Correctional services commissioner asks for ‘representations’ on Zuma parole

The DA insists former president Jacob Zuma would have to spend at least 55 days in prison before correctional services commissioner Makgothi Thobakgale would be lawfully entitled to consider an application for ordinary parole. 

This was the view expressed in a letter from the DA’s attorneys to Thobakgale after he wrote to “interested parties” last week asking them for representations on how to deal with the vexed question of Zuma’s parole.

Thobakgale wrote to interested parties after the Constitutional Court’s judgment two weeks ago that effectively set aside as unlawful the decision to grant Zuma medical parole. 

The ConCourt dismissed an appeal against the order of the Supreme Court of Appeal (SCA). Its effect was that the SCA order stands. The SCA had ordered the decision to grant Zuma medical parole was invalid and set it aside.

Zuma served less than two months of his 15-month sentence handed to him by the ConCourt for contempt of court after he failed to obey its order to abide by the lawful summons of the state capture inquiry.

In September 2021 he was released on medical parole by former correctional services commissioner Arthur Fraser. 

That decision was set aside as unlawful by the courts. However, the SCA judgment left it in the commissioner’s hands to decide whether he was empowered by law to consider whether the time Zuma has already spent on medical parole can be considered in determining “the remaining period of his incarceration”.

The SCA judgment said the effect of its order was that, in law, Zuma would be in the position just before Fraser’s decision. 

It is an unusual situation for Thobakgale now because Zuma has already served the full term of his sentence on medical parole. It is understood Thobakgale has already obtained at least two legal opinions on his options.

In a letter to the DA on Thursday, Thobakgale said his decision to seek representations was based on the Administrative Justice Act which required anyone who might be affected by an administrative decision be given a reasonable opportunity to make representations.

In the DA’s letter, the party said the import of the SCA judgment was that Zuma must immediately be returned to Estcourt prison.

“If he fails to do so, you are obliged to ensure he is returned to the Estcourt Correctional Centre, by arrest if necessary.” 

The DA’s letter said both the high court and the SCA ordered Zuma’s return to custody and that he was, in law, in the position just before his release on medical parole. Given that, the crucial part of the SCA judgment when it came to Thobakgale’s decision were the words “if empowered by law”.

“Had Mr Zuma not been released on medical parole, the last day of the non-parole period would have been October 30 2021. He would have been eligible for ordinary parole from October 31 2021 onwards. Mr Zuma was granted medical parole on September 5 2021. At the time, he had 55 days of his sentence left before becoming eligible for ordinary parole,” said the letter. 

“It follows that Mr Zuma must return to prison and serve 55 days of his sentence. From then he will be eligible for ordinary parole,” said the letter. 

“Interested parties” would include the former president. During argument before the SCA, his lawyers and the legal team for the correctional services department argued it would be unfair to make him go back to prison as parole is a form of sentence and it would be effectively punishing the former president twice for the same offence.

The DA may make further submissions and its lawyers have asked the commissioner for further information including “any facts and/or applications (including any received from Mr Zuma) that you intend to consider in taking the proposed decision”. 

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