Former president Jacob Zuma. Photo: Supplied
The department of correctional services has asked the Democratic Alliance (DA) and the Helen Suzman Foundation to file submissions as it mulls how to proceed, given the finality of the court ruling that Jacob Zuma’s release from prison on medical parole was unlawful.
The department has been weighing its options since the constitutional court a fortnight ago denied it leave to appeal an appellate court ruling that the former president must return to prison because former prisons commissioner Arthur Fraser broke the law in authorising his release.
The supreme court of appeal (SCA) left the remedy to the discretion of the current commissioner.
“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.”
If this is permitted by law, Zuma could be asked to return to prison purely for the completion of administrative processes necessary to formalise his release.
The department has obtained three legal opinions on whether the Correctional Services Act does in fact allow the commissioner to take into account time spent on medical parole, though it was not lawfully granted.
It has yet to resolve the dilemma and reach a decision, although its reluctance to recommit Zuma to prison is apparent in the fact that it sought to take the SCA ruling on appeal to the apex court.
It was clear too in a statement issued on 7 October last year, when it said the date marked the expiry of his sentence and “the end of him serving his sentence under community corrections”, hence he was a free man.
On Friday, the spokesman for the department, Singabakho Nxumalo, said commissioner Makgothi Samuel Thobakgale wrote to the parties who had taken the decision to grant Zuma medical parole on review as “a courtesy”.
“We have reached out to interested parties, in fairness,” he told the Mail & Guardian. “A decision can only be taken once the commissioner has considered the input received from the relevant parties.”
The DA is on record as saying that Zuma must return to prison and serve the remainder of his 15-month sentence for contempt of court imposed after he defied an order of the apex court to appear before the Zondo commission of inquiry into state capture.
The Helen Suzman Foundation could not immediately be reached for comment. However, it took a less trenchant view on this point in its pleadings before the court.
In response to the commissioner’s request for input, the foundation replied that it could not do so within the timeframe of less than one full day and without being apprised of the legal framework he intended to rely on in his decision.
It is understood that the DA was given until 4 August to submit its input.
Zuma was released less than two months after entering prison. Fraser overruled the Medical Parole Board, which held that he did not qualify for release because he was not terminally ill. He would have qualified for ordinary parole after serving three months.
The SCA 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 to grant medical parole.
Impermissibly, he also considered the danger that the former president’s continued incarceration created a risk of more lethal unrest, after riots and looting claimed 354 lives.
“The board’s recommendation holds sway,” the court said.
The SCA did not impose a deadline for implementation of its order.
According to his eponymous foundation, Zuma has been in Russia undergoing medical treatment and will return only once that has been completed.
The former president has said that sending him back to prison would flout the rule on double jeopardy. But, in its proper sense, the rule means that an accused cannot be tried twice for substantially the same crime and is unlikely to neatly apply to his situation.
He also, in characteristic fashion, termed the appellate court ruling “an exercise in cruelty”.