- The Gauteng High Court in Pretoria last week ruled that then National Commissioner of Correctional Services Arthur Fraser’s decision to release former president Jacob Zuma on medical parole was unlawful and has set it aside.
- Judge Elias Matojane further ruled that the time that Zuma had spent on medical parole “should not be counted” as part of the 15-month sentence he was ordered to serve by the Constitutional Court. He ordered that Zuma return to jail.
- Zuma and the Department of Correctional Services are now trying to appeal that decision.
Former president Jacob Zuma’s foundation has announced that his lawyers will, on Tuesday, argue his appeal against the ruling that he return to jail – despite them earlier telling the high court that this urgent date was “inconvenient”.
In a letter sent to Judge Elias Matojane on Friday, attorney Mongzi Ntanga claimed that Zuma’s counsel – advocates Dali Mpofu and Thabani Masuku – would be on holiday at the time of the scheduled virtual appeal application and “do not have the facilities necessary for them to participate in the hearing”.
Ntanga added that there “will be no prejudice to any party including the public” if the hearing of the appeal was postponed until the first week of February, which he stated was the only time that Zuma’s advocates would be available.
“We emphasise the importance of having [Zuma] adequately represented at this hearing, in particular because of constitutional rights that are implicated in the court’s orders which forms the basis of the appeal,” he stated.
A day later, the JG Zuma Foundation announced on its Twitter page that “…despite serious issues with the availability of [former] President Zuma’s legal team… in the interests of the country all efforts have been made to honour the date proposed by the Judge”.
“HE Pres Zuma therefore looks forward to the hearing this coming week on Tuesday.”
Meanwhile, the Department of Correctional Services has filed a 22-page application to appeal Matojane’s far-reaching ruling that then National Commissioner of Correctional Services Arthur Fraser’s decision to release Zuma on medical parole was unlawful and that he should return to prison.
The judge also found that the time Zuma had spent on medical parole could not be counted as part of the 15-month contempt sentence imposed on him by the Constitutional Court – meaning that Zuma would have to remain behind bars until he had served one-quarter of that sentence and became eligible for ordinary parole.
The Pretoria High Court has ruled that former president Jacob Zuma’s medical parole was unlawful and that Zuma must go back to jail. Join News24 assistant editor for in-depth news and legal journalist Karyn Maughan as they unpack the ruling.
The department, like Zuma, insisted there was evidence that Fraser was legally justified in overriding the Medical Parole Advisory Board’s recommendation that the former president did not qualify for medical parole.
Like Zuma, the department had also sought to suggest the former president may be terminally ill.
Under the provisions of the Correctional Services Act, medical parole could only be granted to an offender “suffering from a terminal illness or condition or if such an offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”.
After considering all the relevant medical reports and submissions by Zuma’s military doctors, the board had elected not to sign off on Zuma getting medical parole.
“From the information received, [Zuma] suffers from multiple comorbidities,” the board stated, adding:His treatment has been optimised and all conditions have been brought under control. From the available information in the reports, the conclusion reached by the MPAB is that [Zuma] is stable and does not qualify for medical parole according to the Act.
In court papers, the department argued that the board “made no mention of the fact that [Zuma] is not terminally ill or not physically incapacitated” and slammed its finding that he did not qualify for medical parole as “misguided”.
“The fact that a patient’s treatment has been optimised and that his or her condition has been brought under control does not imply that he or she has been cured from a terminal disease or condition,” it stated.
In their leave to appeal application, Zuma’s lawyers also appeared intent on making the case that he was, in fact, terminally ill and argued there was “objective evidence” of the former president’s life-threatening condition.
That “evidence” centred on the fact that one of the doctors who assessed Zuma, a “Dr Mafa”, answered “yes” when asked on a form if he was suffering from a terminal illness or chronic condition.
Zuma’s lawyers also accused Matojane of “second-guessing and/or overruling the expert and professional opinions of qualified medical experts” when he “does not possess any medical expertise sufficient to make any contrary finding” – despite the judge basing his ruling on the expert assessment given by the Medical Parole Advisory Board.
The department was also unhappy that Matojane found that the board’s recommendation would ordinarily be decisive and binding on the national commissioner, who, it argued, had a “discretion… in the consideration of the application for the placement of an offender on medical parole”.
“The board is not the decision maker, it only makes a recommendation to the national commissioner and it is the national commissioner who must make the decision,” it stated.
In his explanation of why Fraser’s decision to grant Zuma medical parole was unlawful, Matojane also found that the then prisons boss had failed to consider whether Zuma’s “risk of re-offending was low” if and when he was released.
Matojane pointed out that Zuma, who was jailed for vocally defying the Constitutional Court’s ruling that he appear before the State Capture Inquiry and answer non-incriminating questions, had continued to “attack” the apex court while on medical parole.
“He states in the answering affidavit that he considers himself a prisoner of the Constitutional Court and alleges that he was incarcerated without trial despite the Court dismissing his rescission application,” the judge said.
But the department now argued that the “mere fact that [Zuma] is not happy with the way he was incarcerated does not presuppose that he will reoffend”.
“Whether the offender will reoffend or not must be based on evidence and not assumed based on a statement uttered displaying his dissatisfaction.”