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Zuma’s parole ruling “out of kilter with our Constitution”

By Sipho Seepe | IOL |

Opinion: Courts do themselves a great disservice when they ignore the precept of justice in their judgment… For now, when it comes to Zuma, there appears to be no judge who is prepared to say “not guilty”. Such a move would be career limiting, writes Professor Sipho Seepe.

The North Gauteng High Court’s ruling which reviewed and set aside former National Commissioner of Correctional Services Arthur Fraser’s decision to place former president Jacob Zuma on medical parole was met with righteous anger, sadness and disillusionment.

Righteous anger at Judge Elias Matojane who seemed blinded by his hatred of Zuma is fully justified – he blatantly disregarded obvious and binding precedent from higher courts. In S v Botha (318 of 2003) [2004] ZASCA 51 (28 May 2004) the Supreme Court of Appeal, made the following observations regarding judicial restraint on matters of sentencing and parole:

“The function of a sentencing court is to determine the term of imprisonment that a person, who has been convicted of an offence, should serve. A court has no control over the minimum period of the sentence that ought to be served by such a person.

A recommendation of the kind encountered here is an undesirable incursion into the domain of another arm of the State, which is bound to cause tension between the judiciary and the executive.

“Courts are not entitled to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive.”

The principle was made even more explicit in another case, S v Mahlatsi 2013 (2) SACR 625 (GNP), at para 27, where the court held that: “Parole is the function of the executive arm of government, and the courts should steer well clear of interfering, unless authorised by law to do so.” That begs the question – why is Judge Matojane willfully blind to this principle?

For those who have been conditioned to hate Zuma with a passion, the ruling is a Christmas gift. For this lot, the spirit of Christmas is completely lost to them. This is what the effect of blinding hatred does to people. Beneficiaries of apartheid, with deep pockets have no qualms in subjecting an ill 79-year-old citizen with a cluster of illnesses, to a very expensive lawsuit whose aim is to humiliate him and keep him in prison. The less said about the ululating blacks the better.

Suffice to say that they represent the type of black person so eloquently described by Steve Biko. Biko wrote; “In the privacy of his toilet his face twists in silent condemnation of white society but brightens up in sheepish obedience as he comes out hurrying in response to his master’s impatient call.”

What makes both the ruling and incarceration egregious is the fact that it stems from acting chief justice Raymond Zondo’s refusal to recuse himself in a case where he was conflicted and where he had also become a witness.

Forget the nonsense that Zondo was appointed by Zuma. Zondo ruled himself out from an impartial adjudicator the minute he became embroiled in matters of fact that involved him. This is basic. Honourable judges have recused themselves from mere suspicion. In this case Zondo had become unquestionably both a player and a referee.

The sense of outrage stems from the fact that the very incarceration of Zuma was itself problematic. It is a throwback to the days of apartheid when opponents of the system were detained without trial. It bears repeating that two judges of the Constitutional Court accused their own colleagues of having acted unlawfully and unconstitutionally in issuing a custodial sentence against Zuma.

Judge Matojane succumbed to his own prejudices and made rulings that are out of kilter with our Constitution. He failed to understand that Zuma did not place himself on parole and that he was not responsible for whatever procedural defects were there in the process of granting him parole. The decision by the Court to order Zuma to pay cost simply adds salt to the injury.

The same applies to the argument that the time Zuma “was out of jail on medical parole should not be counted for the fulfilment of (Zuma’s) sentence of 15 months imposed by the Constitutional Court.”

It is unfathomable why Matojane is oblivious to the fact that Zuma’s parole did not release him from his sentence – he continued to be under the most severe restrictions accompanying his status as a parolee.

The notion of a sentence coming to a halt when a prisoner is “out of jail on medical parole” is legally nonsensical. At a basic level, Matojane failed to understand that there is no such thing as a “no fault” parole revocation.

Ironically, the ruling comes just three days after the ANC government had honoured the former president FW De Klerk, a man definitely with blood in his hands, with a State Memorial Service.

Poignantly, it also comes a day before the so-called Reconciliation Day. Reconciliation in the face of injustice means black people must reconcile themselves to daily humiliation and to continue to suffer peacefully in the country of their birth.

For the ordinary masses the ruling does not come as a surprise. They have come to terms with the fact that Zuma will never receive any justice from the current judiciary. The level of investment that has gone into maligning him and to also incarcerate him stands in glaring contrasts to the degree of impunity enjoyed by perpetrators of injustice meted out to black people on a daily basis.

It needs emphasising that this ruling has nothing to do with justice. If that was the case, the DA, the Helen Suzman Foundation and AfriForum would have been at the forefront of wanting justice for black people who continue to die at the hands of some white farmers and racists in this country.

Neither have these formations and similar outfits shown displaying any feverish concern about the NPA’s foot-dragging and reluctance to prosecute apartheid war criminals and Truth and Reconciliation Commission’s cases.

At the same time, we must disabuse ourselves of the notion that there is nothing much that will be gained from the incarceration of the former president. Neither should we be surprised when his incarceration is welcomed by certain groupings among the blacks.

The obsession with Zuma by the AfriForum, DA and the Helen Suzman Foundations of this world is deliberate and calculated. It is useful distraction that serves to divert black people from having to deal with the legacy of apartheid.

The persecution of black people who dare to challenge the status quo is par for the course.

Not so long ago public lynching of black people was an daily entertainment for the masters. Enlisting the services of other black people to the service of the master is what the colonialist and their beneficiaries have perfected.

Those that shout from the rooftops about the rule of law seem to have forgotten the accompanying dictum that says “not only should justice be done, but it must also be seen to be done”.

Courts do themselves a great disservice when they ignore the precept of justice in their judgment. Plunging a country into a crisis is very irresponsible. The sanctity of life is not something the court can ignore.

Judicial persecution of black people by beneficiaries of apartheid should be a lesson to those that had swallowed the tranquilising pill of reconciliation.

The only thing black people must come to terms with is that reconciliation means that they must reconcile themselves with the fact that they are a children of a lesser god, and as such will always be subject to persecution and hardship.

Contrary to popular belief, our salvation from this mess does not lie with the judiciary or the so-called “clever blacks”. It is to be found among ordinary people. A reworded quote attributed to Thomas Jefferson, the American statesman, lawyer, philosopher who became the third president of the US is apposite; “Educate and inform the whole mass of the people … They are the only sure reliance for the preservation of our liberty.”

The discerning masses are the only bulwark to safeguard democracy. As the outcome of the local elections suggest, the masses – our people, cannot be fooled for long. Not by the ruling party. Not by the courts. They know what injustice is. They can feel it, they can touch it, and they can smell it from afar.

After all, when some of these judges were nursing their professional careers, these masses, comprising of ordinary folks are the ones that bore the brunt of apartheid injustice. This freedom was brought about through their sweat and blood.

Let’s hope that the former Chief Justice Mogoeng Mogoeng’s warning has not come to pass. Addressing the Nelson Mandela Foundation, the former chief justice Mogoeng Mogoeng he had this to say.

“You must know there is an attempt to capture the judiciary. And a captured judiciary will never be able to use the Constitution as an instrument of transformation. Because, any captured member of judiciary will simply be told or will know in advance when so and so and so and so are involved I better know my place, or when certain issues are involved, well – the decision is known in advance. So and so can’t lose. Be on the lookout, be vigilant and be forceful in making unconformable anybody who seeks to establish a pliable judiciary.”

For now, when it comes to Zuma, there appears to be no judge who is prepared to say “not guilty”. Such a move would be career limiting. IOL