Fraser had right to overrule Medical Parole Advisory Board on Zuma release, SCA told

Arthur Fraser exercised his discretion as the former national commissioner of correctional services when he decided to release former president Jacob Zuma on medical parole, the Supreme Court of Appeal (SCA) heard on Monday.

Zuma’s medical parole

Advocate Mantlheng Mphahlele, acting on behalf of the Department of Correctional Services (DCS), argued that Fraser was well within his powers to release the former president on medical parole in September 2021, even though the Medical Parole Advisory Board recommended against Zuma’s release from jail because he did not suffer from a terminal illness.

Mphahlele argued that Fraser used his discretionary powers because the independent recommendations of the Medical Parole Advisory Board were not binding on him.

“The report by the Medical Parole Advisory Board cannot be the one that makes that determination as to whether the sentenced offender is terminally ill or not.

“That report is an additional one where it will make a recommendation in terms of whether medical parole should be granted or not. Therefore, it is not binding on the national commissioner as has been submitted by the respondents,” Mphahlele said.

Zuma and the DCS were in the SCA in Bloemfontein on Monday to appeal a Pretoria High Court ruling in December that found his release on medical parole was unlawful and irrational, and ordered him to return to jail.

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Zuma was granted medical parole after having only served two months of his 15-month sentence imposed by the Constitutional Court for contempt of court.

The Democratic Alliance (DA), the Helen Suzman Foundation and AfriForum successfully challenged his release on parole at the high court.

Fraser ‘considered all reports’

Advocate Mphahlele argued that in terms of the Correctional Services Act, Fraser considered the reports from Zuma’s doctors that he should be released on medical parole, but he was not obliged to follow the recommendations of the Medical Parole Advisory Board.

“The national commissioner has discretion on whether to accept that report of the Medical Parole Advisory Board or not, because the discretion to grant or refuse the medical parole lies with the national commissioner and it does not lay with the board,” Mphahlele said.

SCA Judge Nolwazi Mabindla-Boqwana grilled Mphahlele on Fraser’s discretionary powers to grant an offender medical parole.

Mabindla-Boqwana questioned whether Fraser chose to ignore the recommendations of the Medical Parole Advisory Board, as an independent statutory body, and went with the reports supplied by Zuma’s doctors.

“You’re saying that he can choose which report he thinks it’s the correct report for him to approve the parole, is that correct?” Mabindla-Boqwana asked.

Mphahlele conceded that Fraser needed to consider all the reports before making his final determination on whether to grant parole.  

“No, he doesn’t choose, he must consider all of them,” he said.

Justice Mabindla-Boqwana further echoed the sentiments of most of the SCA’s justices that Zuma’s doctors never mentioned anything in their reports about him suffering from a terminal illness or having physical incapacity that would justify his release from jail.

She asked Mphahlele on what basis did Fraser come to his decision when he is not a medical practitioner.

Even though Zuma’s doctors said he was stable, Mphahlele argued it did not mean that he did not suffer from a terminal illness.

“If you’re medically stable it does not mean that you do not suffer from a terminal illness. It must have stabilised at that time because of medical intervention and it cannot be said now that he is no longer terminally ill,” he argued.

The case continues.

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