Former president Jacob Zuma’s case against a ruling setting aside his medical parole will be heard in the Supreme Court of Appeal (SCA) on Monday.
Zuma has defended former prisons boss Arthur Fraser’s decision to grant him medical parole, taking into account the threat of a resurgence of civil violence that followed his incarceration in July 2021.
Zuma has defended Fraser’s actions as serving the public interest to avoid “a repeat of the widely reported looting which took place in July 2021”, and to argue it was unlawful for him to do so is “naive in the extreme” and legally incorrect. It was a relevant consideration for Fraser, he says.
Zuma says the “glib dismissal” of various relevant factors Fraser considered in favour of an allegation he gave Zuma preferential treatment is “a sign of ignorance or opportunism”.
Acting correctional services commissioner Makgothi Thobakgale and Zuma are appealing the high court decision, which included a ruling Zuma return to Estcourt prison to complete his 15-month term for contempt of the apex court’s ruling he testify at the state capture inquiry.
In December, the high court reviewed Fraser’s decision to grant Zuma medical parole in September and set it aside. The DA, Helen Suzman Foundation (HSF) and AfriForum are respondents in Monday’s appeal. The Institute of Race Relations (IRR) is a friend of the court.
Zuma highlights the DA and HSF “did not seek the remission of the medical parole decision to be reconsidered” by the relevant functionaries empowered by law to do so but rather “seek the decision to be taken by the courts”.
He tells the SCA he agrees with most of Thobakgale’s arguments. He maintains the respondents are driven by an “underlying political agenda” and says they are acting in the interests of “minority constituencies” not those of the public.
Zuma says they have tried to pull “the proverbial wool over eyes of the court” by saying the decision was based on section 79 of the relevant act when it was based on section 79 read with 75(7), which deals specifically with inmates serving sentences of less than 24 months.
“The mere fact that the process started under section 79 and was unsuccessful is of some relevance, but it cannot derogate from the independence and subsequent application of section 75(7) itself,” submits Zuma.
‘Old news’
He argues that Fraser did not overrule the board, but rather that he approached it afresh from a different statutory provision specific to inmates serving terms under 24 months.
Zuma argues: “The alternative course was left open to [Fraser] only because of the duration of the sentence.”
He argues there is nothing in law preventing Fraser from applying the section about medical parole for inmates serving sentences under 24 months.
Section 79 addresses the provisions for a sentenced offender to be placed on medical parole by the commissioner, parole board or minister while 75(7) addresses the commissioner’s power to place a person serving a sentence of 24 months or less on medical parole, cancel the parole or change the conditions.
“The undue and unsustainable conflation of the two sections is therefore fatal to the judgment on appeal,” he submits.
Zuma asserts the DA and HSF are abusing the courts for political ends. Insofar as any revisit of his medical parole and new order from the court, he asserts a new consideration would be needed.
“In short, the August decision is old news and is likely to have no bearing on a new decision which the court may order to be taken,” reads Zuma’s heads of argument.
He asserts his right to “adequate medical treatment and the right not to be subjected to cruel and degrading punishment” in line with the values of human dignity and ubuntu.
‘Favourable treatment’
The DA asserts the high court was “entirely correct” in its order of December 15. The party insists Fraser granting Zuma medical parole, at odds with the medical parole board, was patently unlawful.
The opposition party asserts Zuma is “neither terminally ill nor physically incapacitate”, and says Fraser’s decision was irrational. “It cannot be seriously argued that the high court misdirected itself,” argues the DA.
The DA claims Zuma “received favourable treatment because of his political standing”, and Fraser’s decision invokes a reasonable apprehension he was biased in Zuma’s favour. It claims while on medical parole Zuma has “not been treated like a man who is terminally ill” and has gone to Durban “to meet political allies at the Sibaya Casino”.
Zuma’s doctor sought medical parole 20 days into his 15-month term in Estcourt prison after his incarceration in early July. Zuma was housed in the prison’s hospital wing for the duration of his stay. He was in hospital from August 5 to September 8 2021 after which he was taken to his Waterkloof home where wife Bongi Ngema-Zuma cared for him. One week later he went to Nkandla.
Fraser’s term ended in September. Thobakgale is defending his predecessor’s decision, saying Zuma’s parole saved the prison department money including the cost of guards.
‘Best choice’
Thobakgale asserts the only obstacle to Zuma’s release on medical parole was the board’s view. Family care with medical support was, he continues, the best choice.
Zuma, he says, “was not released to enjoy staying at home” and he continues to serve his sentence. Thobakgale asserts Gauteng high court judge Keoagile Elias Matojane made several errors in his decision, such as deciding Fraser usurped the board.
“The national commissioner’s role as decision-maker is not to rubber stamp the recommendations of the board but to consider it with the rest of the information and, or reports before him,” he argues.
But the DA submits the prisons boss is confined to deciding if parole is fitting from a correctional services perspective, such as assessing if the offender is at high risk of reoffending. Further, it takes issue with reference to the deadly riots of July 2021 after Zuma’s imprisonment.
“Both the commissioner and Mr Zuma are saying that it was permissible for Mr Zuma to be released on medical parole because of the threat of riots.
That could never be a reason to grant medical parole (or any form of parole). It would reward inmates who have supporters who are willing to threaten violence. Nothing could more surely undermine the rule of law,” argues the DA.
Meanwhile the IRR, which is amicus curiae, argues a detainee serving time for contempt of court may not be released by either the commissioner or the parole board because they are not typical inmates eligible for parole.
It asserts only the court that ruled they were in contempt has the power to release the person, whatever the grounds. The IRR submits a person who has been sentenced to serve time for contempt is “beyond the compass” of a “serious defender” referred to in the law on parole conditions.
Therefore, the IRR’s argument follows, a commissioner is “jurisdictionally incompetent” to entertain their bid. “Mr Zuma would have no choice but to apply to the court itself for its order to be altered,” argues the IRR.
The IRR suggests Zuma could still approach the apex court, show contrition, comply with its order to testify and motivate for leniency based on his medical condition.
“He may still do so, notwithstanding that the commission has wound up,” reads its submission. It suggests — should the court agree — his compliance would serve the public interest and complying with the order this would purge Zuma of contempt.
Correction: August 15 2022
This article has been corrected to reflect that Makgothi Thobakgale is the acting correctional services commissioner
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