The Department of Correctional Services (DCS), in an application to the Constitutional Court to appeal two lower court rulings that reversed the granting of medical parole to former president Jacob Zuma, has made a thinly veiled claim that there was a conspiracy by those courts to find against the department’s erstwhile national commissioner, Arthur Fraser. 

In a 58-page affidavit deposed by current DCS commissioner Makgothi Thobakgale and filed this week, he claims both the North Gauteng high court and the Supreme Court of Appeal erred in recognising the commissioner’s unfettered power to grant or disallow medical parole.  He further said that even if Fraser had made a mistake, returning Zuma to prison now would be “cruel” and amount to “double jeopardy”.  

In what could be seen as a claim of a conspiracy against Fraser, he said the reasons relied upon by both the high court and the SCA “were conveniently selected, for reasons only known by both courts, in an effort to unfairly label the commissioner’s decision as irrational”. 

In November, the SCA upheld a December 2021 ruling by the Pretoria high court that found Fraser granting Zuma medical parole was “irrational, unlawful and unconstitutional”.

A key component of both the high court and the SCA rulings was that the Medical Parole Advisory Board (MPAB) empowered by the Correctional Services Act to assess whether an inmate qualifies for medical parole or not, had found that Zuma did not qualify. 

National Commissioner of the Department of Correctional services, Makgothi Thobakgale. (Photo: Gallo Images / Brenton Geach)

The courts also found that Fraser had no legal power to override the board’s decision, while slamming him for using the potential for a reoccurrence of the July 2021 unrest — which was sparked by Zuma’s imprisonment — as part of the justification for the former president’s release. 

Thobakgale’s affidavit appeared to be crafted to deliberately undermine the parole board’s authority. He claimed it was the board that broke the law, not his office, while simultaneously placing the expertise of Zuma’s medical team above that of the independent board. 

“The board does not make a medical diagnosis of the offender. It only considers the reports of the medical experts submitted and makes a recommendation to the National Commissioner on whether the diagnosis made in the reports satisfy (sic) the requirements for [medical parole]. The medical diagnosis is done by the medical practitioner examining the offender and not the board,” said Thobakgale. 

He said the MPAB had been “misguided” in its assessment of Zuma in reaching a conclusion that he did not qualify for medical parole. 

Before Fraser took his decision in September 2021, the board had stated in its report to his office that while it recognised Zuma suffered from “multiple comorbidities”, his treatment “has been optimised and all conditions have been brought under control” and that the “conclusion reached by the MPAB is that the applicant it stable and does not qualify for medical parole.”

However, Thobakgale claims the MPAB had no right to make such an assessment.

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“The fact that a patient’s treatment has been ‘optimised’ and that his or her condition has been ‘brought under control’ does not imply that he or she has been cured from a terminal disease or condition. The statement by the MPAB to the effect that Mr JG Zuma was stable and does not qualify for medical parole is misguided,” said Thobakgale.

He further contends that the MPAB had no right in law to insert the word “stable” into its assessment, claiming the use of the word is not in the Correctional Services Act. He further said the MPAB makes no mention that Zuma is “not terminally ill or that he is not physically incapacitated”.

“While the recommendation of the board is important, it is not binding on the National Commissioner as the Act confers discretion on the National Commissioner in the consideration of the application for the placement of an offender on medical parole,” said Thobakgale.

Thobakgale is likely attempting to explain how the supposedly extremely ill Zuma has in recent months hosted prayer meetings, a book launch, and more recently campaigned against incumbent ANC President Cyril Ramaphosa. He has also been seen dining with fellow former medical parolee and his onetime bagman, Schabir Shaik.  

Thobakgale also said that while medical parole was only granted to those with terminal diseases, the “Correctional Services Act does not prescribe or require from a medical practitioner to state that the condition is irremediable by available medical treatment”.

He claimed that the high court, and by extension the SCA, could not review Fraser’s decision as they did not have the “expertise of determining medical parole”. 

Former State Security Agency director-general Arthur Fraser. (Photo: Gallo Images / Netwerk24 / Jaco Marais)

“[The high court] did not consider the relevant medical evidence which was before the national commissioner.”

In their rulings, both the high court and the SCA ordered Zuma back to Estcourt Correctional Centre. While the high court ordered Zuma back to prison to continue serving out the remainder of his sentence, the SCA, which would have been aware that Zuma’s 15-month sentence would have lapsed in October 2022, said the extent of the incarceration was not up to the SCA to decide but up to the national commissioner — Thobakgale. 

In June 2021, the Constitutional Court sentenced Zuma to 15-months’ imprisonment for contempt of court for failing to appear before the Zondo Commission of Inquiry into State Capture. Zuma started his sentence on 8 July, which was followed by rioting and looting in KwaZulu-Natal and parts of Gauteng, leading to destruction and theft in excess of R70-billion in eThekwini alone over a period of eight days. 

Thobakgale told the apex court it was “inconceivable that a court, in a constitutional dispensation, can send an inmate who has served his sentence under the system of community corrections, back to prison without considering the fact that he has already served time under the community corrections system”.

“This amounts to double jeopardy and a complete travesty of justice. This is inconsistent with the right not to be treated or punished in a cruel, inhuman or degrading manner and the spirit of ubuntu which is entrenched in the constitution.”

Thobagale cited a court case between the NPA and convicted murderer and former Paralympian Oscar Pistorius, which ruled that a sentence of seven months correctional supervision already served under community corrections “must be taken into consideration and be subtracted from the new sentence as sentence already served”. 

“Mr Zuma was not party to the decision to grant him medical parole and, if his placement on medical parole is unlawful (which is, in any event not conceded), there is no evidence that he is in any way, illegally, influenced by the national commissioner in making the impugned decision,” said Thobakgale. DM