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- [00:18]
A
Hello and welcome back to the AIAC podcast. You are listening to this, which is Africa's a country's destination for analysis on politics and culture and happening on the continent and elsewhere. In this edition of the podcast, we are bringing you another episode of Just Us Under a Tree, which is the popular South African podcast on law and politics. And on this episode, Dan Mafora, Elisha Konene and Tanvir Jiwa discuss the recent slew of litigation and controversial matters relating to the 2024 South African General elections. In particular, they unpack the latest Constitutional Court judgment on where the former president Jacob Zuma is allowed to run for office. They also touch on the recent rulings of the International Court of Justice on South Africa's request for amending the provisional orders against Israel under the Genocide Convention. A reminder of who they are. Tanvir is a constitutional law and property law lecture. Dan is a lawyer in Cape Town and the author of the book Capture in the Court. And Elisha teaches law and politics in Cape Town. So here is Dan, Elisha and Tanvir. Enjoy.
- [01:41]
B
Hi, everyone. And let's very, very happy to be welcoming back just Us Under a Tree again. A few months after we were planning to be back, actually, but blame it on all of us. To be very honest, I think we need to be better as a friend group, but we're working on it.
- [02:02]
C
Sorry as colleagues. This is a very serious work environment.
- [02:05]
B
I'm sorry, my bad.
- [02:07]
A
I thought we were all just hanging out with Endeavor.
- [02:11]
B
My bad. I deeply believe in the politics of. I hate podcasts. I just like hanging out with my friends. That's the only reason I'm even here. So.
- [02:19]
C
So.
- [02:19]
B
But yes, we will be better as colleagues and you can hopefully be expecting more regular episodes from us, but actually, let's just quickly find out where we all are and then we can actually start talking more about, you know, maybe more regular episodes and what we can be expecting from just us. So today we actually only have some of the OG members. There's obviously me and then. Hey, Elisha, how's it going on your side?
- [02:48]
A
I'm good, thank you very much. And it's good to be back.
- [02:52]
B
Friends and listeners love having Elisha on the podcast. I think that's the only time he's polite to me. And Dan, how are you doing?
- [03:01]
C
I'm doing great. I'm doing great. Back. Back to be on the pod. Oh, back to be on the pod. Happy to be back on the pod.
- [03:08]
B
We're all going through it. It's okay. I'm assuming our Listeners are also going through it because we're going through a very tough time in South African. Been very hard to even try and get a date down because also there's clearly so much going on all the time. But chatting about that, we are hoping to have the POD be back on a monthly basis. And Elisha, maybe you can tell us more about that.
- [03:33]
C
Yeah.
- [03:34]
A
So this is our second exclusive for Africa as a country that we're recording. So that is going to be monthly. In recent months since coming back, we've wanted to get into more regular recording, but it has been an incredibly busy year, especially with it being election soon. But hopefully things are going to be slightly less busy going forward. And so keep an ear out for content and materials. In addition to our Africa's country monthly exclusive, we also have some material to bring you on a very special topic, which is Dan's book that he wrote, which is a bestseller, and talks. He gave one at UCT and one at Stellenbosch to students there and discuss some of the issues. Those recordings we need to cut up, edit and present to you. So expect that very soon as well. But today it's the 26th of May, and we have national election in within in the next few days. And so it's a huge, huge, huge time to be hanging out and recording.
- [04:48]
B
I was so worried that Elisha said the date we were recording because I was like, oh, no, we're about to be called out for when this episode comes out, which is not gonna be. I will just say that I'm hoping it comes out before elections day, which is in three days. But now that Elisha has called us out, now, you know, we're filming, we're recording before elections. We're very excited about that and we're kind of doing that on purpose. But before we quickly go over why we've chose this day and why we've chosen to do it before the elections, just again, a huge congrats to Dan for expanding the cabal now trying to, you know, kind of acquisition all of you guys through Stellenbosch and UCT through a book. So he started very young. He's saying that it's. It's meant for students and not just law students. So we're really expanding. So that's amazing. And if you want to follow more closely on how exactly the cabal is expanding, you can follow just us under a tree on Twitter. And if I'm not mistaken, I think that's the only platform we have so far. It's our platform of choice. We'll never join LinkedIn, but don't quote me on that. So today we're covering a few things. Obviously, I've mentioned already, elections are coming soon. But before that, given everything else that's going on around this terrible, terrible world that we live in, we are also going to be maybe chatting about a possible update on our last episode, which was a special episode on Israel and Palestine. As you all know, there was another trial recently which requested an amendment to the previous order that the ICJ had put down. And actually South Africa was once again successful in that trial. And in that case, the orders were amended because they were deemed not to be adequate, because obviously, as we all know, the genocide has persevered. Unfortunately, not to anyone's surprise. Right. But in addition to that, what we probably should be discussing is obviously the fact that the actual order itself requires a ceasefire. But not in Gaza. Right. Requires a ceasefire in Rafah. Obviously, this is not the episode where we will be going about this in depth, but just to kind of quickly touch on that, on the fact that South Africa was in front of the ICJ again, this time actually supported by a few other countries, which was quite nice, but also other development which have been quite interesting, namely the prosecutor of the ICC issuing an arrest warrant for Netanyahu, as well as the leader of Hamas. And in that case, what was really interesting, Dr. Naledi Pandor had been at Stellenbosch recently to talk about the issue of ICT of the ICJ order, but also everything else around Israel and Palestine. And it was actually quite nice to hear that she had been in contact with the ICC prosecutor already from when the first trial had been going around. Right. And that she had called them out for their hypocrisy for acting so quickly over Ukraine and Russia and yet being so hesitant, you know, so if I'm not mistaken, with Ukraine and Russia, it wasn't even a month before they acted, as opposed to it's been months and months now with Israel and Palestine. So really knowing that at least the current government is on the good side of one thing being Israel and Palestine, and seeing that actually, you know, there's one portfolio that's working and they're taking their job very, very seriously. So that's really nice. We will, we might just discuss this at another stage, just talking about it a little bit more. And hopefully, I want to say, hopefully we don't need to, because there's actually a ceasefire. But I think most of us, our predictions is that what might happen is probably that Netanyahu is going to have to take the fall for this. And at least that's very much my, you know, my prediction that the country is going to try to oust Netanyahu as a Prime minister and that he will no longer have presidential immunity. So, sorry, prime minister or president, sorry, countries confused. Where I'm from, we have prime ministers when I am right now, we have presidents. But the point being that obviously trying to oust Netanyahu so that he no longer has presidential immunity and that then in that order, the arrest warrant might work. But I don't know. I think we have other thoughts on this, Dan, if you want to pitch in.
- [09:25]
C
Yeah, so it's been very interesting. Obviously, there have been a couple of other kind of developments and proceedings before the ICJ that followed the initial order. South Africa tried a couple of times, I think twice, to get more specific orders around the developing situation in Gaza, but the ICJ kind of shied away from that, saying our initial order was fine, there's nothing more that we need to do the second time or the third time actually saying that Israel must allow aid into Gaza to, To, to. To the people of Palestine just so that you can make their situation better, basically, whilst not acknowledging. Okay, obviously not touching on the merits, because the merits are going to come at a later stage. But what is interesting about this latest order is that there's a debate within the court about the, the extent of the order. Right. So is it an actual ceasefire, at least in Rafah, or is it an order to stop military operation that may endanger the rights of Palestinians under the Genocide Convention? So Israel is arguing for this late interpretation or for this large interpretation to say that the order doesn't say that we have to stop all military operations. It just says that we have to stop any military operation that endangers the rights of Palestinians under the Genocide Convention. Right. Which is kind of like a slippery. Yeah, it's just like a weasel out of the order. But very interestingly, the two dissents in the recent order is one from Judge Sobatinde, who is from Uganda, and who is the Vice president of the court, who says that, or at least in her interpretation, what the court is saying is that Israel should cease any military operation that would violate the rights of Palestinians under the Genocide Convention. And then you have Judge Dirat Ladi, who says that the order simply says, says that Israel must stop its military operation in Gaza, full stop. And so there's this interesting dynamic within the court itself about what the order actually means. And then you have Judge Nolte from Germany, who has been very skeptical about South Africa's case and about the strength of the case, who voted in favor of the order, but also reads it as saying that Israel must stop any military operation that has the effect of endangering the rights of violating or violent rights of Palestinians under the Genocide Convention. So it's a very interesting dynamic that has come out of the court. One hopes, you know, that at least from the, from the reactions that I've seen from foreign missions across the world, they seem to be saying, or they seem to be understanding it as a ceasefire for Rafah, at least, because we know that it's the only safe refuge in Gaza that's left and we know that any kind of escape routes or humanitarian areas do not exist and that Israel is constantly bombing them. And we hope that some sense of morality and humanity will prevail on the rest of the world and that they will bring an end to the suffering of the people of the Palestinians in Gaza. Yeah.
- [13:13]
B
Yeah, thanks, Dan. I think also, interestingly, I'll just pick up two points. There is that I think us constitutional lawyers usually like discretion, but you would hope that if there's one place where you shouldn't have discretion is if you're trying to stop an ongoing genocide, or at least if you don't want to admit that it's an ongoing genocide, if you're even willing to admit that it might get to a genocide, you still don't want discretion at any event. So thank you for outlining the different approaches that I won't lie, I didn't even have, I didn't have any idea that this is how they were interpreting the order. You know, the latter interpretation is a little bit wild to me because obviously, being a more progressive lawyer, self identified progressive lawyer, I would have thought that, you know, having the discretion would be like, yeah, just about anything Israel is doing these days is endangering the rights of Palestinians.
- [14:05]
C
Right.
- [14:07]
B
Except they're obviously taking it more of like, oh, no, endangering the rights of Palestinians. Well, let's start off with they don't have many rights to begin with in Israel, so the bar is truly on the floor. But yes, as Dan pointed out, Rafah being a site of absolute importance right now in addition to Gaza, precisely because that is where Israel has told everyone to go from Gaza to Rafah. Right. And then to openly start bombing Rafah and having ongoing military operations there is actually just openly genocidal. And that the court is even willing to at least accept that on, on whichever interpretation. Right. That we need to stop what is going on in Rafah right now. Elisha, I don't know if you want to add anything to that.
