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Zuma’s medical parole unlawful and he must be returned to custody — High Court

UPDATED

The Gauteng High Court late yesterday (15 December) ruled that the decision of Arthur Fraser, the former National Commissioner of Correctional Services  to release former president Jacob Zuma on medical parole against the recommendation of the Medical Parole Advisory Board was unlawful, reports MedicalBrief.

Zuma was first jailed after defying a Constitutional Court ruling ordering him to testify before the Zondo Commission of Inquiry into State Capture. Prison authorities approved his medical release in September. His  medical condition was not publicly disclosed.

The High Court held that the decision should be set aside and substituted with a decision rejecting Zuma’s application for medical parole and further directed that Zuma be returned into custody in order to serve out the remainder of his sentence of imprisonment.

The High Court declared that the time that Zuma spent out of jail on medical parole should not be counted towards the fulfilment of his 15 month sentence. Costs were awarded against Zuma and the National Commissioner.

The Democratic Alliance, Helen Suzman Foundation and AfriForum who took the matter to court, have welcomed the result. DA leader John Steenhuisen said Judge Keoagile Matojane’s judgment closed the door on any prospect of a suspect appeal of the decision when it ruled that, “no administrative expertise is required from the commissioner, and there is no basis upon which the commissioner could again overrule the recommendation of the [Medical Advisory] Board. This court is in as good a position and thus as well qualified as the commissioner to make a decision.”

Steenhuisen urged Zuma’s supporters to accept the judgment “without resorting to further violence and protest”. Zuma’s conviction in July is largely believed to have sparked the weeklong riots in which infrastructure worth , after scores of millions of rand was destroyed in Gauteng and KwaZulu-Natal, wiping at least R50bn off GDP and leaving at least 360 people dead.

The ANC, which had previously called on Zuma to abide by the Constitutional Court ruling, said it would wait on any further pronouncements by Correctional Services, which said it was studying the judgment, before any further comments.

The Department of Correctional Services (DCS) has since announced that it will be appealing the judgment: “Having carefully studied the judgement, DCS is convinced that another court may arrive at a different conclusion. DCS is of the view that the court sadly misinterpreted the Correctional Services Act and erred in declaring the decision of the National Commissioner to place Mr Zuma on Medical Parole to be unlawful and setting it aside.”

The SA Human Rights Commission appealed for calm and noted that social media was abuzz following the ruling, and that statements and sentiments similar to those before the July unrest – which started after Zuma was arrested – were in the public domain.

"The Commission recalls that such media statements did, in fact, inflame the situation in June/July 2021 and led to the July unrest that took many innocent lives and resulted in large scale destruction of property in addition to violations of other human rights of many people in the country," the SAHRC, which is currently investigating the July unrest, said.

The commission also called on law enforcement to take note of the sentiments on social media and do their best to avoid a repeat of the July unrest.

Matojane said that an offender’s “trusted medical practitioners no longer make a diagnosis of medical illness or physical incapacity”. “Under the new regime”, the specific role of the Medical Parole Advisory Board was to “impartially and independently” make a medical determination as to whether or not an offender was terminally ill or was suffering from an illness that severely limited their daily activity or self-care.

The Board had to provide independent reports, prevent abuses of the medical parole system and ensure that there was consistency and transparency in the granting of medical parole.

In South African law it was generally accepted that an offender could not expect to escape punishment or seek an adjustment of his term of imprisonment because of ill health. “The Legislature deliberately took the responsibility to diagnose terminal illness or severe physical incapacity away from the treating physician and left it to an independent Board to make an expert medical diagnosis.”

After obtaining any necessary additional reports from other medical specialists, the Board had to furnish the National Commissioner of Correctional Services with and independent medical report and a recommendation as to whether the offender suffered from a terminal disease or was physically incapacitated

“In any event, none of the expert reports relied upon by the Commissioner asserts that [Zuma]  is terminally ill or is physically incapacitated,” including Dr Mafa, who completed the medical parole application form.

In answer to question as to whether Zuma was suffering from a terminal disease or condition that has deteriorated permanently or reached an irreversible state, Mafa stated that Zuma’s condition had “deteriorated significantly”, not that it had deteriorated permanently or had reached an irreversible state.

“To the question of whether [Zuma] is incapacitated, he answered that ‘Patient is under full-time comprehensive care medical team’.

“To the question which asks whether the offender is ‘able/unable to perform activities of daily living or self-care’, Dr Mafa merely states that ‘patient is under full time comprehensive medical care of the medical team’.

“To the question , which asks why medical Parole should be considered, Dr Mafa answers ‘medical incapacity’ he doesn't say that medical parole should be considered on the basis of physical incapacity, which is a listed option.

“Dr Mphatswe recommended medical Parole with immediate effect because ‘his clinical picture presents unpredictable health conditions constituting a continuum of clinical conditions” and that prison limited support for [Zuma’s] optimum care. He does not say that [Zuma] is terminally ill or is rendered physically incapacitated as a result of an injury, disease or illness.

The Surgeon General also does not claim that [Zuma] is terminally ill or incapacitated. His report only state that the reports ‘reflect a precarious medical situation” and he believes that the patient will be better managed and optimised under different circumstances that presently prevailing.

“The reasons given by the Commissioner to release Zuma on medical parole are not connected with the requirements for medical parole and are not authorised by the empowering provision. The Commissioner acted irrationally and considered irrelevant considerations and acted for an impermissible purpose

“If Mr Zuma did die while incarcerated, it could have ‘dire consequences’ and ‘could have ignited events similar to that of July 2022’. Threats of riots is not a ground for releasing an offender on medical parole.

“The Commissioner states that he overrode the recommendation of the Board because it was clear to him from other medical reports that [Zuma’s] conditions ‘were only brought under control through optimised care that he was receiving at an advanced health care facility’. This decision is irrational because if there was no longer a need for [Zuma] to receive the standard of care provided by the hospital, he should have been returned to the Correction Centre where he had access to all the medical care he required instead of being released to the care of his wife who has no medical training.

zuma judgment

 

See more from MedicalBrief archives:

 

Applicants seek to exploit cracks in Jacob Zuma’s medical parole defence

 

Zuma was given medical parole ‘because of fears of unrest’

 

Top specialists find Zuma fit for trial, fuelling scepticism over earlier medical parole

 

Ramaphosa ‘gave the green light’ to Zuma’s medical parole

 

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