ORANGE OVERALLS TIME?
Zuma’s days of freedom may be numbered as ConCourt upholds ruling that he must go back to jail
Former President Jacob Zuma should return to prison to serve the remainder of his sentence. That is the upshot of a Constitutional Court ruling on Thursday which rejected the prisons commissioner’s application for leave to appeal against a previous rejection from the Supreme Court of Appeal.
Former President Jacob Zuma has been a free man for just under two years — but his days of liberty may be numbered.
There are “no reasonable prospects of success” in appealing against a ruling that he should return to prison after being unlawfully released early on medical parole in September 2021, ruled the Constitutional Court on Thursday.
The application had been brought on behalf of the National Commissioner of Correctional Services, previously found to have erred in releasing Zuma after just two months of imprisonment. The apex court did not hear arguments in the matter, with a 10-judge Bench dismissing the prisons commissioner’s application in just one paragraph.
Correctional Services had approached the Constitutional Court after Zuma was smacked down by the Supreme Court of Appeal (SCA) in November 2022. But Thursday’s ruling means that the SCA’s findings now hold.
The critical passage from that November judgment reads as follows:
“Once the order in this appeal is handed down, Mr Zuma’s position as it was prior to his release on medical parole will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Escourt Correctional Centre to do so.”
Arthur Fraser’s gift to Zuma revoked
The Department of Correctional Services said on Thursday that it was seeking legal advice on the matter.
Current prisons head Makgothi Thobakgale was not the man responsible for the decision to release Zuma after serving just eight weeks of a 15-month sentence for contempt of court, stemming from Zuma’s refusal to cooperate with the Zondo Commission.
It was his predecessor, former spy boss Arthur Fraser — also the architect of President Cyril Ramaphosa’s Phala Phala misfortune, or at least the revelation thereof — who chose to free Zuma.
Read more in Daily Maverick: Jacob Zuma lauds Arthur Fraser for saving him from ‘death itself’ in jail and averting ‘national stress’
Zuma began his sentence at the Estcourt Correctional Centre on 8 July 2021. Fraser released him on 5 September 2021 — despite the fact that the Correctional Supervision and Parole Board had decided just three days earlier that Zuma did not qualify for medical parole.
Evidence heard by the courts shows that the board found that although Zuma suffered from “multiple comorbidities”, his treatment was “optimised” and “all conditions” had been “brought under control”.
The board concluded: “From the available information in the [medical] reports, the conclusion reached by the [board] is that the applicant is stable and does not qualify for medical parole”.
When Fraser released Zuma regardless, he said in a statement that the Estcourt Correctional Centre did not have the kind of specialised capacity to care adequately for Zuma’s conditions and that the former president’s life would be placed at risk through his continued incarceration there.
Fraser also noted that Zuma’s imprisonment “occasioned a unique moment within the history of Correctional Services, where a former Head of State of the Republic of South Africa is incarcerated whilst still entitled to privileges as bestowed by the Constitution”.
Three successive courts have now thrown out Fraser’s reasoning: the high court, the Supreme Court of Appeal and now the Constitutional Court.
The message, legally speaking, could not be clearer: Fraser was wrong to release Zuma, and the remainder of Zuma’s sentence technically remains to be served.
Length of remaining term: a complicating factor
But in upholding the SCA’s findings on the matter, the Constitutional Court has also upheld the SCA’s verdict that ultimately the determination as to the “remaining period of [Zuma’s] incarceration” is one for the prisons commissioner to decide.
“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 is a matter to be considered by the Commissioner,” the November 2022 ruling held.
“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.”
It is not quite clear currently whether this could mean that prisons boss Thobakgale would be now entitled to decide that Zuma has, for all intents and purposes, concluded his sentence nonetheless.
In other words, Zuma’s return to orange overalls is not quite a foregone conclusion.
Two years on, fears of violence remain
The timing of the Constitutional Court ruling is, at least from one perspective, rather unfortunate.
It is two years almost to the week since the original ruling that Zuma be locked up for defying the Zondo Commission precipitated tremendous violence and looting in KwaZulu-Natal and Gauteng.
A spate of recent truck burnings has sparked fears that something similar could be brewing currently; a fear exacerbated by the persistently reckless tweeting of Zuma’s daughter Dudu Zuma-Sambudla.
Read more in Daily Maverick: Open Letter: Dear Duduzile Zuma, do you understand the horror that your call for ‘another unrest’ will wreak?
Earlier this week, Zuma-Sambudla tweeted in response to a video of a truck burning: “We See You! July Never Fails Us!”
Currently, there is no evidence to suggest that the truck attacks are linked to pro-Zuma sentiment, or connected with the events of July 2021.
But the prospect of the former president’s return to jail cannot help but stoke the memories, still raw, of the carnage that accompanied his first prison sojourn. DM