‘Absolutely no indication’ that requirements met for Zuma’s medical parole, court told

There was “absolutely no indication” that former president Jacob Zuma was terminally ill or physically incapacitated in the way required to lawfully grant medical parole, the Pretoria high court heard on Tuesday.  

The court was hearing applications by the Helen Suzman Foundation, the DA and AfriForum to set aside the decision by former national correctional services commissioner Arthur Fraser to grant Zuma medical parole after the former president had served less than two months of a 15-month sentence for contempt of court.

All three parties want the court to set aside Fraser’s decision and substitute it with an order that would deny the former president medical parole and send him back to prison.

In court on Tuesday, the DA’s counsel, Ismail Jamie SC, said when Fraser granted medical parole he had done so against the recommendation of the medical parole board — and that this was unlawful.

In terms of the Correctional Services Act and its regulations, the national correctional services commissioner may not grant medical parole if the board — made up of several independent medical experts — went against it, he argued. In Zuma’s case, the board had declined to recommend parole, saying it could only act in terms of the act.

Jamie, and counsel for the Helen Suzman Foundation, Max du Plessis SC, both also argued that Fraser could not even begin to make a decision on medical parole unless Zuma was either terminally ill or was “rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”.

But Zuma was not terminally ill or incapacitated, said Jamie.

“This is not the DA’s version. This is the version of both the commissioner [Fraser] and Mr Zuma himself. Neither the commissioner, nor Mr Zuma, ever squarely allege that he is terminally ill or that he is incapacitated,” said Jamie in his written argument.

In court, he told Judge Elias Matojane that the court could take “judicial cognisance” of the facts that just before his incarceration Zuma was on the public stage addressing a press conference “in a combative mood” and that, after his release, he attended a meeting at a casino.

But counsel for the commissioner, Maribolla Mphahlele SC, said that the act required the commissioner to apply his own mind to whether an inmate qualified for parole. The board made its recommendation but the decision lay with the commissioner, he said. He argued that the DA’s and HSF’s arguments were interpreting the act through the regulations, which was not a proper way to interpret statutes.

But Du Plessis says the process was stipulated in the act, not in the regulations.

Zuma’s counsel, Dali Mpofu SC, 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 condition which was chronic, and the answer was “yes”.

But Jamie said the wording of the form was “unhappy” because it did not track the wording of the act and was unclear, as there was a difference between terminal and chronic illness. As such, the form did not have any stand-alone meaning in law, he said.

Du Plessis added that Dr Mafa’s report came earlier than the later, expert findings that had been considered by the board — five medical doctors. He also said that Fraser had not relied on Dr Mafa’s report when he made his decision.

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 less than 24 months. Under this section, the national commissioner can grant medical parole and this is not limited to the requirements of terminal illness or physical incapacity.  

Du Plessis said there was an “other-worldliness” to this argument as “all of us” in the case had been speaking about terminal illness. He said Mpofu had “glossed over or has 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. Their only intention was to humiliate his client, he said.

“This application is a thinly veiled political stunt aimed at cheap electioneering, racist hatred, opportunism and the unwanted attention of busybodies, such as the three applicants,” said Masuku and Mpofu in their written argument.

Jamie said he would not elevate Masuku’s insults by responding, except to say there was no factual basis for them. The DA’s intention was to uphold the rule of law, he said.

Judgment was reserved.