By Michael Appel
Correctional Services has announced it will be appealing the Supreme Court of Appeal judgment which gave its former commissioner Arthur Fraser a bloody nose, ruling that his medical parole granted to Zuma was unlawful.
Zuma was imprisoned in July last year after the Constitutional Court found him guilty of contempt of court for refusing to give evidence at the State Capture Inquiry. He was sentenced to a 15-month custodial jail term. Zuma, however, spent less than two months behind bars – most of it in a private medical facility – before he was released on medical parole in early September 2021.
Three medical practitioners found Zuma was suffering from multiple comorbidities and should be released on medical parole. On 23 August 2021, a Dr LJ Mphatswe submitted a report to the Medical Parole Advisory Board (MPAB) in which he recommended his immediate release. He based that decision on the fact that Zuma was 79 years old, generally “looked unwell and lethargic” with a “complex medical condition which predisposes him to unpredictable medical fallouts or events of high-risk clinical picture”.
On 2 September 2021, however, the MPAB ruled: “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 MPAB 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.
On Monday, the SCA upheld a decision of the High Court in Pretoria that Zuma’s release by Fraser was invalid, unlawful, and unconstitutional, effectively ordering that he be returned to Estcourt Correctional Centre. This is the second court to rule that Fraser did not have the authority to overrule a decision of the MPAB.
“In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to Estcourt Correctional Centre to do so,” states the judgment. The court has left it up to the acting commissioner of correctional services to decide whether any time spent by Zuma outside of prison on medical parole will count towards his sentence.
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.”
On Tuesday, the DA wrote to the department of correctional services demanding that Zuma be remanded in custody by 5pm on Friday. The lawyer’s letter did not state what the consequence would be of missing this deadline. But that’s all a moot point now that the department has announced its intention to appeal the SCA judgment, effectively staying any pending litigation from the DA or anyone else.
The department’s statement reads: “Having carefully studied the judgement (sic), Correctional Services is convinced that another court may arrive at a different conclusion.” The appeal is lodged with the same court, the SCA. If it finds there are no prospects for success, the department will then have to petition the Constitutional Court for direct access to argue the matter before it.
If you’re Zuma, this means the matter won’t come to its finality for some time still, guaranteeing his stay in a place a little more comfortable than Estcourt.