According to the Constitution

The mandate of the Electoral Court, which cannot act as a criminal court, has the right to consider whether a person qualifies to be a candidate for the National Assembly.

Apparently the only required legal qualification is that a candidate should be on the official voters’ roll.

In terms of such requirement former president Jacob Zuma — whose name appears on the voters’ roll — qualifies to be a candidate (in terms of the Electoral Act). However, there is a further stipulation in the Constitution (Act 108 of 1996) which unequivocally provides for an exception, stating in Section 47(1) (e), that “anyone who after this section took effect (i.e. 1996) is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine … cannot be elected as a member for the National Assembly. That disqualification applies for five years from date of sentence.

South Africa is a constitutional state, meaning that decisions of a court apply separately to decisions of Parliament. This also means that South Africa is not a presidential dictatorship. According to law, a sentence by a court is not invalidated by the right of a president to grant clemency (or remission) to one or 1000 convicted prisoners simultaneously. President Cyril Ramaphosa has the legal right to grant remission (i.e. a reduction of the time convicted criminals need to spend in prison), but the remission does not invalidate the sentence passed by the court.

Only judges have the right to amend or cancel a court sentence, when officially dealing with an appeal. The motivation for the decision by Ramaphosa to grant remission to over 1 000 criminals was that the prisons were too heavily overpopulated.

In Zuma’s case there was no official appeal, so the actual court sentence remains valid.

The decision by the electoral court, which cannot act as a criminal court, is valid in that Zuma’s name appears on the valid voters roll. He is therefore not disqualified to be a candidate. However, the Constitution is the superior law and restrictions in terms of the Constitution supersede ordinary law. In the case in point the Constitution refers to membership of the National Assembly and not to candidates prior to election.

On face value, this is no coalition but a straightforward rescinding of one party’s possessions to another. And, since it entails Finance, is nothing but a “sale agreement”. For the more cynical among us, a “sell out” of the EFF. Or does Malema have something up his sleeve?

I trust that the ANC will not be that desperate.