the Supreme Court of Appeal (SCA) ruling who invalidated the granting of medical parole to Mr Jacob Zuma, made it clear that this leaves Mr Zuma is in office “as he was before his release on medical terms“. This means that Mr. Zuma.”He has not finished serving his sentence” and that he “must return to the Escort Correctional Facility to do so.”
It is important to note that whatever decision the Commissioner makes regarding Mr. Zuma’s possible early release from prison on parole or under correctional supervision, pursuant to the SCA ruling, Mr. Zuma is first required to return to prison.
As has often happened in the past when he encountered legal difficulties, Mr Zuma rekindled an undisclosed medical condition, and traveled to Russia, allegedly to receive medical care there. If he postpones his return to South Africa indefinitely, or if he refuses to return to prison upon his return, the National Correctional Services Commissioner will be able to rely on 39(6)(a) of Correctional Services. services The law allowing him (“if he is satisfied that a convicted offender has been wrongfully released from a correctional center”) to “issue a warrant for the arrest of such a convicted offender for readmission to a correctional center, to serve the remainder of his sentence.”
If Mr Zuma returns to prison, his stay there may be short-lived, as it may be possible for the National Commissioner to place him on correctional supervision and release him from prison almost immediately thereafter. He is allowed to do so if he believes it is the appropriate course of action after considering the relevant circumstances of the case.
Do these circumstances include time spent on wrongful medical parole?
The SCA made it clear that “whether time spent on medical parole unlawfully granted by Mr Zuma should be taken into account in determining the remainder of his imprisonment” is for the Commissioner to decide. However, the commissioner can only do so if he is authorized to do so by law.
The Correctional Services Act does no It appears to enable the National Commissioner to count time spent on unlawful medical parole as part of the sentence already served by Mr Zuma. This means, for the purposes of granting normal parole, that Mr Zuma has served only 59 days of his 15-month sentence (about one-eighth of his sentence).
Because the commissioner is bound by Section 73(6)(aa) of the Correctional Services Act, which allows parole to be granted to offenders like Mr. Zuma only after they have served at least a quarter of their sentence, Mr. Zuma will have to serve just under two more months of his sentence to qualify for parole.
But as I read the law, nothing in it prevented the National Commissioner from looking at Mr. Zuma’s time spent on unlawful medical parole as a factor to justify Mr. Zuma’s immediate release from prison by placing him under correctional supervision. He would be empowered to do so because he was given broad discretion under Section 75(7)(a) of the Act to place offenders serving sentences of less than 24 months on correctional supervision – even when they have not served a quarter of their sentence.
If Mr Zuma is released under correctional supervision, he will be subject to strict conditions that he will have to agree to in advance. These restrictions can include a ban on leaving his or her home or jurisdiction, using drugs and alcohol, visiting specific places, contacting specific people, threatening specific people with word or action, and committing other criminal offenses. If Mr Zuma does not abide by the conditions imposed on him, he could be sent back to prison to serve the rest of his sentence.
A burning car at a roadblock during violent clashes in the city center of Johannesburg, South Africa, on July 11, 2021 (Photo: EPA-EFE/Kim Ludbrook)
Presidential lifeline
What the SCA ruling does not say is that Mr Zuma could also avoid serving anything but a nominal amount of the remaining part of his sentence if the chief decides to grant him parole or shorten (convert) his sentence. This is because Section 81 of the Correctional Services Act gives the president sweeping powers to “authorize the placement under correctional supervision or parole of any convicted offender,” or “transfer any portion of a convicted offender’s sentence.”
When the Chief acts in accordance with Section 81, he is not bound by the other provisions of the Correctional Services Act and can authorize the granting of parole even if the offender has not served the minimum required term. It would therefore be perfectly legal for President Cyril Ramaphosa to immediately order Mr Zuma’s conditional release or shorten his sentence to allow his immediate release – as long as that decision was reasonable.
If I am correct that Mr Zuma’s immediate release would be lawful under certain circumstances, it raises the more difficult question of whether Mr Zuma should to be released before serving the required minimum portion of his sentence. I think there are compelling arguments for or against his early release, although it is my principled view that his early release may be undesirable.
