EC v MK: Another triumph of the rule of law or a Pyrrhic victory for the Judiciary?
On 20 May 2024, the South African Constitutional Court handed down judgment in Electoral Commission of South Africa v Umkhonto Wesizwe Political Party (EC v MK), marking former President Jacob Zuma’s latest feature in the apex Court.
The judgment is a welcome development as it settles the confusion created by the Electoral Court’s confounding finding that Zuma was eligible to run for membership of the National Assembly in the recent elections, despite being convicted of the offence of contempt of court and sentenced to 15 months of imprisonment by the Constitutional Court in 2021.
EC v MK arose after the Electoral Commission rejected Umkhonto Wesizwe Political Party’s (MK) nomination of Zuma on the basis that he is ineligible in terms of section 47(1)(e) of the Constitution. This provision disqualifies “anyone who . . . is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine.” Zuma and MK appealed this decision to the Electoral Court, which ruled in their favour on the basis that Zuma’s sentence was not the type contemplated in section 47 of the Constitution.
The Electoral Commission appealed to the Constitutional Court which overturned the Electoral Court’s decision, holding that the Constitution draws no distinction between convictions for civil contempt of court and other convictions. The Court emphasised that “conviction” ought to be given its ordinary meaning and that “[i]t is not for a court to limit the scope of the provision when it has been framed in wide and general terms.” Thus, Zuma is ineligible to run in the upcoming election.
I agree with commentators noting that the Constitutional Court’s judgment in EC v MK averted several democratic and political crises, and resolved problems created by the illogical and poorly reasoned findings of the Electoral Court. However, as tempting as it may be to call this judgment another judicial triumph of the rule of law, we ought to question how we reached this point.
Jacob Zuma used his presidential term to capture the state, pillage the economy and embed corruption in the fabric of public administration. After bowing to pressure and establishing the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Zondo Commission), Zuma refused to cooperate with its processes after leaving office. This refusal led to litigation in the Constitutional Court, which culminated in the Court ordering him to comply with the Commission’s processes.
When he ignored that order, in a landmark judgment, the Court held him to be in contempt of court and sentenced him to imprisonment for his exceptional and wilful affronts on the rule of law. He recently sought political office again, this time as a member of a new party which openly campaigned against the Constitution, and was barred from running in the election by the very same court that convicted him of an offence.
This situation is indeed a grave reflection of South African politics. While it is a relief that the courts have fulfilled their constitutional mandate and continuously held Zuma to account, this so-called victory of the rule of law has come with heavy casualties. It is easy to marvel at the judgments defending the Constitution, but these fail to reflect the reality of the immeasurable judicial resources and time wasted on this serial litigant.
“Delaying justice in Zuma’s cases denies it in many others.”
If the South African Judiciary ran something akin to a ‘frequent flyer’ scheme, Jacob Zuma would most likely be its top beneficiary. The recent case against the Electoral Commission and the saga involving the Zondo Commission are just the tip of the iceberg. After he was sentenced to imprisonment by the Constitutional Court, Zuma brought a rescission application in respect of the contempt judgment. This, after refusing to participate in the contempt proceedings despite the Court’s exceptional attempts at seeking submissions from him. Unsurprisingly, the Court dismissed the application, finding that no legitimate grounds for rescission existed and that it was really just an attempt by Zuma to appeal an unappealable and final decision of the apex court.
Then there is Zuma’s ongoing corruption trial, showcasing his mastery of the Stalingrad Strategy through which he has delayed justice for over a decade. Throughout the case, Zuma has deployed a litany of hopeless and vexatious legal arguments and processes aimed not at winning, but at delaying and wearing down the courts and the National Prosecuting Authority. He went as far as launching private prosecution proceedings against journalist Karyn Maughan and State Prosecutor Billy Downer on the basis that they “colluded” to publish the contents of a medical letter that was used by his legal team to seek postponements in the trial.
This failed, but ultimately led Judge Koen, the judge presiding over the criminal trial, to recuse himself based on findings that he had made and views he had expressed pursuant to the private prosecutions. Perhaps this inspired Zuma’s recent application in EC v MK seeking the recusal of five of the nine Justices hearing the matter on the basis that they were members of the Bench that sentenced him in the contempt proceedings.
None of these arguments have succeeded on the legal merits, but I am not convinced that this was ever their purpose. Zuma has repeatedly and publicly shown his contempt and disdain towards the courts. This litigation strategy is quite evidently a campaign to discredit and mock them, simultaneously burying them in baseless and hopeless arguments that, in the interests of justice, they have no choice but to process and address. While we celebrate the courts’ stoicism in the face of Zuma’s relentless campaign, we seldom discuss the opportunity costs.
The courts, especially the Constitutional Court, are notoriously backlogged and under-resourced to deal with their case load. While Zuma abuses the legal process, genuine claims must wait their turn. Delaying justice in Zuma’s cases denies it in many others. Critics might argue against prioritising Zuma’s cases, but it is undeniable that the nature of these matters is often urgent and of great political consequence. Failure to treat them accordingly could also discredit the courts and suggest that they are not prioritising their constitutional duties. The courts are forced into a position between Scylla and Charybdis. Zuma must know this, after all, he is a shrewd strategist and politician. The question is: why do his legal representatives execute (and presumably advise him to adopt) these legal strategies?
The right to legal representation is a fundamental aspect of the rule of law, and lawyers have a duty to treat their clients’ interests as paramount. However, it becomes problematic when lawyers treat this duty as entirely unfettered, forgetting that it is always subject to: “their duty to the court; the interests of justice; and observance of the law.” Indeed, it is not always easy to navigate the “thin but relatively clear line between fearlessly representing your client’s interest, on the one hand, and misleading the court and undermining the administration of justice, on the other.” However, only unscrupulous lawyers who care little for the damage caused to the Judiciary, the interests of justice and broader society, would be comfortable with participating in Zuma’s unethical litigious strategies. That is not to suggest that representing Zuma would be an unethical act on its own, the problem arises when this is done in a manner that so patently undermines a lawyer’s other ethical duties.
So what can be done about this? Instead of hoping that Zuma will tire of his litigious skulduggery, courts ought to adopt a harsher stance towards the legal representatives implementing these unethical strategies. Courts are reluctant to order punitive costs, and very rarely order these costs to be paid by a litigant’s legal representatives. However, they have no other way to punish lawyers who fail to uphold their duties as officers of the court and should accordingly exercise this power when it is appropriate. For instance, in EC v MK the Court could have considered making a narrow costs order in respect of the recusal application which was so patently devoid of merit. Hopefully this would signal that unethical conduct from lawyers will not be met with impunity and would encourage lawyers to think twice before facilitating vexatious litigation and abuse of court processes.
It is unlikely that the courts have seen the last of Jacob Zuma. If his modus operandi is not discouraged, it is unlikely that more judgments upholding the rule of law will counteract the damage inflicted on the administration of justice and the integrity of the judiciary. A judgment like EC v MK is undoubtedly important, but its constitutional significance will wane if the legal process is repeatedly instrumentalised by Zuma as a means of evading justice.
