DOES THE JUDICIARY BEAR RESPONSIBILITY FOR ANY ZUMA PAROLE DEADLY RIOTS?

Once again, a grossly erroneous ruling from a court of this country has placed our country on the precipice of a disaster and impending calamitous riots. Our judiciary seems incapable of separating political preferences from legal principles when it comes to adjudicating cases involving former president Zuma. Former Chief Justice Conteh of Belize once remarked in George Meerabux v The Attorney General of Belize [2005] UKPC 12, that, “that society attributes honour, if not veneration, learning if not wisdom, together with detachment, probity, prestige and power to the office of a judge”.

I must sadly confess that I have searched in vain for the “learning if not wisdom, together with detachment, probity, etc.” in the SCA Judgment, National Commissioner of Correctional Services and Another v Democratic Alliance and Others (1) SACR 492 (SCA) (21 November 2022). The SCA remarked that, “the high court declared that the time Mr Zuma was out on medical parole should not be considered for the fulfilment of his sentence of 15 months imposed by the Constitutional Court. This issue implicates the doctrine of separation of powers. 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. Counsel for the Helen Suzman Foundation, at whose instance the declaratory order was granted, fairly conceded that the order was inappropriate. It should be set aside”. (At para.59).

But the same appellate court failed to understand a basic legal principle – a parole does not shorten the length of a sentence. Instead parole is a change in the manner in which a sentence is served in that the parolee remains under the custody of the institution from which he is released but executes the unexpired portion of his sentence outside of confinement.

Unlike a commutation, the release on parole is conditional, and the parolee is subject to both the continuing supervision of his parole officer and to the threat of returning to prison to serve out his sentence there if he violates a condition of parole. Even a person mistakenly placed on parole continues to serve his sentence albeit outside the confines of prison walls. It is a crying shame that our judiciary seems to be ignorant of this simple proposition.

Relying on its twisted legal reasoning the SCA declared that: “[60] The effect of the setting aside of this declarator is that once the order in this appeal is handed down Mr. Zuma’s position as it was prior to his release on medical parole will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Estcourt Correctional Centre to do so.”

If Mr. Zuma continued to serve and completed his sentence while on parole on what legal principle is the SCA claiming that, “Mr Zuma, in law, has not finished serving his sentence?”. The SCA further contradicts itself when it declares: “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 not a matter for this Court to decide. It 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.” This exposes gross judicial incompetence – the granting of the medical parole whether lawful or unlawful is an administrative act which continued to exist and produce legal consequences as if it were valid.

A decision that is allegedly invalid cannot and should not be treated as non-existent. This is to ensure both certainty and finality in administrative decision-making and to allow people the opportunity to organise their affairs accordingly. This state of affairs is due primarily to the operation of the presumption of validity. Oudekraal Estates (Pty) Ltd v City of Cape Town at para 27.

Additionally, taking an allegedly invalid administrative decision on judicial review will not suspend the legal effect of the administrative decision in question. A litigant wishing to suspend the operation of an administrative decision pending review must apply to the court for an interdict pendente lite. The racist DA and the Helen Suzman foundation never did that. A competent judge would never have asked 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”.

The SCA further exposed its incompetence when it opined as follows: “[61] … I feel constrained to express this Court’s disquiet about one aspect. While this judgment was pending, we became aware that the Department released a media statement to the effect that Mr Zuma had completed his sentence. Such a pronouncement was premature given that the determination of the very issue was still pending before this Court. A decision as to whether Mr Zuma’s prison term had lawfully expired, could not be validly made until this Court had determined the appeal by the Commissioner and Mr Zuma. This Court has now determined that Mr Zuma’s release on medical parole was unlawful. The Department’s statement was unfortunate, and potentially undermines the judicial process, particularly since the Department is an appellant in this matter.”

The Commissioner was correct that President Zuma had completed his sentence. It is a fact that a parole does not shorten the length of a sentence. It is simply a change in the manner in which a sentence is served in that the parolee remains under the custody of the institution from which he is released but executes the unexpired portion of his sentence outside of confinement.

Judiciaries around the world have dealt with situations involving erroneously granted parole and they have never adopted the extremist right-wing position adopted by the SCA and the Constitutional Court in the Zuma matter. As the Court of Appeals has noted in United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988)., "[u]nder the doctrine of credit for time at liberty, a convicted person is entitled to credit against his sentence for the time he was erroneously at liberty provided there is a showing of simple or mere negligence on behalf of the government and provided the delay in execution of sentence was through no fault of his own." Further, the court held that, "just as a defendant has no duty to bring himself to trial, … he has no affirmative duty to aid in the execution of his sentence." Zuma was entitled to comply with the Department’s orders even if they were unlawful.

