Fraser's decision to grant Zuma parole was an 'unlawful intervention' that undermined respect for SA’s courts

The granting of medical parole to former president Jacob Zuma by former correctional services head Arthur Fraser, despite the Medical Parole Advisory Board (MPAB) not recommending such, was an “unlawful intervention” that undermined respect for South Africa’s courts, the rule of law, and the Constitution. 

So said Judge Keoagile Matojane on Wednesday in a 33-page judgment sent out via email that ordered Zuma back to prison to complete his 15-month sentence for contempt of court, with the time he spent on medical parole not to be counted to fulfilling of the sentence.  

The news of the ruling had barely broken when Zuma’s legal team filed a notice to appeal. 

Matojane ruled that Fraser’s 5 September decision was “reviewed, declared unlawful, and set aside”.  

The judge said that the MPAB was the statutory body that should be utilised to make recommendations regarding the granting of medical parole, as it was established to do exactly that. “The Commissioner does not have the medical expertise to overrule the recommendation of the Board,” he said. 

Fraser’s decision to place Zuma on medical parole meant that he had “impermissibly usurped the statutory functions of the Board.”

The former president’s release on medical parole, not even two months after starting his sentence, caused uproar amongst the South African public and brought into serious question the impartiality of correctional services and Fraser in particular. 

Had he not have been released on medical parole, Zuma’s sentence would have officially ended in October 2022. 

The Democratic Alliance were the first to seek legal recourse on 10 September, wanting the parole decision urgently reviewed and set aside. The Helen Suzman Foundation and civil rights group AfriForum just days thereafter made applications for the same, with the Foundation also seeking that Zuma’s time on medical parole not be counted as time served. 

The applications were heard together. 

Lawyers for the trio argued that Zuma did not satisfy the requirements for medical parole as per the Correctional Services Act, because he was not “suffering from a terminal disease or condition” and was not “rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”. 

Zuma and Fraser had opposed the applications, saying they were not urgent, had no legal standing, and were moot as he was eligible for ordinary parole anyway. 

Said Matojane: “The Commissioner’s unlawful intervention has resulted in [Zuma] enjoying nearly three months of his sentence sitting at home in Nkandla, not serving his sentence in any meaningful sense.”

The judge also mentioned a newspaper article of 17 October, submitted by the DA in support of its review application, which reported Zuma meeting with political allies Carl Niehaus and Dudu Myeni at Sibaya Casino on 15 October. Zuma had also addressed his supporters at a virtual prayer meeting on 14 October. 

While not mentioned in the judgment, Zuma has been photographed and videoed receiving guests at his homestead, including throngs of new eThekwini councillors last week who had travelled to Nkandla to seek his blessing as their terms start. The former president has also penned a book, allegedly already sold out.  

“As determined by the Board [Zuma] is not terminally ill or severely incapacitated and seems to be living a normal life” said the judge. 

He added: “The Commissioner has unlawfully mitigated the punishment imposed by the Constitutional Court, thereby rendering the Constitutional order ineffective, which undermines the respect for the courts, for the rule of law and for the Constitution itself.

“The consequential relief sought, sending [Zuma] back to prison to do his time and order that the time spent on medical parole should not count towards fulfilling his sentence, will not impact him unfairly as there is no suggestion that he is an innocent party. 

“[Zuma] defied the Zondo Commission, the judiciary and the rule of law and is resolute in his refusal to participate in the Commission’s proceedings. He continues to attack the Constitutional Court while unlawfully benefitting from a lesser punishment than what the Constitutional Court has imposed.”

Matojane also details the timeline of events leading up to Zuma’s release on medical parole, with the first request for the former president to be moved to a specialist high care facility coming on 8 July, the very day he was first detained at Estcourt Correctional Centre.

The request was made by a Dr Mafa of the South African Military Health Services (SAMHS), after he had compiled a report on Zuma’s health. 

On 9 July, Brigadier General Dr Mcebisi Mdutywa wrote to the head of the prison asking that a paramedic be given permission to monitor Zuma on a daily basis and “alert the doctors and specialists immediately of any changes should there be any”. Mdutywa said that this was necessary as the SAMHS has “the sole mandate and responsibility of assuring and giving medical support Services to [Zuma].”

Dr Mafa applied for Zuma’s release to a specialist medical facility on 28 July, saying that when taking Zuma’s medical conditions into consideration “there is a fear that [Mr Zuma’s] condition may further deteriorate if intervention is delayed. As a result of this report, it is hereby recommended that Mr Zuma be moved to a specialist medical facility to be assessed further by specialists under presidential medical team [sic] for proper investigations and to optimise therapy for better outcome [sic]. 

“This is not a final report; the comprehensive medical report will follow once all the investigations have been conducted by the specialist. The specialists will also determine other investigations as necessary. The final report by the Specialist Medical Panel will assist towards further interventions; prognosis and application for Medical Parole.”

