DEVELOPING | Correctional services to appeal Zuma medical parole judgment

Zuma back to jail: Former president's supporters have no plans to mobilise just yet

- A group of Jacob Zuma supporters in eThekwini say they are not mobilising - yet.

- They expressed displeasure at the High Court decision labelling his medical parole unlawful.

- Supporters say they are meeting to discuss a way forward following the ruling.

STATEMENT BY THE DEPARTMENT OF CORRECTIONAL SERVICES:

The Department of Correctional Services (DCS) will be appealing the judgment handed down by the Gauteng Division of the High Court, Pretoria, on the medical parole placement of Former President, Jacob Zuma.

Having carefully studied the judgement, DCS is convinced that another court may arrive at a different conclusion.

DCS is of the view that the court sadly misinterpreted the Correctional Services Act and erred in declaring the decision of the National Commissioner to place Mr Zuma on Medical Parole to be unlawful and setting it aside.

We will outline the grounds of appeal in the papers that we will be filing in court in due course.

Threats of violence no reason to keep Zuma out of jail – high court [FOR SUBSCRIBERS]

The clock began ticking for former president Jacob Zuma after he was ordered back to jail by the Pretoria North High Court on Wednesday.

This follows a successful appeal against the medical parole granted to Zuma by former Correctional Services Commissioner Arthur Fraser three months ago.

Security forces are expected to be on high alert as the run up Zuma’s arrest in July was characterised by threats of violence and his incarceration followed by some of the most damaging unrest the country has seen.

Sending President Zuma to Correctional Services which is on record in its inability to provide medical care for person with the condition of President Zuma is tantamount to giving him DEATH SENTENCE.

— JGZuma Foundation (Official) (@JGZ_Foundation) December 15, 2021

Zuma Foundation spokesperson tells media to stop calling him

The Jacob Zuma Foundation spokesperson Mzwanele Manyi deliberately ignored media calls after the high court’s ruling on the former president’s medical parole on Wednesday.

Phonecalls to Manyi, including those from The Witness, were either being terminated or ignored. He then took it to social media to clarify.

“Dear Media, I use a Samsung phone. When it rings it shows a green and red button at the same time. When your call is dropped, it means I deliberately pressed the red button for a reason. Please take it as an intentional drop and not repeatedly phone,” he said.

South African Human Rights Commission statement: 

The South African Human Rights (the Commission) appeals to the people of South Africa for calm.

It has noted the decision of the North Gauteng High Court nullifying and setting aside the decision of the head of the Department of Correctional Services to grant medical parole to former President Jacob Zuma and ordering the latter to return to Correctional Services to serve the remainder of the sentence that had been imposed on him by the Constitutional Court.

The Commission also notes that the social media is already abuzz with statements that have the potential to inflame the situation in the country. Some statements have been made on public news media which can have the same effect.

The Commission recalls that such media statements did in fact inflame the situation in June / July 2021 and led to the July unrest that took many innocent lives and resulted in large scale destruction of property in addition to violations of other human rights of many people in the country. The Commission is in the process of investigating that July unrest.

In the meantime, the Commission calls for calm and appeals to all the people of South Africa to continue being law abiding members of society and ensure that their actions and statements contribute to nation building and social harmony do not heighten tensions and lead to further destruction and violation of people’s rights.

The Commission also calls upon the Security Cluster to note the developments, including the evolving social media discourse about the recent High Court decision and to do their best to prevent the repeat of the July 2021 experiences.

The Commission would like to remind the South African public that the former President, like any other citizen, has the right to take the recent decision of the High Court on appeal or review for different sets of Judges to look at and pronounce on the soundness and validity thereof. Let us all be calm and exercise restraint and allow the judicial processes to unfold.

The South African Human Rights Commission has full confidence in the Judiciary of this country and is confident that judicial decisions will always be corrected whenever they are found wanting.

It, of course, may not, and makes no pronouncement on the current decision, especially as age old procedures already exist for testing the validity of judicial decisions.

GOOD Secretary-General Brett Herron says the High Court ruling that former president Jacob Zuma’s medical parole was unlawful is another massive setback for the integrity of the State and its decision-making systems.

