Zuma unlawfully ‘enjoying his sentence sitting at home’ is in breach of the rule of law

Because of Arthur Fraser’s unlawful intervention, former president Jacob Zuma was “enjoying nearly three months of his sentence sitting at home in Nkandla [and] not serving his sentence in any meaningful sense”, the Pretoria high court said on Wednesday.

The court has set aside as unlawful the decision of former correctional services commissioner Fraser to grant Zuma medical parole. It also ordered that Zuma be returned to custody to serve out his sentence, and that the time he spent out on medical parole should not be counted as part of his 15-month sentence.

In June Zuma was sentenced to 15 months’ imprisonment by the Constitutional Court for contempt of court after he breached its earlier court order to abide by the state capture inquiry’s summons to appear before it. However, less than two months into his sentence, Fraser released him on medical parole.

In his judgment, judge Elias Matojane said Fraser had “unlawfully mitigated the punishment imposed by the Constitutional Court, thereby rendering the Constitutional order ineffective”.

This “undermines the respect for the courts, for the rule of law and for the constitution itself”.

Matojane said Fraser had impermissibly usurped the role of the medical parole board. It was the board’s  job, not Fraser’s, to determine whether an applicant for medical parole is “suffering from a terminal disease or condition” or is “rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care’.

In Zuma’s case, the board had decided he was not and had therefore refused to recommend his release.

Matojane said Fraser had instead relied on other medical reports which had been given to the board. But, said the judge, the law required the board consider these reports. It was not for the commissioner to do so.

“The commissioner has impermissibly usurped the statutory functions of the board,” he said.

“In its expert assessment, the board has already considered the reports from the SA Military Health Services, and in particular the report by Dr Mphatswe, and has recommended against medical parole. The decision by the commissioner to rely on these reports to overturn the recommendation of the board is irrational, unlawful and unconstitutional.”

He said other reasons relied on by Fraser to grant medical parole — including that the incarceration of a former head of state was unprecedented and the possibility of further unrest in the country — were irrelevant and therefore unlawful.

To say this case was unprecedented negated “the constitutional right of all people to be treated equally before the law”, said Matojane. Nor was the threat of riots a ground for releasing an offender on medical parole, he said.

The judge said the ConCourt had ordered a 15-month sentence as appropriate to ensure that litigants, especially those in the position of Zuma, did not with impunity “decide which orders they wish to obey and those they wish to ignore”.

He said sending Zuma back to prison and repeating the time spent on medical parole would not impact on him unfairly “as there is no suggestion he is an innocent party”.

“The third respondent defied the Zondo commission, the judiciary and the rule of law and is resolute in his refusal to participate in the commission’s proceedings. He continues to attack the Constitutional Court while unlawfully benefiting from a lesser punishment than what the Constitutional Court has imposed.

“He states in his answering affidavit that he considers himself ‘a prisoner of the Constitutional Court’ and claims he was ‘incarcerated without trial’.”

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