Zuma laughing at courts, says DA in application to oppose medical parole

Jacob Zuma is “laughing at the courts” and clearly does not think South Africa’s constitutional democracy should have authority over him.

This is the response of the DA to attempts by national commissioner of correctional services Makgothi Thobakgale to appeal in the Constitutional Court the Supreme Court of Appeal (SCA) ruling that the former president's release from prison on medical parole was unlawful and that he must return to jail.

Thobakgale filed his application for leave to appeal with the apex court late last year. Thus far Zuma has not entered the fray, with only the DA filing submissions.

In June 2021 the Constitutional Court found Zuma in contempt of a previous order directing him to appear before the state capture inquiry. The court sentenced him to 15 months in prison. But two months into the sentence, most of which was spent in a private hospital, former prisons boss Arthur Fraser granted him medical parole, in spite of the medical parole appeal board (MPAB) recommending against it.

The DA, with the Helen Suzman Foundation and AfriForum secured an order in the Pretoria high court deeming Fraser’s actions unlawful.

The commissioner’s office and Zuma appealed, but the SCA dismissed it with costs.

It 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 version, the commissioner’s decision was unlawful because he took into account irrelevant factors, among them Zuma’s age and the July 2021 unrest following his incarceration.

In an affidavit opposing the application for leave to appeal to the Constitutional Court, the DA’s attorney, Elzanne Jonker, said Zuma had not spent a single day in an ordinary prison cell, having been admitted to Estcourt Prison’s hospital wing immediately and then transferred to a private hospital.

Three days after being granted medical parole, he was discharged and went home to Nkandla.

Jonker said the application was part of the strategy to undermine the courts' authority without consequence and “this must not be allowed to succeed”.

“The medical parole decision is patently unlawful, as the high court and the SCA correctly found,” she said.

“Mr Zuma is neither terminally ill nor physically incapacitated, and he has refused to disclose his mysterious medical condition.”

Jonker said Zuma had since his release not behaved like someone who was terminally ill or physically incapacitated, but had a “packed schedule” in which he:

• travelled 200km to Durban to meet political allies;
• attended court for his private prosecution of prosecutor advocate Billy Downer and journalist Karyn Maughan;
• made public addresses; and
• attended, with fellow medical parolee Schabir Shaik, the opening of an Umhlanga restaurant named Zuma. A video tweeted by his daughter, Dudu Zuma-Sambudla, showed the former president laughing and Shaik dancing at the event.

“Mr Zuma is laughing at the courts. He obtains medical parole from a prison sentence for contempt, after which he continues to publicly undermine the courts and does not even pretend to have a terminal illness or be physically incapacitated,” Jonker said.

“He could not be entitled to medical parole just because he used to be the president. To the contrary, the rule of law and the right of all people to be treated equally before the law command he be treated exactly the same as any other inmate.”

She said the DA challenged Fraser to name other prisoners released by him against recommendations of the board, but he had not responded.

“The only reasonable conclusion is that Mr Fraser was biased ... on his own version Mr Zuma did not meet the basic requirements. And he considered irrelevant considerations, most notably that Mr Zuma was a former president whose supporters might riot if he died in prison.”

Thobakgale, in his application, argued that the SCA was wrong to rule Zuma must return to prison and serve his sentence. “This is alarmingly inhumane and insensitive ... parole is a form of punishment,” he said.

“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 7 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.”

But Jonker said the court’s decision was nothing more than the logical consequence of setting aside the medical parole decision. Regarding submissions by Thobakgale that Zuma was not a party to the decision and should not be further punished for it, Jonker said this was “preposterous”.

“The implication is that he was not at fault for the unlawfulness and should not be required to go to prison to serve out the remainder of his sentence. But this too is incorrect.

“He knows one cannot get medical parole if one does not have a terminal illness and is not physically incapacitated. He knows he does not have a terminal illness and is not physically incapacitated. He thus knows he is not entitled to medical parole. Yet he applied for it anyway. 

“He must not be permitted to obtain the benefit of a decision he knew would be unlawful.”

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