By Michael Appel
The DA wants the department of correctional services to return former president Jacob Zuma to prison by 5pm on Friday.
This in the wake of Monday’s Supreme Court of Appeal (SCA) judgment upholding a decision of the High Court in Pretoria that Zuma’s release by former correctional services commissioner Arthur Fraser was invalid, unlawful, and unconstitutional. The consequence is that Zuma’s position is as it was prior to his unlawful release on medical parole. “In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to Estcourt Correctional Centre to do so,” reads the judgment.
Law firm, Minde Schapiro & Smith Inc, writing on behalf of the DA, said to acting correctional services commissioner Makgothi Thobakgale that “Zuma is obliged by the order immediately to return to the Estcourt Correction Centre; and if Mr Zuma fails to do so within a reasonable time, you are obliged to ensure he is returned to Estcourt Correction Centre – by arrest if necessary.”
In early September last year, Fraser overruled a decision of the Medical Parole Advisory Board (MPAB) that found uBaba didn’t qualify for release. The board consists of 10 medical doctors. Fraser, meanwhile, is Zuma’s former spy boss who headed up the State Security Agency with dubious acclaim before his redeployment as prisons’ boss.
There are three criteria that must be met for release on medical parole. These include that the offender is suffering from a “terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”; that the risk of reoffending is low; that there are appropriate treatment options available within the community to which the inmate is released. The first criteria is a medical one – which falls squarely within the purview of the MPAB – while the other two considerations are more general and “therefore fall within the Commissioner’s remit.”
If any of these are not present, an offender does not qualify. The SCA said, “These provisions apply to Mr Zuma, despite his status as former president and head of state, as they would to any other inmate.” That’s called equality before the law.
It is only once the MPAB – as medical experts – make a positive recommendation for medical parole, that Fraser could have stepped in two make a determination on the other two variables. The SCA has stressed Fraser cannot simply overrule a panel of medical experts when it pertains to making a medical determination.
On 2 September 2021, the MPAB decision stated: “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 MBAP is that the applicant is stable and does not qualify for medical parole according to the Act.”
Three days later, Fraser ordered Zuma’s release with immediate effect.
Factors Fraser took into consideration when overruling the MPAB
- That Zuma was 79 years of age, “and undeniably a frail old person”
- That various report from the SA Medical Health Services (SAMHS) indicated JZ had multiple comorbidities which required specialised treatment outside of prison
- That a report from a Dr LJ Mphatswe (who sat on the MPAB) recommended medical parole because his “clinical health present unpredictable health conditions”
- That if Zuma was returned to Estcourt Correctional Centre, there was no guarantee his “conditions” would remain under control
- That Zuma’s wife, Mrs Ngema, had undertaken to take care of him if released, as she would be aided by the SAMHS, as a former head of state
- The KwaZulu-Natal riots which occurred in July 2021 “allegedly as a result of Mr Zuma’s incarceration”
The SCA ruled that, even if, on Fraser’s assertion that he had wide discretionary powers to grant medical parole, “he took into account factors which are totally irrelevant in the enquiry of whether Mr Zuma qualified for medical parole.” The threat of the country erupting into the kind of destructive mayhem witnessed in July last year is not a medical factor. Also, no where does a person’s advanced age have any bearing on their eligibility for medical parole.
Now to the question of whether Zuma’s time spent on unlawful medical parole should count towards the remainder of his 15-month sentence. The High Court in Pretoria issued a declaratory order stating that any time spent outside of prison should not be discounted from his sentence. This order in the lower court’s initial judgment has been set aside as the SCA says it conflicts with the separation of powers doctrine (ie: courts shouldn’t remove the decision-making abilities of the executive – the acting commissioner of correctional services in this case). It has thrown the ball back to Thobakgale on this question. He has been called upon to make a decision “if he is empowered by law to do so…[that] might take that period into account in determining any application or grounds for release.” In plain English, he can use his discretion to set Zuma free – but that decision must still be rational or it will potentially open the department up to yet more litigation.
The way forward
What happens now? Nobody is really sure as yet. Correctional Services is said to be “studying the judgment”, but the clock is ticking on how long they can take to ponder their next move considering the DA has given it 48 hours to respond to its legal letter. Having said that, it’s still unclear what exactly happens once the Friday 5pm deadline lapses. Does the DA then bring an application on an urgent basis to compel the department to comply with the SCA judgment and rearrest Zuma? Such an application would likely be opposed by the department. Will the department launch an appeal of its own seeking to overturn the SCA judgment?
We have some inkling of an idea what Zuma is going to do. According to a statement from the JG Zuma Foundation, released late on Tuesday evening, Zuma “has instructed his legal team to craft an opinion to advise him of his legal options within the next few weeks.” There seems to be little urgency from his point of view.
In classic Zuma fashion, he believes he’s a victim of judicial overreach and targeted harassment by the courts that he claims continue to deny him equality before the law. His foundation’s statement questions whether sending the former statesman back to prison “is it not a version of the death sentence
to send a person to a place where it has been independently declared that there are no suitable medical facilities for that particular individual? Should judges play
God? Should they be complainants, judges and executioners in their own cause?”