Of this request, Judge Matojane said in his judgment: “It bears mentioning that the recommendation that [Zuma] be moved to a high-care unit was not because he was found to be terminally ill or physically incapacitated as required by the Act. It was for further medical assessment.” 

On the very same day, Dr Mafa applied for medical parole on behalf of Zuma, saying in the application that the former president was suffering from a “terminal disease or condition that is chronic and progressive”. He also said that Zuma’s condition had deteriorated since 2018 and he was “unable to perform the activities of daily living or self-care”. Medical parole was recommended by Mafa as a result of “medical incapacity”. 

On 29 July, the operational manager at Estcourt prison recommended Zuma’s release on medical parole on the basis of a report written by the former president’s medical team, citing comorbidities. 

The operational manager said that Zuma needed tertiary healthcare that he was not getting from correctional services. “His conditions need to be closely monitored by a specialist, and should his condition complicate during the night, it will take time for him to access relevant health services.” 

On 5 August, Zuma’s medical team wrote to Fraser asking that he be urgently moved to a specialist medical facility for assessment and management because there was “a fear that his condition is deteriorating”. The assessment and management was to be done by the specialists in the presidential medical team, to “avert a crisis”. On the same day, Zuma was transferred to a private hospital in Pretoria. 

On 13 August, Zuma was examined by Dr LJ Mphatswe, a member of the MPAB. Ten days later, Dr Mphatswe produced a medical report recommending Zuma be released on medical parole with immediate effect. As quoted in the judgment, Mphatswe said that Zuma has “a complex medical condition which predispose him to unpredictable medical fallouts or events of high-risk clinical picture (sic). 

“He is of old age and generally looks unwell and lethargic. The total outlook of his complex medical conditions and associated factors in an environment limited to support his optimum care is of extreme concern. 

“In the main and primarily in summation of the total clinical assessment motivated by high-risk factors. I wish to recommend that the applicant be released on Medical Parole with immediate effect because his clinical picture presents unpredictable health conditions constituting a continuum of clinical conditions. Sufficient evidence has also arisen from the detailed clinical reports submitted by the treating Specialists to support the above-stated recommendation.”

Also on 23 August, Zuma’s wife Sizakele Zuma signed an “undertaking to care” form to accommodate him at Nkandla. 

The MPAB met to consider Zuma’s application on 26 and 28 August, but said it did not have sufficient information to reach a decision. Additional information was requested from independent medical specialists — a cardiologist, surgeon, physician and histopathologist. 

On 30 August the surgeon general, on behalf of the SAMHS, submitted various medical reports to the board, with a covering letter saying that if the reports were looked at individually, it may seem that Zuma’s condition was under control, but “all together, paint a picture of a patient whose condition is under control, but all together reflect a precarious medical situation, especially for the optimization of each one of them”. 

“We will remember that the patient was fairly optimised prior to his incarceration, and it took only four weeks for his condition to deteriorate such that his glucose, blood pressure and kidney function went completely out of kilter. The Surgeon General believes that the patient will be better managed and optimised under different circumstances than presently prevailing.”

The medical parole board reconvened on 2 September after receiving the reports from the specialists and its own Dr Mphatswe, but did not recommend medical parole. 

It said: “The MPAB appreciates the assistance from all specialists with the provision of the requested reports. The Board also notes and appreciates the use of aliases and has treated all submitted reports as those pertaining to the applicant. 

“From the information received, the applicant suffers from multiple comorbidities. His treatment has been optimised, and all conditions have been brought under control. From the available information in the reports, the conclusion reached by the MPAB is that the applicant is stable and does not qualify for medical parole according to the Act. The MPAB is open to considering other information, should it become available. The MPAB can only make its recommendations based on the Act.” 

On 4 September, the KwaZulu-Natal regional commissioner for correctional services and the head of Estcourt prison approached Fraser saying they were “concerned” that the MPAB had not recommended Zuma for parole despite his being hospitalised for an extended period. 

The next day, Fraser granted the “undeniably frail” 79-year-old medical parole on the grounds of the military health service reports. Zuma was discharged from hospital on 8 September, cared for by his wife at a residence in Waterkloof where he was given “medical support and supervision”, and a week later was back home in Nkandla where “a similar arrangement [for his care] was put in place”.  

The Department of Correctional Services said in response to the ruling that it is “currently studying the judgment and in due course, we will make further pronouncements”. 

In response to the JG Zuma Foundation’s announcement that it had already delivered its application for leave to appeal, Zuma loyalist Carl Niehaus tweeted: “It is evidently the correct decision to appeal the vindictive and petty judgement of the increasingly notorious Gauteng North high court. This is a blatantly wrong judgement driven by all the wrong factional political reasons.”

It is evidently the correct decision to appeal the vindictive and petty judgement of the the increasingly notorious Gauteng North High Court. This is a blatantly wrong judgement driven by all the wrong factional political reasons.

— Carl Niehaus (@niehaus_carl) December 15, 2021