Former president Jacob Zuma’s application to appeal the high court ruling that set aside his medical parole and committed him back to jail has the prospects of succeeding, the Pretoria High Court ruled on Tuesday.
In granting Zuma permission to approach the Supreme Court of Appeal in Bloemfontein, Judge Elias Matojane said the matter dealt with an important question of public law arising from the interpretation and application of sections of the Correctional Services Act.
In my view, this matter merits the Supreme Court of Appeals attention to bring certainty the correct interpretation.
The judge said there was also a reasonable possibility that another court may find that the time Zuma spent on parole should count as part of his 15-month sentence.
Zuma was sentenced by the Constitutional Court for contempt of court after he failed to abide by the order to testify before the Zondo commission.
In September, Zuma was released from prison on medical parole but last week Matojane, presiding over the application brought by the DA – and supported by the Helen Suzman Foundation and Afriforum – ruled that Zuma was unlawfully granted medical parole.
He ordered that Zuma should go back to jail and that his time out on parole did not count as part of his sentence.
Another court could find, said Matojane, that “it was not his decision, but that of the commissioner to release on medical parole [and that] his meeting with his political allies and a prayer meeting were also a once-off thing”.
Also, it could be found that his freedom of movement was restricted, which had an impact on his dignity.
He said another court could agree that Zuma was serving his sentence, albeit outside of prison, and “because of his illness and advanced age he needs compassion, empathy, and humaneness, which is the essence of ubuntu”.
Advocate Dali Mpofu, Zuma’s lawyer, had earlier argued that prisoners in a constitutional democracy did not lose their basic rights, including proper medical care.
Mpofu said while these rights were not absolute and could be limited, the court had to apply the required limitation test to support its decision to commit him back to jail.
He said parolees were serving their sentences outside jail and therefore Matojane was “wrong to find that the period under medical parole did not count as imprisonment”.
Zuma was not on holiday but under strict parole conditions. He had to ask for permission just to leave his home in Nkandla in KwaZulu-Natal, he said.
He said Matojane, consequently, punished Zuma for a decision taken by former national commissioner of correctional services, Arthur Fraser, and “the decision is also wrong in law”.
Mpofu also said the court failed to address Zuma’s argument that Fraser took the decision based on his powers to grant parole to prisoners serving sentences under 24 months.
He said a judgment was also meant to communicate to the public and the parties involved on a matter of public interest. Mpofu said:
The bedrock of a judgment is not the findings but the reasoning behind it.
Also, in terms of the separation of power, the courts should be reluctant to step into the shoes of the executive, adding that the decision should have been sent back to the new acting National Commissioner of Correctional Services, Makgothi Thobakgale.
He added that parts of the judgment relating to Zuma’s medical diagnosis were contradictory.
Advocate Simon Mphahlele, representing the department of correctional services, said medical parole was a system of community correction and a form of punishment served by an inmate within the system of correctional services.
Mphahlele said it was “double jeopardy” for Zuma to be punished by scrapping the time that he had spent out on parole from his sentence. “He was not a party to any illicit behaviour and therefore he cannot be punished twice.”
He also said that the recommendations of the medical parole advisory board, which declined to grant Zuma parole, were not final and binding on the commissioner.
“The board does not make a determination or a prognosis, so saying the board’s decision is binding is a misdirection. The national commissioner makes the decision based on the reports of the board and other reports by medical practitioners and the power rests with the national commissioner,” Mphahlele said.
Advocate Ismail Jamie, for the DA, said the bar for leave to appeal was higher and more stringent, requiring certainty that the appeal would succeed. Jamie said the case had nothing to do with prisoners’ rights as Mpofu had argued, adding that it was “incorrect and misleading”.
He said Zuma received the best medical treatment in jail compared to his care of under his wife in Nkandla “who does not have the medical expertise”.
He said the conditions in Nkandla were “suboptimal compared to prison”.
Jamie said the court was entitled to order that the time that Zuma spent under parole did not count, adding that the order was not punitive but a proper exercise of constitutional power.
Jamie cautioned: “The court should not substitute legal reasoning for unwarranted sympathy.” He said that the position that Zuma found himself in was of his own making and that sympathy for him was not a legal ground.
Advocate Max du Plessis, for the Helen Suzman Foundation, said the prospects of the appeal succeeding were “underwhelming to the point of vanishing”.
Du Plessis said there were “elementary errors” in the application, including that the appellants did not understand the required test for leave to appeal. He said Zuma’s team also scored “own goals” by failing to address the merits of their application.
Afriforum’s Advocate Etienne Labuschagne said the court did not impose imprisonment on Zuma but restored the status quo.
In reply to Du Plessis Mpofu said he “just wanted to insult us gratuitously [but] he was either deaf or blind”.
These kinds of arguments stand not to be entertained by a court like this.
He accused Afriforum and the Helen Suzman Foundation of being “right-wing” organisations that had clubbed against Zuma when many other people get parole.
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