By: Paul M. Ngobeni
Russian revolutionary Vladimir Lenin said: "It is impossible to predict the time and progress of revolution. It is governed by its own more or less mysterious laws." There is no doubt that this statement rings true today in no less a place than South Africa and, more particularly, under the failed leadership of Cyril Ramaphosa and the African National Congress. Barely three years ago, it was unthinkable that ANC workers and their families would be forced into starvation and go for months without their salaries being paid by the billionaire-led ANC; that their former president Jacob Zuma would be the first political prisoner sentenced and incarcerated by the apex court without the benefit of a trial in violation of our constitution and international law; that the fumbling leadership of the ANC would fail to register candidates in some wards in at least 36 municipalities and to submit all its proportional representation lists and that the ANC president would be reduced to applauding a parole board’s decision to release former President Zuma on parole. The same hypocritial President abysmally failed to exercise his constitutional powers to grant Zuma a full and unconditional pardon. Ramaphosa’s weak leadership was not only exposed by the speed and intensity with which mass protests occurred in the aftermath of Zuma’s incarceration but he was left incoherent and caught in the paralysis of analysis – he could not articulate whether the country experienced an :insurrection” or a “attempted insurrection” and whether these mass protests were a direct outcome of pent-up frustrations over the government’s inability to effect meaningful changes in the lives of our citizens.
As a preliminary matter I need to address the hullabaloo about the decision to release former President Zuma on parole. With the exception of the sober voice of UDM’s Bantu Holomisa, the white-controlled opposition parties have been unanimous in their condemnation of the parole decision with some describing it as “disgusting, and a mockery of South African law” and claiming that it's a case of history repeating itself, with Zuma joining his former financial advisor, Shabir Shaik on medical parole. Not to be outdone, the Uncle Tom party, the Congress of the People vehemently protested and called Zuma’s release “preferential treatment and abuse of power.” How many 80 year olds with serious health problems identical to Mr Zuma are incarcerated in our prisons? But that is not a surprising posture by the self-hating blacks in that failed outfit called COPE. The racist DA, which has always supported white murderers being freed on parole and has consorted with apartheid war criminals like De Klerk, says the move is nothing short of being entirely unlawful. It has gone a step further to lay the blame squarely on Arthur Fraser, who is now the Correctional Services Commissioner, and signed off on Zuma’s release.
But the blame for the entire saga must be placed squarely at
the feet of Justice Khampepe and the Constitutional Court. The Court did the most unusual and
constitutionally suspect thing - it convicted and sentenced Zuma to a prison
term without any trial, without any opportunity for argument in mitigation of
sentence and actually issued an order and deadlines for Zuma’s surrender to
prison authorities. Further it
ordered the executive to take several steps to effect Zuma’s arrest and
imprisonment if he did not surrender by the court-imposed deadlines. Courts never issue such bizarre orders after sentencing any prisoner to
a determinate prison sentence. Normally proper separation of powers principles are observed and respected.
The Court’s unusual orders specifically tailored for Zuma improperly usurped the ability of the executive to conduct its preliminary assessment of whether Zuma, in light of his age and health status should have been incarcerated in the first place. Ordinarily, prison authorities must enjoy deference and untrammeled powers in the admission of prisoners and determination of whether some may not be suitable candidate for incarceration, taking into account their health status. Imagine if President Zuma had succumbed to his illness and died in prison!
Courts have cautioned that the separation of powers considerations must find application in those scenarios where convicted persons ate sentenced. In S v Botha 2006(2) SACR 110 (SCA) the High Court convicted the appellant of murder and attempting to defeat the ends of justice, sentenced him to 18 years' imprisonment, and recommended that he should serve at least two-thirds of the sentence before being considered for parole. On appeal, the Supreme Court of Appeal held, inter alia:
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 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... Albeit just a recommendation, its persuasive force is not to be underestimated. It, no doubt, was intended to be acted upon. In making the recommendation which it did, the trial Court may have imposed, by a different route, a punishment which in truth and in fact was more severe than originally intended. Such a practice is not only undesirable but also unfair to both an accused person as well as the correctional services authorities. The Registrar has been instructed to forward a copy of this judgment to the Department of Correctional Services with a request that the remarks [above] be taken account of in relation to the present case. Id. paras 25 - 27.
