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WRAP | Fact that Zuma suffers from terminal illness 'established beyond reasonable doubt' - Mpofu

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15 August 19:10

Judgment is reserved.

15 August 19:04

Mpofu again points out that Zuma’s 15-month sentence comes to an end on 7 October, in seven weeks' time.

- Karyn Maughan 

15 August 19:03

Mpofu had previously argued that Zuma needs 24-hour day care that it wasn’t possible to provide him with in prison. He argues that Zuma could get such care in Nkandla - and denies that the fact that Zuma was moved there disproved his contention that the former president needed 24-hour day care. Zuma’s medic could stay with him 24 hours a day in Nkandla, Mpofu says.

- Karyn Maughan 

15 August 18:52

Mpofu argues that Mphatswe received specialised medical reports from Zuma’s doctors. He argues that he and Mafa - who both supported Zuma’s release on medical parole - had made a “diagnosis” on his medical condition, whereas the board did not.

- Karyn Maughan 

15 August 18:48

Mpofu makes reference to Mphatswe’s reference to a lesion in the colon - in his submissions recommending that Zuma be released. He says Mphatswe “must have felt that there was a terminal illness”.

- Karyn Maughan 

15 August 18:44

Mpofu contends that Dr Mphatswe - the medical parole advisory board doctor who examined Zuma and recommended his release - “doubled up” as a correctional services doctor. This seems to be his response to Du Plessis’s argument that a specially appointed correctional services doctor needed to be part of the evaluation of Zuma’s medical parole application. Mpofu says it’s not a requirement of the Correctional Services Act that a terminally ill inmate must also have an irreversible condition that is deteriorating.

- Karyn Maughan 

15 August 18:30

Mpofu now argues that there is no legal basis for contending that the Board’s recommendation on medical parole is binding on the National Commissioner.

- Karyn Maughan

15 August 18:18

Mphahlele, for DCS, says it is “not correct” that the Medical Parole Advisory Board’s recommendations are “final and binding” on the National Commissioner.

- Karyn Maughan 

15 August 18:15

Engelbrecht concludes her argument. We will now hear replies from lawyers for the department of correctional services and Zuma.

- Karyn Maughan

15 August 18:13

The IRR: “A proper construction of such a [contempt] order will, the IRR submits, produce the conclusion that a person committed for contempt of court remains throughout their incarceration under the exclusive control of the court and so must serve out the period of detention laid down by the original decision of the court unless the court decides otherwise. If this is correct, there can be no question of granting such a detainee “parole”, whether medical or otherwise. Only the court can release such a person before the expiry of the term of detention for which the court order originally provided, on application by the detainee on good cause shown. What constitutes such cause will depend on the circumstances of the case, but a genuine willingness to testify and a true exhibition of contrition would be relevant factors for the grant of such an order.

“Consequently, once an order for Mr Zuma’s incarceration was made, the Department of Correctional Services was duty bound to hold him in custody until the full period of his detention had run its course.”

- Karyn Maughan 

15 August 18:08

Plasket now asks Engelbrecht if the court can even decide on the arguments made by the IRR, given that the parties in this matter didn’t respond to them.

- Karyn Maughan 

15 August 18:05

The IRR argues that: “At the heart of this submission is the proposition that a person who is detained for contempt of court falls beyond the compass of a “sentenced offender” who is potentially eligible for parole within the contemplation of the Correctional Services Act 111 of 1998 (the Act). If Mr Zuma is not a “sentenced offender”, the Commissioner, the IRR submits, could not properly have entertained the application for parole and the act of doing so would be jurisdictionally incompetent and void.” The judges are clearly unconvinced.

- Karyn Maughan 

15 August 18:05

Dambuza tells Engelbrecht that her point “may be a bit shaky”. Makgoka adds that - once a person enters prison - that they are an inmate. Plasket adds that Engelbrecht’s argument seems to be a “lawyer’s point, divorced from the real world”.

- Karyn Maughan 

15 August 18:01

Advocate Labuschagne, arguing for Afriforum, makes a very brief submission before handing over to Advocate Margaretha Engelbrecht SC, for the Institute of Race Relations. She argues that Fraser was not empowered to grant Zuma medical parole - because he was found guilty of civil contempt of court.

- Karyn Maughan 

15 August 17:53

Plasket asks Du Plessis whether - if Zuma was unlawfully granted medical parole and was sent back to jail - the National Commissioner could consider the fact that he’d spent time on medical parole. After Du Plessis responds “yes”, Plasket says Matojane’s order that the time Zuma had spent on medical parole should not count as part of his sentence “could stand in the way” of this. Du Plessis says the SCA could address this.

