South Africa is a country unsuccessfully searching for post-Zuma space

18 Jul 2023

Last week’s decision by the Constitutional Court confirming the illegality of Arthur Fraser’s decision to release former president Jacob Zuma on medical parole has brought upon even more frenzied debate about Zuma’s future. For some, this brings back memories of what happened when he began his jail term in July 2021. For others, it is about the rule of law, for all of us. While there is no evidence for now that this will lead to violence, it is bound to turn into a barrage of emotional arguments.

Last week the Constitutional Court said it would not hear Zuma’s application to overturn a previous decision of the Supreme Court of Appeal that he should not have been granted medical parole by his acolyte Arthur Fraser. He served two months in jail after the Constitutional Court said he had defied its earlier order that he finish his testimony at the Zondo Commission.

There is now much legal debate about what this means, with some consequences clearer than others.

It is obvious that Fraser’s decision to overrule the decision of the Medical Parole Board was always wrong. Normally, this would mean that a decision would be reversed, and Zuma would be in the same position that he was in before the decision was made.

Here, it appears things are slightly different – much time has passed, and the 15-month sentence that was imposed on him has obviously finished.

However, medical parole is normally granted only to inmates who are terminally ill, and thus, insofar as is known, it has never before happened that a person granted medical parole should now go back to prison, not even Schabir Shaik. Particularly when their sentence would have been deemed to have ended.

Contrasting views

This is where some of the arguments now start.

For some, both lawyers and ordinary mortals, he must return to jail. The law is the law, the decision to grant him medical parole was wrong, and therefore he must serve out his term behind bars like any other prisoner (in reality, he would not have served much more time before being eligible to apply for ordinary parole, anyway).

For others, again some without an LLB and some with it, the person who made the incorrect decision was Fraser, and all Zuma did was to comply with the decision as it was made. It would have been nonsensical for him to apply for medical parole, receive it, and then not act on it.

There is of course, a counter-argument to that, which is that it is well known that Fraser and Zuma follow the same political agenda, and Zuma benefited from the actions of a person known to be a closely aligned ally.

Also, what consequences could Fraser really suffer now that he is no longer in the government’s employ?

These contrasting views, and informal legal opinions, may well explain why current Correctional Services Commissioner Makgothi Thobakgale has not yet made any public statement about what course of action he would undertake.

Strong statements

In the meantime, unsurprisingly, there are now many strong views being expressed.

Jacob Zuma Foundation spokesperson Mzwanele Manyi appeared to claim in an interview on SAfm on Monday morning that Zuma is “so hated” that he cannot receive medical care in this country.

In response to a question from radio host Elvis Presslin about why he was receiving medical care in Russia when there was proper care available here, he first answered, “Where is Mthembu today, with that kind of accolade for our hospitals?”

This is in reference to the former Communications Minister Jackson Mthembu, who died during the pandemic.

Then Manyi said:

“Because Jacob Zuma is so hated. I think President Zuma is within his rights to have all types of scepticism. Even medical people, nobody can be trusted these days. So indeed the country could have the wherewithal to do it, but in terms of ethics, in terms of hatred that President Zuma is suffering in this country, as the foundation, we always advise him; go to places where there is no consensus on hating you, so we don’t trust that people working around President Zuma have his best interests at heart”.

In short, Manyi appears to be claiming that medical staff, nurses and doctors in South Africa may conspire to hurt, or even kill, the former president.

This is an astonishing claim, made with zero evidence.

And it is made against health workers who have a long track record of caring for anyone, no matter their beliefs, status or role in our society.

But Manyi is not alone in the intensity of his feelings.

Over the weekend EFF leader Julius Malema said that President Ramaphosa should issue a pardon to Zuma, saying “We have reached a point where we must choose peace over all these types of things that we are talking about. To say no one is above the law and all of that... Zuma has served – it’s enough.”

Of course, this would be one legal way of ending the entire issue, could well allow Ramaphosa to appear politically magnanimous, and would make it hard for Zuma and his supporters to criticise him in public.

It is important to remember that one of the enduring dynamics of Zuma’s political career has been the contest between his political power and the power of the rule of law.

In 2009, just before the elections, he was able to use that political power to stop the NPA from charging him with corruption after the courts had found Schabir Shaik guilty of paying him bribes.

It appeared in 2021 that his power had weakened to the point where he could be jailed.

One of his key claims has been that the judiciary has always been biased against him. Again, no evidence of this has been provided.

Rule of law

But those who support Zuma are likely to continue their attacks on judges. At least one caller on talk radio has already claimed that if they (judges) “treat us like apartheid, we will do to them what we did to apartheid”.

For some, this leads to fears that if he were jailed, the violence that occurred in 2021 could happen again.

The fact that so few people have been arrested for that violence underscores this.

As does the fact that some that incited it, such as his daughter, Duduzile Zuma-Sambudla, are still inciting violence on Twitter, with no apparent action being taken against them.

However, on balance, it may well be some time before the legal arguments around what will happen are resolved. And in fact, it is even possible that Thobakgale asks a court for some direction – and that would lead to protracted applications.

Also, the conditions on the ground that led to that violence in 2021 may well have changed.

First, it does not appear that Zuma has since increased his political power, rather the process of power ebbing away from him appears to have continued. He is simply a yesterday’s man, rather than the old big man of South Africa, his political power has ebbed tremendously in the years since he resigned.

Also, one of the key elements that led to the violence two years ago was the pandemic, and the hardship experienced during the lockdowns.

Of course, it is foolish to predict the future. And it is entirely possible that many people are poorer than they were two years ago (in some cases, directly because of that violence).

That said, it seems unlikely that Zuma still has the ability to provide the “trigger event” that could lead to such scenes again.

While these debates will continue for several months, in the longer run there is a much more important conversation to have.

It’s about how to strengthen the rule of law and to make sure those who are guilty of committing acts of violence, and inciting violence, are held legally accountable. DM

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South Africa

Contrasting views

Strong statements

Rule of law