Correctional Services commissioner Makgothi Thobakgale is in a tight spot. He must decide for how long former president Jacob Zuma must return to prison — whether this return will be an in-out formality or more.
In a terse three-line judgment from the Constitutional Court on Thursday, the highest court drew a line under efforts to defend the unlawful decision to grant medical parole to Zuma by former correctional services commissioner Arthur Fraser. The apex court dismissed, without a hearing, Thobakgale's appeal application saying it had no reasonable prospects of success.
In June 2021, Zuma was sentenced to 15 months' imprisonment by the Constitutional Court for contempt, after he breached its order to obey the summons of the state capture commission. In a blistering judgment, the highest court said: “If with impunity litigants are allowed to decide which orders they may wish to obey and which they wish to ignore, then our constitution is not worth the paper on which it is written.”
That July the country was on a knife’s edge, unsure whether law enforcement would enforce the court’s order or precipitate a rule of law crisis. Zuma ultimately handed himself in but unrest followed, which saw more than 350 people dead. The rule of law had prevailed but the cost was high.
Then, after Zuma had served less than two months, Fraser granted him medical parole — despite it not being recommended by the medical parole board. In December 2021, the high court found that Fraser’s decision was unlawful — Fraser had “impermissibly usurped the statutory functions of the board,” said judge Elias Matojane.
In November 2022, the Supreme Court of Appeal agreed that Fraser’s decision was unlawful, saying: “If the board’s recommendation is negative, that is the end of the matter — the commissioner cannot lawfully grant medical parole.”
The SCA said that the effect of its order was that “Mr Zuma, in law, has not finished serving his sentence. He must return to the Estcourt Correctional Centre to do so”.
The Constitutional Court’s order this week means that the SCA decision stands. Though there may be a dispute about this, it is fairly clear this means that Zuma must return to prison. But for how long is the big question.
The SCA disagreed with the high court on one very important point: Matojane ordered that the time Zuma had spent out of prison — on medical parole — should be discounted for purposes of calculating how long he should go back to prison for.
But the SCA said this was not a matter for courts to decide: “Matters concerning how an inmate serves his or her sentence; when and how he or she qualifies for and is to be released on parole, quintessentially reside in the province of the executive — the department in this instance.”
The court said: “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 ... 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,” said the SCA.
This puts the ball in the Thobakgale’s court.
After the Constitutional Court’s order, the commissioner said in a statement that he was taking legal advice and would not comment further. This is not surprising.
The commissioner is now faced with a legal question that is not immediately answerable from the Correctional Services Act: whether he is empowered by law to take the period Zuma has already spent, albeit unlawfully, on medical parole into account — to decide that Zuma is immediately eligible for ordinary parole.
The SCA said that the effect of its order was that, once “this appeal is handed down, Mr Zuma’s position as it was before his release on medical parole will be reinstated”. This means that he would still have about two months before he would be eligible for ordinary parole.
That may be the position in law. But the position, in fact, is that Zuma has already served a full sentence, on parole.
Parolees, the Constitutional Court has previously said, remain sentenced offenders. At the Supreme Court of Appeal, counsel for the national commissioner, Maribolla Mphahlele SC, took issue with the finding by Matojane that Zuma was “sitting at home in Nkandla, not serving his sentence in any meaningful sense.” He raised the spectre of “double jeopardy” — of Zuma effectively being punished twice for the same thing, which is impermissible under our law.
It may be that the commissioner would be in law entitled to consider the time spent by Zuma on medical parole as a form of incarceration; and therefore be able to accept an immediate application for ordinary parole.
If so, that application would, in line with the SCA judgment, likely have to be made from Estcourt prison. This would mean Zuma’s return would be little more than an in/out formality, perhaps of a few hours or a day.
On the other hand, the act could be interpreted to mean that a parole application may only be made after someone has served the specified portion of their sentence. And, since Zuma is — in law — back to the point where he has only served two months of his sentence, there would be no discretion for the commissioner to consider ordinary parole at this point.
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