Zuma wins battle but the war is still not over

Former president Jacob Zuma may have won the latest battle, but the war is not over yet.

Zuma and the national commissioner of correctional services were yesterday granted leave to appeal to the Supreme Court of Appeal (SCA) against the ruling handed down by the High Court in Pretoria last week ordering him back to prison.

But as legal expert Dr Llewelyn Curlewis pointed out afterwards, they still have a long way to go to overturn last week’s order.

“The test for leave to appeal is whether another court could possibly reach another conclusion,” Curlewis said,

“But when you get to the stage where you now have to argue your appeal then the test is way more difficult because now you have to convince the court of appeal the judge was wrong.”

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Zuma was granted medical parole in September after serving two months of the 15-month prison sentence he was slapped with for contempt of the Constitutional Court in late June. The medical parole advisory board had recommended he not be released but then prisons boss Arthur Fraser overruled it.

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, on the back of legal challenges from the Democratic Alliance (DA), the Helen Suzman Foundation (HSF) and AfriForum.

The ruling prompted applications for leave to appeal from Zuma and the department of correctional services, though, and these were heard yesterday, with a ruling in their favour handed down afterwards.

Matojane also presided over yesterday’s hearing and in granting leave to appeal, said the case raised an important question of public law.

He also said he believed there was a “reasonable possibility” that another court may disagree specifically with his order that Zuma’s time spent on medical parole not be counted towards his sentence – pointing to possible findings that it impacted on the former president unfairly in that it was not his decision.

ALSO READ: Zuma appeal raises important public law questions, court says in granting leave

During arguments yesterday, Advocate Dali Mpofu, for Zuma, had argued this part of the order was “completely out of kilter with any precedent” as well as with “the law on parole or the meaning of parole in the very first place”.

The HSF – which together with AfriForum and the DA had opposed leave to appeal – had argued, though, Zuma “unduly benefitted from a lesser sentence because of the unlawful decision releasing him on medical parole” and that “in these circumstances, it is just and equitable that the time he has spent on medical parole not count toward fulfilment of his sentence”.