The scuttlebutt lies spread about Fraser’s handling of the Zuma parole must be exposed and debunked outrightly. Under our laws, namely, the Correctional Services Act, the Department of Correctional Services has a wide discretion to grant parole on medical or humanitarian conditions. In March of 2012 the Act was amended to simultaneously broaden the circumstances under which medical parole can be granted and tighten up the process undertaken for it. The legislation prior to the 2012 amendment stipulated that the applicant must be in the final stages of their terminal illness. The new amendment, however, omits the terms “final stages” and it is in the regulations to the Act that the decision-makers are listing the illnesses and stages of illness which begin to define the degree of sickness an applicant must be in. Medical professionals make the professional assessment and a judgment call after a thorough examination of an inmate’s health status. As of 2012, a prisoner may be released on medical parole upon satisfying the following three strict conditions:
1. The offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care;
2. The risk of re-offending is low; and
3. There are appropriate arrangements for the inmate’s supervision, care and treatment within the community to which the inmate is to be released.
Without doubt, President Zuma meets all of the above strict criteria. Furthermore, the regulations also say that the medical parole review board can take any other factor into consideration, provided that it is in line with Section 79 of the Correctional Services Act. This means that the board, to a large extent, is able to exercise their own discretion. But the DA’s strategy of targeting and attacking Fraser as the sole actor and fall guy is reminiscent of the typical ANC “New Dawn” strategy that has been in vogue since Ramaphosa was elevated as ANC president. Persons such as Jiba, Brian Molefe and many others have been vilified and removed from positions simply because they were associated with former president Zuma.
The rigors of the penal system are thought to be mitigated to some degree by the discretion of those who enforce the law. See, e. g., Jackson, The Federal Prosecutor, 31 J. Am. Inst. Crim. L. & C. 3, 6 (1940-1941). The clemency or parole power is designed to serve the same function. Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider. These mechanisms hold out the promise that mercy is not foreign to our system. The law must serve the cause of justice. But a President who is controlled by or beholden to a super-rich racist Stellenbosch clique cannot exercise the constitutional clemency powers granted to him by the Constitution. That is why the disgraceful ANC “lekgotla” was also reduced to applauding a decision of a parole board instead of asking their president to exercise his constitutional powers to grant Zuma full and unconditional pardon.
It takes no rocket science to understand that the Constitutional Court sentencing of Zuma was a gross violation of the basic sentencing principles of our laws. In S v Selebi (Judgment on sentence) (25/2009) [2010] ZAGPJHC 58 (3 August 2010) Joffe J stated the following:
1. The principles applicable in determining a fair, balanced and appropriate sentence have long been laid down. In S v Zinn 1969 (2) SA 537 (A) at 540 G it was held that "What has to be considered is the triad consisting of the crime, the offender and the interests of society." In determining an appropriate sentence regard must be had inter alia to the main purposes of punishment. These purposes were described in R v Swanepoel 1945 AD 444 at 455 as deterrent, preventative, reformative and retributive, in S v Rabie 1975 (4) SA 855 (A) at 862 A-B reference was made to Gordon, Criminal Law of Scotland, (1967) at 50 where it was stated that "The retributive theory finds the justification for punishment in a past act, a wrong which requires punishment or expiation... The other theories, reformative, preventive and deterrent, all find their justification in the future, in the good that will be produced as a result of the punishment".
2. In S v Khumalo and Others [1984] ZASCA 30; 1984 (3) SA 327 AD at 330 E it was held, with reference to R v Swanepoel supra that deterrence has been described as the "essential", "all important", "paramount" and "universally admitted" object of punishment. The Appellate Division, as the Supreme Court of Appeal was then known, proceeded to state in the Khumalo judgment, that the other purposes of punishment are accessory to deterrence, in this regard reference was made to R v Karg 1961 (1) SA 231 at 236 A-B where it was held while the deterrent effect of punishment has remained as important as ever, the retributive effect, whilst by no means absent from the modern approach to sentencing, has tended to yield ground to aspects of prevention and correction…
