If the DA is going to persist in its legal challenge to last month’s release of former president Jacob Zuma, it may have an uphill battle on its hands. This much is revealed from answers and documents provided this week by the government to a raft of questions the DA sent to President Cyril Ramaphosa.
But the DA said on Friday that it had written back, asking for more information. “We will then consider our options,” said the party's Glynnis Breytenbach.
Zuma was released on August 11 as a beneficiary of a special remission of sentence proclamation published in the government gazette that morning. Early the same morning he was “admitted” into the Estcourt Correctional Centre and processed into the system as an inmate. This was because the courts had set aside as unlawful his earlier release on medical parole. About an hour later, his motorcade rolled out of the Estcourt prison. He was a free man.
The net result was that Zuma, sentenced to 15 months’ imprisonment for contempt of court by the Constitutional Court, spent less than two months behind bars.
The special remissions came as a surprise. The announcement — at the same press conference where Zuma’s “admission” to Estcourt prison and release were revealed — prompted immediate suspicion, even outrage, in some quarters.
But while it may well have been a manoeuvre, proving it was an unlawful one will be difficult — at least on the information the DA has now.
The DA’s attorneys immediately wrote to Ramaphosa, justice & correctional services minister Ronald Lamola and correctional services commissioner Makgothi Thobakgale saying it was “concerned” the remission decision “has been taken solely or predominantly to permit Mr Zuma to be released”. Over three pages, it listed questions it wanted answered. DA leader John Steenhuisen said the party would be going to court.
In answers this week, the Presidency “categorically” denied the remissions decision was for Zuma’s benefit. Specific categories of sentenced offenders benefited from the remission — as per the gazette, said the Presidency. “The decision does not relate to any specific offender.”
The Presidency said the decision was necessary to alleviate overcrowding in prisons and was taken in terms of the constitution, which gives the president the responsibility for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.
The Presidency attached an August 8 submission from Lamola, seeking his approval for the 2023 remissions. “This is the information that was considered by the president when he approved the remission of sentences,” said the Presidency. There is no reference to Zuma.
Instead, it details previous presidential remission decisions.
It must be crystal clear ... that this was engineered to accommodate Zuma. [The government was] trampling the rule of law to accommodate one man, but one man who knows all their dirty secrets and will tell them at the drop of a hat
— DA MP Glynnis Breytenbach
It says prisons were overcrowded by 43.06% and that the loss of 3,000 beds through a fire at the Kutama-Sinthumile prison had compounded the overcrowding by 4%. It sets out criteria for who would benefit from the 2023 remissions and that it may reduce the levels of overcrowding to 36%. It sets out an implementation plan.
The Presidency said in its letter that a decision to remit entails three separate stages: an internal process by the justice and correctional services ministry, an approval request by the minister, and the implementation of the decision. The president was only involved in only the second stage.
Insofar as showing that the remissions decision was taken for Zuma’s benefit, what stands out as suspicious is the timing: the Constitutional Court’s order was given on July 13, putting the ball in Thobakgale’s court about what should happen to Zuma. After first saying he was taking legal advice, then getting input from interested parties, he finally said he would announce his decision by August 10. On August 8, the minister asked the president to approve the 2023 remissions. On August 10 the president approved the remissions. On August 11 Zuma was “admitted” to Estcourt prison, the remission decision was gazetted and Zuma was released.
But according to the president’s letter, what happened from August 8-10 was the second phase. There was also the earlier “internal” phase. At the press conference on August 11, department officials said this had been ongoing as far back as April.
Then there are the answers from the department of correctional services about the procedural requirements to benefit from the remission. The DA asked a number of questions on this score: must an application be made? Was prior notice given? Were representations or submissions made? By whom?
Here there may have been legal grounds to challenge the release on the basis that Zuma was given preferential treatment to other potential beneficiaries. But according to the answers provided, the process was a fairly mechanical one: “The correctional centre retrieves information from the system and offenders are assessed if they qualify in terms of criteria. There is no need for an inmate to make an application,” said the letter. No-one was given prior notice. No-one made submissions or representations.
Breytenbach said the DA had asked “for a document and also whether Zuma completed the mandatory programme” — a reference to the submission from Lamola to Ramaphosa, which said that attendance of a pre-release programme would “be set as a prerequisite before the release”.
Breytenbach said: “It must be crystal clear to all South Africans that this was engineered toaccommodate Zuma, the others are collateral beneficiaries. [The government was] trampling the rule of law to accommodate one man, but one man who knows all their dirty secrets and will tell them at the drop of a hat.”
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