Support the work of the FW de Klerk Foundation

For more information regarding donations contact or scan the QR code below


Issued by Ismail Joosub and Siyakudumisa Zicina on behalf of the FW de Klerk Foundation on 20/05/2024



As the 2024 elections loom on the horizon, South Africa finds itself at a critical juncture, grappling with the intersection of the Constitution’s political rights and its exclusions of certain categories of people from being Members of Parliament (“MP”). In this pivotal moment, the FW de Klerk Foundation’s Election Series aims to understand the intricate fabric of democracy in our nation.

Amidst the controversy surrounding Former President Jacob Zuma’s candidacy, this article looks at the interplay between:

  • The Constitution’s right to stand for public office (section 19); and
  • Its disqualification of certain categories of people from being MPs (section 47).


This article also sheds light on the role of the Independent Electoral Commission (“IEC”) in safeguarding democratic principles and scrutinising candidate lists. Unlike other articles in the series, this piece critically analyses the tension between political expediency and constitutional integrity, urging reflection on the future of democracy in the nation.


Upholding Section 19: Ensuring Political Rights in South Africa

At the heart of this discussion lies citizens’ political rights (entrenched in section 19 of the Constitution).

Section 19 of the Constitution guarantees all citizens the essential freedoms necessary to be active in South Africa’s democracy and its politics: Every citizen has the right to “stand for public office and, if elected, to hold office“; to form or join political parties; partake in party activities; advocate for political causes and to vote in free, fair and regular elections.

In a democratic society like South Africa, the act of voting is not merely a fundamental right, but also a civic duty, essential to the functioning of our democracy. The sacrosanct nature of the vote represents the voice of the electorate, enabling citizens to express preferences and hold elected representatives accountable, ensuring the democratic will of the people remains paramount.


The IEC & Candidates for Public Offices:

The Constitution establishes independent institutions in Chapter 9 to support democracy. The IEC is one such institution (along with e.g. the Public Protector) and is tasked with ensuring “free and fair elections” by managing the electoral process, including voter registration and certifying candidate lists. It also declares the results of an election. As mandated by the Constitution, the IEC operates independently, impartially and without interference – reporting its activities annually to the National Assembly.

Candidate lists, in particular, are a key component of the electoral process. Political parties submit lists of candidates to the IEC, detailing the individuals who will represent them in elections. These lists undergo scrutiny to ensure compliance with legal requirements and to uphold the integrity of the electoral system. Through this mechanism, the IEC plays a crucial role in safeguarding the principles enshrined in section 47.


Upholding Integrity: Section 47 and Eligibility to be an MP:

Section 47 of the Constitution delineates clear boundaries regarding eligibility to be an MP. It expressly excludes, or disqualifies, certain categories of people from being able to hold this office to uphold the integrity and credibility of elected representatives. These limitations underscore the importance of accountability and ethical conduct in governance, safeguarding public trust in democratic institutions. These criteria are as follows:

Section 47(1): Every citizen eligible to vote for the National Assembly can be a member, except:

  1. Those appointed or in the service of the state, receiving remuneration, excluding specified officials.
  2. Permanent delegates to the National Council of Provinces, members of provincial legislatures, or Municipal Council members.
  3. Unrehabilitated insolvents.
  4. Individuals declared of unsound mind by a court.
  5. Individuals convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, until five years after sentence completion.


Legal Manoeuvring: Zuma’s Eligibility for Public Office

The view that Former President Jacob Zuma falls within the category of disqualified by s47(1)(e) from being an MP led to the public outcry surrounding Zuma’s inclusion on the candidate list of the uMkhonto weSizwe (“MK”) Party. It reflected widespread concern over the potential circumvention of constitutional safeguards. Objections were raised, invoking section 47’s provisions and asserting that Zuma’s candidacy contravened the spirit of accountability enshrined in the Constitution.

The Constitutional Court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, initially sentenced Jacob Zuma to 15 months’ direct imprisonment for contempt of court on 29 June 2021. (This is after he failed to cooperate with the Judicial Commission of Inquiry into Allegations of State Capture.) Zuma’s refusal to comply with the Court’s order and his inflammatory attacks on the Judiciary were considered aggravating factors, justifying an unsuspended sentence. The Court deemed his conduct a serious affront to the rule of law, necessitating a punitive response. Despite the gravity of the sentence, Zuma did not oppose the application, or provide any submissions.

