The constitutional court has asked the Electoral Commission of South Africa (IEC) and the uMkhonto weSizwe (MK) party to file submissions on the importance of a remark by commissioner Janet Love on Jacob Zuma’s eligibility for parliament.

In a directive issued on Monday, the court has given both parties until 5pm on Tuesday to file papers in this regard.

In essence, it is asking the litigants if a statement by Love in January that Zuma’s criminal record “may impede his candidacy” for parliament in the May elections marred a subsequent decision by the commission that he was ineligible.

“Having not refrained from expressing a view about Mr Zuma’s eligibility, ought she to have recused herself from participating in the electoral commission’s determination of his eligibility?” the court said.

It then asked whether she ought to have recused herself, what the effect of her not having done so was on the commission’s decision, and if this impaired the legal validity of the commission’s decision whether the court could still deliver a finding on that decision.

“If commissioner Love’s participation vitiated the determination by the electoral commission of Mr Zuma’s eligibility, is it open to this court to substitute the determination by the Electoral Commission?”

The court last Friday heard an urgent appeal by the IEC to a ruling last month by the electoral court overturning its decision to disqualify Zuma.

The electoral commission upheld objections to his candidacy filed on the basis that his 15-month prison sentence for contempt of court barred him from becoming an MP in terms sections 47(1)(e) of the Constitution.

It prohibits anyone who has been sentenced to 12 or more months in prison without the option of a fine being barred from becoming a member of the National Assembly for five years.

Zuma and the MK party had argued before the electoral court that Love’s response to a question from a journalist regarding his eligibility created a reasonable apprehension of bias. 

In a founding affidavit to the constitutional court, the IEC raised this as one of its grounds for seeking direct access to the apex court.

It said a body “as important as the commission should not be required to conduct an election under a cloud that it has been biased or favoured one side”.

It also argued that if the appeal was not finalised before election day on 29 May, there was a risk that “the erroneous finding of the electoral court will produce a disputed election outcome, because a person who is not qualified would have been allowed to contest, in breach of the Constitution”.

The question of Zuma’s eligibility to stand or otherwise, “affects the decision that millions of voters will be asked to make at the ballot box”. 

Zuma’s counsel has argued, inter alia, that the prohibition did not apply to him because he was improperly jailed by the constitutional court.

The argument harps on the hybrid nature of contempt but throws overboard the established principle that civil contempt is punishable as a crime. 

It took up much of Friday’s pleadings, with counsel for the IEC countering: “There is absolutely no debate that in South African law contempt of court is a crime like any other crime.

“You have already held so four times. You have no reason today to depart from it,” advocate Tembeka Ngcukaitobi said.