Former correctional services boss Arthur Fraser has accused Pretoria High Court Judge Keoagile Elias Matojane of having erred in finding that his decision to have former president Jacob Zuma released on medical parole was unlawful.
Last week, Matojane ordered that Zuma return to prison to serve the remainder of his 15-month sentence imposed by the Constitutional Court for defying a court order to appear before the Zondo commission of inquiry investigating allegations of state capture during his tenure as the president.
In the court papers filed last week, which City Press has seen, Fraser – through his lawyers – said he was seeking leave to appeal the judgment in its entirety.
“Kindly take notice that the National Commissioner of Correctional Services (Arthur Fraser) intends bringing an application for leave to appeal to the full bench of the honourable court, alternatively, to the Supreme Court of Appeal, against the whole judgment and orders of his Lordship Matojane J dated and delivered on December 15, on a date and time to be arranged by the Honourable Judge in consultation with the registrar of the above honourable court,” the document reads.
Fraser cited several findings in which he alleged that Matojane had erred in the interpretation of the law and believes another court would come to a different conclusion. The document reads: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 terminal disease or condition.
“This contention was part of the applicant’s argument, and, in its judgment, the court did not engage with the applicant’s submission in this regard at all,” Fraser submitted.
Fraser argues in his submission that “whilst the recommendation of the board is important, it is not binding on the national commissioner as the act confers a discretion on the national commissioner in the consideration of the application for the placement of an offender on medical parole,” adding: “If the legislature intended the recommendation of the parole board to be decisive and binding, it would have stated so and not accord the national commissioner with the discretion on whether to grant medical parole or not.
“The national commissioner must consider all the available information, including medical records and reports together with the recommendation of the board, before taking a decision on the application for medical parole. As the decision-maker, the national commissioner was reasonably expected to consider all information that was placed at his disposal to enable him to make a sound, rational and reasonable decision,” the court documents read.
Fraser said the “court should have also made its own determination based on the medical information and records on whether the third respondent (Zuma) was terminally ill or was rendered physically incapacitated as a result of injury, disease or illness more so that it substituted the decision of the national commissioner with its own.”
He added: In making this finding, the court completely ignored paragraph 13 of the reasons of the national commissioner where the national commissioner states that having considered all the relevant information and he was satisfied that the third responded meets the criteria in section 79(1) of the act to be placed on medical parole.
Fraser said Zuma had not been released to “enjoy staying at home”. “He is still serving his sentence that was duly imposed by the Constitutional Court, albeit under medical parole in the community corrections system. Parole is a form of punishment which is served by an inmate in terms of the … act.”
Correctional services believes that there were compelling reasons that the appeal court could bring certainty in the interpretation of medical parole and the power vested in the head of the correctional services.