Zuma was subsequently given a deadline of 5 calendar days to voluntarily surrender to the police, after which the Minister of Police would have taken “all necessary precautions to deliver Zuma to a correctional centre” and a longer sentence would have been imposed. After serving three (3) of the 15 months, President Cyril Ramaphosa remitted the rest of his sentence.

Following President Cyril Ramaphosa’s remission of Jacob Zuma’s 15-month sentence for contempt of court, a legal battle ensued in the Electoral Court over Zuma’s eligibility to run as a candidate in elections. Adv Dali Mpofu SC argued that Zuma’s sentence effectively amounted to three months served, thus challenging the IEC’s decision to disqualify him. Conversely, Adv Tembeka Ngcukaitobi SC contended that the full 15-month sentence remained despite the remission. The court deliberated over whether Zuma’s sentence was three months or 15 months.

This naturally raised fundamental questions about his eligibility to stand for public office: If his sentence was 15 months, then section 47 would prima facie bar Zuma from being an MP, given the nature and duration of his sentence. If his sentence was only three (3) months, however, he would be eligible to run the current elections.

As the controversy unfolded, the IEC found itself at the centre of a legal and ethical maelstrom, tasked with navigating the delicate balance between upholding constitutional principles and ensuring a fair electoral process. The courtroom saga surrounding Jacob Zuma’s eligibility for the upcoming general election took a dramatic turn when the Electoral Court overturned its earlier decision barring him from contesting the polls. The court’s decision raises questions about prioritising Zuma’s three-month sentence over the initial 15-month conviction, potentially undermining the integrity of the electoral process and challenging the sanctity of section 47 of the Constitution.

Appealing to the Constitutional Court, the IEC still challenged Zuma’s eligibility for Parliament under section 47 of the Constitution. On 20 May 2024, the Constitutional Court handed down judgment in this matter, ruling that Zuma was ineligible to run for election. The Constitutional Court judgment pertinently states that the purpose of section 47(1)(e)’s disqualification was to maintain South Africa’s democratic regime’s integrity by ensuring that members of the National Assembly possess the requisite respect for the rule of law (a founding value of the Republic).


Section 19 v section 47 – now what?

At first glance, the Constitution might appear to conflict with itself, because it says that every adult citizen has the right to hold public office, but then later on expressly disqualifies certain categories of people from holding the public office of MP.

However, the Constitution is one document and it needs to be read and interpreted as a whole. The Constitutional Court has said: “A court must endeavour to give effect to all the provisions of the Constitution. It would be extraordinary to conclude that a provision of the Constitution cannot be enforced because of an irreconcilable tension with another provision. When there is tension, the courts must do their best to harmonise the relevant provisions, and give effect to all of them.”

Therefore, there is no irreconcilable tension between the right to stand for public office (section 19) and the eligibility requirements one must meet to do so for the specific public office of MP (section 47 of the Constitution). Rather than presuming absolute precedence of one section over another, it is imperative to recognise the complementary nature of these provisions. I.e. to exercise one’s right to stand for the public office of MP, one must meet the Constitution’s eligibility criteria.


Balancing Political Rights and Legal Obligations

The case of Jacob Zuma’s eligibility for office highlights the delicate interplay between the Constitution’s provisions and politics: Zuma’s 15-month prison sentence initially seemed to preclude his participation. However, having the rest of his sentence remitted after serving three (3) months, convinced the court to reverse the IEC’s ban on Zuma’s candidacy, allowing him to stand for office. (Observers noted the irony as Zuma’s successful appeal underscored the complex interplay between legal technicalities and political manoeuvring.)

The Court’s judgment has now also answered the profound question of whether the President’s ability to remit a sentence (section 84(2)(j) of the Constitution) can effectively eliminate the boundaries that would prima facie limit a criminal from standing for public office (section 47 of the Constitution): the Court found that the President’s remission did not affect Zuma from falling within the ambit of section 47(1)(e), as the section focuses on the length of the sentence imposed, not the length of the sentence served.