Zuma case hints at electoral court weaknesses
It took 22 days for the electoral court to deliver its full reasons in The umkhonto wesizwe Party v Electoral Commission, which was initially decided on 4 April. The case concerns former president Jacob Zuma’s candidacy for parliament in the upcoming national elections. Some commentators have already criticised the 37-page judgment.
But it’s important to also ask why a court that is meant to act with urgency took three full weeks to deliver its full reasons. Are there underlying problems with the electoral court that should worry us for the upcoming elections?
The electoral court is a specialist court established by the Electoral Commission Act of 1996 to adjudicate electoral disputes and provide oversight over the decisions of the Electoral Commission of South Africa (IEC). In terms of section 18 of the Act, the court is of equal status but with more limited jurisdiction to the high court.
The court hears appeals against decisions of the IEC concerning the application of electoral law, such as the registration of political parties and the eligibility of candidates. It also adjudicates electoral disputes on the counting of votes and breaches of the Electoral Code of Conduct, such as vote rigging.
The court operates on an ad hoc basis and is activated when an electoral dispute is filed. Its operations are housed at the supreme court of appeal in Bloemfontein, but it may operate anywhere the court’s chairperson deems convenient. It may also refer certain disputes to a provincial division of the high court.
Because the court is of equal status to the high court, its judgments are appealed to the supreme court of appeal.
But in exceptional cases, the judgments may be appealed directly to the constitutional court.
Significantly, in certain disputes, such as a dispute over a vote count, the electoral court’s decision is final and no appeal is allowed, even to the highest court in the land.
Unlike other courts, all of the electoral court’s cases are inherently urgent. That means it must adjudicate them in the shortest time possible — ideally, days after a hearing, and certainly according to the elections timetable. Comprehensive reasons must preferably accompany such decisions unless circumstances do not allow.
Because the electoral court is an ad hoc court, all five of its members — three judges and two non-judges — serve part-time. The chairperson is a senior judge of the supreme court of appeal. The current members are Justice Dumisani Zondi as chairperson, Johannesburg high court Judge Lebogang Modiba, and Fort Hare law professors Nomthandazo Ntlamamakhanya and Moses Phooko as non-judge members.
There is one judge vacancy, which is filled on a rotational basis by acting judges. These are retired Justice Jeremiah Shongwe, and Johannesburg high court judges Leicester Adams and Seena Yacoob.
The electoral court has now gone five years without its full complement of judges. Its longest-serving members, Modiba, Phooko and Ntlama-makhanya, were appointed only in 2022, and chairperson Zondi last year. The lack of a permanent corps of members has serious implications for the court’s efficiency and effectiveness.
Electoral law is a complex, niche field of law that also needs a solid grasp of South Africa’s unique political system.
The court plays a crucial role in developing legal principles to guide the law (or jurisprudence) in this field. This is for the benefit of the IEC, political actors and the credibility of our elections.
Building a coherent, predictable body of jurisprudence is slow and incremental, over many years. It needs judges with longevity and a long-term vision. It also needs judges that can work well together as a team. The lack of a strong team dynamic leads to frequent disagreements (or dissents) over the interpretation of the law.
Among the current members of the court, only Zondi and Shongwe have experience of working in five-judge panels of the style frequently used by the electoral court. Furthermore, most members have only worked together in the last few months.
It is therefore unsurprising that in the MK v IEC case, there are three different judgments, provid