"It is the role of public servants to serve the public; not politicians. Those public servants willing to break the law for their masters must face the sternest legal consequences, themselves," Herron said.

- Jason Felix

IMPORTANT: Zuma's appeal application will stay the High Court's order that he return to prison. So, at least for now, he will not be returning to prison.

- Karyn Maughan

Zuma's lawyers argue that Matojane was wrong to take into account the "irrelevant offence" that Zuma was jailed for: his contempt of the Constitutional Court. 

"All prisoners are, by definition, not innocent men or women. Yet they have a right to medical parole."

- Karyn Maughan

Zuma's lawyers also contend that Matojane was wrong to use a Sunday Times article on Zuma's post-release visit to a casino as a basis to find that he was not terminally ill or incapacitated "and seems to be leading a normal life".

They say it's an "absurd notion" to believe that "a terminally ill person cannot meet other people or address a prayer meeting".

- Karyn Maughan

According to Zuma's lawyers, Matojane's order that he return to prison "amounts to cruel and degrading punishment with no due regard to the patient's healthcare, dignity and other human rights. It is the antithesis of ubuntu."

- Karyn Maughan

Zuma's lawyers accuse Matojane of "failing to acknowledge or take into account the overwhelming evidence that no correctional facility in South Africa is capable of accommodating the undisputed medical needs of the patient [Zuma]".

They argue that he is "entitled to 24-hour medical care from the South African Medica Health Services".

- Karyn Maughan

Zuma's lawyers argue that there is "objective evidence" that he is terminally ill - given that one of the doctors who assessed him, a Dr Mafa, answered "yes" when asked on a form if Zuma was suffering from a terminal illness.

- Karyn Maughan

Bizarrely, Zuma's lawyers accuse Matojane of "second-guessing and/or overruling the expert and professional opinions of qualified medical experts" when he "does mot possess any medical expertise sufficient to make any contrary finding" - despite the judge basing his ruling on the expert assessment given by the Medical Parole Advisory Board.

Zuma had no issue with Arthur Fraser, who has no medical expertise, overriding the Board's recommendation that he not receive medical parole.

- Karyn Maughan

Among Zuma's grounds of appeal is his insistent argument that HSF, the DA and AfriForum did not have the legal standing required to challenge his release on medical parole.

He has previously argued that they were right-wing and racist organisations intent on his political demise.

- Karyn Maughan

Zuma is seeking to appeal Matojane's entire ruling in either the Supreme Court of Appeal - or to a full Bench of the High Court.

- Karyn Maughan

Zuma's lawyers contend that they have "overwhelmingly good prospects" of successfully appealing Matojane's ruling "given the nature of the case, the life-threatening implications of the judgment and the public interest in equality before the law, ubuntu and other values of the new era".

They add that it is "also in the public interest that the clear provisions of the law should not be rewritten simply to mete out perpetual punishment to one individual  and sacrificing him and his rights at the altar of political enmity and inhumane hatred and racism on the part of his heartless persecutors".

- Karyn Maughan

"This is tantamount to the death sentence which was abolished in 1995 in South Africa," Zuma's lawyers argue.

- Karyn Maughan

Jacob Zuma's lawyers have filed an 11-page leave to appeal application against Judge Elias Matojane's decision that the former President's release on medical parole was unlawful and he must return to prison - without his time on medical parole being counted as part of his sentence.

In that application, Zuma's lawyers argue that it is "a particularly gross misdirection to order the return of Mr Zuma to jail and to conditions which are far worse than the hospital ward from which his medical parole was granted on the basis that no prison could adequately cater for his constitutional rights".

- Karyn Maughan

FIRST TAKE | SA not a banana republic, despite Zuma and Fraser's best efforts to make it one

The rule of law and proper process and procedure cannot simply be ignored or flouted just because your name is Jacob Zuma. The judgment by the High Court, therefore, in sending Zuma back to prison is a win for constitutionalists, says Pieter du Toit.

Carl Niehaus, a controversial ally of former president Jacob Zuma, says it is Justice and Correctional Services Minister Ronald Lamola’s duty to appeal the Gauteng High Court ruling regarding Zuma’s medical parole.

