Former president Jacob Zuma is likely to escape being sent back to prison as the court would shy away from double punishment, according to a legal expert.
Mpumelelo Zikalala of Zikalala Attorneys said yesterday Zuma will not be sent to jail because he “was not the person that took the wrong decision of releasing himself”.
“It was a decision beyond his control. The failure of the decision maker should not fall on him and [he] should not be punished for it.”
According to Zikalala, should the court find against Zuma and the time he spent outside should not be considered, it would mean he goes back to prison for at least three or four months.
“If you add the two months that he was already in prison, then he would be legible for parole,” Zikalala added. The time he has spent outside prison would not count if he is sent back to jail, hence my argument to say I do not see the court taking that particular hard line of saying that they are going to ignore the time that he has spent outside.”
Zikalala said former correctional services commissioner Arthur Fraser would only be liable for costs if the court found he took the wrong decision by releasing the former head of state on medical parole.
“He would never be sent to prison. The question is why are all these individuals going through so much trouble if there’s nothing meaningful that would happen to the wrongdoer, in this case Fraser?” he asked.
“The only punishment he would get is paying for the punitive costs for the applicants that were in court.”
Democratic Alliance (DA) leader John Steenhuisen said they hoped the court would uphold the high court’s decision that Zuma did not qualify for medical parole and also confirm that it was unlawful, irrational and should be set aside.
Steenhuisen said it would be up to the courts if the former president was sent to prison. However, they were simply demanding equality before the law.
“The [former] president was the beneficiary of an unlawful decision made by a known ally and cadre of his. If such benefit was based on an unlawful decision, then the consequence is Mr Zuma’s,” he said.
Giving his submission at the Supreme Court of Appeal in Bloemfontein yesterday, Advocate Maribolla Mphahlele – acting on behalf of the correctional services department – said Fraser had the power in granting Zuma medical parole. He said the national commissioner could grant medical parole to a sentenced offender provided all the Section 79 1a, b and c requirements were met.
“The DA had considered that the power lies with the national commissioner. We agree with that, however we differ with the DA that the application must be considered by a medical practitioner attached to a correctional facility,” he told the court.
He said Zuma was not released to enjoy staying at home and that “parole is a form of punishment within a whole system of corrections”.
Zuma’s lawyers said the medical advisory board’s recommendation that he did not qualify for medical parole was been misrepresented. Suspended ANC secretary-general Ace Magashule and Carl Niehaus, also suspended, were in court to support Zuma.