Arthur Fraser had no discretion, as then national commissioner of correctional services, to grant former president Jacob Zuma medical parole without a recommendation from the parole board that his health demanded it, the Pretoria high court heard on Tuesday
The argument was made by counsel for the Democratic Alliance, the Helen Suzman Foundation and Afriforum on Tuesday in their bid to overturn his release from prison in Estcourt.
Fraser granted Zuma medical parole in early September, less than two months after he was jailed for 15 months for contempt of court and despite advice from the Medical Parole Advisory Board that he did not qualify for release.
Advocate Ismail Jamie, for the DA, said Fraser did not have the law on his side when he contended that he had a discretion to exercise after taking into consideration all the factors relevant to Zuma’s case.
This was so because the Correctional Services Act, in section 79(1)(a) makes terminal illness or incapacitation a prerequisite for medical parole. Only once this was satisfied, could other factors in following clauses, such the risk of reoffending, be considered.
Zuma’s case for release, therefore, failed at the outset, and there was nothing further for Fraser to consider.
In his affidavit to the court, Fraser said he released Zuma primarily on medical grounds, but also because he feared that a failure to do so “could have ignited events similar to those of July 2021”.
Fraser said he disagreed with the decision of the board on 2 September to deny Zuma medical parole, on the basis that his health had stabilised since he was transferred to a private facility, as the same could not be guaranteed in prison and this could put his life at risk.
Jamie said it was clear that Fraser approached the matter on the basis that he determined where and when to strike an equilibrium between various factors.
“The only negative factor, Mr Fraser says, is the negative recommendation by the medical board, but, unfortunately for him, justice, that negative recommendation is a positive jurisdictional requirement for medical parole to be given,” he said.
“And absent it, the route to medical parole for Mr Zuma was closed. Mr Fraser never should have got to 79(1)(b) and (c), he was precluded from getting there because Mr Zuma did not pass 79(1)(a). So there was no balancing act to be undertaken.”
Fraser has maintained in court papers that Zuma’s medical records remain classified as top secret. Jamie said none of the doctors reports submitted to the board spoke of terminal illness, but rather confirmed that he suffered from multiple comorbidities.
“Nobody with common sense would dispute that for a 79-year-old person to be locked up in prison is not a happy circumstance and not a desirable one but unfortunately for Mr Zuma the rule of law must trump his own personal interests in this case,” Jamie said.
Advocate Max du Plessis, for the Helen Suzman Foundation, argued that the court should order Zuma’s return to prison to complete the remainder of his sentence for defying a Constitutional Court order that he testify before the Zondo commission of inquiry.
“The relief is a no-brainer,” he said.
“The question of what should happen to Mr Zuma is that he must return to prison… to serve the rest of his sentence,” said Du Plessis, adding that the time spent on medical parole should not be considered part of his sentence served.
Judge Elias Matojane said technically medical parole did not make Zuma a free man, but Du Plessis argued that parole conditions were plainly not prison.
He stressed that Fraser lacked the power to make, or overrule, a decision that in terms of the law was reserved for the board, rendering the case straightforward.
Instead, he summarily dismissed the board’s decision and, hence, acted unlawfully. Even Fraser’s affidavit never makes the claim that Zuma is terminally ill, but seeks to find other reasons why his decision was permissible, including that the former head of state was elderly and frail, and referencing the deadly public violence that broke out in July that started as a protest to his imprisonment.
If the first of these reasons were relevant, “of course there would not be pensioners in prison”, Du Plessis said.
The unrest was equally irrelevant, he continued, “because then all prisoners could threaten prison riots unless they were given medical parole”.
Afriforum argued that once the court accepted that Fraser’s actions were irrational, it had no discretion but to declare it invalid, and raised concern that his successor as national commissioner was opposing the challenge to the release.
Advocate Simon Mphahlele, for the national commissioner, argued that the challenge was not urgent, and insisted that Fraser had the power to authorise Zuma’s release. He argued that he had the right to consider other reports, as well as those of the board, and said the report submitted by a military physician, Dr Mafa, stated that Zuma suffered from a chronic and terminal health condition.
The court earlier heard that the board had considered these and other reports before deciding to refuse Zuma medical parole. Had Fraser not decided otherwise, Zuma would, at this point, have become eligible to seek ordinary parole.
Advocate Dali Mpofu, appearing for Zuma, read from a medical report by one of Zuma’s doctors, stating that he suffered from a condition that made him prone to “unpredictable” medical complications and in need of 24-hour medical care. Returning him to prison could, therefore, prove a life-threatening step.
Mpofu described all three applicants as “right wing” and “racist” and the challenge as a waste of the court’s time.
“The organising question that can be asked, my Lord, [is] on what basis can these busybodies be given audience on an urgent basis to bring a clearly politically motivated application and a publicity stunt, in respect of which outcome is probably moot?”
If Fraser had not decided otherwise, Zuma would have, at this point, had served a quarter of his sentence and become eligible to seek ordinary parole. But whereas Mpofu said this meant the outcome of the case was academic, Du Plessis differed, saying Zuma could be returned to prison and apply for ordinary parole, or medical parole if he wished.
As to the foundation’s standing and objective, he said: “We are looking for respect for the rule of law and the vindication of the Constitutional Court’s judgment in this case.”
Mpofu argued that if the court found Fraser’s decision invalid, it should not send Zuma back to prison but rather refer his application for medical parole back to the board for reconsideration.
Matojane reserved judgment, saying he would hand down his ruling as soon as possible, given that the case “raises issues in the public interest”.
This report has been updated with further pleading and the court reserving judgment