- Former president Jacob Zuma and the correctional services department have been granted leave to appeal a ruling which overturned his medical parole.
- The Gauteng High Court in Pretoria had ruled that Zuma should return to prison.
- Zuma was sentenced to 15 months behind bars for contempt of court.
Gauteng High Court Judge Elias Matojane has granted former president Jacob Zuma and the Department of Correctional Services leave to appeal his ruling that the granting of medical parole to Zuma was unlawful and that he should return to prison.
Delivering his judgment, Matojane said the matter needed the attention of the Supreme Court of Appeal in Bloemfontein.
He said another court may find that, because of his illness and age, the former president needed to be shown "compassion, empathy and humanness - the essence of ubuntu".
"I am also of the view that there is a reasonable possibility that another court may find that the order, that [Zuma] time spent on medical parole should not count towards fulfilling his sentence, as these impacts on him unfairly in that it was not his decision but that of the commissioner to be released on medical parole."
Earlier, lawyers representing Zuma and correctional services argued that Zuma "did not grant himself medical parole", but was released by the national commissioner.
However, advocate Ismail Jamie SC, representing the Democratic Alliance, argued that Zuma was treated differently from any other inmates.
Jamie argued that the application for leave to appeal should be dismissed.
He said the DA accepted that Zuma was not in the greatest of health, but that the judge had made his ruling "based on the facts".
Jamie added that there was no evidence that Zuma was physically incapacitated, pointing to his recent public appearances and prayer meetings.
He said, while the judge may feel sympathy for Zuma, there was no legal basis upon which the court should grant him the right to appeal the ruling.
Advocate Max du Plessis SC, for the Helen Suzman Foundation, argued that the former president’s prospects of success on appeal were "underwhelming to the point of vanishing".
He said Zuma had failed to address the merits of the judgment, and that his own evidence was an "own goal".
He also argued that there was no evidence that Zuma was physically incapacitated and that he was unable to take care of himself.
'Takes the cake'
AfriForum’s advocate, TJ Labuschagne, argued that the grounds of appeal for the former president and the department were defined by "logical fallacies".
Labuschagne said the appeals sought by Zuma and the department should fail because they did not have any reasonable prospects of success.
Responding to the submissions made by the respondents, Zuma’s lawyer advocate Dali Mpofu accused Du Plessis of trying to "insult us gratuitously, and we do not appreciate to be patronised as such", when he argued that Zuma’s lawyers had failed to use the appropriate test for leave to appeal.
Mpofu added that Du Plessis’s argument that there was no evidence that Zuma was physically incapacitated "takes the cake".
He also accused the respondents in the matter of having an "ulterior political motive" in challenging the medical parole granted to his client.
Last Wednesday, Matojane found that former National Commissioner of Correctional Services Arthur Fraser was influenced by an error of law into believing that he was entitled to grant medical parole to Zuma, when the Medical Parole Advisory Board found that the former president did not meet the necessary requirements.
Matojane said Zuma's return to prison would "not impact him unfairly, as there is no suggestion that he is an innocent party". The judge said the former president had defied the Zondo Commission, the judiciary and the rule of law, and was resolute in his refusal to participate in the commission's proceedings.
Matojane further stated that Zuma continued to "attack the Constitutional Court while unlawfully benefitting from a lesser punishment than what the Constitutional Court has imposed".
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