- Karyn Maughan 

15 August 17:51

Dambuza pushes back against Du Plessis’s argument and questions whether there is evidence that Zuma was implicated in Fraser’s allegedly unlawful conduct. Du Plessis responds that spending time on medical parole is significantly different from serving time in jail - and argues that Zuma benefitted from Fraser’s unlawful conduct.

- Karyn Maughan 

15 August 17:42

Du Plessis says there is nothing to suggest that Matojane “got it wrong” when he ruled that Zuma was unlawfully released and ordered him back to jail - under the condition that the time he had spent on medical parole did not count as part of his sentence. Matojane found that Fraser had “mitigated” against the contempt sentence imposed by the Constitutional Court.

- Karyn Maughan 

15 August 17:36

Du Plessis says that Zuma himself has never claimed to be terminally ill. He makes no such claims in his court papers.

- Karyn Maughan 

15 August 17:31

Du Plessis says Fraser mistakenly thought he had the power to override the Board - but has failed to explain where he got that power from. Fraser “cannot be a law unto himself”, Du Plessis argues.

- Karyn Maughan 

15 August 17:25

Du Plessis points out that the Board obtained specialist medical reports - after the submissions made by Mafa and Mphatswe - that provided an updated picture of Zuma’s health.

Fraser, he says, never looked at these reports. Like Jamie, Du Plessis argues that Fraser is “not a doctor” and couldn’t be expected to choose the early reports made by Mafa and Mphatswe over the final report made by the Board - which considered their submissions.

- Karyn Maughan 

15 August 17:18

Du Plessis now refers the SCA to the Board’s decision, in which it confirmed that it had obtained multiple medical reports before reaching its conclusion, which stated: “From the information received, [Zuma] 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 [Zuma] is stable and does not qualify for medical Parole according to the Act”.

- Karyn Maughan

15 August 17:13

Du Plessis argues that Fraser has failed to show that he had the power to override the Board’s decision not to recommend Zuma’s release on medical parole. Fraser “summarily dismissed the Board’s decision”.

- Karyn Maughan

15 August 17:04

Du Plessis says the Medical Parole Advisory Board found that Zuma was not terminally ill or physically incapacitated - as was required by the Correctional Services Act.

- Karyn Maughan

15 August 17:01

After Jamie completes his argument, Max du Plessis SC - for the Helen Suzman Foundation - takes the SCA through the steps required before medical parole can be granted. He stresses that it is required that medical parole applications must be referred to doctors who are specifically appointed by the correctional services department. Mafa did not fall within that category, he says.

- Karyn Maughan

15 August 16:59

Jamie wraps up by arguing that Dr LJ Mphatswe - the medical parole advisory board doctor who recommended that Zuma get medical parole - never said he was terminally ill or incapacitated. “It states, instead, that he has a complex medical condition which predispose (sic) him to unpredictable medical fallouts or events of high-risk clinical picture'. It talks about 'the unpredictability of his plausible life-threatening cardiac and neurological events'.

Ultimately, Dr Mphatswe recommends medical parole because Mr Zuma's 'clinical picture presents unpredictable health conditions constituting a continuum of clinical conditions”. Jamie says it is “not clear what any of this means”.

He adds: “But Dr Mphatswe never states - expressly or implicitly - that Mr Zuma has a terminal illness, or that he is incapacitated. He has conditions that require management, but that is not the standard for medical parole.”

- Karyn Maughan

15 August 16:49

Max du Plessis will now argue for the Helen Suzman Foundation.

- Karyn Maughan

15 August 16:48

Jamie now read from the redacted report given by Dr LJ Mphatswe, the Board-appointed doctor, who stated that the former president has "a complex medical condition which predispose (sic) him to unpredictable medical fallouts or events of high-risk clinical picture". While Mphatswe refers to the "unpredictability of his plausible life-threatening cardiac and neurological events", Jamie contends that Mphatswe does not state that Zuma is terminally ill or incapacitated - which he says are requirements for medical parole.

- Karyn Maughan

15 August 16:44

We resume. Jamie argues that the conditions for release on medical parole require not only that an inmate has a terminal illness, but that this condition is irreversible - and has left the inmate in a condition where they are progressively deteriorating and unable to look after themselves.

