This week’s decision by the Constitutional Court to uphold a Supreme Court of Appeal ruling that Jacob Zuma must return to prison to finish his 15-month sentence will be welcomed by those who want the rule of law to prevail in our nascent democracy.
Yet, as is to be expected in the controversial circumstances of Zuma’s incarceration and questionable release, the apex court’s decision will have its critics.
The case followed the department of correctional services’ application to appeal last November’s SCA ruling that rejected Zuma’s release on medical parole by former correctional services commissioner Arthur Fraser. Zuma had been jailed for defying a Constitutional Court directive to appear before the State Capture Commission, having walked out in the course of commission hearings.
What remains standing now is the SCA’s decision to refer the matter to the current commissioner, who should decide how to remedy the question of Zuma’s unlawful early release. This makes it possible for Zuma to be imprisoned again.
The commissioner has been handed a veritable hot potato. In pondering his options, he will no doubt be aware of the contentious and divisive political backdrop to the case.
Some might question the benefit of sending an 81-year-old to prison, especially after the humiliation of being the first democracy-era president to be imprisoned for breaking the law. Out of power, he has continued to serve as a distraction from the important challenges facing the country.
Our democracy would indeed be in serious trouble if the law were applied selectively, in favour of those who are powerful, or who threaten violence
As always, some will allege a political conspiracy against Zuma, as they did in July 2021 when his incarceration sparked the worst orgy of public violence since 1994. There is also fear that should the commissioner decide to return Zuma to prison, this might provoke violence from his supporters.
A contrary view is that in a democracy such as ours the law must apply to all citizens equally, irrespective of their social or economic standing or political popularity.
Our democracy would indeed be in serious trouble if the law were applied selectively, in favour of those who are powerful, or who threaten violence — and against the weak and those willing to subject themselves to the rule of law.
The exemption of Zuma, or anyone else, from the country’s laws could fatally damage our constitutional dispensation, which enshrines equality before the law. It would also send the wrong message to others in powerful positions, in politics and elsewhere, that they can, by virtue of their standing and influence, escape the consequences of their wrongdoing.
This might include individuals already recommended for investigation and prosecution by the State Capture Commission.
Therefore, it behoves the commissioner of correctional services, when deciding with the matter, to resist being influenced by extraneous factors. He must be guided only by the precepts of the law, which it is his duty to uphold.
Similarly, it is to be expected of state agencies charged with the maintenance of law and order and state security to stand ready to faithfully and impartially discharge their constitutional duty, should they be called upon to do so. This bears mentioning because of these agencies’ abysmal performance during the 2021 riots, when they appeared to have been caught napping.
The Zuma case may well prove to be a seminal moment in the evolution of our country’s democracy, for which so many sacrificed so much, but which remains vulnerable. This is a heritage that all South Africans, in an individual or organised capacity, must seek to defend and build upon.
Even with someone as influential as Zuma, Lady Justice must indeed be seen to be blind.
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