Zuma grateful to Arthur Fraser for ‘life-saving’ medical parole

The decision by Arthur Fraser,  former national commissioner of correctional services, to grant medical parole to Jacob Zuma should be “applauded as exemplary leadership that is required under our constitution”, the former president said. 

In papers filed with the Constitutional Court, Zuma said: “I am grateful for it. Without such intervention, I may well not have been alive to depose to this affidavit.”

Zuma is seeking to intervene in an application in the apex court brought by commissioner Makgothi Thobakgale to appeal the Supreme Court of Appeal (SCA) ruling that Zuma’s release from prison on medical parole by Fraser  was unlawful and that he must return to prison, at the direction of the commissioner.

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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 serve 15 months in prison.  However, two months into the sentence — most of which was spent in a private hospital — Fraser controversially granted him medical parole, in spite of the fact the Medical Parole Appeal Board  (MPAB) had recommended against it.

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

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

Zuma, who was not cited as a party in Thobakgale’s appeal bid before the Constitutional Court, said he should be allowed to join the proceedings because any order would have a direct effect on his constitutional rights.

He said he was “in two minds” about becoming involved but believed the SCA ruling was “completely way off the mark”.

He said both the Pretoria court and the SCA had been wrong to make the findings they did in the absence of his full medical records.

“The applicants bear the obligation to place before the court all relevant information. They failed to do so and insisted on arguing I did not suffer any medical condition which justified the granting of medical parole. This was unduly reversing the onus.”

He conceded he had objected to his medical information being given to “political organisations whose main interest was to cause stressful controversy”.

“I had been advised I was entitled to do this and that only a court could, on proper application by the parties, access protected medical information.

“The political organisations refused to challenge my right to assert medical privilege. And yet they continued to contend there was no medical basis for the commissioner's decision. This is a legal absurdity.

“Without a full medical record, it cannot be held that the commissioner acted irrationally or unreasonably.”

The SCA, Zuma said, had ruled Fraser had taken into account irrelevant factors, including his age (79 at the time), that he was a former president and the July 2021 unrest.

On the issue of the relevance of the violence, he said it was a “responsible reflection of what the public could believe if, for instance, I died in prison”.

“To point this out is not to support nor condone wanton violence. My point is simply that it is not an irrelevant consideration.

“The SCA  and the high court failed to properly consider why the commissioner was concerned about the serious implications any possible death of a prisoner has, but more so the potential death of a formerpresident in circumstances where that could be prevented by a responsible approach.

“I am quite well aware that to some specific sections of our society, including the parties seeking to have me reincarcerated, the possibility of my death may well be irrelevant or even a joyous occasion.

“However it is not unreasonable nor irrational for the commissioner, faced with my medical facts, to consider the implications of my death while in prison where that could have been prevented by appropriate and lawful medical or administrative interventions,” he said, noting “context is everything”.

Zuma said doctors sitting on the MPAB had been divided on the issue of whether he should be granted medical parole and, in these circumstances, Fraser was entitled to use his discretion.

“Faced with the possibility that I faced death itself while in prison, it could never be unreasonable nor irrational for the commissioner to have granted me medical parole, bearing in mind my incarceration was in the middle of a deadly pandemic”.

He said he specifically wanted the Constitutional Court to finally decide the question of whether the time he served under medical parole should be considered as compliance with his sentence of 15 months.

“It will clear the uncertainty the SCA has left by its decision directing the commissioner to make that decision even after I am out of the prison system for more than two months.

“This constitutes a gross misdirection. There is nothing for the commissioner to consider. The official release date of October 7 2022, has come and gone. Legally speaking, my entire sentence has been served. Any court which seeks to sentence me again without a trial ought to properly pronounce on the new sentences and the reasons behind it.”

Zuma said if the court allowed him to intervene in the matter, he would file further papers.

The DA is opposing Thobakgale’s application.

It said Zuma is “laughing at the courts”  and the medical parole decision was patently unlawful.

“Mr Zuma is neither terminally ill nor physically incapacitated and he has refused to disclose his mysterious medical condition,” the party said, adding this was borne out by his behaviour since his release.

He had travelled 200km to Durban to meet his political allies, he had attended court for his private prosecution of prosecutor advocate Billy Downer and journalist Karyn Maughan, he had made public addresses and he had attended, along with fellow medical parolee Shabir Shaik, the opening of a restaurant named Zuma in Umhlanga.

A video tweeted by his daughter Dudu Zuma-Sambudla showed Zuma laughing and Shaik dancing at the event.

Thobakgale said the SCA was wrong to rule Zuma must return to prison and serve his sentence.

He said: “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 until the expiry of the 15-months 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.”

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