To imprison or not to imprison?
The most compelling argument in favor of Mr Zuma’s immediate release is the one that applies more broadly to non-violent offenders who languish in prison even though they pose no threat to society. Prison is by its very nature cruel and inhumane. It limits the human rights of individuals, rarely rehabilitates offenders if they need to, and places enormous strain on state resources.
Nor does incarceration appear to be much of a deterrent, negating one of the main purposes of keeping non-violent offenders in prison. One reason for this is that only a small number of perpetrators have ever been prosecuted, convicted, and imprisoned, which means that most perpetrators have every reason to believe that they will never be caught and punished. For these criminals, it does not matter that the few offenders caught are sentenced to long prison terms.
As stated by the Constitutional Court S vs. McQueenan “The greatest deterrent to crime is the possibility that offenders will be caught, convicted and punished. It is what our criminal justice system is currently lacking.”
Moreover, as my colleague It has been shown by Anine Kriegler and other researchers beforeInequality is arguably the most accurate indicator of crime levels in a country. Other solutions — including, I suggest, mandatory minimum prison sentences for certain crimes — are simply to plug the holes in a leaking bucket.
In the South African context, as in the United States, the criminal justice system’s reliance on harsh prison sentences actually targets poor black men, which is made worse by the fact that white-collar criminals with deep pockets are rarely convicted, if They were, however, tended to receive lighter penalties. For all these reasons, I generally favor the early release of offenders like Mr Zuma who pose no clear threat to others.
Mr. Zuma’s personal circumstances—including his advanced age, the fact that he served time on medical parole and was not fully free, and (if he can prove he was ill) also his alleged poor health—would also mitigate the need for Mr. Zuma. Zuma to serve more than his sentence.
Residents remove looted goods from supermarkets and convenience stores in Soweto district, near Johannesburg, South Africa, on July 12, 2021 (Photo: EPA-EFE/Kim Ludbrook)
However, in my view it would be wrong to justify his early release based on the fact that there were riots in parts of KwaZulu-Natal and Gauteng after Mr Zuma was imprisoned, and he might speak again. As far as there can be a connection between these events, it points us to the compelling argument against Early release of Mr Zuma from prison. This relates to the nature of the conduct for which he is being punished and the threat this poses to the entire legal system and the rule of law.
Remember, Mr. Zuma was sentenced to 15 months in prison because he refused to obey an order from the Constitutional Court to testify before the State Commission for Seizure, and thus acted in contempt of court. He compounded this disdain by launching baseless vulgar attacks on the Constitutional Court and the judiciary more broadly, which the Constitutional Court did. described as “a series of direct assaults, as well as calculated and malicious efforts” on the part of Mr Zuma to undermine the legitimacy and authority of the court.
Mr. Zuma did all this to avoid having to answer any questions about his participation in State Capture; Thus in order to escape any form of accountability. He seemed to think that he had no duty to comply with the kind of legal obligations which all other citizens have to obey, that he was therefore above the law, that he would make a full outright attack on any institution or person who would dare tell him otherwise, and that he therefore had no regard for the rules and institutions at the heart of Our democratic system.
Former President Jacob Zuma gives a press conference a few days before his arrest in Nkandla, KwaZulu-Natal on Sunday 4 July 2021 (Photo: Laila Duggan)
According to this argument, it is necessary to protect the legal system and democratic institutions from Mr Zuma’s nefarious campaign and to ensure (at least in a symbolic way) that he is not above the law, by requiring him to serve at least a quarter of his sentence before being considered for parole, thus treating him in the same way as Common offenders are treated under the Correctional Services Act.
If he was released because of his status as a former president, or over fears that he and his family might incite or encourage further violence, it would suggest that Mr Zuma was right when he insisted he had the right not to be detained. responsible.
These arguments pull me in two completely opposite directions. I changed my mind about my stance on this issue while writing this column. Then I changed it again.
But given the fact that Mr. Zuma faces no more than two months in prison, as well as the fact that he will be held in favorable conditions unlike anything ordinary prisoners face every day, I believe (for the time being) that Mr. Zuma’s release prior to him qualifying for normal parole would be mistake. DM
