SCA justices stress need to understand how Fraser assessed Zuma’s medical reports

Reading Time: 4 minutes

Supreme Court of Appeal (SCA)  justices have stressed the need to understand how former Correctional Services Commissioner, Arthur Fraser, assessed medical reports ahead of releasing former President Jacob Zuma on medical parole.

Zuma and the Department of Correctional Services presented their arguments before the SCA in Bloemfontein in a bid to overturn a High Court judgment that declared his release on medical parole unlawful.

Justice Nolwazi Mabindla-Boqwana has put it to Counsel for Correctional Services, Advocate Maribolla Mphahlele, that there is no information before the court about the illness Zuma was suffering from. On the other hand, Justice Clive Pasket added that Fraser never stated that Zuma suffered from a terminal illness.

Advocate Maribolla Mphahlele insists that there is nothing untoward about the decision to release Zuma from prison on medical parole, even though the Medical Parole Advisory Board was against it.

He argued that the Medical Parole Advisory Board’s report is not the deciding factor for the granting of medical parole. Mphahlele further says the board’s report is additional to other reports submitted to the national commissioner.

The board advised that Zuma does not qualify for medical parole.

“Firstly our submission is that the national commissioner has the power to determine medical parole in respect of all the issues that are in section 79 1AB. And for that the DA has conceded that the power lies with the national commissioner and also in their arguments also conceded that the national commissioner’s power to grant medical parole is subject to….in other words, he can grant medical parole to a certain offender provided all the requirements are met,” says Mphahlele.

In his submission, Senior Counsel Dali Mpofu representing Zuma argued that his medical condition undoubtedly allowed him to be released on medical parole. Mpofu argued that the High Court failed to establish one of the criteria, which is the issue of a terminal illness.

And that the Correctional Services Act empowered the national commissioner to act decisively and protect the rights of an inmate to adequate medical treatment.

Mpofu says there was inconsistency in terms of interpreting the Correctional Services Act.

“The aiming of medical practitioners states that Mr. Zuma suffers from medical illness. Once you say that then it doesn’t matter whether it’s a statement of a statement or whatever. That statement, therefore, is false because you cannot say, nowhere does any of the medical practitioners involved in this matter state that Mr. Zuma is suffering from the same illness and in the same breath you say Dr. Mara says he is suffering from terminal disease or condition. That is just inconsistency.”
Monday’s court proceedings :

Democratic Alliance (DA) legal representative Ismail Jamie defended the view of the Medical Parole Advisory Board.

“The board is supposed to provide a recommendation in terms of the act, and you will see there is no application in express terms of the board making a recommendation. The emphasis is on the board to provide an independent medical report to whether it got power for medical parole.”

The Helen Suzman Foundation submitted that the Medical Parole Advisory Board should give a positive response, for an inmate to be granted medical parole. Senior Counsel Max du Plessis contends that then national commissioner, Arthur Fraser failed to explain why he overlooked the board’s report.

“Mr. Zuma himself admits that the national commissioner is not a doctor to have been expected to make medical conclusions, so Mr. Fraser cannot meet the objective requirements of the statute.”

AfriForum maintains that it is only the Medical Parole Advisory Board that can decide whether an application for medical parole complies with the legal requirements.

Judgment is reserved.