Before former president Jacob Zuma and the MK Party filed their court papers in their legal battle with the Electoral Commission of South Africa (IEC) over Zuma’s entitlement to stand for parliament, political commentators speculated Zuma would seek the recusal of justices on the Constitutional Court bench. Lawyers were sceptical: the legal test for recusal is a hard one to meet.
The political pundits were on the money.
In an answering affidavit filed on behalf of Zuma and the MK Party on Friday, its attorney, Nqobile Zungu, said at least five of the justices of the apex court should recuse themselves because they had been part of the bench that, in 2021, found Zuma in contempt of court and sentenced him to 15 months in prison without the option of a fine.
It was this contempt order that formed the basis of an objection to Zuma being included on the MK Party’s election list. This is because section 47(1)(e) of the constitution disqualifies people who have been sentenced to more than 12 months in prison from being MPs. The objection was upheld by the IEC, but set aside by the Electoral Court on appeal. The IEC then applied urgently to the Constitutional Court to appeal the Electoral Court’s decision.
But now Zuma and the MK Party have made a counter-application for recusal, saying they have a “reasonable apprehension” that the judges who were part of the contempt bench will be biased against him or have a conflict of interest in respect of the matter.
This is because they are “bound to seek to interpret their own previous decision which now lies at the heart of the issues arising in this appeal in such a way as to automatically differ with the unanimous view of the Electoral Court”. Their attorney adds that some of the issues “central to the adjudication of the intended appeal were already prejudged” by the Constitutional Court when it decided the contempt case.
The recusal application is just one of the legal arguments against the IEC case made by Zuma and the MK Party, and they have stronger ones as well. But the recusal submission is the most politically fraught, and if their application were to succeed, it would mean the apex court could not hear the appeal, as it would be inquorate (the Constitutional Court normally sits with 11 justices, and eight are required for a quorum).
Zungu does not explain why the Constitutional Court’s contempt decision lies “at the heart” of the appeal. But a close look at the reasons given by the Electoral Court for its decision — now on appeal — reveals that little, if anything, in the judges’ reasoning turned on the Constitutional Court’s previous decision in the contempt case.
What lies at the heart of the appeal application before the Constitutional Court are legal questions about how to interpret section 47(1)(e), which can be answered whether it’s Zuma or Joe Bloggs before the court, and which are unrelated to the facts or law that gave rise to Zuma being held in contempt of court. That both cases involve the same party may be unusual, but — at least according to the Constitutional Court’s previous judgments — much more is required to show disqualifying bias.
There is a long-established legal test for recusal. Recusals are not there for the asking. In the Sarfu II case — where the Constitutional Court sent former rugby boss Louis Luyt packing when he sought the recusal of five of its justices — the apex court emphasised that judges have a duty to hear cases if they can. When an application is made for recusal, the test is an objective one. The court said: “The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case.”
In a later Constitutional Court judgment, chief justice Sandile Ngcobo emphasised that there is a presumption of impartiality when it comes to judges — it must be assumed “that they can disabuse their minds of any irrelevant personal beliefs and predispositions”. There is also what is called a “double reasonableness” test: the apprehending person must be reasonable, and the apprehension must also be reasonable.
On top of all this, unless judges themselves feel they should recuse themselves, the onus is on the applicant — here Zuma and the MK Party — to make the case for bias. That should at least require their attorney to explain why he says his clients feel the Constitutional Court justices are “bound to seek to interpret their own previous decision ... in such a way as to automatically differ with the unanimous view of the Electoral Court”. He does not do so.
Instead, the bias claims are made in vague and sweeping terms. They are introduced with references to “a potential constitutional crisis” and “reawakening the ghost of the unprecedented manner in which Mr Zuma was sent to jail ... with tragic consequences for hundreds of citizens who perished in the unfortunate and totally unnecessary event known as the July 2021 unrest”.
All this would suggest that Zuma’s recusal application is unlikely to succeed and belongs more in the world of politics than law. But some doubt is presented by recent directions issued by the Constitutional Court in impeached judge president John Hlophe’s case.
There the court’s justices asked for submissions on the possibility that some of them might be disqualified on the grounds that they “adjudicated cases related to the applicant”. Hlophe’s application, like the IEC’s, was about different legal questions from those previously adjudicated by the justices in relation to him. Yet it seems they did not entirely discount the idea of recusal in those circumstances.
Zuma’s attorney argues that the appeal should in any event have been directed to the Supreme Court of Appeal, as the IEC had failed to make a case for a direct appeal to the Constitutional Court.
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