Former president Jacob Zuma was not involved in the decision to grant him medical parole in September, and the Department of Correctional Services believes it has reasonable success to overturn the ruling jailing him.
In addition, acting Correctional Services national commissioner, Makgothi Thobakgale, has told the North Gauteng High Court that being sentenced to direct imprisonment does not prevent an inmate from being freed on any parole, including medical.
These are among the arguments put forward by the Department of Correctional Services in its challenge to Judge Keoagile Matojane’s ruling ordering Zuma to return to prison after it (the department) released him on medical parole three months ago by its former national commissioner Arthur Fraser.
Judge Matojane found that the decision, taken by Fraser, was unlawful and also declared that the time Zuma was out of jail on medical parole should not be counted for the fulfilment of his 15 months sentence by the Constitutional Court for refusing to testify at the commission of inquiry into state capture.
However, in his submissions, Thobakgale said the judge erred in law and fact by finding that because the apex court has already determined direct imprisonment for 15 months and that this was the only just and equitable order to make under the circumstances and rejected other lesser forms of punishment.
”The fact that a court has sentenced an offender to direct imprisonment does not preclude the offender concerned from being considered for parole (in this instance medical parole),” reads the acting national commissioner’s application for leave to appeal.
Thobakgale also disputed Judge Matojane’s contention that Zuma had enjoyed almost three of his 15 months sentence sitting at home in Nkandla and even addressed a virtual prayer meeting implied he was not terminally ill or severely ill or incapacitated and seemed to be enjoying normal life.
”The third respondent (Zuma) has not been released to enjoy staying at home. He is still serving his sentence that was duly imposed by the Constitutional Court albeit under medical parole in the community corrections system,” he maintained, adding that suffering from a terminal disease did not imply that a person cannot talk.
According to Thobakgale, Zuma was not party to the decision to grant him medical parole, and as a result, he was released to the care of one of his wives.
He said Judge Matojane, in ordering Zuma’s return to jail, utilised public law to impose a private law remedy but failed to justify why he had to do so.
The DA, the Helen Suzman Foundation and AfriForum challenged the decision to grant Zuma medical parole in September at the high court.
AfriForum yesterday indicated that its legal team would present reasons why Zuma’s applications for leave of appeal the ruling is simply a waste of the courts’ time and that the application does not have any reasonable chance to succeed.
The ANC’s ally, the SA Communist Party (SACP), maintained that it was crucial for all South Africans to rally behind the supremacy of the Constitution.
”This includes remaining calm, promoting peace and stability, respecting the constitutional rights of the respondents (the department and Zuma) who announced that they will file applications for leave to appeal against the judgment, and respecting the entire due process of the law to take its course up to the end,” the SACP said.
Judge Matojane will hear the department and Zuma’s application for leave to appeal his ruling today.