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CRIME AND GOVERNMENT OP-ED

Should a way be found to spare Jacob Zuma from jail time? It’s a tough call

Should a way be found to spare Jacob Zuma from jail time? It’s a tough call
Former president Jacob Zuma said that the 'public violence' following his arrest and jailing in July 2021 was 'a responsible reflection of what the public could believe if, for instance, I died in prison'. (Photo: Gallo Images / City Press / Tebogo Letsie)

The Constitutional Court’s decision not to consider an appeal by the National Commissioner of Correctional Services in Jacob Zuma’s parole matter means that Zuma must now go back to prison to serve the remaining part of his 15-month sentence, subject to his early release on either parole or on any other ground provided for in the law. The question now is whether a way could be found (or ought to be found) to spare Zuma from further incarceration.

The Supreme Court of Appeal (SCA) judgment which invalidated the granting of medical parole to Mr Jacob Zuma, made clear that this leaves Mr Zuma in the position “as it was prior to his release on medical parole”. This means that Mr Zuma “has not finished serving his sentence” and that he “must return to the Escort Correctional Centre to do so”.

It is important to note that whatever decision is taken by the commissioner about Mr Zuma’s possible early release from prison on parole or under correctional supervision, in terms of the SCA judgment Mr Zuma is first required to return to prison.

As has so often happened in the past when faced with legal difficulties, Mr Zuma has revived an undisclosed medical condition, and has jetted off to Russia, allegedly to receive medical attention there. If he indefinitely delays his return to South Africa, or if he refuses to go back to prison on his return, the National Commissioner of Correctional Services would be able to rely on 39(6)(a) of the Correctional Services Act which allows him (“if he is satisfied that a sentenced offender has been released from a correctional centre erroneously”) to “issue a warrant for the arrest of such a sentenced offender to be re-admitted to a correctional centre, to serve the rest of his or her sentence”.

If Mr Zuma goes back to prison, his stay there might well be short-lived, as it may be possible for the national commissioner to place him under correctional supervision and release him from prison almost immediately afterwards. This he is permitted to do if he believes this is the appropriate course of action after taking into account the relevant circumstances of the case.

Do these circumstances include the time he spent on unlawfully granted medical parole?

The SCA made clear that “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 for the commissioner to decide. However, the commissioner can only do so if he is empowered by law to do so.

The Correctional Services Act does not seem to empower the national commissioner to count the time spent on unlawful medical parole as part of the sentence already served by Mr Zuma. This means for the purposes of the granting of ordinary parole, Mr Zuma has only served 59 days of his 15-month sentence (about an eighth of his sentence).

As the commissioner is bound by section 73(6)(aA) of the Correctional Services Act, which allows the granting of parole for offenders like Mr Zuma only after they had served at least a quarter of their sentence, Mr Zuma would have to serve just short of another two months of his sentence to qualify for release on parole.

But as I read the act, nothing in it prohibits the national commissioner from considering the time spent by Mr Zuma on unlawful medical parole as a factor to justify Mr Zuma’s immediate release from prison by placing him under correctional supervision. This he would be empowered to do because he is granted a broad discretion by section 75(7)(a) of the act to place offenders serving sentences of less than 24 months under correctional supervision — even when they have not served one-quarter of their sentence.

If Mr Zuma is released under correctional supervision, he would be subject to strict conditions to which he would have to agree beforehand. Such restrictions could include a prohibition on leaving his house or magisterial district, on using drugs and alcohol, on visiting specified places, on contacting specified persons, on threatening specified persons by word or action, and on committing further criminal offences. If Mr Zuma fails to adhere to the conditions imposed on him, he could be sent back to jail to serve the rest of his sentence.

A burned car is seen at a road block during violent clashes in downtown Johannesburg, South Africa, on 11 July 2021. (Photo: EPA-EFE/Kim Ludbrook)

Presidential lifeline

What the SCA judgment did not mention is that Mr Zuma could also avoid serving anything but a token amount of the remaining part of his sentence if the president decides to grant him parole or to shorten (remit) his sentence. This is so because section 81 of the Correctional Services Act grants sweeping powers to the president to “authorise the placement on correctional supervision or parole of any sentenced offender”, or to “remit any part of a sentenced offender’s sentence”.

When the president acts in terms of section 81 he is not bound by the other provisions of the Correctional Services Act and can authorise the granting of parole even if the offender had not served the minimum period required. It would therefore be entirely lawful for President Cyril Ramaphosa to immediately order Mr Zuma’s release on parole or to shorten his sentence to allow for his immediate release — as long as this decision is rational.