- [14:55]
A
I think it'll be interesting to see whether or not, like, international law can be saved from, from this scenario and from this challenge and hopefully, you know, having respected and sensible scholars like, presents like some hope there. But it's, it's been bizarre to watch because the criticism we had in our first episode was primarily on the remedy. The order that everything the judgment says acknowledges that the facts and the severity and the urgency of the matter demands that they do something, but then the actual order that they give doesn't match. It doesn't fit the problem that they themselves had described. And what everybody was hoping was that the ICJ would assert itself more and be more assertive and that it wouldn't take all of these months to say that we have a interim order, to say that we might call it a genocide, but for now, you can finish the genocide and then come, come to us afterwards and then account. And with Israel's open contempt for, increasingly for international law, you know, bombing the aid tracks that they were forced to allow in by the court, increasing hostilities, just full steam ahead. What people were actually worried about was that, oh, if the ICJ does make an order and Israel backed by the United States just ignores it or the Security Council can't enforce it, then international law won't mean anything. But what the court is actually doing by leaving this space and leaving all of the discretion in the hands of Israel, as Tanvir mentions, is themselves proactively just making international law smaller and smaller and smaller and smaller. It's like, like you, in any interdict case where you say, because somebody is doing these things that are dangerous and harmful, please issue an injunction to say they must cease this activity because it would be meaningless. It wouldn't be a remedy if courts would say, don't do anything illegal because the law already says that what's illegal is illegal. It can only be a remedy if it has some actual impact, that you are no longer able to commit this action. You are no longer able to, if there's a substantive change or like there's a substantive limitation on the actions that are permissible to you and that coming into effect as the order is made. But the fact that you have actual judges of the ICJ saying that the full effect of the interim order is just to say if it is genocidal, don't do that, but otherwise continue means that they are relegating the ICJ into A meaningless institution. And hopefully that's not the understanding that sticks at the end of this debacle.
- [17:55]
B
Yeah, I love. Sorry.
- [17:57]
C
Sorry. Yeah, yeah. So, no, no, I just wanted to say Elisha makes a very good point about whether or not international law can still be rescued. Right? Because like, we, we, we. We saw in reaction to the ICC prosecutor asking for, for arrest warrants against Netanyahu, the absolute bewilderment of the west, like the spokesperson for the National Security Advisor saying, no, we don't think the ICC has jurisdiction over this. And being asked like, well, who has jurisdiction? And he goes, we have jurisdiction. We supply the weapons. And it's like, oh, so you admit that you are actually not part of the international legal system and all you're doing is threatening people because you have nukes. Right?
- [18:47]
A
And yeah, the United States.
- [18:49]
C
Exactly. The whole facade is just like international law is just the COVID for, I have nukes and you don't. If you don't comply, I can just bomb you. Like, sorry, but that's like literally the whole basis international law that we have unmasked, right?
- [19:08]
A
When the whole premise of them exercising this power and like, funding wars overseas, supplying nukes is that they need to be the global policeman and protect the global international order. But how can you be a policeman if there's no such thing as law? It's just weapons, like, all the way down. And it's exactly all the people who are insisting that they need to be international, there needs to be an international order and law in place who are now like, international law, no such thing.
- [19:39]
B
But also, but also, boys, like, at least the, like you said, kind of the unmasking, but also confirming so many of the criticisms that was always around the international law as a forum. Right. The whole idea that, like, it's. What is international law if not geopolitics? Again, like you said, around who has nukes, and at the same time it's around who has power, which from the beginning has always been the US like, having conversations like, oh, should we start looking about around the permanent states and those that are allowed to veto, should we be changing these dates? It's always been the same thing, just camouflaged at. Under another argument. Right. But something else that I wanted to mention in addition to that, but relating is the, like you mentioned, Dan, the absolute outrage at the ICC trying to issue a warrant and people literally going, no, no, no, that's not what the ICC was made for. Not these countries. And you're like, okay, so say the quiet part out loud. Which countries is it Just almost every single case that the ICC has had so far, except if I'm not mistaken, there's Russia and another country, but that's the only two countries which are not African countries where the ICC has intervened. Right. Never mind the fact of who actually signs off the room statute to begin with. So again, absolutely main. Same criticisms that we've always been seeing, but something that I wanted to pick up on earlier, something that Elisha mentioned, right. It's almost like asking the genocide, the genocide to be like, you judge whether the act that you're doing is genocide and then stop yourself if you think.
- [21:20]
C
It'S getting any too.
- [21:22]
B
If it's getting too genocidal. Yeah, maybe stop.
- [21:25]
C
Only obviously genocidal.
- [21:27]
B
Right, right, right, right, right. But, but use your discretion as the one who is doing the genocide, because we've mentioned this before and obviously we are not rehashing the first episode, but because sadly. So in between now and then. But also so much of the same thing, which now is just an increased scales of offensive. But just talking about what's been happening as well, right? Like talking about this discretion that we're looking at, talking about everything that's been going on, just looking at how international law has failed us so tremendously that you can no longer even go like, oh, yes, at least now we have it on record that, you know, here's all of this evidence. And if I'm so sorry to say this, because it actually breaks my heart, but anything that I think about right now is that the only thing these cases are going to be useful for in the future is what, at what number does it qualify the genocide? Because that's all we're going to see. Right. And unfortunately, what, like, what is really, really heartbreaking in this case is that it's so obviously targeted at civilians. Right. Hamas has been used as a cover this whole time, but we are seeing that so many people, so many people who are being murdered, children. And also the main calamities, the main victims are also children, whether they are dead or whether they're handicapped or whether they are orphaned. Right. And it always keeps reminding you of what happened in Vietnam. We always see those photos of planes going with just babies who've been orphaned back to the US Right? So just a long story to say that unfortunately we're at that stage now where we're getting to that point of like, can international law be saved? We. Well, I guess that was the point of the ICC warrant, but other than that, honestly, I don't know.
- [23:16]
A
Elisha and I think just One example, I think, to, to. To bring home Tanvir, you say how much has changed since we recorded, when we recorded just a few months ago, the first Africa's country exclusive, there was an ongoing bad fate debate about whether Israel had bombed one hospital or whether Hamas had accidentally sent a missile which turned around in midair and hit the hospital as it misfired. And since then, Israel has bombed every hospital in Gaza. They have destroyed every university in Gaza. And this is, I think, the biggest moral catastrophe and failure of our times. And anyone who still pretends that there's a legal or technical debate to be had here is a disgusting liar. And so we shouldn't need the ICJ to say or do anything as the world like, watches like this horrific crime unfold.
- [24:21]
C
But.
- [24:24]
A
Praying for when the bloodlust will be satisfied is something which has been incredibly difficult this entire year. And the people of Gaza who remain, because it shouldn't just be about like the number of people killed, like what proportion, what percentage of this population needs to be extinguished before you admit that. It's like, you know, an ethnic cleansing very clearly.
- [24:47]
B
So also, just to, just to add on that, Elisha, it's something that I was thinking about as well, right. When I said the whole idea of at what number do you call it a genocide? Right. It's obviously extremely racialized. Right. The number is going to depend on which country you're looking at. Clearly, this was a North, you know, in the global north white country, the number would have been much, much lower that we're looking at now. Like, people are even afraid to say that there's a genocide. Right. People are still bringing up October 7th. Right. Not October 8th. Not October 9th. Not October 10th.
- [25:20]
C
No, not October 6th. Right, right.
- [25:25]
B
Not 1975. Not. Right. Absolutely. And it's actually just really, really immoral. And something else. Elijah mentioned the epistemicide that we're watching. Like killing of a culture. Right? Absolute killing of a culture. I mean, this podcast is a group of friends, scholars, everything else. And we, we have to also, all of us now, also listeners watch as all the universities are bombed. No one will graduate in Gaza. Right? No one will graduate in Gaza. And if they can even think of taking education again, right? Like, we're talking graduation on a third year level, but we're looking at schooling in refugee camps that are being bomb teachers that are being killed, the amount of academics that are being killed. So if you're sitting and you're asking what can you do in South Africa, especially if you're a student and I know I should be one to say this because it will be extremely hypocritical because of the institution where I'm at right now, but you need to ask your institution to sign a resolution for a ceasefire. Right. And if your institution doesn't, we need to keep pushing for it. Right. Because at the very least, it's not a lot to ask for a ceasefire. Like, it's actually insane that we're even having conversations about not just talk about ceasefires. Right. Because it's not a lot to ask to stop the violence. So I know that there are very progressive universities in South Africa that have done more than actually not sign. That have done more than just sign a resolution for a ceasefire. A lot of institutions have refused to even engage with Israeli universities until such time as there is a ceasefire. And that is purely on the moral ground that you cannot keep ties with an apartheid institution so long as there's a genocide going on. I mean, obviously there's a question of whether you should ever have ties with apartheid institution to begin with. But that's just something that I wanted to also flag. As I mentioned before, we're not going to go in depth and rehash much of the debates that we've had already, but these are the developments that we're seeing. If I'm not mistaken, there are at least three South African institutions at a tertiary level who have signed on to a resolution asking for a ceasefire. And there is pressure being applied to other institutions as well. So we can do things. And I think it was very comforting, again, like I mentioned, to just have heard that Dr. Naledi Pando had been one of the people who had approached the icc. Right. It makes you feel a little bit like there are more, there is more that can be done than just what you were thinking about. Right.
