The Constitutional Court’s decision not to consider an appeal by the National Commissioner of Correctional Services in Jacob Zuma’s parole matter means that Zuma must now go back to prison to serve the remaining part of his 15-month sentence, subject to his early release on either parole or on any other ground provided for in the law.

The question now, says constitutional law expert Professor Pierre de Vos, is whether a way could be found (or ought to be found) to spare Zuma from further incarceration.

He notes the SCA judgment invalidating the granting of medical parole to Zuma made clear this left him in the position ‘as it was prior to his release on medical parole’.

So whatever decision is taken by the commissioner about Zuma’s possible early release from prison on parole or under correctional supervision, in terms of the SCA judgment, Zuma is first required to return to prison.

In his analysis on his Constitutionally Speaking blog, De Vos notes if Zuma goes back to prison, his stay there might well be short-lived, as it may be possible for the commissioner to place him under correctional supervision and release him from prison almost immediately afterwards.

This he is permitted to do if he believes this is the appropriate course of action after taking into account the relevant circumstances of the case.

The SCA made clear that ‘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 for the commissioner to decide.

However, De Vos notes the commissioner can only do so if he is empowered by law to do so.

De Vos says the Correctional Services Act ‘does not seem to empower the commissioner to count the time spent on unlawful medical parole’ as part of the sentence already served by Zuma, who has only served 59 days of his 15-month sentence.

As the commissioner is bound by section 73(6)(a) of the Correctional Services Act, which allows the granting of parole for offenders like Zuma only after they had served at least a quarter of their sentence, Zuma would have to serve just short of another two months of his sentence to qualify for release on parole.

However, De Vos says nothing in the Act prohibits the commissioner from considering the time spent by Zuma on unlawful medical parole as a factor to justify his immediate release from prison by placing him under correctional supervision.

‘This he would be empowered to do because he is granted a broad discretion by section 75(7)(a) of the Act to place offenders serving sentences of less than 24 months under correctional supervision – even when they have not served one-quarter of their sentence.’

De Vos notes President Cyril Ramaphosa may also grant Zuma parole or to shorten (remit) his sentence.

Section 81 of the Correctional Services Act grants sweeping powers to the President to ‘authorise the placement on correctional supervision or parole of any sentenced offender’, or to ‘remit any part of a sentenced offender’s sentence’.

He adds it would be entirely lawful for Ramaphosa to immediately order Zuma’s release on parole or to shorten his sentence to allow for his immediate release – as long as this decision is rational.

This, says De Vos, raises the question whether Zuma ought to be released before he had served the minimum required part of his sentence.

He says he generally favours the early release of offenders like Zuma who do not pose an obvious threat to others. Zuma’s advanced age, the fact that he spent time on medical parole and was not completely free, and also his alleged bad health – would also mitigate against the need for him to serve more of his sentence.

However, De Vos notes the ‘pressing’ argument against Zuma’s early release from prison – the nature of the conduct for which he was punished and the threat this posed to the entire legal order and the rule of law.

According to this argument, it is necessary to protect the legal system and democratic institutions from Zuma’s ‘scurrilous’ campaign and to affirm he is not above the law, by requiring him to serve at least one-quarter of his sentence before being considered for release on parole.

De Vos says he keeps changing his mind on this matter.

‘But considering the fact that Mr Zuma faces incarceration for no longer than two months, as well as the fact that he will be held in favourable conditions unlike anything ordinary prisoners face every day, I believe (for the moment) that releasing Mr Zuma before he qualifies for ordinary parole would be a mistake.’

Full analysis on the Constitutionally Speaking blog