Wife Bongekile Ngema had undertaken to take care of ‘frail’ Jacob Zuma: Arthur Fraser

Former national commissioner of correctional services Arthur Fraser’s reasons for his decision to release former president Jacob Zuma on medical parole were outlined and rejected on Wednesday by the high court in Pretoria.

Judge Keoagile Elias Matojane set aside Fraser’s decision and ruled that Zuma should return to prison to serve out his sentence.

Fraser’s decision to overrule the medical parole advisory board, which rejected a recommendation to place Zuma on medical parole, was found to be irrational and unconstitutional.

This comes after the DA and the Helen Suzman Foundation approached the court on an urgent basis to challenge Fraser’s decision and seek, among others, that the parole decision be declared unlawful, reviewed and set aside, and to substitute it with a decision refusing medical parole and directing that Zuma be returned to the custody of the department of correctional services to serve out the rest of the sentence imposed by the Constitutional Court. 

“The medical parole decision is substituted with a decision rejecting the third respondent’s (Zuma’s) application for medical parole,” the court said on Wednesday.

“It is directed that the third respondent be returned to the custody of the department of correctional services to serve out the remainder of his sentence.”

The court also declared the time Zuma was out of jail on medical parole should not be counted for the fulfilment of his sentence of 15 months imposed by the Constitutional Court.

Zuma was earlier this year sentenced to 15 months’ imprisonment for contempt of court for failing to obey an earlier order of the court requiring him to appear before the state capture inquiry. Under threat of arrest, he turned himself in for internment on July 8 at the Estcourt Correctional Services Centre to serve his sentence and was, upon his arrival, admitted to the hospital wing of the centre.

However, less than two months into his sentence, Fraser granted him medical parole.

‘Undeniably a frail, old person’

This was followed by a series of medical examinations. Doctors raised concern about Zuma’s age, comorbidities and continued stay in prison.

Twenty days after Zuma went into custody, a SA Military Health Services (SAMHS) doctor who had examined Zuma applied for medical parole on the former president’s behalf, stating Zuma was suffering from a terminal disease or a condition that is chronic and progressive.

The doctor stated Zuma’s condition had progressively deteriorated since 2018, and he was unable to perform the activities of daily living or self-care. He recommended medical parole as a result of “medical incapacity”.

Zuma was also examined by Dr LJ Mphatswe, a member of the Medical Parole Advisory Board, just more than a month (August 13) after his incarceration and Mphatswe recommended he should be released on medical parole with immediate effect.

Mphatswe cited Zuma’s old age (79) and said generally he looked unwell and lethargic, adding that the total outlook of his complex medical conditions and associated factors in an environment limited to support his optimum care was of extreme concern. More worrisome was the unpredictability of his plausible life-threatening cardiac and neurological events.

“The applicant being Mr JG Zuma, 79 years of age, presents as stated herein above, a complex medical condition which predisposes him to unpredictable medical fallouts or events of high-risk clinical picture,” reported Mphatswe.

On August 30, the surgeon-general, on behalf of SAMHS, submitted medical reports from medical specialists (cardiologist, surgeon, physician and histopathologist) to the parole board, and at the request of the parole board, under a covering letter which stated the reports, taken individually, may paint a picture of a patient whose condition is under control, but when taken together reflect a precarious medical situation, especially for the optimisation of each of them.

“We will remember the patient was fairly optimised prior to his incarceration, and it took only four weeks for his condition to deteriorate such that his glucose, blood pressure and kidney function went completely out of kilter,” said the surgeon-general, who added Zuma “will be better managed and optimised under different circumstances than presently prevailing”.

The board did not accept Mphatswe’s recommendation and decided not to recommend medical parole. It concluded that while Zuma suffers from multiple comorbidities, he was not terminally ill and was not physically incapacitated as required by the law.

Three days after the board decided not to recommend medical parole, Fraser decided to place Zuma on medical parole.

It later emerged he took the decision after considering the medical reports by the SAMHS and Mphatswe’s report, and after receiving legal advice that the parole board (only) makes recommendations to the authority which must make a decision. He was the authority.

“In my view, this situation occasioned a unique moment within the history of correctional services, where a former head of state of the republic of SA is incarcerated while still entitled to privileges as bestowed by the constitution,” he said.

Fraser considered Zuma was “undeniably a frail, old person”, that the reports from the SAMHS all indicated he had multiple comorbidities which required him to secure specialised treatment outside the department of correctional services, Mphatswe’s report which recommended Zuma be placed on medical parole because his “clinical health presents unpredictable health conditions” and that sufficient evidence had also arisen from the detailed clinical reports.

He said the medical parole advisory board recommendation had agreed Zuma suffered from multiple comorbidities.

Fraser said Zuma’s conditions had been brought under control because of the care he was receiving from a specialised hospital. He said this was the type of specialised care the department could not provide in any of its facilities.

“As a result, there is no guarantee that when returned back to Estcourt Correctional Centre Mr Zuma’s ‘conditions’ would remain under control,” said Fraser.

He said it was not disputed that correctional services does not have medical facilities that provide the same standard of care as that of a specialised hospital or general hospital.

Zuma’s wife, Bongekile Ngema, had undertaken to take care of him if released and Zuma would be aided by SAMHS as a former head of state, providing the necessary healthcare and closely monitoring his condition.

“Having considered all the relevant information, I am satisfied Mr Zuma meets the criteria in section 79(1) to be placed on medical parole,” Fraser said when approving Zuma’s release on medical parole on September 5.

Risk of reoffending

The court, however, found Fraser’s decision to rely on the medical reports the parole board had already considered in its rejection of medical parole for Zuma was irrational, unlawful and unconstitutional.

“In any event, none of the expert reports relied upon by the commissioner assert that the third respondent is terminally ill or is physically incapacitated,” it said.

The court also found Fraser failed to consider the other jurisdictional requirement in section 79, namely that the risk of reoffending must be low.

“The third respondent [Zuma] continues to attack the Constitutional Court while on medical parole. He states in the answering affidavit that he considers himself ‘a prisoner of the Constitutional Court’ and alleges ‘he was incarcerated without trial’ despite the court dismissing his rescission application.”

The court ordered Fraser and Zuma to pay the costs of the applicants, jointly and severally, and such costs would include the costs of two counsel where so employed.

TimesLIVE