Legal teams argued that the only remedy was for Jacob Zuma to return to prison, but his advocate countered that at this late stage, it would amount to a fresh sentence. (Nic Bothma / AFP - Getty Images)
Former president Jacob Zuma could not escape the fact that the medical parole board did not find that he was terminally ill, lawyers arguing the case for his return to prison told the Supreme Court of Appeal on Monday.
Advocate Max du Plessis, for the Helen Suzman Foundation, said the national commissioner of correctional services did not hold the power to grant medical parole in the absence of such a finding hence Arthur Fraser acted outside the law when he authorised his release last September.
Du Plessis said the Medical Parole Advisory Board was clear that Zuma suffered from chronic but not terminal conditions and that it could not recommend parole.
This was binding and should be the end of the matter, he submitted, because Fraser’s discretion under section 79 of the Correctional Services Act to decide if the risk of re-offending was low and arrangements could be made for community supervision of the prisoner only became relevant once the board made a positive recommendation.
Fraser’s overruling of the board prompted the HSF, Democratic Alliance and AfriForum to challenge his decision in the high court.
In December, judge Elias Matojane ruled that his release, less than two months after Zuma was jailed for contempt of court, was unlawful and ordered Zuma’s return to prison to serve the remainder of his 15-month sentence.
Du Plessis said the genesis of the amendment to the Correctional Services Act in 2008 showed that the intention was to place the determination of the medical leg of inquiry in the hands of the board, and not the commissioner or the minister.
He reiterated his argument, made in papers filed, that this change and accompanying regulations were informed in part by the controversial release of Zuma’s former financial advisor Schabir Shaik on medical parole.
Shaik, who was released on the basis that he suffered from a terminal condition, survives to this day.
“We say with respect, that regulation 29(a)(7) is a black letter, it is a requirement of law that there must be a positive recommendation by the board for there to be a lawfu;l decision by the commissioner to grant medical parole.
“In this case there was the opposite – the board said that he was not terminally ill.”
Du Plessis said if the court accepted his argument that Fraser had no leeway in law to override the recommendation of the board, his only remedy if he disagreed would have been for him to take its advice on review.
But, he added, if the court accepted by the appellants that Fraser could override the recommendation of the board, he still had to explain why he did it and show that his decision was rational.
Fraser failed to do so, he said, his conduct instead amounting to a “textbook spectacle of unlawfulness”, in part because he cherry-picked medical reports to rely only on those that favoured Zuma’s release.
Counsel for Fraser and Zuma had pointed to early reports by two doctors – Mafa and Mphatswa – who found that he was terminally ill. But Du Plessis said after further medical advice was received from specialists, the board concluded on 2 September that he did not suffer from any terminal disease.
“Only the board had those specialist reports,” he said, stressing that Fraser did not.
Ismail Jamie, SC, acting for the DA, told the court that Mafa, a military physician, in an addendum to his report, said that the prisoner suffered from a terminal disease or condition which is chronic and progressive. However, when asked whether it was irreversible, he replied in the negative.
“To all of us, as lay persons, if someone says someone is terminally ill, we all shudder, we all have a very good idea of what it means. It generally means imminent or even lingering, which is worse, death. You cannot cure the person, and that is the crux.”
Advocate Dali Mpofu, SC, for Zuma, disagreed that it was a requirement for medical parole that there be an irreversible condition that is worsening.
He argued, as did counsel for Fraser, that the decision of the parole board amounted to a mere recommendation, with no greater value than that of Dr Mafa, who applied for parole on Zuma’s behalf.
Mpofu also submitted that Fraser met the requirements of the act because in this instance section 79 must be read with section 75, which applies to prisoners sentenced to less than two years and gives him a greater discretion.
Late in the day’s pleadings, he mentioned that Dr Mphatswa, a member of the advisory board who had examined Zuma – noted that the former president had an intestinal lesion but the medical conditions from which he suffers remain otherwise undisclosed.
Like Advocate Maribolla Mphalehle who appeared for Fraser, Mpofu insisted that as a former head of state, Zuma’s medical records must remain classified.
Mpofu sought to use this against the parties who successfully challenged Fraser’s decision, saying it meant that they had gone to court without knowing the relevant facts.
But Jamie countered that the DA asked for the full record of the information on which Fraser relied, but were stymied by Zuma who refused that his medical reports be released.
Justice Clive Plasket said the fact that the court only had a redacted version of the medical reports, with the rest “scratched out in koki pen”, meant it lacked the information needed to test Fraser’s decision.
It meant that the appellant was asking for the court’s blind trust, he said, cautioning: “Review does not work that way.”
Had Zuma served his full prison sentence, he would have been due for release in early October.
If the SCA were to uphold the high court’s finding that Fraser acted unlawfully, it would have to deal with its accompanying directive that the past year spent on parole does not count towards the purging of Zuma’s sentence.
Du Plessis said medical parole was a reprieve, but Mpofu argued that it was still punishment.
He said Matojane’s order that time spent on medical parole did not count as time served was cruel and inhumane. Sending his client back to jail at this stage, he added, would amount to “sentencing him anew”.
Judgment was reserved.
Zuma is expected to turn to the constitutional court if the appeal is dismissed.
He was jailed for flouting a constitutional court order that he testify before the Zondo commission of inquiry into state capture. The commission in its final report said it appeared that Fraser ordered Zuma’s release as a favour to the former president for sparing him from criminal investigation for allegedly running an illicit spy network.