Whether Jacob Zuma is in fact terminally ill and whether his ally and former Correctional Services head Arthur Fraser exercised powers he did not have in law when he summarily dismissed a recommendation by the Medical Parole Advisory Board that the former President did not qualify for medical parole were central issues before the SCA yesterday.

Zuma’s legal team was appealing a Gauteng High Court (Pretoria) decision setting aside his ‘unlawful’ release on medical parole on Fraser’s instruction.

The court ordered him back to prison to continue serving 15 months for contempt of court after he breached an order by the Constitutional Court to obey the lawful summons of the State Capture Commission. He served less than two months before he was released on medical parole.

Fraser’s decision was contrary to the Parole Advisory Board’s advice that the former President remain in custody.

The case was brought by Zuma and Correctional Services Acting Commissioner Sehlahle Makgothi Thobakgale. The DA, Helen Suzman Foundation (HSF) and AfriForum are respondents in the appeal, while the Institute of Race Relations is acting as a friend of the court.

At issue throughout the day was Zuma’s confidential medical status.

The SCA justices asked about specifics absent from the court record but which Fraser is said to have considered when granting Zuma medical parole, notes a Business Day report.

Justice Nambitha Dambuza, presiding over a Bench of five, said that three reports Fraser considered did not expressly refer to ‘terminal illness’ or ‘physical incapacity’, which are the terms used in the law on medical parole.

’They don’t categorically state it,’ she said.

Justice Clive Plasket said the record dealt with everything except the ‘core issue’, which had been ‘crossed out’ with a felt-tipped pen.

‘Why should we read between the lines, because this is a crucial statutory requirement and it’s the nub of what is supposed to be shown,’ Justice Nolwazi Mabindla-Boqwana, asked Zuma’s lawyer.

‘What’s wrong with a judge seeing that part of information,’ Justice Tati Makgoka asked Advocate Dali Mpofu SC, for Zuma.

Makgoka and Plasket referred to a ‘judicial peek’, which would not amount to public disclosure. In reply, Mpofu said the respondents had not asked for that to occur. He said the prisons commissioner was warned not to disclose that delicate information about the wellbeing of a former head of state, because Zuma’s ‘political rivals’ would see it.

Mpofu said that Zuma’s ‘terminal illness’ was a ‘jurisdictional fact’ confirmed by two doctors, Zuma’s physician Dr Mafa and Dr Phatswe of the board.

In reply to respondents’ argument Zuma must return to prison discounting his time on medical parole, Mpofu said the 11 months must be counted. Medical parole was a punishment, albeit ‘lesser' than incarceration, and amounted to deprivation, he argued.

Mpofu argued that sending Zuma back to prison would be like ‘throwing him to the wolves’ because the head of prisons made it clear that there were no facilities that could accommodate him.

According to a Pretoria News report, he told the court: ‘The very reason that he is stable is because he (Zuma) is sitting at a private hospital in Pretoria. That private hospital in Pretoria is not the same as the Estcourt facility and we cannot keep him there for 15 months in the private hospital. We simply do not have the facilities to cater for what is said in these reports (that Zuma had a terminal disease). We cannot override the expert opinion that he is suffering from a terminal illness which is a judicial fact, which is a fact of life, which nobody in this country can say the man does not suffer from a terminal illness when doctors have said so.’

Mpofu added: ‘He, like everybody else, is entitled to the protection afforded by our Constitution, and the day that medical experts say that this man is terminally ill … medical experts who are registered with the HPCSA (Health Professions Council of SA) who have taken the Hippocratic oath and we say why? We say he is not sick enough. How can a court of law know better than medical experts?’ 

‘Who are we to say no … simply because of some flimsy argument that he is now stable in a hospital setting.’

Full Business Day report

Full Pretoria News report