IRR seeks guidance on SCA ruling on Zuma

21 November 2022

The IRR is exploring legal avenues in light of the Supreme Court of Appeal (SCA) ruling on ex-President Jacob Zuma's unlawful release on medical parole.

The SCA ordered that Zuma must go back to Estcourt Correctional Centre because his release on medical parole was unlawful. "Mr Zuma," the SCA stated in a unanimous judgment penned by Justice Tati Makgoka, "has not finished serving his sentence. He must return to the Escourt Correctional Centre to do so."

However, the SCA added that "[w]hether 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" of the Department of Correctional Services (DCS), Makgothi Thobakgale.

As such, the SCA has found that the Commissioner of the DCS acted unlawfully by releasing Zuma, yet has determined that the same office must now decide whether to remedy that unlawful conduct by releasing Zuma a second time. This is not easy to understand.

If there was any doubt that the DCS, having unlawfully released Zuma in the first place, would let him off the hook no matter what thereafter, then such doubt was put to rest when the DCS released a "media statement to the effect that Mr Zuma had completed his sentence", which, as the SCA put it, was a "premature" decision, "not…validly made".

To explain, nevertheless, why the SCA is deferring to the DCS on whether to act as if Zuma has lawfully served his sentence after all it invoked "the doctrine of separation of powers”, stating: “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 [DCS] in this instance."

According to the judgment, the Helen Suzman Foundation therefore "conceded" that the courts should defer to the DCS if they to decide to release Zuma the second time. However, in following the Helen Suzman Foundation to this line of deference, the SCA appears to have forgotten that the SCA has not deferred to the DCS "in this instance" on the very question of "when and how he…qualifies for and is to be released on parole", because the "separation of powers" doctrine allows unlawful executive action to be revoked and remedied.

The SCA engaged the IRR critically, as the friend of the court, amicus curiae, in a manner that the IRR's legal team will take into respectful consideration. The IRR had argued that because Zuma was found guilty of contempt of court, as a sui generis category of its own kind, he must be dealt with according to the established rules of such cases. In practical terms, this means that Zuma was never eligible for parole, and is still not eligible for parole, and should have filed any application for early release with the same court that issued his sentence, namely the Constitutional Court. This proposition was backed up by Constitutional Court precedents including in De Lange vs Smuts.

However, the SCA seems to rewrite South African law by treating contemnors as if they are ordinary criminals that have had the benefit of a criminal trial and a right to appeal, which Zuma never had. Justice Makgoka wrote: "I accordingly conclude that a person convicted and sentenced for contempt of court ordinarily falls to be dealt with in terms of the laws relating to prisons, including the privilege to be released on parole if they qualify. It is immaterial (a) that the proceedings which culminated in the sentence were criminal or civil, and (b) whether the order for their imprisonment is coercive or punitive".

The apparent contradiction between the SCA's judgment and established South African law, including Constitutional Court precedents and the Correctional Services Act, is concerning. As such the IRR must consider its legal options.

Said Gabriel Crouse, IRR Head of Campaigns: "The SCA seems to have said the DCS broke the law by letting Zuma out but is allowing the DCS to fix this by letting him out again. I am not a lawyer, so I am looking for someone to tell me how that makes sense."

He added: "In the past if you insulted judges or refused to testify then a court could throw you in prison through a special process (without ordinary trial), but once you say sorry or go testify properly the court can release you again. The SCA seems to have made a new rule that says purging your contempt makes no difference to the court anymore. But I think the SCA is supposed to apply the rules to Zuma, not make up new rules."

The upshot is that if the IRR's arguments were mistakenly rejected by the SCA then Zuma must not only go back to prison, he must stay there for 13 months. If he wants release earlier than that he should apply to the Constitutional Court directly by, for example, supplying the evidence to that Court that he would have submitted to the State Capture Commission.

Issued by Gabriel Crouse, IRR Head of Campaigns, 21 November 2022