Judge Matojane has granted former president Jacob Zuma and the Department of Correctional Services leave to take his ‘go back to jail’ ruling to the Supreme Court of Appeals.
Zuma’s legal team tore into the Pretoria High Court’s recent order for him to return to prison on Tuesday morning.
“Not only is such an order completely out of kilter with any precedent, but it is also out of kilter with the law on parole or the meaning of parole in the very first place,” his advocate Dali Mpofu SC said when the case came before the same court again, for the hearing of an application for leave to appeal the order lodged by both Zuma and the Department of Correctional Service (DCS).
Zuma was granted medical parole in September – after serving just two months of the 15-month prison sentence he got slapped with for contempt of the Constitutional Court in late June. But Pretoria High Court Judge Elias Matojane last week declared Zuma’s early release unlawful and ordered his return to prison – ruling, in addition, that the time he had recently spent on the outside not be considered time served.
This on the back of legal challenges from the Democratic Alliance (DA), the Helen Suzman Foundation (HSF) and AfriForum. Zuma and the DCS have now brought an application for leave to appeal, though, which Matojane is currently hearing.
Proceedings kicked off with Mpofu taking the pulpit and honing in on the part of the order which stated that Zuma’s time out not be counted towards his sentence – arguing that in terms of the law while on parole, a parolee was still serving his or her sentence.
Judge Matojane, though, said he accepted this when it came to ordinary parole but that “the difference here is that at the time he was released on medical parole, he had not served enough time to qualify for ordinary parole”.
“‘Assuming I was correct in my finding that the parole decision was unlawful and unconstitutional … My argument here is if his release on parole was unlawful, he has to go back to prison because he didn’t qualify for ordinary parole,” the judge said.
But Mpofu stuck to his guns.
“Let’s assume he was unlawfully released on parole on 5 September and on 6 September, the court sat – what your lordship is saying would be correct … But the issue in this case is whether if that decision is taken 20 years later – when he has finished his sentence or has passed the threshold for ordinary parole – the court can’t sit as if it was sitting on the day after,” he charged.
Advocate Ismail Jamie SC – for the DA, which is opposing the application for leave to appeal – also addressed the court on Tuesday morning and said the DA was defending the part of last week’s order that stated Zuma’s time on medical parole would not count towards his time served.
Jamie said Zuma had “access to the best possible medical care while in prison” and was being attended to by various medical professionals. But he had now been released into the care of his wife who has “no medical expertise,” Jamie continued, and these conditions are actually “sub-optimal” compared to those he enjoyed during his incarceration.
He argued there were no prospects of success in the appeal bid.