Papers arguing that the application seeking to have Jacob Zuma’s medical parole withdrawn and have him returned to jail to serve out his time for contempt of court has become moot – given that by now he would be eligible for normal parole – was placed before the Gauteng High Court (Pretoria) on Tuesday (23 November), notes Legalbrief. It was put forward by Advocate Dali Mpofu, appearing for Zuma, who described all three applicants – the DA, the Helen Suzman Foundation and AfriForum – as “right wing” and “racist” and their challenge as a waste of the court’s time.
He was responding to arguments that Arthur Fraser had no discretion, as then National Commissioner of Correctional Services, to grant Zuma medical parole without a recommendation from the parole board that his health demanded it. Legal writer Emsie Ferreira, in a Mail & Guardian report, notes Fraser granted Zuma medical parole in early September, less than two months after he was jailed for 15 months for defying a Constitutional Court order that he testify before the Zondo Commission of Inquiry, despite advice from the Medical Parole Advisory Board that he did not qualify for release.
Mpofu told Judge Elias Matojane: “The organising question that can be asked, my Lord, (is) on what basis can these busybodies be given audience on an urgent basis to bring a clearly politically motivated application and a publicity stunt, in respect of which outcome is probably moot?” If Fraser had not decided otherwise, Zuma would, at this point, have served a quarter of his sentence and become eligible to seek ordinary parole. But whereas Mpofu said this meant the outcome of the case was academic, Advocate Max du Plessis, for the HSF, differed, saying Zuma could be returned to prison and required to apply for ordinary parole, or medical parole if he wished.
“We are looking for respect for the rule of law and the vindication of the Constitutional Court’s judgment,” he said.
Du Plessis also argued that the time Zuma had spent on medical parole should not be considered part of his sentence served. Matojane said technically, medical parole did not make Zuma a free man, but Du Plessis argued that parole conditions were plainly not prison. He stressed that Fraser lacked the power to make, or overrule, a decision that in terms of the law was reserved for the board, rendering the case straightforward, adds the M&G report. Even Fraser’s affidavit never makes the claim that Zuma is terminally ill, but seeks to find other reasons why his decision was permissible, including that the former head of state was elderly and frail, and referencing the deadly public violence that broke out in July that started as a protest to his imprisonment.
If the first of these reasons were relevant, “of course there would not be pensioners in prison”, Du Plessis said. The unrest was equally irrelevant, he continued, “because then all prisoners could threaten prison riots unless they were given medical parole”.
Advocate Ismail Jamie, for the DA, said Fraser did not have the law on his side when he contended he had a discretion to exercise after taking into consideration all the factors relevant to Zuma’s case. This was so because the Correctional Services Act, in section 79(1)(a) makes terminal illness or incapacitation a prerequisite for medical parole. Only once this was satisfied could other factors in following clauses, such the risk of re-offending, be considered. According to the M&G, he argued that Zuma’s case for release, therefore, failed at the outset, and there was nothing further for Fraser to consider.
Mpofu said the claim that no one had said Zuma was terminally ill was a “false assertion”. He referred the court to a medical parole form in which the question was put to a Dr Mafa whether Zuma was suffering from a terminal disease or a chronic condition, and the answer was “yes”.
But Jamie said the wording of the form was unclear, as there was a difference between terminal and chronic illness, says legal writer Franny Rabkin in TimesLIVE. Du Plessis added that Mafa’s report came earlier than the later expert findings that had been considered by the board of five medical doctors. Mpofu also argued that there was a different section of the Act available for the granting of medical parole to those who were serving sentences of fewer than 24 months. Du Plessis said Mpofu had “glossed over or forgotten” that Zuma himself made his application in terms of the section that refers to terminal illness and that Fraser had referred to this section when he gave his decision. Zuma’s other counsel, Thabani Masuku SC, said the DA, HSF and AfriForum did not even have legal standing to bring the case in the public interest as they were not alleging that any right in the Bill of Rights had been breached.
The applicants had failed to show their case was urgent, according to Maribolla Mphahlele, representing the prisons’ National Commissioner. Mphahlele said Zuma “might ordinarily be released on normal parole and as a result the fact that his sentence expires on October 2022 is of no assistance to the urgency of the application”. He argued it was wrong to say Fraser “overruled” the advisory board’s recommendations.
“Whether to grant medical parole or not lies with the National Commissioner,” Mphahlele said. Mpofu stressed that Zuma required “specialised care” which could not be offered in any prison.
Du Plessis countered this argument, according to Erin Bates in Business Day, saying the same team from the SA Medical Health Services currently treating Zuma, now back home in Nkandla, could still attend to him behind bars. Mpofu said the court knew Zuma was admitted to a heart facility. He read out particulars of his client’s health condition as described by a Dr Mphatswe, including a prognosis that Zuma should be released with immediate effect. Judgment was reserved.
See more from MedicalBrief archives: