Johannesburg - The legal battle over the overturning of the decision by retired correctional services national commissioner and ex-spy boss Arthur Fraser to grant former president Jacob Zuma medical parole is heading to the Constitutional Court.
Makgothi Thobakgale, Fraser's successor as head of prisons, has asked the Apex court to reverse the North Gauteng High Court and the Supreme Court of Appeal (SCA) judgments in favour of the DA, the Helen Suzman Foundation (HSF) and AfriForum, all opposing the decision to free Zuma.
Thobakgale described the SCA’s finding that Zuma had not completed his 15-month sentence for contempt of the Constitutional Court’s order, that the ex-head of state must appear before the commission of inquiry into state capture and therefore return to the Estcourt Correctional Centre as ‘alarmingly inhumane and insensitive’.
He insisted that Zuma had already served his sentence under community corrections and that sending him back would amount to double jeopardy and a travesty of justice.
"This is inconsistent with the right not to be treated or punished in a cruel, inhumane or degrading manner and the spirit of ubuntu, which is entrenched in the Constitution,” he stated in papers filed at the Constitutional Court.
According to Thobakgale, the medical parole advisory board’s decisions were not binding on him and he had the discretion to place an offender on medical parole.
"The board is not the decision maker, it only makes a recommendation to the national commissioner and it is the national commissioner who must make the decision,” he explained.
Thobakgale also challenged then North Gauteng High Court Judge Keoagile Matojane’s December 2021 finding that Zuma was enjoying life in his Nkandla homestead, addressed a virtual prayer meeting which implied he was not terminally ill or severely incapacitated, and seemed to be living a normal life.
"Suffering from a terminal disease does not imply that a person cannot talk,” Thobakgale said. He added that Zuma was not a party to the decision to grant him medical parole hence he was released to the care of one of his wives. Based on the interpretation by the high court and the SCA, Thobakgale maintained, the national commissioner has no say on whether the offender is terminally ill or not.
"It is undesirable that the decision-maker must simply rubberstamp the board’s recommendation,” he said.
In addition, Thobakgale said the high court concluded, which was endorsed by SCA in its judgment in November last year, without evidence that the decision to grant Zuma medical parole was a foregone conclusion.
"This was despite the fact that, at the time when the matter was heard the position of national commissioner was occupied by a new incumbent who was not privy to the impugned decision,” he said referring to the fact that it was Fraser who had tk the decision.
Zuma has also applied to be either an intervening party or second applicant in Thobakgale’s application for leave to appeal. Additionally, the ex-president wants to be granted leave to appeal the SCA judgment and order dismissing his appeal of the high court ruling whose declaration that the time he was out on medical parole should not be counted for his fulfilment of the 15-month jail sentence, was also reversed by the country’s second-highest court.
Instead, Zuma has asked the apex court to order that he had served his sentence in full in terms of the Correctional Services Act, and accordingly was no longer a prisoner as defined.
In its answering affidavit filed in opposition to Thobakgale’s application for leave to appeal, HSF director Nicole Fritz stated that the national commissioner’s bid does not raise any constitutional issues to be determined and that it is not in the interests of justice to entertain it.
"The only issue raised on appeal which squarely raises a legal issue is a question of interpretation of section 79 of the Correctional Services Act – whether the recommendation of the board under section 79(1 )(a) of the act on whether there is a terminal disease or physical incapacity is binding on the national commissioner,” she said.
Fritz told the apex court that this did not make it a constitutional issue or an arguable point of law of general public importance. She said Fraser’s decision to place Zuma on medical parole was rightly declared by the SCA and the high court as unconstitutional and unlawful, and that the national commissioner’s application for leave to appeal lacked prospects of success and provided no compelling reason as to why it should be heard by the Constitutional Court.
The HSF has asked the apex court to dismiss Thobakgale’s application with costs as he has had two full hearings on the merits and that the only person who benefits from further appeals is Zuma, who – as the high court held – further attacked the Constitutional Court during his time on medical parole. No date has been set yet for the matter to be heard.