4. When determining an appropriate sentence there is, as was pointed out in S v Rabie supra at 861 B, a duty on the presiding judicial officer to approach the determination with a mindset of mercy or compassion or plain humanity. This "has nothing in common with maudlin sympathy for the accused. While recognizing that fair punishment may sometimes have to be robust, mercy is a balanced and humane quality of thought which tempers one's approach when considering the basic factors of letting the punishment fit the criminal as well as the crime and being fair to society". This is certainly not a new concept. Voet, vol.1, 57 stated in a note (Gane's translation, vol. 2. 72) It is true, as Cicero says in his work on Duties , Bk. 1, Ch. 25, that anger should be especially kept down in punishing, because he who comes to punishment in wrath will never hold that middle course which lies between the too much and the too little. It is also true that it would be desirable that they who hold the office of Judges should be like the laws, which approach punishment not in a spirit of anger but in one of equity." As was stated in S v Rabie supra at 862 D, 'To sum up, with particular reference to the concept of mercy ~(i) It is a balanced and humane state of thought, (it) It tempers one's approach to the factors to be considered in arriving at an appropriate sentence. (Hi) It has nothing in common with maudlin sympathy for the accused, (iv) It recognizes that fair punishment may sometimes have to be robust, (v) It eschews insensitive censoriousness in sentencing a fellow mortal, and so avoids severity in anger, (vi) The measure of the scope of mercy depends upon the circumstances of each case". (emphasis in the original)
The emotion-laden pronouncement of Justice Khampepe about Zuma was a far cry from the above basic principles and totally out of kilter with our laws. South African jurisprudence accepts mero motu that once an offender has reached an advanced age, it may be regarded as a mitigating factor in the sentencing of such an offender. The Supreme Court of Appeal in S v Zinn (1969 2 SA 537 (A), set out tersely the three most important matters a court should take into consideration in imposing sentence. In this case the court had to weigh the accused's personal circumstances (and more particularly the fact that he was already relatively old and suffering ill-health) against the nature of the crime and the interests of society. The appellant's personal circumstances constitute mitigating circumstances, whereas the nature of the crime and the interests of society amount to aggravating circumstances.
It should be noted that the South African reported judgments seem to regard a person as elderly from about 58, although that would depend on the offender before the court, especially since old age is often accompanied by another mitigating factor, namely illness or ill health. It has been said that the rationale for the reduction in sentence is compassion. It “evokes a note of compassion in considering the bleak recompense of imprisonment in the afternoon of his years” (S v Heller supra 55C-D). The mitigation of a sentence for imprisonment especially is based on compassion coupled with the community expectation that old people would be treated with sympathy (S v Munyai supra 255h-i). The purpose of a sentence is not to destroy the offender completely (S v Zinn supra 541B-C) and the period of imprisonment would not offer a person of advanced age a chance to reform and begin his life anew (S v Zinn supra 541B-C).
Old age is regarded as a mitigating factor during the sentencing phase in various jurisdictions, including Zimbabwe, England, United States and Australia. The legal principles in this regard are almost identical.[1] As the Australian courts have also recognized, “The significance of old age as a mitigatory factor, particularly when combined with ill health, is that it constitutes a basis on which the court, in the exercise of mercy, may impose a sentence significantly shorter than otherwise might be the case” (S v Henderson [2005] WASCA 89 par 23; and S v Tasmania [2007] 173 A Crim R 492 par 13, quoting from Smith v The Queen (unreported, Court of Criminal Appeal, WA, Library No 940285, 2 June 1994)). The basis for the principle is compassion and mercy (S v Tasmania supra par 13).
In Zimbabwe the courts have known to go further as it has been noted that the courts would rather err on the side of leniency when sentencing an elder (Feltoe 124). The relevance of mitigation increases with old age especially if it is combined with another mitigating factor such as poor health and a shortened life expectancy.
The parole board is not a sentencing judge but is placed in exactly the same position when exercising the vast statutory powers and when considering whether old age is one of the bases for granting medical parole. In R v Hunter (1984) 36 SASR 101, King CJ said at 103: "A sentencing judge cannot overlook the fact that each year of a sentence represents a substantial portion of the period of life which is left to [the offender]."
With regard to deterring the elderly from offending, there is generally no need for such deterrence as there are very few potential offenders. In Australia maturity alone may be mitigating depending on the circumstances of the case, as long as it does not downgrade the seriousness of the offence to the detriment of the general deterrence objective (S v Braham (1994) 116 FLR 38 43). The argument is that to imprison an elderly person for retributive purposes would be pointless and the concept of special deterrence would be irrelevant (Fox and Freiburg par 11.408). The court cannot overlook the fact that each year of the sentence represents a substantial portion of the period of life left to the offender (S v Tasmania supra par 14 with reference to R v Hunter (1984) 36 SASR 101 103.
Old age is of special importance when deciding whether the offender should be imprisoned, as the effects of prison are especially harsh on the elderly, difficult to adjust to or tolerate. Imprisonment for the elderly raises certain practical problems for the prison services. Three issues should be noted: it is more costly to incarcerate the elderly, mainly as a result of increased health problems, victimisation.
