Durban - Former president Jacob Zuma’s fate lies in the hands of Correctional Services commissioner Makgothi Thobakgale, after the Constitutional Court upheld a Supreme Court of Appeal (SCA) ruling that found Zuma’s medical parole was unlawfully granted by former Correctional Services Department commissioner Arthur Fraser.
Last week the Constitutional Court dismissed a bid by the Department of Correctional Services to overturn the previous SCA ruling. Zuma is currently in Russia “for health reasons”, his foundation said last week.
The former president was handed a 15-month jail sentence by the Constitutional Court for contempt after he refused to testify at the Zondo commission of inquiry into state capture allegations.
Zuma’s custodial sentence sparked the July 2021 unrest that saw KwaZulu-Natal and Gauteng businesses looted and led to 350 people being killed.
In its ruling, the Constitutional Court dismissed efforts to defend the decision to grant medical parole to Zuma by Fraser and the court dismissed Thobakgale’s appeal application.
“The Constitutional Court has considered the application for leave to appeal (main application) and the application to intervene. It has been concluded that the main application should be dismissed as it bears no reasonable prospects of success.
“Consequently, the application to intervene (by Zuma’s legal team) falls to be dismissed.”
Legal expert Mpumelelo Zikalala said that on paper and in terms of the law, Zuma had to return to jail, but practically there were ways that could lead to the former president avoiding a return to prison.
This was related to time lines and what was perceived by Thobakgale to have been time served by Zuma.
Zikalala said the court essentially said that while there were technical issues with how Zuma was granted parole, the onus was on Thobakgale to make a decision that would be guided by a few clauses in the Correctional Services Act, including Section 44 which deals with temporary relief.
“The court was quite correct in saying on a technical basis we will not compromise and in this case something was done incorrectly but we are not going to be a court of legal advisors and advise Correctional Services on how to handle its own matters. The Correctional Services Act will be able to do that.”
Zikalala said Thobakgale now had to consider the situation and what had taken place, “how many months were left for this particular detainee to finish their sentence and could they offer temporary relief”.
“The court should have also answered the question on whether the former president was released on his own will or if he was given instructions and he then followed them.”
Zikalala said Correctional Services was now dealing with unique circumstances with a person whose sentencing term had ended.
“If you consider the time while in correctional supervision, then the sentence has been done and dusted. The court was saying that any time spent outside is not to be considered, but there are ways and means of establishing the time served by the former president.
“The act does offer powers to the commissioner which say there is temporary relief that can be granted.”
Another legal expert, Vuyo Manisi, said the court decision meant that Correctional Services had to now make a decision on whether to grant parole.
The Department of Correctional Services said Thobakgale was taking legal advice and would not comment further.