"It was a decision taken by former correctional services commissioner Arthur Fraser so there is a responsibility with the minister to appeal that decision of the North Gauteng High Court. The commissioner acted perfectly legally and took into consideration the medical records presented to him. Mr Fraser had a right to take that decision," Niehaus said.

- Zintle Mahlati

ANC statement:

The African National Congress notes the judgement delivered today, Wednesday, 15 November 2021 by the Gauteng Division of the High Court, Pretoria on the medical parole placement of Former President, Comrade Jacob Zuma.

We further note that the judgment is receiving the attention of the Department of Correctional Service and will accordingly await their pronouncement on the matter.

DA leader John Steenhuisen have welcomed the order that former president Jacob Zuma be sent back to prison.

"We welcome the order that Mr Zuma’s medical parole be revoked immediately, that he be returned to the custody of Correctional Services to serve out the remainder of his sentence, that no time spent on medical parole is to be counted as time served and that he and Mr Arthur Fraser pay all legal costs," Steenhuisen said.

Steenhuisen said because they recognise the rule of law.

"If we allow these to slide, we will severely weaken the foundation of our constitutional democracy. We are greatly encouraged by the firm and unambiguous position taken by Justice KE Matojane in this regard," he said.

- Jason Felix

What now for former president Jacob Zuma?

A legal expert says that former president Jacob Zuma can apply for leave to appeal Wednesday’s ruling that he must continue serving his 15 month sentence for contempt of court.

We will defend Zuma like the last time - Zuma ally on High Court ruling that he return to prison

A staunch Jacob Zuma ally has denounced the ruling of the Gauteng High Court in Pretoria instructing the former head of state to go back to prison, saying his supporters will put their bodies on the line in his defence.

People fear that sending Zuma back to prison may cause second wave of unrest

With news that the Gauteng High Court in Pretoria has ruled that former president Jacob Zuma should return to jail, people in KwaZulu-Natal are already expressing fears that there may be a backlash.

An important finding by Matojane on Fraser's argument that he involved himself in Zuma's medical parole process because Zuma died while incarcerated, it could have "dire consequences" and "could have ignited events similar to that of July 2022". 

The judge states: "Threats of riots is not a ground for releasing an offender on medical Parole".

- Karyn Maughan

Helen Suzman Foundation director Francis Antonie:

"I have not yet read the judgment but it is a victory for the rule of law. One of the things we have raised in our papers, we said the period that he was out on parole must not be counted as part of the prison sentence and judges agree with that.

"I have no doubt that Mr Zuma and perhaps Arthur Fraser will now appeal this judgment and it will go to the SCA and we will proceed from there. I have no desire to put a 79-year-old man into prison but he did take an oath to uphold the Constitution and we are all bound by that and no one is above the law.

"I have no doubt that he will lose in the SCA as will Mr Arthur Fraser and then they will appeal to the Constitutional Court and that will be very, very strange because that's the court that sentenced him to jail."

Matoaje's orders in the Zuma medical parole case:

1. The applicants' non-compliance with the usual forms, time periods, and service rules is condoned.

2. The decision of the first Respondent (Mr Arthur Fraser at the time) to place the third Respondent on medical parole, taken on 5 September 2021, is reviewed, declared unlawful, and set aside;

3. The medical parole decision is substituted with a decision rejecting the third Respondent's application for medical parole;

4. It is hereby directed that the third Respondent be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment;

5. It is declared that the time the Third Respondent was out of jail on medical Parole should not be counted for the fulfilment of the Third Respondent's sentence of 15 months imposed by the Constitutional Court.

6. In terms of section 8(1)(d) and section 8(2)(b) to (d) of the Promotion of Administrative Justice Act 3 of 200 (PAJA): It is declared that in terms of section 71(1) (a) of the Correctional Services Act 111 of 1998 (CSA) read with regulations 29A, and 29B promulgated in terms of CSA, the Medical Parole Advisory Board (MPAB) is the statutory body to recommend in respect of the appropriateness of medical parole to be granted or not in accordance with section 79(1)(a) (the terminal condition and incapacity requirements).

