Issued by the FW de Klerk Foundation on 11/08/2023


On 11 August 2023, after serving just over an hour in the Estcourt Prison, former president Jacob Zuma was granted a “special remission” and walked out of prison a free man thanks to the transparent intervention of President Cyril Ramaphosa. 

In a press briefing that same morning, Correctional Services Commissioner Makgothi Thobakgale and Justice and Correctional Services Minister Ronald Lamola announced that President Cyril Ramaphosa had approved the remission of non-violent offenders in South Africa. The decision was purported to deal with overcrowding in the prison systems, where “the current occupancy rate is 143%, with the overcrowding rate at 43.06%”.  

However, the timing of the decision makes it impossible to avoid the conclusion that its actual purpose was to ensure that its first beneficiary, Jacob Zuma, would not have to complete his 15-month prison term arising from his refusal to cooperate with the Zondo Commission. As Adriaan Basson, Editor in Chief of News24, correctly observed: “It is, unfortunately, inescapable to conclude that this entire special remissions timing was engineered to benefit Zuma.” 

According to the media briefing, “The exercise of exploring special remission commenced on 24 April 2023, when [the Department] lost approximately 1 112 bed space due to dilapidation in most of our centres.” “It will alleviate overcrowding in correctional centres by releasing approximately 9,488 inmates and a further 15 000 inmates who are currently under correctional supervision and parole.”

Nevertheless, the timing of the announcement meant, in practice, the nullification of the 2022 finding of  the Supreme Court of Appeal (SCA) that “Mr Zuma, in law, had not finished serving his sentence” and that the Commissioner of Correctional Services would have to decide “whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration.”

The Background 

On 28 January 2021, the Constitutional Court ordered Mr Zuma to obey all summonses and directives lawfully issued by the Zondo Commission of enquiry into state capture and to give evidence before the Commission when so required.

After Mr Zuma refused to comply with the order, the Court sentenced him to 15 months’ imprisonment.  On 29 June, the Court ordered him to present himself to SAPS by 4 July – upon which Mr Zuma applied to the Court – unsuccessfully – for a rescission order against its previous decision in the case. His subsequent imprisonment on 4 July 2021 sparked the KwaZulu-Natal riots in July 2021 – during which more than 350 people were killed and damage exceeding R50 billion was done to the economy.   

Less than two months after commencing his prison sentence, Mr Zuma was granted medical parole by his old colleague and supporter, Mr Arthur Fraser, then the Commissioner of Correctional Services – against the advice of the Medical Parole Advisory Board. The DA, AfriForum and the Helen Suzman Foundation applied to the Pretoria High Court to have Fraser’s decision set aside.   

On 15 December 2021, the Court “reviewed, declared unlawful and set aside” Fraser’s decision. Mr Zuma immediately appealed the Pretoria High Court’s decision. 

On 21 November 2022, the SCA upheld the decision of the High Court that Zuma’s release on medical parole by former Correctional Services commissioner Arthur Fraser was illegal, invalid and unconstitutional and that “Mr Zuma, in law, had not finished serving his sentence.” 

Further, it held that the issue of “whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration…is a matter to be considered by the Commissioner.” 

The Nature of the Problem

According to Thobakgale, Mr Zuma and the Department have complied with the SCA ruling: “In compliance with the SCA judgment, Zuma did report back to the correctional centre this morning and a consideration has been made as per legislation. The administrative procedures have ensued and Zuma has been processed accordingly.”

The decision, however, raises very serious questions regarding central tenets of the rule of law that nobody is above the law and that all people should be equal before the law.  It also raises serious doubts about President Ramaphosa’s willingness or ability to take effective action against the perpetrators of state capture and unbridled corruption that cost South Africa hundreds of billions of rands during and after Mr Zuma’s presidency.  What will now be done in response to the central finding of the R1 billion Zondo Commission that “the ANC under Zuma permitted, supported and enabled corruption.” What has now become of the President’s duty to “uphold defend and respect the Constitution”, which foundationally relies on the rule of law and respect for the judiciary?

South Africa is facing an accountability crisis because of the continuing failure of Government to take decisive action to combat state capture and corruption at all levels of government and state-owned enterprises. State capture and corruption are among the principal causes of the poverty, inequality, unemployment, loadshedding, violent crime and declining social, educational and health services that constitute the lived daily experience of a majority of South Africans.

The decision to let Zuma walk free not only jeopardises the rule of law, but also the possibility of Government ever truly rooting out corruption and laying the foundation for a democratic and open society where every citizen is equal. 

All this adds to the perception that members of the political elite – such as Mr Zuma and Mr Julius Malema – are treated as if they are above the law. The decision will likely be challenged in court, yet again, in what is likely to be the next episode in the interminable lawfare surrounding former President Zuma’s efforts to avoid accountability. However, it is now very clear which side the government supports: it will do everything in its power to ensure that those responsible for state capture will never be brought to book.  After all, as appeared clearly from the deliberations of the Zondo Commission, the ANC was itself inextricably involved in, and compromised by, state capture. 

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