Zuma requests ConCourt justices to recuse themselves in IEC case

MK Party (MKP) leader Jacob Zuma has requested that Constitutional Court justices recuse themselves from the matter between his party and the Electoral Commission of South Africa (IEC) as they are his “jailers” who were behind his imprisonment. 

The apex court was due to hear an application by the IEC to appeal the Electoral Court ruling which allowed former president Zuma to be on the ballots on May 29. 

The hearing started with Zuma and the MKP's legal representative, advocate Dali Mpofu, requesting five justices to recuse themselves from the bench. These are Stevan Majiedt, Mbuyiseli Madlanga, Leona Theron, Nonkosi Mhlantla and Zukisa Tshiqi.

Such recusal will, however, hinder the matter from being heard as the court would not meet the required quorum. 

The recusal application was due to the justices being involved in the judgment that found Zuma was in contempt of court and sentenced him to 15 months' imprisonment. 

The imprisonment and jail term is the root of the dispute between the IEC and the MKP, as the former decided Zuma could not stand as a candidate due to his criminal record. 

Mpofu said the recusal application was not to interpret the contempt of court ruling but to apply the reasonable litigant test appearing before the same judges in a linked matter.

“This application is about a simple issue: whether a reasonable litigant in the position of the MK Party and Mr Zuma would 'face' reasonable apprehension of bias. It has nothing to do with whether the justices are biased or the justices will not bring an open mind. They probably will,” he said. 

Mpofu referred to IEC commissioner judge Dhaya Pillay who recused herself from the commission's decision on the objection, stating the same was naturally expected by her colleagues at the ConCourt. 

“How can anyone suggest it is unreasonable for Mr Zuma to expect that other judges who sat with justice Pillay will do what she did? In what world would that be unreasonable? Surely he must believe that whatever it is that caused Pillay to recuse herself didn't affect her as a person but the bench she was sitting on,” Mpofu said.

In their appeal bid, the IEC’s advocate Tembeka Ngcukaitobi said allowing Zuma to stand despite his disqualification was a risk to the electoral outcome and would violate the constitutional order and rule of law.

Ngcukaitobi opposed the recusal application, stating the reasons put forward by Mpofu had no grounds. 

He said judges remain impartial when they preside over a new matter and do not consider any previous cases related to the litigant. In addition, the decision by Pillay to recuse herself was subjective and should not be binding to her colleagues. 

“The mere fact that they believe it is unjust does not make it unjust in the eyes of the law. It is a subjective assessment that it is unjust because [Zuma] is on the receiving end of it. Many clients who lose cases before this court believe the court did so unjustly, but the court cannot be directed and dictated upon on their subjective beliefs,” he said. 

Deputy chief justice Mandisa Maya adjourned the matter to consider the recusal application.

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