‘Irrational’ and ‘premature’ – SCA takes aim at Fraser, Correctional Services and says Zuma should return to jail

The Supreme Court of Appeal dismissed former president Jacob Zuma’s medical parole appeal on Monday, saying the Medical Parole Advisory Board was the ultimate decision maker on determining whether an inmate suffered from a terminal illness, not the then correctional services commissioner, Arthur Fraser, and that the 80-year-old should return to prison.

The court said, however, that whether Zuma’s time on medical parole should count towards his 15-month contempt of court sentence was a matter for the commissioner to decide. That decision now rests with Makgothi Thobakgale, who was appointed to the post last month. 

In the SCA decision, penned by Judge Tati Makgoka, the court said that Fraser could not “simply ignore” the recommendation of the Medical Parole Advisory Board “because he or she holds a different view”. 

“This is because the Board is an expert body on the ‘medical’ part of the medical parole process. Ordinarily, the commissioner does not have that expertise. It follows that the commissioner’s role is not to determine whether medical parole is medically appropriate. That role is statutorily reserved for the Board.” 

Correctional Services announced on 5 September 2021 that Zuma had been placed on medical parole “impelled by a medical report”.

But the department was vague about the specifics, saying instead: “Apart from being terminally ill and physically incapacitated, inmates suffering from an illness that severely limits their daily activity or self-care can also be considered for medical parole.”

It was soon revealed that Fraser had decided to release Zuma on medical parole against the recommendations of the board. Fraser had said he based his decision on Zuma’s age, his being a former president, that the Department of Correctional Services did not have the capacity to give Zuma the care he required, and the July 2021 riots, sparked by Zuma’s jailing. 

The release was challenged in the Pretoria High Court by the DA, the Helen Suzman Foundation and AfriForum. The court found in their favour in December, with the presiding judge, Elias Matojane, calling the release unlawful and setting it aside.

Zuma was ordered back to jail to complete his sentence. But within hours of Matojane’s judgment the Department of Correctional Services and Zuma made known their intentions to appeal against the decision at the SCA, which suspended the ruling. 

The court heard argument for the matter on 15 August, where advocate Max du Plessis, acting for the Helen Suzman Foundation, told the full bench that Fraser had erred “spectacularly” in law and rationality when he summarily dismissed the recommendation of the board that Zuma did not qualify for medical parole. 

Read in Daily Maverick: “Arthur Fraser ‘erred spectacularly’ in granting Zuma medical parole, Supreme Court of Appeal is told”

In Monday’s decision, the SCA said that while the arguments made by Fraser for releasing Zuma could be “taken into consideration for normal parole, they have no bearing at all in an application for medical parole”. 

“To that extent, the Commissioner acted irrationally.” 

The high court was correct in setting aside the medical parole release, said the SCA, since Fraser’s decision was “unlawful and unconstitutional”. It added that the high court deciding that Zuma’s term on medical parole should not count towards fulfilment of his sentence brought up the issue of separation of powers and should be set aside. 

The background to this story

Former president Jacob Zuma was sent to jail for 15 months after refusing to testify before the Zondo Commission.
Former head of Correctional Services Arthur Fraser later revealed Zuma spent his days in standard orange prison overalls and had to make his bed and clean his cell.
The jailing of Jacob Zuma triggered massive riots in KwaZulu-Natal and Gauteng in July 2021.
The uncontrolled riots illustrated the long shadow Zuma still cast over the ANC and the state, political analyst Susan Booysen wrote.
While the unrest wiped out R100bn, the damage caused ran far deeper, Daily Maverick's Marianne Thamm concurred.
Barely two months later, Zuma was placed on medical parole, the Department of Correctional Services announced.

“The effect of the setting aside of this declarator is that once the order in this appeal is handed down, Mr Zuma’s position as it was prior to his release on medical parole will be reinstated. He must return to the Estcourt Correctional Centre to do so. 

“Whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration, is not a matter for this court to decide. It is a matter to be considered by the Commissioner. If he is empowered by law to do so, the Commissioner might take that period into account in determining any application on grounds for release.” 

‘Undermining the judicial process’

Judge Makgoka also expressed the court’s “disquiet” over Correctional Services issuing a statement last month – while the SCA decision was pending – about Zuma having completed his sentence. 

“Such a pronouncement was premature given that the determination of the very issue was still pending before this Court. A decision as to whether Mr Zuma’s prison term had lawfully expired could not be validly made until the Court had determined the appeal by the Commissioner and Mr Zuma. This court has now determined that Mr Zuma’s release on medical parole was unlawful.”

The statement issued by the department had the effect of potentially undermining the judicial process, said Makgoga, particularly because it was an appellant in the matter. 

Zuma is expected to take the ruling to the Constitutional Court. The spokesperson for his foundation, Mzwanele Manyi, could not be reached to confirm this, nor could Zuma’s senior council in the matter, advocate Dali Mpofu. 

Manyi did, however, tweet from his personal account on Monday that Zuma was a “free man” and would not be returning to prison.

Responding on Monday, the Department of Correctional Services said it had “noted” the SCA’s judgment and that it “respects the court’s decision and will study the full judgment in seeking to clarify a way forward within the requisite timeframe”. DM