The supreme court of appeal is yet to rule on the appeal to the high court finding that his release on medical parole was unlawful and he should return to prison. (Michele Spatari/POOL/AFP)
It was almost certainly never going to unfold in this way, but had Jacob Zuma served his full 15-month prison sentence for contempt of court, he would have been freed on Friday.
Instead, the day will pass with a supreme court of appeal (SCA) decision still pending as to whether the high court was correct in ruling that his early release on medical parole was unlawful and whether the appropriate remedy for this breach is that he return to prison to serve the remainder of the term.
The former president’s release in early September last year came less than two months into his sentence, courtesy of Arthur Fraser, the former director general of correctional service, and, prior to that, intelligence. The reprieve may have been, Chief Justice Raymond Zondo said in his final report on state capture, as part of the political bargain between Zuma and his former spymaster.
“The picture that emerges was one where Zuma put a stop to an investigation that could well have led to Mr Fraser’s arrest, prosecution and maybe imprisonment and Mr Fraser put a stop to Mr Zuma’s continued incarceration, despite the fact that Mr Zuma’s incarceration was in terms of an order of the constitutional court,” Zondo wrote.
Fraser’s decision was immediately challenged by the Democratic Alliance, the Helen Suzman Foundation and Afriforum on the basis that he broke the law because it allowed him no discretion to depart from the advice of the Medical Parole Board, which had found that Zuma did not qualify for parole.
In December, Gauteng high court judge Elias Matojane upheld the challenge, ruling that Fraser’s decision was unlawful, and ordered that Zuma go back to prison to expunge the rest of the term, imposed for defying the constitutional court order that he heed summons to appear before the Zondo commission of inquiry into state capture.
In court, counsel for the department, Maribolla Mphahlele, submitted that Fraser had overruled the board because of the exceptional circumstances created by the incarceration of a former head of state, and that if he had died in prison, this could have sparked a repeat of the violent unrest that rocked the country in July.
But Matojane said these reasons were not sanctioned by the Act.
“The commissioner acted irrationally and considered irrelevant considerations and acted for an impermissible purpose … Threats of riots are not a ground for releasing an offender on medical parole,” he wrote, adding that such reasoning undermined the rule of law.
“This negates the constitutional right of all people to be treated equally before the law.”
The high court held that considering the medical reports filed was the remit of the board, not of the commissioner, and hence Fraser acted outside the law. He then flouted the provision that terminal illness or incapacitation is a prerequisite for medical parole.
Predictably, Zuma filed for leave to appeal, suspending the execution of the order, as did the department of correctional services, where Fraser’s contract was not renewed after the fact, reported to have been tacitly approved by President Cyril Ramaphosa.
The appeal was finally heard in August, with the judges of the SCA pointing out that they were, like the court a quo, in the dark as to the state of Zuma’s health because his full medical records had not been filed yet they were asked to accept firstly that Fraser had room in law to disregard the decision of the Medical Parole Board, and second, that he was right to do so.
Zuma’s counsel argued that the view of the parole board — which had sight of the records — amounted to a mere recommendation, and said Fraser had to do no more than consider it, along with other factors, such as that the prison in Estcourt where he was held lacked the medical facilities he needed.
Likewise Mphalehle, for the department, argued that the law did not accord more relevance to the opinion of the board than to the report submitted by a military physician, Dr QSM Mafa, who filed a parole application on Zuma’s behalf.
It was put to him by Justice Glen Goosen that apart from the weight given to the statutory body’s decision in law, he faced a a further difficulty in that the courts had not been given a full record of the facts that confronted Fraser, but a redacted version where reference to Zuma’s medical condition was crossed out.
It meant that the judges had to interrogate Fraser’s decision without knowing on what it was based.
“The problem is that the information that has been scratched out with a koki pen is the very information that goes to the heart of the decision that has to be taken,” Justice Clive Plasket stressed.
“We have no way of knowing whether the commissioner exercised his discretion properly, in other words, the problem looked at from the other side, is that he has a great deal of difficulty in justifying his exercise of power. It is not good enough to say ‘trust me, I looked at everything and I took this decision and it is the correct decision’.”
Should the SCA concur with the high court that Fraser’s decision cannot stand, the question is then whether it will consider the time he has spent on parole as counting towards the serving of his sentence. The high court held that it should not count.
This part of its order was extensively debated before the SCA. And there has been debate in legal circles as to whether it had been strictly necessary for Matojane to stipulate that Zuma return to prison, rather than simply setting aside the decision to release him, and letting the department of correctional services deal with the consequence.
Before the appellate court, the department submitted that Zuma would be punished twice if he were sent back to jail, having been under correctional supervision as a parolee.
In the high court in November, counsel for had argued that the matter was moot then already because Zuma, who would have been eligible for ordinary parole after having served a quarter of his sentence. His camp will now find further cause in the fact that the length of time that has passed now exceeds the prison sentence to proclaim that all is academic.
There was a reminder of the political weight clinging to the case this week, when the Judicial Service Commission interviewed Matojane for a position at the SCA and Economic Freedom Front leader Julius Malema asked the judge why he had failed to consider whether it was in the wider interest of society to jail an 80-year-old man.
Malema was not only offside in raising the ruling but he was wrong on the law. It had not been for the high court to consider whether the prison term was appropriate. The constitutional court weighed those factors when it imposed the sentence.
The Helen Suzman Foundation maintained in argument to the SCA that if Fraser’s decision falls away as unlawful, it has the effect of restoring the status quo ante, leaving Zuma in prison. But advocate Max du Plessis, for the foundation, conceded under questioning that practically, Zuma could immediately apply for parole, either ordinary or medical, and that the relevant board could then, in weighing that decision, decide to count the time already served on parole.
If the court dismisses the appeal, Zuma and the department could turn to the constitutional court. It means that there will not be finality in the matter for some time to come.
[/membership]