- Karyn Maughan

15 August 16:08

We adjourn for ten minutes.

15 August 16:02

Makgoka points out that there is a list of medical conditions that the Medical Parole Advisory Board is required to consider when making its decision. Jamie says there is no suggestion that it did not do so - and points out that the Board referred to the fact that Zuma suffered from multiple co-morbidities.

- Karyn Maughan

15 August 15:51

In response to questions from Plasket, Jamie says the regulations make it clear the National Commissioner can only grant medical parole following a positive recommendation from the medical parole advisory board.

- Karyn Maughan

15 August 15:48

Jamie now contends that Fraser is "clearly not a medical doctor" and has no medical expertise. He says it is therefore completely appropriate that the Board - as a body of medical experts - be tasked with determining whether an inmate qualifies for medical parole.

- Karyn Maughan

15 August 15:40

Dr LJ Mphatswe was sent to examine Zuma, on behalf of the medical parole advisory board. A redacted version of Mphatswe’s 23 August report, which Fraser attaches to his court papers, recommended that Zuma be placed on medical parole “with immediate effect because of the clinical picture that presents unpredictable health conditions”. That recommendation was overruled by the Board after it considered Zuma's medical records and asked for further information.

- Karyn Maughan

15 August 15:36

15 August 15:32

Jamie says the Medical Parole Advisory Board was set up in the aftermath of Zuma's former financial advisor Schabir Shaik being released on medical parole on the basis that he was terminally ill. Shaik remains in seemingly robust good health, a decade after that decision.

- Karyn Maughan

15 August 15:28

Jamie argues that Mafa's application for Zuma's medical parole was "irregular". Dambuza says this was not the case that the DA made out and he agrees.

- Karyn Maughan

15 August 15:27

In the DA heads of argument, the party tracks the history of Zuma's medical parole application: "On 28 July 2021 Mr Zuma's physician, one Dr Mafa, applied for medical parole on MrZuma's behalf."

On 5 August 2021, Mr Zuma complained of chest pains and coughing. Later that day, he was transferred to the private Mediclinic Heart Hospital in Pretoria.

" He stayed there until he was released on medical parole. He never returned to prison.

On Thursday, 26 August 2021, and again on Saturday, 28 August 2021, the [Medical Parole Advisory] Board met, considered Mr Zuma's application for medical parole and the various medical reports that had been submitted, and on both occasions decided not to recommend the granting of medical parole as it did not have sufficient information to reach a decision. Both times, the Board requested additional information".

After getting that information, the Board recommended against Zuma getting medical parole.

- Karyn Maughan

15 August 15:25

Makgoka says that Mafa had the benefit of examining Zuma and could therefore make findings about his condition. Jamie says correctional services regulations require that medical parole application be supported by a report from a correctional services doctor.

- Karyn Maughan

15 August 15:18

Jamie contends that Mafa, the military doctor who Mpofu says found that Zuma was terminally ill, was not a disinterested medical practitioner. He was Zuma's doctor, he argues.

- Karyn Maughan

15 August 15:11

The DA contends that "on the facts before the Commissioner [Fraser]", Zuma is "neither terminally ill on incapacitated". As a result, it contends, he did not meet the requirements for the granting of medical parole.

- Karyn Maughan

15 August 15:01

Advocate Ishmail Jamie SC, for the DA, denies that the parties in the case did not try to get confidential access to Zuma's medical records for the judge hearing their challenge to the lawfulness of his medical parole.

He says that the DA's position remains that, absent a positive recommendation from the medical parole board, the National Commissioner had no power to grant Zuma medical parole.

- Karyn Maughan 

<p>Advocate Ishmail Jamie SC, for the DA, denies that the parties in the case did not try to get confidential access to Zuma's medical records for the judge hearing their challenge to the lawfulness of his medical parole. </p><p>He says that the DA's position remains that, absent a positive recommendation from the medical parole board, the National Commissioner had no power to grant Zuma medical parole.</p><p>- Karyn Maughan&nbsp;</p>

15 August 14:57

Mpofu argues that it would be "Draconian" for Zuma to be ordered to serve an additional 10 months under parole - which he contends would be the effect of a ruling that his time on medical parole did not count as part of his sentence.

- Karyn Maughan 

<p>Mpofu argues that it would be "Draconian" for Zuma to be ordered to serve an additional 10 months under parole - which he contends would be the effect of a ruling that his time on medical parole did not count as part of his sentence.</p><p>- Karyn Maughan&nbsp;</p>

15 August 14:52

We have now moved to one of the most legally assailable aspects of the Matojane ruling: his order that the time that Zuma served on medical parole not be counted as part of his sentence.