- [28:01]
D
So, yeah, the court issued its orders clearly highlighting the worsening conditions of life faced by Palestinians in Gaza. Israel was ordered to ensure with immediate effect that its military, through any action, does not commit acts which violate the rights of Palestinians under the. The Genocide convention. So far, Mr. President, what I have said is not inference, not imputation. It is direct knowledge which bears on the state of Israel, its political leaders and the members of its army. They know about Rafah and its centrality to the sustenance of Palestinian life at the present moment. They know the views of the organs of the United nations about the consequences of a military attack on Rafah. They know what this court has ordered on each of the three occasions I have referenced. Yet Israel's leaders have continued to incite genocide and to express their own genocidal intent in doing so. Not only has Israel ignored its obligations as a state party to the Genocide Convention, it has also treated this Court with contempt and threatened the rule of law. Firstly, from the plain text, which is what this Court has said we should first have regard to in several judgments what we know from the text of the substantive provision. In other words, the controlling provision is that a candidate who is convicted of an offense and sentenced to more than 12 months without the option of of a fine is disqualified. There is no exception for candidates who received remissions of sentences, no exceptions for pardons. That means that the Court can apply the section as it reads. The exclusion of pardons and remissions from section 47 1e is not an accident of history, but it was a careful policy choice made during the drafting of the Constitution. The history to section 47 bears this out. Section 42.1B of the Interim Constitution, which is the direct equivalent of section 471E, did contain a pardon exception. In section 421, the last words were unless he or she has received received a pardon. The rest of the words were identical. The pardon exception was fully and anxiously debated at the Constitutional Assembly. A report of the Technical Committee of the constitutional assembly of 7th September 1995 shows the express and intentional decision to exclude the pardon exceptions because of superfluity. They found that a pardon, except expunges the crime and the sentence, and therefore it was not necessary to include it. But pertinently and more importantly for our case, the drafters also applied their mind to the relationship between the disqualification under section 47 and remission of sentences. They specifically referred to remissions of sentences which they said could occur, for example, where a person's 20 ass sentence has been reduced to 10 year sentences. And then squarely they answered the question which is before the court today. They said, in a remission, the judicially imposed sentence is not reduced merely the length of the execution. And then as to disqualification. For the national assembly, they said whether a person is disqualified would depend on the length of the original sentence of imprisonment.
- [31:50]
B
As we've mentioned before, this year is obviously election year in South Africa. 2024, as one of the many political parties have said, it's almost like 2024 is the new 1994. There's a lot of tension in South Africa, mostly for context, a lot of tension because there are some, I don't want to say rumors, but some vibes. I want to say that the ANC might not have the same overwhelming majority as it has had in the previous elections. And because that obviously is for many, many reasons, some of which we will talk about just now. But very quickly, let's talk about what this actually means. Right. So if there is no overwhelming majority, we are looking at a very real possibility of a coalition between, we are assuming the ANC and another political party. I truthfully personally do not have any guesses about what that party will be. But what I can say is that there are some fears almost around certain particular political parties, around what exactly that coalition might cause. What exactly would it mean for the ANC not to win an overwhelming majority in the South African context? I mean, it's important to remember that South Africa is still a very young democracy. It has only seen one party governance so far. So this is why I think there's a little bit of fear. But I wanted to talk about why exactly are we feeling or are there these rumors and conversations about the ANC no longer having overwhelming majority? Right. So this is obviously only merely a guess. Maybe the 29th of May will show us differently. But there are many, many reasons in addition to just poor service delivery and load shedding and etc. And I think one of the very interesting reasons that we've seen developed over this year is, right, so known as mk, obviously at the time, the military, the armed military wing of the ANC under apartheid that has now been rebranded into a political party, which I personally thought was very, very smart. And the reason I will say this is because a lot of people have an allegiance to the ANC because it is a liberation party. And specifically in South Africa, it was the Liberation Party. And I think I've mentioned this before, but unfortunately not to cite Gandhi, but Mahatma Gandhi had said that in India, one of the things that the Liberation Party must not do after independence is run for elections. And the reason for that was because there would be that semblance of allegiance that the people will have which will then lead them to overly always voting, regardless of the failures of the parties in the future. Right. So we've seen this in a few. We've seen this in a few countries so far, specifically African countries as well. So that's what we're looking at in South Africa. And the reason I think MK is smart is because Nkonta, we see kind of tugs at your heartstrings for that allegiance. Right? So if you had any allegiance to the Liberation Party of anc, you will obviously have somewhat of an allegiance to its military, armed Wing. Right. And what was even smarter was then having former president Jacob Zuma be associated with the party now that he's associated with the party was somewhat contentious for many, many reasons. But before we get to the sexy reasons, let's start with the not so sexy reasons, which is mostly that apparently he wasn't even the founder of, but somehow came in and slid from the back and managed to get the founder actually kicked out of his own party, at least as the founder. And what I think is incredibly interesting has managed to become the face of the party. Right? And I think that's interesting because I keep seeing him the posters, even though spoiler alert as we are going to discuss he is not actually allowed to run for elections. So a part of me always did wonder whether the posters are somewhat misleading to the voters who probably don't sit here like boring little us on a Sunday night reading Concord Judgments and might not know.
- [36:20]
C
You don't have to specify that it was at night, actually.
- [36:27]
A
I mean, to be fair, the IFP can also be accused of misleading advertising as the person they have on their posters is literally dead fair.
- [36:37]
B
You know what? That's a very good point. And I think this is a conversation that voters should have another day. Who exactly should be.
- [36:44]
C
Yeah, he did. He didn't die. He multiplied.
- [36:47]
B
Oh, stop. Okay, okay. All right. But back to the point of why exactly is Mkonto Wesi's way so smart in addition to trying to pulling at the strings of your nostalgia, Right? I think the reason I mentioned that this might be one of the reasons why the ANC no longer gets an overwhelming majority. It's because if there's one thing MK is going to do, and if there's one party MK is going to get votes from, it's definitely the ancient. And part of that is because of the allegiance that people have with former President Zuma. You might say many things about former President Zuma, but if there's one thing, it's that he's very charismatic to many voters. Right? He attracts many voters and he is somewhat relatable to many voters despite them not having their own nkandla or three million wives. For some reason, he remains quite relatable to some parts of the populace, which I think we can concede and agree that this is probably why where a lot of the ANC votes will be going. But that then leads us to the saga that has been this year, which is truly endless litigation in light of voting. Right? We all know that during election year constitutional law gets even busier and sexier with a lot of urgence at the Constitutional Court. But so let's quickly talk about that before we actually ask, you know, Dan also for his opinion on this. But very briefly, there have been a few litigations, but the one that we're going to focus on first is the one between the iec, right, the Independent Electoral Commission and the when and President, former President Zuma and MK, obviously, right? So IEC is a Chapter 9 institution. It's in charge with running the electoral system. The rights that you see in Section 19 of the Constitution, which gives you the right to vote, right, and the right to hold office, etc, etc, is not functional without an institution that puts into place the, or the different, I want to say organization or organizational skills and the different needs for your vote to be put right. Like silly things like the ballot, right? Silly things like you being registering, you going to specific places, you knowing who to vote for, who qualifies, etc. Etc. So this was somewhat uncontroversial, except for this year, it became very controversial. What exactly does the IEC have the power to do? And the reason for that is because of a very specific section of the Constitution which basically says that if you have been sentenced for a specific amount of time for more than four years, it's an appealable, it's an appealable conviction. Etc. Etc. I'm not reading it verbatim right now. Dan's going to talk a little bit more about that. If that is the case, you cannot qualify to run as a candidate, right, for National, national assembly, you cannot hold political office, etc. Etc. The reason that is relevant is because, as you will all know, I hope former President Zuma was convicted and sentenced by the Constitutional Court for contempt. Right? And in essence, when he was convicted back then, at a later stage, what happened was President Ramaphosa had basically allowed the sentence to be. There was a remission, in essence, which basically means that it kind of suspends the sentence, right? And this is going to be very important. And what happens is instead of serving the full sentence, Zuma ends up serving much less. And the whole contention then becomes, can Zuma actually run for elections or not? And in essence, the IEC publishes these lists of people who are going to run for elections, one of them being Zuma under the MK banner. And other members start protesting it, saying that he's not actually qualified to vote, I mean, to run for public office. And the IEC essentially disqualifies Zuma and this is brought to the Electoral Court and that's what we're going to talk about. With Dan now. What happens next? Dan?
- [41:13]
C
Yeah, so, yeah, I think that that pretty much actually covers the preliminary issues or the preliminary, you know, events that lead up to this case. What happens after this is the MK and Zuma personally then appeal. Because what the Electoral act does is it establishes a very specialized framework for dispute resolution that pertains specifically to electoral matters. So the Electoral Court is established under the Electoral act to decide these kinds of cases. Right. And the Electoral Act Court, this is very important, actually, we should mention, because when we come to the. To the, to the meat of the thing, it will start to make sense. The Electoral Court is an ad hoc court. It doesn't exist like in brick and mortar. It exists on paper. It sits in mostly in Bloemfontein, which is where the President of the Court or the chairperson of the court is, because the president, the chairperson of the court has to be a member of the Supreme Court of Appeal. Chairperson of the Court at the moment is Judge Zondi or Justice Zondi, who also just interviewed to be the Deputy President of the. Of the Supreme Court of Appeal. So the MK and Zuma appeal, and they say that, one, Zuma is not disqualified because this is not a sentence that was contemplated, or is contemplated rather under section 47, and I'll come to section 47 1E shortly. And then they say, two, the Electoral Commission actually exceeded its powers when it purported to disqualify Zuma on the basis of section 47, because that section does not give. Give the IEC any powers. So they say that the power to determine who becomes and who does not become a member of the national assembly is a matter for the national assembly itself. And then thirdly, they say that the IEC in any event, was conflicted because one of its commissioners, Commissioner Janet Love, was asked the question about section 4701e and about its applicability to Zuma, and she answered it in a very particular way, saying that, look, if anyone is disqualified under 47E, they would be disqualified by the law and not by the iec. So this question actually isn't really for us because we don't get to decide who is disqualified or who is not. All we have to do is apply the law. So these are basically the three grounds that Zuma and the MK Party advance. So we go to the Electoral Court, and this hearing goes on for a very long time. And at the end of it, you get the sense that the Electoral Court is siding with Zuma. And one thing to mention about the Electoral Court, which is interesting, is that it is made up of have at least three judges and two non judge members. Now the two non judge members of the court are two professors from, and they were not at the same university at the time, but they are at the same university now. They're all at the, at the University of Forte, Professor Poko and Professor Makanya. All right, so, so the iac, sorry, the Electoral Court issues an order a day or so after the hearing and they say Zuma is not disqualified by section 47 and the decision of the IEC is set aside. Right? And they don't provide reasons. Those reasons only come about two and a half weeks later. So in that period, the IEC then appeals or applies for leave to appeal to the Constitutional Court. And they say, we don't believe that the Electoral Court, for whatever reason, we don't care what their reasons are, but for whatever reason they've, they reached the decision, they are wrong and they make a very simple argument. They say, oh, sorry, let me go back. Actually, a very big issue that comes out of the argument in the Electoral Court is the question of what does a remission of sentence do? Like, what's the legal effect? Right? So if you're sentenced to say two years and you get a remission of sentence for about 12 months, what does that mean? So this debate goes on for a bit. So does it mean that your sentence is reduced by 12 months if you get that remission, or does it mean that you don't have to spend that extra 12 months in prison? Which are two different things, right? If I sentence you to 12 to 24 months and a remission means that you, that you don't have to spend the other 12 months in prison. I still sentence you to 24 months, but you can get out after 12 months. But if the remission means that your sentence is cut by 12 months, then you have completed your sentence after that 12 months, right? And so this, this debate goes on back and forth. And eventually when the, when the, when the reasons come out, we find out that the court, at least the majority of the court, three out of the five judges agree that a remission of sentence has the effect of actually reducing the sentence that judges you are you, you, that is imposed, right, that the court imposes on you to serve. So this goes up to the Constitutional Court, the reasons come out eventually and we find out that there are three judgments. So the judges have different reasons for getting to where they're getting. Right? So the first judgment is unanimous, but it's only unanimous on one question. And that Question is whether the sentence that was imposed by the constitutional court on Mr. Zuma for contempt of court is a sentence that is contemplated in terms of section 47 1e. Now I'm going to read section 47. 1e. It says anyone who after the section took effect, is convicted of an offense and sentenced to more than 12 months imprisonment. Imprisonment, sorry. Without the option of a fine. Without the option of the fine. Oh. Either in the Republic or outside of the Republic, if the conduct constitution constituting the offense would have been an offense in the Republic. But no one may be regarded, and this is important, 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. And this paragraph ends five years after the sentence has been completed. So the question then becomes, because the sentence that was imposed by the Constitutional Court was not capable of an appeal because the Constitutional Court is the apex court in the South African judicial system, is it really a sentence that is Contemplated by Section 47 1e? Right. And very interestingly, the unanimous judgment of the Electoral Court says no. In order for your sentence to fall within the provisions of of 47 1e, it has to be appealable. And that's like the crux of the argument is that the sentence has to be appealable. If it's not appealable, then it's not a sentence within the meaning of that section. But this is very strange because what it essentially means is that if I get sentenced by the. Let's get, let's say we get sentenced for the same offense. I am sentenced to for contempt of court in the magistrate's court. Elisha sentenced for contempt of court in the Constitutional Court. I'm hit by the prohibition because I can appeal the, the, the, the Magister sentence, but Elisha is not hit by the prohibition because he can't appeal a sentence of, of the Constitutional Court. And that's the debate that eventually ends up before the Constitutional Court. But this, the second point I've already discussed about what, what, what the effect of a remission is. Right. So I don't know if you want to jump in at this point or if you want me to continue on to what happened at the Constitutional Court.
