"Whilst the recommendation of the board is important, it is not binding on the national commissioner as the [Correctional Services] Act confers a discretion on the national commissioner in the consideration of the application for the placement of an offender on medical parole," stated Thobakgale.
He said if the Act wanted the recommendation of the parole appeal board to be decisive and binding on the commissioner, it would have stated so explicitly.
"[The] national commissioner must consider all the available information, including the medical records and reports together with the recommendation of board, before taking a decision on the application for medical parole," stated Thobakgale.
He also argued that the judge erred when ruling that Fraser "has impermissibly usurped the statutory functions of the board" by considering reports of the two doctors who produced reports on Zuma's medical condition.
"The board is not the decision maker, it only makes a recommendation to the national commissioner and it is the national commissioner who must make a decision," Thobakgale argues.
In an application filed a few hours after the order by Matojane, lawyers for Zuma said the judge erred in finding that the DA, Helen Suzman Foundation and AfriForum had the requisite standing to bring the application.
Zuma had listed more than 10 reasons his application has reasonable prospects of success on appeal.
Zuma’s lawyers said the judge committed gross misdirection in not taking into account the overwhelming evidence that no correctional facility in SA was capable of accommodating the undisputed medical needs of Zuma, who is entitled to 24-hour medical care from the state.
His lawyers also said it was a gross misdirection to order the return of Zuma to prison and to conditions which are far worse than the hospital ward from which his medical parole was granted on the basis that no prison could adequately cater for his constitutional rights.
“This is tantamount to the death sentence, which was abolished in 1995 in SA,” his lawyers said.
Acting correctional services commissioner backs Zuma in medical parole appeal
Acting national correctional services commissioner has filed papers in support of the appeal against a Pretoria high court judgment which ruled that former president Jacob Zuma should return to prison to complete the remainder of his 15-month prison term.
Zuma has already applied for leave to appeal in the Supreme Court of Appeal (SCA) against the whole judgment and order handed down by judge Elias Matojane last week.
The matter is set for oral arguments on Tuesday.
In court papers which Sowetan has seen, acting commissioner Makgothi Thobakgale argued that Matojane erred in ruling that the decision taken by former commissioner and his predecessor Arthur Fraser to grant Zuma medical parole was unlawful.
Last week, the high court set aside the decision taken by Fraser to release Zuma with less than two months after his sentence for contempt of court.
Fraser had overturned recommendations by the department’s medical parole appeal board by releasing Zuma.
Thobakgale argued in court papers that Matojane erred as the board "does not make a medical diagnosis of the offender".
He said the judgment implied that the recommendation of the appeal board was binding on the commissioner.
"Whilst the recommendation of the board is important, it is not binding on the national commissioner as the [Correctional Services] Act confers a discretion on the national commissioner in the consideration of the application for the placement of an offender on medical parole," stated Thobakgale.
He said if the Act wanted the recommendation of the parole appeal board to be decisive and binding on the commissioner, it would have stated so explicitly.
"[The] national commissioner must consider all the available information, including the medical records and reports together with the recommendation of board, before taking a decision on the application for medical parole," stated Thobakgale.
He also argued that the judge erred when ruling that Fraser "has impermissibly usurped the statutory functions of the board" by considering reports of the two doctors who produced reports on Zuma's medical condition.
"The board is not the decision maker, it only makes a recommendation to the national commissioner and it is the national commissioner who must make a decision," Thobakgale argues.
In an application filed a few hours after the order by Matojane, lawyers for Zuma said the judge erred in finding that the DA, Helen Suzman Foundation and AfriForum had the requisite standing to bring the application.
Zuma had listed more than 10 reasons his application has reasonable prospects of success on appeal.
Zuma’s lawyers said the judge committed gross misdirection in not taking into account the overwhelming evidence that no correctional facility in SA was capable of accommodating the undisputed medical needs of Zuma, who is entitled to 24-hour medical care from the state.
His lawyers also said it was a gross misdirection to order the return of Zuma to prison and to conditions which are far worse than the hospital ward from which his medical parole was granted on the basis that no prison could adequately cater for his constitutional rights.
“This is tantamount to the death sentence, which was abolished in 1995 in SA,” his lawyers said.