While the department of correctional services mulls a court ruling that Jacob Zuma’s return to prison, the former president filed for leave to appeal, suspending the order.
Zuma’s eponymous foundation sent out a copy of the application to the Pretoria high court, which on Wednesday morning found the decision by the former director general of the department Arthur Fraser to grant him medical parole unlawful.
The application submits that Judge Elias Matojane misdirected himself in law and/or fact when he set aside Fraser’s decision and ordered that Zuma return to prison to purge his sentence for contempt of court.
Zuma was the third respondent in the application brought by the Democratic Alliance, the Helen Suzman Foundation and Afriforum.
Matojane found Fraser’s decision was fatally flawed because he failed to follow the prescripts of the Correctional Services Act.
“The decision of the first respondent [Mr Arthur Fraser at the time] to place the third respondent on medical parole, taken on 5 September 2021, is reviewed, declared unlawful, and set aside,” he held.
“It is hereby directed that the third respondent be returned to the custody of the department of correctional services to serve out the remainder of his sentence of imprisonment.”
Fraser granted Zuma medical parole 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 early release.
In doing so, the judgement says, Fraser considered medical reports that were already found by the board not to support the former president being granted parole. It stresses that considering the reports was the remit of the board, not the commissioner.
“The decision by the commissioner to now rely on these reports to overturn the recommendation of the board is irrational, unlawful and unconstitutional.”
But Fraser then breached the act again in that it 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 and here it was not.
“None of the expert reports relied upon by the commissioner asserts that the third respondent [Zuma] is terminally ill or is physically incapacitated,” the judgment says.
It stresses that Fraser’s role was an administrative exercise of public power in terms of legislation, hence his decision had to be lawful, rational, reasonable and procedurally fair.
Fraser has submitted that he overruled the board because of the exceptional circumstances created by the incarceration of a former head of state, and that if he had died in prison, this could have sparked a repeat of the violent unrest that rocked the country in July.
But Matojane said these reasons were not sanctioned by the act.
“The commissioner acted irrationally and considered irrelevant considerations and acted for an impermissible purpose … Threats of riots are not a ground for releasing an offender on medical parole,” he said, adding that leaning on the fact that his imprisonment created an unprecedented fact flew in the face of the rule of law.
“This negates the constitutional right of all people to be treated equally before the law.”
Fraser’s decision was challenged by the Democratic Alliance, the Helen Suzman Foundation and Afriforum.
The court rejected his argument that the matter was moot because Zuma would have become eligible for ordinary parole by last month. It upheld the argument by the Helen Suzman Foundation that, should Zuma’s time on medical parole count towards serving of his sentence, he would “unduly benefit from a lesser punishment than that imposed by the constitutional court” when it sentenced him to prison in late June.
It also rejected a plea by the defendants that, should the court set aside Fraser’s decision, Zuma’s application for such should be reconsidered by the commissioner.
This would serve no purpose because it was established that the commissioner had no discretion to overrule the board.
The department of correctional services issued a statement saying it was studying the ruling.
This report has been updated with information about the application by the former president for leave to appeal the high court ruling.