- [50:30]
B
Let's, let's just quickly pause. Yes, Elijah, come in.
- [50:34]
A
Yeah, my one comment for now and you guys can continue is Dan uses the word strange. I'd say it's like actively stupid to say that the Constitutional Court making rulings because they are not appealable means that it has Less effect than any other court reaching that point. And like the whole, the whole reason Zuma like challenged it on precision was because the whole issue begins with, well, obviously there's no right of appeal when there is no appeal court above the apex court. And then you have a while later saying, well, because it's not appealable, it's not even real. Just a bewilderingly stupid decision that was reached by the electoral court.
- [51:20]
B
No, fair enough. I, I also did think when, when Dan mentioned that we finally got the reasons and I was like, yeah, we might as well not have gotten everything at this point. I think it was better without. But again, also, let me, before we go to the concord, right, Let me set up also the scene for the concord, which is mostly that at this stage I want us to remember that I get so frustrated by this. But the Concorde is damned if it does and damned if it doesn't at this point. Right? Because Zuba has attacked the legitimacy of the court so much that obviously if the court finds against him, he wins in the eyes of the pop of the population anyway. Right. All along he said that it's not a, it's not a legitimate court. It's going through a legitimacy crisis. And they, and interestingly, he has written about the counter majoritarian dilemma, you know, I mean, not in so not under the same words, but basically about the fact that you don't vote for the judges. So how come they get to tell you, you know, whether a law is constitutional or not, but also with the exact same points as were had with the conduct judgment, which is that it, he said that he doesn't, he doesn't respect the legitimacy of the court. Right. Like he doesn't believe in its credibility. He will not subject himself to the court mind. Of course, towards the end he then says he was ill advised and had he known otherwise, he would have actually appeared in front of the court. But no one knows, you know, which parts of these statements we should believe. And even giving him the benefit of the doubt, my point being that it now plays into his arena perfectly. Right. We go to the Constitutional Court and this is the part I wanted to bring up. And Dan, when you're going to talk about it, I hope you kind of mention that, which is that there's already, he has painted this picture that there's bias against him in the court. Right? He's painted this picture and unfortunately by now up proudly standing up with the flag of being the first prisoner of the Constitutional Court. He kind of scores the mark by saying here you go, they are clearly biased against me. And obviously, now that this matter goes to the Concord, who is supposed to sit on it? Right? The exact same judges that he believes are biased against him. So he then does this magical, miraculous thing that Jope also does. Right? In essence, he asks for most of the judges on the bench, which. Whom obviously were all of the judges who had sat on the contempt of court judgment. He asks them to recuse themselves. And because of the apprehension of bias. Right, And I hope this is something you touch on, Dan, but I thought it was interesting that he also asked Justice Duran to recuse herself in spite of the fact that obviously her minority found in his favor. So clearly he's saying bias. Either way, that you even think about me and perceive me seems to be biased. But yes.
- [54:32]
A
The fact that I've been here before means that.
- [54:35]
C
Exactly, exactly.
- [54:37]
B
And sorry to all other applicants who've appeared in front of the Concorde many times. Sorry to the States who the court has found against many, many times, I'm sure.
- [54:46]
A
You again.
- [54:49]
C
Ah, damn. The Minister of Justice again.
- [54:53]
B
All the time. This is the thing. Not the. Not Ekurulani municipality again, trying to evict people.
- [55:02]
C
Prince Bro, three cases.
- [55:06]
B
Bias. Recuse yourself also. Every.
- [55:09]
C
Okay, but we're sorry, we're already ridiculing this, and we're y.
- [55:17]
B
There is no apprehension of bias on this podcast.
- [55:23]
A
Someone's legal team is special.
- [55:28]
C
Well, yeah, it depends what you mean by special, but anyway, so, okay, I have a declaration to make. So I work as the senior researcher for the Council for the Advancement of the South African Constitution. That's what pays my bills. Unfortunately, this podcast doesn't pay my bills, however. Yes, and we were admitted as Amicus Curie, which is a friend of the court, where you're allowed to make purely legal submissions in the question before the Court. And what we usually do is provide like, comparative research and comparative jurisprudence to say, you know, here are how other courts and jurisdictions like ours have dealt with this question, or here is how this particular provision of law is interpreted in other jurisdictions. And so I'm just declaring my interest so everyone knows. So when we get to the Constitutional Court, there's a flurry of activity. So the court sits on the application, first of all, for like, a week. They do nothing. Right. So we hear nothing for a week. And a week, by the way, is not a very long time, apparently, for the Electoral Court, because there are no reasons at this point. Everyone is filing papers. We're doing law. No reasons for. From the Electoral Court. Fine. So the case gets set down for hearing. The court issues directions to say, hey, if you oppose this application by the independent electoral Commission, let us know, file your papers. You know, civil procedure.
- [57:14]
B
Yeah, if we can maybe also talk to the audience about how exactly they could obviously go to the Concord despite not having reasons, etc.
- [57:24]
C
Okay, so in South African law, and a lot of people don't seem to know this, but in South African law, you appeal against the order that's given. So if an order denies you the relief that you were seeking in a lower court, you're entitled to appeal on the spot or to like, file an application for leave to appeal, or if you know you are appealing to the Supreme Court of Appeal, file a petition. Because what usually happens sometimes, especially in urgent matters, is the judge issues what is called an extempore judgment, which is an order that, that's just said from the bench, and there's no written judgment for the reasons. But you already know your legal standing. Right. So the law, and going as far back as 1948, unfortunate date, but that is, that is how far back the law goes. It says that you appeal against the order because that is what is operational in the whole judgment. Right. The reasons. This might be interesting for some other reason for, you know, for us, for academics or for court watchers, but for the party themselves, what they want to undo is the order. And so South African law allows you to appeal immediately once you know what the order is. So that's how the IEC gets to the Constitutional Court, Eli, because, and, and.
- [58:51]
A
Yeah, reasons are about like, you know, precedents, the rationale, how it should influence how other courts should behave. But you as a person, your only interest is how your rights are affected, the decision that is made. And so like saying that, oh, they might have made the right decision and I didn't have that interest anyway, but they did it for the wrong reasons would itself be absurd. And so, and in this instance, we were better off without the reasons because when they came, they, they did not cohere.
- [59:23]
C
Right. And, and, and, and the other thing is, and this is my own thinking about why this is the law in South Africa, is because on appeal you're not expected to come up with a brand new case, right? You're supposed to present the same case before a different court to say that the court's reasons, whatever they are, are wrong because the law is 1, 2, 3. And that new, that new court is supposed to give you a brand new re hearing, basically. But it's not, obviously not brand new because there's all procedure. And some things get struck out. Civil procedure. I am not a fan of that. I'm a fan of law, substantive law. My thinking is. No, my thinking is when you argue, and this is exactly what the IEC did, was to say, here's the case, here's the core of the case that we presented before the Electoral Court. Whatever reasons they may have had to reach the order or to issue the order that they did were wrong because the law dictates a different order. And that was literally the basis of their appeal. Right. So we get to the concord, and then all of a sudden this starts happening, and eventually the reasons come out. And the court says, okay, now the reasons are out. The IEC says, hey, can we file a supplementary affidavit? Because now we've read the reasons and now we know how much more wrong they are than we had initially anticipated. And then, then we get a counter application for leave to appeal. So Mr. Zuma and MK say, actually, the Electoral Court was wrong on, on several issues. One, the Electoral Court was wrong that the IEC was not biased and that they were competent to take this decision. Right. And then secondly, the. The Electoral Court was wrong to find that Mr. Zuma was convicted of an offense and sentenced at all. So they're saying, first of all, this man was not convicted or sentenced now.
- [61:43]
A
And they're making this point to the court that convicted and sentenced him.
- [61:46]
C
Exactly, exactly. But they, they do this very interesting thing where they say, look, we accept the fact that the contempt judgment exists. In fact. It exists in fact, but we don't acknowledge.
