- The North Gauteng High Court in Pretoria last week ruled former national commissioner of correctional services Arthur Fraser‘s decision to release former president Jacob Zuma on medical parole was unlawful and set it aside.
- Judge Elias Matojane also ruled the time 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.
- Matojane has now granted Zuma and the correctional services department the right to appeal his decision in the Supreme Court of Appeal.
Minutes into Jacob Zuma’s bid to appeal the ruling that revoked his medical parole and ordered him back to jail, Judge Elias Matojane described the former president as “an elderly person with comorbidities” who “deserves compassion and empathy”.
He would repeat those words less than three hours later, when he granted Zuma and the Department of Correctional Services leave to appeal his ruling that former national commissioner of correctional services Arthur Fraser’s decision to grant medical parole to the ex-head of state – against the recommendation of the Medical Parole Advisory Board – was unlawful.
In that 15 December judgment, Matojane not only ordered that Zuma must return to prison, he also ruled the time Zuma had spent on medical parole should not be counted as part of the 15-month sentence imposed on him by the Constitutional Court.
The apex court’s majority had found his contempt of its ruling that he appear before the State Capture Inquiry was so egregious it justified imprisonment.
Matojane now believes this order that Zuma’s time on medical parole not be considered as time served may be one of the grounds on which his ruling could be challenged, as it potentially had an adverse impact on Zuma’s constitutional rights.
“We know that [Zuma] is a sickly, elderly person with comorbidities and he deserves compassion and empathy,” Matojane told Zuma’s advocate, Dali Mpofu.
“Despite what the Constitutional Court has said [about Zuma’s contempt of it and the judiciary], the fact of the matter is that his freedom of movement is restricted, which has an impact on his right to dignity and having regard to the fact that he is not well, he is of advanced age, he deserved compassion and empathy.”
Significantly, Zuma and the correctional services department’s appeal will also establish whether Matojane was correct to find that a medical parole application must be supported by the Medical Parole Advisory Board for it to be lawfully and rationally granted.
Former president Jacob Zuma and the correctional services department have been granted leave to appeal a ruling which overturned his medical parole. Join News24 specialist legal journalist Karyn Maughan as she unpacks what the ruling said.
After considering all the relevant medical reports and submissions by Zuma’s military doctors, the board – which is made up of expert doctors – had elected not to sign off on Zuma getting medical parole.
“From the information received, [Zuma] suffers from multiple comorbidities,” the board stated.
“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 [Medical Parole Advisory Board] is that [Zuma] is stable and does not qualify for medical parole according to the act.”
Despite that recommendation, Fraser nonetheless decided Zuma should be given medical parole and released him.
The Department of Correctional Services insisted this decision was lawful, as it argued the national commissioner had the discretion to make such a call.
On Tuesday, Matojane stated “this matter merits the Supreme Court of Appeal’s attention to bring certainty as to the correct interpretation and application” of the provisions of the Correctional Services Act and the regulations that governed them.
He said it was not Zuma’s decision, but that of Fraser, that had led to the former president being granted medical parole.
The judge also appeared to backtrack on his previous finding that Fraser’s “unlawful intervention has resulted in [Zuma] enjoying nearly three months of his sentence sitting at home in Nkandla, not serving his sentence in any meaningful sense”.
In his original judgment, Matojane pointed out the DA – which is one of the parties which challenged Fraser’s medical parole decision – had referred to a Sunday Times report that Zuma had “met with his political allies Carl Niehaus (a former staffer at Luthuli House) and Dudu Myeni (the former chairperson of SAA) at the Sibaya Casino on the 15 October 2021”.
Zuma “also addressed his supporters at a virtual prayer meeting on 14 October 2021”, Matojane said – before adding that, as “determined by the board [Zuma] is not terminally ill or severely incapacitated and seems to be living a normal life”.
In his judgment on Zuma and the department’s leave to appeal application, Matojane has now seemingly reversed these earlier findings and instead concluded that “his [Zuma] meeting with his political allies and the prayer meeting was a once-off thing”.
“His freedom of movement is restricted. This has an impact on his dignity. He is serving his sentence, albeit outside prison,” Matojane stated.
“What I want to say is because of his [Zuma] illness and advanced age, he needs compassion, he needs empathy and humaneness, which is the essence of ubuntu. In my view, another court may take this into consideration and come to a different finding.”
Zuma and the department’s appeal will now be heard by the Supreme Court of Appeal.
While the Helen Suzman Foundation has asked this appeal is heard on an urgent basis, it is unclear when the case will be heard.
While there is no certainty over whether Zuma will be required to return to prison, the outcome of this case should provide much-needed certainty over how medical parole can and should be granted.