Friday 10 May 2024 will be etched in South African history as a pivotal moment, thrusting the integrity of our electoral processes and constitutional adherence into the spotlight.

In an affidavit submitted to the Constitutional Court, counsel for the Independent Electoral Commission (IEC) states that allowing Jacob Zuma to stand for elections would undermine the fundamental pillars of the constitutional framework and the principles of the rule of law.

According to the IEC, “the Electoral Court’s reasoning undermines the authority of this court. It means that had the same sentence been imposed by the magistrate’s court, Mr Zuma would be disqualified because there are appeals, but since he was sentenced by this court, he is not disqualified because there is no appeal.”

The IEC has further argued that “there is substantial public interest in providing certainty on the proper interpretation of section 47(1)(e) and its interplay with the powers of the commission to adjudicate objections to candidates.”

Doubts have been expressed, particularly by the MK party, as to whether the Constitutional Court is competent to provide the sought-after clarity without appearing compromised as the court that initially sentenced Zuma for contempt of the Zondo Commission chaired by Chief Justice Raymond Zondo.

Read more in Daily Maverick: Electoral Court ruling on Zuma’s eligibility to stand for parliamentary office simplified

As expected, former President Zuma has sought the recusal of six Constitutional Court justices he claims may be “tainted by bias” ahead of Friday’s crucial hearing of the IEC’s appeal against the Electoral Court order clearing him to stand for Parliament in the 29 May poll. Clearly, one of the undercurrents to this case will be the thorny issue of addressing the issue of recusals and the supposed “problem of a divided Constitutional Court”.

While some commentators posit that the crux of the appeal hinges on legal interpretations of section 47(1)(e) of the Constitution, ostensibly detached from the specifics of Zuma’s contempt, it is crucial to challenge this notion. Attempting to divorce this case from Zuma’s previous contempt ruling is akin to navigating a labyrinth of convenience. In reality, the overlap is undeniable, and any attempts to downplay this connection smack of disingenuousness.

Those advocating for such detachment are merely cherry-picking semantics to suit their own agendas and narratives, ignoring the glaring interconnectedness of these legal entanglements.

The late and former Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsburg, when asked a question about the recusal of judges and the impact thereof had the following to say:

“For… a court of appeals judge on a three-judge panel… if there were any doubt, that judge could step out and let one of her colleagues replace her. But on the Supreme Court, if one of us is out, that leaves eight, and the attendant risk that we will be unable to decide the case, that it will divide evenly…. When cases divide evenly, we affirm the decision below automatically. Because there’s no substitute for a Supreme Court Justice, it is important that we not lightly recuse ourselves.”

What Ginsburg said about recusals resonates with some elements of the IEC appeal case to the Constitutional Court. While Chief Justice Zondo opted out of presiding over the Zuma contempt of court matter, Justices Madlanga, Majiedt, Mhlantla, Theron and Tshiqi did not recuse themselves but dissented from the majority judgment.

This appeal puts the named justices in an awkward position with regard to the IEC appeals because their dissenting judgment in the previous contempt of court case in essence would not support the decision in favour of the IEC as it relates specifically to Zuma. We must face the reality that our beloved Constitutional Court is fractured when it comes to this Zuma-related case.

As the appeal proceedings unfold, both parties will be fiercely contesting their positions, potentially setting the stage for several consequential outcomes:

1. The Constitutional Court may find the issue of recusal to hold merit, halting proceedings on the day and possibly postponing the matter even beyond the upcoming elections as the five remaining judges will have no authority to continue with the case. In terms of section 167(2) of the Constitution, “a matter before the Constitutional Court must be heard by at least eight judges.” Interestingly, the bench sitting with only eight or equal justices always has the threat of an outcome that might also result in a divided ruling in this matter that is hugely significant to constitutional and electoral law in South Africa, and has the potential to reshape its interpretation for years to come. But this scenario seems unlikely to happen, as an equally divided ruling will mean that the decision of the Electoral Appeal Court shall remain the last word on the matter;
2. Alternatively, the case could be remanded to the Supreme Court of Appeal for a more fitting determination. However, this approach has been discouraged by the IEC. “It is in the interests of justice that voters know if [Zuma] is eligible before they go to the polls. An appeal to the Supreme Court of Appeal would not be feasible before then nor even before the MK party and Mr Zuma’s suggested deadline of mid-June 2024,” the IEC’s affidavit reads;
3. The Constitutional Court may dismiss the request for recusal, thus paving the way to proceed with the matter. An important guideline here may be its decision from other cases such as the Sarfu II case when former rugby boss Louis Luyt unsuccessfully sought the recusal of five of its justices. The test here is clear: “The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case.” The common law of “necessity” may also be of consideration. The Supreme Court of Pennsylvania [in Philadelphia v Fox, 64 Pa. 169, 185 (1870)] once held that “the true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest — where no provision is made for calling another in, or where no one else can take his place — it is his duty to hear and decide, however disagreeable it may be”; and
4. Should the apex court deem recusal unnecessary, a decision may emerge with a dissenting judgment arguing that Zuma’s inability to appeal his conviction does not constitute the disqualifying guilt necessary for his removal from the National Assembly in terms of section 47(1)(e).

There is a lot to say and to learn from this case as part of refining and developing our electoral laws. As the nation watches with bated breath, the implications of this landmark case reverberate far beyond the courtroom, leaving an indelible mark on the path of our democracy.

What remains fundamental though is that the principles of justice must stand firm. While we champion the integrity of judges and their right to preside without prejudice, we cannot turn a blind eye to legitimate concerns over impartiality.

Upholding the rule of law demands scrutiny when doubt arises, ensuring that justice remains blind and unbiased. In the end, the strength of our justice system lies in its ability to uphold fairness for all, transcending any considerations of status or influence. DM