- [62:05]
B
Can I just say so we concede reality. Okay, we can go from there. We take judicial notice of your president.
- [62:19]
C
Exactly. They're like, yeah, we know you issued an order, but was it even legal? And along that they say, as Tanvir mentioned earlier, that the court is conflicted because I think five. I think five. Five or six of the. Of the current judges sat in the previous case. But what is interesting, actually, it's. It's two things. One, they asked for the recusal of Justices Majeet Ron and Chikli, Right? So that's, that's fine. But they don't ask for the recusal of Justice Matopo. Now, Justice Matopo sat on the initial case, Zuma one, which was about whether or not Mr. Zuma had an obligation to appear before the Zondo Commission. Right. So they say, no, no, no, he wasn't part of the contempt bench, therefore he's not hit. Which kind of is like, what's your Theory that you can sit in one case and not the other, and then you are released from, you know, from being hit by, by, by bias.
- [63:34]
B
Sorry. I think I, I, I think that to give them the benefit of the doubt, the logic is that you've sat on the case that sent, quote, unquote, sentenced the man, so you shouldn't be here. But again, this can't make sense. Right. Because obviously this is not an appeal of that case. But even if it were, judges hear appeals of the cases they've sat on all the time. I mean, look at the high court. Right. Allowing it to go up, but also contempt, obviously. But very quickly, just to say as well, that in particular, the arguments they used for recusal was that the court would be, those people in particular would be required to interpret their own judgment.
- [64:19]
C
Right.
- [64:19]
B
Which is insane because judges do that all the time, especially at the time.
- [64:25]
A
Yeah.
- [64:28]
C
I mean, it's, it's like legal innovation on, on steroids. We are, and it's a free fall.
- [64:36]
A
So all of, and all of the questions that they're asking is to be like, all right, side, you made a decision. We didn't like it, we acknowledge it. But what if you didn't make that decision? Or what if it was a, you were a different bunch of judges? Would you make the same decision? Let's go again. And there's a point in the IC's argument where advocate Mugai, Toby, keeps repeating, coming back to the question. So the question you ask is, is contempt a crime? Is it an offense? And the answer is yes, you have ruled that four times. And then keeps coming back to the refrain. You said so again and again and again. And you keep presenting the same questions of law by even entertaining this. And again, you have ruled this. And then, yeah, we're just back saying to be like, but what if you didn't say that? Then you need to repeat it for time.
- [65:39]
C
Right. I think, I think that's, that, that actually nails it on the head because in, so, okay, so here, here's how the hearing goes. The first part, which takes like three hours, and it was only made to take like an hour, but takes three hours. And the first part is about the recusal. Right. So they like, okay, so here's an application for recusal. You say we can't proceed, you being Mr. Zuma and MK, you say we can't proceed without having decided the question first. Right. So they say, okay, so what are you saying? Are you saying that this case firstly is about the Zuma contempt case? Mr. Zuma's advocate says, no, we're not saying that. So then they say, okay, so then what's the connection? Because we're here about section 47.1E, and as far as we know, this is the first time this question has ever come before this court.
- [66:32]
B
Court.
- [66:33]
C
And certainly Mr. Zuma has never been the subject of litigation about section 47 in this court. So what are you saying? They say, no. Well, how can you be expected to be impartial if you are the guys who sentenced him to 15 months without a trial, Right? And that's the contentious part. They're like, oh, yeah, without a trial. And it's like, no, we said he had a trial and therefore he had a trial. And you know, it's like, okay, but you. And they're like, no, we're not re. Litigating. We're not really to get. And it's like. But you are. If you're questioning whether or not he had a trial and whether or not he was probably sentenced. You want to go back to debating the contempt question. But that's already passed.
- [67:23]
B
I have a controversial statement to make, and I'm really sorry in advance, but I think the Concorde brought this upon themselves with Zuma 1 and Zuma 2. Why are we here? You should have just said, go back to the high court here. Because now 100 right now you've played directly into his game. As I mentioned, he's now the only. You know, the fact that this is. I mean, I'm sorry, Dan. This is going to be basically your new arch nemesis. Because the same thing we're seeing with Nkandla, right? Which is now we're having to undo Nkandla because of. We're now gonna have to undo Zuma 1 and Zuma 2, because it's now creating its own legal precedents that are now having us actually debate these things. Right. So, yeah, I just wanted to touch on that. But also very quickly, for these are for my law students now, I'm thinking this is the equivalent of if the court had actually decided that there is, like, you know, in Makwanyane, that there is. You are convicted of a crime, Right? That's the conviction of the crime. Looking at the sentence list, it says, okay, death penalty. And then Makonyane coming and challenging the death penalty. The court wouldn't need to recuse itself to sit on that question because that's a completely different legal question. That would be assuming that the court had some specific gripe with Mr. Makwanyane and wanted him in particular, to die, which is obviously not the case. Right. But also the worst part is if you. With the recusal, the legal team, former President Zuma could not show that there is any apprehension of bias, save for the fact that he was sentenced. That's quite literally it. Except for the fact that they applied the law.
- [69:14]
A
Exactly. Yeah.
- [69:15]
C
And like you said. You said earlier, like, judges interpret their own orders all the time. And there's actually law, like, there's a whole jurisprudence about how judges should interpret court orders. And it's like, even if that were a problem, there's law that you can refer to and say, think your interpretation is wrong, because what's that case? Genticuro AG or EEK vs Parsons or any of the other cases that say, here's how judges should interpret court orders. If you just came up and said, actually your interpretation of this order is wrong because of case number one, case number two, blah, blah, and this established line of jurisprudence, that's fine. That's a perfectly legal argument. But for you to come before a court and say, actually, you guys are ruled by your emotions, because actually, this is. I don't know if you guys read the papers, but they were. They were crazy, right? They say that, oh, yeah, the court used very strong and emotional language. They were very angry and very upset at the disrespect, quote, unquote, disrespect that Mr. Zuma showed, therefore they are convicted. And it's like, okay, do you think this is a playground? Like, do you think that the judges are like, oh, no, Mr. Zuma said something mean about us. Oh, no, we have to send him to jail. Like, is that your argument?
- [70:37]
B
I'm sorry, Is it? Didn't justice come back? Right, the judgment.
- [70:41]
C
Yeah, yeah, yeah. It's a good question. But they were like, not on the bench. You guys signed on, so.
- [70:48]
B
But also, this is insane. So then why ask Justice Theron to recuse herself? Because clearly she then was in the minority. But anyway, sorry, we are all getting distracted. Okay, debaters.
- [71:08]
A
The funny thing about the. The content disrespect argument is the word contempt is in the name of contempt.
- [71:17]
C
Exactly, Exactly. It's like, now you're committing double contempt. You're like, oh, yeah, you guys are not mature enough to actually do your jobs because you have a gripe against Zuma. And it's like. And, like, you could. You could sense it. I think Justice Majeet, love him, but he struggles a lot with, like, concealing his just, like, incredulity. He's just like, oh, my God. Is this really the argument that you're making? And you can kind of hear in what he's. His argument. So you're saying, Mr. Bofu, if I decide one case against you this week and you come back next week, I must recuse myself because that case was against you. And he goes, no, no, that's not what we say. And then he repeats, actually, it's because.
- [72:03]
B
You decide, I'm sorry, but this is, this makes the whole point of Prince, the joke you made about Prince even more brilliant.
- [72:11]
C
Exactly.
- [72:12]
B
Because they found against Prince the first time.
- [72:15]
C
But then afterwards, it's also why, like.
- [72:19]
A
Advocate is so good, because it's, it's, it's so hard to rule against him because it's almost impossible to pin down what his argument is like. But it's just, like, interesting and engaging. But then you're like, you can't fault his legal position because it keeps changing. Like, you know, like, you talk about, like, shifting goalposts. You can shift them like three times in, like, consecutive sentences. It's magical.
- [72:46]
C
Like, yeah, but anyway, we're getting stuck on this point. The, the bottom line is that the court says after like, two hours of argument or three hours of argument, they say, no, we're not going to recuse ourselves, so let's move on to the merits. And this is where things get interesting. So was representing the IEC and had been representing the IECH from the electoral court stage. And his argument was pretty straightforward. 1 Section 47 is quite clear about what it refers to. It says that anyone who's sentenced, right, to imprisonment of 12 months without the option of a fine is disqualified. That disqualification ends five years after you finish that sin sentence. And then he then. Oh, and then he took up the separation of powers argument to say that separation of powers says or dictates that once a court has handed down a final sentence, the sentence is final, no one can change it. It has to be administered. How it is administered is for the executive, Right. It's for the parole board, it's for the correctional services, it's for the president, depending on what power is used. Right. And the power of remission, which is very interesting, by the way. Remission of sentences is a unique power from the pardoning of offenses. So a pardon is almost like a clean, just like an expungement. Right? So you, even though factually you can never change the fact that you were stried, convicted and sentenced. What the president can do is take away the legal disqualification of that process. Right?
- [74:43]
A
Clean your record.
- [74:45]
C
Clean your record. So for example, the most famous case of, of, of pardon in South Africa is that of Mr. McBride, Robert McBride. Robert McBride was an MK operative engaged in act acts of, of public violence against the apartheid state, one of which ended up in a murder and was convicted, sentenced. And then after 1994, and not through the TRC amnesty, but received a full pardon from the President. And then later on there was a case, I think it was the Citizen newspaper that referred to him as a murderer. And he later a charge of, of defamation to say, but I received a full pardon. You know, I'm not a, I'm not a murderer. And what the court says is, well, you can enjoy all of the, all of the benefits of a pardon, which is that you don't have a criminal record. There's no, you know, there's no official record of you being sentenced for murder and serving whatever time you are. It's basically like as if the crime didn't occur. But what you can't erase is the factual reality of you having been actually sentenced and tried for murder. Right? But the legal effect is to undo everything that the court has done. Right? And that's why like a, a pardon is such a hefty or, or such a serious thing that the President has to do right. In the exercise of their power. A remission is much less than that. And the President isn't the only one. Oh, this is important. Only the President has the power of pardon. But the power of remission is shared with other bodies like the parole board, sorry, Correctional Supervision and Parole Board. So they can also grant remission of sentence. So the question about the effect, the legal effect of a remission actually speaks about, speaks to rather the breadth of the power. Right? What can you do with a remission? Is a remission simply to allow you to leave jail early or to alter your legal position vis a vis the disqualifications or disablements, if that's a word that come with being a convicted criminal. And that's what this question turns on. And what the electoral court had said was, well, the power to grant remissions at least as it applies to the President, is a power that's contemplated in section 84. 2J. And they said if that power is in the Constitution and it can't be a problem that it undoes what the court has done, which is like, that's not how you're supposed to reason. Like you, you don't go. The President appointed the National Director of Public Prosecutions. That's a power that's in the Constitution. Therefore A court cannot undo it. Like, that's. No, that's not, that's not what the law is, right?