Despite their overly harsh stance against criminal accused, United States courts have routinely taken old age into consideration even in serious criminal offences where heavy sentences are mandatory. In United States v. Collins, 122 F.3d at 1307, the defendant was sixty-four (64) years old, and suffered from “heart disease, high blood pressure, ulcers, arthritis and prostatitis.” In light of Collins’s “old age and ill health,” the court sentenced him to forty months of incarceration for distribution of cocaine rather than the one hundred and fifty-one to one hundred and eighty-eight months recommended by the Sentencing Guidelines. In United States v. Hildebrand, 152 F.3d 756(8th Cir. 1998) overruled in part by Whitfield v. United States, 543 U.S. 209 (2005), the court sentenced the seventy year old defendant to five years of probation with six months in a community correctional facility for mail fraud and money laundering in lieu of the fifty-one to sixty-three months recommended by the Sentencing Guidelines. The court did so even though “the Bureau of Prisons could manage Zucker’s [the defendant’s] conditions.” Id. In United States v. Jackson, 14 F. Supp.2d 1315, 1316 (N.D. Ga. 1998), the court sentenced the seventy-six year old defendant to eighteen months of imprisonment for eighty-three counts of mail fraud rather than the thirty-three to forty-one months recommended by the Sentencing Guidelines. The defendant suffered from severe osteo-arthritis, a torn rotator cup, and chest pains. 14 F. Supp. 2d at 1318-1319. Even though the court recognized the Bureau of Prisons would be able to accommodate the defendant’s needs, 14 F.Supp. 2d 1315 at 1321, it concluded that the “combination of ailments” justified the departure. 14 F.Supp. 2d 1315 at 1322. In United States v. Barbato, No. 00 CR 1028, 2002, WL 31556376(SDNY Nov. 15, 2002)(unpublished), the eighty-one year old defendant suffered “from a variety of serious medical ailments, including hypertension, carotid artery disease and coronary artery disease.” Instead of sentencing the defendant to the twenty-four to thirty months the Guidelines had recommended for his loan sharking conviction, the court sentenced the defendant to twelve months of home confinement and two years of supervised release. The court justified the departure because of the defendant’s “medical condition and his advanced age.” Id. In United States v. Willis,322 F. Supp. 2d 76, 78 (D. Mass. June 23, 2004), the court sentenced the sixty-nine year old defendant to probation with six months of home detention for income tax offenses. The court imposed that sentence rather than the twenty-one to twenty-seven months recommended by the Sentencing Guidelines, 322 F. Supp. 2d at 78, after, in part, considering the cost of home detention versus jail:
The issue is one of degree. Willis has an inordinate number of potentially serious medical conditions. It seems imminently logical the Willis is at an age where these medical conditions will invariably get worse. It seems logical that being away from his support structure, both family and doctors, will invariably exacerbate his conditions. It seems logical that were he to go to jail for three years between the ages of 69 and 71 that he will emerge in substantially worse shape than he is now, if he does not die before completing his sentence. It seems logical that while the BOP can care for him, the costs of that care are bound to escalate. Finally, it seems logical that his conditions at least put him in the zone that enables me to balance the cost of home detention vs. jail, whether home confinement will be "equally efficient as and less costly than incarceration," U.S.S.G. § 5H1.1, or whether "home detention may be as efficient as, and less costly than, prison" as it is described in U.S.S.G. § 5H1.4
322 F. Supp. 2d at 84-85.
It is a source of consternation for most people that the issues of Mr. Zuma’s health and advanced age were never canvassed by the apex Court during his sentencing even though they were part of the record submitted by the Zondo Commission. The factors of Mr. Zuma’s liberation war service, his long and productive life, his age, his health difficulties, and his election for two terms as President of the Republic and ANC President are all part of the history and characteristics of the defendant that must be considered. These are, of course, to be balanced against the circumstances of the offense. In Mr. Zuma’s case, the Commission’s Act stipulates a sentence of no more than six months. But the Constitutional Court disregarded the statute and invented its own unique sentence simply because it was dealing with Jacob Zuma.
There was no unanimous finding by all justices that imprisonment was proper sentence for his alleged contempt of court. Nonetheless, the circumstances of especially Mr. Zuma’s health and age call for careful practical consideration and should carry great weight. There are a number of decisions where courts have given notably less weight to the Sentencing Guidelines in recognition of the fact that older individuals, some as young as 40, are less likely to commit additional crimes. In United State v. Testerman, No. 1:06CR00004, 2006 WL 2513018(W.D.Va. Aug. 31, 2006), the 79 year old defendant received three years of probation with four months of home detention rather than the twenty-seven to thirty-three months the Guidelines recommended for his charge of dealing in firearms. The court found that the sentence would “adequately deter” the defendant and others, in part, because of the defendant’s “advanced age [and]his previous law-abiding life.”.
