Judgments of this kind, based as they are on legal quicksand, are not only disappointing. As the country enters what may be a turbulent fourth decade of constitutional democracy, this kind of judgment can only erode confidence in the judiciary’s ability to maintain its hard-won reputation as a custodian of the Constitution.
In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.
The key to this dispute turned on section 47 of the Constitution, which, to the extent relevant, reads thus: While Zuma raised an encyclopaedia of arguments before the Electoral Court in seeking to overturn the decision of the Electoral Commission of SA which had barred him from being on the list as a candidate for the National Assembly, the key question was whether he now fell within the prohibition contained in section 47 of the Constitution — “convicted and sentenced to more than 12 months’ imprisonment” — as a consequence of the benefit of remission.
But when the Constitutional Court has convicted and sentenced a candidate to more than 12 months of imprisonment, there is no right of appeal and hence the caveat of an appeal is inapplicable. Ah, said Judge Modiba, the remission of sentence does not intrude on the doctrine of separation of powers and hence it must be taken into account in this case. Let us leave aside that the authority cited by Judge Modiba from the Constitutional Court judgment in the certification case in support of her conclusion does nothing of the kind, in that its effect is simply that a prerogative power of the President is not a judicial function.
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