- [78:01]
B
Have you made separation of, of powers, checks and balances?
- [78:05]
C
Has anyone met separation of powers, checks and balances actually is the real question. But, but, but these are the two arguments. And then the third argument, which actually arises later, is the court sends out directions to say, in the case of Commissioner Love, who is alleged to have been biased, prejudice. Mr. Zuma, what, what are your submissions? Right. So they say, should she have known that this disqualification or this, this objection to his, his candidacy would come up? Should she have recused herself when the disqualification came up or when the objection came up? Should she have expressed or answered the question right? When, when the question came up in the media briefing? And if so, or if not, what effect does the fact that she answered this question, if we do find that she was biased, what effect does it have on the IEC's decision? And then the last question was, can this court substitute its own decision for the decision of the IEC regarding the eligibility of Mr. Zuma? So can we step into the shoes of the IEC? Right. Pretty straightforward, right? So MKs and Mrs. Zuma's argument. We've already discussed the recusal. The second point was, of course, Commissioner Love, they said Commissioner Love prejudged the whole thing because she said, if anyone is disqualified by section 47, that would be the law. And, you know, the IAC has nothing to do with that. All we do is implement the law. Oh. But they also questioned, and this was a very interesting part of the argument, which I thought it was a little bit touch and go for me personally, because I'm a hardcore textualist and I need text. They said, well, there's nothing in the Constitution or the electoral. Electoral act that says that the IEC has the power to administer Section 47. And I said, very interesting.
- [80:20]
B
I also have thoughts on this, right? Because I also was trying to find out where's the, where's the authoritative provision, right? And obviously, is it just in the breadth of the IEC's general powers or whatever? But I'm sure you're gonna touch on that. The main convincing point of me for that, for me was the counter argument, right? Which was that if not the iec, then who has the power? And if it is the national assembly, it ought to be the national assembly properly constituted, which cannot possibly be if it now involves someone who is not qualified to be in the national.
- [81:02]
C
Right. And this is the problem with the MK's argument, is that the counterfactual or the counter argument is so logically impossible. You're like, like, even if I wanted to give it to you, I can't because your alternative doesn't make any sense. Right? So the argument that they were making was like, no, the national assembly decides who is eligible and who is not eligible to be a member. But when you read the Constitution, what it says is, who can be. Oh, firstly, what happens at the first sitting of the national assembly is you swear in all of the new prospective members. And in addition to that, the Electoral act has a whole complaint, not complaints, but an objections procedure where you can object to people's eligibility for that particular office. And so by the time that the national assembly sits, it is assumed that everyone has gone through the process of elimination and that everyone who's there is, you know, qualified to be there. And the point that the IEC was making is there's no, like, interim procedure. There's no, you know, there's no preliminary step to the national assembly sitting for the first time because the first call of business is swearing everyone according to the party lists. And so what happens is that the, the IEC and the court, in its judgment, draws on the IEC's general power to determine the eligibility of candidates. And so it starts with Section 30 of the Electoral act, but then there's regulations and, like, schedules to the act which say that a party, when it submits list, needs to make sure that everyone on the list is qualified. Everyone has signed the declaration. And part of the declaration is, I am qualified to be a candidate for the National Assembly. And so their argument was, well, if you sign that declaration, then it means that the IEC has to check whether or not that is correct, right? Whether or not you who actually are qualified to be. To be on the list. And that's in section 30. And so it seems to me, and this is now the law, that the power of the IEC to administer Section 47 1e comes from Section 30 of the Electoral Act. Oh, yeah.
- [83:53]
A
I think, as you guys pointed out, the problem with the argument is if you imagine the reverse, or like Tanvir was saying, is that. That it would be an absurdity. Like, if not the iec, then who. But also, like, more importantly, what would the IEC exist for if it isn't able to disqualify unqualified candidates for the election before it is something which is moot and effectively, like, irreversible. And so it does get, like, jurisdiction backwards. As if, like, when you're supposed to administer something, you need to have been granted express authorization for every single possible ground upon which you can make a determination when you've been given the power to make that determination. But I do also think so like the iec, everybody has talked a lot about how like going into this election, they're like a national treasure, one of the few institutions that actually works and everyone thinks they're great. And besides this, you generally haven't had any accusations. No one seriously believes that they're biased or corrupt or inefficient. But the thing is, with the Constitution's love for like or fetish for like chapter nine institutions and like specialist organizations, there is a bit of a confusion of why the hell do you have an electoral court and why is it made up of more than just judges? Because the IEC has, is the administrative agency which makes the interpretive determination on whether or not a person is qualified. And so like very similar to like the US's Chevron deference laws. When an agency has a look at the mixture of like policy and, and law to make a determination on something appealing, that is certainly a legal question at that point. Why shouldn't it just go to the courts? Why do you need to have an electoral court as well? And the awful, awful, awful reasoning of this ad hoc fictional court being so in contrast to the IEC actually doing its job is I think points right back to the fact that it makes no sense to have two, an agency above the agency and calling it a court, which is very different to other like specialist courts like the labor courts and, and that whole regime. And, and in the absence of that, that coherence, that's why you have like so little jurisprudence. And the constitutional court has to like suck something out of, like out of their thumbs to say, but like logically this is the only way to give sense to the regime, the constitutional regime.
- [86:44]
C
Right? So, so I think you've, you, you've, you've, you've, you've, you've struck onto something that's, that's very interesting and that has been kind of my obsession lately is like the difference between appeal and review. And it's like spoken about a lot in like administrative law, but like I don't think we theorized it enough and people are like, oh no, yeah, I know the difference between an appeal and a review. And the point of, and I think the point of the electoral court having non judge members is the idea that they should have some kind of administrative expertise because you get an appeal that necessitates a reconsideration of the initial decision in full and not, not simply like you Know the, the review kind of was it legal? Were the reasons cogent and this and this and that. It's like a wholesale rehearing of the initial decision. Right. But I don't think the admin. And I'm sorry to say, but I don't think the electoral court does it well, I don't think any kind of. I don't maybe like the tax court is, is the, is like kind of the kind of model that we've, we've had that where you get like a taxpayer gets a complete rehearing of the case that they put forward to, to SARS in the first place because it's made up of judges, of accountants, of ex practitioners. It. They get to render a new administrative decision and then you can only take up matters or questions of law on appeal. There's an interesting interplay between the administrative state and like the question of judicial review and what the limits are there. But you know, we don't have time for this. This is. Right, we can, we can get into at a later state. But I just want to talk about the judgment itself. So.
- [88:48]
B
Yeah, I mean quickly before you go to the judgment. Yeah, very quick thing I wanted to say about the alternative argument. Right. And then we can talk about that. About the judgment. Doesn't really talk about that per se. But I thought it was interesting the idea that obviously we're talking about a political party now and no one votes for someone in a political party, right? You don't vote for your president, you're voting for your political party. But if we were talking about 47.1e in relation to an independent candidate, right, and the voters went to vote, let's say Zaki Ahmed because he's always the independent candidate. That comes to my mind in the Western Cape, right, You're going there to vote for Zaki. And Zaki's now been convicted of an offense and God forbid, sentenced to blah, blah, blah. Right. We're questioning his eligibility to run for public office. You say the IEC can't disqualify him. I go and I vote for him. And then the national assembly decides that he no longer qualifies. Right. All our votes essentially go to quote, unquote, waste, which we all know the point of, of voting is that the minimum amounts of votes is supposed to go to waste, etc, etc. But also, I'm sorry, but as a voter, the legitimacy of now, the voting system that I just went through and the elections are completely bashed, right? Because the person I went to vote for, now the national assembly, like on A large scale that would absolutely be absurd. As we've mentioned already, I think we don't think about it as much because obviously Zuma was part the of a party and the assumption is that people aren't voting for him. But that was also when I made the joke about his face being on the poster. That's kind of what I was thinking about. Right. Sometimes you do vote for a party because of, of someone. A lot of people vote for EFF because of Malema. Right. They don't necessarily know every other person who's in the party. So I just wanted to touch on that. But interestingly, the judgment doesn't necessarily talk about the aspect of the absurdity of the, the other option. Right. Dan? Yeah.
- [90:48]
A
To speak as the team being like self created jurisprudential conundrum for, for the court. I think a whole other question is whether voting for an independent candidate in itself nullifies the, the franchise that the voters have, which is another regime which was just created by the court on a whim, an overreach and mistake. Wow.
- [91:14]
C
Well, those are strong feelings.
- [91:17]
B
Not wrong strong, but not wrong feelings.
- [91:19]
C
Anyway, I'm going to, I'm going to reserve my comment here, but what, what, what I, I want to say, and I think you bring up a very important point because my whole argument was going back on Twitter arguing with people about whether or not this case was urgent. My thing was if you were to disqualify, quote, unquote, Zuma after the election, after he has actually gained a right, an entitlement to take up a seat in the national assembly and you say he's disqualified, that to me would be illegitimate on the part of the iec because I'm like, voters have made their choice. Whether you like that choice or not, your role is over. Your role is to hand over the list, lists of candidates to the, to the, whoever's presiding, the Chief justice, to say, swear these people in, they are the elected candidates. So the argument, the idea that this could happen anytime before the election is to me completely just like ridiculous. Because at what point and where does this power come from? And what about the institutional and democratic legitimacy of the IAC to take someone out of an office that they are now, and this is important, they are now entitled to occupy because at this point Zuma is not entitled to take up a seat and he's not entitled to be on the MK's party list if he does not meet the requirements. And because he doesn't meet the requirements, we can take him out. But once the election is over. And then you come and say, oh, yeah, we've got this nice little section 47.1e that says you can't. And then he's like, but I've been voted in and I'm at the top of my party list, like, where, you know, what is the legal basis for that? What is the moral and democratic basis for the IEC to interfere with that, with that question. But I just want to, let's, let's, let's move, let's, let's move on from this question and talk a bit about the judgment. Which, which one? It's unanimous and it is written by Justice Theron, and Justice Theron, as we know, was one of the two dissenting judges in the contempt case and then later in the precision case.
