitobi further contended that the Electoral Court had made a fundamental error in interpreting the impact of a remission as a reduction of a sentence. He argued that this interpretation was not supported by the text of the law, historical precedent, or the purpose of the section in question.
As of now, the judgment on this matter has been reserved, and the decision of the Constitutional Court will determine the outcome of Zuma’s eligibility to be an election candidate.