Another Court ruled in White v.Pearlman 42 F.2d 788 (10th Cir. 1930) that: “A prisoner has some rights. A sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or some fault of the prisoner, and he cannot be required to serve it in instalments. Certainly a prisoner should have his chance to re- establish himself and live down his past.” The Court reiterated that denying credit in this situation would be to permit serious abuses: "[A] prisoner sentenced to five years might be released in a year; picked up a year later to serve three months, and so on ad libitum, with the result that he is left without even a hope of beating his way back."

As one legal commentator put it, Courts are entitled to expect that the prosecution will execute its orders in a timely fashion by imprisoning convicts and keeping them confined until their sentences expire. Moreover, it can only degrade public confidence in the criminal justice system to permit prosecutors, marshals, or correctional authorities to disregard their responsibilities with impunity. Denying credit to convicts, in effect, would ratify errors, leaving individuals convicted of crimes at the mercy of ministerial governmental officers who could effectively compel them to serve their sentences in instalments. In a time of prison overcrowding, releasing prisoners for later re-incarceration might be a real temptation.

In Smith v. Swope, 91 F.2d 260 (9th Cir. 1937) the appeal court recognised that a delay in the commencement of a prisoner's sentence, whose liberty was the result of government error, should not be borne by the prisoner.

In Swope, the marshal, charged with transporting the prisoner to a federal correctional institution, failed to do as instructed. When the prisoner was finally brought into federal custody, he filed a writ of habeas corpus contending that he was being unlawfully deprived of his liberty. Agreeing with the prisoner, the Ninth Circuit aptly stated:

“The least to which a prisoner is entitled is the execution of the sentence of the court to whose judgment he is duly subject. If a ministerial officer, such as a marshal, charged with the duty to execute the court's orders, fails to carry out such orders, that failure cannot be charged up against the prisoner. The prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be serving it from the date he is ordered to serve it and is in the custody of the marshal under the commitment, if, without his fault, the marshal neglects to place him in the proper custody. Any other holding would give the marshal, a ministerial officer, power more arbitrary and capricious than any known in the law. A prisoner sentenced for one year might thus be required to wait forty under the shadow of his unserved sentence before it pleases the marshal to incarcerate him. Such authority is not even granted to courts of justice, let alone their ministerial officers. Citation of authority is hardly needed to establish so elementary a proposition.”

President Zuma did not release himself from prison or place himself on parole and the court has confirmed that his parole was the result of government error. In a civilised legal system, the burden would not be borne by the parolee.

In Johnson v. Williford, 682 F.2d 868 (9th Cir.1982), where a convicted felon, sentenced to a term of ten years without possibility of parole, was mistakenly granted parole and lived at large for fifteen months. Despite his ineligibility, the prisoner in Johnson, was considered for parole on eight separate occasions and was eventually released on parole after a full hearing. When the mistake was discovered fifteen months later, the parole was revoked.

The Ninth Circuit Court of Appeals held that the interests of justice and fair play required that the government be estopped from then denying the inmate’s parole eligibility, stating; ‘[W]here justice and fair play require it’, estoppel will be applied against the government, even when the government acts in its sovereign capacity if the effects of estoppel do not unduly damage the public interest.Id. at 871.

In the Johnson case, the court affirmed a finding that the United States was estopped from enforcing an applicable sentencing statute in a criminal case. The statute prohibited defendants convicted of certain offences from being paroled during their prison terms. The petitioner had been paroled nonetheless, and made a successful adjustment to society. Id. The appeals court agreed with the district court that it would violate due process to return the convicted individual to custody. Id. at 873.

It is crucial to remind ourselves that judges are not elected democratically and, as such the judiciary does not have to account to an electorate. Inevitably, the judges rely on the other organs of state, which are accountable to the citizenry, for ensuring obedience to and enforcement of the law. As former Deputy Chief Justice Moseneke remarked in his inaugural Griffiths and Victoria Mxenge Memorial Lecture, “Judges are not elected democratically and yet the Constitution itself entrusts them with the authority to invalidate any law or conduct that is unconstitutional. This authority to upset a legislative or executive choice must be exercised sparingly and in clear case of unconstitutionality. The judicial officer must decide according to the facts and the law and not according to subjective predilection.” Justice Moseneke further asserted that, "courts are bound by the democratic will of the people as expressed in legislative instruments that are constitutionally compliant".

While he cautions that public opinion should not be a deciding factor in adjudication, he is aware that court decisions that go against public opinion place the courts at risk of losing public support. He wisely admonishes that “above all, a decision on the unconstitutionality of the conduct of another arm of the state must be clear, strongly motivated and accurate on the nature and extent of the impugned unconstitutional conduct.”