By Lehlohonolo Lehana.
The Constitutional Court dismissed the Department of Correctional Services’ application for leave to appeal a ruling that former president Jacob Zuma must go back to prison.
In 2021, the department’s then national commissioner, Arthur Fraser, released Zuma from prison on the grounds that the former president, who was sentenced by the ConCourt for defying the court’s order that he should testify at the state capture commission.
In the ruling handed down on Thursday, the apex court found DCS’s appeal “bears no reasonable prospect of success” and dismissed the application with costs.
DCS sought to appeal the Supreme Court of Appeal’s ruling in November last year that Fraser unlawfully authorised Zuma’s release on medical parole in September 2021.
Zuma was jailed for contempt of court after he refused to obey the Constitutional Court’s order that he must appear before the State Capture Commission.
He was released after serving a fraction of his 15-month sentence which the ConCourt had handed him.
In 2022, the Supreme Court of Appeal ruled that the parole was “unlawful”, and that Zuma had not finished serving his sentence and must return to jail.
The unanimous judgment penned by Judge Tati Makgoka, said Zuma must return to the facility and complete his sentence.
Fraser, who released Zuma on medical grounds, had gone against the medical parole board, which found that Zuma’s medical condition did not warrant his release from prison.
In a majority judgment penned and delivered by then acting Deputy Chief Justice Sisi Khampepe, the court said it was compelled not only by Zuma’s defiance of its order to comply with summons to testify before the state capture commission, but his casual and “scandalous” attacks on the courts.
The sentence is related both to the seriousness of the default and the contumacy of the respondent and the order is influenced by the need to set an example and assert the authority of the court,” it read.
It would be naive to believe that handing down a suspended sentence, aimed at still bringing him to testify, would have the desired effect, Khampepe said.
In fact, it only posed the likely risk of the former head of state redoubling his efforts to undermine the rule of law. Khampepe referred to Zuma’s repeated statements that he would rather be jailed than co-operate with the commission.
Meanwhile the Department of Correctional Services says it is studying the Constitutional Court judgment which denied an application for leave to appeal by Zuma.
Spokesperson Singabakho Nxumalo says the department is seeking legal advice, and will comment further in due course.