If I am correct that Mr Zuma’s immediate release would be lawful under certain circumstances, it raises a more difficult question, namely whether Mr Zuma ought to be released before he had served the minimum required part of his sentence. I believe there are cogent arguments for and against his early release, although my tentative view is that an early release may be undesirable.

To imprison or not to imprison?

The most pressing argument in favour of Mr Zuma’s immediate release is an argument that applies more broadly to non-violent offenders languishing in prison despite posing no threat to society. Imprisonment is by its very nature dehumanising and harsh. It limits the human rights of individuals, seldom leads to the rehabilitation of offenders if they need this, and places enormous strain on state resources.

Incarceration also does not appear to be much of a deterrent, negating one of the main purposes of keeping non-violent offenders in prison. One reason for this is that only a small number of offenders are ever prosecuted, sentenced and imprisoned, which means most offenders have every reason to believe that they will never be caught and punished. To such offenders, it matters little that the few offenders who are caught are sentenced to long terms of imprisonment.

As the Constitutional Court explained in S v Makwaynane the “greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system.”

Moreover, as my colleague Anine Kriegler and other researchers have shown before, inequality is arguably the most accurate predictor of crime levels in a country. Other solutions — including, I would suggest, mandatory minimum prison sentences for certain crimes — are merely plugging the holes in a leaky bucket.

In the South African context, as in the US, the reliance of the criminal justice system on harsh prison sentences in effect targets poor, black men, which is made worse by the fact that white-collar criminals with deep pockets seldom get convicted and, if they are, tend to receive lighter sentences. For all these reasons I generally favour the early release of offenders like Mr Zuma who do not pose an obvious threat to others.

Mr Zuma’s personal circumstances — including his advanced age, the fact that he spent time on medical parole and was not completely free, and (if he can prove that he is ill) also his alleged bad health — would also mitigate against the need for Mr Zuma to serve more of his sentence.

Jacob Zuma, July riots

Residents carry looted goods from department stores and shops in the area of Soweto, near Johannesburg, South Africa, on 12 July 2021. (Photo: EPA-EFE/Kim Ludbrook)

However, in my view, it would be wrong to justify his early release based on the fact that riots occurred in parts of KwaZulu-Natal and Gauteng after Mr Zuma’s incarceration, and might occur again. To the extent that there may be a link between these events, it points us to the pressing argument against Mr Zuma’s early release from prison. This relates to the nature of the conduct for which he was punished and the threat this posed to the entire legal order and the rule of law.

Recall that Mr Zuma was sentenced to a 15-month prison term because he refused to obey an order of the Constitutional Court to testify before the State Capture Commission, thus acting in contempt of court. He compounded this contempt by launching scurrilous and unfounded attacks on the Constitutional Court and on the judiciary more broadly which the Constitutional Court described as “a series of direct assaults, as well as calculated and insidious efforts” on Mr Zuma’s part to corrode the legitimacy and authority of the court. 

Mr Zuma did all this to avoid having to answer any questions about his involvement in State Capture; thus in order to escape any form of accountability. He seemed to believe that he had no duty to comply with the kind of legal obligations that all other citizens are required to obey, that he was therefore above the law, that he would launch a full frontal attack on any institution or person who would dare to tell him otherwise, and thus that he had no regard for the rules and institutions at the heart of our democratic system.

Jacob Zuma medical parole

Former president Jacob Zuma holds a press conference a few days before being arrested at Nkandla, KwaZulu-Natal on Sunday, 4 July 2021. (Photo: Leila Dougan)

According to this argument, it is necessary to protect the legal system and democratic institutions from Mr Zuma’s scurrilous campaign and to affirm (at least in a symbolic way) that he is not above the law, by requiring him to serve at least one-quarter of his sentence before being considered for release on parole, thus treating him in the same manner that ordinary offenders are treated in accordance with the Correctional Services Act.

Were he to be released because of his status as a former president, or because of fears that he and his family would incite or encourage further violence, it would signal that Mr Zuma was correct when he insisted that he has a right not to be held accountable.

These arguments pull me in two diametrically opposite directions. I changed my mind about where I stand on the issue while writing this column. Then I changed it back again.

