There have been a number of judgments in which courts have asserted the importance of the rule of law in general and the Constitution in particular. The insistence that Jacob Zuma is not above the law and that the public protector must comport her conduct within the law redound to the credit of the Constitutional Court. The decision last year to ensure the vindication of a key socio-economic right in the case of a school feeding scheme is but another such example as was the earlier judgment that effectively kiboshed the government to go nuclear and thus bankrupt the country.

This more nuanced picture of the judicial record has again been reflected in the judgement of Judge Keoagile Elias Matojane in upholding the review brought against former Commissioner of Correctional Services Arthur Fraser to grant Mr Zuma medical parole. Briefly, the background was the following that took place after the Constitutional Court sentenced Mr Zuma to 15 months in prison: an attempt was then made to ensure that Mr Zuma be granted medical parole. As a result, the Medical Parole Advisory Board (MPAD) considered the grant of medical parole but ruled against Mr Zuma.

Its reasoning was encapsulated here:

“Not recommended based on the following:

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 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.”

Undeterred, Mr Fraser decided to the contrary. He claimed that Zuma being a 79-year-old man with comorbidities, in his view, entitled him to override the decision of the parole board and grant him medical parole. This override of the Medical Parole Advisory Board decision made by an official, whose knowledge of medicine doubtless extends no further than the ability to purchase aspirin, prompted the application to review and set aside his decision. The relevant law was clear – medical parole is granted where the prisoner is terminally ill or physically incapacitated. Judge Motajane set out the reasoning for the negative decision of the parole board and then said:

“The recommendations of the 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.

The commissioner does not have the medical expertise to overrule the recommendation of the board.”

On its own, this finding justified a finding that Mr Fraser had performed what was clearly an administrative action in an irrational manner. But the judge went further to consider the reason Mr Fraser offered for his decision:

“There has never been a situation where a former head of state has been incarcerated, and we will all agree this was an unprecedented situation.

“This negates the constitutional right of all people to be treated equally before the law.

“The ‘Estcourt Correctional Centre could not risk the life of an inmate’.”

This is clearly not a reason based in law for granting medical parole. Section 12(1) of the act provides that the department “must provide, within its available resources, adequate health care services, based on the principles of primary health care, in order to allow every inmate to lead a healthy life and section 12(2)(a) provides that every inmate has the right to adequate medical treatment”. Ill health alone is not a basis to allow a convicted person to escape the punishment imposed by a court.

It followed that the purported reasons offered by Mr Fraser were not sourced in the applicable law and hence could not pass legal muster. But as Judge Motajane observed the lack of rationality in granting parole went further:

“The commissioner states that he overrode the recommendation of the board because it was clear to him from other medical reports that [the] respondent’s conditions ‘were only brought under control through optimised care that he was receiving at an advanced health care facility’. This decision is irrational because if there was no longer a need for the Third Respondent to receive the standard of care provided by the hospital, [the] Third Respondent should have been returned to the correction centre where he had access to all the medical care he required instead of being released to the care of his wife who has no medical training.”

In the light of this finding, the question arose as to the remedy that was required. Judge Motajane correctly found that Mr Fraser’s irrational conduct had subverted the sentence imposed on Mr Zuma by the Constitutional Court and hence he should be ordered to continue to serve out his sentence. As the judge wrote:

“The commissioner has unlawfully mitigated the punishment imposed by the Constitutional Court, thereby [rendering] the Constitutional order ineffective, which undermines the respect for the court, for the rule of law and the Constitution itself.”

And that is why this is such an important judgment. Mr Zuma’s praise singers, including that well-known legal pundit Carl Niehaus, would have the country develop a two-tier legal system: one for Mr Zuma and another for the rest of the country. That this pernicious line is always accompanied by the threat that if this two-tier system is not followed, July 2021 may well reoccur, only serves to highlight the principled importance of the judgement. It is another reminder that our courts will continue to stand firm in the defence of the rule of law. Of course, there was an immediate appeal against this decision. But that only illustrates the continued cynical use of legal process to prevent the law from taking its course. It should not detract from the importance of the judgment for the future of the rule of law in this country. DM