Pardon the Confusion!

In January 2024, former President of the Republic of South Africa, Jacob Zuma announced his desire to become the head of the country’s National Executive for what would be a third stint as South Africa’s first citizen.[1] The announcement unleashed a media frenzy and social media was abuzz with mixed reactions to the announcement.[2] Alas, President Zuma’s third term ambition was stymied when the Independent Electoral Commission (“IEC”) announced that he is not eligible to be elected as president due to his criminal record. Many supporters found the IEC’s decision bewildering as they had laboured under the impression that President Zuma’s criminal record had been expunged. Some asked why President Zuma was now disqualified whereas he had twice been elected despite his previous conviction by the Apartheid regime. In this article, we explore the legal reasons why President Zuma may not stand for another presidential term.

His supporters believe that the former president is eligible to be elected as President of South Africa. After all, section 88(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) does not preclude him from standing for election as this would technically not be his third successive term immediately following on his first two terms. Section 88(2) states that no person may hold office as President for more than two terms.

Readers may recall that on 29 June 2021, the Constitutional Court delivered an earth-shattering judgement[3] wherein it ruled that:

• It is declared that Mr Jacob Gedleyihlekisa 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 [2021] ZACC 2; and
• Mr Jacob Gedleyihlekisa Zuma is sentenced to undergo 15 months’ imprisonment.

In July 2021, President Zuma was duly incarcerated at Estcourt Correctional Centre pursuant to the Constitutional Court’s judgement[4], but he only served two months of his sentence after the National Commissioner of Correctional Services released him on medical parole.[5]

The decision to release President Zuma on medical parole was reviewed and declared unlawful by the Gauteng Local Division of the High Court.[6] The Court ordered that President Zuma should be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment. President Zuma unsuccessfully appealed the High Court’s decision in the Supreme Court of Appeals.[7]

On the morning of 11 August 2023, President Zuma presented himself at the Estcourt Correctional Centre to finish the remainder of his term. However, his second stint at the prison lasted only a few hours and he was released on a special remission of sentence granted by President Cyril Ramaphosa.[8] President Ramaphosa acted in accordance with section 84(2)(j) of the Constitution which gives a sitting president the responsibility for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.

So, what exactly is the legal position on this, seemingly unfair stance of the IEC?

Section 47(1)(e) of the Constitution states

Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except- 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 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.

The answer to why President Zuma is disqualified this time around lies in the words “after this section took effect”. His conviction by the Apartheid regime did not disqualify him as section 47(1)(e) only took effect long after those convictions. In contrast, his conviction by the Constitutional Court was handed down after section 47(1)(e) took effect.  Furthermore, a period of five years has not passed since President Zuma completed his sentence.  

One may ask, “wasn’t President Zuma’s record expunged by the remission of sentence?” The short answer is, no. The rub lies in the difference between a presidential pardon and a remission of sentence. As these terms are not defined in legislation, we have to consider their literal meanings. A pardon is defined as “an act of grace by the chief executive of the state or by means of legislation. It relieves a person from the consequences of a crime of which he has been convicted.”[9] The criminal record of a pardoned person is extinguished. Remission of sentence is defined as “reduction of sentence”.[10] Thus, a remission of sentence only reduces the sentence that a convicted person has to serve, without extinguishing his criminal record.

In conclusion, President Zuma is not eligible to be elected as a member of the National Assembly in the 2024 national general elections, and, by extension, as president because of the following reasons:

• he was sentenced to a prison term of more than 12 months without an option of a fine;
• five years have not passed since he completed his sentence; and
• he was released on a special remission of sentence and not on a presidential pardon.

He will only be eligible for election in 2029.

[1] https://www.timeslive.co.za/politics/2024-01-13-jacob-zuma-wants-to-be-president-again-so-he-can-fix-things/.

[2] https://www.iol.co.za/dailynews/news/iec-bars-zuma-from-contesting-2024-elections-33b9ec38-2f24-4e50-b62a-bfb92ce2ce56.

[3] Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18.

[4] https://www.iol.co.za/news/politics/look-jacob-zuma-starts-jail-sentence-for-contempt-of-court-d39a3d05-56c0-5948-b31a-67ebbdde2ff1.

[5] https://www.aljazeera.com/news/2021/9/5/jailed-south-african-ex-president-released-on-medical-parole.

[6] Democratic Alliance v National Commissioner of Correctional Services and Others; Helen Suzman Foundation v National Commissioner of Correctional Services and Others; Afriforum NPC v National Commissioner of Correctional Services and Others [2022] 2 All SA 134 (GP) (15 December 2021).

[7] National Commissioner of Correctional Services and Another v Democratic Alliance and Others (with South African Institute of Race Relations intervening as Amicus Curiae) (33/2022) [2022] ZASCA 159.              

[8] Remission of sentences to ease overcrowding in DCS facilities, says Minister Lamola – Department of Correctional Services.

[9] Centre for Legal Terminology in African Languages “Legal Terminology: Criminal Law, Procedure and Evidence” (Juta 2015, p213).

[10] Centre for Legal Terminology in African Languages “Legal Terminology: Criminal Law, Procedure and Evidence” (Juta 2015, p258).