But considering the fact that Mr Zuma faces incarceration for no longer than two months, as well as the fact that he will be held in favourable conditions unlike anything ordinary prisoners face every day, I believe (for the moment) that releasing Mr Zuma before he qualifies for ordinary parole would be a mistake. DM

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  • jcdville stormers says:

    He should be shot for high treason

    • andrew farrer says:

      100% agree, and those vile kids of his who incited the riots/ insurection

      • Gerrie Pretorius says:

        Yes! jcdville and Yes! andrew There is no reason to act otherwise.

      • Graham Smith says:

        I fully agree with you. Not only his kids are vile, but so is he. Lock them all up. The whole tribe. Brothers and sisters and everbody associated with this criminal garbage.

    • John Counihan says:

      This is the thing! The man is responsible for wrecking this country, and here we are discussing the niceties of whether this old man should be spared prison time. He should be there for the rest of his miserable life. Al Capone only served jail time owing to tax violations, not murdering dozens of people. Zuma probably will never be convicted of treason, but here we have an indirect opportunity for him to enjoy some orange uniform time.

  • Andrew C says:

    For all the damage Zuma caused to South Africa and the poverty he has driven tens of millions to continue to suffer he should be locked up until he dies.
    But you do raise an important question. Imprisoning people is a very poor way to deal with criminals. If someone is sent to jail they are extremely unlikely to come out as a better person. For many it is a “university of crime”. Add to that the chances of anyone employing a former convict and imprisonment basically destroys a person’s life. What does that mean for society?

  • idnankin says:

    Unlike other countries South Africa seldom has any natural disasters. We do however have the greatest unatural disasters in the world that have been brought about by the ANC and Zuma in particular. He really needs to spend time in jail to be held account for the greatest unnatural disaster of the 21st century.

  • Katharine Ambrose says:

    Zuma is a problem in South Africa in or out of gaol. Let’s hope he imposes on russian hospital – ity for as long as possible.

  • Fanie Rajesh Ngabiso says:

    The law is the law and must apply consistently to all.

    Any other path leads ultimately to anarchy.

  • NR BENJAMIN says:

    It’s frightening that so many people somehow can’t see, won’t see or don’t care about what this man has done and would rather burn this country to the ground than allow the law to take its course. He should be held accountable for his actions, like any other citizen, even if he has a sick note from the Russian doctors. If this doesn’t happen, it sets a bad precedent for accountability and the rule of law in South Africa.

  • Beyond Fedup says:

    Absolutely and most definitely not!! What message are you sending? That the law is applied selectively? That those politically connected, the wealthy and elite can subvert the law whilst Joe Citizen has to face the full might of the law. In Zuma’s case, not only did he and his cronies aid, abet, encourage, provide cover and profit very handsomely from state capture etc. but as president he is guilty of gross corruption/theft and high treason. He has done everything possible with the connivance of unscrupulous lawyers, to frustrate and make a mockery of our courts, our country and everyone of us. Add insult to injury, we, the long-suffering and highly abused taxpayer, have largely funded his unnecessary and hugely inflated legal costs. His age and no amount of bleating about being an innocent victim, the latter being one massive lie, should come into it. He and his hideous/treacherous party have done so much damage to SA, to the point of being a failed/bankrupt state and he must be pardoned!!! Apply the law and to those who want to cause mayhem in his name – deal with them decisively and according to the law!!

    • Ashley Stone says:

      He asked for his day in court (he meant years), this he said would prove his innocence. He got it, it didn’t, so what’s the problem? This was his long game strategy all along but it did not pay off. To simply release him now will play straight into his (and others) planned strategy. So it’s a no from me.

  • Steve Davidson says:

    Some good points Pierre. My suggestion? Get the lying, thieving corrupt bliksem out doing community service. Maybe stuff like filling in potholes that his disgusting and disgraceful ‘leadership’ had a major role in causing. Perhaps starting in Zululand where his faithful followers can help him.

  • Karl Sittlinger says:

    Considering that Zuma has been unrepentant and uncooperative in every possible conceivable way and has yet to account for what can only be called high treason, leniency seems to be the wrong choice here.

  • Wolfgang Preiser says:

    “… offenders like Mr Zuma who do not pose an obvious threat to others”?!? He does, still. His criminal activities over more than a decade have cost and are continuing to cost thousands of lives (by making the lives of millions miserable through being denied basic services and a failing economy leading to poverty, crime, despair etc.) and he continues to pose a major threat – see the riots 2 years ago. Prison or not – can Zuma, his kin and accomplices not be made to shut up forever?