- [93:44]
B
Justice yeah, let's quickly talk about that as well, in terms of what the judgment meant. Right. Like Dan did a disclosure. My disclosure is that I was Justice Theron's clerk, so I tend to, to be quite biased about her. But I thought it was a very important judgment and very important that she wrote it, because obviously, if anyone has watched the hearing, the line of questioning would lead you to think that this is not the judgment that if she were to write one, was going to be a unanimous judgment, finding that Zuma is actually not qualified to run. Right. I think in that moment, what I was worried, very worried about when I heard it was going to the Constitutional Court, was that we, again, will have a split court or at the very least dissent. Right. Which again, gives legitimacy, I think, to former President Zuma's arguments and his legal teams and trying to discredit the court. Not to say that that should ever be a reason not to write a dissent. Absolutely not. This is just me saying in terms of the perception of the court, so already when I had heard that there was a unanimous judgment, I was absolutely shocked based on the line of questioning, but even more shocked to hear who wrote it. But I think it was a very good, actually a very good moment for the court, again, to speaking to the legitimacy of the court and the importance of that judgment coming from the same judge who wrote a minority, which that same legal team relied on a lot actually. Right. And throughout. So, yeah, Dan, maybe you can run us through the different parts. Parts of the judgment as well.
- [95:18]
C
Right. So I'm gonna put a little bit of a dampener on, on that. The very optimistic of the unanimous judgment. Look, I think it's important. First, I agree with you. I think it was important, specifically Justice Theron to write this judgment, and I Also thought it was very important for the judgment to be unanimous. Right. Because as you said, in the past, most people have tended, I think the general public kind of misunderstands the importance, the role and the function of a minority judgment. And, and it's kind of been elevated that the one minority judgment has been elevated to the level of Scripture to be like, oh yeah, Justice Theron said it's unconstitutional, therefore it's unconstitutional. And it's like, but she was in the minority. And so it's not unconstitutional. It can't be me. But I thought it was very important and I, I, I, I was, I was contained until I read paragraph 54 of the judgment where, where, you know, where she says basically that she stands by why she said at, at footnote 50 I stand by my descent and the contempt judgment and the reasons underpinning. But I do rec. Respect and acknowledge the decision of the majority as the final word on this issue. AKA I thought that was very interesting. And you know, we can, we can just leave it at that. But I, I, I think no, no, no.
- [96:52]
B
I want to say that I'm glad I made a disclaimer in the beginning because I have no problem with that. Footnote. And actually, funny enough, when I saw your tweet, I was like, what's the issue? I don't see what the problem is.
- [97:05]
C
The issue is it's absurd.
- [97:07]
A
Like when you talk about like the public's fin, like the credibility of the court is, it's what could be more undermining than questioning whether a judgment is a judgment, whether like the rulings of a majority are actually law. Why are you going out of your way to say I would have made a different ruling. It's a minority opinion. It's not a judgment of the court. It might have like presidential value. But to come back in the argument that you fail to convince your colleagues on and to say the law shouldn't be the law, in my opinion, but they get the final word. It's not the final word. It's a ruling which now enjoys the authority of the apex court and therefore is what the understanding of like the is the constitutional common law. And who gives a what your opinion was and whether you would have had a different situation.
- [98:00]
B
I raised you, I raise you. And Dan has to agree with this. Justice Jafta and Udakral, I am sorry, it's not the first time a judge has said, I stand by my minority regardless of the fact that the majority is law.
- [98:19]
A
It's not your writing, but you're writing for the court. Yeah, that was also, I think.
- [98:25]
C
Yeah, yeah, but I think, I think, I think Elisha's right that. But it's different in that Jafta actually never got to write a majority judgment on Oudocroll that the court joined on. Right. So he. I know because I'm the authority on JAFTA and Odegaal, but I have read all of his judgments and never once, not even once has he ever gotten a majority where he gets to apply the law as decided by the concord faithfully to say that this is the law of the Republic, this is the law on autocrell, and I'm now applying it. He's always been in the minority.
- [99:07]
B
Someone agrees with his take on.
- [99:09]
C
And that's. And that's perfectly fine. But when you are in the majority, you are. You haven't like the unanimous consent of all of you.
- [99:17]
A
Footnoting a question that's not before the courts.
- [99:21]
C
But. But what I thought was. Was really interesting and maybe a little bit disturbing was that justice the Ron does not say that Zuma too is the law on contempt, which it is. That's the law. That's the law that everyone else, all the high courts, the Supreme Court of Appeal. That's what everyone is applying, even the magistrate's court. That's what they apply. And by the way, the. I think it was the high court in Pretoria sent someone to prison on the basis of Zuma too, because she failed to. She failed to comply with a court order at least. Okay, it was more than twice in. In her case. But it shows you that this, the law has changed. What, what the law was Presuma 2 is no longer that we're not concerned about that anymore. So for her not to say I am bound by the law on contempt as decided by this court in Zuma too, that for me is scandalous and it's a problem.
- [100:25]
A
Agreed, Agreed.
- [100:26]
C
To disagree. To disagree.
- [100:28]
A
Just because the court takes contempt every year doesn't change the fact that judgments are judgments.
- [100:34]
C
Exactly. But anyway, this is a red herring. We shouldn't even be talking.
- [100:39]
B
We are getting distracted.
- [100:41]
C
Because we are getting distracted.
- [100:42]
B
Moderator and I have conflict of interest.
- [100:46]
C
Right.
- [100:46]
B
But we will move on. So I apologize.
- [100:50]
A
You have, you have conflicting conflicts of interest. And you know how this is true.
- [100:56]
C
This is true. But I did want to mention something that I thought was interesting and okay, I might have contributed to this a little bit. I've been doing a bit of research into the proceedings of the Constitutional assembly and what they were thinking when they were drafting this constitution because my master's research is on the Constitution. But then I came across discussions about section 47, what eventually becomes section 47 1e, and what the drafters were thinking about. And then this took on a life of its own, which I think, to his credit, Acting Justice Belchert kind of nipped it in the bud because he was like, to Ngaitobi, hey, what is the importance of. You referring to, like, the travel prepare.
- [101:47]
A
Which is like nickel committee.
- [101:49]
C
Yeah, the. The preparatory material when drafting the Constitution. What weight should we give to this? Right. Oh, God. This is why everyone hates the French. But what was interesting was because he was pushing Temega to say, you should say that we're not doing originalism, which I thought was very important to say that, you know, yes, we're referring to these background materials, but they're only background materials, and they should not dictate how we interpret the section. Yeah.
- [102:26]
A
Some textualist you are, Dan. You introduced legislative history.
- [102:33]
C
No, no, but a textualist does not look at legislative history. Hello. You look at the text itself. It's not.
- [102:40]
B
It's.
- [102:40]
C
It's.
- [102:41]
A
Actually, you betrayed textualism.
- [102:44]
C
But. Well, yeah, but like I said, I had a vested interest.
- [102:51]
B
Sorry. To the audience, I can't seem to get the debater out of Elisha. So this is gonna keep happening until I can beat it out of him eventually.
- [103:00]
C
So, sorry, Dan, but I'll try. Just say that the use of. I was very happy with how Justice Theron used the minutes of the. Of the. Of. Of the technical Committee to simply say that, you know, we can look at this as. As evidentiary material. We don't have to rely on it, but it can give us an inkling as to what is plot, what is a plausible interpretation of section 47 1e and what isn't. And I thought that was a really nice way of, like, balancing, you know, the very strong originalist urge to say, no, that's the final word, and the court should be bound by it. But also saying that, no, we should dismiss it and kind of just think about it. Otherwise, the last thing that I want to say about specifically, which we haven't spoken a lot about, if you haven't been following, is the actual interpretation of section 447E, which is. Is Justice Theron saying that. Okay, sorry, let me take a step back. What Mr. Zuma and the MK Party had argued is that the fact that it says no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined means that if there is if there isn't, rather, sorry, if there isn't an appeal against conviction or sentence, and in this case there wasn't because the, the conviction and sentence were imposed by the Constitutional Court, then you are not hit by the section. But what she says is that argument actually reads into section 47 1e the word unless. Right? So it changes the word until into unless to say that unless you have appealed or you can appeal against sentence and conviction, then you're not hit by the Section 47 disqualification. But what she says is, no, the Section 471E qualification proviso, rather is only aimed at securing finality. So what it says is when does this qualification kick into place? So it's not immediately after the magistrate sentences you. It's until you have exhausted your appeal processes, if you have any, or the time for appeal has elapsed, or in the case of the Constitutional Court, it kicks in immediately because there is no court above the Constitutional Court. And I thought that was a really important point to stress, to say if we accept, which we have done since the beginning of South Africa, cursed as it may be according to the anti constitutionalist, the constitutional abolitionist, but the law has always been that a court is within its right to, to punish a contemner for contempt immediately. And it doesn't matter what, at what, what level that court is in the hierarchy. Obviously there are unique courts. For example, the SCA can never do that because all it hears is appeals. So it's not its decisions, it's the decision of the lower court. But the Constitutional Court is in a unique place because it can hear direct applications, bypassing even the High Court. And so even, even when it shouldn't, Even when it shouldn't. And, and, and, and this is the argument I was making earlier on in my life when I was, I still cared about whether or not the court was acting properly, was like some cases you should just send to the High court, be like, yeah, yeah, yeah, yeah, yeah, go back and then you come up or you'll lose team or whatever. This power is constitutional. It's there. And when people exercise their right to come to the court, they are entitled to an order and to a remedy. And this is what the court did and was perfectly legal.
- [107:17]
A
Despite what oral argument might suggest. And one stray footnote, even Justice Duron does believe in finality.
- [107:25]
C
No. 100%.
