Zuma being returned to jail would also be tantamount to
“the death sentence”, according to his legal team.
Attorneys for Zuma filed a notice on Wednesday to appeal
the high court judgment that earlier on 15 December ordered the former
president to return to prison to complete his 15-month sentence for contempt,
on the grounds that his being granted medical parole by the then correctional
services head and Zuma acolyte, Arthur Fraser, was unlawful. Both men were hit
with cost orders.
The Department of Correctional Services said that it too
would be appealing the decision, as it was “convinced that another court may
arrive at a different conclusion”.
“DCS is of the view that the court sadly misinterpreted the
Correctional Services Act and erred in declaring the decision of the National
Commissioner to place Mr Zuma on Medical Parole to be unlawful and setting it
aside. We will outline the grounds of appeal in the papers that we will be
filing in court in due course,” said the department via a statement.
It is likely Zuma’s legal team anticipated Wednesday’s loss
at the North Gauteng High Court, with the appeal being papers released within a
matter of hours of the judgment being handed down.
Zuma’s leave to appeal suspends the order that he returns
to prison. His legal team said there were “overwhelmingly good prospects of
success” should the appeal be heard.
The lawyers contend that Judge Keoagile Matojane erred or
committed “gross misdirections of fact or law” when he failed to acknowledge,
among other things, the “overwhelming evidence that no correctional facility in
South Africa is capable of accommodating the undisputed medical needs of
[Zuma], who is entitled to 24-hour medical care from the South African Medical
Health Services (SAMHS).”
“In this regard, the substitution order amounts to cruel
and degrading punishment with no due regard to [Zuma’s] healthcare, dignity and
other human rights. It is the antithesis of ubuntu….”
Judge Matojane said in his judgment that Fraser granting
the former president medical parole on 5 September, despite the Medical Parole
Advisory Board (MPAB) just days earlier not recommending such, was an “unlawful
intervention” that undermined respect for the country’s courts, the
constitution, and the rule of law.
Zuma was ordered back to prison, with the time he spent on
medical parole not being counted as fulfilling part of his sentence.
The urgent applications had been brought by the Democratic
Alliance, Helen Suzman Foundation and AfriForum.
The DA had sought that the parole decision be declared
unlawful, reviewed and set aside and to substitute it with a decision refusing
medical parole, and that Zuma be returned to prison.
The Helen Suzman Foundation had sought an order that Zuma’s
time on medical parole not be counted towards completion of his sentence.
AfriForum had sought a declarator from the court that the
MPAB is the statutory body to recommend the appropriateness of medical parole
in terms of the Correctional Services Act, and that the national commissioner
of correctional services could not make such a determination, and should
refrain from doing so. This too was granted.
The lawyers for the applicants argued that Zuma did not
satisfy the requirements for medical parole as per the Act, because he was
not “suffering from a terminal disease
or condition” and was not “rendered physically incapacitated as a result of
injury, disease or illness so as to severely limit daily activity or inmate
self-care”.
But in his application, Zuma’s legal team said that none of
the three organisations had any business being involved in the court
proceedings to challenge his release on medical parole as they were “pursuing a
political rather than a legal agenda”.
Too, according to Zuma’s legal team, the judge had erred
when he “second-guessed” and/or overruled “the expert and professional opinion
of qualified medical experts”, given that the applicants did not present
contrary medical evidence from experts. The court itself did not have any
medical expertise that was sufficient to make any contrary finding, according
to the legal team.
Fraser had said in his submission that he decided to grant
medical parole to the “frail” 79-year-old, who has various comorbidities, on
the strength of several medical reports from the military health service, and a
report from Dr Mphatswe, a member of the Medical Parole Advisory Board.
And, said Fraser, the head of Estcourt Correctional Centre,
where Zuma was incarcerated, had expressed concern that should Zuma need
medical assistance, the facility would not be able to provide “the type”
needed.
The newly refurbished Estcourt Correctional Centre has been
hailed by correctional services as being “state of the art”, with an extensive
medical wing, which is why Zuma was incarcerated there instead of at Westville
prison, where he was initially meant to serve his sentence.
Nevertheless, Fraser had also said that he overruled the
Medical Parole Advisory Board because of exceptional circumstances: A former
head of state had never previously been incarcerated, and should Zuma have died
in prison, there was a fear that the type of violence experienced during the
July riots could reoccur. Daily Maverick
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