Former president Jacob Zuma has approached the Constitutional Court, asking that he be made a second applicant, alongside first applicant the national commissioner of correctional services, in a bid to have the apex court overturn the decision that his release on medical parole was unlawful.  

In papers filed with the court, Zuma said there was the possibility he would have faced “death itself” while imprisoned in 2021 for contempt of court, making the unilateral decision by then prisons boss Arthur Fraser to grant him medical parole neither unreasonable nor irrational. 

Fraser had displayed “exemplary leadership” by granting his medical parole, he said. 

In November, the Supreme Court of Appeal (SCA) upheld a December 2021 ruling by the Pretoria High Court that Fraser’s granting of medical parole to Zuma was “irrational, unlawful and unconstitutional”.  

The SCA agreed with the lower court that Zuma should return to jail, but said it was up to the (new) national commissioner of correctional services to decide whether the former president’s time served on medical parole should be considered in his release. 

Zuma called this “erroneous in the extreme”, saying his full sentence had already been served via medical parole by 7 October 2022, so there was nothing for the new commissioner to consider. He asked that the apex court make a final decision on this. 

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

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 recurrence of the July 2021 unrest – which was sparked by Zuma’s imprisonment – as part of the justification for the former president’s release in September 2021, just more than two months after he had been sentenced to 15 months in jail for contempt of court. 

Since his release, the 80-year-old has been attending meetings, launched a collection of his speeches in book form at an hours-long event, and has been photographed at a restaurant opening where he danced with friends and family. There is no visible indication at least, that he has a serious illness, or indeed a terminal illness, that justified his release on medical parole. Zuma has publicly brushed off such assertions, saying those making such comments are not medical practitioners. 

Read in Daily Maverick: “He was there with me during the ‘nine wasted years’, Zuma says of Ramaphosa”

Zuma continued in his affidavit that the SCA had erred in finding that his age, status as former president, the riots sparked in July 2021 by his jailing, and the lack of facilities in correctional services to adequately attend to his “medical condition”, were irrelevant to an application for medical parole. 

The findings were “clearly erroneous at many levels”. 

“I was indeed 79 years of age and a former head of state. Those are facts that do not ground a basis for the granting of medical parole, but are correct [and] relevant information in describing who it is the commissioner was considering for medical parole. It was not the basis for granting medical parole that I was 79 years of age and a former head of state. Those factors alone would be neutral for they would be relevant facts to who I am. In any event, it is not correct that advanced age and frailty are ‘irrelevant’ to a person’s medical status.”

Visit Daily Maverick’s home page for more news, analysis and investigations

He said that the “public violence” following his arrest and jailing may have been viewed by the court as irrelevant to the granting of his medical parole, but was “a responsible reflection of what the public could believe if, for instance, I died in prison in circumstances where the commissioner had information about my medical condition”. 

But, he added, he was not pointing this out to “support or condone wanton violence”. He was merely trying to show that it was a relevant consideration, when contextualised. 

Both the SCA and the high court had failed to adequately consider why Fraser had been concerned about the potential death of a prisoner, and more so the potential death of a former president while incarcerated, he said.  

Arthur Frazer. (Photo by Gallo Images / Daily Sun / Lindile Mbontsi)

“I am quite aware that to some specific sections of our society, including the parties seeking to have me incarcerated, the possibility of my death may well be an ‘irrelevant’ or even joyous occasion. However, it is not unreasonable or irrational for the commissioner, faced with my medical facts, to consider the implications of my death while in prison, where that could be prevented by appropriate and lawful medical and/or administrative interventions.”

Zuma said there was agreement among the medical practitioners who had examined him and reviewed his medical files, on the “severity” of his medical conditions, and the only thing they could not agree upon was if his medical condition justified medical parole. 

Read in Daily Maverick: “Arthur Fraser ‘erred spectacularly’ in granting Zuma medical parole, Supreme Court of Appeal is told”

Fraser had been faced with these disparaging views, he said, and was thus “entitled to exercise discretion in favour of granting medical parole”. This, contended Zuma, was “consistent with [Fraser’s] constitutional duties as a commissioner”. 

Had he died while in prison, said Zuma, it would have caused “unnecessary national stress” that would have affected his family and other sectors of society. 

“Simply put, it was neither unlawful, unreasonable or irrational for [Fraser] to prevent my death in prison. I am grateful for it.” DM