- [107:26]
B
Yeah, I was gonna say, let me just butt in before Dan pisses off all of the legal fraternity starting off with the abolitionist and the originalist and keep going down the line, but I Think tag teaming with Elijah doing a great job there. I thought it was also interesting how the court basically obviously uses the purpose of the section to make the argument of turning until and to unless. Right. And I thought it was very clever to use the point that, that by allowing direct access already, you are implying that there will obviously be times where there will be sentencing that will not have appeals. Right. And it's not obviously about the sentencing not having appeals in any event. Right. Because obviously the whole purpose of this section is to qualify the right that you have in section 19, which is to hold office. We accept that even people who've been convicted before can hold office. But even that right is not unqualified. It has to meet the circumstances of 47.1E. And with that respect, what 471 says regarding your conviction is that it obviously has to have had some finality. Right. And the finality lies in the appeal, which obviously is the case that you should not be still awaiting and overturning of your conviction. Right. Which obviously makes sense because then your, your conviction would not be final. And then like, this is kind of what Dan was referring to earlier when saying once you do have the right to hold office, it becomes very hard to qualify that. Right. It becomes very hard to remove it. Which is why 47.1e is so careful to say that, like, look, it's not. It can't just also be any sentence or whenever during your conviction. It has to be after all your appeals have run through, if there are appeals, that is your conviction needs to be final and cannot change down the line because obviously elections are also very time sensitive. Right. You've now been convicted the month before the elections or the month before the lists are going to close with the iec. You're still appealing. Are you allowed to run or not? That's going to depend on 47.1E. Right. So I just wanted to touch on how I thought it was very nicely done, tying in the purpose with the reading in of 47.1e, which obviously is what's supposed to be done anyway. But the court doesn't always get that. Right. So I wanted to say that. Yeah, that was pretty good.
- [110:07]
A
Yeah. And. And because as a matter of fact, and as a matter of law, Zuma was, was convicted and sentenced by the court. And the fact that it wasn't unanimous doesn't mean he was 80 convicted and it doesn't mean he had to go to 80 of jail. The, the order, the dissent, the existence of dissenting view doesn't change the reality or, or the, the Effect of what? What the Court exercising its power and now having to interpret what that exercise meant.
- [110:43]
C
Right, right, right. Yeah. So. So, so I think. I think you're right and I think the Court makes a very important point about the purpose of 4701E, which is that you can't have someone be an MP who does not respect the rule of law and does not respect the apex court of the Republic, which I thought was, you know, it wasn't a point that had to be made, but apparently it did.
- [111:07]
B
Did.
- [111:07]
C
And the court very clearly says, no, you cannot just disrespect a court, be in contempt and then, you know, go to Parliament. There has to be some form of consequence. I wanted to bring up something, but it's a little bit conspiracy theory adjacent, so I won't. But just to say, just to say, I thought, I thought the Court's interpretation of sections and was very straightforward on a textual level, on a purposive level, even taking into account the constitutional history on all fours, acceptable. And yeah, I think it's very difficult to quarrel with, with the reasoning of the Court. Of course some people will, and I wish them well, but I think it's very solid. And yeah, a very interesting decision at a time when the courts are in a very difficult spot. But also, this is the most contested election that we have seen, at least in my lifetime. And I've been alive for less than democracy has been.
- [112:22]
B
You've been alive for most of democracy, right?
- [112:25]
C
For most of the. Yeah.
- [112:28]
B
But also, listeners bear note that Dan saying the judgment is respectable is the highest praise any judgment, any judgment will ever get from Dan. But before, before we close off, maybe if we could have just a one parting shot, I think on two things very quickly, and I hope one of them doesn't actually lie in your conspiracy theory, Dan. One of them being what do we think this means for the Court's legitimacy? Right, we kind of touched on that already. But let's quickly just talk about that because we all know with the elections coming up, there will probably be a lot more cases as well after the elections, questioning the elections. And then the second one is, what do we think this actually meant for Zuma? Like did. Because I think most of us did assume that even if he could run, obviously he wouldn't take being an MP and get rid of his privileges as a former president. Right. And the reason I mentioned this is again, what about the credibility of the court? Like, how much are we playing into this politics arena that we ended up into? Not just because of the 17th amendment because this is deeply a constitutional issue. Right. But again, that we ended up into because of Zuma 1 and Zuma 2. Elijah, I don't know if you wanted to say anything on that.
- [113:55]
A
Yeah, I think that's part of the reason this election is so important and this case was so important to be decided by the Court because it's a first and a unique type of challenge to the legitimacy of the Court. Just a few years ago, Clarking in 2017, part of, like, like, as you know, the activities of the Court would be on, on weekends to contribute to, like, constitutional education and constitutional literacy. And what I always used to say when trying to help high school kids understand the significance of South Africa's constitution was to say that, like, you know, for now, every party across the board actually is pro the Constitution. They disagree about, like, what the best interpretation of it, but they're all in a race to be the party of the constitution. And so it's. So although there are like, some criticisms at the time, that was a fringe thing from, like, four lists and like, people who mostly thought leaders, but the MK party being the first, I think, to openly say that, like, we would scrap this constitution and constitutional supremacy is a mistake. And the litigation and the practice of the contempt itself being such a full frontal, like, direct attack on the Court is something which is quite significant. So. And unprecedented. But I think the mistakes that have been made in the past have come about like, you know, how the Court exercises its own, you know, its own rules for what cases they consider justiciable, the administrative parts of what they treat as urgent, what step where they grant direct access. And I think all those parts of administrate court administration will turn, like, quite heavily on who, what the leadership of the Court is going forward.
- [115:44]
C
But as far.
- [115:45]
A
But jurisprudentially, if there is any attack on the Court's legitimacy, it won't be for legal reasons, because this case wasn't a particularly difficult one and it was handled quite well, I think, by the Court as a jurisprudential man.
- [115:59]
B
Oh, thanks for that, Elisha. I think that's a very good point. I hadn't thought about the fact that, yes, this will be the first time where a party is openly, you know, contesting the Constitution itself and being so open about wanting to strike it down. Right. I thought you made a very interesting point about the Court's discretion, because at the 17th amendment, the court was given discretion so that it may reduce its caseload. And turns out it used the discretion for the complete Opposite. Right. I've said this before, arguable point of law stands for. Is it sexy? Yes. So we'll put it.
- [116:35]
C
Yeah, exactly.
- [116:37]
B
But Dad, I don't know if you want to share anything on that.
- [116:41]
C
Yeah, so I think so I think Elisha is completely correct that, that this was not a difficult case. I don't think it was, was at least jurisprudentially as contentious as one the direct, you know, the, the, the, the decision to go directly to the Concord to ask for a contempt order. I found I thought that was completely out of line and that the court should not have heard it. But that's water under the bridge. But I think this case is quite straightforward. I don't think that people who are like serious, you know, good faith interlocutors and good faith interpreters of the law can argue that the court could have reached a contrary decision. I think it was pretty much written in the stars that this is what the law is. And surprisingly, those are the people now who, you know, they say, oh, the court is making law for Zuma. But they are the people who actually wanted the court to make special law for Zuma and say, oh no, Zuma's not disqualified because he's special somehow. But I think it's, it's good that the court did not do that. I also think it's good that the court. One, we, we've already, we've already spoke, spoken about, about the fact that it had to be Justice Theron. Actually, people are saying, Let me just say this. People are saying Justice Theron was bullied into writing this judgment. No, she was not. One thing about Justice Theron that you would need to know is that she cannot be bullied.
- [118:09]
B
And she will not be going to say. Clearly people who said that do not know Justice Theron because. Yeah, I'm sorry, I just want to quote. There is one judgment, if I'm not mistaken. It's under the, the name of Krueger. And this is the one judgment would happen without hearing where Justice Theron has a minor, has a dissent that says that she refuses to write a judgment because the court should have heard the matter. And this is what I'm talking about. Justice Theron will never be bullied, lead into writing something she doesn't believe in. She will stand by what she says.
- [118:39]
C
Absolutely.
- [118:40]
B
As for the footnote.
- [118:44]
C
Exactly, exactly. So let us dispel that myth today. And, and because we know how cases are allocated, we know that she was the scribe form from, from the get go. And so I just, I think that there was a lot of, and again, I don't want to play into conspiracy theories, but in 2021, when the court agreed to hear the rescission hearing, you know, people were like, oh no, they're so scared now. They're backtracking, blah, blah, blah, blah, blah. And obviously they didn't do that, but that, that was a perception problem. But now this time around, there's the perception that the Electoral Court bend itself, bent itself into, into, into uncomfortable positions to accommodate Zuma, which is, of course, unfounded. When you read the judgments, especially the two other judgments, not the judgments of Judge Zondi, I think that there was genuine confusion about what the law is, because it certainly confounded me. And so, you know, I wouldn't attribute that, such a motive to that court. And I think that's important to say, to say that that again, this is the first time the Concord has ever had to decide this. And it's not like the, the, the Electoral Court ignored what the Concord had said in a previous case. There was no case law before this. And so they were charging their own path. And maybe they did so wrongly. Fine. The Concord has now settled the matter. I think there's no question of the court's legitimacy. I think the Chief justice did well by not sitting in this particular case. And I think, think that given the, the, you know, the very warm and kind of like uneventful acceptance of the judgment across the board, it seems like the court, the court has, has acquitted itself well. And yeah, I, I, I just want to say I would hate for this to be the, the, the state of every national election. Like, people run into the Concord. I don't, I don't like that at all. Or so maybe, you know, Electoral Court, let's, let's do something about you, Mama. Let's, let's fix you a little bit. You are, you are the girl. You are the girl. And that's, that's all I've got to say.
- [121:03]
B
I, at the beginning of a Dan's answer to the question about legitimacy, he said, elisha, you're correct. So I think this is my cue to end the podcast.
- [121:14]
C
Yes.
- [121:14]
B
Before he get it wrong again. So let's just stop it here. And then he also, Dan predicted that, like, oh, he hopes, you know, nothing else comes out of it. But as Elisha mentioned, we'll men, we'll meet again. The next episode. We're going to talk about Zuma appealing the judgment to the United Nations. I think Security Council. I have no idea. No. Human Rights Commission. I think he said no. Not a mechanism that he is trials or judgments or court, whatever sessions, by the way. So really excited to see how this pans out and very, very keen. Maybe that's what we'll discuss next episode. But thank you so much for joining us. I'm sure you can tell we had a really good time. But just as we are going to be more regular with our episodes, I know that someone once complained that it's very hard to hear all of us when we're all laughing at at the same time. I'm sorry. We are friends. I apologize. I think many people are sorry.
- [122:17]
C
We are friends and that's like real.
- [122:21]
B
But we will see you for the next episode. Yeah.
- [122:25]
C
Thank you so much. Thank you so much. Bye. Friends.