By Lehlohonolo Lehana.
Jacob Zuma and the Department of Correctional Services have been granted leave to appeal to the Supreme Court of Appeal (SCA) against the ruling handed down by the Pretoria High Court last week which ordered the former president back to prison.
Their application for leave was heard by Judge Elias Matojane – who also delivered the ruling last week – on Tuesday and decided on the same day.
Matojane said in his judgment, handed down immediately after argument, that he believed there was a realistic prospect that another court might reach a different finding to his own. He said the matter warranted the attention of the Supreme Court of Appeal to bring certainty to the interpretation of the Correctional Services Act and its regulations.
“I’m also of the view there’s a reasonable possibility that another court may find [differently to] the order that [Zuma’s] time spent on medical parole should not count toward fulfilling his sentence, as this impacts on him unfairly in that it was not his decision but that of the commissioner to be released on medical parole.”
“His meetings with political allies and his prayer meeting [after his release] was a once off thing and his freedom of movement is restricted, this has an impact on his dignity and he is serving his sentence albeit outside prison; and because of his illness and advanced age he needs compassion, empathy and humaneness.”
Arguing in support of leave to appeal, legal counsel for Zuma, Adv Dali Mpofu, said Matojane’s judgment was “punitive” even if Fraser’s decision to grant medical parole was irregular — which he did not concede.
He said Zuma was a sickly person with comorbidities who deserved compassion because of his advanced age and being on medical parole was still a form of punishment because he did not have freedom of movement. The prison authorities had indicated that there was no prison in South Africa that was equipped to cater for Zuma’s medical condition and so sending him back to prison was “like a death sentence”.
Ismail Jamie, for the DA, accepted that the 79-year-old Zuma was sickly, but stressed that Matojane’s judgment was based on the facts of the case and was not punitive but legal and justified.
He and legal representatives for the Helen Suzman Foundation and AfriForum, which were also involved in the application for the setting aside of Zuma’s medical parole decision, argued that Matojane should reject the application for leave to appeal as it had no prospect of success.
Zuma was sentenced to 15 months’ imprisonment by the Constitutional Court for contempt of court after he breached its earlier court order to abide by the state capture commission’s summons and appear before it.
However, less than two months into his sentence, former correctional services commissioner Arthur Fraser released him on medical parole,— against the recommendation of the medical parole advisory board.
Matojane last week found that the decision was unlawful and set it aside.
He said another court may consider that because of Zuma’s illness and advanced age, he needs to be treated with “compassion, empathy and humanness”.
The Jacob Zuma Foundation has welcomed the ruling in favour of former president Zuma after He was granted leave to appeal his prison parole judgment after he was ordered to return to jail to complete his 15-month prison sentence for contempt.
Meanwhile the African National Congress (ANC) has poured cold water over its KwaZulu-Natal leadership’s hopes to join former President Zuma’s application to appeal a High Court judgment sending him back to jail.
This after the party’s national executive committee – which is its highest decision-making body in between conferences – resolved to adopt a wait-and-see approach on the matter.
The ANC in KZN wanted support from its party before heading to court.
ANC KZN leaders have been at pains to try to appease different camps in their province, which includes not wanting to be seen as if they had turned their back on the former president.