In August last year, Arthur Fraser, then the director-general of correctional services, ordered Zuma’s release from prison less than two months after he was jailed for contempt of court.
Legal counsel for Arthur Fraser on Monday argued before the supreme court of appeal (SCA) that he was not bound to respect the decision of a statutory board on whether to grant Jacob Zuma medical parole or to reveal the full record of the former president’s health woes to the court.
Advocate Maribolla Mphalehle told the court the law did not accord more relevance to the opinion of the Medical Parole Board than to the report submitted by a military physician, Dr QSM Mafa, who filed a parole application on Zuma’s behalf.
“It is not a proper reading of the [Correctional Services] Act. The fact that the body itself is constituted by experts does not elevate its report to be more important than any other report. It is an additional report,” he said.
Mphalehle’s interpretation was interrogated at length by a full bench, with the judges asking inter alia how Mafa’s report on Zuma’s medical condition could be considered an independent opinion since he was arguing for parole on his patient’s behalf.
Justice Nambitha Dambuza, who is presiding over the appeal, asked why lawmakers would establish a statutory body only to give so little weight to its decisions.
Mphalehle replied: “It was established in order to provide an additional report, an independent additional report, which needs to be considered by the national commissioner, and he has done so.”
Dambuza did not appear satisfied, and repeated the question: “Why would the legislature go to all that trouble of putting together a body of 10 or 11 medical practitioners who would decide by way of majority what the condition of the applicant is, if their condition would be considered similarly as the applicant’s doctor?”
In August last year, Fraser, then the director-general of correctional services, ordered Zuma’s release from prison less than two months after he was jailed for contempt of court. He was sentenced to 15 months for defying a constitutional court order that he appear before the Zondo commission of inquiry into state capture.
In December, the Pretoria high court set aside Fraser’s decision as unlawful, because he had failed to follow the prescripts of the Correctional Services Act and ordered that Zuma return to prison. Zuma promptly applied for leave to appeal, suspending the order.
The high court held that considering the medical reports filed was the remit of the board, not of the commissioner, and hence he had breached the law. He further broke the law in that it makes terminal illness or incapacitation a prerequisite for medical parole.
Yet, none one of the expert reports placed before Fraser, who served as the head of the State Security Agency under Zuma, made it plain that the former president had a terminal condition.
But Mphalehle said it could be inferred tacitly from Fraser’s decision that Zuma was terminally ill. The fact that the medical reports stated that his condition was stable, did not preclude a terminal condition, he argued.
“If you are stable it does not necessarily mean that you are not suffering from a terminal illness. It may have stabilised because of medical intervention, and it cannot be said now that he is no longer terminally ill.”
He stressed that Mafa argued that Zuma must be released immediately, and said it would have been wrong not to heed this.
Justice Glen Goosen said apart from the weight given to the board’s decision in law, Mphalehle faced a further difficulty in that the courts had not been given a full record of the facts that confronted Fraser, as Zuma’s medical condition had not been disclosed.
Therefore, he said the high court had been bound to invalidate his decision.
“Is there not a principle that operates in these circumstances that where a court is called upon to exercise its jurisdiction in determining whether a decision-maker or for that matter a court below has correctly determined the matter, the absence of a full record available to the court would generally result in a decision being set aside?”
Mphahlele conceded that in most cases this was so, but that it did not apply here.
“There is a medical report, it is just that it has been redacted.”
Goosens said that was precisely his point. The medical report was redacted in such a way that the high court did not have the information to decide whether on the medical facts Fraser’s decision was sound, and the SCA now found itself in the same boat.
“The order is on appeal. If that order cannot be justified, because we don’t have access to the record, is the result not that the appeal then cannot succeed?” he said.
Mphahlele insisted that the information before the court was sufficient.
But Justice Clive Plasket said the very information that the court needed to test Fraser’s decision was not there.
“The problem is that the information that has been scratched out with a koki pen is the very information that goes to the heart of the decision that has to be taken.
“We have no way of knowing whether the commissioner exercised his discretion properly, in other words, the problem looked at from the other side, is that he has a great deal of difficulty in justifying his exercise of power. It is not good enough to say ‘trust me, I looked at everything and I took this decision and it is the correct decision.’
“Review does not work that way,” Plasket added.
Mphalele insisted that the court had the benefit of a report from Mafa that said “the person is terminally ill or suffering from a terminal condition … it is there, so there is information for the court to consider”.
Advocate Dali Mpofu, appearing for Zuma, argued that it was not Fraser or his client who should be punished for the absence of medical details before the court, but the Democratic Alliance, AfriForum and the Helen Suzman Foundation who challenged his release without the full facts.
He said as a former head of state, Zuma’s medical records were classified. Should anybody wish to argue that, on the facts, Fraser was wrong to grant him parole, they should have sought their declassification.
The three applicants had asked for access to the records on a confidential basis but Zuma refused. They accepted a much abbreviated version and argued in the high court that the test in section 79 of the Act, which speaks to terminal illness or incapacity, had not been met.
But Mpofu said it was “a fact of life” that Zuma suffered from a terminal illness, and neither a court of law or a parole board could overrule the opinion expressed by two doctors who had examined him.
“How can a court of law know better than a medical expert? Nobody has said that they were bribed or belong to some faction … and they say the man is suffering from a terminal disease, and who are we to say no, simply based on some flimsy argument?”
He insisted that the view of the parole board — which had sight of the records — amounted to a recommendation, and said Fraser had to do no more than consider it, along with other factors, such as that the prison in Estcourt where he was held lacked the medical facilities he needed.
If Zuma had stabilised, it was because he had in the meanwhile been admitted to a private hospital in Pretoria. Fraser had also submitted that he freed Zuma for fear of more political instability should he remain in prison. The high court said this was not reasoning allowed by the act, as it undermined the rule of law.
The hearing continues.