  • Ken Randell says:

    It may well be an acceptable option for Zuma to be released early rather than run the risk of widespread riots, given the fact that he will still be appearing on the multiple corruption charges hanging over his head. If (when) convicted thereof, there can be no excuse/option for any special treatment other than incarceration as part of the normal judicial and penal processes. It’s a case of sacrificing a pawn (the contempt of court case) for the king (the corruption charges case)

  • Brian Cotter says:

    I believe it is in the Country’s best interest he will depart Russia and head for Vanuatu in the South Pacific to be with and be funded by his benefactors the Guptas. All pension payments stopped and it will be a free transfer.

  • Nick Miller says:

    You either have rule of law or you don’t. To have rule of law it must apply equally to all.
    If you treat someone differently because there is a threat of violence, then you can wave good by to the rule of law.

  • Egmont Rohwer says:

    Does this then set a precedence that other ‘offenders’ also get off Scott free? May the feeding from the trough continue – until next year, by which time we MAY have a useful opposition.

  • Rudd van Deventer says:

    The article deals with the conflicts well. IMHO he has not proven that he has any medical condition that warrants his medical parole.
    For my 10 cents worth, he should be made to serve the minimum required time and let out with specific conditions, like pitching up at his trial on the arms deal charges, does not make any public comments about the judiciary, and stay at his residence and report to the local police twice a week.
    Failing this, let there be an ‘orange outfit’ in his future.

  • Maurice Smithers says:

    Zuma should definitely not be spared jail time on the basis of his age, the fact that he is a former President, or because of fears of an eruption of violence. His health could be a consideration, but only if this is recommended by a panel of completely independent medical practitioners, with Zuma having no influence over the composition of the panel.
    However, if one were to take the TRC approach, one could say that Zuma could be spared going to prison if he were to make an unconditional public apology to the Zondo Commission and to the country for disrespecting the Commission and the Constitutional Court and undermining the country’s legal processes – and that apology would have to be acceptable to the Commission and the ConCourt. That would be an acceptable way of dealing with the situation, in my view.
    However, I suspect the question of whether this could be an option is an academic one, as Zuma is highly unlikely ever to agree to make such an apology. So, he should get himself ready …..

  • Charl Marais says:

    A state that does not effectively prosecute kleptocratic office bearers will continue to have resources stolen.

  • Derek Jones says:

    Jail without question. Anything less encourages more corruption. If I had my way, after jail he would be stripped of all funds and live as a poor man in the conditions he relegated most of his nation to.

  • Rory Macnamara says:

    Whew, by the comments he must go back to jail no doubt. SAPS, that is our Police not the real SAPS in parliament, must be ready and waiting for riots whether on this charge or Arms deal or both.

  • Leon Groenveld says:

    The Law proscribes – Governments enforce.

    The fact that we seem to now have descended to a scenario where The Law merely “ suggests “ , as this article’s implies, is most unfortunate for our country.

    Zuma has yet to show any insight, let alone remorse, for his industrious pillage of his country.

    He should languish and die in jail.

    It’s the least he could ( be forced to ) do in return.

  • Jane Crankshaw says:

    Gary Porritt has been in jail for 17 years for Contempt Of Court and has still not yet been found guilty of stealing investors money ( Tigon Investments). Zuma is guilty of orchestrating the theft of around R1 trillion from tax payers and spent 17 hours in jail before being released because of life threatening illness! Gary Porritt must have the wrong colour skin!

  • Greg de Bruyn says:

    As much as I detest him and want vengeance for the damage he’s done, I’m happy to see him wriggle and squirm, duck and and dive, and never find peace in his dotage. Let him wind down all his patronage and resources fighting to stay out of jail. Happy retirement, Jacob

    • Anne Felgate says:

      Correct
      That gives me great joy that zuma will have to keep squirming and wriggling to stay out of court and jail
      No peace in his retirement

  • Gregory Scott says:

    If Zuma stays in Russia to prevent his arrest, hoooray! This scenario is a winner in my mind.
    How good will it be if Zuma is to take his whole thieving cabal with him to Russia permanently?
    South Africa would be rid of his evilness.

  • William Dryden says:

    I am wondering who paid for his flight to Russia (if he has in fact left the country?) or was it a private charter plane, either way, someone is backing Zuma. He should be brought back and examined by a state medical doctor to determine his health status, if he refuses the medical, then strap him down and do it, and let him wine afterwards.

  • Gordon Oliver says:

    With all the shenanegans this rogue is guilty of, facing countless crimes way back to the Arms Deal charges, why on earth has his passport not been withdrawn?

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