/ 21 November 2022

SCA finds Zuma’s release was unlawful, orders his return to prison

The court strongly criticised last month’s statement by the department of correctional services that Zuma was a free man.

The supreme court of appeal (SCA) on Monday held that the decision by Arthur Fraser to release former president Jacob Zuma on medical parole was unlawful and unconstitutional and ordered his return to the Estcourt Correctional Centre where he was jailed last year for contempt of court.

“Mr Zuma, in law, has not finished serving his sentence,” the court said.

“He must return to the Estcourt Correctional Centre to do so.”

The appellate court ruling upheld that of the high court in December last year, where the decision by Fraser, the former commissioner of correctional services, was struck down

Though it also concurred that the remedy was for Zuma to return to prison, the SCA differed with the earlier ruling to the extent that it should now be left to the department of correctional services to determine whether the 13 months Zuma spent on medical parole would count towards the completion of his sentence.

Zuma filed for appeal on the same day that high court Judge Elias Matojane ordered his return to prison, suspending the application of that decision. 

His counsel submitted before the SCA in August that where a prisoner was sentenced to less than 24 months in jail, as was his case, “an alternative pathway” to parole existed. 

This was so, the argument went, because here the commissioner no longer needed to comply with the requirements of section 79(1) of the Correctional Services Act for release on medical parole, namely terminal illness or physical incapacity, a low risk of re-offending and appropriate arrangements for post-release.

The court disagreed, saying this section applied to all prisoners, regardless of the length of their sentence.

“In respect of both categories of inmates there must be compliance with the substantive and procedural requirements of s79.”

It stressed that the law applied to Zuma, like any other prisoner, regardless of his status as former head of state.

“That is the content and reach of the constitutional value and promise of equality before the law.”

The court also rejected Fraser’s argument that the recommendation of the board was not binding on him, but merely one of the factors he had to weigh up, along with the prisoner’s medical reports, in deciding whether or not to grant medical parole.

“The board’s recommendation holds sway,” the judgment states.

“The commissioner cannot simply ignore it because he or she holds a different view. This is because the board is an expert on the ‘medical’ part of the medical parole process. Ordinarily, the commissioner does not have that expertise.”

If the board’s recommendation is negative, the court said, “that is the end of the matter” as the commissioner does not have the power, by law, to second-guess it.

“The commissioner’s decision was therefore unlawful and unconstitutional.”

Turning to the remedy imposed by Matojane in the high court, the SCA said the court had the power to give an order substituting the decision of the commissioner with its own.

Matojane had been correct in reasoning that it would serve no purpose to remit the decision back to Fraser as he had no discretion in the matter because he could not overrule the decision of the board.

But where the appellate court disagreed with Matojane was his further declaratory order that the time Zuma had spent on medical parole should not be considered towards the fulfilment of his 15-month sentence.

This order implicated the separation of powers, the SCA noted, because where and how a prisoner served his or her sentence, or was released on parole, was a decision to be taken by the executive — in this case the department — and not the court.

With that declaratory order set aside, Zuma is left in the same position he was in before Fraser granted his release on medical parole. This meant he must return to prison and that it was up to the commissioner to decide whether the time spent on medical parole counted towards his sentence. 

“It is not for this court to decide. It is a matter to be considered by the commissioner. If he is empowered by law to do so, the commissioner might take that period into account in determining any application or grounds for release.”

Zuma was released in September last year, after serving less than two months of his sentence. He would have become eligible for ordinary parole after three months.

The court took issue with a statement released by the department of correctional services (DCS) on 7 October — the date he would have been freed had he served his full term — stating that he was a free man.

It was premature and disquieting, the court said, as no such determination could be made while it had yet to rule on the appeal.

“The department’s statement was unfortunate, and potentially undermines the judicial process, particularly since the department is the appellant in the matter.”

The department issued a brief statement saying it respected the ruling and would set out a way forward after studying it in detail. 

“DCS respects the court’s decision and will study the full judgment in seeking to clarify a way forward within the requisite timeframe.”

This timeframe refers to the weeks parties have to decide whether to take an order on review.

Zuma was sentenced to prison for defying a constitutional court order that he heed a summons to testify before the Zondo commission of inquiry into state capture. His arrest sparked deadly unrest and Fraser said his decision was partly motivated by a fear of more violence. The high court found this impermissible and the appellate court concurred that in the context of medical parole it was irrational.

The medical grounds that informed Fraser’s decision were never made public or disclosed to the appellate court. 

Last month, Zuma shrugged off questions about his health with the words: “What’s wrong with the health, just tell me, what’s wrong with the health? Looking at me, am I in the bed lying in a hospital?” 

He could now turn to the constitutional court to challenge the SCA’s decision.

This story has been updated with comment from the department of correctional services.