Lawyers for former president Jacob Zuma will be in the Supreme Court of Appeal (SCA) on Monday in an attempt to overturn a court ruling that his release from prison, on medical parole by former prisons boss Arthur Fraser, was unlawful.
Gauteng high court judge Elias Matojane granted Zuma and the national correctional services commissioner leave to appeal the ruling he made in December 2021, in which he reviewed and set aside the parole decision and directed that Zuma return to custody to serve the remainder of his sentence.
The application was brought by the DA, the Helen Suzman Foundation (HSF) and AfriForum after Zuma’s controversial release from prison in September last year after serving two months of the 15-month prison sentence imposed by the Constitutional Court for contempt of its order that he appear before the Zondo commission of inquiry into state capture.
The medical parole advisory board did not support his release, stating that he did not suffer from a “terminal disease or condition” — as required by law.
Cruel and degrading punishment
But Fraser went against this recommendation, saying Zuma was an old, frail person, who suffered from multiple comorbidities requiring specialised treatment.
Fraser’s contract as national commissioner came to an end in September last year.
In heads of argument filed with the SCA, Zuma’s lawyers argue that while the entire point of imprisonment was to take away some of the fundamental rights of a person who has been convicted and sentenced, the inmate retained the rest of his human rights, and it was illegal to restrict or take away those beyond what was constitutionally permissible.
This included the right to adequate medical treatment and the right not to be subjected to cruel and degrading punishment.
The commissioner’s decision is unlawful. Mr Zuma must, therefore, serve the sentence imposed by the Constitutional Court. Any other result turns the courts’ vindication of the rule of law into a Maginot Line: strong on paper but easily outflanked.
— The Helen Suzman Foundation
They said the entire case in the high court had been premised on the “false assertion” that the commissioner had overruled the board.
This was not the case.
The role of the board was to make a “recommendation”. In terms of the applicable legislation relating to prisoners serving sentences of less than 24 months, Fraser was entitled to exercise his own discretion.
Zuma’s lawyers said beyond that, the court should take judicial notice of the looting that took place in July 2021 in the aftermath of what was, rightly or wrongly, perceived to be the unfair denial of Zuma’s constitutional rights.
“The perceived prevention of the recurrence of such an event was a legitimate and very relevant consideration for the national commissioner to take into account.”
His lawyers say the respondents were “casting doubts and scandalising” Zuma without any contrary medical evidence and without a shred of evidence that he was not seriously ill.
They do not have the right to his medical records and were engaged in “speculation” to serve their political narrative.
Zuma parole decision ‘patently unlawful’
The DA, in its heads of argument, said judge Matojane was “entirely correct” and the parole decision was “patently unlawful”.
“The only way in which the parole decision makes any sense is if it was granted for the reason that the public suspects: that Zuma received favourable treatment because of his political standing.
“From the moment of his admission to prison, officials at the department of correctional services and the SA Military Health Service (SAMHS) began to agitate for his release for medical reasons, often working on weekends.
“Since his release, he has not been treated like a man who is terminally ill. In Nkandla, he is hours away from the nearest hospital and he has been permitted to make the three-hour trip to Durban to meet political allies at Sibaya Casino,” the party says.
It submitted that the board was made up of medical practitioners who had access to his medical reports and its decisions should be binding.
The commissioner, on the other hand, did not have the necessary expertise to determine how sick Zuma was.
“Medical parole has limited purpose. It is intended for inmates who are likely to die soon and who should not be forced to die in prison, and for inmates who cannot care for themselves. Mr Zuma does not have a terminal illness ... and is not incapacitated, and neither the commissioner [nor] Zuma ever squarely alleges that.”
The party said the threat of riots “could never be a reason to grant medical parole or any form of parole”, because it would reward inmates who have supporters willing to threaten violence.
“Nothing could more surely undermine the rule of law.”
The HSF said the office of the national commissioner was still trying to “defend the indefensible” by arguing that the national commissioner — a politician, not a doctor — was entitled to overrule the board.
Zuma, the HSF says, continued to read the statute as giving the commissioner “a king’s pardon power”.
“The commissioner’s decision is unlawful. Mr Zuma must, therefore, serve the sentence imposed by the Constitutional Court. Any other result turns the courts’ vindication of the rule of law into a Maginot Line: strong on paper, but easily outflanked.”
The foundation argues that even if Fraser somehow had the power to second guess a medical determination made by a panel of medical experts — which he did not — the decision to grant Zuma medical parole was still unlawful and not rational or reasonable.
Fraser had taken “irrelevant facts” into consideration, such as the July unrest and that Zuma was a former head of state — which was particularly inappropriate given that the apex court had made it clear in its judgment in the contempt matter that “no person is above the law”.
AfriForum, in its heads of argument, aligned itself with the submissions of both the DA and the HSF.
All have asked the SCA to dismiss the application, with costs.
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