7. The National Commissioner and Mr Zuma are ordered to pay the costs of the applicants, jointly and severally, such costs to include the costs of two counsel where so employed.

- Karyn Maughan

Comment:

This ruling makes crucial findings about the requirements that must be met for an inmate to be granted medical parole - and emphasises the central role that the Medical Parole Advisory Board plays in such decisions.

The Commissioner does not have the power to override the Board when it refuses medical parole, the court has found. That being said, this ruling will have huge political implications - and comes months after Zuma's imprisonment was followed by violence, looting and hundreds of deaths.

- Karyn Maughan

Decision to send Jacob Zuma back to jail 'should be rejected' - Carl Niehaus

Suspended ANC member, Carl Niehaus, has called on all citizens to oppose former President Jacob Zuma’s return to prison.

In explaining his decision to order that Zuma return to prison, Matojane states that doing so "will not impact him unfairly as there is no suggestion that he is an innocent party".

Zuma, he points out, "defied the Zondo Commission, the judiciary and the rule of law and is resolute in his refusal to participate in the Commission’s proceedings". 

The judge adds that Zuma "continues to attack the Constitutional Court while unlawfully benefitting from a lesser punishment than what the Constitutional Court has imposed".

- Karyn Maughan

Matojane: "The Commissioner has unlawfully mitigated the punishment imposed by the Constitutional Court, thereby rendering the Constitutional order ineffective, which undermines the respect for the courts, for the rule of law and for the Constitution itself. "

- Karyn Maughan

Matojane finds that Fraser's "unlawful intervention" resulted in [Zuma] "enjoying nearly three months of his sentence sitting at home in Nkandla, not serving his sentence in any meaningful sense".

He adds: "The DA, in support of their review application, refers to a Sunday Times article of 17 October 2021 reporting that [Zuma] met with his political allies Carl Niehaus (a former staffer at Luthuli house) and Dudu Myeni (the former chair of SAA) at the Sibaya Casino on the 15 October 2021. [Zuma] also addressed his supporters at a virtual prayer meeting on 14 October 2021. As determined by the Board, [Zuma] is not terminally ill or severely incapacitated and seems to be living a normal life."

- Karyn Maughan

Matojane: "The parole decision is accordingly reviewable as the Commissioner failed to comply with a mandatory and material condition - that [Zuma] is terminally ill or physically incapacitated.26 The Commissioner was influenced by an error of law in believing that he was entitled to grant medical Parole when the Board has concluded that [Zuma] did not meet the requirements for release on parole."

- Karyn Maughan

Matojane: "Having released [Zuma] on Parole, the Commissioner failed to consider the other jurisdictional requirement in section 79, namely, that the risk of re-offending must be low."

He points out that Zuma "continues to attack the Constitutional Court while on medical Parole" - displaying the very contempt that he was jailed for in the first place.

Zuma also stated  in his answering affidavit in the medical parole case that he considered himself "a prisoner of the Constitutional Court" and alleged that "he was incarcerated without trial despite the Court dismissing his rescission application without trial."

- Karyn Maughan

A staunch Jacob Zuma ally has denounced the Pretoria High Court ruling instructing the former head of state to go to prison, saying supporting would put their bodies on the line in his defense.

"I cannot predict what will happen, but I can promise you that I, together with my comrades will defend Zuma and even the last time, it was his choice to go to prison and bypass us. I hope he will not do that because we will forever be ready, even if it means dying in defense of our ideals, we will do so," said Nkosentsha Shezi, a close Zuma ally and Radical Economic Transformation (RET) leader.

The Gauteng High Court in Pretoria ruled that former National Commissioner of Correctional Services Arthur Fraser's decision to place former president Jacob Zuma on medical parole was unlawful - and ordered that he should return to jail.

- Kaveel Singh

COMMENT | Fraser, for so long Zuma's private spy, untouchable and all-powerful, as the head of the State Security Agency's domestic branch, simply believed he could do what he wants: ignoring process, procedure, and statute.

Not so, the court said: "The Commissioner does not have the medical expertise to overrule the recommendation of the Board."

