National commissioner appeals Zuma parole ruling in ConCourt

The National Commissioner of Correctional Services is appealing in the Constitutional Court in last month’s Supreme Court of Appeal (SCA) ruling that former president Jacob Zuma’s release from prison on medical parole was unlawful and that he must return to prison.

In papers filed with the apex court, commissioner Makgothi Thobakgale says the matter raises an arguable point of law of general public importance: Whether the national commissioner is entitled to, or has the power to place an inmate on medical parole without a positive recommendation by the Medical Parole Advisory Board (MPAB).

Thobakgale says both the Pretoria High Court and the SCA were wrong in finding that he does not, and that leave to appeal should be granted.

Last June, the Constitutional Court found Zuma in contempt of a previous order directing him to appear before the Zondo State Capture Commission of Inquiry.

The court sentenced him to serve 15 months in prison. 

But two months into the sentence - most of which was spent in a private hospital -  former prisons boss Arthur Fraser controversially granted him medical parole, in spite of the fact that the MPAB had recommended against it.

The Democratic Alliance, along with the Helen Suzman Foundation and Afriforum, secured an order in the Pretoria High Court, deeming Fraser’s actions to be unlawful.

Both Zuma and the commissioner’s office took the decision on appeal, but the SCA dismissed it with costs.

The SCA agreed with the High Court that medical parole could only be granted if an inmate was suffering from a terminal disease or was physically incapacitated, and this was for the MPAB — as a specialist professional body — to decide.

The court also found that on his own version, the commissioner’s decision was unlawful because he took into account irrelevant factors — Zuma’s age and the unrest following his incarceration.

Thobakgale, in his appeal application, says the Pretoria High Court had been wrong to find that the board had concluded that while Zuma suffered from multiple comorbidities, he was not terminally ill or physically incapacitated.

He said the board did not express this but had said his treatment had been optimized and all conditions brought under control, that he was stable and did not qualify for medical parole, according to the South African Correctional Services Act.

Thobakgale said the fact that Zuma’s condition was under control did not imply that he had been cured from a terminal disease or condition.

Further, he said, the board did not make a medical diagnosis of an offender, it only considered the reports of the medical experts and made a recommendation to the national commissioner.

He said the court had been wrong in finding that this recommendation was binding because the Act gave the national commissioner discretion.

It had also been wrong in finding that Fraser had acted irrationally and considered irreverent information, completely ignoring the reasons he put forward and that he was satisfied that Zuma met the criteria for parole.

Regarding criticism that Zuma had been “sitting at home in Nkandla”, not really serving a meaningful sentence, had addressed his supporters at a prayer service and seemed to be enjoying a normal life, Thobakgale said Zuma had not been released to “enjoy staying at home”.

“Parole is a form of punishment which is served by an inmate within the system of community corrections….suffering from a terminal illness does not imply that a person cannot talk.”

Turning to the SCA judgment, Thobakgale said the fact that Zuma was ill and physically incapacitated had been confirmed by the head of the Estcourt Prison and the acting Regional Commissioner in KwaZulu-Natal.

The SCA had essentially ignored this evidence.

It had also incorrectly elevated the role of the board above that of the national commissioner.

“It is undesirable that the decision-maker must simply rubber stamp the board’s recommendations,” he said.

“In his reasons, he mentioned that Mr Zuma was 79 years old and undeniably a frail old person. He stated very clearly that Mr Zuma was regarded as a low-risk inmate in terms of re-offending. He further mentioned that it was common cause that he is a first-time offender who did not pose any security risk to the community into which he was going to be released,” he said.

Thobakgale said the SCA had erred in finding that Zuma had not finished serving his sentence and must return to prison.

“This is alarmingly inhumane and insensitive …..parole is a form of punishment. When he left prison he was continuously under community corrections. He was never a free man with effect from July 8 2021 up until the expiry of the 15-month period on October 2022.

“It is inconceivable that a court, in a constitutional dispensation, can send an inmate who has served his sentence back to prison. This amounts to double jeopardy and a complete travesty of justice.

“He was not party to the decision to grant him medical parole and there is no evidence that he in any way, illegally, influenced the National Commissioner in making the decision. The just and equitable remedy principle required the court to take this into consideration.”

Zuma is also expected to apply for leave to appeal the SCA ruling.

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