Former president Jacob Zuma. File photo: SANDILE NDLOVU
Former president Jacob Zuma. File photo: SANDILE NDLOVU

Judge Keoagile Matojane, who last week declared former president Jacob Zuma’s medical parole decision to be unlawful and irrational, on Tuesday granted the former president and former department of correctional services commissioner Arthur Fraser leave to appeal against the judgment in the Supreme Court of Appeal.

Matojane said in his judgment, handed down immediately after argument, that he believed there was a realistic prospect that another court might reach a different finding to his own.  He said the matter warranted the attention of the Supreme Court of Appeal to bring certainty to the interpretation of the Correctional Services Act and its regulations.

There was also a reasonable possibility that the appeal court might have a different view on Matojane’s decision to nullify the two months that Zuma had spent under medical parole so that it would not be included in his 15-month prison sentence.

Matojane said another court might find that this could be seen to affect Zuma unfairly as it was not his decision to be released on medical parole but that of Fraser; that his freedom of movement is restricted; and that he needs compassion, empathy and humaneness because of his sickness and advanced age.

Arguing in support of leave to appeal, legal counsel for Zuma Dali Mpofu, said Matojane’s judgment was “punitive” even if Fraser’s decision to grant medical parole was irregular — which he did not concede.

He said Zuma was a sickly person with comorbidities who deserved compassion because of his advanced age and being on medical parole was still a form of punishment because he did not have freedom of movement. The prison authorities had indicated that there was no prison in SA that was equipped to cater for Zuma’s medical condition and so sending him back to prison was “like a death sentence”.

Zuma was restricted to his homestead in Nkandla under supervision of a parole officer and had to get permission from the department if he wanted to leave the magisterial district.

Mpofu said Matojane’s judgment “cries out for reconsideration by a higher court”, and he believed the prospects for the success of an appeal were “overwhelming”.

In his judgment, Matojane ruled that because the decision to grant Zuma medical parole was unlawful and irrational, the three months Zuma spent in medical parole should be discounted in determining the length of his 15-month sentence.

Mpofu said such an order was completely out of kilter with any precedent and it was incorrect for the judge to discount the period already served. On this basis alone, there was a ground for appeal. 

Mpofu argued that another court might interpret the law differently and decide that it was lawful to allow parole for prisoners with lesser offences. He also said the courts should be reluctant to step into the shoes of the executive, in this case the commissioner, and should not make medical judgments.

Former president Jacob Zuma's legal team to argue that former correctional services commissioner Arthur Fraser acted within his power when granting Zuma medical parole in September.

Sy Mphahlele, for the department, argued that Fraser was not bound by the decision of the medical parole board, which found Zuma did not qualify for medical parole, and was entitled to exercise his own discretion.

 To qualify for medical parole, a prisoner has to be suffering from a terminal illness with imminent prospect of death or be so physically incapacitated that they cannot perform the basic requirements of daily living.

Matojane found Fraser acted unlawfully by granting medical parole without heeding the advice of the relevant board. He ordered Zuma to return to jail to complete the 15-month sentence issued by the Constitutional Court. He also found that Fraser’s actions undermined respect for the courts, the rule of law and SA’s constitution. 

Ismail Jamie, for the DA, accepted that the 79-year-old Zuma was sickly, but stressed that Matojane’s judgment was based on the facts of the case and  was not punitive but legal and justified.

It could not be based on “unwarranted sympathy”, and sympathy could not be grounds for an appeal that could only be granted on a legal basis.

He and legal representatives for the Helen Suzman Foundation and AfriForum, which were also involved in the application for the setting aside of Zuma’s medical parole decision,  argued that Matojane should reject the application for leave to appeal as it had no prospect of success.

Jamie pointed out that when he was in prison, Zuma had access to the best possible medical care and was being optimally managed, which was not the case at Nkandla, where he was in the care of his wife who had no medical experience.

His living conditions were suboptimal compared with prison. Jamie said that as soon as Matojane found the medical parole decision to be unlawful, he was obliged to nullify the time served by Zuma under medical parole.

ensorl@businesslive.co.za

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