Mpofu argues that this ruling is "repugnant" and amounts to Zuma being sentenced again.

- Karyn Maughan 

<p>We have now moved to one of the most legally assailable aspects of the Matojane ruling: his order that the time that Zuma served on medical parole not be counted as part of his sentence. </p><p>Mpofu argues that this ruling is "repugnant" and amounts to Zuma being sentenced again.</p><p>- Karyn Maughan&nbsp;</p><p></p>

15 August 14:47

Mpofu argues that the primary reason justifying Zuma's medical parole was the finding that he suffered from a terminal illness - an illness that he argues would require 24-hour care for the former president.

Such care is not available to Zuma in prison, Mpofu adds.

- Karyn Maughan 

<p>Mpofu argues that the primary reason justifying Zuma's medical parole was the finding that he suffered from a terminal illness - an illness that he argues would require 24-hour care for the former president. </p><p>Such care is not available to Zuma in prison, Mpofu adds.</p><p>- Karyn Maughan&nbsp;</p><p></p>

15 August 14:44

Makgoka questions whether the concerns raised by Mpofu in regard to the conditions under which Zuma was imprisoned are more of an issue about treatment than about parole.

- Karyn Maughan 

15 August 14:41

Mpofu argues that sending Zuma back to prison will be like "throwing him to the wolves" because the head of prisons has made it clear that there are no facilities that could accommodate him.

- Karyn Maughan 

<p>Mpofu argues that sending Zuma back to prison will be like "throwing him to the wolves" because the head of prisons has made it clear that there are no facilities that could accommodate him.</p><p>- Karyn Maughan&nbsp;</p>

15 August 14:36

Makgoka interjects and says he struggles with the fact that Zuma, as a 79-year-old person, would be required to look after himself and make his own bed in prison.

- Karyn Maughan 

15 August 14:34

Mpofu argues that Fraser was entitled to consider the "fact" that Zuma - as an ex-president - was "entitled" to receive 24-hour medical care.

Zuma is not like other people, he argues.

- Karyn Maughan 

<p>Mpofu argues that Fraser was entitled to consider the "fact" that Zuma - as an ex-president - was "entitled" to receive 24-hour medical care. </p><p>Zuma is not like other people, he argues.</p><p>- Karyn Maughan&nbsp;</p>

15 August 14:30

Mpofu: "Even if the accusations were true and given the recent change of guard, there is not even a shred of evidence to support that the decision on medical parole, if it was still a live issue, would not be taken lawfully by the Acting National Commissioner.

"In any event, any new decision would be based on the latest medical evidence. The August decision has no relevance to what may or may not happen when new evidence is placed before a new decision-maker. The Board itself may return a different decision upon revision.

"In short, the impugned August decision is old news and is likely to have no bearing on a new decision which the court may order to be taken. The application is also academic for that additional reason."

- Karyn Maughan 

<p>Mpofu: "Even if the accusations were true and given the recent change of guard, there is not even a shred of evidence to support that the decision on medical parole, if it was still a live issue, would not be taken lawfully by the Acting National Commissioner. </p><p>"In any event, any new decision would be based on the latest medical evidence. The August decision has no relevance to what may or may not happen when new evidence is placed before a new decision-maker. The Board itself may return a different decision upon revision. </p><p>"In short, the impugned August decision is old news and is likely to have no bearing on a new decision which the court may order to be taken. The application is also academic for that additional reason."</p><p>- Karyn Maughan&nbsp;</p>

15 August 14:29

Mpofu says claims that Fraser acted with bias because he was Zuma's former spy boss are "concocted" - but insists that these "half-baked" allegations do not apply to the current National Commissioner.

This is why, he argues, if Zuma's medical parole is found to be unlawful, the National Commissioner can be asked to make a fresh determination on whether he should receive ordinary parole.

- Karyn Maughan 

<p>Mpofu says claims that Fraser acted with bias because he was Zuma's former spy boss are "concocted" - but insists that these "half-baked" allegations do not apply to the current National Commissioner. </p><p>This is why, he argues, if Zuma's medical parole is found to be unlawful, the National Commissioner can be asked to make a fresh determination on whether he should receive ordinary parole.</p><p>- Karyn Maughan&nbsp;</p>
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