MK Notice of Appeal in Electoral Court PDF
MK Notice of Appeal in Electoral Court PDF
HELD IN BLOEMFONTEIN
Case No:
and
hereto), upholding the objection(s) of the second and third respondents (“the
objection”) submitted on 26/27 March 2024 (see Annexures “B” and “C”), in
terms of section 30(4) of the Electoral Act 73 of 1998, read with section 20(2) of
the Electoral Commission Act 51 of 1996, leave having been sought on 2 April
2024.
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GROUNDS OF APPEAL
The appeal is based upon any one or more or all of the 7 grounds set out below
which have been categorised or divided into preliminary legal points and the merits.
2. The IEC has failed to provide the reasons for its decision making it difficult
3. Similarly and in terms of the applicable legal prescripts, the MK Party ought
part of the IEC and the objectors in inserting the incorrect email address.
4. In the result, all of the above renders the decision to be procedurally unfair
and/or irregular. Even in the event that these failures may be overlooked or
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condoned in the interests of justice, the decision will remain invalid upon the
5. The third respondent has since indicated that he did not lodge the second
himself from the objection, for now he will remain cited as a party until further
A2: The IEC exceeded the limits of its powers (vires), jurisdiction and/or
authority
6. The IEC lacks the power, jurisdiction and/or authority to implement section
National Assembly. That power resides with the National Assembly itself.
the IEC which may determine and control its internal arrangements “and”
the IEC from interfering in issues of membership eligibility for the National
9. The IEC further erred in conflating the issue of standing as a candidate (in
11. The Commission as a whole, and not just Judge Pillay, was legally excluded
by bias from deciding the matter because on or about 24 January 2024 the
specifically made by Commissioner Janet Love she was speaking for the
whole Commission and her statement was endorsed by silence. All this is
12. That means that the IEC had prematurely prejudged the issue and could not
have arrived at a different or fair outcome. This was also a case of double
jeopardy.
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13. At best for the IEC Commissioner Love ought properly to have recused
herself. At worst, the entire Commission was disqualified from taking the
decision.
14. Regarding the issue of bias it needs to be emphasised that the IEC is not
Party has been advised that such serious allegations should not be lightly
15. Regarding the merits the objection upheld by the Commission is premised
the two objections overlap, we deal with both as one where applicable and
16. In the above respect, the particular provision referred to and/or relied upon
follows:
“(1) Every citizen who is qualified to vote for the National Assembly
17. The Commission erred in finding that the second appellant has contravened
18. Section 47(1)(e) is inapplicable to the second appellant upon the following
18.3. The remission of the second appellant’s sentence was not taken into
19. In order to ascertain whether the second appellant has been convicted of
the option of a fine, due regard must be given to the judgment handed down
21. The word “and” in wording the abovementioned provision suggests that it is
22. In the abovementioned case, the Constitutional Court ordered that “it is
for failure to comply with the order made by this Court in Secretary of
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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 and
Others 2021 (5) SA 327 (CC).
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23. It can be deduced from the facts therein that the second appellant was not
criminally charged and did not undergo any criminal trial proceedings. To
this effect, Khampepe ACDJ correctly pointed out that “[it] is not a
of the Constitution”.3
appellant. A declarator such as the one issued by the Court cannot amount
section.
25. The second appellant was not an accused, he was not charged of an
proceedings, and he was not afforded fair criminal rights in terms of section
2
Ibid at para 65
3
Ibid.
4
Ibid at para 66; Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).
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rights enshrined in section 35 of the Bill of Rights and in any event ought to
27. In the circumstances, the second appellant does not meet the requirement
such, section 47(1)(e) of the Constitution does not apply to the second
appellant.
28. Section 47(1)(e) of the Constitution further contains a proviso that “no one
conviction or sentence has been determined, or until the time for an appeal
has expired.”
29. In the above regard, it is imperative that this Honourable Court considers
effect. In this respect, the questions arise whether the second appellant
affirmative, whether the appeal has been determined; and if not, whether
and found that the second appellant did not lodge an appeal against the
sentence imposed on him and that the time for an appeal has indeed lapsed.
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31. The second appellant did not lodge an appeal against the sentence imposed
on him not because grounds for an appeal did not exist, but simply because
he did not have the option to do so, since such an order was granted by the
32. It is also worth noting that the purpose of the text is an important
imprisonment for more than 12 months without the option of a fine who may
33. Unfortunately, the second appellant was not met with the opportunity to
35. Thus section 47(1)(e) of the Constitution does not apply to the (former)
36. As is apparent from the order of contempt against the second appellant, 5
37. On 8 July 2021, the second appellant began serving his sentence at the
38. In and during September 2021, the second appellant was released on
medical parole which was challenged and set aside at the Constitutional
Court.
Constitution.
40. It is trite that a remission of sentence has the effect of reducing a prisoner’s
Zuma had served just less than 3 months of the original sentence. By the
41. It is clear that the purpose of the section is to deal with the ultimate
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Supra note 1.
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the Constitution, which provides him with the powers for “pardoning or
43. In considering this ground, this Honourable Court is bound by the remarks
made by Makgoka JA, speaking for the unanimous Supreme court of Appeal
Alliance and Others 2023(2) SA 530. The Learned Judge of Appeal said
at paragraph [60]
“The effect of setting aside the declarator is that once the order in
Zuma, in law, has not finished serving his sentence. He must return
44. The SCA went on to leave open the question whether the period of “unlawful
statement to the effect that President Zuma had “completed his sentence”.
The court found that not to be the case as articulated in paragraph [60]
above.
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45. In line with the true legal position, ie. that President Zuma had to report to
had granted him and others remission of sentence thereby reducing his
already served.
46. In the circumstances section 47(1)(e) does not apply to President Zuma.
47. According to the IEC letter (Annexure B) the objection alleged that:-
offence”;
48.3. it does not take into account the duration of the ultimate sentence.
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dismissed for being unsustainable in law. The onus which lies on the
circumstances.
C: CONCLUSION
50. In the circumstances and in the absence of the satisfaction of any one or
objectors relied, the IEC had no valid reasons to violate the political rights
51.1. section 1 which provides for the rule of law which includes separation
of powers;
51.2. section 7(2) which compels the state and its organs to respect the Bill
of Rights;
51.8. section 190 which defines or limits the powers of the Electoral
Commission.
52. Needless to say, this Honourable Court is also bound by the relevant
terms of the stare decisis rule of law. In this regard this Honourable Court
must take into account its own articulation made, with respect correctly,
when the Freedom Front Plus similarly sought to disqualify the candidature
of the late Mrs Winnie Madikizela Mandela from the candidate list of the
53. In that matter the following was stated at paragraph [14] by the then
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The Freedom Front Plus v ANC and Winnie Madikizela-Mandela [2009] ZAEC 4 (31 March
2009)
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39(1)(a)) and gives effect to the right to stand for and if elected, to
55. For any one or more or all of the 7 grounds cited or pleaded above, the
56. In the circumstances, the appeal to the Electoral Court against the
decision stands to be set aside and the Court may issue any other just and
any.
PLEASE TAKE NOTICE FURTHER THAT in the event that this Honourable Court
directs that this appeal be heard orally and/or that further written submissions be
made, the appellant(s) reserve their right to further elaborate on and/or supplement
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ZUNGU INCORPORATED ATTORNEYS
First and Second Appellants’ Attorneys
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