The Foundation statement following the Supreme Court of Appeal Judgment on the parole matter of H.E President Zuma
22 November 2022
"A textbook case of judicial overreach" is how former Chief Justice Mogoeng once described another court case involving President Jacob Zuma in 2017. Five years later, one cannot but remember those words after reading the latest Zuma judgment which deals with the granting of medical parole by the Department of Correctional Services based on the diagnosis of not less than three independent medical experts. For the record the medical parole in question was applied for by one of the independent medical doctors and not President Zuma. It was granted by a Correctional Services official and not President Zuma. Yet it is not those
individuals but President Zuma who must be punished for both the application and the decision.
To be categorically clear, H.E President Zuma holds no particularly strong views whether the applying doctor or the granting official acted lawfully or exceeded their powers. That happens every day when the courts successfully review any administrative or executive decision. H.E President Zuma differs with the court's interpretation of the applicable legislation but there IS also nothing unusual or remarkable about holding a different view in a democracy. Judges like all of us, are human and they must be allowed to make mistakes.
That is why we have a system or appeals.
What is totally unacceptable is for judges to change the law to achieve certain outcomes, depending on the name and identity ofwho is before them. Since when IS it the business of judges to even prescribe the name of the prison where a person must be incarcerated? In addition, is it not a version of the death sentence to send a person to a place where it has been independently declared that there are no suitable medical facilities for that particular individual? Should judges play God? Should they be complainants, judges and executioners in their own cause?
These are only a few of the questions raised by the latest judgment of the Supreme Court of Appeal. Although the SCA fell short of granting an order for the reimprisonment of President Zuma, they have hinted in the body of the judgment that this may be one of the options available. This despite the fact that the official expiry date of his sentence, which was fully served, passed on 7 October 2022, almost 2 months ago. This is an act of injustice. It is nothing but an exercise in cruelty and degrading punishment.
For the second time in so many years, the courts have convicted President Zuma and sentenced him to imprisonment without the benefit of a criminal trial which is afforded to even the worst criminals. One does not need to be a lawyer to understand the double jeopardy rule of law: a person cannot be punished twice for the same offence. The Constitutional Court stated in the case of Phaahla v Minister of Correctional Services that:
"Darole is still a manner of servina out one's sentence. It is therefore still punishment although a lesser one than imprisonment. It still amounts to a deprivation of liberty for a set period, albeit outside of prison. Parolees remain subject to the supervision and authority of the Department for the remainder of their sentence. That it mitigates a sentence of imprisonment does not detract from this."
If that is indeed the law of South Africa, then on what legal basis can an expired and fully served sentence be resurrected from its grave by a court of law. At least when Judge Matojane made the incorrect order to discount a part of the sentence, the jail term was still running. To impose further imprisonment after the expiry of a jail term is totally unheard of and it is indeed a textbook case of judicial overreach once again targeted at President Zuma as an individual.
It would be outrageous and unacceptable in the case of any citizen of any democratic country. If all are indeed equal before the law, then it must be equally unacceptable even if that citizen happens to carry the name Jacob Gedleyihlekisa Zuma. That is the essence of the equality clause in our Constitution.
In view of this total injustice and outrage, H.E President Zuma has instructed his legal team to craft an opinion to advise him of his legal options within the next few weeks. There is no new crisis, and we should all leave the matter in the hands of the law and our democratic institutions.
In this sea of uncertainty only one thing is certain: Our country IS in deep and serious trouble. But as H.E President Nelson Mandela once said: "It is now in our hands.”
Issued by Mzwanele Manyi, Spokesperson, J.G Zuma Foundation, 22 November 2022
