It is not surprising the SCA confirmed the granting of medical parole to former President Jacob Zuma – by the erstwhile Commissioner of Correctional Services, Arthur Fraser – was unlawful and invalid, because Zuma did not meet the medical criteria for the granting of this kind of parole.

‘Medical parole can only be granted if the Medical Parole Advisory Board confirms that the prisoner is either terminally ill or physically incapacitated,’ says constitutional law expert Professor Pierre de Vos.

‘Zuma will almost certainly approach the Constitutional Court to ask for leave to appeal against the judgment of the SCA. Assuming that leave to appeal will be refused because there is little prospect that the appeal will be successful, Zuma will have to go back to prison.’

He notes the court explained: ‘Mr Zuma’s position as it was prior to his release on medical parole will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Estcourt Correctional Centre to do so.’

Writing on his Constitutionally Speaking blog, De Vos says the ruling confirmed the position that when a court invalidates a decision, it is as if the decision was never taken.

‘This means that in terms of calculating the length of his remaining sentence, Zuma is now in the exact position he was in on the day he was unlawfully released on parole.’

He adds: ‘The legal position is, therefore, that Zuma has only served two months of his 15-month prison sentence. He will have to serve approximately two more months in prison before he would qualify for release on ordinary parole or correctional supervision.’

De Vos explains his reasoning: Section 73(6)(aA) of the Correctional Services Act states that offenders serving a sentence of less than 24 months ‘may not be placed on parole or day parole until such offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, a quarter of the sentence’.

He says as the SCA declined to express an opinion on whether the time spent by Zuma on ‘unlawfully granted medical parole’ should be taken into account in determining the remaining period of his incarceration, ‘some of his supporters wrongly interpret the decision as giving the Commissioner of Correctional Services an unfettered discretion to allow Zuma not to serve the rest of his sentence’.

De Vos responds: ‘But, as the SCA made clear, the commissioner can only do what he or she is legally empowered to do in terms of the relevant legislation.’

De Vos notes the relevant legislation prohibits the release of an offender serving a sentence of less than 24 months before an offender has served at least a quarter of their sentence.

‘This must mean that once Zuma has served a quarter of his sentence, the commissioner will be able to consider any application for parole, and at this point the commissioner may arguably take into account the time spent by Zuma on unlawfully granted medical parole.’

De Vos adds whether this would favour Zuma or count against him when he applies to be released on parole, remains an open question.

‘I have not been able to find any other provisions in the Correctional Services Act that would allow the commissioner to deduct the period in which Zuma was on invalidly granted medical parole from his overall sentence. Had Parliament not amended the Correctional Services Act in 2011 in an attempt to limit the abuse of medical parole, the SCA might not have been in a position to invalidate the sham medical parole.’

He says Zuma’s personal physician, Dr QSM Mafa from the South African military, as well as the Surgeon General, had supported the application for medical parole. Mafa, he adds, seemed to have done so ‘by making claims about Zuma’s health that may not have been entirely accurate’.

Mafa had responded to the question of whether the offender suffered ‘from a terminal disease or condition’ by answering ‘yes’, which De Vos notes was a ‘obviously not true’.

He says this raises questions about the reliability of medical certificates – provided by members of the SANDF medical services in other court proceedings as well as to the Zondo Commission of Inquiry – about Zuma’s health.

‘It will be interesting to see how credible courts will consider future sick notes of this kind to be.’

Full analysis on the Constitutionally Speaking blog