The Supreme Court of Appeal (SCA) has dismissed former president Jacob Zuma’s appeal about his medical parole and says he must return to prison in Estcourt, KwaZulu-Natal.
“Mr Zuma, in law, has not finished serving his sentence. He must return to the Estcourt Correctional Centre to do so,” said the SCA in its unanimous judgment on Monday.
But how long he stays there was not a matter for the courts to decide, said the judgment. This was “a matter to be considered by the commissioner” of correctional services.
“If he is empowered in law to do so, the commissioner might take [the period already spent on medical parole] into account in determining any application or grounds for release,” said Justice Tati Makgoka.
Zuma may also still apply to appeal the SCA’s order to the Constitutional Court, which would put the SCA order on hold for now.
The former president was sentenced to 15 months’ imprisonment by the ConCourt for contempt after he breached its order to obey the summons of the state capture commission.
After serving less than two months, he was granted medical parole by Arthur Fraser, the former national commissioner of correctional services — despite not being recommended for it by the medical parole board. The decision was immediately challenged in the high court by the DA, the Helen Suzman Foundation and AfriForum. Their application was successful.
In his judgment, Makgoka said Fraser could not grant medical parole if the medical parole advisory board had not given a positive recommendation.
“If the board’s recommendation is negative, that is the end of the matter — the commissioner cannot lawfully grant medical parole,” said the judgment.
Fraser’s decision was also irrational on further grounds, said Makgoka. In granting parole, Fraser took into account factors that were “totally irrelevant” to medical parole. These included that Zuma was 79, that he was the former president, and the riots that occurred in KwaZulu-Natal and Gauteng in July last year.
“While these factors may well be taken into consideration in an application for normal parole, they have no bearing at all in an application for medical parole,” said the judgment.
The high court’s order had declared that the time Zuma had spent on medical parole should not be counted as part of his sentence.
But the appeal court said “matters concerning how an inmate serves his or her sentence [and] 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 judgment criticised the correctional services department for releasing a media statement in October that said the former president had completed his sentence. “Such pronouncement was premature, given that the determination of the very issue was still pending before this court.”