In considering the age of the defendant, several courts have gone beyond simply the issue of recidivism. Those courts recognize that elderly individuals such as Mr. Zuma are reaching the end of their lives and that a prison sentence of significant length has a much greater impact than it would on a younger individual. See United States v. Willis, 322 F. Supp. 2d at 83 (“a given sentence may be uniquely disproportionate to the elderly offender; elder criminals will lose a greater percentage of their lives than younger criminals and may suffer more from the same sentence”); and United States v. Jackson, 14 F. Supp. 2d at 1322 (“While the court is unable to predict defendant’s life expectancy, based on his age and various infirmities it is clear that a thirty-three months sentence is more onerous for Paradies than for most defendants. In reality, the defendant’s thirty-three months sentence may turn out to a life sentence.”).
Right-thinking people, as opposed to the racist bigots of the DA, would take into account that in other countries, even older life sentenced prisoners are strong candidates for benevolent release policies such as geriatric release (age dependent) or compassionate release (based on ill health). In some countries for example in Russia, Ukraine and Romania, the authorities limit the imposition of life imprisonment on individuals over a certain age (65 years old). In other jurisdictions, such as Spain and France, the authorities ensure that elderly life-sentenced prisoners have the possibility of leaving prison by making them eligible for parole when they reach a certain age – in both cases 70 years old. It is in keeping with our own constitutional norms, including Ubuntu, to be compassionate towards elderly prisoners who pose no security threat or harm to society in general.
Since the Constitutional Court judgment in S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. We must consider these concepts in the context of the fundamental constitutional values of dignity, fairness and reconciliation and reaffirm the values of restorative justice. It would be incongruous to assert that “ubuntu” is relevant in the criminal law sphere in matters involving whether a convicted murderer should receive the death penalty (Makwanyane) but at the same time treat the age of the offender as irrelevant. “Ukuhlonipha abantu abadala” is deeply embedded in our culture as Africans and is part of Ubuntu.
In Zuma’s case, a sentence of 15 months is far greater than necessary to serve the interests of sentencing outlined in the Commissions Act itself. Mr. Zuma’s conduct, his personal characteristics and accomplishments, and the humiliation and ostracism he has already experienced during the ordeal demonstrate that a full pardon was warranted. But the cowardly President Ramaphosa cannot be expected to exercise leadership and grant pardon to Zuma without offending his Stellenbosch Svengalis. For partisan and factional reasons he chose to keep the octogenarian President Zuma incarcerated in this dangerous period of uncontrolled covid-19 infections and in the face of his documented health problems. This amounts to playing Russian roulette and a dangerous gamble with both President Zuma’s life and this country’s stability and social cohesion.
Our country needs robust and decisive leadership capable of rekindling the hopes of many South Africans yearning to build a capable state within an appropriate ethical framework and the required competent and incorruptible judiciary. It must be leadership untethered to Stellenbosch and unencumbered by financial shenanigans requiring sealing by the judiciary. The ANC has been given the mandate by our people to exercise the vast powers it has under the Constitution and to lead the charge towards a developmental state that is going to develop the economy, create jobs and improve the conditions of society standard of living through proper corruption-free government. That remains an elusive forlorn hope as long as we have a President who cannot make a decision without seeking the approval or endorsement of white apartheid relics, imperialists and neo-colonialists.
[1] The basic rule is that advanced age can be regarded as a mitigatory factor when sentencing an offender (Zimbabwe: Feltoe A Guide to Sentencing in Zimbabwe (1990) 123 with reference to Kambarami HS-13- 82; and see also S v Banana [1999] JOL 4730 (ZH); England: R v John Francis C [1993] 14 Cr App R (S) 562; R v Fontes [2006] 1 Cr. App. R. (S.) 76 par 13; R v Rahmi [2002] EWCA Crim 928 par 6; Thomas Principles of Sentencing (1979) 196 and the cases referred to; Walker Sentencing. Theory, Law and Practice (1985) 51; Ashworth Sentencing and Criminal Justice (2005) 176; Australia: S v Tasmania [2007] 173 A Crim R 492; R v Wacyk (1996) 66 SASR 530 537; Daunton-Fear Sentencing in South Australia (1980) 66; and Fox and Freiberg Sentencing: State and Federal Law in Victoria (1985) par 11.408).
