The Council for the Advancement of the South African Constitution (Casac) and the Ahmed Kathrada Foundation have argued that a remission of a sentence does not undo a sentence that has been handed down by a court of law.
Advocate Nick Ferreira, legal counsel for the organisations, admitted as friends of the court in the IEC’s ConCourt appeal of the Electoral Court judgment, says the legal consequence of a remission is not the same as the legal consequence of a pardon.
The Electoral Court ruled that former President Jacob Zuma can remain on the uMKhonto WeSizwe (MK Party) candidate list for the upcoming elections.
Ferreira says remission simply reduces the time served, but does not change the sentence imposed.
“The effect of President Cyril Ramaphosa’s remission of former president, Jacob Zuma’s sentence was merely to constitute an effective reduction of the time that had to be served of that sentence. It is helpfully contrasted with the legal consequence of a pardon, which does something different. A pardon reaches back in time and changes the legal consequence of that conviction and sentence and effectively expunges it. A remission could never have the consequence of rendering the sentence determined in the substantive part of section 47 (1)(e) inapplicable.”
Meanwhile, the IEC has argued that the constitution makes no distinction between courts that impose sentences.
Counsel for the IEC, Advocate Thembeka Ngcukaitobi tackled the Electoral Court’s order that allowed former President Jacob Zuma to remain on the uMkhonto Wesizwe party list because his 15-month sentence could not be appealed as it was handed down by the Constitutional Court.
He concludes that the Electoral Court erred in its judgment which runs the risk of undermining the purpose.
“Nothing in the constitution says that there is a distinction between sentences of lower courts and the sentences of this court. The proviso in its wording does nothing of the sort. Number two; the interpretation undermines the authority of the Constitutional Court, producing absurd outcomes. Thirdly, it undermines the purpose of the section which is to protect the public from law-breakers, now putting themselves up as law-makers. This protective purpose also safeguards the institutional integrity of Parliament,” argues Ngcukaitobi.
2024 Elections | IEC in ConCourt to appeal Zuma’s elections eligibility:
