Former president Jacob Zuma has been spared further time in prison by a decision to remit his 15-month sentence for contempt of court.
The remission was granted in terms of a presidential decree to cut short the sentences of 9 488 prisoners serving sentences of less than two years for non-violent crimes, Justice Minister Ronald Lamola said on Friday.
“President Cyril Ramaphosa has approved the remission of non-violent offenders in South Africa,” Lamola told a media briefing. “Obviously a question will arise whether former president Zuma will benefit from this decision or not. Indeed, he is one of the beneficiaries.”
Zuma was probably the first person to benefit from it, although Lamola’s office said the administrative process to release others had begun at prisons around the country early on Friday.
The minister framed Ramaphosa’s decision, which was announced just over an hour after Zuma reported to the Estcourt prison in KwaZulu-Natal, as an urgent measure to reduce overcrowding of 143% in the country’s prisons.
Lamola said the government has been considering remission to address the problem since April but doing so had become more pressing after a fire gutted the Katuma Sinthumule prison in Limpopo earlier this week.
It has meant that the department must find space in other prisons for 3 024 inmates who had been held there.
The paperwork to approve Zuma’s release was undertaken immediately after he arrived at the facility at about 6am on Friday. Correctional services commissioner Makgothi Samuel Thobakgale confirmed he spent just over an hour at the prison.
“He was admitted into the system,” Thobakgale said. “He was subjected to administrative processes and part of those administrative processes apart from his admission was the fact that the remission process had already taken effect. So he was subjected to the remission process and processed as such.”
Asked whether Zuma will be subject to any form of supervision, Thobakgale said the former president would not be on parole, but prison services would remain in contact with all those whose sentences were remitted.
It is understood that Ramaphosa signed off on the decision to grant remission in terms of section 84(2) of the Constitution some two days ago.
It resolves a legal and political dilemma the authorities have grappled with since the constitutional court in mid-July denied the department of correctional services leave to appeal an appellate court ruling that Zuma must return to prison.
The supreme court of appeal (SCA) confirmed a high court ruling that Zuma’s release on medical parole in 2021 was invalid because former correctional services commissioner Arthur Fraser broke the law by overruling a decision by the Medical Parole Board to deny Zuma medical parole because he was not terminally ill.
But, unlike the high court, which held that he must serve the remainder of the sentence because the clock had stopped on time served the day he was unlawfully granted parole, the supreme court of appeal left the remedy to the discretion of the current commissioner.
The SCA did so not in disagreement with the high court’s rationale, but to respect the separation of powers.
“Whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration is not a matter for this court to decide,” it said.
“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.”
But the department was advised by senior counsel that the law gave the commissioner no leeway to consider time spent on medical parole that was granted outside the bounds of the Correctional Services Act as time served.
If the commissioner had decided such, he would flout the Act, the SCA ruling and the 2021 judgment of the constitutional court sentencing Zuma to prison for defying an order to comply with summons to testify before the Zondo commission of inquiry into state capture.
He would also risk finding himself in contempt of the apex court, because it would amount to setting aside the sentence the court had imposed on Zuma, the opinion obtained by the department concluded.
Lamola was at pains to stress that Thobakgale had complied with the court’s decision that Zuma return to prison, because he had been readmitted into the correctional services system upon which he was then granted remission.
“He has taken a decision in terms of the supreme court of appeal judgment that the former president must come back to the facility, which is in compliance with the order,” he said.
Zuma spent less than two months in prison before Fraser authorised his release. He would have become eligible for ordinary parole after serving three months of his sentence.
In court papers, the long-time political ally of the former president said his decision to overrule the statutory board was informed in part by the need to avoid further violence in protest at Zuma’s imprisonment.
In the days after he entered prison, 354 people died in unrest that swept through KwaZulu-Natal and parts of Gauteng.
The high court said the threat of violence was not legal ground for granting parole.
“The commissioner acted irrationally and considered irrelevant considerations and acted for an impermissible purpose,” Justice Elias Matojane said. “Threats of riots are not a ground for releasing an offender on medical parole.
“This negates the constitutional right of all people to be treated equally before the law.”
But the potential political fallout was a factor that weighed heavily on the government as it considered its options in the wake of the constitutional court’s decision last month.
The department’s reluctance to return Zuma to prison was plain from its decision to seek leave to appeal. It was clear too from its announcement in October last year, while the matter was still before the SCA, that he was a free man since the 15 months had passed and he had served the remainder observing the terms of medical parole.
Zuma’s eponymous foundation said on Friday that he was “at home” and consulting his legal team. He would issue a statement later in the day.
*This story has been updated with additional detail and background.