- Pieter du Toit

COMMENT:

From the judgment, it is clear that the SA Medical Health Services - the SANDF's medical service - tried its utmost to secure medical parole for Zuma from the start. And that when its recommendations weren't gaining traction, Arthur Fraser, the national commissioner of correctional services, simply rode roughshod over the recommendations by the Medial Parole Appeals Board. Fraser, according to the court, does not have the medical expertise nor the legal standing to ignore the board's recommendations.

- Pieter du Toit

Matojane: "The reasons given by the Commissioner [Fraser] to release [Zuma] on medical parole are not connected with the requirements for medical parole and are not authorised by the empowering provision. The Commissioner acted irrationally and considered irrelevant considerations and acted for an impermissible purpose".

- Karyn Maughan

"In any event, none of the expert reports relied upon by the Commissioner asserts that [Zuma] is terminally ill or is physically incapacitated" - as required under the provisions of the Correctional Services Act, Matojane states.

- Karyn Maughan

Matojane rejects Fraser's argument that he considered the same medical reports that the Medical Parole Advisory Board did and came to a different conclusion on Zuma's medical parole.

"In its expert assessment, the Board has already considered the reports from the South African Military Health Services and in particular the report by Dr Mphatswe and has recommended against medical parole.," he said.

"The decision by the Commissioner to now rely on these reports to overturn the recommendation of the Board is irrational, unlawful and unconstitutional."

- Karyn Maughan

AfriForum statement:

SUCCESS: Zuma must return to jail; medical parole deemed unlawful after AfriForum intervenes

The civil rights organisation AfriForum is delighted with the ruling in the Northern Gauteng High Court in Pretoria that former president Jacob Zuma’s medical parole was granted unlawfully.

AfriForum regards the ruling as a breakthrough for justice.

The organisation was an applicant in this case that asked for the urgent review of Zuma’s medical parole. The court further ruled that the period that Zuma was out of jail on medical parole will not be deducted from his 15-month prison sentence.

"The public has been concerned for some time that there are obvious double standards in the South African legal system and that senior politicians or people with political connections are not treated the same as the rest of the public. This is why AfriForum became involved in this case as an applicant and it is also why we regard this ruling as a breakthrough for justice,” says Ernst Roets, Head of Policy and Action at AfriForum.

Matojane is providing crucial guidance on how medical parole should be granted and stresses that the recommendations of the Medical Parole Advisory Board "as the expert body established to provide an independent medical report on whether an offender is terminally ill or physically incapacitated is ordinarily decisive and binding on the Commissioner".

He adds that the Commissioner "does not have the medical expertise to overrule the recommendation of the Board".

- Karyn Maughan

Statement from the Department of Correctional Services:

High Court Judgement on the parole placement for Mr ZumaThe Department of Correctional Services (DCS) notes the judgement delivered on 15 December 2021 by the Gauteng Division of the High Court, Pretoria, on the medical parole placement of the former President, Mr Jacob Zuma.

DCS is currently studying the judgement and in due course, we will make further pronouncements.

On 5 September 2021, three days after the Board decided not to recommend medical parole, Fraser took the decision to place Zuma on medical parole.

- Karyn Maughan

The Medical Parole Advisory Board was not convinced by the submissions made by Mphatswe or the Surgeon General.

The Board produced a report that concluded that while Zuma suffered from multiple comorbidities, he was not terminally ill and or physically incapacitated as required by the Correctional Services Act to justify his release on medical parole.

The Board concluded that medical parole was "not recommended".

It further stated: "The MPAB appreciates the assistance from all specialists with the provision of the requested reports. The Board also notes and appreciates the use of aliases and has treated all submitted reports as those pertaining to the applicant.

"From the information received, the applicant suffers from multiple comorbidities. His treatment has been optimised, and all conditions have been brought under control. From the information received, the applicant suffers from multiple comorbidities. His treatment has been optimised and all conditions have been brought under control.

"From the available information in the reports, the conclusion reached by the MPAB is that the applicant is stable and does not qualify for medical Parole according to the Act. The MPAB is open to considering other information, should it become available. The MPAB can only make its recommendations based on the Act."

- Karyn Maughan